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EXHIBIT 10.11
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement ("Agreement") is made
effective December 22, 1998 ("Effective Date") by and between Niku Corporation,
a Delaware corporation with offices at 000-X Xxxxxxx Xxxxxx, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000 ("Niku"), and Sybase, Inc., a Delaware corporation, with
offices at 0000 Xxxxxxxx Xxx., Xxxxxxxxxx, Xxxxxxxxxx 00000 ("Licensee").
1. DEFINITIONS.
1.1 "Affiliated Company" means a business entity or entities
controlled by, under common control with or controlling a party
to this Agreement. Such business entity or entities will be
considered affiliated only so long as such control exists.
1.2 "Authorized Users" means the employees or agents of Licensee who
are authorized to use the Software, as defined in Exhibit A.
1.3 "Release(s)" means the releases of the Software to be delivered
to Licensee under this Agreement, as specified in Exhibit A.
1.4 "Software" means the binary code versions of the Niku software
products specified in Exhibit A.
1.5 "Services" means the implementation services for the Software to
be provided to Licensee by Niku under this Agreement, as more
fully described in Exhibit B.
1.6 "Statement of Work" means a document describing the Services to
be provided to Licensee by Niku and meets the formal
requirements stated in Exhibit B.
2. DELIVERY AND SERVICES.
2.1 Niku will use reasonable efforts to deliver the Software to
Licensee according to the delivery terms specified in Exhibit A.
2.2 After delivery of the Software and pursuant to a mutually agreed
schedule, Niku will provide Licensee with the Services,
including the Initial Services (as defined in Exhibit B), at
Licensee's place of business in accordance with Exhibit B and
the terms of each Statement of Work. Acceptance of the Software
will be governed by the Statement(s) of Work and any amendments
thereto subsequently adopted by the parties.
3. LICENSE.
3.1 GRANT. Subject to the payment of the License Fee and compliance
with the other terms of this Agreement, Niku grants Licensee a
nonexclusive, nontransferable right and license to make, install
and use such copies of the Software on server computer systems
as are reasonably necessary to provide access and use by
Authorized Users from client computer systems. Licensee may make
and
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maintain such copies of the installed Software as are reasonably
necessary for archival and back-up purposes. To the extent the
Software incorporates any software licensed by Niku from a third
party, Niku grants Licensee a sublicense that is co-extensive
with the foregoing rights to Software. Licensee is expressly
prohibited from copying or transferring the Software to a third
party for any purpose other than off-site storage of archival or
back-up copies. Licensee agrees not to produce a source listing,
decompile, disassemble, or otherwise reverse engineer the
Software.
3.2 PROPRIETARY NOTICES. Licensee must reproduce and shall not
remove or obscure any notices or markings, including without
limitation, copyright, trademark, or confidentiality notices, or
ownership notices on Software and its accompanying
documentation, including any screen displayed by the Software.
3.3 RESERVATION OF RIGHTS. Niku retains rights in and to the
Software not specifically granted to Licensee hereunder, and any
uses by Licensee of the Software, or any part thereof, beyond
the scope permitted by this Agreement shall constitute a
material breach of this Agreement.
3.4 COMPLIANCE. Niku will have the right to have the Software
inspected at Licensee's facility as reasonably necessary to
verify that Licensee's use of the Software is limited to
Authorized Users. Niku will provide Licensee with reasonable
notice prior to any inspections. The inspections will be
conducted by an independent accounting firm reasonably
acceptable to Licensee. Niku will be limited to conducting one
(1) such inspection in any twelve (12) month period. The
accounting firm shall protect the confidentiality of Licensee's
information and abide by Licensee's reasonable security
regulations. Niku will bear all costs and expenses associated
with the exercise of these rights, unless such inspection
reveals that Licensee is not in compliance with this Agreement,
in which case, Licensee agrees to pay Licensor the reasonable
costs of such inspection plus any additional license fees
related to unauthorized use of the Software.
4. LICENSE FEE. Licensee will pay Niku license fees for the Software (the
"License Fee") in the amount and according to the terms specified in
Exhibit A. In addition to the License Fee, Licensee will pay any
applicable shipping charges, and sales, use, value-added or similar
taxes, tariffs or governmental charges, excluding any taxes based on
Niku's net income. Unless otherwise specifically provided otherwise in
Exhibit A: (i) the License Fee will be due and payable in full within
thirty (30) days after receipt of the initial release of the Software by
Licensee; and (ii) a late charge of one and one half percent (1.5%) per
month or the highest rate permitted by law, whichever is lower, will
apply to any overdue balances.
5. MAINTENANCE. Subject to the payment of annual maintenance fees and entry
into a separate Maintenance Agreement, Niku will provide Licensee with
technical support and maintenance on terms no less favorable to Licensee
than those of the form of agreement
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attached as Exhibit C. The amount of the annual maintenance fees and
payment terms are specified in Exhibit A.
6. TERM AND TERMINATION.
6.1 TERM. This Agreement commence on the Effective Date and will
remain in force and effect unless terminated in accordance with
this Article.
6.2 TERMINATION. This Agreement may be terminated as follows:
6.2.1 By either party upon sixty (60) days written notice
specifying breach if the other party fails to comply
with any of the material terms or conditions of this
Agreement unless, within the period of notice, all
specified breaches have been cured.
6.2.2 By Niku immediately upon written notice in the event of
the direct or indirect assumption of control of
Licensee, or of substantially all of Licensee's assets,
by any government, governmental agency or any third
party engaged in the development, licensing, or
distribution of business applications software products
which Niku deems to be in direct or indirect competition
with any Niku software products or component
technologies.
6.3 EFFECT OF TERMINATION FOR LICENSEE'S BREACH. In the event of
termination of this Agreement due to a breach by Licensee, the
rights and licenses granted to Licensee will immediately
terminate and Licensee will have no further right to use the
Software. Within thirty (30) days after termination, Licensee
must return all copies of the Software in its possession or
control to Niku, or permanently destroy or disable all such
copies. Promptly after return or destruction of all such copies,
a duly authorized officer of Licensee must certify to Niku in
writing that Licensee has destroyed or returned all copies of
the Software.
6.4 EFFECT OF TERMINATION FOR NIKU'S BREACH. In the event of
termination of this Agreement due to a breach by Niku, the
rights and licenses granted to Licensee will survive to the
extent necessary for Licensee to using the Software as permitted
under this Agreement. Such continuing rights are subject to
Licensee's continued compliance with the terms of this
Agreement, including payment of any outstanding portion of the
License Fee. Nothing will require Niku to provide any support or
maintenance to Licensee after termination.
6.5 SURVIVAL. Rights and obligations specified in Articles 1, 3, 6,
7, 8, 9, 10 and 11 will survive and remain in effect after
termination hereof.
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7. CONFIDENTIALITY.
7.1 The parties may disclose technical, product, financial and
business information to each other under this Agreement which
the disclosing party (the "Discloser")considers to be
confidential ("Confidential Information"). Confidential
Information shall be limited to information clearly marked as
confidential, or information which is disclosed verbally and
identified as confidential in a writing delivered to Licensee
within thirty (30) days of disclosure.
7.2 The party receiving Confidential Information (the "Receiver")
will not reproduce in any form or provide, disclose, or give
access to Confidential Information to any third party, or to any
employee or agent not having a legitimate need to know it, and
shall not use the Confidential Information for any purpose other
than performing its obligations and exercising its rights under
this Agreement.
7.3 This Agreement imposes no obligation upon the Receiver with
respect to Confidential Information which it can establish by
legally sufficient evidence: (i) was in the possession of, or
was known by, Receiver prior to its receipt from Discloser,
without an obligation to maintain its confidentiality; (ii) is
or becomes generally known to the public without violation of
this Agreement; (iii) is obtained by Receiver from a third party
having the right to disclose it, without an obligation to keep
such information confidential; or (iv) is independently
developed by Receiver without the use of Confidential
Information and without the participation of individuals who
have had access to the Confidential Information.
7.4 Each party retains ownership of its respective Confidential
Information. A Receiver does not acquire any rights in
Confidential Information under this Agreement, except the
limited right to use described above.
7.5 The parties' confidentiality obligations with respect to the
Confidential Information shall survive the termination of this
Agreement and will continue for a period of five (5) years from
the Effective Date, provided that the obligation to maintain the
confidentiality of any Niku or Licensee source code shall be
perpetual.
8. WARRANTY AND DISCLAIMER.
8.1 Niku warrants that the Software will correctly record, store,
process and calculate any information dependent on or relating
to dates on or after January 1, 2000, and will do so in the same
manner, and with the same functionality, data integrity and
performance, as such Software records, stores, processes,
calculates and presents calendar dates on or before December 31,
1999. All claims related to the above Year 2000 warranty must be
made no later than January 15, 2001. The ability of the Software
to perform in the manner described above is dependent upon the
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receipt of correctly processed and transmitted data from and by
all non-Niku supplied products (such as hardware, software and
firmware) that the Licensee uses in connection with the
Software.
8.2 OTHER THAN THE EXPRESS WARRANTY OF SECTION 8.1, NIKU DOES NOT
MAKE AND DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OR
CONDITIONS WITH RESPECT TO SOFTWARE INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. No agent of Niku is authorized to incur
warranty obligations on behalf of Niku or modify these
limitations.
9. INDEMNITY.
9.1 INDEMNIFICATION BY NIKU. Niku will defend and indemnify Licensee
against a claim that the Software infringes a United States
trade secret, copyright, or patent, provided that: (i) Licensee
notifies Niku in writing within sixty (60) days of the claim;
(ii) Niku has sole control of the defense and all related
settlement negotiations; and (iii) Licensee provides Niku with
the assistance, information, and authority reasonably necessary
to perform the above. Reasonable out-of-pocket expenses incurred
by Licensee in providing such assistance will be reimbursed by
Niku.
9.2 EXCLUSIONS. Niku shall have no liability for any claim of
infringement based on: (i) use of a superseded release, or a
release altered by Licensee, of some or all of the Software or
any modification thereof furnished under this Agreement
including, but not limited to, Licensee's failure to use
corrections, fixes, or enhancements within six (6) months of the
time they are first made available by Niku; (ii) the
combination, operation, or use of some or all of the Software or
any modification thereof with information, software,
specifications, instructions, data, or materials ("Material")
not furnished by Niku if the infringement would have been
avoided by not combining, operating, or using the Software or
the modification thereof, with such Material; (iii) any change,
not made by Niku, to Software or any modification thereof; or
(iv) Licensee's misuse of the Software or any modification
thereof.
9.3 If the Software is held or is believed by Niku to infringe, Niku
shall have the option, at its expense, to: (i) modify the
Software to be non-infringing; (ii) obtain for Licensee a
license to continue using the Software; or (iii) terminate this
Agreement and refund a pro rata portion of the License Fee.
SECTIONS 9.1 THROUGH 9.3 STATE NIKU'S ENTIRE LIABILITY AND
LICENSEE'S EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS RELATED TO THE SOFTWARE.
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10. LIMITATION OF LIABILITY.
10.1 LIMITATIONS. Except for express undertakings to indemnify,
breach of obligations concerning the use of Confidential
Information, and to the extent not prohibited by applicable law:
10.1.1 EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER FOR CLAIMS
RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT OR IN
TORT, WILL BE LIMITED TO THE LICENSE FEE PAID AND OWING
BY LICENSEE FOR THE SOFTWARE.
10.1.2 NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT,
INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA
OR OTHER ECONOMIC ADVANTAGE, HOWEVER IT ARISES, WHETHER
FOR BREACH OR IN TORT, EVEN IF THAT PARTY HAS BEEN
PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10.1.3 Liability for damages will be limited and excluded, even
if any exclusive remedy provided for in this Agreement
fails of its essential purpose.
10.2 ALLOCATION OF RISK. The parties acknowledge that the foregoing
limitations of liability represent a reasonable and negotiated
allocation of risk as between the parties, that these
limitations constitute an integral part of this Agreement, and
that absent these limitations the parties would not have
executed this Agreement. These limitations will apply
notwithstanding the failure of essential purpose of any limited
remedy provided herein.
11. SOURCE CODE ESCROW. If elected by Licensee, Niku will deposit the
current (and, to the extent requested, future) source code for the
Software in escrow with a reputable third party escrow agent. Niku will
make the initial deposit within thirty (30) days from receipt of a
written notice of election from Licensee. The source code will be
released to Licensee if (i) Niku ceases operations, files a petition for
relief in bankruptcy, or is otherwise adjudged insolvent in a court of
law; or (ii) Niku rejects or fails to perform it obligations under this
Agreement. Current source code and associated documentation will be
stored along with the binary code versions of the Software delivered
hereunder. Costs of establishing and maintaining the escrow account for
the Software will be borne by Licensee provided that, in the event that
Niku establishes another escrow account for the same version of the
Software escrowed hereunder for which Niku bears some or all of the
costs, Licensee will be made a beneficiary of such other escrow account
if a reduction in costs to Licensee would result. In the event of the
release of the source code from the escrow agent, Licensee will have a
perpetual, worldwide right and license to use, modify, and copy the
source code for the sole purpose of maintaining the Software for the
uses contemplated hereunder.
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12. GENERAL.
12.1 NOTICES. All written notices required by this Agreement must be
delivered in person or by means evidenced by a delivery receipt
to the address specified below or as otherwise notified in
writing and will be effective upon receipt.
To Niku: To Licensee:
Niku Corporation Sybase, Inc.
000-X Xxxxxxx Xxxxxx 0000 Xxxxxxxx Xxx.
Xxxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: President and CEO Attn: General Counsel
12.2 GOVERNING LAW. Any action related to this Agreement will be
governed by California law and controlling U.S. federal law. No
choice of law rules of any jurisdiction will apply.
12.3 RELATIONSHIP. This Agreement is not intended to create a
relationship such as a partnership, franchise, joint venture,
agency, or employment relationship. Neither party may act in a
manner which expresses or implies a relationship other than that
of independent contractor, nor bind the other party.
12.4 ATTORNEY'S FEES. In addition to any other relief, the prevailing
party in any action arising out of this Agreement will be
entitled to reasonable attorneys' fees and costs.
12.5 ASSIGNMENT. Neither party may assign or otherwise transfer any
of its rights or obligations under this Agreement, without the
prior written consent of the other party, except that Niku may
assign its right to payment and may assign this Agreement to an
Affiliated Company.
12.6 WAIVER. Any express waiver or failure to exercise promptly any
right under this Agreement will not create a continuing waiver
or any expectation of non-enforcement.
12.7 SEVERABILITY. If any provision of this Agreement is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way
be affected or impaired thereby, and will be interpreted, to the
extent possible, to achieve the purposes as originally expressed
in the invalid, illegal or unenforceable provision.
12.8 EXPORT CONTROL. The Software and Confidential Information may be
subject to U.S. export control laws and export or import
regulations in other countries. Licensee agrees to comply
strictly with all such laws and regulations and acknowledges
that it has the responsibility to obtain such licenses to
export, re-export, or import the Software and Confidential
Information as may be required after delivery to Licensee.
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12.9 FORCE MAJEURE. A party is not liable under this Agreement for
non-performance, if the non-performance is caused by events or
conditions beyond that party's control, and provided the party
makes reasonable efforts to perform under the circumstances.
This provision does not relieve Licensee of its obligation to
make any payments then owing.
12.10 ENTIRE AGREEMENT. This Agreement is the parties entire agreement
relating to its subject matter. It supercedes all prior or
contemporaneous oral or written communications, proposals,
conditions, representations and warranties and prevails over any
conflicting or additional terms of any quote, order,
acknowledgement, or other communication between the parties
relating to its subject matter during the term of this
Agreement. No modification to this Agreement will be binding,
unless in writing and signed by a duly authorized representative
of each party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
NIKU CORPORATION SYBASE, INC.
By /s/ XXXXXX X. XXXXXX By /s/ XXXXXXX XXXXXXXXX
--------------------------------- --------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President Title: Senior Vice President & General
Manager, Enterprise
Solutions Division
The Exhibits to this Agreement are:
Exhibit A - SOFTWARE SPECIFIC TERMS, CANCELLATION RIGHTS
Exhibit B - SERVICES
Exhibit C - SOFTWARE MAINTENANCE AGREEMENT
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EXHIBIT A
SOFTWARE SPECIFIC TERMS, CANCELLATION RIGHTS
1. SOFTWARE PRODUCT DESCRIPTION:
Niku(TM) for IT Consulting, Version 1.0
2. AUTHORIZED USERS.
All employees and authorized subcontractors who work for the Sybase
Professional Services division of Sybase, Inc.
3. DELIVERY.
Niku will deliver the Software to Licensee in binary code form within
thirty (30) days of the Effective Date of this Agreement.
4. FEES.
a) LICENSE FEE. Licensee will pay initial License Fees of One Hundred
Fifty Thousand Dollars (US $150,000) within thirty (30) days of delivery of the
initial release of the Software.
Subject to the parties' agreement on the scope and content of the
Statements of Work described in Exhibit B, Licensee will also pay the additional
License Fees set forth in each Statement of Work.
b) MAINTENANCE FEE. Licensee will pay an annual maintenance fee valued
at no greater than twenty percent (20%) of the license fees due hereunder,
including, where appropriate, the license fees payable under Statements of Work
adopted hereunder (the "Maintenance Fee"), for support and maintenance of the
Software provided that, in no event shall such Maintenance Fee percentage exceed
the rate Niku charges any other customer. The Maintenance Fee will apply to the
Software version specified in this Exhibit, and to all upgrades, new versions,
updates, improvements and modifications to the Software which are generally
released by Niku to its licensees and to any future versions of the Software
delivered to Licensee pursuant to a Statement of Work. The Maintenance Fee will
not apply to new products for which Niku charges a separate license fee.
Licensee may terminate its obligation to pay the Maintenance Fee at any time by
terminating the Maintenance Agreement. The Maintenance Fee will be prorated to
the date of termination and any amounts paid for services not yet rendered will
be refunded by Niku.
5. CANCELLATION RIGHT.
Licensee will have the right to cancel this Agreement at any time after
payment of the initial installment of the Licensee Fees specified in Exhibit A.
In the event of cancellation, Niku will retain the initial License Fee payment
set forth in Section 4(a), above, and Licensee will
Exhibit A, Page 1
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have the right to retain and use the version of the Software in its possession
subject to the applicable terms and conditions of this Agreement, provided that,
in the event that Sybase cancels this Agreement after Niku has begun providing
services under the Statement of Work, the License Fee for such Statement of Work
will be prorated over the portion completed and Licensee will be responsible for
full payment of such prorated portion.
7. ADDITIONAL TERMS.
a) Upon the generally available release of Niku(TM) for IT Consulting,
Version 1.0 or the natural successor thereto if such product is not ever
generally released, the following warranty will apply to the Software licensed
hereunder notwithstanding the provisions of Section 8.2 of the Agreement:
For one year from the generally available release of the Software, Niku
warrants that, when properly used, the Software will operate in all
material respects in conformity with its associated documentation, and
the Software media will be free of defects.
b) Niku and Licensee anticipate entering into further agreements
regarding Niku's intention to position Sybase as its preferred vendor for its
customers' consulting needs and Niku's continued use of Sybase SQL Anywhere as
its base database technology.
Exhibit A, Page 2
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EXHIBIT B
SERVICES
1. SERVICES. Niku will provide software installation and implementation services
("Initial Services") as necessary to meet Licensee's specific business
requirements. Niku will provide up to forty-five (45) person-days of such
services without charge to Licensee. Services beyond this amount will be billed
to Licensee on a time and materials basis according to Niku's standard rates and
terms.
2. STATEMENT OF WORK. In addition to the Initial Services, Niku will provide
additional customization and enhancement services as described in one or more
Statements of Work to be negotiated and agreed upon by the parties. To the
extent that Licensee has not used the full forty-five days of services provided
free of charge for the Initial Services, the balance of such days of service may
be used for the services described under the Statements of Work. Each Statement
of Work will meet the following minimal formal requirements:
(i) the scope of work;
(ii) the hourly or daily rate for consultants providing services under
the Statement of Work;
(iii) the estimated number of days or hours required for each task
described in the Statement of Work;
(iv) an estimated schedule for completion of the Services;
(v) any deliverables; and
(vi) an estimate of any materials and equipment Niku will require to
complete the Services.
(vii) acceptance criteria for each deliverable
(viii) a payment schedule
Any changes to the scope of work or deliverables shall be made by a written
amendment to the applicable Statement of Work. The amendment shall be signed by
an authorized representative of each party prior to implementation of the
changes.
Exhibit B, Page 1
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EXHIBIT C
FORM OF SOFTWARE MAINTENANCE AGREEMENT
This Software Maintenance Agreement (the "Agreement") dated as of
[MONTH] [DATE], [YEAR] (the "Effective Date") is by and between the Niku
Corporation ("Niku"), a corporation organized under the laws of the state of
[NIKU'S STATE OF INCORPORATION HERE] with its principal place of business at
[NIKU OFFICIAL ADDRESS HERE] and [NAME OF CUSTOMER HERE] ("Customer"), a (STATE
OF INCORPORATION HERE] corporation with its principal place of business at
[CUSTOMER'S OFFICIAL ADDRESS HERE]
1. COVERED SOFTWARE. Customer agrees to purchase, and Niku agrees to
furnish, software maintenance services for the Software, as defined in the
Software License and Services Agreement between the parties, including the
associated user documentation (all such computer software programs and
associated user documentation shall be referred to herein as the "Software"), in
accordance with the terms and conditions of this Agreement.
2. MAINTENANCE SERVICES TO BE PROVIDED BY NIKU. Throughout the term of
this Agreement and subject to the exclusions listed in paragraph 4 below, Niku
will provide the following services with respect to the Software: (a) Niku will
endeavor to correct within a reasonable time any reported failure of the
Software to substantially conform to or perform substantially in accordance with
Niku's published user documentation; (b) Niku will furnish Customer, at no
additional charge (except for taxes, insurance, shipping and handling) with all
updates, improvements and modifications to the Software which are released
generally by Niku to its licensees (all such updates, improvements and
modifications shall be made available for downloading by Niku to the Customer
via the Internet from a Web site designated and maintained by Niku); and (c)
Niku will provide Customer with telephone, facsimile and email based support to
assist Customer in its use of the Software.
3. SUPPORT AND MAINTENANCE STANDARDS.
a. The Software's failure to substantially conform to Niku's user
documentation will be divided into three classes of severity: (i) a "critical"
nonconformance shall be any nonconformance causing a complete failure of the
Software or the Customer's computer accessing the Software; (ii) a "serious"
nonconformance shall be any nonconformance which seriously impairs the
functionality of the Software (this includes any critical nonconformances for
which a work-around or detour solution has been devised or identified); and
(iii) a "minor" nonconformance shall be any nonconformance which does not
seriously impair the functionality of the Software.
b. Niku will provide a response to a report of the above described
nonconformances by Customer according to the following response schedule: (a)
all critical nonconformances shall be responded to by Niku within twenty-four
(24) hours of that time that Customer first reports such nonconformances to
Niku; (b) all serious nonconformances shall be responded to by Niku within three
(3) days of the date that Customer first reports such nonconformances to Niku;
and (c) all minor nonconformances shall be responded to by Niku within seven (7)
days of the date
Exhibit C, Page 1
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that Customer first reports such nonconformances to Niku. For purposes of this
Agreement, Niku's duty to "respond" shall consist of (i) delivery of an existing
or new update, modification or enhancement to correct such nonconformance; (ii)
identification of a workaround or detour solution; (iii) a request for more
information for purposes of analyzing or verifying the nonconformance; and (iv)
delivery of a plan for correcting the nonconformance.
c. Niku will use all reasonable efforts to reach closure on all
nonconformances reported by the Customer to Niku in accordance with the
following schedule: (i) critical nonconformances shall be closed within seven
(7) days of notice to Niku; (ii) serious nonconformances will be closed with
fourteen (14) days of notice to Niku; and (iii) minor conformances will be
closed in next regular Software update generally distributed by Niku to all
licensees. For purposes of this Agreement, "closure" or "closed" consists of
Niku providing an update or new documentation to the Software which eliminates
the nonconformance or provides a work-around solution which enables the end user
to easily avoid the nonconformance.
4. EXCLUSIONS. The maintenance services to be provided by Niku under
this Agreement do not include: (a) repair, replacement, correction or adjustment
of any malfunction caused by: (i) Customer's failure to perform normal
preventative maintenance in accordance with the recommendations of Niku; (ii)
modification or repair of the Software by anyone other than Niku; (iii)
accident, catastrophe, abuse, misuse or operator error; or (iv) Customer's
failure to maintain a computing environment in accordance with Niku's
specifications; (b) new versions, options or applications for which Niku
establishes a separate license fee; (c) any expendable items, such as tape
cartridges, magnetic media, and similar items or supplies; or (d) any software
design, development, installation, implementation, or consulting services.
5. CUSTOMER DUTIES. Throughout the term of this Agreement, Customer
will: (a) at Customer's expense, maintain a modem and associated dial-up
telephone equipment as specified by Niku so as to enable Niku to gain remote
access to the computer system(s) on which the Software is installed at
Customer's installation site for diagnostic, error correction, and software
downloading purposes; (b) cooperate with Niku in identifying the cause of any
claimed failure of the Software to substantially conform to or perform
substantially in accordance with Niku's published user documentation, including
without limitation providing Niku with such documentation and other information
concerning any such claimed failure as Niku may reasonably request; and (c)
allow Niku reasonably free remote and on-site access to the Software and
Customer's associated equipment for the purpose of performing services under
this Agreement.
6. SERVICE HOURS. The support described in section 2(c) of this
Agreement will be provided by Niku to Customer by telephone, facsimile or email
during the business hours of 8:00 a. m. to 5:00 US pacific time, Monday through
Friday, excluding public holidays for Xxxx.
0. PROPRIETARY RIGHTS AND LICENSE. All software furnished to Customer by
Niku under this Agreement, including all corrections, updates, improvements,
modifications and new versions of Software which may be furnished to Customer by
Niku under this Agreement will be
Exhibit C, Page 2
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considered software licensed to Customer by Niku in accordance with the terms
and conditions of the license agreement between Customer and Niku (the "License
Agreement"), as applicable.
8. LIMITED WARRANT. Niku warrants that, throughout the term of this
Agreement, the Software will substantially conform to and perform substantially
in accordance with Niku's published user documentation, and Niku will endeavor
to correct any failure of the Licensed Software to so conform or perform,
provided that such failure to so conform or perform is not, in Niku's reasonable
opinion, a result of any modification of or damage to the software or its
operating environment or of Customer's failure to operate the software in the
proper hardware and software environment. ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. NIKU DOES NOT
WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE OPERATION
OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL FAILURES OF THE
SOFTWARE TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH
NIKU'S PUBLISHED USER DOCUMENTATION WILL BE CORRECTED.
9. LIMITATION OF REMEDIES AND DAMAGES.
a. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING
WARRANTY SHALL BE THAT: (A) NIKU WILL ENDEAVOR TO CORRECT WITHIN A REASONABLE
TIME ANY REPORTED FAILURE OF THE SOFTWARE TO SUBSTANTIALLY CONFORM TO OR PERFORM
SUBSTANTIALLY IN ACCORDANCE WITH NIKU'S PUBLISHED USER DOCUMENTATION, OR (B) IN
THE EVENT THAT NIKU SHALL FAIL OR BE UNABLE FOR ANY REASON TO CORRECT ANY
FAILURE OF THE SOFTWARE TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN
ACCORDANCE WITH NIKU'S PUBLISHED USER DOCUMENTATION, CUSTOMER MAY TERMINATE THIS
AGREEMENT, AND NIKU WILL REFUND TO CUSTOMER THE FULL AMOUNT OF THE MAINTENANCE
FEES ALREADY PAID WITH RESPECT TO SUCH SOFTWARE FOR SERVICE BEYOND THE EFFECTIVE
DATE OF TERMINATION, PRORATED ON A DAILY BASIS.
b. IN NO EVENT SHALL NIKU BE LIABLE TO CUSTOMER FOR INCIDENTAL,
CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, EVEN IF ADVISED OF THE POTENTIAL OF
SUCH DAMAGES. NIKU'S ENTIRE LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF
ACTION, SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO NIKU PURSUANT TO THIS
AGREEMENT.
10. PRICES, INVOICING AND PAYMENT. In addition to the maintenance fees
to be paid by Customer under this Agreement, Customer will pay (or reimburse
Niku for) all taxes (excluding taxes based on Niku's net income), all freight,
shipping and insurance costs associated with delivery of materials to Customer
under this Agreement and all travel, lodging, meal and other incidental expenses
reasonably incurred by Niku in connection with furnishing
Exhibit C, Page 3
15
maintenance and support services to Customer under this Agreement. Software
maintenance fees are payable annually in advance. Niku will invoice Customer for
the initial twelve (12) months maintenance fees upon acceptance of the Software,
and Niku will invoice Customer for maintenance fees pertaining to each
succeeding twelve (12) month period at or about the commencement of such
period. Niku will invoice Customer for other charges permitted under this
Agreement at or about the times such charges are incurred; all such invoices
shall be paid by Customer within thirty (30) days of receipt.
11. CHANGE IN MAINTENANCE FEES. Effective upon any twelve (12) month
anniversary of the effective date specified in paragraph 12, Niku may increase
the amount of the maintenance fees relating to the Software; provided, however,
that no such increase shall exceed fifteen percent (15%) of the amount of the
maintenance fees for the twelve (12) month period immediately preceding the
effective date of such increase.
12. TERM AND TERMINATION. This Agreement shall become effective as of
the Effective Date and shall continue in effect for the initial term specified
above and thereafter for successive one (1) year renewal terms until terminated
as provided in this section of the Agreement. Either party may terminate this
Agreement as of the end of its initial term, or as of the end of any renewal
term, by written notice to the other party at least thirty (30) days prior to
the effective date of termination. In the event that Customer's license to use
the Software is terminated by Niku or Customer pursuant to the above described
License Agreement, this Agreement shall also terminate as to such Software and
Niku will refund to Customer the amount of any maintenance fees already paid
with respect to such software for service beyond the effective date of
termination, prorated on a daily basis.
13. MISCELLANEOUS TERMS AND CONDITIONS. This Agreement shall be
construed in accordance with and governed by the laws of the State of
California, without regard to its conflicts of law rules. Niku's failure to
enforce at any time any of the provisions of this Agreement or any right with
respect thereto, shall in no way be construed to be a waiver of such provision
or right, or in any way to affect the validity of this Agreement. This Agreement
shall be binding upon and inure to the benefit of the successors and permitted
assigns of the Customer and Niku. This Agreement hereto shall be modified only
by an instrument in writing signed by the parties. All notices, requests,
consents, and other communications hereunder must be in writing, and will be
deemed to have been properly given when actually received by the party to whom
sent. The provisions of this Agreement are severable, and if any provision is
held invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability will affect only such provision or part thereof
in such jurisdiction, and will not in any manner affect the provision in any
other jurisdiction, or any other provision in this Agreement in any other
jurisdiction. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof, and supersedes all previous
communications, representations, understandings, and agreements, either oral or.
written, between the parties or any official or representative thereof.
Exhibit C, Page 4
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
NIKU CORPORATION [NAME OF CUSTOMER HERE]
By:
--------------------------------- ----------------------------------------
(Signature) (Signature)
------------------------------------ ----------------------------------------
(Typed or Printed Name) (Typed or Printed Name)
Title: Title:
------------------------------ ----------------------------------
Exhibit C, Page 5
17
FIRST ADDENDUM TO SOFTWARE
LICENSE AND SERVICES AGREEMENT
This First Addendum (the "Addendum") to the Software License and
Services Agreement ("Agreement") dated December 22, 1998 by and between Niku
Corporation, a Delaware corporation with offices at 000 Xxxxxxx Xxxxxx, Xxxxxxx
Xxxx, Xxxxxxxxxx 00000 ("Niku"), and Sybase, Inc., a Delaware corporation, with
offices at 0000 Xxxxxxxx Xxx., Xxxxxxxxxx, Xxxxxxxxxx 00000 ("Licensee"), is
made effective March 29, 1999.
1. DEFINITIONS. Except as specifically modified below, the capitalized
terms defined in the Agreement shall have the same meaning when used in
this Addendum.
1.1 "Software" means Niku(TM) for IT Consulting, Version 2.0 and all
prior versions thereof.
2. DELIVERY. Niku will deliver the Software to Licensee as soon as
practicable after execution of this Addendum but no later than twenty
(20) days thereafter.
3. LICENSE FEE. Licensee will make a final payment of the license fees for
the Software (the "License Fee") in the amount of TWO HUNDRED THOUSAND
AND NO/100 DOLLARS ($200,000.00) within thirty (30) days after delivery
by Niku of the Software. This amount is in addition to the initial
License Fee of $150,000 referenced in Exhibit A of the Agreement paid
for a previous version of the Software.
4. WARRANTY. The express warranty clause set forth in Paragraph Seven (7)
of Exhibit A to the Agreement will apply to the Software delivered
pursuant to this Addendum (Version 2.0).
5. APPLICABILITY. Except as specifically modified and supplement by this
Addendum, the Agreement will remain in full force and effect. In
particular, the parties acknowledge their agreement that Niku deliver
the Software and Sybase pay the License Fee, notwithstanding any delay
in entering into a Statement of Work under the Agreement.
NIKU CORPORATION SYBASE, INC.
By: /s/ XXX XXXXXXX By: /s/ XXXXXXX XXXXXXXXX
--------------------------------- -------------------------------------
Name: Xxx Xxxxxxx Name: Xxxx X. XxXxxxxxx
Title: Vice President, Sales Title: Sr. Vice President and
Gen. Manager,
Enterprise Solutions Division
18
SECOND ADDENDUM TO SOFTWARE
LICENSE AND SERVICES AGREEMENT
This Second Addendum (the "Addendum") to the Software License and
Services Agreement dated December 22,1998 (as amended by the First Addendum to
the Software License and Services Agreement dated March 29,1999, the
"Agreement") by and between Niku Corporation, a Delaware corporation with
offices at 000 Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Niku"), and Sybase,
Inc., a Delaware corporation, with offices at 0000 Xxxxxxxx Xxx., Xxxxxxxxxx,
Xxxxxxxxxx 00000 ("Licensee") is made effective September 16,1999.
1. DEFINITIONS. Except as specifically modified below, the capitalized
terms defined in the Agreement shall have the same meaning when used in
this Addendum.
1.1 "Software" means Niku(TM) for IT Consulting, Version 3.0 and all
prior versions thereof.
2. DELIVERY. Niku will deliver the Software to Licensee as soon as
practicable after execution of this Addendum but no later than twenty
(20) days thereafter.
3. LICENSE FEE. Licensee will pay Niku FOUR HUNDRED THOUSAND DOLLARS
($400,000) for the Software (the "License Fee") as follows: (a) $200,000
will be paid on a net 30 days basis from October 1, 1999; and (b)
$200,000 will be made on a net 90 days basis from January 1, 2000. This
amount is in addition to any previous license fees referenced in the
Agreement for previous versions of the Software and constitutes the
final license fee payments for the Software under the Agreement.
4. WARRANTY. The express warranty clause set forth in Paragraph Seven (7)
of Exhibit A to the Agreement will apply to the Software delivered
pursuant to this Addendum (Version 3.0).
5. APPLICABILITY. Except as specifically modified and supplement by this
Addendum, the Agreement will remain in full force and effect. In
particular, the parties acknowledge their agreement that Niku deliver
the Software and Sybase pay the License Fee, notwithstanding any delay
in entering into a Statement of Work under the Agreement.
Niku Corporation Sybase, Inc.
By: /S/ XXX XXXXXXX By: /s/ XXXXXXX XXXXXXXXX
--------------------------------- -------------------------------------
Name: Xxx Xxxxxxx Name: Xxxx X. XxXxxxxxx
Title: Sr. Vice President, Sales Title: Sr. Vice President and Gen.
Manager, Enterprise Solutions
Division
