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EXHIBIT 10.22
HP CONFIDENTIAL
APPLICATION TRANSFORMATION
PROGRAM AGREEMENT
BETWEEN
HEWLETT-PACKARD COMPANY
AND
INTERNATIONAL INTEGRATION
INCORPORATED
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APPLICATION TRANSFORMATION PROGRAM AGREEMENT
This Application Transformation Program Agreement ("Agreement") is made as of
this ........ day of .......................... 19... ("the Effective Date") by
and between HEWLETT-PACKARD COMPANY, a California corporation, and its
consolidated subsidiaries ("HP") and International Integration, Incorporated, a
Massachusetts corporation ("i-Cube").
The purpose of this Agreement is to set forth the mutually agreeable terms and
conditions under which the parties will cooperate to combine their complementary
skills and expertise to help customers migrate complex custom legacy software
applications to an HP open client/server platform ("Transformation Projects").
1 DEFINITIONS
1.1 "APPLICATION TRANSFORMATION CENTER ('ATC')" means the physical
location, staffed by i-Cube, where customer applications are
rearchitected.
1.2 "CUSTOMER" means a potential or actual Application Transformation
Program customer jointly targeted by HP and i-Cube for a particular
Transformation Project.
1.3 "i-STRUCTURE" means those i-Cube tools and methodologies used to
rearchitect a customer's legacy application to run on a client/server
platform.
1.4 "PROPOSAL" means the parties' response to a Request.
1.5 "REQUEST" means a request for proposal or invitation to bid issued by a
Customer with respect to a Transformation Project.
1.6 "WORK" means the products and/or services detailed in EXHIBIT A to be
offered to a Customer in a Proposal.
2 SCOPE OF AGREEMENT
2.1 HP and i-Cube shall cooperate in the preparation of Proposals to be
submitted by HP in response to Requests.
2.2 Each party agrees to undertake the activities set forth in this
Agreement and in Exhibit A. Unless otherwise agreed in writing, the
parties intend for HP to be the prime contractor, and i-Cube to be the
subcontractor to HP in accord with Section 4.3, with respect to
Transformation Projects. If the parties are selected based on a
Proposal, HP will enter into an agreement with the Customer ("Prime
Contract") to provide the Work as set forth in the Proposal.
3 ROLES AND RESPONSIBILITIES
3.1 HP
3.1.1 HP will provide a sales and delivery organization focused on
identifying, selling and delivering Transformation Projects as part of
the Application Transformation Program during the term of this
Agreement.
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3.1.2 HP's general delivery responsibilities are outlined in EXHIBIT A to
this Agreement or any respective EXHIBIT B-I, etc.
3.1.3 HP shall establish a process by which relevant technical information
and support is provided to i-Cube to facilitate integration of specific
HP products and technologies with i-Cube's i-Structure as determined
from time to time and mutually agreed to by the parties.
3.1.4 HP shall provide the equipment detailed in EXHIBIT D for use at the ATC
solely for the purposes of supporting the ATP.
3.2 i-CUBE
3.2.1 i-Cube will provide an organization focused on delivering
Transformation Projects sold by HP as part of the Application
Transformation Program during the term of this Agreement.
3.2.2 i-Cube will assist HP in selling Transformation Projects for twelve
months from the effective date of this Agreement.
3.2.3 i-Cube's general delivery responsibilities are outlined in EXHIBIT A to
this Agreement or any respective EXHIBIT B-1, etc.
3.2.4 i-Cube agrees to staff the ATC with up to 25 people within six months
after the Effective Date of this Agreement, commensurate with the
number needed to support Transformation Projects sold by HP and i-Cube.
4 OBLIGATIONS OF THE PARTIES
4.1 GENERAL
4.1.1 Either party, in its sole discretion, shall choose whether or
not to respond to any Customer Request; in the latter case it
shall have no responsibility to assist the other in the
preparation of a Proposal.
4.1.2 The Work to be provided by each of the parties is described in
EXHIBIT A.
4.1.3 HP and i-Cube agree to develop a sales and delivery process
that will establish the basis for interaction between the
parties.
4.1.4 Within sixty (60) days of the Effective Date of this Agreement,
HP and i-Cube agree to develop a joint business plan and
marketing plan. The business plan shall contain appropriate
targets and metrics for the ATP. The marketing plan shall
contain the resources and events to be used to promote the ATP.
These plans shall be updated as deemed necessary by both
parties.
4.1.5 Each party shall appoint a representative to supervise and
coordinate its performance of its obligations under this
Agreement. The representative shall provide professional and
prompt liaison with the other party and have the necessary
expertise and authority to commit the appointing party.
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4.1.6 All contacts with Customers pertaining to Requests, Proposals
and Prime Contracts shall be coordinated through HP. i-Cube
agrees to promptly notify HP if it is directly contacted by a
Customer concerning a Request, Proposal, Prime Contract or any
related matter.
4.1.7 Unless otherwise agreed by the parties in writing, each party
shall bear its own costs and expenditures incurred in
connection with the preparation, submission and negotiation of
the Proposals. Neither party shall be liable for the costs
incurred or other obligations undertaken by the other party in
connection with a Proposal or any such negotiation.
4.1.8 i-Cube will be available for consultation with HP during any
negotiations with a Customer. i-Cube shall, upon HP's request,
and upon reasonable notice, attend (either in person or by
phone) any negotiations or discussions between HP and a
Customer which pertain to a Proposal or Prime Contract.
4.2 PREPARATION AND SUBMISSION OF THE PROPOSAL
4.2.1 HP will furnish i-Cube with a copy of each Request, including
any terms and conditions required by the Customer to be
incorporated into the Prime Contract. Upon receipt of the
Request, HP and i-Cube shall agree on the format of i-Cube's
proposal and the time frame for its submission to HP.
4.2.2 HP shall be responsible for the preparation, content,
evaluation and submission to Customer of the Proposal and Prime
Contract. During the preparation of the Proposal, i-Cube will
be provided with an opportunity to review the areas of the
Proposal relating to the portions of the Work to be supplied by
i-Cube, and i-Cube's comments will be reviewed and incorporated
as reasonable by HP. i-Cube acknowledges that HP retains
ultimate control over the form and content of Proposals.
4.2.3 Each party shall draw up at its own cost a proposal with
respect to its responsibilities detailed in Exhibit A and as
required by a specific Request. Each party shall be solely
responsible for its proposal, including the accuracy and
adequacy of designs, interface and technical data, appropriate
performance parameters, Work, support and all other matters
proposed by it and for the completion and delivery times for
the Work proposed by it in its proposal. In addition, i-Cube
will provide HP with any exceptions it may have to the terms
and conditions required by the Request to be incorporated into
the Prime Contract. During preparation of their respective
proposals, the parties shall meet regularly to review and
discuss progress and resolve any issues.
4.2.4 i-Cube shall submit to HP its proposal, including prices, at
the agreed time and in the agreed format, in the form of an
irrevocable offer valid until the latest date for acceptance of
the Proposal by the Customer, or any extension thereto agreed
by HP, i-Cube and Customer.
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4.2.5 i-Cube shall identify in its proposal any pre-existing
proprietary rights, and any reservations or restrictions
pertaining thereto, involved in its Work. The Proposal shall
clearly indicate any areas which the parties consider to
contain pre-existing proprietary rights, and HP shall be
responsible for notifying Customer of any reservations or
restrictions pertaining thereto.
4.2.6 Each party shall use reasonable commercial efforts in the
preparation of a competitive Proposal and further shall engage
in any other reasonable activity which shall result in the
acceptance of the Proposal by Customer and the award of the
contract to HP.
4.2.7 HP shall supply a copy of the Proposal, excluding costing data
and any material covered by third party confidentiality
obligations, to i-Cube promptly after its submission to
Customer.
4.2.8 If, after submission of the Proposal, Customer requires
changes to the Proposal, HP shall coordinate with i-Cube and
submit any response. i-Cube shall make available at HP's
request employees empowered to make commitments in respect of
the matters to be discussed.
4.2.9 In the event Customer requires demonstrations prior to i-Cube's
execution of a subcontract, the parties will provide, upon
mutual agreement, the resources necessary to meet Customer's
request.
4.2.10 HP will promptly notify i-Cube of the receipt by HP of the
written or verbal acceptance or refusal by Customer of the
Proposal.
4.3 SUBCONTRACT
4.3.1 If HP is awarded the Prime Contract, the parties intend to
enter into a subcontract agreement whereby i-Cube will provide
products and services consistent with commitments agreed upon
in the Proposal and under the terms and conditions of the
Master Subcontract attached as EXHIBIT B. The terms of the
Master Subcontract may need to be modified for a specific
Transformation Project as a result of subsequent negotiations
between HP and a Customer. Such modifications will be set out
in a Statement of Work under Section 4.3.2. The parties will
work in good faith to include such modifications in the Master
Subcontract. In the event mutually acceptable modifications
cannot be negotiated and executed by the parties within a
reasonable period of time, and in any event within 30 days
after notice of the award of the Prime Contract, either party
shall have the right upon 10 days prior notice to the other to
terminate the relationship with respect to that Transformation
Project and to make other arrangements for the performance of
the Work to have been covered by the subcontract.
4.3.2 Where HP is awarded the Prime Contract, i-Cube will provide
products and services consistent with the commitments agreed
upon in the Proposal and as specified in one or more
Statement(s) of Work attached to EXHIBIT B as Exhibit ▇-▇, ▇-▇,
▇-▇, etc. Each such Statement of Work will reference
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this Agreement and the Master Subcontract and will be valid
upon execution by authorized representatives of both HP and
i-Cube. Each Statement of Work will constitute as separate
agreement on the terms set forth in such Statement of Work,
this Agreement, and the Master Subcontract and will specify (i)
the nature of the services to be performed and/or products to
be provided; (ii) the delivery schedule, (iii) the name of the
individual who will coordinate performance on behalf of i-Cube;
(iv) preliminary and final acceptance standards (if any); (v)
the warranty period (if any); (vi) the total price of the
services and products (including any labor and material costs);
(vii) the payment schedule (viii) the name of the HP customer
requesting the services and/or products; and (ix) any
additional information necessary to clarify the Statement of
Work. In the event of conflict between the terms and conditions
of a Statement of Work and the terms and conditions of this
Agreement, the terms of the Statement of Work will control.
4.3.3 HP and i-Cube agree that each individual Statement of Work
shall include those provisions of the applicable Prime Contract
which by its terms are required to be flowed down to a
subcontractor. HP will provide i-Cube with reasonable
opportunity to review such terms. In the event that i-Cube
disputes the flow down of certain terms and conditions, i-Cube
shall provide HP with its reasons, in writing. If HP and i-Cube
are unable to agree on the flow down of any terms and
conditions, either party shall have the right to terminate the
applicable Statement of Work.
5 PRICING AND PAYMENT
5.1 HP and i-Cube shall follow the pricing, revenue sharing and payment
terms outlined in EXHIBIT C of this Agreement. The revenue sharing
formula will be reviewed no later than one year after the Effective
Date of this Agreement.
6 INTELLECTUAL PROPERTY
6.1 All copyrights and other intellectual property rights existing prior to
the Effective Date, including but not limited to software tools, design
concepts, questionnaires, process guidelines and methodologies,
education materials, software (whether in object code or source code)
and related documentation, shall belong to the party that owned such
rights immediately prior to the Effective Date. Neither party shall
gain by virtue of this Agreement any rights of ownership of copyrights,
patents, trade secrets, trademarks or any other intellectual property
rights owned by the other. If the parties decide to undertake any joint
development pursuant to this Agreement, any such joint development
shall be governed by a separate joint development agreement to be
negotiated in good faith by the parties and executed prior to the
commencement of any joint development efforts.
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6.2 i-Cube will grant HP a license to use existing i-Cube software and
i-Structure as is necessary for HP to perform its tasks under this
Agreement, any Prime Contract and any Statement of Work. Such license
shall be used by HP only to fulfill the specific Agreement, Prime
Contract or Statement of Work as may be designated by i-Cube in
writing; shall relate only to the specific components of i-Cube
software and i-Structure as i-Cube may designate in writing; and shall
terminate on the termination of the applicable Agreement, Prime
Contract or Statement of Work with respect to which such software is
licensed.
6.3 HP will grant i-Cube a license to use those tools and methodologies as
is necessary for i-Cube to perform its tasks under the Agreement and a
Statement of Work. Such license shall be used by i-Cube only to fulfill
the specific Agreement or Statement of Work as may be designated by HP
in writing; shall relate only to the specific components as HP may
designate in writing; and shall terminate on the termination of the
applicable Agreement or Statement of Work with respect to which such
tools or methodologies are licensed.
7 CONFIDENTIALITY
7.l During the term of this Agreement, either party may receive or have
access to technical information, as well as information about product
plans and strategies, promotions, customers and related non-technical
business information which the disclosing party considers to be
confidential ("Confidential Information"). In the event Confidential
Information is to be disclosed, the parties shall first agree to
disclose and receive such information in confidence. If then disclosed,
the Confidential Information shall be marked as confidential at the
time of disclosure, or if disclosed orally but stated to be
confidential, shall be designated as confidential in a writing by the
disclosing party summarizing the Confidential Information disclosed and
sent to the receiving party within 30 days after such oral disclosure.
Notwithstanding any provision to the contrary, Proposals and all
business information with respect to any unpublished or future i-Cube
or HP products are deemed Confidential Information for purposes of this
Section 7.
7.2 Confidential Information may be used by the receiving party only with
respect to the performance of its obligations under this Agreement, and
only by those employees of the receiving party and its subcontractors
who have a need to know such information for purposes related to this
Agreement, provided that such subcontractors have signed separate
agreements containing substantially similar confidentiality provisions.
The receiving party shall protect the Confidential Information of the
disclosing party by using the same degree of care (but not less than a
reasonable degree of care) to prevent the unauthorized use,
dissemination or publication of such Confidential Information, as the
receiving party uses to protect its own confidential information of
like nature. The receiving party's obligation under this Section 7
shall be for a period of three years after the date of disclosure.
7.3 The obligations stated in this Section 7 shall not apply to any
information which is:
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7.3.l Already known by the receiving party prior to disclosure.
7.3.2 Publicly available through no fault of the receiving party.
7.3.3 Rightfully received from a third party without a duty of
confidentiality.
7.3.4 Disclosed by the disclosing party to a third party without a
duty of confidentiality on such third party.
7.3.5 Independently developed by the receiving party prior to or
independent of the disclosure.
7.3.6 Disclosed under operation of law.
7.3.7 Disclosed by the receiving party with the disclosing party's
prior written approval.
8 LIMITATION OF LIABILITY
Both parties' liability under this Agreement, Exhibit B (Master
Subcontract), and any Statement of Work thereunder, shall be limited
as set forth in Exhibit B.
9 DISPUTE RESOLUTION
9.1 In the event that the parties are unable to agree upon any matter
pursuant to this Agreement, the disputed matter shall be referred in
the first instance to the appointed representatives of the parties. If
the representatives are unable to resolve the disputed matter within a
reasonable time not to exceed 30 days, they shall refer the matter to
the General Manager of the Professional Services Organization for HP
and the Chief Executive Officer for i-Cube. In the event they cannot
reach a mutually acceptable resolution within a reasonable time not to
exceed 30 days, either party shall be entitled to seek all available
remedies, including legal remedies. Notwithstanding the foregoing,
either party may seek injunctive relief with respect to any disputed
matter without following the dispute resolution procedure set forth
above.
10 TERM AND TERMINATION
10.1 This Agreement shall come into force on the Effective Date and shall
continue in effect for a period of two (2) years, unless terminated
earlier by either party in accordance with the provisions hereof. This
Agreement will renew for additional one (1) year terms unless one party
provides written notification sixty (60) days prior to the end of the
term.
10.2 This Agreement shall automatically terminate upon the happening of one
of the following events, whichever shall occur first:
10.2.1 The insolvency, bankruptcy, reorganization under the bankruptcy
laws, or assignment for the benefit of creditors of either
party.
10.2.2 Mutual agreement of the parties to terminate the Agreement.
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10.3 In the event that a Customer terminates the agreement between HP and
that Customer, HP shall have the right to immediately terminate any
Statement of Work and subcontract affected by such Customer's
termination. Upon such termination by HP, HP will make any payments
then owed i-Cube by HP with respect to such Statement of Work and
subcontract, unless Customer's termination is due to acts or omissions
of i-Cube such as would constitute a breach of this Agreement or any
applicable subcontract or Statement of Work, in which case HP shall
have the right to offset against the amounts so owed to i-Cube the
amount of any damages resulting from such material breach.
10.4 Either party may terminate this Agreement for convenience upon 90 days
written notice to the other party. Any such termination does not
relieve either party of their respective obligations under any
subcontract and Statement of Work in effect at the date of termination
of this Agreement.
10.5 Either party may terminate this Agreement if the other party is in
material breach of any of its obligations under this Agreement and
fails to remedy the breach for a period of 30 days after a written
notice by the other party which specifies the material breach.
10.6 Sections 4.1.7 (Responsibility for Costs), 6 (Intellectual Property), 7
(Confidentiality), 8 (Limitation of Liability) and 11 (Miscellaneous)
shall survive the termination of this Agreement.
11 MISCELLANEOUS
11.1 NON-RESTRICTIVE RELATIONSHIP. Subject to Section 7, nothing in this
Agreement shall be construed to preclude HP from developing, acquiring,
or marketing projects which may perform the same or similar functions
as the products or services provided by i-Cube.
11.2 NO PUBLICITY. Neither party shall publicize or disclose to any third
party the terms of this Agreement or activities pursuant to this
Agreement, without the consent of the other party (such consent shall
not be unreasonably withheld), except as required by law and except for
disclosure in confidence to each party's legal and financial advisors.
11.3 NO JOINT VENTURE. Nothing contained in this Agreement shall be
construed as creating a joint venture, partnership or employment
relationship between the parties hereto, nor shall either party have
the right, power or authority to create any obligation or duty, express
or implied, on behalf of the other.
11.4 NO ASSIGNMENT. Neither party may assign any rights or obligations under
this Agreement without the prior written consent of the other party
other than by a party in connection with a sale of the business of
such party, whether by merger, sale of assets or stock, or otherwise.
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11.5 FORCE MAJEURE. Neither party will be liable for performance delays or
for non-performance due to causes beyond its reasonable control and not
due to its negligence.
11.6 NOTICES. All notices required under or regarding this Agreement shall
be in writing and shall be considered given upon personal delivery of a
written notice to the HP representative or i-Cube representative
designated pursuant to Section 4.1.2, or within five days of mailing,
postage prepaid and appropriately addressed.
11.7 WAIVER. Either party's failure to exercise any of its rights under this
agreement shall not constitute or be deemed to constitute a waiver or
forfeiture of such rights.
11.8 SEVERABILITY. If any term or provision of this Agreement is held to be
illegal or unenforceable, the validity or enforceability of the
remainder of this Agreement shall not be affected.
11.9 EXHIBITS. The following document is attached hereto as an exhibit, the
terms of which are incorporated by reference in their entirety: EXHIBIT
A, Service Delivery Framework; EXHIBIT B, Master Subcontract, EXHIBIT
C, Pricing and Payment, EXHIBIT D, Equipment to be Provided, EXHIBIT E,
i-Cube Software License Agreement, EXHIBIT F, HP Software License
Terms, EXHIBIT G, Escrow Agreement.
11.10 PRECEDENCE. In the event of conflict between the provisions of this
Agreement and any attached Exhibit, the Exhibit shall to the extent of
such conflict take precedence.
11.11 ENTIRE AGREEMENT. This Agreement and its Exhibits constitute the entire
agreement between HP and i-Cube, and supersede any previous or
contemporaneous communications, representations or agreements between
the parties, whether oral or written, regarding the subject matter of
this Agreement. The terms and conditions of this Agreement may not be
changed except by an amendment signed by an authorized representative
of each party.
11.12 APPLICABLE LAW. This Agreement is made under and shall be construed in
accordance with the law of the State of California without giving
effect to that state's choice of law rules.
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SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
HEWLETT-PACKARD i-CUBE
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: PSO GM Title: Chairman & C.F.O.
Date: 7/23/97 Date: 7/21/97
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