Exhibit 10.19
CONFIDENTIAL DRAFT
Confidential treatment has been requested for portions of this document.
Redacted material is identified by double asterisks (i.e. "**"). The
redacted material has been filed separately with the Securities and Exchange
Commission pursuant to an application for confidential treatment.
STRATEGIC SUPPLY, SERVICES AND PROMOTION AGREEMENT
This Strategic Supply, Services and Promotion Agreement (this "Agreement")
is entered into as of 20th August, 1999 (the "Effective Date"), between
HEWLETT-PACKARD COMPANY, a Delaware corporation ("HP") and DELPHI INFORMATION
SYSTEMS, INC., a Delaware corporation ("Delphi").
1. DEFINITIONS
1.1 "Delphi Logos" means Delphi's name and logo(s), including all
artwork, graphics, icons and other content to be displayed, at
Delphi's sole discretion, on ▇▇▇▇.▇▇▇.
1.2 "▇▇▇▇.▇▇▇" (electronic brokers and insurers express) means that
Delphi insurance portal ▇▇▇▇.▇▇▇ which also includes ebix.mall and
▇▇▇▇.▇▇▇▇ e-commerce services, as it now exists and as it may
hereafter be modified or replaced, that facilitates commercial and
consumer insurance transactions over the Web. As of the Effective
Date the URL of ▇▇▇▇.▇▇▇ is ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇..
1.3 "Co-Location Services" means providing power (facility, physical
location and power), pipes (network connectivity and bandwidth) and
ping for ▇▇▇▇.▇▇▇.
1.4 "Competitor" means any entity which HP reasonably considers to be
its competitor of its hardware, software or services.
1.5 "Effective Date" has the meaning given to such term in the
introductory paragraph.
1.6 "Fees" has the meaning given to such term in Section 5.1.
1.7 "HP Hardware" means the HP computer systems, peripherals, terminals,
and all related hardware products owned or leased by HP, listed on
Exhibit A, which HP will provide to Delphi under the Related
Agreements.
1.8 "HP Logos" means HP's name and such logo(s) and taglines as HP shall
designate from time to time, including all artwork, graphics, icons
and other content, to be displayed on ▇▇▇▇.▇▇▇.
1.9 "HP Services" means the services to be made available by HP as
defined in Exhibit A, and any other services to be performed by HP
under the terms of this Agreement or any Related Agreement.
1.10 "HP Software" means the HP software products listed on Exhibit A,
which HP will provide to Delphi under the Related Agreements.
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1.11 "Intellectual Property Rights" means rights in patents, copyrights,
trademarks, trade secrets and all other similar intellectual
property rights.
1.12 "Joint Promotional Plan" may include: (a) public relations
activities including joint press releases concerning this Agreement
and analyst presentations on the relationship of the Parties; (b)
demonstration of HP and Delphi's products working together to press
or other individuals or organizations, as appropriate; (b)
distribution of promotional literature to the parties; (c)
convention activities including industry and sponsored shows and
events; (d) additional press activities including statements
refining product positioning, cooperation on product reviews; (e)
customer testimonials from ▇▇▇▇.▇▇▇ users, and (f) advertisements in
a variety of publications and possibly other media.
1.13 "Logos" means the Delphi Logos or the HP Logos, as appropriate.
1.14 "Management Team" has the meaning given to such term in Section
6.1(A).
1.15 "Net Revenues" means, with respect to any calendar quarter, the
amount of revenue and other income recognized by Delphi under GAAP
from Other Fees (defined below) generated from ▇▇▇▇.▇▇▇ for such
calendar quarter, less any credits, discounts, returns, amounts used
to purchase additional HP Hardware, HP Software or HP Services
pursuant to Section 2.2, and reasonable reserves for bad debt
related to such revenues. For purposes of this Agreement "Other
Fees" means all fees and charges which are recognized by Delphi
under GAAP as revenue generated from the ▇▇▇▇.▇▇▇, including: (a)
all amounts charged to carriers, agents, brokers and all other third
parties for use of ▇▇▇▇.▇▇▇, (b) those fees for product sales or
services, marketing, advertising, and promotions, (c) those fees for
support provided to carrier/agent/broker subscribing to ▇▇▇▇.▇▇▇,
and (d) fees for content placement, carrier/broker/agent enrollment,
carrier/broker/agent transactions, payment services, logistic
tracking, e-commerce enablement of carriers, agents or brokers
benchmarking services, forums or sales of third party products or
services transacted through the ▇▇▇▇.▇▇▇, and (e) transaction fees.
1.16 "Party" means HP or Delphi.
1.17 "Related Agreement" means any agreement hereafter entered into by HP
and Delphi under which HP agrees to provide to Delphi, HP hardware,
HP software or HP services, whether invoiced or not, as contemplated
by this Agreement.
1.18 "Service Provider" means the provider of some or all of the
Co-Location Services for the ▇▇▇▇.▇▇▇.
1.19 "Term" means the period beginning on the Effective Date and ending
on August 19, 2002, or such shorter period as may occur in the event
of termination under Section 12.
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2. SUPPLY OF PRODUCTS AND SERVICES
2.1 Related Agreements. HP will provide the HP Software, HP Hardware and
HP Services under the Related Agreements. HP and Delphi agree to
negotiate in good faith and execute the Related Agreements as
quickly as possible after the Effective Date. It is agreed that the
Related Agreements will be substantially similar in content to HP's
then-current Terms and Conditions of Sales and Service. Purchase
orders from Delphi for HP Hardware, HP Software or HP Services will
reference the appropriate Related Agreement.
2.2 Additional Purchases and Discounts. Delphi may purchase
quantities of HP Hardware, HP Software and HP Services in excess
of that which is ** to Delphi as described in Exhibit A. Unless
HP has waived Delphi's obligation to only use HP Hardware, HP
Software and HP Services to operate ▇▇▇▇.▇▇▇ as set forth in
Section 2.3(b), for any purchases by Delphi of HP products listed
in Exhibit A, Delphi may purchase such items during the Term at
the respective price indicated in HP's then-current corporate
price list less ten percent (10%), provided that the parties
agree that such additional purchases are consistent with Delphi's
growth and scalability requirements, given mutually agreed to
transaction and revenue growth projections. HP agrees that its
then-current price list will be competitive with market prices of
comparable products with comparable functionality from third
parties. It is expected that the Parties will ** related to
▇▇▇▇.▇▇▇.
2.3 Use Limits: Requirements for ▇▇▇▇.▇▇▇.
(a) Use Limits. All HP Hardware, HP Software and HP Services
purchased or made available to Delphi under this Agreement or
the Related Agreements may only be used on, or in connection
with, ▇▇▇▇.▇▇▇. Delphi may not during the Term sell to any
third party any HP Hardware purchased or made available to
Delphi under this Agreement.
(b) Requirements for ▇▇▇▇.▇▇▇. **. Provided, however, (i)
before Delphi may purchase ** products or services for use
on ▇▇▇▇.▇▇▇, Delphi must indicate to HP, Delphi's
functional and performance needs and ** to satisfy such
requirements (to which HP must respond promptly), and (ii)
Delphi may only use ** products or services if ** to
promptly and adequately respond and is unable to provide
competitive functionality and price or ** to such use.
(c) Such obligation shall apply to all activities performed by or
for Delphi for ▇▇▇▇.▇▇▇, including hosting, serving,
replicating, caching, or similar
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activities, and to all hardware and software used in
connection therewith, (a) regardless of where it is located if
Delphi is providing the hardware or software, as applicable,
and (b) in all events, for ▇▇▇▇.▇▇▇ hardware located on
premises owned, leased or otherwise controlled by Delphi.
2.4 Indemnity.
(a) Delphi Indemnity. Delphi shall indemnify, defend and hold
harmless HP and its affiliates, suppliers and agents from any
liability, damages or costs (including attorneys' fees and
expenses) arising from, or relating to, a claim (a) that
▇▇▇▇.▇▇▇, including any technology or method therein and any
product or service provided by Delphi thereunder, violates the
Intellectual Property Rights of a third party, or (b) by a
third party arising from (i) the operation of the ▇▇▇▇.▇▇▇ or
any related product or service, or (ii) Delphi's advertising
and marketing of HP's and Delphi's joint activities.
(b) Indemnity Limits. Delphi shall not be liable for a particular
claim under the indemnity in Section 2.4 unless HP shall (a)
promptly provide notice of any claim, (b) permit Delphi to
assume control over the defense and/or settlement of such
claim, and (c) at Delphi's cost, provide reasonable assistance
to Delphi in the defense and/or settlement of such claim.
Delphi shall not be required to indemnify HP to the extent
that such claim is caused by (i) HP Hardware, HP Software, or
HP Services, or the combination of such items into the
▇▇▇▇.▇▇▇, provided such combination was made or suggested by
HP or if such claim would have been avoided if such HP
Hardware, HP Software, or HP Services had not been so
included, (b) any modification of the ▇▇▇▇.▇▇▇ by HP if such
claim would have been avoided if such modification had not
occurred, and (c) any HP Logos or other materials provided by
HP.
3. SERVICE PROVIDERS
Delphi may elect to negotiate a co-location/services agreement with a
Service Provider(s). The selection of the Service Provider is subject
to HP's written approval, which will not be unreasonably withheld and,
if given, will be provided to Delphi within three (3) business days. In
the event that Delphi signs up a Service Provider, the
co-locations/services agreement will provide that title to the HP
hardware provided by HP to Delphi ** hereunder will remain with Delphi.
With respect to HP Software, Delphi may grant to the Service Provider
those limited license rights necessary for the Service Provider to
provide co-location services, provided that the Service Provider agrees
to be bound by the terms of the Related Agreements. Any chosen Service
Provider must be capable of operating HP Hardware and HP Software and
must provide high levels of redundancy.
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4. MARKETING; BRANDING; LOGOS; PROMOTION
4.1 Marketing Planning. As promptly as possible following the
Effective Date the Parties will commence preparation, to be
completed within ** from the Effective Date, of the Joint
Promotional Plan. The Joint Promotional Plan will be **.
Implementation of the Joint Promotional Plan, including the day
to day decisions shall be determined by Delphi in good faith. **.
As part of the Joint Promotional Plan, **.
4.2 Branding of the ▇▇▇▇.▇▇▇ and Related Materials. During the Term,
▇▇▇▇.▇▇▇ shall be co-branded with the HP Logos and the Delphi Logos.
The applicable HP Logos, including the tagline "HP Enabled
E-Service", shall be prominently displayed on the mutually agreed
upon ▇▇▇▇.▇▇▇ web pages, in all written collateral and
advertisements for ▇▇▇▇.▇▇▇ as Delphi in its reasonable discretion
deems appropriate, and other locations as mutually agreed upon by
both Parties. Delphi agrees that (a) the HP Logo will be the most
prominent logo, after the Ebix logo, on ▇▇▇▇.▇▇▇ and in all written
advertising and collateral material, (b) the HP Logo will be placed
in the primary navigation bar of the ▇▇▇▇.▇▇▇, (c) the HP Logo will
appear "above the fold" on the initial page of ▇▇▇▇.▇▇▇ on browsers
set for an 800 x 600 screen size, and (d) Delphi will use
commercially reasonable efforts to design the other pages on which
its primary navigation bar appears to show the HP Logo "above the
fold" on browsers set for an 800 x 600 screen size. HP reserves the
right to require that the HP Logos be removed from any or all of
such locations.
4.3 Logos. HP and Delphi each will have the right, without separate
charge, to use solely as expressly allowed under the terms of this
Agreement, the Joint Promotional Plan and any other marketing plan
agreed to by the Parties, the other Party's Logos. Each Party's use
of the other Party's Logos will adhere to the respective owner's
trademark guidelines for such Logos, as revised from time to time
with reasonable notice. Neither party is granted any ownership in
or, except as expressly provided herein, license to the trademarks
or trade names of the other party, including the Logos. Each Party
agrees (a) to always identify the other's Logos as being the
property of such other Party, and (b) that all use of the other's
Party's Logos will inure to the benefit of, and be on behalf of,
such other Party.
4.4 No Similar Arrangements. In consideration of the investments and
efforts by HP in furtherance of this Agreement, **. Delphi will
notify HP as soon as possible if and when **, and will, at the
very least, provide HP with thirty (30)
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days notice prior to the anticipated announcement **, so that HP
has adequate time to **.
5. FEES AND REPORTING
5.1 Fees. Delphi shall pay to HP within thirty (30) days of the end
of each calendar quarter during the term, ** (the "Fees") for
such preceding calendar quarter. Notwithstanding the terms of
this Agreement or any Related Agreement, Fees, and other amounts
due under this Agreement or any Related Agreement may not be
offset against any amounts due to or from the other Party under
this Agreement or any Related Agreement. HP is not obligated to
make any payment to Delphi due to Net Revenues for any calendar
quarter being less than zero. The payments are exclusive of
sales, use, service, value added or like taxes, or customs
duties. A non-binding projection of Fees is attached hereto as
Exhibit B.
5.2 Reporting: Interest.
(a) Delphi's Reporting. Within thirty (30) days following the end
of calendar quarter during the term, Delphi will provide to HP
a report for HP to determine the Fees and other amounts agreed
to after the Effective Date to which it is entitled under
Section 5.1 or otherwise under this Agreement. Such report
will include: Delphi's gross revenues relating to the ▇▇▇▇.▇▇▇
from Other Fees; related discounts; related refunds; related
collection reserves debits and credits; other permitted debits
and credits. Delphi hereby agrees that each year, upon HP's
request, it will require that its independent auditors verify
the accuracy of such reports as part of their annual audit of
Delphi's books and records and certify the results thereof to
HP. Certification by Delphi's auditors should be done upon
HP's written request at a minimum of ** prior to
Delphi's year end (December 31) so that Delphi can ask its
auditors to include this activity in their audit. Any
additional fees and expenses charged by such independent
auditors for the work relating to verifying the accuracy of
such reports and providing such certification shall be borne
by HP; provided that Delphi will allow HP to negotiate
directly with such auditor the amount of such fees.
(b) Overdue Interest. Any payments due hereunder which are not
paid when due shall accrue interest from the date due until
paid at the per annum rate of ** or the maximum rate
permitted by applicable law, whichever is less. Interest
will not accrue unless HP provides written notice and such
payment is more than ** late.
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5.3 Audit Rights.
(a) Audit by HP. Delphi agrees to maintain for at least ** from
the date each payment under this Agreement is due, complete
books, records, invoices and accounts with respect to the
amounts due to HP hereunder. Upon ** prior written notice
to Delphi, HP may, at its own expense, appoint a nationally
recognized independent auditor to audit Delphi's records
relevant to this agreement at Delphi's offices during
normal business hours, solely for the purpose of confirming
the accuracy of the Fees and other amounts payable to HP
hereunder. HP will make all reasonable attempts while
conducting any audit to ensure that such does not
unreasonably interfere with Delphi's business activities.
Any such auditors shall (i) agree to be bound by Delphi's
standard nondisclosure agreement, and (ii) only report to
HP whether or not the payments were accurate, and if not
accurate, the amount of the deficiency or surplus, and
(iii) provide the same information to Delphi, as well as
their basis for their conclusions. Such audit may be no
more often than once every calendar year. If an audit
reveals an overpayment by Delphi, HP agrees to promptly
refund Delphi for such overpaid amount within ** of such an
audit report. If an audit reveals an underpayment by
Delphi, Delphi agrees to promptly pay HP the amount of such
underpayment, together with overdue interest thereon as
specified above. In addition, if such underpayment is
greater than ** of the amounts due for the period so
audited, Delphi will also promptly reimburse HP for the
cost of the audit as evidenced from such independent
auditor's ▇▇▇▇.
5.4 Non-Discriminatory Treatment.
(a) Features. Delphi agrees that it will not create another web
site similar to ▇▇▇▇.▇▇▇ and that the features which it adds
to other portions of its web related business rather than
▇▇▇▇.▇▇▇, including the design and architecture of ▇▇▇▇.▇▇▇,
will not be allocated so as to unreasonably and adversely
affect the amount of Fees to be collected by HP.
(b) Pricing. **
6. MANAGEMENT TEAM; OTHER PERSONNEL; OTHER OPPORTUNITIES
6.1 Management Team.
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(a) Team Members. Delphi and HP shall each appoint members to a
project management team to oversee the relationship between
the Parties (the "Management Team"). Each Party shall specify
the initial Management Team members within ** days of
the Effective Date. Each Party may substitute members of the
Management Team upon fourteen (14) days' prior written notice
to the other.
(b) Duties. The Management Team shall meet periodically according
to a mutually agreed upon schedule, and more frequently, if
requested by one of the members. Among the responsibilities of
the Management Team shall be managing the relationship between
the Parties with respect to performance under this Agreement.
6.2 Other Assigned Personnel. The Parties shall each designate primary
day to day contacts to provide the following:
(a) From HP: ** who can provide HP marketing support as well as
product and services pricing and technical support.
(b) From Delphi: ** employees who can coordinate the
relationship with HP.
Each Party may substitute these contacts upon ** prior written
notice to the other.
6.3 Other Opportunities. No joint development is contemplated by virtue
of this Agreement. If the Parties agree to participate in joint
development activities, the rights and obligations resulting from
such activities will be covered in a separate agreement.
7. CONFIDENTIAL INFORMATION
7.1 During the term of this Agreement, either Party may receive or
have access to technical information, as well as information
about product plans and strategies, promotions, customers and
related non-technical business information which the disclosing
party considers to be confidential ("Confidential Information").
Before such Confidential Information is disclosed, the Parties
shall first agree to disclose and receive such information in
confidence. If then disclosed, the Confidential Information shall
be marked as confidential at the time of disclosure, or if
disclosed orally but stated to be confidential, shall be
designated as confidential in a writing by the disclosing party
summarizing the Confidential Information disclosed and sent to
the receiving party within ** after such oral disclosure.
7.2 Confidential Information may be used by the receiving party only
with respect to the performance of its obligations under this
Agreement, and only by those
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employees of the receiving party and its subcontractors who have
a need to know such information for purposes related to this
Agreement, provided that such subcontractors have signed separate
agreements containing substantially similar confidentiality
provisions. The receiving party shall protect the Confidential
Information of the disclosing party by using the same degree of
care (but not less than a reasonable degree of care) to prevent
the unauthorized use, dissemination or publication of such
Confidential Information, as the receiving party uses to protect
its own Confidential Information of like nature. The receiving
party's obligation under this Section 7 shall be for a period of
** after the date of disclosure.
7.3 The obligations stated in this Section 7 shall not apply to any
information which is:
7.3.1 Already known by the receiving party prior to disclosure.
7.3.2 Publicly available through no fault of the receiving party.
7.3.3 Rightfully received from a third party without a duty of
confidentiality.
7.3.4 Disclosed by the disclosing party to a third party without a
duty of confidentiality on such third party.
7.3.5 Independently developed by the receiving party prior to or
independent of the disclosure.
7.3.6 Disclosed under requirement of law.
7.3.7 Disclosed by the receiving party with the disclosing party's
prior written approval, pursuant to a subpoena or judicial
order, provided that, to the extent reasonably possible, the
receiving party is given notice and an opportunity to object.
8. WARRANTIES
8.1 HP Warranties. HP represents and warrants to Delphi that HP has full
power and authority to enter into and perform this Agreement. EXCEPT
FOR THE WARRANTIES PROVIDED ABOVE OR IN ANY RELATED AGREEMENT WITH
RESPECT TO SPECIFIC HP HARDWARE, HP SOFTWARE OR HP SERVICES, HP
MAKES NO WARRANTY, WHETHER EXPRESS OR IMPLIED, TO ANY PERSON OR
ENTITY WITH RESPECT TO THE HP HARDWARE, HP SOFTWARE OR HP SERVICES,
AND HP DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT.
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8.2 Delphi Warranties. Delphi represents and warrants to HP that DELPHI
HAS FULL POWER AND AUTHORITY TO ENTER INTO AND PERFORM THIS
AGREEMENT. EXCEPT FOR THE WARRANTIES PROVIDED ABOVE, DELPHI MAKES NO
WARRANTY, WHETHER EXPRESS OR IMPLIED, TO ANY PERSON OR ENTITY WITH
RESPECT TO ▇▇▇▇.▇▇▇ AND DELPHI DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All copyrights and other Intellectual Property Rights existing prior
to the Effective Date shall belong to the Party that owned such
rights immediately prior to the Effective Date.
9.2 Neither party shall gain by virtue of this Agreement any rights of
ownership of any Intellectual Property Rights owned by the other.
9.3 HP shall own all Intellectual Property Rights, title and interest in
or pertaining to all products and services developed by HP for
purposes of this Agreement, except that for any development
commissioned by or on behalf of Delphi, the rights and obligations
resulting from such activity will be covered in a separate
agreement.
9.4 No joint development is contemplated by virtue of this Agreement. If
the parties agree to participate in joint development activities,
the rights and obligations resulting from such activities will be
covered in a separate agreement.
10. INTELLECTUAL PROPERTY PROTECTION
10.1 HP will defend or settle any claim against Delphi that the HP
Hardware, Software or Services delivered under and used in
accordance with this Agreement infringes Intellectual Property
Rights in the country where such Hardware, Software or Services are
used or receive HP support.
10.2 The protections provided in Section 10.1 above will apply provided
Delphi promptly notifies HP in writing of the claim, and Delphi
cooperates with HP in and grants HP sole control of the defense or
settlement. For infringement claims covered by this Section 10, HP
will pay **.
10.3 HP has no obligation for any claim of infringement arising from:
10.3.1 HP's compliance with or use of Delphi's information, Delphi
content, technology, designs, specifications or instructions.
10.3.2 Modifications by Delphi or a third party.
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10.3.3 Use prohibited by HP product manuals, datasheets or related
application notes.
10.3.4 Use of the HP Hardware or Software with products not supplied
by HP.
10.4 This Section 10 states HP's entire liability for claims of
intellectual property infringement.
11. LIABILITY LIMITATION
EXCEPT FOR BODILY INJURY AND OTHER THAN BREACH OF, OR LIABILITY UNDER,
SECTION 7, NEITHER PARTY SHALL BE LIABLE WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY OR ANY OTHER TERM OF THIS AGREEMENT, EXCEPT
FOR BODILY INJURY AND BREACH OF, OR LIABILITY UNDER SECTIONS 2.4(A), 7, or
10, THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED **.
12. TERM AND TERMINATION
12.1 Term. This Agreement shall expire at the end of the Term unless the
Parties agree, **, to extend the Term.
12.2 Termination for Breach. Either Party may terminate this Agreement
if:
(a) The other Party is in material breach of this Agreement and
fails to cure such breach within ** of notice by the
terminating Party of such breach; provided, that such **
period shall be automatically extended up to an additional
**, if the breach is of such a nature that it cannot be
corrected within such ** period (provided that the breach
does not involve the non-breaching Party's intellectual
property rights) and the breaching Party is using its best
efforts to correct such breach throughout such cure period;
or
(b) The other Party is in material breach of any Related Agreement
and fails to cure such breach in accordance with the
procedures, including time for cure, if any, specified in such
Related Agreement; or
(c) The other Party becomes the subject of a petition in
bankruptcy, whether voluntary or involuntary, which if
involuntary is not dismissed within
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sixty (60) days, or becomes insolvent, or ceases to do
business in the normal course.
12.3 Termination Due to Failure to Achieve Minimum Fees. HP may
terminate this Agreement upon thirty (30) days written notice to
Delphi, if the total Fees received by HP from the Effective Date
through the date of payment for the last month of the first year,
do not equal at least **, or if the total Fees received by HP
through the date of payment for the last month of the second year
do not equal at least **.
12.4 Termination Due to **. HP **.
12.5 Effect of Termination.
(a) Unless otherwise provided in a Related Agreement, the Related
Agreement(s) will terminate upon expiration or termination of
this Agreement.
(b) In the event the Agreement is terminated by HP pursuant to
Sections 12.3 and 12.4, then Delphi will, at its option,
either (a) return all HP Hardware and HP Software to HP, or
(b) purchase the HP Hardware and HP Software at fair market
value.
12.6 Termination of Related Agreement(s). Unless otherwise provided in a
Related Agreement, the Related Agreement(s) will terminate upon
expiration or termination of this Agreement.
12.7 No Compensation for Termination. Unless otherwise provided under
this Agreement, and without limiting any of the Parties' remedies at
law or equity, neither Party shall be entitled to any compensation
(whether for loss of rights, goodwill or otherwise) as a result of
the expiration or termination of this Agreement in accordance with
its terms.
12.8 Survival. Termination or expiration of this Agreement shall not
affect Delphi's obligation to pay all Fees and other amounts due to
HP hereunder accrued prior to termination (or, where applicable,
after termination). Neither the expiration nor
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termination of this Agreement (however occasioned) shall affect
Sections 1, 2.4, 5, 7, 8, 9, 10, 11 and 12, each of which shall
continue in full force and effect.
13. MISCELLANEOUS
13.1 Headings: Plural Terms. Headings in this Agreement are for
convenience of reference only and are not part of the substance
hereof. All terms defined in this Agreement in the singular form
shall have comparable meanings when used in the plural form and vice
versa.
13.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard
to its provisions concerning the applicability of the laws of other
jurisdictions and without regard to The United Nations Convention on
the International Sale of Goods.
13.3 Construction. This Agreement is the result of negotiations among,
and has been reviewed by, HP, Delphi and their respective counsel.
Accordingly, this Agreement shall be deemed to be the product of
both Parties, and no ambiguity shall be construed in favor of or
against HP or Delphi.
13.4 Entire Agreement: Priority. This Agreement, together with each
Related Agreement hereafter executed by the Parties, constitute and
contain the entire agreement of HP and Delphi and supersede any and
all prior agreements, negotiations, correspondence, understandings
and communications between the Parties, whether written or oral,
respecting the subject matter hereof. This Agreement and the Related
Agreements shall supersede any provision of any purchase order or
other document submitted by Delphi or any invoice or other document
provided by HP hereunder, notwithstanding any provision in such
purchase order or document to the contrary. If the terms of this
Agreement conflict with the terms of any Related Agreement, the
terms of such Related Agreement shall control.
13.5 Other Interpretive Provisions. References in this Agreement to
"Sections," and "Exhibits" are to sections and exhibits herein and
hereto unless otherwise indicated. The words "include" and
"including" and words of similar import when used in this Agreement
shall not be construed to be limiting or exclusive.
13.6 Non-Restrictive Relationship. This Agreement does not prevent either
Party from (a) entering into similar agreements with others, whether
or not in the same industry, or (b) independently developing
(without breach of Section 7) materials, products and services the
same as or similar to the materials, products or services provided
by the other Party hereunder.
13.7 No Publication. Except as contemplated by the Joint Promotional Plan
or with the prior written consent of both Parties (a) neither Party
may publicize or disclose to
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any third Party the terms of this Agreement, and (b) no press
releases may be made regarding this Agreement or the relationship of
the Parties.
13.8 Relationship of the Parties. Notwithstanding any provision hereof
this Agreement does not create, and is not intended to create, a
joint venture, partnership or agency relationship between the
parties. For all purposes of this Agreement, each Party shall be and
act as an independent contractor and not as partner, joint venturer,
or agent of the other and shall not bind nor attempt to bind the
other to any contract. Neither Party shall have any responsibility
or liability of any kind to any subcontractors or third parties
providing services to or for the benefit of the other Party. Each
Party shall be free to manage and control its business as it sees
fit, without the management, control or assistance of the other
Party, except as otherwise prescribed herein.
13.9 Ownership. Neither Party is granted any right, title nor interest to
intellectual property owned by the other Party, either express or
implied, except as may be explicitly provided herein or in any
Related Agreement.
13.10 Export Administration. It is Delphi's responsibility to comply with
all relevant export control laws and regulations of the United
States with respect to ▇▇▇▇.▇▇▇ and the products and services
provided by HP to Delphi hereunder, and to assure that such products
are not (a) exported, directly or indirectly, in violation of such
export control laws, or (b) intended to be used for any purposes
prohibited by such export control laws, including, without
limitation, nuclear, chemical or biological weapons proliferation.
13.11 No Assignment. Neither Party may assign any rights or obligations
under this Agreement without the prior written consent of the other
Party.
13.12 Notices. All notices that are required to be given under this
Agreement shall be in writing and shall be sent to the respective
address set forth below, or such other address as each Party may
designate by notice given in accordance with this Section. Any such
notice may be delivered by hand, by overnight courier, by first
class pre-paid letter or by facsimile transmission, and shall be
deemed to have been received: (a) by hand delivery, at the time of
delivery; (b) by overnight courier, on the succeeding business day;
(c) by first class mail, two business days after the date of
mailing; and (d) by facsimile, immediately upon confirmation of
transmission provided a confirmatory copy is sent by first class
pre-paid, by overnight courier or by hand by the end of the next
business day.
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For HP: For Delphi:
Hewlett-Packard Company Delphi Information Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, CFO
Telephone: Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy of all notices (other than notices of a primarily
technical nature) to:
Hewlett-Packard Legal Delphi Legal
Hewlett-Packard Company ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, CFO
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile ▇▇▇-▇▇▇-▇▇▇▇
13.13 Waiver and Modification. The failure of either Party to enforce its
rights under this Agreement at any time for any period shall not be
construed as a waiver of such rights. No changes, modifications or
waivers are to be made to this Agreement unless evidenced in writing
and signed for and on behalf of both Parties.
13.14 Severability. If any provision in Agreement is found or held to be
invalid or unenforceable, then the meaning of such provision shall
be construed, to the extent feasible, so as to render the provision
enforceable, and if no feasible interpretation would save such
provision, it shall be severed from the remainder of this Agreement
which shall remain in full force and effect. However, if the severed
provision is essential and material to the rights or benefits
received by either Party, the Parties shall use their best efforts
to negotiate, in good faith, a substitute, valid and enforceable
provision or agreement which most nearly effects their intent in
entering into this Agreement.
13.15 Force Majeure. Nonperformance of either Party will be excused to the
extent that performance is rendered impossible by earthquake,
strike, fire, flood, governmental acts or order or restrictions or
other similar reason where failure to perform is beyond the control
and not caused by the negligence of the non-performing Party,
provided that the nonperforming Party gives prompt notice of such
conditions to the other Party and makes all reasonable efforts to
perform.
13.16 Jurisdiction; Prevailing Party. HP consents to the exclusive
jurisdiction and venue of the courts located in ▇▇▇▇ County,
Illinois for any and all actions brought by HP with respect to this
Agreement. Delphi consents to the exclusive jurisdiction and venue
of the courts located in Santa ▇▇▇▇▇ County, California for any and
all actions brought by Delphi with respect to this Agreement. In any
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action or proceeding to enforce rights under this Agreement, the
prevailing Party will be entitled to recover costs and attorneys
fees.
13.17 Dispute Resolution. In the event that the Parties are unable to
agree upon any matters pursuant to this Agreement, the disputed
matter shall be referred in the first instance to the appointed
representatives of the Parties. If the representatives are unable
to resolve the disputed matter within a reasonable time, they
shall refer the matter to Controller for HP and ▇▇▇▇ ▇▇▇▇, CFO
for Delphi. If these two representatives cannot reach a mutually
acceptable agreement within the following two (2) weeks, or such
other period as may be agreed between the Parties, the matter
shall be referred to General Manager for HP and ▇▇▇▇▇ ▇▇▇▇▇,
President for Delphi. In the event they cannot reach a mutually
acceptable resolution within a reasonable time, either Party
shall be entitled to seek all available remedies, including legal
remedies. Notwithstanding the foregoing, either Party may seek
injunctive relief with respect to any disputed matter without
following the dispute resolution procedure set forth above.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
HEWLETT-PACKARD COMPANY DELPHI INFORMATION SYSTEMS, INC.
By: /s/ Illegible By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------- -----------------------------
Print Name: Print Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Title: President, Delphi
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EXHIBIT A
HP Hardware - terms to be covered under Related Agreements.
**
HP Software - terms to be covered under Related Agreements.
**
HP Services - terms to be covered under Related Agreements
HP will provide consulting to evaluate Delphi's environment and ensure
optimal configuration and usage of **, including an initial analysis
and deployment as well as ongoing refinement and use of advanced
functionality in subsequent phases over the Term of the Agreement.
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EXHIBIT B
PROJECTED FEES
Year 1 Year 2 Year 3 Total
----------------------------------------------
Ebix Revenues **
HP's ** Share ("Fees") **
Transaction Projections:
Year 01
**
Year 02 & Year 03
**
18
