EXHIBIT 10.18
PROFESSIONAL SERVICES AGREEMENT
This Consulting Services Agreement (the "Agreement") is made and is effective as
of the date of signing by the last party to sign below ("Effective Date"),
between Docent, Inc., a Delaware corporation ("Docent"), and the company named
below ("Client").
Client desires to utilize the services and expertise of Docent (i) to review
Client's internal program for training and assessment, (ii) to review Client's
goals and objectives for implementing a web-based enterprise training and
assessment solution, (iii) to make recommendations on the final design for
such a solution; and (iv) to implement that solution. Docent's Professional
Services Group is willing to provide such services to Client under the terms
and conditions set forth below.
The parties now agree as follows:
1. CONSULTING SERVICES
1.1 Services and Deliverables. Docent shall use commercially reasonable and
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diligent efforts to provide the services (the "Services") and to deliver the
deliverables (the "Deliverables") described in Appendix A hereto (the "Statement
of Work"), as amended from time to time by agreement of the parties in
accordance with the provisions of Section 1.4 of this Agreement.
1.2 Manner of Performance. Docent will determine the method, details and means
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of performing the Services and, subject to the prior written consent of Client
which shall not be unreasonably withheld or delayed, may subcontract or assign
certain portions but in no event all of its obligations and rights under this
Agreement.
1.3 Schedule. Docent shall use commercially reasonable and diligent efforts to
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meet the time schedule (the "Project Timeline") for delivery of the Deliverables
as set forth in Appendix A.
1.4 Change Request Procedures. Material changes to the Statement of Work
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shall be made only in accordance with the following procedure:
(a) The party requesting a change to the Statement of Work or to the pricing,
terms of payment, or acceptance criteria shall submit a written Change Request
("CR") to the other party in accordance with the provisions of this Section.
(b) If the requesting party is Client, then Docent will respond by written
notice to Client within ten (10) business days of receipt of the CR, outlining
all impacts of the requested change on the Deliverables, Schedule, and pricing,
and any other conditions upon which Docent's willingness to accept the CR may
depend (collectively, "CR Response"). If the requesting party is Docent, then
the CR will identify such impacts and conditions as proposed by Docent.
(c) Client shall accept, reject or propose modifications to each such CR or CR
Response given by Docent within ten (10) business days of receipt thereof by
Client. Additional modifications proposed by Client as part of such response
will be handled in accordance with the provisions of Section 1.4(a) above.
(d) Each acceptance of a CR or CR Response must be signed by an authorized
representative of each party before becoming effective as a modification to the
Statement of Work or any other part of this Agreement.
2. CLIENT'S DUTIES AND RESPONSIBILITIES
2.1 Data and Information. Client shall, in a timely manner and at no charge to
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Docent, give Docent access to all technical data, computer facilities, programs,
files, documentation, test data, sample output, or other information and
resources that are, in Docent's reasonable opinion, required by Docent for the
performance of the Services and delivery of the Deliverables. Docent shall work
diligently to identify as soon as reasonably practicable the resources and
information it expects to use, and shall provide an initial itemized list at the
end of Phase One of the Services as such phase is described in the Statement of
Work. Client will be responsible for, and assumes the risk of any problems,
delays, losses, claims, or expenses resulting from the content, accuracy,
completeness, and consistency of all such data, materials, and information
supplied by Client.
2.2 Equipment. When Services are performed on site at Client's facility,
Client shall provide, at no charge to Docent, such office space, services, and
equipment (such as copiers, and fax machines) as Docent, in Docent's reasonable
opinion, requires to deliver the Deliverables. Docent shall work diligently to
identify as soon as reasonably practicable the equipment it expects to use, and
shall provide an initial itemized list at the end of Phase One of the Services,
as such phase is described in the Statement of Work.
2.3 Other. Other responsibilities of Client, if any, are set forth in Appendix
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A.
3. ACCEPTANCE OF DELIVERABLES
Upon delivery of any Deliverable to Client, Client shall have fifteen (15)
business days to accept or reject the Deliverable by delivering written notice
to Docent. Should Client neither accept nor reject the Deliverable within such
fifteen (15) business days, the Deliverable will be deemed accepted. A
rejection shall be accompanied by a written statement setting forth the defects
in the Deliverable found by Client. Upon receipt of such written notice of the
reasons why the Deliverable was rejected, Docent will have fifteen (15) business
days to correct the defects or request additional time to correct such defects,
depending on the severity of the defects, which request shall not be
unreasonably denied. Docent shall redeliver the corrected Deliverable to
Client, and Client shall have an additional fifteen (15) business days to accept
or reject the work. The acceptance cycle will be repeated up to two additional
times until such Deliverable has been accepted. In the event that, upon the
completion of three full acceptance cycles, Client rejects for a third time a
particular Deliverable, either party shall have the right to terminate this
Agreement pursuant to Section 11.2(d) hereof (Termination for Convenience). In
the alternative, both parties may repeat the acceptance cycle until either (i)
the Deliverable is accepted by Client or (ii) one party elects to terminate this
Agreement pursuant to Section 11.2(d) (Termination for Convenience). Client
agrees not to unreasonably withhold acceptance.
4. RELATIONSHIP OF THE PARTIES
4.1 Independent Contractors. Each party will be and act as an independent
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contractor and not as an agent or partner of, or joint venturer with, the other
party for any purpose related to this Agreement or the transactions contemplated
by this Agreement. Neither party by virtue of this Agreement will have any
right, power, or authority to act or create any obligation, expressed or
implied, on behalf of the other party.
4.2 Contact Person. Each party will appoint in writing an employee or agent of
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such party to act as the "Contact Person" for all communication between the
parties related to the Deliverables. The Contact Persons will be responsible
for monitoring the status of the Deliverables and will schedule regular meetings
with both technical and management personnel of each party to review the same.
Either party may change its Contact Person upon written notice to the other.
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4.3 No Solicitation. Neither party will hire or attempt to hire either
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directly or indirectly any employees of the other party during the term of this
Agreement and for a period of twelve (12) months thereafter, without the prior
written consent of the other party. Such consent shall not be required, however,
in the case where (i) one party's employee has initiated the employment
discussions with the other party without any solicitation by the hiring party
other than the existence of an employment advertisement in a publication of
general circulation or on such party's web-site, and (ii) such employee is
actively pursuing employment with such other party.
5. FEES AND PAYMENTS
5.1 Fees. Client shall pay Docent for the Services and Deliverables the
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compensation set forth in Appendix A hereof. Such compensation shall be payable
on the schedule set forth in the Statement of Work included therein, as from
time to time amended in accordance with this Agreement. Except for the Pre-
Payment described in Appendix A which is due immediately upon execution of this
Agreement, all payments for fees and expenses are due net 30 days after the date
of invoice unless Client and Docent have made other arrangements in advance in
writing. The purchase of third party products shall be agreed upon mutually by
the parties prior to Docent ordering such products. Client shall pay for all
such third-party products in full no later than the due date set forth on the
invoice received from Docent. Docent will invoice in an itemized statement
stating at a minimum the price and the date such payment is due. Client will
pay, the costs incurred by Docent in the acquisition of the third-party product,
without any additional/xxxx-ups.
5.2 Expenses. Client and Docent shall agree in writing on estimated expenses
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in advance of any expenditure. Client shall separately reimburse Docent for all
reasonable travel and other expenses documented by receipts as incurred by
Docent in delivery of the Deliverables. Docent agrees to invoice such expenses
on a timely basis. Whenever reasonably practicable, Docent shall book its travel
through Client's travel service provider. Client shall be responsible for
providing Docent with the name, address and telephone number of its current
travel service provider and for updating Docent promptly with current
information if the travel service provider, or its name, address or telephone
number, changes.
5.3 Taxes. Client shall pay or reimburse any and all federal, state or local
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sales, use, excise or other taxes arising from or related to this Agreement
(other than taxes based on Docent's net income).
5.4 Interest. Client shall pay Docent #####% interest per month on the
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outstanding balance of any fees or expenses not paid. In the event that Client
in good faith and in writing protests the assessment of interest or the amount
of any balance outstanding on which interest would be charged, then interest
shall be suspended as to the protested sum during a two week period commencing
on the date Docent receives written protest (the "Interest Suspension Period").
The parties agree to work together in good faith to resolve the dispute during
the Interest Resolution Period. If such dispute is not resolved during the
Interest Suspension Period, either party may refer the dispute to arbitration
pursuant to Section 12.3 hereof. Client may then either (i) pay under protest
the amount claimed by Docent in order to prevent such amount from accruing any
additional charge of interest, in which case any amounts paid by Client in
excess of the amounts found to be outstanding by the Arbitrator would be
refunded along with the interest paid thereon, or (ii) withhold payment until
such dispute is resolved by arbitration pursuant to Section 12.3 hereof and pay
interest on the amounts found outstanding by the Arbitrator. In the latter
case, interest will be charged from the date such sum first became due through
the date payment is received by Docent, excluding the Interest Suspension
Period.
5.5 Invoices. Services will commence as soon as practical following Docent's
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receipt and acceptance of a signed copy of this Agreement and a purchase order
or other written authorization of the Services and Deliverables. If Client's
procedures allow payment of invoices without a purchase order, Client shall
provide a letter stating that fact to Docent. Notwithstanding the foregoing, no
terms, provisions or conditions of any purchase order or other business form or
written authorization used by Client shall have any effect on the rights, duties
or obligations of the parties under, or otherwise modify, this Agreement, other
than to state the volume or timing of Services or Deliverables, regardless of
any failure of Docent to object to such terms, provisions or conditions.
6. PROPERTY RIGHTS AND CONFIDENTIALITY.
6.1 Creations. Except as otherwise provided in Appendix A and subject to
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Section 6.4, all software programs, source and object codes, specifications,
designs, processes, techniques, concepts improvements, discoveries, ideas and
inventions, whether or not patentable, used, made or arising in connection with
the Services or the Deliverables (collectively "Creations") and all patents,
copyrights, trade secrets and other intellectual property rights related
thereto, will be the sole and exclusive property of Docent. Docent agrees that
it will not license or deliver to any other person or entity any custom software
code sequences containing Client's Confidential Information and will protect
such Confidential Information pursuant to Section 6.4 of this Agreement.
Nothing contained in this Agreement shall be construed as conferring by
implication, estoppel or otherwise upon Client any license or other right,
title, or interest in or to the Creations and/or the intellectual property
related thereto except to the extent that a Creation is a Deliverable, in which
case it shall be licensed solely as provided in Section 6.3. In the event that
DI provides Client with any Update or Upgrade (as such terms are defined in
Appendix A) to any Creation, Client agrees that it shall promptly install and
use such Update or Upgrade. Nothing in this Agreement shall be construed to
create an obligation in DI to provide to Client or its end users any Updates or
Upgrades to any Creation.
6.2 Further Assistance. Client agrees to assist Docent, at Docent's sole cost,
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as reasonably requested to assign, evidence, perfect, register and enforce
Docent's rights in and ownership of all patents, copyrights and other
intellectual property relating to the Creations in any and all countries,
including without limitation the execution of additional instruments of
conveyance and assisting Docent with applications for patents, copyrights or
other intellectual property registrations.
6.3 License. Docent hereby grants to Client a fully paid, non-exclusive, non-
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transferable, license (without the right to grant sublicenses) to use the
Creations for internal purposes only and to make such copies of the Creations as
may be reasonably necessary for such internal use. Nothing contained in this
Agreement shall be construed as conferring by implication, estoppel or otherwise
upon Client any license or other right, title, or interest in or to the
Creations (including without limitation, the right to reproduce, sell, or
distribute the Creations) except those expressly granted in this Section 6.3.
6.4 Client Content. Subject to the following limited license grant to Docent,
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Client shall retain all rights, title and interest in and to the content of its
course materials disclosed to Docent hereunder ("Client Content"), and such
content shall be the Confidential Information of Client subject to Section 6.5
below regardless of whether it is marked "confidential." Subject to the terms
and conditions of this Agreement, Client hereby grants Docent a limited, non-
exclusive, non-transferable royalty free license for the term of this Agreement
to use the Client Content internally only as required in order for Docent to
perform the Services and deliver the Deliverables hereunder. Docent shall have
the right, subject to the prior written consent of Client, not to be
unreasonably withheld, to sublicense to its permitted subcontractors Docent's
rights under this license grant solely as required to perform the Services and
deliver the Deliverables hereunder and only in accordance with the terms of this
Agreement. Customer warrants and represents that the content of any Client
Content it provides to DI shall not: (a) infringe any third party's copyright,
patent, trademark, trade secret or other proprietary rights or rights of
publicity or privacy; (b) violate any law, statute, ordinance or regulation
(including without limitation the laws and regulations governing export control,
unfair competition, anti-discrimination or false advertising); (c) be
defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d)
contain obscenity or child pornography; or (e) contain any viruses, Trojan
horses, worms, time bombs, cancelbots or other computer programming
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routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information.
6.5 Confidential Information.
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(a) Definition. The term "Confidential Information" shall mean any information
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disclosed by one party to the other in connection with this Agreement which is
in oral, written, graphic, machine readable or other tangible form including but
not limited to customer information or lists. Confidential Information may also
include information that is disclosed orally, provided that in the case of oral
disclosures, such information is designated as confidential at the time of
disclosure.
(b) Obligation. Each party shall treat as confidential all Confidential
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Information received from the other party, shall not use such Confidential
Information except as expressly permitted under this Agreement, and shall not
disclose such Confidential Information to any third party without the other
party's prior written consent. Without limiting the foregoing, each party shall
use at least the same degree of care which it uses to prevent the disclosure of
its own confidential information of like importance, but in no event with less
than reasonable care, to prevent the disclosure of Confidential Information
disclosed to it by the other party under this Agreement.
(c) Exceptions. Notwithstanding the above, the restrictions of this Section
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6.5 shall not apply to information that: (1) was independently developed by
employees, contractors or other agents of the receiving party without any use of
the Confidential Information of the other party; (2) becomes known to the
receiving party, without restriction, from a source other than the other party
hereto without breach of this Agreement and otherwise not in violation of the
other party's rights to the best knowledge of the receiving party; (3) was in
the public domain at the time it was disclosed or has come into the public
domain through no act or omission of the receiving party, its employees,
contractors, agents or representatives; (4) was known to the receiving party,
without restriction, at the time of disclosure; or (5) is disclosed pursuant to
the order or requirement of a court, administrative agency, or other
governmental body, provided, however, that the receiving party shall provide
prompt notice thereof to the other party and shall use its reasonable efforts
(such efforts not to require an expenditure in excess of $#####) to obtain
confidential treatment of such Confidential Information in consultation with the
other party.
(d) Notification. Each party agrees to notify the other promptly in the event
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of any breach of its security pursuant to which disclosure or misappropriation
of the other party's Confidential Information might occur. Each party shall,
upon request of the other, take all other reasonable steps necessary to recover
and prevent the misuse or further disclosure of any misappropriated or disclosed
Confidential Information disclosed to or placed in the possession of each party
by virtue of this Agreement.
(e) Remedies. Unauthorized use by a party of the other party's Confidential
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Information will diminish the value of such information. Therefore, if a party
breaches any of its obligations with respect to confidentiality or unauthorized
use of Confidential Information hereunder, the other party shall be entitled to
equitable relief to protect its interest therein, including but not limited to
injunctive relief, as well as money damages.
7. MAINTENANCE AND SUPPORT
7.1 Maintenance Agreement. Maintenance and support of any software developed
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or modified under this Agreement and training related to such software shall be
provided subject to the terms and conditions of this Agreement and in the form
described in Appendix B.
7.2 Assignment of Duties. Docent may assign its duties of maintenance,
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support, or training, if any, to a third party; provided, that Docent shall
remain responsible for the actions of said third party.
8. LIMITED WARRANTY, WARRANTY AND LIMITATION OF LIABILITY
8.1 Limited Service Warranty. Docent warrants that the Services will be
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performed in a professional, workmanlike and skillful manner and that the
Services will conform in all material respects to the requirements set forth in
the Statement of Work.
8.2 Limited Software Warranty. Docent warrants, with respect to any software
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to be delivered hereunder, that for a period of thirty (30) days from the date
of acceptance as determined pursuant to Section 3 above (the "Warranty Period"),
such software will operate substantially in accordance with the specifications
for such software developed in accordance with the Statement of Work as set
forth in Appendix A. Any written or oral information or advice given by Docent
dealers, distributors, agents, or employees will in no way increase the scope of
this warranty, and the warranty is void to the degree that such failure of the
software is due to modification other than by Docent, abuse, misapplication or
accident.
8.3 Exclusive Remedies.
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(a) In the event that Client notifies Docent in writing that the Services do
not conform to the warranty set forth in Section 8.1 above, then Client's sole
and exclusive remedy and Docent's sole obligation to Client for breach of
warranty thereunder shall be to repeat the non-conforming Services.
(b) If Client reports a material and reproducible failure of the software to
conform to the specifications for such software as set forth in Appendix A
during the warranty period, Client's sole and exclusive remedy and Docent's sole
obligation to Client for breach of this warranty shall be that Docent will use
commercially reasonable efforts to make the software conform to the associated
specifications or, in Docent's sole discretion, will refund the sums paid for
such non-conforming software. Any replacement software will be warranted for 30
days from the date Client received the replacement.
(c) Docent shall have no warranty obligations if and to the extent that any
software (i) has been modified by any person other than Docent (unless Client
obtains Docent's prior approval of such modification), or (ii) fails as a result
of abuse, misuse, misapplication, accident or force majeure.
8.4 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 8.1 and 8.2 ABOVE,
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DOCENT DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, ALL OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
AND NON-INFRINGEMENT, REGARDING OR RELATING TO THE CREATIONS, DOCUMENTATION,
DELIVERABLES, SERVICES, OR OTHER MATERIALS FURNISHED OR PROVIDED TO CLIENT UNDER
THIS AGREEMENT. DOCENT DOES NOT WARRANT THAT THE CREATIONS WILL MEET CLIENT'S
BUSINESS PURPOSES OR THAT ANY CREATION WILL OPERATE IN COMBINATION WITH SOFTWARE
OR HARDWARE OWNED OR USED BY CLIENT (OTHER THAN THE SOFTWARE LICENSED UNDER THE
LICENSE AGREEMENT BETWEEN DOCENT AND CLIENT OF EVEN DATE HEREWITH).
8.5 No Modification of Warranties. No employee, agent, representative, or
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affiliate of Docent has authority to bind Docent to any oral representations or
warranty concerning the Services, Deliverables or Creations. Any written
representation or warranty not expressly contained in this Agreement will not be
enforceable.
8.6 No Warranty for Third Party Products. The foregoing warranties do not
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apply to products purchased by Docent from third parties. The third party
warranties shall, to the extent permissible, be passed through to Client. The
foregoing warranties do apply to Services and Deliverables provided by
subcontractors of Docent.
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9. INDEMNITY.
9.1 Docent Indemnity. Docent shall indemnify and hold Client harmless from and
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will defend against any and all judgments, costs and expenses reasonably
incurred, including without limitation reasonable attorneys' fees of client
therefor, as a result of any claims, suits, actions, demands and threats
(collectively, "Claims") related to or arising out of or in connection with
Claims that the Creations infringe any U.S. patent, copyright or trademark, or
misappropriates any trade secret, provided, however, that Docent shall not
indemnify Client for a claim based on any alleged infringement arising from (a)
additions, changes or modifications to the Creations by or on behalf of Client
or its End users, (b) any incorporation of the Creations or any component
thereof into any product or process not owned or controlled by Docent, (c) any
use by Client or its End Users of any Creations subsequent to delivery to Client
of updates or otherwise superseding versions of such Creations or components
thereof along with Docent's written request to use such updates or superseding
versions where Client or End User fails to use such updates or superseding
versions, or (d) use of the Creations other than as permitted by Section 6
hereof.
9.2 Client Indemnity. Client shall indemnify and hold Docent harmless from and
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will defend against any and all judgments, costs and expenses reasonably
incurred, including without limitation reasonable attorneys' fees, of Docent
therefore, as a result of any claims, suits, actions, demands and threats
(collectively, "Claims") related to or arising out of or in connection with (a)
the use or combination of any Deliverable, or any derivative work thereof with
any other documentation, goods or services of Client, its End Users or any third
party other than a third party contractor of Docent acting at the request of
Docent (including but not limited to Client's Content); (b) the improper use of
any Deliverable or any derivative work thereof, or the failure to use an update
or superseding version as and when provided by Docent, or (c) any modification
or alteration of any Deliverable, an update or any derivative work thereof other
than by or on behalf of Docent, where such Claim would not have arisen except
for such use, combination, modification or alteration.
9.3 Indemnification Restrictions. The indemnities set forth in this Section 9
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shall not apply unless the indemnified party (i) gives the indemnifying party
prompt notice of any actual or threatened claim of such infringement or
misappropriation, (ii) cooperates fully, at the indemnifying party's expense,
with the indemnifying party and its counsel in the defense or settlement
thereof, and (iii) in the case of Docent's indemnification of Client, Client
gives control of the defense of such Claims to Docent. In each instance, at
indemnified party's option, the indemnified party and indemnified party's
counsel may participate in the defense and settlement of such claims unless, in
the reasonable opinion of the indemnifying party or indemnifying party's
counsel, such participation would impair or otherwise jeopardize the
indemnifying party's attorney-client privilege, confidential information,
defense strategy or competitive advantage. In the event that as a result of such
claims, any or all of Creations may no longer be used by Client, then Docent
shall, as it shall determine in its sole and reasonable discretion, either (1)
modify the Creation such that it no longer infringes, (2) obtain at Docent's
cost a license for Client and its End Users to continue to use the Creation, or
(3) refund to Client the pro rata portion of the fees paid hereunder applicable
to the portion of the Creations no longer usable by Customer.
10. Limitation of Liability. IN NO EVENT SHALL DOCENT, ITS SUPPLIERS OR CLIENT
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BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS
INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS) IN CONNECTION WITH
OR ARISING OUT OF THE FURNISHING, PERFORMANCE, USE OF, OR INABILITY TO USE THE
CREATIONS RELATED DOCUMENTATION, DELIVERABLES, SERVICES OR OTHER MATERIALS
FURNISHED OR PROVIDED HEREUNDER, OR OTHERWISE ARISING OUT OF THIS AGREEMENT,
EVEN IF SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
ADDITION, NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN
DELIVERY OR FURNISHING ANY OF THE FOREGOING. IN NO EVENT SHALL THE AGGREGATE
AND CUMULATIVE LIABILITY OF DOCENT, ITS SUPPLIERS OR CLIENT, WHETHER IN CONTRACT
OR TORT OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID TO DOCENT HEREUNDER, EXCEPT
FOR CUSTOMER'S LIABILITY FOR A MATERIAL BREACH OF SUBSECTION 6.3 HEREOF.
11. TERM AND TERMINATION
11.1 Term. This Agreement will take effect on the Effective Date and will
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remain in effect, unless earlier terminated in accordance with Section 11.2,
until all of the Services have been completed and all of the Deliverables have
been delivered as provided in Section 3.1.
11.2 Termination.
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(a) This Agreement may be terminated by Docent by written notice to Client if
Client (i) fails to pay any amount due Docent hereunder within fifteen (15)
business days after Docent gives written notice of such non-payment, or (ii)
commits a material non-monetary breach of this Agreement, which breach is not
cured within fifteen (15) business days of such written notice. In the event
that Client protests in writing Docent's termination for failure to make a
payment because it believes in good faith that the payment is not outstanding,
then the termination shall not take effect until the parties have investigated
the basis for Client's protest and agreed upon whether or not Docent has a basis
for termination under this Section 11.2. The parties agree to work together in
good faith to investigate the dispute for a period not in excess of thirty (30)
days from Docent's receipt of Client's notice of protest (the "Termination
Dispute Period"). If such dispute is not resolved during the Termination Dispute
Period, either party may refer the dispute to arbitration pursuant to Section
12.3 hereof. Termination shall become effective upon the earlier of (i) the
parties' agreement that the payment for which Docent initiated termination
proceedings had indeed not been made or (ii) upon a final determination by the
arbitrator that the payment for which Docent initiated termination proceedings
had indeed not been made. Interest shall continue to accrue on any sum found to
be outstanding from the date originally due until a final determination has been
made by the parties or by the arbitrator and payment has been received by
Docent, at rate of #####% per month or the highest rate permitted by law,
whichever is the lesser.
(b) This Agreement may be terminated by Client by written notice to Docent if
Docent commits a material breach of this Agreement, which breach is not cured
within fifteen (15) business days of such written notice. Failure to meet the
Schedule set forth in Appendix A shall not be deemed a material breach of this
Agreement, unless Docent is more than fifteen (15) days late in providing
Deliverables.
(c) This Agreement may be terminated by either party if the other party (i)
terminates or suspends its business, (ii) becomes insolvent, admits in writing
its inability to pay its debts as they mature, makes an assignment for the
benefit of creditors, or becomes subject to direct control of a trustee,
receiver or similar authority, or (iii) becomes subject to any bankruptcy or
insolvency proceeding under federal or state statutes.
(d) Either party may terminate this Agreement upon thirty (30) days prior
written notice to the other party. In the event of such a termination, Client
agrees to pay to Docent for all Services performed and all Deliverables
delivered and accepted as of the effective date of termination, and Docent shall
invoice Client for such payment. Payment shall be due and payable in accordance
with Section 5 above.
11.3 Effect of Termination. All licenses granted hereunder shall terminate
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immediately upon the early termination of this Agreement pursuant to Sections
11.2(a), (b), (c) or (d). Upon the expiration of this Agreement in accordance
with its terms, the license granted to Client hereunder shall remain in effect
until the termination or expiration of the License Agreement of even
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date herewith entered into by and between the parties, unless and until Client
breaches the terms or exceeds the scope of the license granted herein.
Termination or expiration of this Agreement shall not affect Sections 5, 6, 9,
10, 11.3 and 12 of this Agreement, all of which will survive termination of this
Agreement regardless of the reason for termination or expiration.
12. GENERAL PROVISIONS
12.1 Non-Assignability. This Agreement may not be assigned by either party
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without the other's prior written consent, which consent shall not be
unreasonably withheld or delayed, and any such attempted assignment shall be
void and of no effect; provided, however, that either party may assign this
Agreement to any successor by merger, consolidation or sale of all or
substantially all of its assets without the consent of the other party so long
as (i) the assigning party gives written notice to the non-assigning party of
such assignment and (ii) any such assignment is not to a direct competitor of
the non-assigning party. This Agreement will be binding upon the successors and
permitted assigns of the parties and the name of a party appearing herein will
be deemed to include the names of such party's successor's and permitted assigns
to the extent necessary to carry out the intent of this Agreement.
12.2 Governing Law. This Agreement will be interpreted and construed in
-------------
accordance with the laws of the State of California, without regard to conflict
of laws principles.
12.3 Arbitration. Any dispute or claim arising out of or in connection with
-----------
this Agreement will be finally settled by binding arbitration in Santa Xxxxx
County, California, under the Commercial Arbitration Rules of the American
Arbitration Association (AAA). Each party shall choose an arbitrator and then
each arbitrator shall cooperate with the other arbitrator to select a third
arbitrator who shall be the sole arbitrator of the matter in dispute. In the
event that the parties' arbitrators are unable to agree upon a third arbitrator,
then a single arbitrator shall be appointed by AAA in accordance with its rules.
Judgment on the award rendered by the Arbitrator shall be final and may be
entered in any court having jurisdiction thereof. Notwithstanding the
foregoing, the parties may apply to any court of competent jurisdiction for
injunctive relief, as necessary, without breach of this arbitration provision.
12.4 Entire Agreement. This Agreement, including any Appendices which are
----------------
incorporated herein by reference, is the entire agreement of the parties and
supersedes any prior agreements between them with respect to the Deliverables.
No modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by an
authorized representative of each party.
12.5 Notices. All notices required or permitted under this Agreement will be
-------
in writing and will be deemed given (a) when delivered personally; (b) when sent
by confirmed facsimile; (c) five (5) business days after having been sent by
registered or certified mail, return receipt requested, postage prepaid; or (d)
one (1) business day after deposit with a commercial overnight carrier
specifying next day delivery, with written verification of receipt. All
communications will be sent to the address set forth below or to such other
address as may be designated by a party giving written notice to the other party
pursuant to this Section 12.5.
12.6 Partial Invalidity. In the event that any provision of this Agreement
------------------
shall be held to be unenforceable, such provision shall in good faith be
renegotiated to be enforceable and shall reflect as closely as possible the
intent of the original provision of this Agreement. Such negotiations shall not
affect the enforceability of the remainder of the Agreement.
12.7 Force Majeure. Nonperformance of either party, except for the making of
-------------
payments in accordance with Section 5, shall be excused to the extent that
performance is rendered impossible by strike, fire, flood, earthquake,
governmental acts or orders or restrictions, or any other reason when failure
to perform is beyond the control and not caused by the negligence of the
nonperforming party.
12.8 Counterparts. This Agreement may be executed in two or more counterparts,
------------
each of which will be deemed an original and all of which together will
constitute one instrument.
12.9 Attorney's Fees. If either party commences any action or proceeding
---------------
against the other party to enforce this Agreement, the prevailing party in such
action or proceeding (as expressly determined by the arbitrator, finder of fact
or the court) shall be entitled to recover from the other party reasonable
attorney's fees and all other costs and expenses incurred by such party in
connection with such action or proceeding and in connection with enforcing any
judgment or order thereby obtained.
12.10 Press Releases and Marketing Collateral. Client agrees to grant Docent
---------------------------------------
permission to publish articles, brochures, press releases, and other marketing
collateral describing the project, deliverables, Client name and profile upon
completion of the project subject to Client's prior review and approval which
review and approval shall not be unreasonably withheld or delayed. The parties
agree these materials will not disclose information which either party may
describe as confidential, and such review will be performed in an expeditious
manner so that Docent's intent of marketing the Deliverables to other Clients is
not prohibited.
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
5
IN WITNESS WHEREOF the parties have caused their duly authorized
representatives to execute this Professional Services Agreement as of the
Effective Date.
DOCENT, INC. WUNDERMAN CATO XXXXXXX
By: /s/ Xxxx Xxxxxx By: /s/ #####
--------------------------------------- --------------------------------------
Name: Xxxx Xxxxxx Name: #####
--------------------------------------- --------------------------------------
Title: President & CEO Title: #####
--------------------------------------- --------------------------------------
Date: 3/25/99 Date: 3/24/99
--------------------------------------- --------------------------------------
Address for Notice: Address for Notice:
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000 000 Xxxxxx xx xxx Xxxxxxxx
X.X.X. Xxx Xxxx, XX 00000-0000
Attn: Chief Financial Officer
Fax: (000) 000-0000 Attn: _____________________________________
Fax: ______________________________________
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
6
Appendix A
----------
Professional Services and Statement of Work
A. Consulting Services
-------------------
Stage 1 - #####
Stage 1 is the DISCOVER phase of the Dimension7 consulting
methodology.
The Discover phase includes up to ##### person hours of Docent consulting
time to:
. Determine Business Needs
. Propose Project
. Assess Organization Readiness
. Identify Client Resources
Stage 2 - $#####*
Stage 2 is the DEFINITION phase of the Dimension7 consulting
methodology.
The Definition phase includes:
. Define the Deployment Goals & Objectives
. Define Measurements
. Develop #####
. Detailed project plan
. Responsibilities
. Delivery and Payment schedule
. Milestones
. Statement of Work (SOW)
The DEFINITION phase in Stage 2 is used to develop an ELA that details the
deliverables, schedules, responsibilities, milestones and SOW to drive the other
phases. #####
Stage 3 - $#####*
Stage 3 is composed of four Dimensions of the Dimension7
methodology. The four dimensions are:
DESIGN the learning solutions to answer these challenges
DEMONSTRATE working prototypes of these learning solutions
DEVELOP the proposed, system-wide learning solution
DEPLOY the solution in an enterprise environment
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
A-1
The general deliverables in these Dimensions are:
DESIGN
. Define learning intervention
. Perform technical feasibility study
. Detail necessary technology and resources
. Develop resource map
. Develop detailed project plan, timeline, and review
cycles
. Correlate outcomes with business goals
DEMONSTRATE
. Outline the design of the prototype
. Develop prototype using spiral approach
. Demonstrate solution through prototype
. Validate design correlated to objectives
. Revise design in accordance with results
DEVELOP
. Manage the development process
. Create courseware
. Complete integration
. Carry out Alpha, Beta, Production release phases
. Perform QA and system acceptance testing
. System Signoff
DEPLOY
. Manage deployment process
. Create testing and validation plan
. Prepare infrastructure for production
. Communicate implementation plan
. Provide training to the target organization
. Carry out deployment process
. Test and validate learning system
. Production Signoff and Final Acceptance of Deliverables
*##### percent (#####%) of the cost of each of State 2 and Stage 3 is due
immediately upon execution of this Agreement (the "Pre-Payment"), and DI is not
required to invoice Client for the Pre-Payment. Upon the completion of Stage 2,
Docent shall invoice client for the $##### fee less the #####% prepayment and
such fee shall be due 30 days after the date of invoice. Upon the completion of
each Stage 3 milestone defined in the Statement of Work, Docent shall invoice
Client for the fee for such milestone, as defined in the Statement of Work, less
the #####% prepayment and such fee shall be due 30 days after the date of
invoice.
B. Any software, custom or otherwise, delivered under this Agreement shall be
delivered in Executable Code Format only, and shall be considered to be a
Creation hereunder.
C. Definitions
-----------
For purposes of this Agreement, the following terms shall have the meanings set
forth below:
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
A-2
"Executable Code" means the fully compiled version of a software Deliverable
that can be executed by a computer and used by an end user without further
compilation.
"Updates" means any bug fixes, patches, or other revisions or changes to or
modifications of a software Deliverable which would typically be designated by a
change in the version number to the right of the first decimal point, and does
not include changes, modifications or new versions that provide additional
features, require additional hardware or perform additional functions, or any
custom patches, changes or modifications.
"Upgrades" means any new releases of, or revisions or modifications to, a
software Deliverable which would typically be designated by a change in the
version number to the left of the first decimal point, such as those that
provide additional features, require additional hardware or perform additional
functions not provided or performed by the Software previously licensed to
Client. 33839 v9/PM
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
A-3
Appendix B
----------
Maintenance Program
Support
-------
Support for customized features will be provided by Docent Professional Services
on a time and material basis at Docent's then standard rates changed to
similarly situated customers under like circumstances.
B-1.
[LETTERHEAD Wunderman Cato Xxxxxxx]
##### Worldwide Headquarters Telephone
##### 675 Avenue of the Americas #####
##### New York, New York Fax
00000-0000 #####
#####
October 8, 1999
Xx. Xxx Xxxxxx
Chief Financial Officer
Docent, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000-0000
Dear Don:
This letter serves as an amendment to the Professional Services Agreement
(the "Agreement") between Docent, Inc. ("Docent") and Wunderman Cato Xxxxxxx
("WCT'). Section 5.1 of the Agreement is hereby amended by inserting the
following at the end of such Section:
"Notwithstanding the foregoing, Client shall pay for all third party
costs associated with all audio recordings required ##### project
(collectively, the "Audio Costs") and Docent shall credit the amount of
the Audio Costs against the fees and expenses otherwise payable by
Client to Docent hereunder. The Audio Costs include, without
limitation, all payments for talent, recording, editing and out-of
pocket fees associated with such audio recordings. Client shall submit
an invoice to Docent setting forth all Audio Costs with documentation
of all Audio Costs. Upon receipt of such invoice by Docent, Docent
shall prepare and issue within 5 business days a credit memo in favor
of Client in the full amount of the Audio Costs. Docent shall apply
such amount against the fees and expenses otherwise payable by Client
to Docent hereunder."
Attached is an estimate of Audio Costs. Please sign the estimate and return
it to me. Recording cannot begin until WCJ receives the signed estimate.
If you are in agreement with the foregoing, please sign and return to me the
enclosed copy of this amendment.
Sincerely,
/s/ #####
##### CONFIDENTIAL MATERIAL REDACTED AND FIELD SEPARATELY WITH THE COMMISSION
WUNDERMAN CATO XXXXXXX
By /s/ #####
--------------------------------------
Name: #####
Title: #####
ACCEPTED AND AGREED TO:
By /s/ Xxx Xxxxxx*
--------------------------------------
Name: Xxx Xxxxxx
Title: Chief Financial Officer
*Limited to no more than #####. /s/ DF
Enclosure
cc: #####
Xxxx Xxxxxx
Xxxx Xxxxxxxx
##### CONFIDENTIAL MATERIAL REDACTED AND FIELD SEPARATELY WITH THE COMMISSION
WUNDERMAN CATO XXXXXXX
TV PRODUCTION ESTIMATE
CLIENT: DOCENT, INC.
JOB DESCRIPTION: Audio recordings for
#####
Categories Estimated Costs
---------- ---------------
11 characters recorded $ #####
Studio(5 days) #####
Cassettes #####
Shipping #####
-------
$ #####
Sales tax #####
-------
Total $ #####
Docent approval:_________________
_________________
(print name)
Date: _________________
##### CONFIDENTIAL MATERIAL REDACTED AND FIELD SEPARATELY WITH THE COMMISSION
