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Exhibit 10.1(a)
INFORMATION DENOTED BY [*] HEREIN HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THIS INFORMATION HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
GENERAL MOTORS CORPORATION
TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT (Transaction Agreement) is made to be
effective as of the 8th day of June, 1998 (Effective Date) by and between
General Motors Corporation, with offices at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 and FreeMarkets OnLine, Inc., with offices at 000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000. General Motors Corporation and
FreeMarkets OnLine, Inc. are referred herein individually as a "Party" and
collectively as the "Parties."
Terms used in this Transaction Agreement with initial capital letters
are defined in Exhibit A of this Transaction Agreement or herein or in the other
Agreements, as more fully set forth in Section 17.3 herein.
BACKGROUND
The Parties have entered into the Framework Agreement governing their
overall relationship regarding the provision to Customer by Supplier of Products
and Services. The Parties have also entered into a Software Licensing Agreement
and a Consulting Services Agreement, the terms of which are incorporated into
and made a part of the Framework Agreement. Customer wishes to be provided with,
and Supplier wishes to provide, access to a global online bidding system to be
used by Customer and associated consulting services including training, CBE
management services, technical operations services, call center services and
OnLine Market Making(TM) consulting services. This Transaction Agreement is
intended to address the specific understanding of the parties related to the
Project. The Parties intend that upon full execution of this Transaction
Agreement, the terms hereof shall be incorporated into and made a part of the
Agreements. The terms of this Transaction Agreement are intended to supplement
the Framework Agreement, the Software Licensing Agreement and the Consulting
Services Agreement by defining and clarifying the Parties' rights and
obligations with respect to the licensing by Supplier of Licensed Software to
Customer and the provision by Supplier to Customer of the Services described
therein.
THE AGREEMENT
1. SCOPE OF PROJECT
1.1 GENERAL. Subject to the terms and conditions of this Transaction
Agreement, Supplier agrees to supply, and Customer agrees to license, access to
Supplier's online bidding system and use of Supplier's BidWare(R) Software, and
purchase associated services to be used by Customer's purchasing department in
[*****] to enable Supplier and Certified Buyers to conduct CBEs
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among selected Qualified Bidders for procurement of goods and services for
Customer. The services to be provided by Supplier shall include training of
Certified Buyers and Qualified Bidders, CBE Management services, Technical
Operations services, Call Center services and OnLine Market Making(TM)
consulting services. All CBEs will be conducted at a time mutually agreeable to
Customer and Supplier.
2. SERVICES
2.1 SERVICES. Beginning on the Effective Date, Supplier will provide
the integrated set of services set forth in this Article 2 to assist Customer in
effectively utilizing the System. These services will provide Buyers with tools
to work with Supplier to conduct CBEs among Qualified Bidders for specific
pieces of business. Fees for the services described in this Article 2 are set
forth in Exhibit D.
2.2 TRAINING OF BUYERS. At times mutually agreed to by Supplier and
Customer, Supplier will provide training to Buyers designated by Customer
relating to Supplier's proprietary procedures for structuring online bids and
operating the BidWare(R) Software. All Buyer training will be held at Customer's
Sites and will be conducted by [*****] Supplier personnel assigned by Supplier.
Each class will last for [*****] hours during normal business hours and shall
have the agenda set forth in Exhibit B. Each class will run up to [*****] a day
during specific periods as mutually agreed to by Customer and Supplier. A
maximum total of [*****] Buyers may attend each training class. Buyers who, as
determined by Supplier, are successfully trained will be certified by Supplier
as being a Certified Buyer. Each Certified Buyer will be given a unique user
identification number and password for the use of the BidWare(R) Software and
access to the System. The Parties agree that only Certified Buyers will be
permitted to use the BidWare(R) Software and access the System. The
certification by Supplier of a Buyer in no way shall be interpreted as a
guarantee that the Certified Buyer is able to operate and understand the CBE
process without error. Supplier shall have no liability for any act or omission
of a Buyer.
2.3 SUPPORT IN VIEWING CBES. Subject to the terms of the license grant
set forth herein, Supplier will provide copies of BidWare(R) Software for
installation on Customer's personal computers for Certified Buyers in North
America, as requested in writing by Customer, at the price set forth in Exhibit
D. Neither Supplier nor Customer will integrate the BidWare(R) Software with
existing Customer computer systems or any other computer system, nor will the
BidWare(R) Software be used on any Customer networks or any other networks under
this Transaction Agreement, except for the network designated by Supplier.
Certified Buyers will be invited to use this software to view the market
activity of the CBEs as well as print out market results and audit reports. Each
Site which is provided with the BidWare(R) Software shall be outfitted by
Customer as set forth in Section 3.2. Customer shall have the option to purchase
a BidWare(R) PC (including CPU, monitor, modem and printer) through Supplier for
each copy of BidWare(R) Software supplied to Customer as set forth on Exhibit D
of this Transaction Agreement, or to purchase its own personal computers to run
the BidWare(R) Software.
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2.4 SERVICES FOR CBES. Upon the request of a Certified Buyer to use the
System to set up a CBE and Supplier's consent to the same, Supplier will provide
the following services related to such CBE:
(A) ASSISTANCE IN STRUCTURING EVENTS. Supplier will provide
CBE Management Services to Certified Buyers to assist the Certified Buyer in
structuring the CBE. "Structuring" shall include lot setting, establishing
bidding parameters and other factors relevant to the CBE. Additionally, if
requested by Customer, Supplier will provide OnLine Market Making(TM) Consulting
to Certified Buyers at a time which is mutually agreeable to the Parties. The
CBE Management Services and the OnLine Market Making(TM) consulting services
outlined in this Section 2.4 will be billed on a variable basis and are not
included in the fixed cost of this Transaction Agreement. A description of the
OnLine Market Making(TM) consulting services and associated costs is attached
hereto as Exhibit D.
(B) INTERACTION WITH BIDDERS. Supplier will contact each
Bidder properly identified by Customer which Customer desires to participate in
a particular CBE. Supplier shall attempt to identify the appropriate Bidder
contact, and explain the bidding process to such person. Supplier will provide
the relevant Certified Buyer with reasonable feedback on the status of each
Bidder.
(C) DISTRIBUTION OF SOFTWARE TO QUALIFIED BIDDERS. Upon
written notification of the CBE, the names of the Bidders and agreement on the
time line for the CBE, as set forth in Section 3.1, Supplier will attempt to
have Bidder execute the Bidder Agreement and to license Supplier's BidWare(R)
Software to the Bidders. All licenses for the BidWare(R) Software to Bidders
shall be pursuant to the terms and conditions of Supplier's then standard
license provided with each copy of the BidWare(R) Software supplied to Bidders.
A copy of Supplier's current license is attached hereto as Exhibit G. A Bidder
shall be considered a Qualified Bidder upon execution of the Bidder Agreement
and acceptance of the terms of the license agreement. In the event that a Bidder
does not agree to the terms of the Bidder Agreement and/or the terms of the
license agreement, the Bidder shall not be permitted to participate in the CBE.
Upon Bidder's execution of the Bidder Agreement, Supplier shall ship the
BidWare(R) Software and the BidWare Manual to the Bidder, and issue the Bidder a
unique user identification number and password to be used for the CBE, subject
to Bidder's acceptance of the license agreement. Customer shall pay the license
fee for each copy of the BidWare(R) Software licensed to Bidders. Bidders shall
be responsible for providing their own personal computers to run the BidWare(R)
Software and for the installation of such software onto such personal computers.
Bidders shall also be responsible for the connection of such personal computers
to the telecommunication service used for the CBE.
(D) TRAINING OF QUALIFIED BIDDERS. Supplier shall use
commercially reasonable efforts to identify the correct contact for each
Qualified Bidder to be trained in the use of the BidWare(R) Software. Customer
agrees to provide reasonable assistance in identifying such person if requested
by Supplier. Supplier will train that contact over the phone using real time
"mock" bidding sessions to ensure that the Qualified Bidder is reasonably
comfortable with the BidWare(R) Software and the System. Supplier does not
guarantee that the Qualified Bidder personnel will be
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properly trained and reserves the right to request that a different person be
provided by the Qualified Bidder.
(E) CONDUCT OF THE CBE. The Supplier will load all relevant
CBE and technical parameters provided by Customer into the System. During the
term of this Transaction Agreement, Supplier will staff an operations center
located at Supplier's facility in Pittsburgh to handle all CBE related
activities as follows:
(a) Maintain a call center for Qualified Bidders to call with
questions before the CBE or with technical problems during the CBE;
(b) Conduct procedures for ensuring that Qualified Bidders are
prepared and present on bid-day;
(c) Respond in a timely fashion to Qualified Bidder issues
with software or connectivity;
(d) Respond to Qualified Bidder problems that might prevent
bidding with a secure "surrogate bidding" system;
(e) Close bidding only after a reasonable determination that
no Qualified Bidders experienced difficulties material to the bidding process;
(f) Communicate any changes or adjustments to all Qualified
Bidders;
(g) Provide reasonable assistance to facilitate resolution of
any issues between Certified Buyers and Qualified Bidders;
(h) Establish and maintain a secure virtual private network;
(i) Authenticate the identities of all Qualified Bidders and
Certified Buyers involved in each CBE; and
(j) Ensure that only authorized Qualified Bidders and
Certified Buyers have access to appropriate CBE information.
3. CUSTOMER RESPONSIBILITY
3.1 GENERAL. At least [*****] days prior to a CBE, a Certified Buyer
shall inform Supplier of its desire to hold a CBE. Supplier and the Certified
Buyers shall agree on mutually acceptable time and date for the CBE and a time
line for conducting the CBE. The Certified Buyer shall provide Supplier, in
writing, all of the necessary information regarding the parts, materials or
services to be bid on in the CBE and identify the Bidders who will be invited to
participate in the CBE. The Certified Buyer shall also provide the applicable
completed RFQ to each Bidder and Supplier. The Certified Buyer will coordinate
with the Supplier CBE Management Staff to structure
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the online bid. Customer and all Certified Buyers who use Supplier must agree to
abide by the Rules and Procedures set forth in the Bidder Agreement. Supplier
and/or Supplier senior staff have the right to de-certify any Certified Buyer
who fails to abide by these rules.
3.2 SITE RESOURCES. Customer will designate a room at each major
location (i.e., [*****]) as the Supplier Room. This room will contain an
external analog phone line and a separate external phone line for normal
telephone usage. In addition, Customer will be responsible for providing all
audiovisual equipment for projecting electronic bids for a larger audience if
Customer desires (i.e., computer projector). During a CBE and in preparation
thereof, Customer shall ensure that appropriate facilities and personnel are
available to facilitate Certified Buyers' use of the System.
3.3 PERSONNEL. Customer will designate a prime contact responsible for
all Supplier matters. This contact will have the authority to ensure that all
Customer commitments are met and will commit significant time to understanding
the Supplier process and system. Customer will also designate a "Buyer Feedback"
sponsor who will periodically attend Buyer training sessions, gather feedback on
these sessions, and assist the Supplier team in improving the training.
4. LICENSES
4.1 LICENSE. In consideration of the fees paid pursuant to this
Transaction Agreement, Supplier hereby grants, and Customer hereby accepts, a
non-exclusive, non-transferable: (i) limited license to have Certified Buyers in
[*****] access the System solely to conduct CBEs as set forth in this
Transaction Agreement, and (ii) limited license to have Certified Buyers in
[*****] use the BidWare(R) Software to work with Supplier to conduct CBEs as set
forth in this Transaction Agreement. Customer is not granted any right or access
to the Source Code and shall not, attempt to decompile, disassemble, reverse
engineer or use any other process to gain access to the Source Code.
4.2 SYSTEM. The functionality provided to Customer by the System is
described in the Documentation provided by Supplier to Customer for the System
and the BidWare(R) Software. In addition, [*****] of the [*****] will [*****] as
set forth in Exhibit E.
4.3 AUTHORIZED USERS. Except for Certified Buyers, no other employees,
consultants, agents or other individuals of Customer or any other individuals or
entities are permitted to use the BidWare(R) Software or access the System.
4.4 NUMBER OF USERS. Customer may only use and/or install the
BidWare(R) Software on one personal computer per copy of BidWare(R) Software
distributed by Supplier under this Transaction Agreement. Customer may, however,
make one copy of the BidWare(R) Software for back-up purposes. As the System
will be resident at Supplier's facility in Pittsburgh, Pennsylvania and
maintained and operated by Supplier, Customer may not make any copies of the
System, in whole or in part, for any purpose. During the term of this
Transaction Agreement, Customer agrees that it shall only use the BidWare(R)
Software in accordance with Supplier's specifications and instructions.
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5. DELIVERY AND INSTALLATION
5.1 BIDWARE(R) PCS. If Customer purchases BidWare(R) PCs from Supplier,
Supplier shall pre-load each BidWare(R) PC ordered from Supplier with one copy
of the BidWare(R) Software. Supplier will pre-test and ship each pre-loaded
BidWare(R) PC to Customer complete with modem, monitor and printer. If requested
by Customer in writing, Supplier will install the BidWare(R) PCs at Customer's
Site. Installation will be provided by Supplier's CBE Management personnel. In
the event that Customer installs the BidWare(R) PCs itself, Supplier will
provide telephone support by Technical Operations personnel. Customer shall be
deemed to have accepted a BidWare(R) PC if Customer does not report a failure of
such BidWare(R) PC during any thirty day period after its delivery. For purposes
of this Section 5.1, a "failure" means a failure caused solely by the BidWare(R)
PC which results in System unavailability.
5.2 BIDWARE(R) SOFTWARE TO QUALIFIED BUYERs. In the event that Customer
supplies its own personal computers to run the BidWare(R) Software, Customer
shall be responsible for the installation of such software onto such personal
computers. Supplier shall provide telephone support to assist Customer with the
installation of the BidWare(R) Software. All personal computers provided by
Customer to run the BidWare(R) Software must, at a minimum, conform to the
specifications set forth on Exhibit H of this Transaction Agreement. All
personal computers used during a CBE shall be located in a Supplier Room.
Customer shall also be responsible for the connection of such personal computers
to the telecommunication service used for the CBE.
5.3 BIDWARE(R) SOFTWARE TO BIDDERs. Supplier shall ship one copy of the
BidWare(R) Software to each Qualified Bidder for which Customer purchases a
BidWare(R) Software license pursuant to this Transaction Agreement. Each
Qualified Bidder shall be responsible for supplying their own personal computer
on which to load the BidWare(R) Software. Qualified Bidders shall be responsible
for loading the BidWare(R) Software on such personal computers. Supplier will
provide telephone support by Technical Operations personnel to assist Qualified
Bidders with the installation of the BidWare(R) Software.
6. FEES AND COSTS
6.1 FEES. In consideration of the Services and the licenses provided
pursuant to this Transaction Agreement, Customer agrees to pay [*****] as well
as certain [*****], depending on need, as set forth in Exhibit D. Invoices for
the fees of whatever nature, including without limitation, [*****] and/or
out-of-pocket expenses incurred during a month will be invoiced at the end of
such month. The first invoice will be sent by Supplier to Customer by the last
day of the first month after the Effective Date of this Transaction Agreement.
Monthly charges that have been in effect for less than a full calendar month
shall be prorated on the basis of a thirty (30) day month.
6.2 CURRENCY. All fees and costs set forth in this Transaction
Agreement are stated in, and shall be paid in, the currency of the United
States.
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7. MODIFICATIONS
7.1 GENERAL. During the term of this Transaction Agreement, from time
to time, Supplier will modify the BidWare(R) Software and System, including
without limitation, correcting errors in the BidWare(R) Software or System. Such
error corrections or modifications may result in the creation of a new
version(s) of the BidWare(R) Software or System, under the same or one or more
different names (collectively, the Supplier Modifications). Supplier
Modifications shall in all cases be considered new versions of existing
BidWare(R) Software and/or System and not new Products. All rights to the
Supplier Modifications shall belong to Supplier. Exhibit E to this Transaction
Agreement contains a list of modifications currently scheduled by Supplier.
7.2 AVAILABILITY. During the term of this Transaction Agreement,
Supplier shall [*****] supply Customer, and Customer shall accept, Supplier's
then current [*****] over [*****] not later than [*****].
7.3 WARRANTY. Supplier Modifications to the BidWare(R) Software shall
be considered BidWare(R) Software for purposes of this Transaction Agreement;
provided, however, that all warranty provisions herein shall apply to each
Supplier Modification from the time such modifications are first delivered to
Customer. Supplier shall promptly deliver any Documentation, if any, relating to
the Supplier Modifications.
8. TERM AND TERMINATION
8.1 TERM. This Transaction Agreement and the Agreements shall continue
in force for an initial term of twelve (12) months from the Effective Date, and
shall be automatically renewed for one twelve (12) month term thereafter, and,
if still in effect, shall again automatically renew thereafter for a term that
begins on June 8, 2000 and ends on December 31, 2000. The foregoing automatic
renewals shall occur unless Customer provides written notice of its intent not
to renew this Transaction Agreement at least [*****] days prior to the renewal
date. In the event that the term automatically renews from June 8, 2000 until
December 31, 2000, as set forth above, the [****] fee set forth on Exhibit D
shall be prorated accordingly. This Transaction Agreement and the Agreements may
be extended for additional terms past December 31, 2000 if agreed to in writing
by both Parties, upon terms and conditions mutually agreed to in writing by the
Parties. [*****].
8.2 TERMINATION. This Transaction Agreement and the Agreements may only
be terminated or canceled prior to the expiration of the term upon the terms and
conditions set forth in Sections 19.1(E), 19.3, 19.4 (except for a change in
stock ownership of less than fifty percent (50%) or pursuant to an initial
public offering under the Securities Act of 1933, as amended), 19.5 or 19.6 of
the Framework Agreement.
8.3 EFFECT OF TERMINATION. Upon the termination or expiration of this
Transaction Agreement, whether under this Article 8 or otherwise, Customer will
discontinue use of the BidWare(R) Software and access to the System, and both
parties shall return or destroy the other Party's Confidential Information as
set forth in Sections 12.9 and 12.10 of the Framework Agreement, as modified by
Sections 11.1, 11.2 and 17.3 of this Transaction Agreement.
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9. OWNERSHIP
9.1 SUPPLIER INTELLECTUAL PROPERTY. Customer shall have no rights or
interests in Supplier Intellectual Property except as described in this
Transaction Agreement. All right, title and interest in and to Supplier
Intellectual Property shall be and shall remain the sole property of the
Supplier or its third party subcontractors/licensors. Supplier hereby grants to
Customer a non-exclusive, non-transferable, royalty-free license to use the
Supplier Intellectual Property as required to effectuate the purposes of this
Transaction Agreement. Customer is not granted any other right to Supplier
Intellectual Property and shall not copy, modify, create derivative works,
sublicense, transfer, sell or otherwise use or dispose of the Supplier
Intellectual Property. Notwithstanding the above, Customer may make copies of
training materials provided by Supplier solely for the internal use of Customer.
9.2 DERIVATIVE WORKS. With respect to any Derivative Works developed
under the Agreements or in the provision of the Products or Services, the
allocation of rights in such works will be as follows:
(A) All Intellectual Property rights in a Derivative Work
developed by Customer for which the preexisting work is Customer Intellectual
Property, shall be owned by Customer and shall be deemed to be Customer
Intellectual Property.
(B) All Intellectual Property rights in a Derivative Work
developed by Supplier, by Supplier in conjunction with Customer when the
preexisting work is Supplier Intellectual Property shall be owned by Supplier
and shall be deemed to be Supplier Intellectual Property.
9.3 WORK PRODUCT. All Work Product shall be owned by Supplier. Customer
shall retain no rights in any Work Product.
10. SUPPLIERS WARRANTIES
10.1 WARRANTIES. Set forth below are certain exceptions to the
covenants, representations and warranties (collectively "Warranties") set forth
in the Framework Agreement and applicable Category Agreements.
A. All Warranties shall terminate upon the termination of the
Transaction Agreement.
B. No Warranties are made with respect to Third Party
Equipment, Software and Services.
C. Section 10.11 of the Framework Agreement is modified by
deleting "necessary conversions."
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D. Section 12.15 of the Software Licensing Agreement is
modified by deleting: "within the same time periods and under the terms
set forth in Article 11 of this Software Licensing Agreement."
E. Section 10.5 of the Framework Agreement and Section 12.16
of the Software Licensing Agreement are modified by making the illicit
code/virus warranties only apply to the presence of illicit
code/viruses on the BidWare(R) Software at the time of delivery by
Supplier.
10.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES MADE
IN THE AGREEMENTS, AS MODIFIED BY THIS TRANSACTION AGREEMENT, NEITHER PARTY
MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF
THIS TRANSACTION AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.3 REMEDY. If during the term of this Transaction Agreement, the
BidWare(R) Software fails to meet the Warranties, Supplier shall promptly repair
or replace the non-conforming BidWare(R) Software at no cost to Customer.
Supplier will not provide the foregoing warranty service if the nonconformity is
caused by malfunctions of hardware, non-Supplier software, modification of the
BidWare(R) Software not made by Supplier, by operator error, or by use of the
BidWare(R) Software that is not in accordance with the operating instructions
for the BidWare(R) Software.
11. CONFIDENTIALITY
11.1 CONFIDENTIAL INFORMATION OF SUPPLIER. Section 12.2 of the
Framework Agreement shall apply to this Transaction Agreement. However, Customer
agrees that: (i) the BidWare(R) Software, (ii) all training materials and
Documentation which are marked as "Confidential" and provided by Supplier to
Customer, and (iii) all pricing, cost information, business affairs information
and other information related to Supplier's business learned during [*****];
shall be considered Supplier Confidential Information without the approval of
the Customer Project Manager and that Supplier will not generate a written
report describing such material.
11.2 USE AND RETURN OF SUPPLIER CONFIDENTIAL INFORMATION. Section 12.10
of the Framework Agreement shall apply to this Transaction Agreement. However,
Section 12.10 is modified by deleting: ", to the extent Customer no longer needs
the Supplier Confidential Information to exercise its rights under the
Agreements" from Section 12.10(i), and deleting all of Section 12.10(iii) and
the sentence which follows 12.10(iii).
11.3 AGREEMENT. Both parties shall have the right to disclose the
existence of this Transaction Agreement but not the terms of this Agreement
unless such disclosure is approved in writing by both parties prior to such
disclosure or such terms are required to be disclosed by governmental
authorities.
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12. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR
PUNITIVE LOSSES, DAMAGES OR EXPENSES (INCLUDING LOSS OF PROFITS, SAVINGS,
PENALTIES, FINES, LATE-PAYMENT CHARGES, INTEREST, COMPETITIVE ADVANTAGE,
GOODWILL, BUSINESS ADVANTAGE, GOODWILL, BUSINESS INTERRUPTION OR INDEMNITY
HEREUNDER), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBLE EXISTENCE THEREOF.
EITHER PARTY'S LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF THIS TRANSACTION
AGREEMENT AND THE AGREEMENTS, INCLUDING WITHOUT LIMITATION ANY AMOUNTS DUE
PURSUANT TO ARTICLE 15 OF THE FRAMEWORK AGREEMENT, SHALL BE LIMITED TO $[*].
NOTWITHSTANDING THE LIMITATION OF LIABILITY SET FORTH IN THE PRECEDING SENTENCE,
SUPPLIER'S LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF SECTIONS 15.2(A),
AND 15.2(B) OF THE FRAMEWORK AGREEMENT (INFRINGEMENT), AND CUSTOMER'S LIABILITY
FOR DAMAGES OF ANY KIND ARISING OUT OF SECTIONS 15.1(A) AND 15.1(B) OF THE
FRAMEWORK AGREEMENT (INFRINGEMENT), SHALL BE LIMITED TO $[*]. THE FOREGOING
LIMITATIONS ON LIABILITY SHALL NOT APPLY TO FEES WHICH ARE OUTSTANDING UNDER
THIS TRANSACTION AGREEMENT.
13. CONTRACT ADMINISTRATION
13.1 DESIGNATION OF CONTRACT AND PROJECT MANAGERS. For purposes of
Article 3 of the Framework Agreement, a Party may assign the same individual to
be the Corporate Contract Manager and Project Manager. The Corporate Contract
Manager/Project Manager for the Parties shall be as follows:
Corporate Contract Manager:
Customer: Xxxxx Xxxxxx
Supplier: Xxxx Xxxxxx
Project Manager:
Customer: Xxxxx Xxxxxxxx
Supplier: Xxxxxx Xxxxxxx
A Party may change its Corporate Contract Manager and/or Project
Manager at any time in their sole discretion and shall provide notice of such
change to the other Party within ten (10) business days of such change.
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14. PERSONNEL
14.1 GENERAL. Each party shall choose personnel in their sole
discretion to perform their respective services and obligations under this
Transaction Agreement. In the event that a Party is not satisfied with the
performance, actions or inactions of an employee of the other Party, the Party
shall inform the other Party of such dissatisfaction. The other Party shall then
take commercially reasonable action to investigate the performance, inaction or
action of such employee and shall take appropriate measures, if any, as
determined by such other Party.
14.2 [*****]. Supplier agrees that in the event that Customer [*****]
that includes [*****] required for Customer's performance under this Transaction
Agreement, such [*****] may [*****] provided that: (i) all [*****] by the
[*****] shall be provided by [*****], (ii) the [*****] has [*****], and (iii)
the [*****] is not a competitor of Supplier in [*****].
15. SUPPLIER SERVICES
Supplier agrees that for a period lasting from the Effective Date to
the earlier of: (i) June 30, 2000, or (ii) the date this Transaction Agreement
terminates; as long as Customer is not in default under the terms of this
Transaction Agreement, Supplier shall not provide the services provided to
Customer hereunder to the automobile operations of the following
manufacturers:[*****].
16. INSURANCE
16.1 LIMITS. The minimum limits of liability of insurance which
Supplier must maintain, as set forth in Section 17.1 of the Framework Agreement,
are modified as follows:
(i) The limits of liability for the insurance set forth in
Section 17.1(B) (General Commercial) shall be [*****] per
occurrence.
(ii) The limits of liability for the insurance set forth in
Section 17.1(C) (Automobile) shall be [*****] per occurrence.
(iii) The limit for the insurance set forth in Section 17.1(D)
(Errors and Omissions) shall be [*****] per occurrence.
16.2 LOSS PAYEES. Supplier is not required to name any other entity,
including without limitation, Customer, as a loss payee under any of Supplier's
insurance policies.
17. GENERAL
17.1 [*****] USE. As set forth in Exhibit F, Supplier and Customer may
agree to begin a pilot [*****] program upon the execution by both Parties of a
separate mutually agreeable Transaction Agreement relating to such project.
17.2 FORCE MAJEURE. The Force Majeure provision set forth in Section
25.3 of the Framework Agreement shall apply to this Transaction Agreement,
provided that the second and third sentences of such section shall not apply to
this Transaction Agreement.
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17.3 ORDER OF PRECEDENCE. This Transaction Agreement incorporates the
terms of the Framework Agreement, the Software Licensing Agreement and the
Consulting Agreement. The Parties agree that any inconsistency, ambiguity or
conflict between or among the terms and conditions of this Transaction Agreement
and the Agreements be resolved according to the order of precedence set forth in
Section 1.3 of the Framework Agreement. In furtherance of, and not in limitation
to the generality of the preceding, the following provisions shall not apply to
this Transaction Agreement:
(A) Framework Agreement: Sections 1.2, 1.4, 1.5, 1.6, 1.7, 2.6, 4.1,
4.2, 4.3, 5.2, 5.6(C), 5.8(A)(3), 8.1(A), 8.3, 9.4, 9.8, 10.7 and 10.13, Article
11, Sections 12.13, 12.17, 13.2, 13.3(B) (iii), 13.3(C), 13.4, 13.5, 13.6, 13.7
and 13.9, Article 14, Sections 15.7, 19.1(A) - (D), 19.7, 19.9, 20.3, and
22.6(A) (source code), Article 23, and Section 25.17.
(B) Software Licensing Agreement: Sections 3.3, 3.4, 3.5, 4.1, 4.3,
5.1, that portion of Section 6.1(A) which states ", from which Customer may make
copies for its use consistent with all limitations of this Software Licensing
Agreement and the applicable Transaction Agreement," Sections 6.2, 7.3, Articles
8 and 9, Sections 10.1(B) (CD-ROMs), 12.4, 12.9, 12.10 and 12.14, and Articles
11, 13 and 14.
(C) Consulting Services Agreement: Section 3.4.
In addition, the Parties agree that any inconsistency, ambiguity or
conflict between the definitions attached to this Transaction Agreement in
Exhibit A and any other definitions contained in the Agreements or elsewhere
will be resolved in favor of the definitions attached to this Transaction
Agreement in Exhibit A.
17.4 ASSIGNMENT. Neither party may assign any of its rights or
obligations hereunder or the Agreements without the prior written consent of the
other party, which consent shall be in the other Party's sole discretion.
17.5 [*****]. Subsections 5.6(A) and (B) of the Framework Agreement
shall apply to this Transaction Agreement. Notwithstanding anything to the
contrary in the foregoing: (i) Customer shall conduct, or have conducted on its
behalf, no more than [*****] per year period after the initial one-year period,
(ii) Supplier shall only be required to provide such information in such [*****]
which is reasonably required by Customer, and (iii) the [*****] shall execute a
non-disclosure agreement substantially in the form set forth in Exhibit I prior
to its conduct of such assessment. Changes to the non-disclosure agreement may
only be made with the written consent of Supplier.
17.6 ENTIRE AGREEMENT. Section 25.14 of the Framework Agreement shall
apply to this Transaction Agreement. Additionally, the Parties agree that
Section 14(c) of the purchase order TCS26983, dated October 31, 1997, and
Section 4 of Attachment 1 thereto, shall be superseded in their entirety by
Sections 4 and 9 of this Transaction Agreement, and that Section 12 of this
Transaction Agreement shall apply to such purchase order, except that the
references therein to Sections 15.2 (A) and (B) of the Framework Agreement shall
be deemed to refer to Sections 14(a) and (b) of such purchase order. The Parties
also agree that such purchase order shall not apply to
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any goods or services provided under this Transaction Agreement or any future
Transaction Agreement between the Parties.
17.7 PUBLICITY. Section 25.15 of the Framework Agreement shall apply to
this Transaction Agreement. Notwithstanding anything to the contrary in the
foregoing, Supplier may use Customer's name as part of a general customer list
used by Supplier in promotional material and business presentations.
17.8 GOVERNING LAW; VENUE; SERVICE OF PROCESS. This Transaction
Agreement and the Agreements are to be construed according to the laws of
Michigan, without giving effect to the principals of conflicts of laws. Any
action or proceedings by Customer against Supplier shall be brought in the
federal or state courts located in Pittsburgh, Pennsylvania, and any action
brought by Supplier against Customer shall be brought in federal or state courts
in Detroit, Michigan.
IN WITNESS WHEREOF, this Transaction Agreement has been executed by the
Parties as of the Effective Date.
SUPPLIER CUSTOMER
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx
Title: Chief Executive Officer Title: Commodity Manager
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