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 10.07
[USi LOGO OMITTED]
USi Agreement Number: 84
iMAP AGREEMENT
USinternetworking, Inc. ("USi"), a Delaware corporation with its principal
office located at Xxx XXx Xxxxx, Xxxxxxxxx, XX 00000-7428 and Niku Corporation
("Client"), a Delaware corporation with offices at 000 Xxxxxxx Xxxxxx, Xxxxxxx
Xxxx, Xxxxxxxxxx 00000, hereby agree that the following terms and conditions
will apply to each iMAP Solution provided under this iMAP Agreement
("Agreement").
1. SCOPE OF SERVICE
1.1 SERVICES
USi will provide the services as defined in individual Product Schedules
which will be mutually agreed upon, attached hereto and incorporated
herein as Exhibit A. The Product Schedules may be modified by mutual
written agreement. Changes or additions to work performed under each
Product Schedule may require changes in the resources provided by Usi.
Notwithstanding the foregoing, no additional costs or charges shall be
due from Licensee without Licensee's prior written consent.
1.2 SEPARATE AGREEMENT
Each Product Schedule shall reflect a separate agreement of the parties,
and, unless otherwise clearly specified in writing, the terms and
conditions of each Product Schedule shall be independent of and shall
have no impact upon, the provisions of any other Product Schedule.
1.3 ADDITIONAL SERVICES
Client may order additional iMAP Solutions or add on to existing iMAP
Solutions by contacting USi. USi will send Client a Product Schedule,
based on USi's formal requirements analysis and/or proposal for the
additional services, specifying the terms of the iMAP Solution,
including the payment(s) due for each ordered item. Client may accept
the terms of the iMAP Solution by signing that Product Schedule and
returning it to USi. All executed Product Schedules will become part of
this Agreement and will be covered by all of this Agreement's terms and
conditions.
2. DEFINITIONS
2.1 "ACCEPTABLE USE POLICY" shall mean USi's policy on the use of its Global
Network posted at xxxx://xxx.xxx.xxx/xxxxxxxxx.xxxx as of June 30, 1999.
2.2 "ADDENDA" shall mean any written document executed by both parties which
modifies the terms of this Agreement or any executed Product Schedule.
2.3 "AGREEMENT" shall mean this iMAP Agreement, any and all Exhibits
attached hereto and all Product Schedules attached simultaneously with
the execution of the Agreement or agreed upon and executed subsequent
hereto.
2.4 "CONSULTING AND IMPLEMENTATION SERVICES" shall mean the services
provided by USi as part of the iMAP Solution and may be set forth in the
Product Schedule as applicable.
2.5 "CONTENT" means any and all text, multimedia or images (graphics, audio
and video), data and the like provided by Client and installed on a
server, which shall be subject to the terms and conditions set forth in
the Product Schedule and Acceptable Use Policy.
2.6 "CUSTOMIZATION" shall mean any customized deliverable created by USi as
part of the iMAP Solution.
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Proprietary & Confidential
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2.7 "DOCUMENTATION" shall mean the Software Application user manual(s) and
any other materials supplied by USi concurrently with the delivery of
and for use with the iMAP Solution.
2.8 "GLOBAL NETWORK" shall mean USi's Internet-based data center and
network.
2.9 "HARDWARE" shall mean any computing or networking equipment USi uses
and/or provides to Client for its use as part of the iMAP Solution.
2.10 "iMAP SOLUTION" shall mean the collective bundling of any and all
Consulting and Implementation Services, Customization, access to the
Global Network, Hardware, Project Software, Software Application(s), USi
Software and Work Product, as outlined in each executed Product
Schedule.
2.11 "PRODUCT SCHEDULE" shall mean a written order for any iMAP Solution
accepted by USi and executed by both parties, which shall be subject to
the terms and conditions of this Agreement and which, at a minimum,
shall contain a description of the work to be undertaken and the
obligations and responsibilities of each party related to that Product
Schedule.
2.12 "PROJECT SOFTWARE" shall mean any software developed by USi under this
Agreement or any Product Schedule. 2.13 "SLA" shall mean the Service
Level Agreement specified in each Product Schedule. 2.14 "SOFTWARE
APPLICATION" shall mean the Third Party computer software USi provides
to Client for its use as part of the iMAP Solution.
2.15 "THIRD PARTY" shall mean any natural person or legal entity other than
USi and Client.
2.16 "USi SOFTWARE" shall mean certain software which was developed by USi
independently of this Agreement or pursuant to the terms of this
Agreement as may be required for customization.
2.17 "WORK PRODUCT" shall mean all Consulting and Implementation Services
performed and/or created by USi under this Agreement as well as any
other products of its work created hereunder which may consist of
reports, designs, data or similar materials.
3. LICENSE
3.1 RIGHTS GRANTED
In accordance with the terms of this Agreement, USi grants to Client a
limited, nontransferable, non-exclusive license to use the iMAP Solution
included in the executed Product Schedules attached hereto and
Documentation for the sole purpose of supporting the operations of
Client's business as described in the Product Schedule. Notwithstanding
anything to the contrary, Client may not use the iMAP Solution in a
resale capacity, to process and/or analyze the data of a Third Party as
a service bureau or on any Hardware other than as set forth in the
relevant Product Schedule.
3.2 OWNERSHIP
Except as expressly provided in Section 11 below, all components of the
iMAP Solution provided to Client shall remain at all times the property
of USi and/or its Third Party Software Application vendors and contain
trade secrets and other valuable proprietary information of USi and/or
its Third Party vendor.
3.3 EFFECTIVE DATE
This Agreement shall be effective on the date it is executed by USi, and
shall remain in effect for the Term unless terminated in accordance with
the provisions set forth in this Agreement.
3.4 SOFTWARE
Client acknowledges and understands that USi may provide to Client (a)
USi Software and/or (b) Software Applications owned by Third Parties
which USi uses under license agreements from Third Parties defined
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in Section 2.14 as "Software Application." Client acknowledges that (a)
title to all such USi Software and Software Application remains with and
is subject to the proprietary rights of USi or its Third Party vendor,
and (b) such USi Software and Software Application contain trade secrets
and other valuable proprietary information of USi or its Third Party
vendor.
3.5 RESTRICTIONS
Except as authorized by USi,Client agrees it shall not: (a) alter or
modify the USi or Software Application or any part thereof; (b) copy or
duplicate, or permit a Third Party to copy or duplicate, the USi
Software or Software Application or any part thereof or (c) reverse
engineer, decompile or disassemble USi Software or Software Application,
unless otherwise provided in the relevant Product Schedule.
3.6 NON-TRANSFERABLE
Client agrees not to license, sell, transfer or lease the USi Software
or Software Application to any Third Party. Client agrees not to
disclose any source code or technical information regarding USi Software
or Software Application that Client obtains from USi under this
Agreement.
4. TERM
4.1 AGREEMENT TERM
The term of this Agreement (the "Term") shall commence on the Effective
Date and shall expire three (3) years thereafter unless (a) either
terminated pursuant to the terms of this Agreement or (b) extended by
mutual written agreement.
4.2 PRODUCT SCHEDULE
Each individual Product Schedule shall include a period of performance.
In the event that any Product Schedule period of performance extends
beyond the Term, the Term shall automatically be extended and remain in
effect until such time as the Product Schedule period of performance is
completed.
5. PAYMENTS
5.1 FEES
As compensation for the license of the iMAP Solution granted to Client
and the provisions of services as applicable, Client agrees to pay the
amount(s) specified in each executed Product Schedule. Any fee specified
in a Product Schedule will only remain in effect until the date
specified in the Product Schedule.
5.2 PAYMENT TERMS
Unless otherwise specified in the Product Schedule, payments will be due
and payable to USi within thirty (30) days of Client's receipt of USi's
invoice. Such invoices will be generated in accordance with the terms
specified in each Product Schedule. USi reserves the right, in USi's
absolute discretion, to perform a credit check on Client.
5.3 TAXES
Client shall be responsible for the payment of all taxes associated with
this Agreement or its use of the iMAP Solution (other than taxes based
on USi's net income), including, but not limited to, personal property
taxes, import taxes, taxes on telecommunication services, information
services, data processing services or similar governmental charges that
may be assessed by any jurisdiction, whether based on gross revenue or
delivery of products or services. If USi is required to pay any such
taxes directly, Client shall, upon receipt of USi's invoice, reimburse
USi for any amount that USi has paid. Notwithstanding the above, Client
shall not be required to pay those taxes from which Client is legally
exempt.
5.4 INSURANCE
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If and when USi Hardware is placed on Client's premises, Client will
obtain and maintain adequate liability insurance and insurance against
loss of or damage to such Hardware to an extent to be agreed in the
applicable Product Schedule.
5.5 INTEREST
Any payments not made when due will be subject to an interest charge of
one and one-half percent (1.5%) per month, unless applicable law
specifies a lower lawful rate of interest, in which case past due
payments shall bear interest at that lower maximum rate.
6. WARRANTIES
6.1 PERFORMANCE WARRANTY
USi warrants that (a) work performed to complete any Product Schedule
will be performed by qualified personnel in a professional, workmanlike
manner, consistent with the prevailing standards of the industry and in
accordance with the descriptions in the applicable Product Schedule; and
(b) it will complete each Product Schedule as soon as commercially
practicable.
6.2 AUTHORITY WARRANTY
USi warrants that it has the authority to (i) license the Software
Application(s) for the purposes set forth in this Agreement and the
Product Schedule and (ii) provide the services described in this
Agreement and the Product Schedule(s). Client acknowledges and agrees
that its sole and exclusive remedies for breach of these warranties are
set forth in Section 8.1 of this Agreement.
6.3 LIMITATION
Unless otherwise expressly provided herein or in a Product Schedule,
neither USi nor any of its service providers, licensors, employees or
agents warrant (a) that the functions contained in the iMAP Solution
provided hereunder will meet Client's requirements or (b) that the
operation of the iMAP Solution will be uninterrupted or error free or
(c) that the products or services will have the capacity to meet the
demand during specific hours. USi will not be liable for unauthorized
access to or alteration, theft or destruction of Client's data files,
programs, procedures or information through accident, fraudulent means
or devices, or any other method, unless such access, alteration, theft
or destruction is caused as a result of USi's negligence or intentional
misconduct. Nor will Niku be liable for unauthorized access to or
alteration, theft or destruction of data files, programs, procedures or
information stored or hosted by USi under this Agreement through
accident, fraudulent means or devices, or any other method, unless such
access, alteration, theft or destruction is caused as a result of
Client's negligence or intentional misconduct.
6.4 EXCLUSION
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES
AND CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.
7. CLIENT CARE
7.1 CLIENT ASSISTANCE CENTER
Under the Client Care program, USi will provide a level of service
concerning Client's iMAP Solution as outlined in each specific Product
Schedule. In all cases, Client will have availability to USi's Client
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Assistance Center twenty-four (24) hours per day, seven (7) days per
week, three hundred sixty-five (365) days per year. Client acknowledges
and agrees that all calls into the Client Assistance Center are public
and may be monitored and/or recorded for quality control purposes.
7.2 SERVICE LEVEL AGREEMENTS
USi will provide a Service Level Agreement with each iMAP Solution which
will be stated in each executed Product Schedule. Specific remedies for
USi's failure to meet the applicable Service Level Agreement will be
stated in each executed Product Schedule.
7.3 MAINTENANCE WINDOW
USi has established set maintenance windows on Tuesday and Friday
mornings between the hours of 2am and 6am (ET). During this time, USi
reserves the right to take down a Client's server(s) in order to conduct
routine maintenance checks to both software and hardware. If a Client's
server(s) will be down for more than [***] within this pre-established
window, USi will advise Client of such at least ten (10) calendar days
prior to any scheduled maintenance downtime. USi will not be responsible
for any damages or costs incurred by Client, if any, for scheduled down
time. USi reserves the right to change its maintenance window upon
thirty (30) days prior notice to Client.
8. INDEMNITY OBLIGATIONS
8.1 USi INDEMNITY OBLIGATIONS
USi will (i) defend Client against any claim that the products or
services delivered by USi infringe a patent, copyright, trade secret, or
other proprietary right in the United States; and (ii) pay costs,
damages and attorney's fees finally awarded against Client as a result
of such claims.
(a) Infringement Remedies. In addition to defending Client as stated
above, if a claim occurs, or in USi's opinion, is likely to
occur, USi will, at its sole option and expense, (subject to its
agreement with Software Application vendors) either (i) procure
Client the right to continue using the Software Application in
question, or (ii) replace or modify the infringing Software
Application so that it becomes noninfringing; provided that the
Software Application's functionality are not materially and
adversely affected by such replacement or modification. If
neither of these alternatives is reasonably available, Client
shall return the Software Application at issue and USi will
refund the amount paid by Client to USi for such Software
Application as depreciated. The depreciation shall be an equal
amount per year over a three (3) year life commencing with the
date of installation.
(b) Exclusions. USi shall not be liable for infringement claims
based on (i) the combination, operation or use of Software
Application with hardware, data or software not supplied by USi
if the claim would have been avoided by use of other hardware,
data or software; or (ii) modifications to Software Application
if the modifications were not made by USi.
8.2 CLIENT INDEMNITY OBLIGATIONS
Client will (a) defend USi against any claims by Third Parties arising
from Client's use of the iMAP Solution provided by USi hereunder
excluding, however, (i) claims under Section 8.1; and (ii) claims for
bodily injury or damages to tangible personal property proximately
caused by the negligent act, error or omission of USi and (b) pay costs,
damages and attorney's fees finally awarded against USi and any
settlement costs incurred as a result of such claims.
8.3 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.
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The indemnification obligations set forth above in Sections 8.1 and 8.2
are contingent upon compliance with the following conditions by the
party seeking indemnification:
(a) Providing prompt written notice of a claim within twenty (20)
days of its service upon indemnified party;
(b) Providing all information and evidence within its control which
is necessary for the indemnifying party to conduct a defense;
and
(c) Providing the indemnifying party with sole control of the
defense and all related settlement negotiations. However, the
non-indemnifying party may participate in the defense or
settlement of the claim at its own expense.
8.4 LIMITATIONS OF REMEDY
This Section 8 states the entire obligations of the parties with respect
to indemnity or infringement of copyrights, patents, trade secrets or
other intellectual property or proprietary rights.
9. LIMITATION OF LIABILITY
9.1 LIMITATION OF LIABILITY
Each party's entire liability and exclusive remedies are set forth in
this Section 9, Section 6, Section 8 and Section 10. Except for a breach
under Section 8 or 12.1, each party's liability to the other party for
damages (regardless of the form of action, whether in contract, tort,
warranty or otherwise) shall in no event exceed [***]. This Section
9.1 shall supercede and prevail over any provisions to the contrary in
this Agreement, the Product Schedules or any document incorporated by
reference into this Agreement.
9.2 DISCLAIMER OF DAMAGES
EXCEPT IN THE CASE OF CLIENT'S BREACH OF SECTION 3.5 OR EITHER PARTY'S
BREACH OF SECTION 8, 12.1, NEITHER PARTY SHALL BE LIABLE FOR ANY
SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR
THE LOSS OF PROFIT, REVENUE, OR DATA, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGES. EACH PARTY
FURTHER AGREES THAT THE OTHER PARTY SHALL NOT BE LIABLE FOR ANY CLAIM OR
DEMAND BY ANY THIRD PARTY, EXCEPT TO THE EXTENT EXPRESSLY COVERED UNDER
SECTION 8 (INDEMNITY OBLIGATIONS) OR SECTION 9 (LIMITATION OF
LIABILITY). THIS SECTION 9.2 SHALL SUPERCEDE AND PREVAIL OVER ANY
PROVISIONS TO THE CONTRARY IN THIS AGREEMENT, THE PRODUCT SCHEDULES OR
ANY DOCUMENT INCORPORATED BY REFERENCE INTO THIS AGREEMENT.
10. TERMINATION
10.1 TERMINATION FOR BREACH
Either party may terminate this Agreement immediately upon written
notice to the other party if the other party materially breaches any
obligation under this Agreement and fails to cure such breach within
thirty (30) days after receiving notice of the breach. Unless otherwise
agreed in writing, termination of this Agreement shall also
automatically terminate all Product Schedules which are incomplete at
the time of termination. Termination of one Product Schedule shall have
no effect on any other Product Schedule or the Agreement so long as the
party in default of the Product Schedule being terminated complies with
the terms and conditions of the Agreement and other Product Schedules.
Notwithstanding anything to 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.
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contrary, either party shall have the right to terminate this Agreement
and the license granted herein in the event the other party (a)
terminates or suspends its business, (b) becomes subject to any
bankruptcy or insolvency proceeding under Federal or state statute, (c)
becomes insolvent or becomes subject to direct control by a trustee,
receiver or similar authority, or (d) has wound up liquidated,
voluntarily or otherwise. In the event of, and thirty (30) days after,
termination by reason of Client's failure to comply with any part of
this Agreement, or any act which shall give rise to USi's right to
terminate, USi shall have the right to terminate the license and, on
five (5) days' notice, to the return of the iMAP Solutions and all
copies wherever located. In the event of a termination by reason of
USi`s failure to comply with any part of this Agreement, the time period
for USi to terminate the license shall be extended to [***]. Within ten
(10) days after termination of the license, Client shall return to USi
all tangible portions of the iMAP Solutions, including any Hardware
provided by USi and any Software in the form provided by USi or as
modified, or, upon request by USi, destroy all tangible portions of the
iMAP Solutions and all copies, and certify in writing that they have
been destroyed. Termination of this Agreement shall not relieve either
party of its obligations regarding confidentiality under Section 12
below. Lastly, no cure period shall be afforded in an event of a breach
of Sections 3.5 or 12.1, for which the nonbreaching party shall be
entitled to all legal and equitable remedies, including but not limited
to, injunctive relief, without requirement of bond.
10.2 EFFECT OF TERMINATION
Termination of this Agreement for any reason shall not affect any past
due or remaining payments Client is required to make under this
Agreement or applicable Product Schedule, or any additional remedies
provided by law or equity to either party. All rights that have been
granted to Client shall immediately be terminated and all unpaid charges
accrued under this Agreement shall become immediately due and payable
upon the happening of any event of termination. The Parties also agree
to return to one another, within sixty (60) days of a request, any
property, data sheets, schematics, samples, customer lists, confidential
information, in whatever form or media which are used by a disclosing
party or which are furnished to a recipient.
10.3 RETURN OF CONTENT
In the event of a termination of this Agreement or any Product Schedule
for default by USi, or on account of Client's decision not to renew a
Product Schedule at the end of the applicable period of performance
defined in each Product Schedule, USi shall deliver to Client, at no
additional cost to Client, and in a format and on a date mutually
agreeable to both parties, (i) all data contained on Hardware (Section
2.9) used in the iMAP Solution delivered to Client; (ii) all Content
(Section 2.5), (iii) all Project Software (Section 2.12); and (iv) all
Work Product (Section 2.17). Client agrees that, after termination of
this Agreement or a specific Product Schedule, (a) USi shall have no
obligation to support the Work Product or Project Software; (b) Client
may use the Work Product and Project Software solely to support the
internal operations of its business, with the understanding that (i)
Client's providing web sites at xxxx://xxx.xxxxx.xxx and
xxxx://xxx.xxxx.xxx is deemed an "internal" operation of its business,
and (ii) Client in no event will permit any third party to host the Work
Product or Project Software; (c) Client may not resell, disclose, or
allow access to the Work Product or Project Software to any Third Party;
and (d) USi reserves all rights to (i) the use of the Work Product or
Project Software in whatever manner USi chooses, including in the
support of iMAP Solutions provided to other USi clients; and (ii) the IP
addresses
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or address blocks assigned by USi in support of the iMAP Solution
delivered to Client under this Agreement and related Product
Schedule(s).
11. SOFTWARE AND WORK PRODUCT DEVELOPED UNDER AGREEMENT
11.1 TITLE
Except as otherwise provided for in Section 11.2 below or as may be
expressly agreed in any Product Schedule, USi shall retain (a) title to
and ownership of any Hardware provided by USi; and (b) whatever rights
it has in any Software Application(s); and (c) any USi Software. Without
affecting Client's rights under Section 3.1, above, to the extent that
Project Software contains any USi Software or Software Application(s),
such Project Software is subject to restrictions as may be applicable to
the USi Software or Software Application(s) which is incorporated
therein.
11.2 CLIENT OWNERSHIP
Client shall retain title to and all ownership rights (a) in any Work
Product; (b) in any Project Software; and (c) in Content, but grants USi
a perpetual, royalty-free license to use the Work Product and Project
Software pursuant to Section 10.3(d).
12. GENERAL PROVISIONS
12.1 NONDISCLOSURE
Each party shall retain in confidence all proprietary information
transmitted to the other that the disclosing party has identified in
writing as being proprietary and/or confidential, and will make no use
of such information except under the terms and during the term of this
Agreement. Client agrees to use all reasonable precautions and take all
necessary steps to prevent the iMAP Solution from being acquired by
unauthorized persons, and to take appropriate action, by instruction,
agreement, or otherwise, with regard to all persons permitted access to
the iMAP Solution, in order to ensure the iMAP Solution is protected.
Client shall not disclose the iMAP Solution to any person for any
purpose other than as provided in this Agreement. However, neither party
shall have an obligation to maintain the confidentiality of information
that (a) it has rightfully received from another party prior to its
receipt from the disclosing party; (b) the disclosing party has
disclosed to a Third Party without any obligation to maintain such
information in confidence, (c) enters the public domain or becomes
generally known to the public by some action other than breach of this
Agreement by the receiving party; or (d) is independently developed by
the receiving party. Each party shall safeguard proprietary and
confidential information disclosed by the other using the same degree of
care it uses to safeguard its own proprietary and confidential
information but, in no event, shall use less than a reasonable degree of
care. Each party's obligation under this paragraph shall extend for a
period of three (3) years following termination or expiration of this
Agreement.
12.2 ASSIGNMENT
Neither this Agreement nor any rights granted hereunder may be sold,
leased, assigned or otherwise transferred, in whole or in part by either
party by operation of law otherwise, and any such attempted assignment
shall be void and of no effect without the advance written consent of
the other party, such consent not to be unreasonably withheld or
delayed; provided, however, that such consent shall not be required if
either party assigns this Agreement to a wholly owned subsidiary or in
connection with a merger, acquisition, or sale of all or substantially
all of its assets, unless the surviving entity is a competitor
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of the other party. USi reserves the right to assign its right to
receive and collect payments hereunder without the consent of Client,
provided that in such case Niku's rights will remain unchanged.
12.3 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflicts of law.
12.4 WAIVER
No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any other breach of the same or any other
provision of the Agreement, and no waiver shall be effective unless made
in writing.
12.5 SEVERABILITY
In the event that any term or provision of this Agreement conflicts with
the law under which this Agreement is to be construed, or if any such
provision is held invalid by a court with jurisdiction over the parties
to this Agreement, such provision shall be restated to reflect, as
nearly as possible, the original intentions of the parties in accordance
with applicable law, and the remainder of this Agreement shall remain in
full force and effect.
12.6 ENFORCEMENT
Both parties agree to pay all reasonable costs and expenses the other
party incurs in successfully enforcing this Agreement, including
reasonable attorneys' fees.
12.7 FORCE MAJEURE
Neither party shall be liable for any delay or failure in performance
due to Force Majeure, which shall mean acts of God, earthquake, labor
disputes, changes in law, regulation or government policy, riots, war,
fire, epidemics, acts or omissions of vendors or suppliers,
transportation difficulties or other occurrences which are beyond either
party's reasonable control. In the event that USi is prevented or
delayed in the delivery or installation of the iMAP Solution for reasons
beyond its control, such delivery or installation shall take place as
soon thereafter as is reasonably possible. This provision shall not
apply to any obligation of Client to pay money under this Agreement or
any Product Schedule.
12.8 NOTICE
Any notice or invoice required or permitted under this Agreement shall
be in writing and delivered by hand or mailed by overnight express
charges prepaid or certified mail with return receipt requested to the
address set forth above. Notices or invoices shall be deemed received
when delivered.
12.9 SURVIVAL
The terms of Sections 3, 4, 5, 8, 9, 11 and 12 shall survive the
termination or expiration of this Agreement.
12.10 ACCEPTABLE USE POLICY
Client agrees at all times, and to require and enforce its employees,
agents and contractors at all times, to comply with the USi Acceptable
Use Policy, the terms of which may be modified from time to time by USi
on the website referred to above in Section 2.1.
(a) The modifications to the AUP will not apply to Client until
thirty (30) days after written notice from USi unless a shorter
period is necessary for USi to avoid disruption from its
internet service providers or to otherwise avoid liability, in
which case USi would provide written notice as soon as is
reasonable.
(b) If USi receives notice that Client has violated the AUP, USi
will notify Client and use reasonable efforts to give Client
seven (7) days notice prior to termination or suspension;
provided, however: (1) Such seven day period will be shortened
to forty eight hours if USi has received written notice from its
internet service
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providers that such provider will disrupt service to USi because
of Client's violation of the AUP and (2) notwithstanding the
foregoing, if a shorter period is necessary for USi to avoid
disruption by its service providers or to otherwise avoid
liability, USi may terminate or suspend the iMAP Solution in the
shorter period of time, provided that such shorter time shall
not be less than three (3) hours after USi contacts Client at
the pager number to be provided by Client.
Client agrees to indemnify and hold USi harmless from any damages, costs
and expenses incurred by USi caused by the breach of this provision.
12.11 THIRD PARTY RIGHTS
The provisions of this Agreement are solely for the benefit of the
parties hereto and not for the benefit of any Third Parties.
12.12 ENTIRE AGREEMENT
This Agreement (including all Product Schedules and Addenda, if any)
contains the full understanding between the parties and supercedes all
prior representations or agreements, whether oral or written, with
respect to such matters. The Agreement (including all Product Schedules
and Addenda, if any) may only be changed by a written document signed by
both parties. Except as specified in Sections 8 and 9, to the extent of
any inconsistencies between the Agreement and the Product Schedule, the
Product Schedule shall control, except if the Agreement is modified by
Addenda, then the Addenda shall control. Principles of contract
construction or rules of law that, in the event of inconsistency or
ambiguity, would construe against the drafter this Agreement or any
Product Schedule, shall not apply.
USINTERNETWORKING, INC. NIKU CORPORATION
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxxx
------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx Xxxxxxx
Title: Vice President Title: VP Sales
and General Counsel
Date: 6/30/99 Date: 6-30-99
----------------------------- -----------------------------------
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[USi GRAPHIC OMITTED]
USi Agreement Number: 84
Effective Date: September 29, 1999
PRODUCT SCHEDULE
This Product Schedule is governed by and incorporated into the terms and
conditions contained in the iMAP Agreement entered into between
USinternetworking, Inc. ("USi") and Niku Corporation ("Client") dated June 30,
1999. USi's Proposal to Client dated September 29, 1999 ("Proposal") is
attached as Exhibit A to this Product Schedule, although only those Sections of
the Proposal specifically referenced below shall be incorporated into the terms
and conditions of this Product Schedule.
REPLACEMENT OF PREVIOUS
PRODUCT SCHEDULE: THIS PRODUCT SCHEDULE REPLACES IN ITS ENTIRETY THE
PRODUCT SCHEDULE, WITH AN EFFECTIVE DATE OF JUNE
30, 1999, PREVIOUSLY EXECUTED BETWEEN USi AND
CLIENT.
IMAP SOLUTION: Complex Web Site Management as detailed in
Sections 1, 2, 3, and 4 of the Proposal.
PAYMENT SCHEDULE: Client agrees to the following Payment Schedule:
1. Thirty-six (36) equal monthly service
fee payments of $72,161 commencing upon
the Effective Date of this Product
Schedule, due and payable within thirty
(30) days of Client's receipt of invoice
from USi.
All monthly service fee invoices will be issued in
advance on the 15th of the month prior to the
calendar month of service. This pricing is valid
for the Initial Period and is exclusive of any
applicable taxes, tariffs, telecommunications
surcharges or other governmental fees or charges
that may be imposed from time to time by
applicable law or regulation.
CLIENT SHALL RECEIVE A CREDIT FOR ANY PAYMENTS
MADE UNDER THE PREVIOUS PRODUCT SCHEDULE AGAINST
THE FIRST INVOICE DUE HEREUNDER.
EFFECTIVE DATE OF
PRODUCT SCHEDULE: September 29, 1999
PERIOD OF PERFORMANCE: The Period of Performance of this Product Schedule
shall commence on the Effective Date and shall
continue for a period of thirty-six (36) months
(the "Initial Period"). Thereafter, this Product
Schedule shall automatically renew on a
month-to-month basis until terminated by either
party giving the other party at least sixty (60)
days prior written notice.
EARLY TERMINATION: Client may terminate the last [***] of the Initial
Period by providing USi with ninety (90) days
written notice prior to the end of the [***] of
the Initial Period. Client agrees to pay USi a
termination fee equal to [***] upon its election
to terminate this Product Schedule pursuant to
this section.
UPGRADE COMPONENTS: During the first six (6) months of the Initial
Period, Client can add the following Upgrade
Components to the iMAP Solution by executing an
applicable Addenda to this Product Schedule. Upon
exercise of this upgrade, the monthly service fee
payment will increase by applicable amount shown
below for the remaining term of the Initial Period
commencing on the first day the Upgrade Component
is implemented.
-----------------------------------------------------------------------------------------
UPGRADE COMPONENT ADDITIONAL MONTHLY FEE
-----------------------------------------------------------------------------------------
Additional Internet bandwidth per additional 1Mbps increments $1,500
-----------------------------------------------------------------------------------------
Additional cost per Sun E4500 server $7,400
-----------------------------------------------------------------------------------------
Additional cost per Sun E250 server $2,100
-----------------------------------------------------------------------------------------
Additional locally-mirrored EMC Storage capacity usable $6,641
with BCV per additional 100Gb increments
-----------------------------------------------------------------------------------------
Additional RAM for E4500 server (one (1) Gb increments) See Note 1
-----------------------------------------------------------------------------------------
Additional CPUs for E4500 server (one (1) CPU increments) See Note 1
-----------------------------------------------------------------------------------------
Incremental CPU & Memory (Per two 1 Gb Memory Upgrades and 2 $2,644
CPUs)
-----------------------------------------------------------------------------------------
Additional CPU/RAM for E4500 server (one CPU/one Gb $1,400
increments)
-----------------------------------------------------------------------------------------
Note 1: The configuration of Client's E4500
servers will allow three (3) additional
I/O slots for expansion of additional
CPUs and RAM. Each I/O card will
accommodate two (2) additional CPUs and
two (2) additional Gbs of RAM. This
allows for a maximum of six (6)
additional CPUs and six (6) additional
Gbs of RAM per E4500 server. USi
recommends that Client upgrades in
bundles of 1 CPU/ 1 Gb RAM or 2 CPU/2 Gb
RAM to eliminate the I/O card
configuration complexity.
CLIENT CARE: Under the Client Care program, Client's Help Desk
will have availability to USi's Client Assistance
Center twenty-four (24) hours per day, seven (7)
days per week, three hundred sixty-five (365) days
per year.
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Proprietary & Confidential
12
BANDWIDTH VARIATION POLICY: Should Client exceed bandwidth or server
processing requirements of this project, USi
reserves the right to amend this Product Schedule
and increase the monthly fees to reflect the
additional bandwidth requirements. USi will
provide Client with a monthly status report of
bandwidth and server usage.
CONSULTING SERVICES: USi will provide Consulting Services as outlined
in Sections 1, 2, 3 and 4 of the Proposal.
SECURITY PROCEDURES: USi defines certain policies and procedures to
provide the level of security associated with the
iMAP Solution. Client acknowledges and understands
that no network security procedures can assure
complete network security or prevent all
unauthorized access to the network. These policies
and procedures will change over time to reflect
emerging technologies, business practices and
Internet-related issues.
SERVICE LEVEL AGREEMENT:
USi'S SERVICE LEVEL:
USi will provide for [***] during Phase I and for [***] during Phase 2 monthly
service availability for those components of the service within USi's direct
control, where "available" is defined as an Internet user being able to [***] to
the appropriate [***]. Specifically, covered services will include [***] and the
[***] facility, all [***], and all [***] provided by [***] as part of the [***].
REMEDY: (PHASE 1)
In the event USi is unable to provide an Internet client access to the custom
hosting server with:
1. [***] Availability in any given calendar month, Client shall receive a
credit to their account equal to [***] of that month's service fees
excluding rebilled circuit charges.
2. [***] Availability in any given calendar month, Client shall receive a
credit to their account equal to [***] of that month's service fees
excluding rebilled circuit charges.
3. [***] Availability in any given calendar month, Client shall receive a
credit to their account equal to [***] of that month's service fees,
excluding rebilled circuit charges.
If USi fails to meet [***] Availability for [***] calendar months, Client may
terminate this Product Schedule without penalty, regardless of any term
remaining on the Agreement, without liability to either party for penalties or
damages associated with such termination and upon thirty (30) days prior written
notice to USi.
REMEDY: (PHASE 2)
In the event USi is unable to provide an Internet client access to the custom
hosting server with:
1. [***] Availability in any given calendar month, Client shall receive a
credit to their account equal to [***] of that month's service fees
excluding rebilled circuit charges.
2. [***] Availability in any given calendar month, Client shall receive a
credit to their account equal to [***] of that month's service fees
excluding rebilled circuit charges.
3. [***] Availability in any given calendar month, Client shall receive a
credit to their account equal to [***] of that month's service fees,
excluding rebilled circuit charges.
If USi fails to meet [***] Availability for [***], Client may terminate this
Product Schedule without penalty, regardless of any term remaining on the
Agreement, without liability to either party for penalties or damages associated
with such termination and upon thirty (30) days prior written notice to USi.
"Availability" percentage shall be calculated as follows:
[***]
where "n" is the total number of hours in any given calendar month, and "x" is
the Availability percentage.
Specifically excluded from "n" in this calculation and exceptions to the levels
of Availability provided herein are (a) [***]; (b) reasons of Force Majeure (as
defined in Section 12.8 of the Agreement); (c) issues associated with [***] not
on [***] list; (d) use of unapproved or [***] and/or; (e) issues arising from
the [***] by Client, its employees, agents, customers or contractors.
*** 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.
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13
In the event of a Force Majeure event, the Client shall have the option of
canceling this Product Schedule with USi if the resulting total outage time is
greater than [***] in any [***] period, without liability to either party for
penalties or damages associated with such outages or termination and upon thirty
(30) days prior written notice to USi.
The remedies stated in this Section are Client's sole and exclusive remedies for
service interruption.
CLIENT RESPONSIBILITIES: This section describes Client's additional
responsibilities under this Agreement.
1. Client will designate qualified personnel to act as liaisons between
Client and USi.
2. Client is responsible for obtaining and complying with license terms for
all Client-provided software, if any, which are sufficient to allow use
of the software on the Hardware.
3. Client is solely responsible for the Contents of its transmissions and
the transmissions of Third Parties accessing the iMAP Solution through
Client. Client agrees to comply with U.S. and International law with
regard to the transmission of technical data which is exported from the
United States through the iMAP Solution. Client further agrees not to
use the iMAP Solution (a) for illegal purposes or (b) to interfere with
or disrupt other network users, network services or network equipment.
Interference or disruptions include, but are not limited to,
distribution of unsolicited advertising or chain letters, propagation of
computer worms and viruses, and use of the network to make unauthorized
entry to any other machine accessible via the network. If USi finds a
violation of the foregoing by Client, USi will immediately notify Client
in writing, and Client will close the account f the party responsible
for the violation within [***]. If Client fails to close the applicable
account within [***], USi may suspend its services until such time as
Client closes the applicable account.
4. Client shall be responsible for providing USi with end user login names
and passwords for the purpose of authenticating and authorizing Global
Network access by end users to the iMAP Solution.
5. Client shall be responsible for handling all communication, technical
support to and business relations with end users who are the customers
of Client including but not limited to responding to inquiries and
questions.
6. Client shall be responsible for providing to USi all information
required for the Acceptance Test in a timely manner and in form directed
by USi. Client shall participate in the Acceptance Testing in good faith
and with all due diligence.
7. Client shall provide USi with access to such hardware, software and
network connections that reside on Client's premises as USi shall
require.
8. Client shall be responsible for obtaining and maintaining the following
hardware and/or software:
a. Software Licenses: NAKS, Fulcrum, JavaVM, Apache, and
PictureTalk
Client may add or delete items from this list at any time.
9. Client shall be responsible to perform the obligations set forth in the
incorporated provisions of the Proposal.
OFFER EXPIRATION DATE: SEPTEMBER 30, 1999
USINTERNETWORKING, INC. NIKU CORPORATION
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx Xxxxxx
----------------------------------- ----------------------------------------
(signature) (signature)
Xxxxxxx X. Xxxxx
Vice President and General Counsel XXXXXX XXXXXX
----------------------------------------
(printed name)
CIO
----------------------------------------
(title)
9/30/99 9/30/99
----------------------------------- ----------------------------------------
(date) (date)
* 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.
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