1
**Confidential treatment has been requested with
respect to certain information contained in this
document. Confidential portions have been omitted
from the public filing and have been filed separately
with the Securities and Exchange Commission
EXHIBIT 10.10
CO-BRANDED XMS SERVICE
MARKETING AGREEMENT
This CO-BRANDED XMS SERVICE MARKETING AGREEMENT (this "Agreement") is made and
entered into as of August 11th, 1998 (the "Effective Date") between Concur
Technologies, Inc. (formerly known as Portable Software Corporation), a
Washington corporation ("Concur") and American Express Travel Related Services
Company, Inc., a New York corporation ("AMEX").
R E C I T A L S
WHEREAS, Concur plans to develop an outsource business travel and entertainment
expense management service for customers;
WHEREAS, AMEX and its licensees provide, inter alia, corporate charge, credit,
procurement, smart and store value card products and services, travel agency
services and electronic travel booking services and products;
WHEREAS, Concur and AMEX desire to enter into a marketing agreement providing
for the development and marketing of a co-branded version of the Concur
outsource business travel and entertainment expense management service for use
by AMEX Clients;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
in this Agreement, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 "Affiliate" shall mean with respect to any person (which for purposes
of this definition shall include individuals, business entities and
other legal entities), any other person directly or indirectly
controlling, controlled by or under common control with such person.
For purposes of this definition, "control" shall mean the power to
direct or cause the direction of, the management and policies of such
person whether through the ownership of voting interests, by contract
or otherwise.
1.2 "AMEX Client" shall mean a business enterprise, including without
limitation divisions or departments thereof, that has a Corporate
Card account or an American Express Business Travel Account from time
to time during the term of this Agreement.
1.3 "AMEX Competitor" shall mean a person, firm or enterprise engaged in
the business of (a) issuing payment instruments (including, without
limitation, charge, credit, stored-
2
value and debit cards), (b) facilitating consumer or small business
lending, (c) issuing travelers cheques or (d) engaged in travel
booking business.
1.4 "AXP/XMS Customer" shall mean an AMEX Client that enters into an
AXP/XMS Service Agreement for its internal use of the Co-Branded XMS
Service.
1.5 "AXP/XMS Service Agreement" shall have the meaning set forth in
Section 2.3.
1.6 "Base Price List" shall have the meaning set forth in Section 5.1.
1.7 "Burdened Cost" includes the direct costs (personnel, supplies,
materials, contracted and outside services), indirect costs
(allocated facility-related expenses) and general and administrative
expenses (proportionate allocation of costs associated with
administration, finance, accounting and human resources) attributable
or allocable to the provision of the consulting and implementation
services, training and other similar services provided to AXP/XMS
Customers, all as determined in accordance with generally accepted
accounting principles.
1.8 "Ceiling" shall have the meaning set forth in Section 5.1(b).
1.9 "Co-Branded XMS Service" shall mean the travel and entertainment
expense management service to be developed by Concur in accordance
with the terms of this Agreement (more particularly described on
Exhibit A-1 hereto) which incorporates the Exclusive Features (as
defined in Section 2.3).
1.10 "Consulting Revenue" shall mean amounts received by Concur from an
AXP/XMS Customer with respect to a Service Period for consulting,
implementation services, training and other similar services related
to the Co-Branded XMS Service (including amounts for the services
referenced in Section 5.4) less (i) Concur's Burdened Cost, and (ii)
except to the extent already included in Burdened Cost, duties or
sales use or other taxes or withholdings other than those based on
Concur's before tax income.
1.11 "Corporate Card" shall mean a corporate charge, credit or procurement
card issued by AMEX or its licensees to the employees and agents of
AMEX Clients for use in connection with travel, entertainment and
procurement expenses incurred on behalf of AMEX Clients.
1.12 "Floor" shall have the meaning set forth in Section 5.1(b).
1.13 "Party" shall mean Concur or AMEX.
2
3
1.14 "Concur Competitor" shall mean a person, firm or enterprise providing
a software product or software-enabled service in the travel and
entertainment expense management field.
1.15 "Prior Agreement" shall mean that Strategic Marketing Alliance
Agreement entered into as of December 17, 1997 between the Parties.
1.16 "Revenue" shall mean the aggregate of all amounts paid by any AXP/XMS
Customer with respect to a Service Period and relating to the
Co-Branded XMS Service including, without limitation, transaction
fees and one-time payments, but excluding (i) Consulting Revenue,
(ii) direct costs for licensing of third party software products that
are integrated into the Co-Branded XMS Service and (iii) duty, sales,
use or other taxes or withholdings other than those based on Concur's
income.
1.17 "Service Launch Date" shall mean the date on which the Co-Branded XMS
Service is commercially available for use by an AMEX client in
accordance with the terms of Section 2.2.
1.18 "Service Period" shall mean the period during which an AXP/XMS
Customer is a party to an AXP/XMS Service Agreement, including
renewals and extensions thereof, if there has been no service
termination of nine months or longer.
1.19 "Shortfall" shall have the meaning set forth in Section 5.1(b).
1.20 "Steering Committee" shall have the meaning set forth in Section
6.1(d) of the Prior Agreement.
1.21 "Suggested Price List" shall have the meaning set forth in Section
5.1.
2. DEVELOPMENT OF THE CO-BRANDED XMS SERVICE.
2.1 In accordance with the terms of this Agreement, the Co-Branded XMS
Service will be offered to AMEX Clients and made available only to
such AMEX Clients who have agreed to be bound by the terms and
conditions set forth in the AXP/XMS Service Agreement. The Co-Branded
XMS Service shall be installed at the AXP/XMS Customer site (or at
the site of a data center partner) and accessible via an Internet
browser supplied by Microsoft Internet Explorer 3.02 or higher or
Netscape Navigator Version 3.0 or higher.
2.2 Concur agrees to develop, in accordance with the terms and conditions
set forth in this Agreement, the Co-Branded XMS Service for
commercial distribution to AXP/XMS Customers on or before [*];
provided that if Concur cannot develop the Co-
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
3
4
Branded XMS Service on or before [*] but can demonstrate to AMEX's
reasonable satisfaction that Concur can, in accordance with the terms
of this Agreement, develop the Co-Branded XMS Service for commercial
distribution by a date not beyond [*] then AMEX may, it its sole
discretion, agree that the Co-Branded XMS Service will be made
commercially available by a date no later than [*]. AMEX, in its sole
reasonable discretion, shall determine whether the Co-Branded XMS
Service is available for commercial distribution.
2.3 Exclusive Features. Concur and AMEX shall develop from time to time
during the term of this Agreement certain service features for
integration into the Co-Branded XMS Service (the "Exclusive
Features"). Listed on Exhibit C hereto are the Exclusive Features
being developed by AMEX and Concur as of the date hereof. The Parties
acknowledge and agree that their ownership rights in the Exclusive
Features and the related technical specifications shall be governed
by the principles stated in Section 10.2 hereof.
3. MARKETING OF CO-BRANDED XMS SERVICE.
3.1 Marketing and License Rights. Subject to the terms and conditions of
this Agreement, Concur hereby grants to AMEX and AMEX hereby accepts
from Concur, a nonexclusive and nontransferable right in the United
States and throughout the world to market the Co-Branded XMS Service,
directly and through AMEX's agents and Affiliates, to AMEX Clients.
Initially, AMEX may only specifically target AMEX Clients which
would use the Co-Branded XMS Service in the United States and
Canada. As Concur completes localization efforts in additional
geographical areas and implements the infrastructure necessary to
assure proper use of the Co-Branded XMS Service in those areas, AMEX
may target AMEX Clients who would use the Co-Branded XMS Service in
such additional areas.
3.2 AXP/XMS Service Agreement.
(a) All AMEX Clients that desire to use the Co-Branded XMS Service
shall execute Concur's customized service agreement in
substantially the form of Exhibit F attached hereto (the
"AXP/XMS Service Agreement"). The AXP/XMS Service Agreement
shall provide the terms and conditions of use by such AMEX
Client of the Co-Branded XMS Service and grant to such AMEX
Client a nonexclusive and nontransferable right to use the
Co-Branded XMS Service in accordance with the terms and
conditions stated therein.
(b) Concur agrees that the AXP/XMS Service Agreement shall offer
to the respective AXP/XMS Customer a service contract up to
three (3) years in length and shall contain other terms and
conditions, including without limitation Concur's Year
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
4
5
2000 warranty, not materially less favorable to the AXP/XMS
Customer than offered to Concur's own business customers.
(c) The AXP/XMS Service Agreement will provide for payments by the
AXP/XMS Customer directly to Concur. Concur and not AMEX,
shall be deemed the seller of the Co-Branded XMS Service
hereunder and shall be responsible for collection and
remittance to the appropriate jurisdiction any and all
applicable sales/use taxes or other similar transaction taxes.
Concur shall fully indemnify and hold AMEX harmless from any
sales/use or similar transaction taxes that are assessed
(whether against AMEX or Concur) with respect to such sales.
3.3 User's Manual. As and when the Co-Branded XMS Service (including
without limitation any upgrade thereof) is made available to AXP/XMS
Customers, Concur shall deliver to AMEX, in a format reasonably
requested by AMEX, a comprehensive user's manual which any user of
the Co-Branded XMS Service (including without limitation any upgrade
thereof) may utilize in order to properly operate the Co-Branded XMS
Service. AMEX, in accordance with Section 7.1 hereof, shall brand and
publish such manual for delivery to AXP/XMS Customers. Concur will
reasonably assist AMEX in the production of such manual and will
provide AMEX with all materials created by Concur that may be useful
in the production of such manual.
3.4 Service Bureau Option. Upon reasonable advance notice to Concur and
subject to meeting reasonable performance criteria and mutual
agreement by the Parties, AMEX may utilize AMEX payment processing
facilities as the payment processor component of the Co-Branded XMS
Service as provided to AXP/XMS Customers designated by the Parties.
Concur agrees to provide reasonable cooperation to AMEX in enabling
AMEX to perform this function.
3.5 Certain Marketing Exclusivities.
(a) Concur agrees that for the [*] period immediately following
the general commercial offering of a Exclusive Feature (as
described in Section 2.3 hereof), Concur will not, and will
not permit any of its licensees to, include such Exclusive
Feature in any of product or service commercially offered by
or on behalf of Concur or any of its licensees.
(b) AMEX agrees that that in the [*] period following the Service
Launch Date, AMEX will only market the Co-Branded XMS Service
to AMEX Clients that AMEX identifies as [*] and will not
actively market the Co-Branded XMS Service to AMEX Clients
that AMEX identifies as [*]. As used herein [*] means AMEX
Clients served as of the date hereof by the division managed
by [*] and [*] means
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
5
6
the AMEX clients served as of the date hereof by the AMEX
division managed by [*]
(c) Prior to the expiration of the exclusivity arrangement
described in Section 3.5(a)(i) hereof with respect to any
Exclusive Feature (the "Exclusivity Expiration Date"), the
Steering Committee shall identify and select additional
features that will be added to the set of Exclusive Features
available to AXP/XMS Customers during the [*] period following
the Exclusivity Expiration Date. The parties hereto agree to
develop such features and make the same available as
"Exclusive Features" with the exclusive conditions provided in
Section 3.5(a)(i). If, for any reason, these additional
Exclusive Features are not available for commercial
distribution to AXP/XMS Customers by the Exclusivity
Expiration Date, then the exclusivity described in Section
3.5(a)(i) that relate to such "expiring" Exclusive Features
shall extend until such time as replacement and Exclusive
Features are available.
4. TRAINING AND SUPPORT.
4.1 Training of AMEX Sales Personnel.
(a) Periodically during the term of this Agreement and at mutually
agreeable times and locations, Concur agrees to train AMEX
sales personnel with respect to the Co-Branded XMS Service
(including each new version thereof) for the purpose of
educating AMEX's sales team on the features and benefits of
the Co-Branded XMS Service (or such new version, as the case
may be) and how to demonstrate and market it. Concur shall not
change AMEX for such training.
(b) AMEX shall make available for training by Concur (in
accordance with Section 4.1(a) hereof) those AMEX sales
managers that shall be responsible for the promotion of the
Co-Branded XMS Service. AMEX shall reasonably assist Concur,
at no direct expense to AMEX over and above the travel,
lodging and meal expenses of its attendees, in the training
of such sales managers. AMEX personnel who successfully
complete this training shall certified by Concur (if such
personnel have previously been certified on an earlier version
of the Co-Branded XMS Service and are receiving training on a
new version, shall be recertified by Concur).
4.2 Support. Concur will provide warranty service and support to AXP/XMS
Customers on the terms set forth in the AXP/XMS Service Agreement.
This will include maintenance and upgrade notices and support, as
well as a dedicated AMEX/XMS telephone support line during Concur's
customary support hours. Concur agrees that the level of service and
support provided to AXP/XMS Customers will be no less favorable than
(i) the level of service and support generally provided to Concur's
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
6
7
commercial customers and (ii) the level of service and support
provided to Concur's commercial clients of any other marketer or
reseller of the Concur's product generally similar to the Co-Branded
XMS Service.
4.3 AXP/XMS Customer Training. Concur agrees to furnish training to
AXP/XMS Customers at Concur's customary rates.
5. MARKETING AND SUPPORT.
5.1 Announcements.
(a) AMEX shall participate with Concur in the development and
delivery of a press release announcing the relationship between
AMEX and Concur regarding the Co-Branded XMS Service. The press
release shall be subject to the prior written approval of both
AMEX and Concur.
(b) All information to be disseminated to third parties about the
relationship between Concur and AMEX regarding AMEX's marketing
of or relationship or involvement with, the Co-Branded XMS
Service shall be reviewed and approved by both Parties prior to
any use or other publication.
(c) Concur and AMEX agree to jointly develop information about the
Co-Branded XMS Service relationship between Concur and AMEX to
be used in communications to AMEX Clients and to AXP/XMS
Customers.
5.2 Marketing Responsibilities of AMEX.
(a) AMEX shall provide Concur, at no cost to Concur reasonable
access to appropriate AMEX sales managers as may be mutually
agreed by the Parties in order to present information about the
Co-Branded XMS Service and to conduct the training referenced in
Section 4 hereof.
(b) AMEX, at no cost to Concur will undertake marketing programs and
efforts regarding the Co-Branded XMS Service as AMEX shall
determine from time to time.
(c) Upon receipt from Concur of the user manual described in Section
3.3 hereof, AMEX will provide customized branding to such manual
in accordance with the terms hereof and provide marketing edits
thereto. All marketing edits made by AMEX shall be subject to
Concur's reasonable approval prior to any distribution thereof
to AXP/XMS Customers. The approved manual (the "Quick Start
Guide") shall be printed by AMEX at no cost to Concur and shall
be made available for
7
8
distribution to AXP/XMS Customers. AMEX shall not use any of the
materials created by Concur and which AMEX receives from Concur
except as contemplated by this Agreement.
(d) AMEX agrees that AMEX shall neither market the Co-Branded XMS
Service to any third party except as provided in this Agreement.
AMEX agrees not to make any representations, warranties,
commitments or guarantees to AMEX Clients (including without
limitation AXP/XMS Customers) with respect to the Co-Branded XMS
Service (including its features and capabilities) that are
materially inconsistent with materials, representations,
warranties, commitments or guarantees provided by Concur.
6. PRICING, FEES & PAYMENT PROCEDURE.
6.1 Pricing and Allocation of Revenue.
(a) Pricing to the AXP/XMS Customer. Concur's standard licensing fees
for the Co-Branded XMS Service is listed as part of Exhibit A-2
hereto (the "Suggested Price List"). Concur's licensing fees do
not include any national, state or local sales, use, value added
or other taxes, customs duties or similar tariffs and fees which
Concur may be required to pay or collect upon the delivery of the
Co-Branded XMS Service or upon collection of the fees or
otherwise. Concur will provide AMEX with not less than thirty
(30) days notice of any adjustment to the Suggested Price List.
Although it is the intent of Concur that the Co-Branded XMS
Service be marketed at the prices on the Suggested Price List and
discounts therefrom, those prices are suggested prices only and
AMEX is entirely free to determine the actual price for the
Co-Branded XMS Service it markets to AXP/XMS Customers. Also
attached as part of Exhibit A-2 is Concur's base licensing fee
(the "Base Price List"). Concur agrees that the prices set forth
in the Base Price List will not exceed the lowest price at which
Concur makes any service similar to the Co-Branded XMS Service
available commercially on a standalone basis.
(b) Allocation of Revenue and Consulting Revenue.
(i) Collection of Revenue. Concur shall be responsible for
the collection and accounting of all Revenue and
Consulting Revenue.
(ii) Revenue Allocation. Concur shall be entitled to [*] of
all Revenue and AMEX shall be entitled to [*] of all
Revenue; provided, however, that any portion of the
Revenue attributable to licensing fees payable by any
AXP/XMS Customer to Concur shall be not less than [*] of
the prices stated on the Base Price List applicable to
such AXP/XMS Customer (the "Floor") and not greater than
[*] of the
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
8
9
Suggested Price List prices applicable to such AXP/XMS
Customer (the "Ceiling"). To the extent AMEX offers to
pay all or any portion of the licensing fee on behalf
of an AXP/XMS Customer which results in such AXP/XMS
Customer paying to Concur a licensing fee less than the
applicable price on the Base Price List, then AMEX
agrees to pay Concur the difference between (i)[*] and
(ii)[*] of the licensing fee actually paid by such
AXP/XMS Customer (such amount, the "Shortfall").
(iii) Consulting Revenue. The Parties acknowledge Concur's
expectation that its Burdened Costs of providing
consulting and similar services to AXP/XMS Customers
will exceed the associated consulting revenue of a
significant period of time. Concur will retain [*] of
Consulting Revenue from AXP/XMS Customers and will pay
the balance to AMEX.
(iv) The share of Revenue and Consulting Revenue described
herein shall continue so long as such Revenue or
Consulting Revenue is generated by an AXP/XMS Customer
with respect to the Co-Branded XMS Service,
irrespective of the termination of this agreement.
(c) Timing of Payments.
(i) With respect to Revenue actually received by Concur in
any calendar month, Concur agrees to remit to AMEX
AMEX's share of such Revenue as provided in subsection
(b)(ii) hereof no later than forty-five (45) days
following the end of such calendar month. Such
remittance shall be made by check or by wire transfer to
an account designated by AMEX in writing. Concur shall
pay interest at the rate of eighteen percent (18%) per
annum on all such amounts paid after the due date. Upon
remittance to AMEX of its share of the Revenue, Concur
shall be entitled to retain for its own account its
share of the Revenue as provided in subsection (b)(ii)
hereof.
(ii) With respect to Revenue actually received by Concur in
any calendar month, Concur shall, at the end of every
calendar month, calculate any Shortfall amounts payable
by AMEX. Concur shall invoice such Shortfall amounts and
forward such invoice, along with appropriate back-up
documentation, to AMEX. AMEX agrees to pay such invoiced
amount within forty-five (45) days of its receipt
thereof and to pay interest at the rate of eighteen
percent (18%) per annum on all such amounts paid after
such due date.
(d) Competitive Pricing. Concur agrees that, during the term of this
Agreement, if Concur enters into an agreement of similar scope
and general purpose with an AMEX Competitor regarding the
marketing or reselling of the a product generally similar to the
Co-Branded XMS Service and providing for a lower level of
revenue
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
9
10
to be paid or retained to Concur than [*] or lower prices in the
related base price list (or its functional equivalent) than as
provided on the Base Price List attached hereto, then this
Section 6.1 shall thereupon be amended to provide such lower
percentage to Concur on the Revenue thereafter payable to Concur
hereunder and/or to reflect such lower prices in the Base Price
List.
(e) International Venues. For purposes of this Agreement, Revenues
derived from international (i.e. non-U.S.A.) licensing of the
Co-Branded XMS Service shall be calculated in the same manner as
the determination with respect to domestic (U.S.A). Revenue
shall be converted into U.S. Dollars in a consistent manner and
in accordance with Concur's commercially reasonable practices.
6.2 Reporting. Concur will provide to AMEX a monthly report within thirty
(30) days following the end of each calendar month detailing the
Revenues received during such calendar month from AXP/XMS Customers
and indicating Shortfalls where applicable. Within thirty (30) days
after the end of each calendar quarter following the Service Launch
Date, Concur will provide a report, with appropriate back-up
documentation, to AMEX detailing all Consulting Revenues generated
during such calendar quarter, including without limitation, the
associated Burdened Costs.
6.3 Audit. Upon request from AMEX, Concur shall give AMEX reasonable
access and audit and verification documentation as AMEX may
reasonably request in order to assure Concur's compliance with the
terms of this Agreement including but not limited to data security.
Such requests shall be limited to the scope of this Agreement and
shall not be made more frequently than once in any four-month period.
Any audit must be conducted during the hours of 8 AM and 5 PM.
Notwithstanding the foregoing, if AMEX has reasonable grounds to
believe a breach of data security has occurred, AMEX reserves the
right to visit and audit the premises of Concur or its
subcontractors, unannounced, during normal business hours.
6.4 Implementation Fees. Implementation of the Co-Branded XMS Service,
including the establishment of links to G/L, will be provided by
Concur and billed to AXP/XMS Customers by Concur at its then standard
rates for such services.
6.5 Referral Payments to Concur. AMEX shall compensate Concur under the
terms and conditions specified in Exhibit D hereto in connection with
the referral to AMEX of leads for Corporate Card accounts.
7. TRADEMARKS AND TRADE NAMES.
7.1 Use of Parties Marks.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
10
11
(a) During the term of this Agreement, Concur authorizes AMEX to use
the trademarks provided by Concur from time to time during the
term of this Agreement in connection with AMEX's marketing,
advertisement and promotion of the Co-Branded XMS Service.
Concur may revoke or modify its authorization to AMEX from time
to time in its sole reasonable discretion. Nothing contained in
this Agreement shall give AMEX any interest in such trademarks.
AMEX agrees that it will not at any time during or after this
Agreement assert or claim any interest in or do anything which
may adversely affect the validity or enforceability of any
trademark or trade name belonging to or licensed to Concur. AMEX
will not register, seek to register or cause to be registered
any of Concur's trademarks without Concur's prior written
consent. AMEX agrees not to attach any additional trademarks or
trade designations to any Co-Branded XMS Service other than
those mutually agreed to by the Parties.
(b) During the term of this Agreement, AMEX authorizes Concur to use
the trademarks as provided by AMEX from time to time during the
term if this Agreement in connection with Concur's marketing,
advertisement and promotion of the Co-Branded XMS Service. AMEX
may revoke or modify its authorization to Concur from time to
time in its sole reasonable discretion. Nothing contained in
this Agreement shall give Concur any interest in such
trademarks. Concur agrees that it will not at any time during or
after this Agreement assert or claim any interest in or do
anything which may adversely affect the validity or
enforceability of any trademark or trade name belonging to or
licensed to AMEX. Concur will not register, seek to register or
cause to be registered any of AMEX's trademarks without AMEX's
prior written consent. Concur agrees not to attach any
additional trademarks or trade designations to any Co-Branded
XMS Service other than those mutually agreed to by the Parties.
7.2 Branding of the Co-Branded XMS Service. The Co-Branded XMS Service
shall be branded with a trademark identified by AMEX from time to
time during the term of the Agreement. Furthermore, AMEX and Concur
shall include the "XMS" logo and the designation "Powered by XMS" (or
other designation(s) determined by Concur and agreed to by AMEX) on
all printed and electronic marketing materials which references the
Co-Branded XMS Service. AMEX acknowledges and agrees that Concur will
include a Concur designation or logo on the screen of the software
delivered to AXP/XMS Customers as part of the Co-Branded XMS Service.
The size and placement of such reference shall be consistent with
such branding guidelines developed by the mutual agreement of the
Parties. Concur agrees to develop customized screens for the
Co-Branded XMS Service marketed and sold to AXP/XMS Customers that
include designations and/or logos determined by AMEX and consistent
with the branding guidelines developed by the Parties. In the event
the parties cannot agree on branding guidelines as required herein,
then the decision of the Steering Committee shall govern.
11
12
8. TERM AND TERMINATION.
8.1 This Agreement shall commence on the Effective Date and, unless
sooner terminated as provided in this Agreement, shall remain in full
force and effect for a term of eighteen (18) months following the
Service Launch Date (the "Initial Term"). Thereafter, this Agreement
shall automatically renew for successive two-year terms (each, a
"Renewal Term"), provided, however, that a Party may terminate this
Agreement on the expiration date of the Initial Term or any Renewal
Term by delivering written notice of termination to the other not
less than ninety (90) days before the expiration of such Initial Term
or Renewal Term.
8.2 Termination. This Agreement may be terminated at any time prior to
the expiration of its then current term, as follows:
(a) by either Party by written notice to the other Party if a
receiver shall have been appointed over the whole or any
substantial part of the assets of the other Party, a petition or
similar document is filed by the other Party initiating any
bankruptcy or reorganization proceeding or such a petition is
filed against the other Party and such proceeding shall not have
been dismissed or stayed within sixty (60) days after such
filing;
(b) by either Party upon written notice if the other Party has
breached the terms of this Agreement in any material respect and
fails to cure such breach within thirty (30) days after receipt
of written notice of such default;
(c) by AMEX upon written notice upon the acquisition of a
controlling interest in Concur by an AMEX Competitor;
(d) by AMEX upon written notice upon the appointment of an officer,
director or other designee of an AMEX Competitor to serve on the
Board of Directors of Concur; or
(e) by AMEX in the event Concur has not developed the Co-Branded XMS
Service for general commercial distribution to AXP/XMS Customers
by August 1, 1999.
12
13
8.3 Special Renegotiation Rights. With respect to the Revenue share
(described in Section 6.1(b)(ii) hereof) applicable to the Renewal
Terms, Concur reserves the right to renegotiate such Revenue share
upon written notice to AMEX no later than one hundred eighty (180)
days following the Service Launch Date. In the event AMEX and Concur
cannot agree to the term for a new Revenue share for the Renewal
Terms within one hundred eighty (180) day period following the
foregoing notice to AMEX, then, unless otherwise agreed, the
Agreement shall terminate at the expiration of the Initial Term.
8.4 Effect of Termination. Upon any termination or expiration of this
Agreement:
(a) For a period of one year after the date of termination, all
applicable books and records of Concur shall be made available
to AMEX for the purpose of determining compliance by Concur with
its obligations under this Agreement;
(b) Each Party shall immediately cease distribution of all items in
its possession which bear the trademarks of the other Party,
shall as promptly as is practicable cease all use of the
trademarks of the other Party and will not use any xxxx which is
confusingly similar to any trademarks of the other Party;
(c) Each Party shall return to the other Party marketing literature
and materials of the other Party in its possession or shall
destroy such items and certify their destruction to the other
Party; and
(d) Each Party's rights and obligations with respect to payments due
hereunder (including, without limitation, amounts due to AMEX
and Concur pursuant to Section 6.1) as well as the provisions of
Sections 6.2, 6.3, Sections 7, 8, 9, 10, 11, 12, 13 and 14,
shall survive termination of this Agreement.
8.5 Non-Solicitation.
(a) AXP/XMS Customers. During the term of this Agreement and for a
period of one (1) year thereafter, (i) Concur shall not solicit
any AXP/XMS Customer to become a customer of a corporate card
product offered by an AMEX Competitor, (ii) Concur shall not
solicit any AXP/XMS Customer to become a customer of a travel
and booking product offered by an AMEX Competitor. During the
period of exclusivity as described in Section 3.5, AMEX shall
not solicit any AXP/XMS Customer to become a customer of a
business and expense management service offered by a Concur
Competitor.
(b) Employees. During the term of this Agreement and for one (1)
year thereafter, the Parties agree not to solicit for employment
any employee of the other Party involved in the development,
marketing or sale of the Co-Branded XMS Service.
13
14
9. LIMITATIONS OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION, LOSS OF REVENUES, LOSS OF PROFITS or COST OF PROCUREMENT OF
SUBSTITUTE TECHNOLOGY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY TO ANY CLAIM OR
CAUSE OF ACTION WHETHER IN CONTRACT OR TORT, STRICT LIABILITY OR BREACH OF
WARRANTY, BUT SHALL NOT APPLY IF (A) A PRODUCT IS DETERMINED TO BE
DEFECTIVE AND TO HAVE CAUSED BODILY INJURY OR DEATH or (B) IF SUCH DAMAGES
ARE THE RESULT OF THE OTHER PARTY'S NEGLIGENCE OR WILLFUL MISCONDUCT.
THE PARTIES ACKNOWLEDGE THAT THIS SECTION 9 HAS BEEN INCLUDED AS A
MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT AND THAT
THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, BUT FOR THE
LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
10. REPRESENTATIONS AND WARRANTIES.
10.1 Due Authorization, etc. Each of Concur and AMEX represents and
warrants that (i) it has all right, power and authority to execute,
deliver and perform this Agreement and all agreements and documents
executed in connection herewith (the "Ancillary Documents"); (ii)
each of this Agreement and the Ancillary Documents have been duly
authorized, executed and delivered by it and is or when executed will
be, its legal, valid and binding obligations in accordance with their
terms; (iii) the entering into and performance of this Agreement and
the Ancillary Documents by it does not require the consent or
approval of any third party or governmental authority; and (iv) there
is no litigation, action at law or equity, suit, arbitral or
administrative proceeding, claim or to its knowledge, governmental
investigation presently pending or to its knowledge, threatened
against it or any of its Affiliates that would impair or otherwise
affect its ability to perform its obligations hereunder and
thereunder.
10.2 Intellectual Property Ownership.
(a) Concur hereby represents and warrants to AMEX that (i) Concur is
the owner of the Co-Branded XMS Service and the components
thereof, or otherwise has the right to sell, license and market
the Co-Branded XMS Service, as contemplated by the terms of this
Agreement, without infringing or violating any law, rule,
regulation, United States or foreign copyright, patent, trade
secret or other proprietary rights of any third party and (ii)
the grant of rights hereunder to AMEX does not violate or
constitute a default under any agreement to which
14
15
Concur is a party, nor shall the performance by AMEX hereunder
in accordance with the terms of this Agreement subject AMEX to
liability as a result of any such agreement.
(b) As used herein "Developed Materials" shall mean, hereunder, all
inventions, methods, techniques, works of authorship, computer
software, computer upgrades, computer programs, service
providers, vendors information, training materials,
telemarketing scripts, computer screens, reports, data, any
other proprietary or confidential information made, created,
developed or written hereunder and other intellectual property
created, developed or written in accordance with the activities
contemplated hereunder. In the event any Developed Material (i)
is fully paid for by AMEX and Concur has not provided material
creative or developmental input therein (including without
limitation provision of proprietary or confidential
information), then such Developed Material shall be deemed the
sole property of AMEX and any use thereof by Concur shall
require consent thereto by AMEX; (ii) is substantially paid for
by AMEX and Concur has had material creative or developmental
input therein (including without limitation provision of
proprietary or confidential information), then such Developed
Material shall be deemed the property of AMEX with Concur having
a non-exclusive, non-transferable and royalty-free right of use
thereof; (iii) is substantially paid for by Concur and AMEX has
had material creative or developmental input therein (including
without limitation provision of proprietary or confidential
information), then such Developed Material shall be deemed the
property of Concur with AMEX having a non-exclusive,
non-transferable and royalty-free right of use thereof; and (iv)
is fully paid for by Concur and AMEX has not provided material
creative or developmental input therein (including without
limitation provision of proprietary or confidential
information), then such Developed Material shall be deemed the
sole property of Concur and any use thereof by AMEX shall
require consent thereto by Concur. As used herein, "AMEX
Property" shall mean the Developed Material as described in (i)
and (ii) above; "Concur Property" shall mean the Developed
Material as described in (iii) and (iv) above.
(c) All Developed Materials shall be deemed Proprietary Information
(as defined in Section 11 hereof) and subject to the
confidentiality provisions of this Agreement.
(d) Nothing herein shall be construed to restrict, impair or deprive
Concur or AMEX of any of their respective rights or proprietary
interests in technology or products that existed prior to and
independent of the performance of their respective obligations
hereunder.
10.3 Intellectual Property. Concur represents and warrants to AMEX that,
to the best knowledge of Concur, it is unaware of any patents or
other third party rights which
15
16
cover the Co-Branded XMS Service and/or any component thereof. Concur
has not received any notices from any third party indicating an
infringement or other violation of third party intellectual property
rights.
10.4 Year 2000. Concur represents and warrants to AMEX that the Co-Branded
XMS Service and each component thereof have been and will be tested
and are and will be fully capable of providing accurate results using
data having date ranges spanning the twentieth (20th) and
twenty-first (21st) centuries (e.g., years 1900-2099). Without
limiting the generality of the foregoing, Concur represents and
warrants to AMEX that the Co-Branded XMS Service and each component
thereof shall (a) manage and manipulate data involving all dates from
the 20th and 21st centuries without functional or data abnormality
related to such dates; (b) manage and manipulate data involving all
dates from the 20th and 21st centuries without inaccurate results
related to such dates; (c) have user interfaces and data fields
formatted to distinguish between dates from the 20th and 21st
centuries; and (d) represent all data related to include indications
of the millennium, century and decade as well as the actual year.
The exclusive remedy of AMEX and the entire liability of Concur, for
breach of this Section shall be a right of indemnification under
Section 12 for its direct damages arising out of AXP/XMS Customers
claims, suits or proceedings related to such breach.
10.5 AXP/XMS Customer Warranty. EXCEPT AS SET FORTH IN THE AXP/XMS SERVICE
AGREEMENT OR EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, CONCUR
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE CO-BRANDED XMS SERVICE.
11. PROPRIETARY INFORMATION AND CONFIDENTIALITY.
11.1 Proprietary Information. The Parties intend to disclose and exchange
confidential, proprietary and trade secret, technical information,
technical and business plans, proposed products and marketing and
sales reports regarding their businesses and, (i) in the case of
Concur, internal processes related to the operation of the Co-Branded
XMS Service, the Suggested Price List and Base Price List and (ii) in
the case of AMEX, information provided by AMEX with respect to
internal AMEX processes and AXP/XMS Customers, including, without
limitation, their names, addresses (including e-mail), account and
telephone numbers and account information (the "Proprietary
Information"). Information with respect to AXP/XMS Customers
contained in the AXP/XMS Service Agreement shall be deemed
Proprietary Information of AMEX.
11.2 Obligation of Confidentiality. Each Party shall protect and keep
confidential any and all Proprietary Information of the other Party
embodied in any information disclosed
16
17
hereunder and shall not use, disclose or allow any third party access
to any such Proprietary Information, except to support or perform its
obligations under this Agreement. In furtherance and not in
limitation of the foregoing, each Party agrees to maintain the strict
confidentiality of any source code delivered by the other Party.
Furthermore, with respect to Proprietary Information that relates to
any AMEX Client, Concur agrees to comply, and cause its third party
contractor to comply, with the AMEX security principles attached
hereto as Exhibit E.
11.3 Limited Access. Each Party shall use its best efforts to ensure that
only employees and third parties whose duties give them a need to
know such Proprietary Information of the other Party shall have
access thereto. All such persons and entities shall be obligated to
treat the same as proprietary and confidential and the receiving
Party shall take such other measures to protect the confidentiality
of such Proprietary Information. Without limiting the generality of
the foregoing, each Party shall require any third party to whom it
discloses any Proprietary Information to sign a confidentiality
agreement, enforceable by the other Party, whereby such third party
agrees to be bound by the confidentiality provisions set forth in
Section 11.2.
11.4 Required Disclosure. If a Party or any of its employees, shall be
under a legal obligation in any administrative, governmental or
judicial circumstance involuntarily to disclose any Proprietary
Information of the other Party, it shall give the Party that owns
such Proprietary Information (the "Disclosing Party") prompt notice
thereof so that the Disclosing Party may seek an appropriate
protective order. If the Disclosing Party is finally unsuccessful in
obtaining such protective order and if the Party receiving such
Proprietary Information (the "Receiving Party") or any such employee
would, in the opinion of its counsel, be held in contempt or suffer
other censure or penalty for failure to disclose, disclosure pursuant
to the order or decree of an administrative, governmental or judicial
authority with jurisdiction over such Party may be made by the
Receiving Party or its employees without liability hereunder.
11.5 Permitted Disclosures. Notwithstanding the foregoing, neither Party
shall be liable to the other with regard to any disclosure of
Proprietary Information of the other Party which:
(a) was known to the Receiving Party, without restriction, at the
time of disclosure, as shown by the files of the Receiving Party
in existence at the time of disclosure;
(b) is disclosed with the prior written approval of the Disclosing
Party;
(c) was independently developed by the Receiving Party, without any
use of the Proprietary Information and without the assistance of
any employee or other agents of (or independent contractors
hired by) the Receiving Party who have been exposed to such
Proprietary Information;
17
18
(d) becomes known to the Receiving Party, without restriction, from
a source who obtained such information other than through the
breach of this Agreement by the Receiving Party or the breach of
any confidential or fiduciary obligations to the Disclosing
Party; or
(e) is required to be disclosed pursuant to law or in accordance
with judicial or other governmental order.
11.6 Remedies. The Parties agree that money damages would not be a
sufficient remedy for any breach of this Section 11 by Receiving
Party and the Disclosing Party shall be entitled, in addition to
money damages, to specific performance and injunctive relief and any
other appropriate equitable remedies for any such breach. Such
remedies shall not be deemed to be the exclusive remedies for a
breach of this Section 11 by Receiving Party but shall be in addition
to all other remedies available at law or in equity to Disclosing
Party. If a court or other authority determines that a Party has
materially breached its obligations under this Section 11, the other
Party will be entitled to payment of its legal fees and
disbursements, court costs and other expenses of enforcing, defending
or otherwise protecting its interests hereunder.
11.7 Survival. The obligations of confidentiality and limitations of use,
disclosure and access set forth herein shall survive the termination
of this Agreement.
12. INDEMNIFICATION.
12.1 By Concur. Concur agrees to indemnify, defend and hold harmless AMEX
and its Affiliates and their respective directors, officers,
employees and agents (collectively, the "AMEX Group"), from and
against any and all claims, suits, losses, damages and liabilities
(including reasonable attorney's fees and expenses) arising out of or
resulting from
(a) any third party claim, suit or proceeding and any settlement
thereof (including reasonable fees of attorneys and related
costs), to the extent based on a claim that the Co-Branded XMS
Service or Concur infringes the patent, copyright, trademark,
trade secret or other proprietary right of a third party;
(b) the intentional or negligent act or omission of Concur or its
officers, directors, employees, contractors or agents
(collectively, the "AMEX Agents") in the course of the
performance of Concur's duties and obligations under this
Agreement;
(c) the failure of Concur or its Agents, as the case may be, to
comply with the terms of this Agreement; or
(d) the failure of Concur (including without limitation its Agents
who perform on behalf of Company hereunder) to comply with its
obligations under any and all laws, rules or regulations
applicable to Concur, its Agent or the Co-Branded XMS Service,
as the case may be.
18
19
12.2 By AMEX. AMEX agrees to indemnify, defend and hold harmless Concur
and its Affiliates and their respective directors, officers,
employees and agents, from and against any and all claims, suits,
losses, damages and liabilities (including reasonable attorney's fees
and expenses) arising out of or resulting from
(a) any third party claim, suit or proceeding and any settlement
thereof (including reasonable fees of attorneys and related
costs), to the extent based on a claim that AMEX's intellectual
property incorporated into the Co-Branded XMS Service or the
marketing thereof infringes the patent, copyright, trademark,
trade secret or other proprietary right of a third party,
(b) the intentional or negligent act or omission of AMEX or its
officers, directors, employees, contractors or agents
(collectively, the "AMEX Agents") in the course of the
performance of Concur's duties and obligations under this
Agreement;
(c) the failure of AMEX or the AMEX Agents, as the case may be, to
comply with the terms of this Agreement; or
(d) the failure of AMEX to comply with its obligations under any and
all laws, rules or regulations applicable to AMEX.
12.3 Indemnification Procedure. If any action shall be brought against
either Party in respect of which indemnity may be sought from the
other Party pursuant to the provisions of this Section 12 ("Claim"),
the indemnified Party shall promptly notify the indemnifying Party in
writing, specifying the nature of the Claim, the total monetary
amount sought, as well as such relief as is sought therein. The
indemnified Party shall cooperate with the indemnifying Party at the
indemnifying Party's expense in all reasonable respects in connection
with the defense of the Claim if by a third party. If the Claim from
a third party is solely for monetary damages or a claim of
infringement, the indemnifying Party shall, upon written notice to
the indemnified Party, undertake the defense or settlement of the
Claim; in all other instances, the indemnified Party, upon written
notice to the indemnifying Party, may undertake the defense or
settlement of the Claim. In the event the indemnified Party
undertakes the defense or settlement of the Claim, the indemnifying
Party shall have the right to employ separate counsel at its own
expense and participate in the defense of the Claim. The indemnifying
Party shall reimburse the indemnified Party upon demand the judgment
of a court of competent jurisdiction or pursuant to a bona fide
compromise or settlement of claims, demands or actions and shall
reimburse the indemnified Party upon demand for any payments of
attorney's fees and related expenses made by the indemnified Party. A
Party's failure to give timely notice or to provide copies of
documents or to furnish relevant data in connection with any claim
for indemnification shall not constitute a defense (in part or in
whole) to any claim for indemnification for such Party, except and
only to the extent that such failure shall result in any prejudice
19
20
to the indemnifying Party; provided, that any such compromise or
settlement must be approved by the indemnifying Party and any such
compromise or settlement must be approved by the indemnified Party,
which approval shall not be unreasonably withheld.
13. AXP/XMS CUSTOMER LISTS. Subject to Section 11 hereof, AMEX shall have all
rights and interests to the list of AXP/XMS Customers and the information
contained thereon. Concur shall not solicit AXP/XMS Customers for any
reason other than in accordance with the terms of this Agreement, or as
requested by AMEX in writing. Notwithstanding the foregoing, the Concur
may market products and services to its own customers and potential
customers provided that (A) in any such marketing, such customer is not
identified in any manner as an AMEX Client and (B) the source of the
information used by the Concur to target such customer or potential
customer is neither AMEX nor the lists provided by or on behalf of AMEX
under this Agreement. The terms of this Section 13 shall survive the
termination of this Agreement.
14. GENERAL.
14.1 Entire Agreement; Amendment. This Agreement, together with any
exhibits attached hereto, contains the complete and exclusive
understanding and agreement of the Parties with respect to its
subject matter and supersedes, merges and replaces all prior
writings, discussions and understandings relating to such subject
matter. This Agreement may only be amended by a written agreement and
signed by authorized representatives of both Parties.
14.2 Governing Law. This Agreement shall be governed by and construed in
accordance with, the laws of the State of New York, excluding those
laws that direct the application of the laws of another jurisdiction.
The Parties hereby consent to the exclusive jurisdiction of any State
or Federal court located in New York County. Neither Party shall
knowingly take or fail to take any action that might cause it or the
other Party to be in violation of any law or regulation of the United
States, including the United States Foreign Corrupt Practices Act.
14.3 Force Majeure. Neither Party shall be liable for any delay or failure
to meet its obligations pursuant to this Agreement due to natural
circumstances beyond its reasonable control, including, but not
limited to war, riots, insurrection, civil commotion, fire, flood,
storm or inability to obtain necessary labor, materials or
manufacturing facilities as a direct result of such natural
disasters.
14.4 Severability. If any term or provision of this Agreement is found to
be invalid or unenforceable for any reason, it shall be adjusted
rather than avoided, if possible, so as best to accomplish the
objective of the Parties to the extent possible. In any event, the
remaining terms and provisions shall be deemed valid and enforceable.
It is
20
21
expressly understood and agreed that each provision of this Agreement
providing for a limitation of liability disclaimer or limitation of
warranties or exclusion of damages is intended by the Parties to be
severable and independent of any other provisions and to be enforced
as such.
14.5 Assignment. This Agreement shall be binding on the Parties and on
their successors and assigns. Except as expressly provided herein,
neither Party shall transfer, assign or subcontract any right or
obligation hereunder without the prior written consent of the other
Party, which consent shall not be unreasonably withheld.
14.6 Waiver. The failure of either Party any time to require performance
by the other Party of any provision hereof shall not affect in any
way the full right to require such performance at any time
thereafter; nor shall the waiver by either Party of a breach of any
provision hereof be taken or held to be a waiver of the provision
itself.
14.7 Attorneys' Fees. In the event of any suits and actions with respect
to this Agreement, including actions for indemnification under
Section 12, the prevailing Party shall be entitled to recover
reasonable attorneys' fees and other costs and expenses incurred in
resolving such dispute.
14.8 Cooperation. Each Party to this Agreement agrees to execute and
deliver all documents and to perform all further acts and to take
any and all further steps that may be reasonably necessary to carry
out the provisions of this Agreement and the transactions
contemplated hereby.
14.9 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but which together shall
constitute a single instrument.
14.10 Notices. All notices relating to this Agreement shall be in writing,
signed by the Party giving or making such notice or communication
and shall be delivered by: (a) personal delivery; (b) telecopier
facsimile transmission; or (c) by postage-prepaid certified or
registered mail (airmail if available), return receipt requested.
Notices shall be sent to the address of the other Party set forth
below or such other address as either Party may specify in writing
in accordance with this Section and shall be deemed given upon
personal delivery, five (5) business days after deposit in the mail
or upon acknowledgment or actual receipt of facsimile transmission:
To Concur:
S. Xxxxxx Xxxxx
President and CEO
Concur Technologies, Inc.
(formerly Portable Software Corporation)
21
22
6222 - 185th NE
Xxxxxxx, XX 00000
with a copy to:
Fenwick & West LLP
0 Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
To AMEX:
[*]
Vice President
American Express Travel Related Services
Company, Inc.
000 Xxxxxxxx (00xx Xxxxx)
Xxx Xxxx, XX 00000
with a copy to:
General Counsel's Office
American Express Travel Related Services
Company, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: [*]
Counsel, Corporate Services
14.11 Voluntary Preliminary Dispute Resolution.
(a) In the event of any controversy or claim arising out of or
relating to this Agreement, the Steering Committee will first
attempt in good faith to resolve the matter. If the Steering
Committee is unable to resolve such matter, the Parties will
attempt in good faith to resolve such matter by negotiations
between senior executives of the Parties who have settlement
authority but do not have direct responsibility for the
administration of this Agreement. If the Parties are unable to
resolve a controversy or claim within sixty (60) days after
written submission to the Steering Committee, then the matter
may be submitted to a court of competent jurisdiction. All
negotiations conducted pursuant to this Section 14.11 are
confidential and shall be treated as compromise and settlement
negotiations for purposes of the Federal Rules of Evidence and
state rules of evidence;
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
22
23
(b) This Section 14.11 sets forth the exclusive method for
adjudicating disputes between the Parties arising out of or
relating to this Agreement; provided that nothing in this
Section 14.11 shall prevent a Party from applying to the
federal or state courts to obtain injunctive relief pending
resolution of the dispute through the voluntary dispute
resolution procedures set forth herein and to join in any such
action such other claims as may be required to be brought by
applicable joinder rules.
14.12 No Creation of Partnership. This Agreement does not create or
constitute a partnership for tax or other purposes. All decisions
regarding effectuation this Agreement and any action to be taken
hereunder shall be solely at the discretion of the Party making such
decision. Neither Party shall hold itself out as an agent of the
other. Neither Party shall have any authority to bind or obligate
the other in any manner.
14.13 Access to AMEX Client Lists. The access provided by AMEX to Concur
of certain lists of AMEX Clients hereunder shall be deemed provided
to Concur at no additional charge.
14.14 Insurance.
(a) During the term of this Agreement and for any period that the
Service is made available to Customers (including without
limitation Enrollees), Concur agrees to maintain, at its own
expense, insurance in at least the following amounts (or such
reasonable higher amounts upon which the parties may hereafter
agree) to insure against both Concur's and AMEX's risk of loss
in connection with the services described in this Agreement:
(i) commercial general liability insurance, including coverage
for contractual liability, fire and casualty, business
interruption and complete operations, in the amount of $10
million per occurrence with at least $5 million personal injury
coverage; and (ii) errors and omissions liability insurance
covering the acts, errors, omissions and infringement of Concur
in the amount of at least $2 million per occurrence with an
annual aggregate of $10 million.
(b) Concur shall provide AMEX with certificates of insurance or
adequate proof of the foregoing insurance to AMEX on the date
hereof and within five (5) days of the issuance of a renewal
certificate for each such insurance policy. The commercial
general liability insurance policy shall name AMEX and its
affiliate companies as additional insureds with respect to the
Service. All insurance policies required hereunder shall
contain a provision stating the name and address of AMEX and
that AMEX is to be notified in writing by the insurer at least
thirty (30) days prior to cancellation of or a material change
in, any policy issued by such insurer.
23
24
(c) All policies required hereunder shall be maintained with
insurers acceptable to AMEX. AMEX reserves the right to
disallow coverage from any insurer that does not maintain a
rating of B+++ or higher from A.M. Best.
14.15 Trademarks. The use by a Party of any logo, trademark or other xxxx
owned by the other Party or Affiliates of the other Party shall be
strictly limited to each specific right to use articulated from time
to time.
14.16 Headings. The headings contained in this Agreement are solely for
the purpose of reference, are not part of the agreement of the
Parties and shall not in any way affect the meaning or
interpretation of this Agreement.
24
25
IN WITNESS WHEREOF, the Parties hereto agree to the provisions set forth above
and have executed this Agreement as of the Effective Date.
CONCUR TECHNOLOGIES, INC.
(formerly known as Portable Software Corporation)
By: /s/ XXXXX XXXXX
----------------------------------
Name: Xxxxx Xxxxx
--------------------------------
Title: President & CEO
-------------------------------
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
By: /s/ XX XXXXXXXX
----------------------------------
Name: Xx Xxxxxxxx
--------------------------------
Title: President Corporate Services
-------------------------------
25
26
LIST OF EXHIBITS
Exhibit A-1 Description of the Co-Branded XMS Service
Exhibit A-2 Suggested Price List and Base Price List
Exhibit B Support
Exhibit C Exclusive Features
Exhibit D Lead Referral Compensation Payable By AMEX to Concur
Exhibit E AMEX Security Principles
Exhibit F Form of AXP/XMS Service Agreement
Exhibit G Data Security Agreement
27
EXHIBIT A-1
DESCRIPTION OF THE CO-BRANDED XMS SERVICE
The Co-Branded XMS Service is an Internet travel expense management outsourcing
solution that automates the entire travel expense management process - from
expense report preparation and approval to processing and data analysis. The
Co-Branded XMS Service is powered by the Xpense Management Solution - a software
developed and owned by Concur -- and the hardware, application, operations, and
Internet connections are hosted by a third party web hosting partner. Automated
web reporting and payment services are optionally available.
The Co-Branded XMS Service is based on the XMS version 3.01 and includes the
Exclusive Features developed from time to time in accordance with the terms of
the Agreement.
28
EXHIBIT A-2
-----------------------------------------------------------------------------------------------------------------------------
PLEASE NOTE THAT THIS IS NOT A FINAL PRICE SHEET
-----------------------------------------------------------------------------------------------------------------------------
WE ARE SIX MONTHS AWAY FROM DELIVERY AND PRICE IS SUBJECT TO CHANGE UP OR DOWN SLIGHTLY
-----------------------------------------------------------------------------------------------------------------------------
# OF EXPENSE MONTHLY PER PER IMPLEMENTATION & CONSULTING &
MARKET REPORTS PER MINIMUM TRANSACTION TRANSACTION PER PAYMENT PER PAYMENT BASIC TRAINING CUSTOM
SEGMENT YEAR FEE LIST FEE LIST(1) FEE BASE(2) FEE COST FEE LIST LIST(3) TRAINING LIST
-----------------------------------------------------------------------------------------------------------------------------
Upper Large [*] [*] [*] [*] [*] Hourly rate
-----------------------------------------------------------------------------------------------------------------------------
Large [*] [*] [*] [*] [*] Hourly rate
-----------------------------------------------------------------------------------------------------------------------------
Upper Middle [*] [*] [*] [*] [*] Hourly rate
-----------------------------------------------------------------------------------------------------------------------------
Middle [*] [*] [*] [*] Hourly rate
-----------------------------------------------------------------------------------------------------------------------------
Lower Middle [*] [*] [*] [*] Hourly rate
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
There is a reasonable chance that we will break the Upper Large market into two categories with 2 different price structures
There is no fee paid to American Express on [*] THIS IS DONE AT [*]
-----------------------------------------------------------------------------------------------------------------------------
Monthly Minimum Fee Helps to Support:
-----------------------------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------------------------
----------------
(1) Suggested Price List
(2) Base Price List
(3) This applies to "Best Practices" solutions.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
29
-----------------------------------------------------------------------------------------------------------
Implementation & Basic Training Includes:
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
29
30
EXHIBIT B
SUPPORT
{See Support as described in the Prior Agreement}
31
EXHIBIT C
EXCLUSIVE FEATURES
Proposal for Exclusive Integration Features
================================================================================
OBJECTIVE:
AMEX and Concur wish to provide AXP/XMS Customers with a set of exclusive
features (identified in the body of this Agreement as the "Exclusive Features")
for the Co-Branded XMS Service which will enhance the relationship, provide
competitive advantage for the RTS value proposition, and position the joint
offering as the market leading solution.
APPROACH:
- This document proposes "rolling exclusivity" for these features, i.e.
available only to AMEX Clients for a specific period of time described
in the Agreement following general release. This document proposes the
first set of features governed by rolling exclusivity. The feature set
was developed jointly by AMEX and Concur.
- Although the initial focus is on the domestic marketplace, exclusive
features apply globally, where appropriate.
- The proposal follows the guiding principle to implement exclusive
features; neither party will remove functionality that is currently
available.
- The proposal addresses product integration between Concur and AMEX
products and services. It does not recommend integrating efforts for
the business relationship (e.g. implementation, pricing, resource
sharing).
- This draft includes a matrix of proposed features. Potential
availability of features, impact on the current feature integration
plans, and requirements, which are external to Concur, have not yet
been identified.
SUMMARY:
- The majority of proposed features were taken from the XMS Integration
Feature List, which describes planned integration between Concur and
AMEX products and services.
- Two features are already on the product plan. One feature (travel
integration) will be delivered Oct 98. [*] are tentatively slated for
1Q99.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
30
32
JOINTLY RECOMMENDED FEATURES
FEATURE DESCRIPTION OF EXCLUSIVE FEATURE/CLIENT BENEFIT
------- -----------------------------------------------
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
UNDER INVESTIGATION
AMEX and Concur agree that the following feature is of value to the
relationship. Agreement on this feature may be contingent on agreement with
multiple divisions within AMEX. If this agreement is reached, this feature will
be added to the JOINTLY RECOMMENDED FEATURES list above.
FEATURE DESCRIPTION OF EXCLUSIVE FEATURE/CLIENT BENEFIT
------- -----------------------------------------------
[*] [*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
2
33
EXHIBIT D
Lead Referral Compensation Payable By AMEX to Concur
The following are the terms and conditions for payment to Concur in connection
with lead referrals to AMEX of entities that have an actual business
relationship with Concur for the provisions of a service or product similar to
the Co-Branded XMS Service and which are interested in the American Express(R)
Corporate Card system and the American Express Business Travel Account program
(such entities, a "Potential Client"). All applications are subject to AMEX
approval.
Concur may, in writing and containing such information as AMEX shall reasonably
require from time to time, refer to AMEX a Potential Client for purposes of
AMEX's solicitation of such Potential Client for applications for a new
Corporate Card account ("Corporate Card Account")or new Business Travel Account
("BTA"). AMEX will approve or reject such referrals in accordance with
procedures it establishes from time to time. AMEX may, in its sole option,
choose or decide not to solicit such Potential Client.
If, during the term of the Agreement, AMEX establishes a new Corporate Card
Account or new BTA with a Potential Client which conforms with the conditions
set forth below (a "Qualified Lead"), AMEX agrees to pay Concur a one-time
incentive fee in accordance with the terms set forth below.
In order for a referred Potential Client to be deemed a Qualified Client, all of
the following conditions must be satisfied:
(i) the Potential Client must not have any existing or prior account
relationship with AMEX;
(ii) the Potential Client must have an existing business relationship with
Concur for the provision of a service or product similar to the
Co-Branded XMS Service;
(iii) [*] month period prior to the date AMEX receives such referral;
(iv) the Potential Client cannot be an entity in the public sector;
(v) Concur must not have offered or granted to the Potential Client, directly
or indirectly, any discount or rebate from the amount of any fees the
Potential Client may be obligated to pay AMEX in connection with a
Corporate Card Account or BTA; and
(vi) Concur must, at the request of AMEX, assist AMEX in the solicitation of
the Potential Client for a Corporate Card Account or a BTA.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
34
If all of the preceding conditions are satisfied, then the Potential Client will
be considered a "Qualified Client" hereunder and thereby qualify Concur for the
following one-time incentive fee with respect to each Qualified Client that
establishes a new Corporate Card Account with AMEX:
1-9 Cards.................................................. [*] per Card
10-99 Cards................................................ [*] per Account
100-499 Cards.............................................. [*] per Account
500-999 Cards.............................................. [*] per Account
1,000 + Cards.............................................. [*] per Account
Also during such term, Concur will be entitled to a one-time incentive fee of
[*] for each Qualified Client that establishes a new BTA.
Any incentive fee payable by AMEX will be based on the BTA or Corporate Card
Account as it exists three (3) months following the actual setup of the
respective account.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
5
35
EXHIBIT E
AMEX SECURITY PRINCIPLES
INFORMATION SECURITY REQUIREMENTS
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
36
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
2
37
DATA SECURITY RECOMMENDED CONTROLS AND PROCEDURES
For Concur and its third party contractors which has access to AMEX's
Proprietary Information, the following are recommended security controls and
procedures for the sites which house such Proprietary Information:
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
3
38
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
4
39
EXHIBIT F
FORM OF AXP/XMS SERVICE AGREEMENT
40
EXHIBIT G
DATA SECURITY AGREEMENT
This Data Security Agreement (the "Agreement") is entered into by and between
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. ("Amexco") and CONCUR
TECHNOLOGIES, INC. (formerly known as Portable Software Corporation), a
Washington corporation ("Service Organization").
Amexco hereby agrees to supply, and provide Service Organization with access to,
data (hereinafter referred to as "Files") containing proprietary information of
Amexco, and/or its parent company, subsidiaries and affiliates from time to time
to the Service Organization subject to the following terms and conditions.
I. GENERAL CONDITIONS
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
41
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
2
42
III. GOVERNING LAW AND INTERPRETATION
This Agreement and the rights and obligations of the parties hereto
shall be governed by and construed in accordance with the laws of the
State of New York. Headings are for reference only and are not intended
to affect the meaning of any terms. If any provision of this Agreement
is held invalid, illegal or unenforceable, the remaining provisions
will remain unimpaired.
IV. ENTIRE AGREEMENT
No modification, amendment, supplement to or waiver of this Agreement
or any of its provisions shall be binding upon the parties hereto
unless made in writing and duly signed by both parties. This Agreement
shall become effective as of __________, 1998.
ACCEPTED AND AGREED TO:
Signature:___________________________
Printed Name:________________________
Title:_______________________________
TO BE COMPLETED BY AMEXCO DATA SECURITY ONLY
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
SIGNATURE:
---------------------------------------
PRINTED NAME: Xxxxxx X. Xxxxxxxx
-----------------------------------
TITLE: Senior Director - Worldwide Data Security
------------------------------------------
3
43
ADDENDUM A
(Please provide the name, address, contact, and telephone number for any
companies listed.)
4
