EXHIBIT 10.12
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
COREPORT-TM- LICENSE AGREEMENT
[LOGO]
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
000-000-0000
000-000-0000 (fax)
|X| CLIENT
INFORMATION: ABN AMRO INFORMATION TECHNOLOGY SERVICES CO.
-------------------------------------------- ---------------------------------
Client Name Billing Organization
000 Xxxx Xxxxxx Xxxxx
-------------------------------------------- ---------------------------------
Installation Address Xxxxxxx Xxxxxxx
Xxxxxxx XX 00000
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City, State, Zip City, State, Zip
Xxxxx Xxxxxxx 000 000 0000
-------------------------------------------- ---------------------------------
Contact Name and Telephone Attention
|X| LICENSED PRODUCT: COREPORT 3.0 (COREPORT 3.0 BROWSER CLIENT, COREPORT 3.0
SERVER ENGINE, CORETOOLS API, CORELINKS STANDARD
INTERFACES, AND AUTONOMY KNOWLEDGE MANAGEMENT, INCLUDING
QUERY/INDEX, USER AGENT, IMPORT, AUTO-SUGGEST AND
CATEGORIZER)
|X| LICENSE FEE: [**]
|X| CREDIT FOR QUICKSTART LICENSE: [**]
|X| NUMBER OF AUTHORIZED USERS: 17,000 USERS
|X| SUPPORT FEE: [**] FOR FIRST YEAR
|X| SUPPORT SCHEDULE (ATTACHED)
This License Agreement (the "Agreement") constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether oral or written. If this Agreement conflicts with the terms of a Client
purchase order or any other writing, the terms of this Agreement shall govern.
By signing below, each party accepts and agrees to be bound by the terms of this
Agreement. It is understood that each party may consider any fully signed
reproduction of this Agreement to be a binding original, if the reproduction is
made by reliable commercial means (e.g. photocopy, facsimile, e-mail). The
Agreement shall not be binding upon Corechange until reviewed and signed by
either its President or Vice President of Finance and Administration. The
"Effective Date" shall be the last date indicated below.
Corechange, Inc. ABN AMRO Information Technology Services Co.
/s/ Xxx Xxxxxx /s/ Xxxxx X. Xxxxxxxxx
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Xxx Xxxxxx, President/CEO Xxxxx X. Xxxxxxxxx
------------------------------- --------------------------------------------
Date: 5/11/2000 Date: 5/11/2000
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COREPORT-TM- LICENSE AGREEMENT
TERMS AND CONDITIONS
1.0 LICENSE
1.1 GRANT.
Corechange grants Client, a nonexclusive, nontransferable LICENSE to use the
Licensed Product identified on the Cover Page and known as Coreport (in object
code format only) and associated documentation (collectively, the "Licensed
Materials") in accordance with the terms and conditions of this Agreement. The
Licensed Materials are not being sold; rather all rights, title, and interest in
and to the Licensed Materials is retained by Corechange.
1.2 AUTHORIZED ACTIVITIES.
Client may: (a) install the software programs only on computer systems and in
locations within the United States and Canada; (b) use the Licensed Materials
exclusively for Client's own internal business use and benefit, for users in the
United States and Canada; and (c) make no more than one copy of the Licensed
Materials, and only for archival and back up purposes, provided that Client
properly reproduces copyright and other legal notices and restrictive legends of
ownership on each copy or partial copy. Client agrees to maintain records of
all copies.
1.3 PROHIBITED ACTIVITIES.
Client may not: (a) reverse assemble, reverse compile, disassemble or otherwise
attempt to access the source code of the software programs without the prior
written approval of Corechange (except in the European Economic Area or other
jurisdiction in which access is required for interoperability purposes, in which
case Client will promptly notify Corechange, and Corechange may, in its
discretion, perform such work at its consulting rate, or allow Client to access
the source code but only for the limited, required purpose); or (b) make the
Licensed Materials available to third party users, or sell, assign, sublicense,
rent, lease, lend or otherwise dispose of the Licensed Materials or transfer
this license to any other person, system or entity, except that Client may
assign its rights without consent of Corechange to a parent or wholly owned
subsidiary by providing prior written notice to Corechange.
2.0 SCOPE OF USE AND USE VERIFICATION
The Cover Page of this Agreement specifies the Licensed Materials that are being
licensed and defines the maximum number of users permitted under this Agreement.
Client may, at any time, increase the defined usage by providing Corechange with
prior written notice of the change. Additional license charges shall be subject
to mutual agreement by the parties, and adjustments shall be made to the fees
for Corechange Support as a result of an increase in the number of authorized
users. Corechange may reasonably request, at any time, configuration
documentation to verify the actual usage of the Licensed Materials. Corechange
may request from Client, but no more than twice annually, and Client agrees to
provide Corechange, a signed statement verifying the number of user accounts
administered by the Licensed Materials.
3.0 PROPRIETARY INFORMATION
Both Corechange and Client may make available to the other confidential and
proprietary materials and information ("Proprietary Information"). All material
and information provided by one party to the other relating to its business,
policies, procedures, customs, forms, customers and strategies, and identified
in writing as "confidential" or "proprietary", shall be considered to be
Proprietary Information. The pricing terms of this Agreement and the Licensed
Materials shall be deemed Proprietary Information of Corechange, whether or not
identified in writing as such. Proprietary Information does not include
information that: (i) is already, or otherwise becomes, generally known by third
parties as a result of no act or omission of the receiving party; (ii)
subsequent to disclosure hereunder is lawfully received from a third party
having the right to disseminate the information without restriction on
disclosure; (iii) is generally furnished to others by the disclosing party
without restriction on disclosure; (iv) was already known by the receiving party
prior to receiving them from the disclosing party and were not received from a
third party in breach of that third party's obligations of confidentiality; or
(v) is independently developed by the receiving party without the use of
Proprietary Information of the disclosing party. Each party shall maintain the
confidentiality of the other party's Proprietary Information and will not use or
disclose such Proprietary Information without the written consent of the other
party. Notwithstanding the foregoing, a party may disclose the Proprietary
Information of the other to its agents and other third parties on a need-to-know
basis, provided that such parties are under a similar obligation to maintain the
confidentiality of the Proprietary Information. Further, the parties may
disclose the other's Proprietary Information in a judicial or quasi-judicial
proceeding when required to do so by law when responding to a subpoena,
deposition notice or similar judicial or governmental demand; in such
situations, however, the party being requested to disclose the other's
Proprietary Information shall endeavor to provide notice to the other party
whereby the other party may intervene in the proceeding, if it wishes, and
endeavor to prevent such disclosure. Additionally, the parties may disclose the
other's Proprietary Information to their various regulatory agencies if
required, provided they take reasonable steps to limit further disclosure.
Notwithstanding any contrary provision of this Agreement, as long as each party
protects the Proprietary Information of the other, neither the exposure to the
other party's Proprietary Information, nor its ownership of work products, shall
prevent either party from using ideas, concepts, expressions, know-how, skills
and experience possessed by either party prior to its association with the other
party or developed by either party during its association with the other party,
so long as the Proprietary Information of the other party is not used. In case
of breach, the disclosing party shall have the right to seek injunctive relief.
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4.0 LIMITED WARRANTY
4.1 SCOPE OF WARRANTY. Corechange warrants that it has the right to grant this
license authorizing the use of the Licensed Materials. Corechange warrants that
during the first one hundred twenty (120) days following delivery of the
Licensed Materials ("Warranty Period"), the Licensed Product will substantially
conform to the documentation provided with the Licensed Product, will not
include any virus, and will be free of intentionally disabling code (other than
standard security measures). Client's exclusive remedy for a breach of this
warranty shall be that Corechange will, at no additional charge, correct or
replace any material part of the Licensed Product that is or becomes defective,
provided that Corechange receives written notice of the defect during the
Warranty Period. If Corechange is unable to correct or replace the Licensed
Product, Corechange can terminate the Agreement, and return any license fees
paid for the Licensed Materials, with no additional liability by Corechange to
Client. After the Warranty Period, correction will only be available through
continued enrollment in Corechange Support as set out in Section 5. Corechange
specifically waives responsibility for any third party product or service that
may be used by Client in conjunction with the Licensed Materials.
4.2 ACKNOWLEDGMENTS. Unless otherwise agreed by Corechange and Client, Client
acknowledges that it shall be solely responsible for (i) providing the proper
operating environment for the Licensed Materials; (ii) installing the Licensed
Materials; (iii) training end users; (iv) establishing proper back-up
procedures; (v) portal layout and look-and-feeling planning; and (vi) user,
role, content (internal and external) definition and gathering.
4.3 EXCEPTIONS. The obligations of Corechange under Section 4.1 shall not apply
to the extent Client: (i) modified the Licensed Materials, (ii) did not follow
the instructions that Corechange provided, (iii) used the Licensed Materials in
an unauthorized manner in combination with other non-Corechange products and the
claims resulted from that combination, or (iv) is not currently enrolled in
Corechange Support.
4.4 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 4.1, CORECHANGE
DISCLAIMS ALL OTHER WARRANTIES AND/OR REPRESENTATIONS, EXPRESS OR IMPLIED,
WRITTEN OR VERBAL, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.0 CORECHANGE SUPPORT
5.1 OVERVIEW. Corechange will offer those support services ("Corechange
Support") set out in the attached Support Schedule. In addition to the support
services therein, new versions of the Licensed Materials may be made available
on a discounted basis through Corechange Support. Corechange may, however,
develop and market new products containing new functionality, which may include
portions of previously licensed products, and such new products may not be made
available through Corechange Support.
5.2 ANNUAL RENEWALS AND ADJUSTMENTS. Corechange Support will be provided at no
additional charge for thirty (30) days after the Effective Date. Enrollment in
Corechange Support will begin thirty (30) days after the Effective Date.
Corechange Support may be renewed each year on the anniversary of the beginning
of enrollment in Corechange Support. Corechange will provide Client an invoice
for such renewal, and Client will pay within 30 days from invoice but shall not
be required to pay earlier than 30 days before the anniversary date. Client
shall be automatically renewed effective the anniversary date unless Client
provides written notice of cancellation within thirty (30) days from the date of
invoice. Corechange will make Corechange Support available to Client for as long
as Corechange provides Corechange Support to other clients for the Licensed
Product, and in no event less than three (3) years. Client may elect to prepay
annual support fees at current rates or contractually commit to continue
enrollment for a defined number of renewal periods. Corechange may adjust the
annual fee (or any portion thereof) during the enrollment period to reflect
usage upgrades that may occur during the enrollment period or to reflect
increased costs of providing Corechange Support. Notwithstanding the previous
sentence, the support fees charged to Client for the number of users licensed
hereunder shall not be increased by more that 7% compounded per annum, although
additional charges may be made to reflect an increased number of users. No
refunds or credits will be given for Client's early termination of Corechange
Support.
5.3 REINSTATEMENT. If at any time after enrollment, Corechange Support is
terminated, Client may elect to reinstate Corechange Support by paying the then
current annual fee for Corechange Support plus a reinstatement fee based on the
cost for Corechange Support during the period when Corechange Support was
terminated.
6.0 PAYMENT
Payment of all fees specified in an invoice and not the subject of a good faith
dispute is payable upon receipt. In case of a good faith dispute, Client will
provide the reasons for such dispute within 15 days of invoice, will pay all
undisputed amounts, and will work diligently with Corechange to resolve the
dispute. Client acknowledges that the Licensed Materials have been delivered to
Client pursuant to the terms of this Agreement, and Client expressly accepts
delivery of such license, and agrees to be bound by the payment terms of this
contract. Invoices for Corechange Support will be issued up to ninety (90) days
prior to the renewal date. Under certain licensing options, additional license
fees may come due as a result of changes to usage, the operating environment or
system configuration, or upgrade for which a charge is made. Corechange will
issue an invoice upon (i) receipt of Client's written notice specifying this
change/upgrade. Client also agrees to pay all amounts equal to any applicable
taxes (e.g. sales, use, personal property, etc.) resulting from any transaction
under this Agreement, not including any taxes based on Corechange's net income
or employment taxes. Invoices remaining unpaid for thirty (30)
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days following the date payment is due shall accrue interest at the rate of one
and one-half percent (1.5%) per month (or such lesser amount if required by law)
on any unpaid amount.
7.0 LIMITATION OF LIABILITY
Except to the extent agreed otherwise, Client is responsible for the proper
installation and operation of the software programs including, without
limitation, confirming the proper configuration of its computer system(s). In
the event a problem arises with the Licensed Materials, Client agrees that
Corechange is only liable for monetary damages in the amount of the proven
direct actual damage. Except for Corechange's obligations to indemnify for third
party claims under Section 9, Corechange's aggregate liability to Client for all
claims shall not exceed the amount of license fees that Corechange has received
from Client for the Licensed Materials hereunder.
EXCEPT FOR CORECHANGE'S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL CORECHANGE
BE LIABLE FOR THIRD PARTY CLAIMS. EXCEPT FOR A BREACH OF SECTION 1.3 OR 3, OR
CORECHANGE'S OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY BE
LIABLE FOR LOSS OF OR DAMAGE TO RECORDS OR DATA, OR ANY CONSEQUENTIAL, PUNITIVE,
SPECIAL AND OTHER INDIRECT DAMAGES (INCLUDING LOSS OF PROFIT), REGARDLESS OF THE
NATURE OF THE CLAIM, EVEN IF THE PARTY IS INFORMED OF THE POSSIBILITY OF SUCH
DAMAGE OR LOSS.
8.0 TERMINATION
8.1 EARLY TERMINATION. Either party may terminate in event of a material breach
that remains uncured after thirty (30) days from receipt of written notice, or
ten (10) days in case of breach of Section 1.3, 3, or 6.
8.2 EFFECT OF TERMINATION. Upon termination except by Client due to an uncured
material breach by Corechange, Client agrees to immediately delete all copies of
the software programs that are installed on its computer systems and return to
Corechange all documentation and tangible embodiments of the Licensed Materials,
together with a written statement certifying completion of these obligations.
The provisions of Sections 1.2, 3, 4.4, and 7-9, and 11, shall survive any
termination, as shall any other section to the extant it survives by its own
terms. Termination shall not extinguish any amount owed to Corechange hereunder
that accrued prior to termination. In case of termination by Client due to an
uncured material breach by Corechange, Client shall be entitled to a refund of
prepaid amounts for Corechange Support not provided, and shall be entitled to
continue its license under Section 1.1, provided that the limitations of
Sections 1.2, 1.3, 2, 3, 4.4, and 7 shall survive such termination.
9.0 INDEMNIFICATION
If a claim or action is brought against Client by a third party arising from a
claim that the Licensed Materials or Client's use or possession of the Licensed
Materials infringes a patent, copyright, trade secret, or other intellectual
property right of a third party, Corechange shall defend such claim or action at
its expense and shall pay all costs, attorney's fees, damages, settlements and
other amounts awarded or agreed to in connection with any such claim or action,
provided that Client provides (x) prompt written notice of the claim, (y) all
reasonable assistance, and (z) control of the claim to Corechange. Corechange
shall have no obligation to indemnify to the extent the claim arises from (i)
the use of the Licensed Materials with other products not provided by
Corechange; or (ii) any unauthorized uses of or modifications to the Licensed
Materials. If Client is enjoined, precluded, or advised by Corechange to refrain
from using the Licensed Materials because of any such infringement or any
infringement claim or allegation, Corechange shall, and at Corechange's expense
and option: (a) procure for Client the right to continue using the Licensed
Materials; (b) replace or modify the Licensed Materials so that they becomes
non-infringing without materially and adversely affecting the performance of the
Licensed Materials or significantly lessening the utility of the Licensed
Materials to Client; or (c) if either of the above two options are not available
on commercially reasonable terms, accept return of the Licensed Materials at
Corechange's expense and refund that portion of the license fees based on a
three (3) year straight-line amortization. This provision states the sole and
exclusive liability of Corechange for infringement or breach of third party
rights.
10.0 PUBLICITY; REFERENCE
Corechange may identify Client as a customer and Client agrees to serve as a
reference for other clients or prospective clients of Corechange. As a
reference, Client agrees to reasonably assist Corechange in marketing efforts
including the following: (1) to work with Corechange in good faith to develop a
profile featuring Client for Corechange's marketing purposes and for use in SEC
registration materials; (2) to allow Client to be listed as a client of
Corechange, and to allow its logo to be used on Corechange's website identifying
Client as a client; (3) to provide a knowledgeable person as a reference over
the telephone for clients or prospective clients of Corechange; and (4) to allow
site visits by third parties with Corechange personnel, subject to prior notice
and reasonable approval by Client of the third party. Except as indicated above,
Corechange shall not be entitled to use Client's name or the name of any
subsidiary, parent or affiliated entity of Client's or any trade name, trademark
or service xxxx belonging to the entities described above in printed brochures,
press releases, or in any form of printed advertising for any product, service
or technology, without the prior written consent of a Senior Vice President of
Client's.
11.0 MISCELLANEOUS
If any one or more of the provisions contained in this Agreement shall be held
to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect the other provisions of this Agreement. If
either party should waive a breach of any
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provisions of this Agreement, it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provisions herein. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to its choice of law provisions. A copy of any
notice of breach of the terms of the Agreement shall be forwarded to: ABN AMRO
North America, Inc., Attention: Legal Department, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, XX 00000.
SUPPORT SCHEDULE
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PROBLEM SEVERITY CORECHANGE RESPONSE
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CRITICAL: SEVERITY 1
System or major application is down. There is no workaround Corechange will respond to the problem as soon as is reasonably
currently available. possible. If a fix is available, it will be provided as soon as
reasonably possible. If a fix is not available, Corechange will
provide a workaround as soon as reasonably possible, or a fix
within 48 hours if the problem is reproducible. If helpdesk can
provide a workaround, a developer will be made available as soon
as is reasonably possible.
-------------------------------------------------------------- ------------------------------------------------------------------
SERIOUS: SEVERITY 2
System or application is moderately impacted. There is no Corechange will respond to the problem as soon as is reasonably
workaround currently available. possible. If a fix is available, it will be provided as soon as
reasonably possible. Corechange will provide reasonable best
efforts for a workaround or fix within 5 business days if the
problem is reproducible.
-------------------------------------------------------------- ------------------------------------------------------------------
MODERATE: SEVERITY 3
System or application feature failure. A workaround exists. Corechange will respond to the problem as soon as is reasonably
possible. The available workaround will be provided as soon as
reasonably possible. Corechange will incorporate fix in a
future release of the software.
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LOW: SEVERITY 4
Functionality does not match documented specifications. Corechange may incorporate fix in a future release of the
software.
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Corechange will determine, in its sole discretion, if fixes to Severity 1, 2, 3
and 4 problems will be incorporated in a next maintenance release.
COMMUNICATIONS
Client will provide reasonable communications methods to Corechange for
reporting and tracking problems. Corechange provides Client with access to a
24x7 pager number to contact Corechange support, and a help desk hotline from
9am to 5pm, Monday to Friday, Eastern Time. Client may identify up to six (6)
designated contacts (which may be changed from time to time by Client in
writing) who will be the only people authorized to request service under
Corechange Support. For each designated contact, please provide the following
information:
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DESIGNATED CONTACT SITE LOCATION/TELEPHONE NUMBER/EMAIL ADDRESS
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