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EXHIBIT 10.6
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DIGITALTHINK CUSTOM COURSE AGREEMENT
WHEREAS, ADOBE SYSTEMS INCORPORATED ("Sponsor"), with a principal place of
business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, desires to secure
online training services for its, and its affiliate's employees, customers,
and/or other business partners; and
WHEREAS, DIGITALTHINK ("DigitalThink") with a principal office at 0000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000, desires to provide such
training services for Sponsor;
NOW, therefore, the parties agree as follows:
1. SERVICES:
a) DigitalThink shall perform for Sponsor the customer course services
(the "Services") relating to project management, development of course
content, production of courseware, and delivery of the online courses
via the Internet as specified in one or more Attachments to this
Agreement (in the form of Arrangement Letters signed by both parties),
each of which will be attached hereto and made a part hereof. In the
event of a conflict between any term of this Agreement and an
Attachment, the terms of the relevant Attachment shall prevail.
b) Changes within the scope of the Services shall be made only in writing
executed by authorized representatives of both parties. DigitalThink
shall have no obligation to commence work in connection with any
change until the fee and/or schedule impact of the change is agreed
upon by the parties in writing.
2. TERM OF AGREEMENT: The Effective Date of this Agreement shall be February
17, 1999, regardless of the date of execution hereof, and shall continue
until February 16, 2002.
3. COMPENSATION:
a) Sponsor shall pay DigitalThink for the Services as defined in the
applicable Attachments.
b) Sponsor shall pay the amounts payable to DigitalThink hereunder
within 30 days of the receipt of invoices submitted by DigitalThink.
c) DigitalThink shall be reimbursed by Sponsor for all reasonable travel
and lodging expenses incurred by DigitalThink in accordance with
Sponsor's travel expense guidelines for travel to Sponsor's premises
in support of the Services.
4. RESPONSIBILITIES:
The Courses to be developed shall be defined in the applicable Attachments.
Course development includes all work required to create and build the
courses, while Course delivery includes all work and services required for
delivery via the Web.
DigitalThink's product development responsibilities shall be:
a) Provide project management resources.
b) Assist in the creation of the instructional plan and course outline.
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c) Provide guidance to Sponsor's content expert and review content as part
of the course creation process.
d) Produce the Course and prepare it for online delivery via the
DigitalThink system. Course production includes page layout and text
formatting of the course content in a form suitable for delivery on the
DigitalThink online system; creation of artwork and graphics for the
Course; creation and implementation of interactive Java applets and
learning tools; incorporation and production of audio clips; and,
editing and proofing of all course content.
DigitalThink's product delivery and maintenance responsibilities shall be:
a) Course delivery of each course for the duration defined in the
appropriate Attachment. At the end of the defined duration, Sponsor may
extend the delivery of such course subject to a minimum yearly
maintenance fee defined in the appropriate service level agreement
attachment. This fee provides for ongoing hosting, delivery, technical
support, and help desk services from DigitalThink. This fee does not
provide for the ongoing provision and maintenance of the courseware
which shall be defined in separate product development agreements and
attached to this Agreement.
b) Quarterly maintenance of course content up to a total of 15 development
hours per course per quarter.
c) E-mail based technical support (help desk) for Sponsor's students.
Sponsor's responsibilities shall be:
a) Identify the Content Expert(s) prior to the formal start of the project
and provide this person(s) as a resource for creating course content.
Sponsor's Content Expert(s) shall function as the primary course content
author for the Course and shall be solely responsible for the veracity
and relevance of the Course content.
b) Design the Course syllabus and outline detailing lessons, quizzes,
exercises, projects, diagrams, and interactive elements.
c) Create the Course content. Content must be provided to DigitalThink in
the form of an electronic ASCII text file.
d) Provide Sponsor's logo and web-site graphics either in the form of
electronic files or style guides from which DigitalThink can recreate
sponsor's corporate look and feel.
e) Provide sufficient project management and timely decisions.
f) Provide beta testers to act as "trial students" and provide feedback as
required to DigitalThink.
g) Provide qualified and continuous tutor support for the Course.
DigitalThink makes no representation as to how many work hours will be
required to prepare the Course content, but will make every effort to aid
and direct the Sponsor's content expert(s) during the project. Sponsor's
content expert(s) should be familiar with instructional materials
preparation and be capable of creating a course syllabus and structured
course content in the form of text-based lessons, quizzes, and exercises.
5. WARRANTIES AND INDEMNITIES:
a) Warranties by Sponsor. Sponsor represents and warrants that (i) it has
the right, power and authority to enter into this Agreement and to fully
perform its obligations under this
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Agreement; and (iii) the making of this Agreement by it does not violate
any agreement existing between Sponsor and any other party.
b) Warranties by DigitalThink. DigitalThink represents and warrants that (i)
it has the right, power and authority to enter into this Agreement and to
fully perform its obligations under this Agreement; and (ii) the making of
this Agreement by it does not violate any agreement existing between
DigitalThink and any other party.
c) Indemnification By Sponsor. Sponsor agrees to, and shall, indemnify,
defend and hold harmless DigitalThink and its directors, shareholders,
officers, agents, employees, successors and assigns from and against any
and all claims, demand, suits, and actions by Sponsor's employees,
customer, and/or other business partners performing under this Agreement
at the request of Sponsor, and against all resulting judgments, damages,
costs, losses, expenses and other liabilities arising from, in connection
with or related in any way to, directly or indirectly, (i) any breach or
alleged breach of any of the representations, warranties or agreements
made by Sponsor under this Agreement; or (ii) the negligence or willful
misconduct of Sponsor. DigitalThink shall promptly notify Sponsor of any
such claim. Sponsor shall bear responsibility for the defense (including
any settlement) only up to an amount equivalent to the total monetary
amount of revenues paid to Sponsor by DigitalThink and DigitalThink shall
bear responsibility for any additional like responsibility; provided
however, that (1) Sponsor shall keep DigitalThink informed of, and consult
with DigitalThink in connection with the progress of such litigation or
settlement; and (2) Sponsor shall not have any right, without
DigitalThink's written consent, to settle any such claim if such
settlement arises from or is part of any criminal action, suit or
proceeding or contains a stipulation to or admission or acknowledgment of,
any liability or wrongdoing (whether in contract, tort or otherwise) on
the part of DigitalThink.
d) Indemnification by DigitalThink. DigitalThink agrees to, and shall,
indemnify, defend and hold harmless Sponsor, and its directors,
shareholders, officers, agents, employees, successors and assigns from and
against any and all claims, demands, suits, actions, judgments, damages,
costs, losses, expenses and other liabilities arising from, in connection
with or related in any way to, directly or indirectly, (i) DigitalThink's
use of rights lawfully conferred by the Sponsor to DigitalThink by the
authority of this Agreement; (ii) any breach or alleged breach of any of
the representations, warranties or agreements made by DigitalThink under
this Agreement; or (iii) the negligence or willful misconduct of
DigitalThink. Sponsor shall promptly notify DigitalThink of any such
claim. DigitalThink shall bear full responsibility for the defense
(including any settlements); provided however, that (1) DigitalThink shall
keep Sponsor informed of, and consult with Sponsor in connection with, the
progress of such litigation or settlement; and (2) DigitalThink shall not
have any right, without Sponsor's written consent, to settle any such
claim if such settlement arises from or is part of any criminal action,
suit or proceeding or contains a stipulation to or admission or
acknowledgment of, any liability or wrongdoing (whether in contract, tort
or otherwise) on the part of Sponsor.
e) DigitalThink represents and warrants that the Services do not and will not
violate or infringe any patent, trademark, trade secret, copyright or
similar right. DigitalThink agrees to indemnify and hold Sponsor harmless
from and against (i) any and all suits, claims, losses, damages,
judgments, costs and expenses which Sponsor may sustain for copyright,
trademark, trade secret, patent or other proprietary right infringement
claims, or as a result of the failure of DigitalThink's title to or right
to use the Services, and (ii) any and all costs and
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expenses of any nature whatsoever, incurred by Sponsor in the
investigation of copyright, trademark, trade secret, patent or other
proprietary right infringement claims, in the preparation of a
defense against same, and/or in settlement thereof, provided that
the obligations of DigitalThink under this Section are conditioned
upon its being given (i) prompt notice of each such claim received
in writing by Sponsor and (ii) the right to control and direct the
investigation, defense and settlement of each such claim.
f) DigitalThink represents, warrants and covenants that the Services
shall not contain any computer code (i) intentionally designed to
disrupt, disable, harm, or otherwise impede in any manner including
aesthetic disruptions or distortions, the operation of the
Services, or any other associated software, firmware, hardware,
computer systems or network (sometimes referred to as "viruses" or
"worms"), (ii) that would disable the Services or impair in any
way its operation based on the elapsing of a period of time,
exceeding an authorized number of copies advancement to a
particular date or other numeral (sometimes referred to as "time
bombs", "time locks", or "drop dead" devices) or (iii) that would
permit DigitalThink to access the Services to cause such
disablement or impairment (sometimes referred to as "traps",
"access codes" or "trap door" devices), or any other similar
harmful, malicious or hidden procedures, routines or mechanisms
which would cause such programs to cease functioning or to damage
or corrupt data, storage media, programs, equipment or
communications, or otherwise interfere with operations (collectively
"Destructive Elements").
6. COPYRIGHTS/OWNERSHIP:
a) Sponsor shall own the copyright to the Course Materials derived
from Sponsor's Work. DigitalThink shall include in the Course
distributed hereunder a copyright notice with respect to the Work
(original Course Materials and all subsequent updates to Course
Materials relating to this Agreement) in Sponsor's name in
accordance with the United States Copyright Act and the Universal
Copyright Convention, as amended. (References to copyright in this
Agreement shall include any amendment subsequent to the date hereof
to the United States Copyright Act, the copyright laws of other
countries in the Territory, and international copyright
conventions.)
b) Sponsor shall own the copyright to any text, graphics, or media
supplied to DigitalThink for use in the Course, and may reuse it in
forms other than on-line delivery. DigitalThink may not reuse
content or media provided by Sponsor without advanced written
permission.
c) Any contents of the Course, other than the Course Materials derived
from Sponsor's Work, that DigitalThink furnishes at its own expense
(with Sponsor's approval), or any other art, designs, photographs
or text other than the Course Materials derived from the Sponsor's
Work, may be treated as a separate copyrighted work, if Sponsor
deems it appropriate. Such approval will not to be unreasonably
withheld.
d) DigitalThink shall retain ownership of all proprietary technology
used in the development, delivery, or administration of the Course
Materials, including all text, graphics, and interactive course
elements previously in existence, or created to support the online
functionality of the Course or DigitalThink's delivery system (for
example; instructions on how to use the DigitalThink graphic user
interface move from screen to screen, or take tests).
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e) Nothing herein, nor the exercise of any rights granted Sponsor
hereunder, conveys to Sponsor, except as is set forth above, any
Intellectual Property Rights or any other right, interest or title to
DigitalThink's web-based delivery system and technology. Sponsor
agrees that it shall not at any time assert or claim any interest in,
or do anything that may adversely affect the validity or
enforceability of, any Intellectual Property Right belonging to or
licensed by DigitalThink. Sponsor acknowledges and agrees that
DigitalThink is the creator and author of the delivery technology and
all Intellectual Property Rights and every other right, interest and
title therein, including without limitation the copyrights (and all
renewals and extension thereof) in and to each of the foregoing, are
and shall be the property of DigitalThink.
7. USE OF SPONSOR'S NAME: DigitalThink shall not furnish the name of Sponsor
or any Subsidiary or affiliate thereof in any advertising or promotional
materials without the prior written consent of sponsor or the subsidiary or
affiliate whose name DigitalThink desires to furnish or utilize.
8. COMMUNICATION AND ADMINISTRATION: For and on behalf of DigitalThink and
Sponsor, the persons designated below shall have cognizance of the services
provided pursuant to this Agreement, and liaison and general administration
of the Agreement for DigitalThink and Sponsor shall be through them. All
documents required hereunder shall be sent directly to these individuals:
If to Sponsor: If to DigitalThink:
-------------- -------------------
Adobe Systems Inc. 0000 Xxxxxxx Xxxxxx, Xxxxx 000
000 Xxxx Xxxxxx Xxx Xxxxxxxxx, XX 00000
Xxx Xxxx, XX 00000 Attn: Xxxx Xxxxx
Attn: Xxxx Xxxxxxxxx
9. CONFLICTING AGREEMENT: DigitalThink warrants that it is not a party to any
other existing agreement which would prevent DigitalThink from entering
into this Agreement or which would adversely affect this Agreement.
10. INDEPENDENT CONTRACTOR: It is understood and agreed that DigitalThink shall
be acting as an independent contractor and not as an agent or employee of
Sponsor. Accordingly, DigitalThink assumes all risks and hazards
encountered in its performance Agreement, and further DigitalThink shall be
solely responsible for all injuries, including death, to all persons and
all loss or damage to property which are attributed to DigitalThink
performance under this Agreement or that of any agent, employee or
subcontractor engaged by DigitalThink.
11. TERMINATION: Either party may terminate this Agreement at any time upon
seven (7) working days' written notice prior to completion of last phase,
i.e. "live" launch on the Internet, subject to:
Cause:
1. In the event Sponsor terminates this Agreement due to
DigitalThink's material breach of its obligations stated in the
Agreement after Sponsor has given written notice of such breach
and allowed DigitalThink thirty (30) days to cure, DigitalThink
liability shall be limited to the payment made to such
termination date.
2. In the event DigitalThink terminates this Agreement due to
Sponsor's material breach of its obligation stated in this
Agreement after DigitalThink has given written notice of such
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breach and allowed Sponsor thirty (30) days to cure, Sponsor shall be
liable for the sum total of the agreement amounts per course as
defined in the attached Arrangement Letters.
Without Cause:
1. In the event Sponsor terminates this Agreement without cause, Sponsor
will pay DigitalThink the full agreement amounts per course as
defined in the attached Arrangement Letters.
2. In the event DigitalThink terminates this Agreement without cause,
DigitalThink will refund all funds paid by Sponsor for services
render under this Agreement.
12. MODIFICATION: Sponsor may request DigitalThink to provide additional
services in writing at any time during the duration of this Agreement.
This Agreement and any attachment hereto shall be modified only by an
instrument in writing and signed by duly authorized representatives of the
parties.
13. TAXES: DigitalThink shall be solely responsible for payment of all taxes
which arise in connection with its business activities in performing
services for Sponsor.
14. INSURANCE; DigitalThink shall be solely responsible for all personal
injury and property damage caused by DigitalThink's negligent or improper
actions while performing services for Sponsor, and DigitalThink agrees to
maintain general liability insurance coverage, including automobile
insurance coverage, adequate to cover this potential liability.
15. RELEASE OF INFORMATION: DigitalThink, using utmost care, shall hold in
trust for Sponsor and shall not use or disclose to any other party any
confidential information (as such term is hereinafter defined) which may
be disclosed to DigitalThink by Sponsor in connection with performance
under this Agreement by DigitalThink. As used herein, the term
"confidential information" means information concerning any Sponsor
business strategy, process, or proprietary intellectual property, or any
information which relates to this Agreement or the subject matter of any
Sponsor service order issued to DigitalThink, internal controls, computer
or data processing programs, electronic data processing applications,
routines, subroutines, techniques or Services, or information concerning
the business or financial affairs and methods of operation or proposed
methods of operation, accounts, transactions, proposed transactions or
security procedures of either Sponsor, any affiliate of Sponsor, or any
client, customer or vendor of Sponsor, except such information which is in
the public domain at the time of its disclosure to DigitalThink.
DigitalThink agrees that it shall include and enforce such provisions in
contracts of employment of individuals engaged in performance under this
Agreement as shall be necessary to ensure the non-disclosure of
confidential information by such individuals.
16. FORCE MAJEURE: The failure of DigitalThink to offer the Course or otherwise
perform its obligations under this Agreement shall not be deemed to be a
violation of this Agreement nor give rise to any right of termination or
reversion if such failure arises from a "force majeure." DigitalThink's
time to perform its obligations shall be extended for a period equal to
the period of delay caused by the force majeure. For purposes of this
Agreement, "force majeure" includes, without limitation, acts of God,
fires, national disasters, restrictions of governmental agencies, labor
disputes, or any other circumstances beyond DigitalThink's reasonable
control.
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17. BANKRUPTCY: In the event that DigitalThink (a) files a petition in
bankruptcy, or (b) is adjudicated bankrupt by a court of competent
jurisdiction; or (c) completely liquidates its business, this Agreement
shall terminate automatically, and all rights granted to DigitalThink herein
shall revert to Sponsor.
18. GOVERNING LAW: This Agreement shall in all respects be governed by and
interpreted in accordance with the substantive laws of the State of
California (without regard to choice of law rules). The parties agree that
any dispute arising under this Agreement will be resolved in the state or
federal courts within the City and County of San Francisco, and Sponsor and
DigitalThink expressly consents to jurisdiction therein.
19. ASSIGNMENT: This Agreement shall be binding upon and inure to the benefit
of the heirs, executors, administrators and, subject as follows, assigns of
Sponsor and the successors and, subject as follows, assigns of
DigitalThink. Neither DigitalThink nor Sponsor may assign or transfer this
Agreement without the prior written approval of the other party. The sale
of substantially all of the assets of a party, or its acquisition by or
merger into another company, shall not be deemed an assignment of this
Agreement by that party, nor shall an assignment to a parent company or any
subsidiary or affiliate be deemed such an assignment. Any assignment in
violation of this Section shall be void. DigitalThink agrees not to
sub-license or otherwise confer any rights secured by authority of this
Agreement from the Sponsor, to any nonparty to this Agreement, except where
DigitalThink is acquired by another company as set forth above, without the
express written consent of Sponsor.
20. HEADINGS: The headings in this Agreement are for convenience only and are
without substantive effect.
21. NOTICES: Except as set forth in section 3, all notices, payments, demands
or consents required or permitted by this Agreement shall be in writing.
Notice may be served by hand delivery, by registered or express or
certified mail, return receipt requested, postage prepaid; or by
nationally-recognized private express courier (e.g. DHL, Federal Express,
etc.) or by facsimile to either party at the address first listed above, or
to such other addresses of which either party may so notify the other.
Notices will be deemed given when received.
22. SEVERABILITY: If any restriction, covenant or provision of this Agreement
shall be adjudged by a court of competent jurisdiction to be void as going
beyond what is reasonable in all the circumstances for the protection of
the interest of the party seeking to enforce such restriction, covenant or
provision, such restriction, covenant or provision shall apply with such
modifications as may be necessary to make it valid and effective. In the
event that any provision of this Agreement should be found by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby.
23. ENTIRE UNDERSTANDING: This Agreement, including all Product Development
Arrangements and Service Level Agreements attached hereunder, contains the
entire understanding of Sponsor and DigitalThink and supersedes all prior
and contemporaneous negotiations, understandings and agreements between
them concerning the Work. No waiver or modification of any of the terms
hereof shall be valid unless made in writing and signed by both parties. No
waiver of any breach shall be deemed a waiver of any subsequent breach.
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24. SURVIVABILITY: The terms and conditions of Sections 5, 6, 7, 10, 15 and 18
shall survive the expiration or termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
ADOBE SYSTEMS INC.
By: /s/ XXXX XXXXXXXXX
-----------------------
Its: Sales Training Manager
Date: 3/3/99
DIGITALTHINK, INC.
By: /s/ XXXX XXXXX
-----------------------
Its: Director Customer Services
Date: 3/3/99
