Exhibit 10.12
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
MARKETING AGREEMENT
THIS AGREEMENT entered into effective as at the ____ day of July, 1998
BETWEEN:
MCI SYSTEMHOUSE CORP.
a corporation incorporated under the laws of Delaware,
having its principal place of business at 0 Xxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxx, 00000-0000
(hereinafter, "MCIS")
AND:
COMMERCE ONE, INC.
a corporation incorporated under the laws of California,
having a place of business at 0000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxxxxxxxxx 00000
(hereinafter, "C1")
WHEREAS the parties each desire to enhance the marketability of their respective
products and services;
AND WHEREAS the parties have complementary capabilities, products, and services,
and it is to their mutual benefit to cooperate and work together for the
purposes of providing Services as defined herein to Customers;
AND WHEREAS the parties intend to submit Proposals to Customers in an effort to
secure Contracts with Customers;
AND WHEREAS MCIS and C1 each desire to define their mutual rights and
obligations in connection with any joint marketing efforts, the preparation and
submission of Proposals and in connection with certain matters which may arise
if the Customer enters into a Contract;
NOW THEREFORE, in consideration of the mutual premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1.0 INTERPRETATION
1.1 In this Agreement the following expressions shall, unless the subject
matter or context is inconsistent therewith, have the respective
following meanings:
"ACT OF INSOLVENCY" means that a party:
(i) institutes proceedings for its winding-up (except for
reorganization), liquidation, or dissolution or consents to the
filing of any petition with respect thereto or files a petition
seeking reorganization, readjustment, arrangement, composition or
similar relief under applicable law, or consents to the filing of
any such petition or to the appointment of a receiver, liquidator,
trustee or similar officer of itself or any part of its property
or makes an assignment for the benefit of creditors; or
(ii) if a court having jurisdiction enters a decree or order for its
winding up, liquidation or dissolution or adjudges it to be
insolvent or enters a decree or order which remains in force,
undischarged or unstayed, for a period of 20 Business Days or more
approving, as properly filed, a petition seeking reorganization,
readjustment, arrangement, composition or similar relief for any
such party under applicable law, or the appointment of any
receiver, liquidator, trustee or similar officer of any such party
or all or any part of its property; or
(iii) if any application is made with respect to it under chapter 7 or
chapter 11 of Title 11 of the U. S. Code or similar or replacement
legislation or if a proceeding is instituted for its winding up or
a petition in bankruptcy is presented against it under a
bankruptcy or similar act and such application, proceeding or
petition is not dismissed, stayed or withdrawn within 20 Business
Days after such party has notice or knowledge of the institution
thereof.
"AFFILIATE" of a party or other entity shall mean a corporation,
partnership, joint venture or other entity directly or indirectly,
through one or more intermediaries, controlling, controlled by or under
common control with such party or other entity.
"AGREEMENT" means this agreement, any Schedule or Exhibit hereto, and all
amendments or modifications thereto.
"BUSINESS DAY" means any day between the hours of 8:00 a.m. and 5:00
p.m., Pacific time, other than a Saturday, Sunday or United States
federal holiday.
"C1 SOFTWARE" means the C1 software products as defined by the term
"Software" in the License Agreement.
"CONFIDENTIAL INFORMATION" means confidential or proprietary information
disclosed by a party pursuant to this Agreement, as defined in the Non-
Disclosure Agreement between the parties attached hereto as Schedule "B".
2
"CONTRACT" means a contract entered into by either or both parties with a
Customer resulting from a Proposal.
"CUSTOMER" means an existing or potential customer or end-user of either
party, for whom Services may be performed.
"CUSTOMER OPPORTUNITY(IES)" means those opportunities to provide Services
to a Customer pursuant to this Agreement, as further defined in Schedule
"A" - Co-Marketing Obligations.
"EXHIBIT(S)" means the attachments to this Agreement listed in Section
1.6.
"EFFECTIVE DATE" means July __, 1998.
"INCLUDING" means "including without limitation" and is not to be
construed to limit any general statement which it follows to the specific
or similar items or matters immediately following it.
"LICENSE AGREEMENT" means the license agreement between the parties of
even date herewith.
"SUPPORT AGREEMENT" means the maintenance and support agreement between
the parties of even date herewith.
"PERSON" means an individual, partnership, corporation (including
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity or a government or any agency, department
or instrumentality thereof or vice versa howsoever designated or
constituted.
"PROPOSAL" means a proposal for the provision of Services made by either
or both parties to a Customer.
"SCHEDULE(S)" means the attachments to this Agreement listed in Section
1.6.
"SERVICES" means the products (including the C1 Software) and services to
be provided through the cooperation of the parties as described herein.
"TERRITORY" means anywhere in the world.
"WORK PRODUCT" means all original literary, artistic, technical, or other
material made, prepared, developed or produced by either party in the
performance of its obligations pursuant to this Agreement including
documentation, reports, manuals, and flow charts, but excluding ideas,
concepts, know-how or techniques.
3
1.2 HEADINGS. The division of this Agreement into Sections and the
insertion of recitals and headings are for convenience of reference only
and shall not affect the construction or interpretation hereof.
1.3 SINGULAR, PLURAL, GENDER. Wherever in this Agreement the context so
requires, the singular number shall include the plural number and vice
versa and any gender herein used shall be deemed to include the feminine,
masculine or neuter gender.
1.4 AGREEMENT. The terms "hereof", "hereto", "herein", "hereunder" and
similar expressions refer to this Agreement and not to any particular
Section or other portion hereof and include any agreement supplemental
hereto.
1.5 ENTIRE AGREEMENT. This Agreement, together with the License Agreement
and the Support Agreement both of even date herewith, completely and
exclusively state the agreement of the parties regarding the subject
matter hereof and thereof. In the event of any conflict between the
terms of this Agreement and the License Agreement or the Support
Agreement, the terms of such other agreement shall control with respect
to the subject matter of such agreement. This Agreement supersedes, and
its terms govern, all prior proposals, agreements or other communications
between the parties, oral or written, regarding the subject matter of
this Agreement. This Agreement shall not be modified except by a
subsequently dated written amendment signed on behalf of C1 and MCIS by
their duly authorized representatives, and any purchase order purporting
to supplement or modify the provisions hereof shall be void.
1.6 SCHEDULES. The following are the Schedules attached to and forming
part of this Agreement:
Schedule "A" - Co-Marketing Obligations
Schedule "B" - Non-Disclosure Agreement
Exhibit "1" - C1 Standard Cancellation Policy - Training
The terms and conditions of any Schedule or Exhibit are in addition to
the terms and conditions set forth in this Agreement, except where such
terms and conditions of any Schedule conflict or are inconsistent with
the terms and conditions of the main body of this Agreement, in which
case the terms and conditions of the main body of this Agreement shall
prevail in all respects, and those of the Schedules shall prevail over
those of the Exhibits.
1.7 SEVERABILITY. In the event that any provision of this Agreement shall be
unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not
render this Agreement unenforceable or invalid as a whole and, in such
event, any such provision shall be changed and interpreted so as to best
accomplish the objectives of such unenforceable or intended provision
within the limits of applicable law or applicable court decisions.
4
1.8 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the United States of America and the State of New York as
such laws are applied to agreements entered into and to be performed
entirely within New York between New York residents. The parties agree
that the United Nations Convention on Contracts for the International
Sale of Goods is specifically excluded from application to this
Agreement.
1.9 DATE FOR ACTION. In the event that any date on which any action is
required to be taken hereunder by any of the parties is not a Business
Day, such action shall be required to be taken on the next succeeding day
which is a Business Day unless otherwise provided in this Agreement.
1.10 CURRENCY. All references to currency are deemed to mean United States
dollars unless expressed to be in some other currency.
2.0 TERM
2.1 This Agreement shall be deemed effective as of the Effective Date and
shall continue in full force and effect for an initial term of three (3)
years unless earlier terminated in accordance with the terms of this
Agreement. For those Customer Opportunities for which a Proposal has been
submitted to the Customer prior to the termination of this Agreement, the
terms of this Agreement will survive and apply to Proposals accepted by a
Customer or contracts entered into with such Customer for the provision
of Services within nine (9) months from the date of termination of this
Agreement unless the parties otherwise mutually agree to extend such
period.
3.0 RELATIONSHIP OF THE PARTIES
3.1 The parties hereby agree to collaborate in order to mutually identify and
develop, subject to the terms and conditions of this Agreement, suitable
Customer Opportunities. Customer Opportunities will be pursued pursuant
to the requirements set forth in Schedule "A" attached hereto and
incorporated herein by reference.
3.2 The parties hereto shall be deemed to be independent contractors, and the
employees of one shall not be deemed to be employees of the other.
Neither party shall act as the agent of the other, and neither party
shall have any authority to, or shall attempt to, bind or commit the
other party for any purposes. This Agreement is not intended by the
parties, and shall not be deemed, to constitute or create a joint
venture, joint enterprise, partnership, or formal business organization
of any kind whatsoever.
3.3 Subject to any limitations set forth in Schedule A, "Co-Marketing
Obligations", each party expressly understands and agrees that the other
party may sell its respective
5
products and services in the ordinary course of its business to third
parties who may individually submit a proposal to a Customer.
3.4 Nothing in this Agreement shall be construed as providing for the sharing
of profits or losses arising out of the efforts of the parties, except as
expressly provided in Section 5.0.
3.5 Neither party shall make any warranties, express or implied, concerning
the performance of the Services of the other party, including without
limitation fitness for a particular purpose.
4.0 RESPONSIBILITIES OF THE PARTIES
4.1 In addition to the responsibilities set forth in this Agreement, the
parties agree to the additional responsibilities set out in the
Schedules.
4.2 MCIS and C1 shall each use commercially reasonable efforts to formulate
Proposals and do all things reasonably appropriate and necessary to
secure the award of a Contract in accordance with the responsibilities
outlined herein.
4.3 Each party will provide to the other for such party's use to assist, as
reasonably necessary, in preparing a Proposal or in responding to
subsequent inquiries from the Customer, the following:
(i) such business information as a Customer, acting in a commercially
reasonable manner, deems necessary for selecting C1 as a software
supplier or MCIS as a services provider provided that this
information must be requested in writing by the Customer, with a
copy to both parties, and subject to Customer's execution of a
non-disclosure agreement reasonably acceptable to the party
providing such information;
(ii) technical data and information related to the Proposal;
(iii) drafts of relevant portions of a Proposal, if applicable;
(iv) prototypes and working demonstrations of its products;
(v) reasonable cost and pricing data for its portion of the Proposal
as requested by Customer, if applicable; and
(vi) commercially reasonable access to key personnel.
4.4 The parties agree to use reasonably commercial efforts to work with each
other in all applicable areas, including but not limited to Proposal
preparation, demonstration, submission and presentations to Customer, if
applicable.
6
4.5 The parties each will designate one or more individuals within their
organizations as their representative(s) responsible to direct
performance of the parties' obligations under this Agreement
(respectively, the "PROPOSAL CONTACTS"). The following Proposal Contacts,
who may be replaced or changed upon written notice to the other party
from time to time, are named for the purposes herein:
For MCIS: ________________
________________
MCI Systemhouse Corp.
________________
________________
_______________, California ______
Fax #: ______________
For C1: Xxxxxxx Xxxxx
Xxxx Xxxxx
Commerce One, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax #: 000-000-0000
4.6 Each party will advise the other party in a timely manner of any changes
in a Customer Opportunity which may affect the other party's areas of
responsibility for Services. In the event of such changes, the parties
will enter into good faith negotiations to revise a Proposal to increase
or decrease the Services to be performed by each party hereunder and the
associated impacts on pricing; provided that in no event shall either
party have the right to modify the other party's obligations under a
Proposal without such party's prior written consent to such
modifications.
5.0 SALES COMMISSIONS
5.1 C1 shall pay MCIS [*] of each MCI-based ECN transaction fee paid by any
C1 Customer during the term of this Agreement where such Customer has not
engaged MCIS to provide systems integration services. C1 shall pay MCIS
[*] of each MCI-based ECN transaction fee paid by any C1 Customer during
the term of the Agreement where such Customer has engaged MCIS to provide
systems integration services and MCIS performs such integration services.
For purposes of this Section 5.1, "MCI-based ECN transaction fee" shall
mean fees, to the extent received in cash by C1, from Customers whose C1
proprietary electronic commerce networks ("ECN") are hosted by an MCIS
Affiliate with respect to transactions executed over such networks. It
is understood and agreed that "MCI-based ECN transaction fees" shall not
include license fees, maintenance and
____________________________
[*] =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.
[*] =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.
7
support fees, professional service or consulting fees or any other amount
not expressly included within the definition of "MCI-based ECN
transaction fees" above.
5.2 With respect to any C1 licenses entered into during the term of the
Agreement for which MCIS provides systems integration services (whether
such services are provided as a subcontractor to C1, directly to the
Customer by MCIS or by MCIS through a third party subcontractor) to the
Customer, C1 shall pay MCIS (i) [*] of all such license fees payable by
Customers or distributors to C1 for SAP-based accounts (i.e., accounts
where the Customer has implemented, contracted to implement, or has
otherwise identified that it intends to implement SAP America, Inc.'s
and/or its affiliate's proprietary enterprise resource planning software
solution), and (ii) [*] of all such license fees payable by Customers or
distributors to C1 for all accounts that are not SAP-based accounts as
defined above. For purposes of this Section 5.2, "license fees revenue"
shall mean license fees payable to C1 for C1 software. It is understood
and agreed that "license fees revenue" shall not include any amounts
received by C1 for transaction fees, maintenance and support fees,
professional service or consulting fees or any other amount not expressly
included within the definition of "license fees revenue" above.
5.3 With respect to any C1 licenses entered into during the term of the
Agreement which do not fall within the scope of Section 5.2 hereof, but
for which MCIS or it Affiliates provided real sales and marketing
support - such support including but not limited to participation in
Customer presentations, sales calls, direct Customer mailings, seminars,
trade shows or user group activities, - C1 shall pay MCIS (i) [*] of all
such license fees payable by Customers to C1 where C1 has a contractual
obligation to provide a sales agency fee or other comparable fee to
another Preferred Systems Integrator, or to Ernst & Young Technology,
Inc. or Cambridge Technology Partners, Inc. under either party's Sales
Agency Agreement in effect as of the Effective Date; and (ii) [*] of all
such license fees payable by Customers to C1 where C1 has no obligation
to provide a sales agency fee or other comparable fee to another
Preferred Systems Integrator or the entities identified under subsection
(i) above.
5.4 C1 shall provide quarterly reports of commissions due pursuant to
Sections 5.1, 5.2 and 5.3 hereof and shall pay MCIS any such commissions
within thirty (30) days of the close of a calendar quarter.
5.5 The rates set forth in Sections 5.1, 5.2 and 5.3 hereof are determined
based on C1's current business model for delivering its products and
services to the marketplace. In the event of any material change to the
C1 business model or pricing during the term of this Agreement, the
parties agree to equitably adjust such rates in such a manner as to yield
a comparable compensation to MCIS. Any such adjustment shall be
effective for all transactions impacted by such change in business model
or pricing.
5.6 In the event C1, pursuant to generally accepted accounting principles,
writes-off as a bad debt any license fees payable by a Customer for which
C1 paid a commission to MCIS pursuant to Section 5.2 or Section 5.3, then
MCIS shall refund to C1 within thirty (30)
8
days of receipt of evidence of such bad debt write-off, a PRO RATA
portion of any commissions paid to MCIS pursuant to Section 5.2 or
Section 5.3, in either case, calculated based on the ratio of the
total license fees charged to the applicable Customer to the total
amount of license fees to be written-off.
6.0 DISPUTE RESOLUTION
6.1 The parties hereto agree to attempt to settle any dispute, controversy or
difference which may arise between or among them in connection with this
Agreement or any Schedule or Exhibit attached hereto (except as otherwise
expressly contemplated by this Agreement or any such Schedule or Exhibit)
by good faith discussions between or among representatives designated by
the parties to the dispute. During the course of the discussions between
or among such representatives, the parties will comply with all
reasonable requests for access to relevant information. The specific
format for such discussions will be left to the discretion of the
designated representatives but may include the preparation of agreed upon
statements of fact or written statements of position furnished to the
other party. If resolution cannot be achieved by such representatives
within five (5) Business Days of referral, the dispute will be referred
to the senior management of both parties. During the course of the
discussions between or among the senior management, the parties will
comply with all reasonable requests for access to relevant information.
The specific format for such discussions will be left to the discretion
of the senior management but may include the preparation of agreed upon
statements of fact or written statements of position furnished to the
other party.
6.2 If resolution cannot be achieved by senior management of both parties
within five (5) Business Days of referral, then arbitration may be
conducted upon written notice to the other party demanding arbitration in
accordance with Section 6.3 below.
6.3 Without prejudice to any party's right to seek equitable relief
(including, but not limited to, injunction) from a court of competent
jurisdiction, any dispute or disagreement arising between the parties in
connection with this Agreement, which is not settled to the mutual
satisfaction of the parties in accordance with the procedures identified
under Sections 6.1 and 6.2 hereof, shall be settled by arbitration, to be
conducted in San Francisco, California, in accordance with the
J.A.M.S./ENDISPUTE Arbitration Rules and Procedures, as amended by this
Agreement. The cost of the arbitration, including the fees and expenses
of the arbitrator(s), will be shared equally by the parties unless the
award otherwise provides. Each party shall bear the cost of preparing
and presenting its case. The parties agree that this provisions and the
arbitrator's authority to grant relief shall be subject to the United
States Arbitration Act, 9 U.S.C. 1-16 et seq. ("USAA"), the provisions of
this Agreement, and the ABA-AAA Code of Ethics for Arbitrators in
Commercial Disputes. The parties agree that the arbitrator(s)) shall
have no power or authority to make awards or issue orders of any kind
except as expressly permitted by this Agreement, and in no event shall
the arbitrator(s) have the authority to make any award that provides for
punitive or exemplary damages. The decision of the arbitrator(s) shall
follow the plain meaning of the relevant documents, and shall be final
and binding upon
9
the parties. The award may be confirmed and enforced in any court of
competent jurisdiction. All post-award proceedings shall be governed
by the USAA. This Agreement and the rights and obligations of the
parties shall remain in full force and effect pending the award in any
arbitration proceeding hereunder. Except where clearly prevented by
the nature of the dispute, the parties shall continue performing their
respective duties, obligations and responsibilities under this
Agreement while the dispute is being resolved in accordance with this
Section, unless and until such obligations are lawfully terminated or
expire in accordance with the provisions hereof.
6.4 No action, claim or proceeding arising out of this Agreement, regardless
of the form thereof, may be brought by either party more than two (2)
years following the later of either the termination of this Agreement,
or the date upon which the cause of action became known to the party
initiating such action.
7.0 REPRESENTATIONS AND WARRANTIES
7.1 MCIS represents, warrants and covenants to C1 that:
(i) the entering into and performance of this Agreement is not
restricted or limited by, and will not result in a breach by MCIS
of, any other obligations, duties, agreement or covenant to any
Person;
(ii) MCIS has the authority, unencumbered right, and full corporate
power, to enter into and perform this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by
MCIS and constitutes a valid, binding and legally enforceable
agreement of MCIS; and
(iv) it shall discharge all of its obligations hereunder in a proper,
efficient and business-like manner using persons with skills and
experience appropriate to their function.
7.2 THE OBLIGATIONS OF MCIS EXPRESSLY STATED IN THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. WITHOUT
LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS EXCLUSION OF ALL
OTHER WARRANTIES AND CONDITIONS EXTENDS TO IMPLIED WARRANTIES OR
CONDITIONS OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABLE
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY
STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF
TRADE.
7.3 C1 represents, warrants and covenants to MCIS that:
10
(i) the entering into and performance of this Agreement is not
restricted or limited by, and will not result in a breach by C1
of, any other obligations, duties, agreement or covenant to any
Person;
(ii) C1 has the authority, unencumbered right, and full corporate
power, to enter into and perform this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by
C1 and constitutes a valid, binding and legally enforceable
agreement of C1; and
(iv) it shall discharge all of its obligations hereunder in a proper,
efficient and business-like manner using persons with skills and
experience appropriate to their function.
7.4 THE OBLIGATIONS OF C1 EXPRESSLY STATED IN THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. WITHOUT
LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS EXCLUSION OF ALL
OTHER WARRANTIES AND CONDITIONS EXTENDS TO IMPLIED WARRANTIES OR
CONDITIONS OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABLE
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY
STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF
TRADE.
8.0 AUDITS AND REPORTS
8.1 Each party (for the purposes of this Section 8.0, the "auditing party")
shall have the right upon reasonable notice to audit the records of the
other party (for the purposes of this Section 8.0, the "audited party")
to ensure that the audited party is in compliance with this Agreement.
Any such audit shall be conducted during regular business hours at the
audited party's offices, in such a manner as not to interfere with the
audited party's normal business activities and only by a third party
independent auditor who is a nationally recognized certified public
accounting firm other than Pricewaterhouse Coopers LLP. Such independent
auditor shall hold all information obtained from the audited party in
confidence and shall report to the auditing party only on the compliance
of the audited party with the terms of the Agreement. In no event shall
audits be conducted more frequently than annually. If any such audit
reveals that any amount is owed to the auditing party, the audited party
shall promptly pay such amount together with any interest due. If the
amount is within ten percent (10%) of the amount previously reported by
the audited party, the auditing party shall pay for such audit and if the
number is greater than ten percent (10%), then the audited party shall
pay the reasonable costs of such audit.
11
8.2 Each party shall maintain complete, true and accurate accounting and
business books and records regarding its activities under this Agreement
in accordance with U.S. generally accepted accounting principles and such
party's business practices. Each party shall retain such books and
records for not less than two (2) years following the date of final
payment hereunder.
9.0 INTELLECTUAL PROPERTY RIGHTS
9.1 BRANDING. MCIS agrees to display on a bundled C1
Software / MCIS Service offering, or in connection with its marketing,
promotion and sale of a bundled C1 Software / MCIS Service offering,
one or more brands or logos provided by C1 that indicate that such
offering contains technology and/or software provided by C1 (the
"C1 Logos"). The parties acknowledge and agree that, as between MCIS
and C1, C1 shall own all right, title and interest in and to the C1
Logos. The C1 Logos shall be used by MCIS in accordance with C1's
guidelines for use of the C1 Logos issued in writing from time to time.
C1 shall have the right to change the C1 Logos or the guidelines for use
of the C1 Logos upon reasonable notice to MCIS; however, MCIS shall be
entitled to phase out its previous use of the C1 Logos over a reasonable
period of time not to exceed six (6) months (or such earlier time as may
be requested by C1 at C1's expense). Upon C1's reasonable request,
samples of all materials that may be distributed by MCIS displaying the
C1 Logos shall be submitted to C1 to verify compliance with C1's
guidelines for use of the C1 Logos. Subject to the foregoing, MCIS
shall be permitted to brand a bundled C1 Software / MCIS Service offering
using its own trademarks, service marks, trade names, logos, trade dress
or other similar designations (collectively, the " MCIS Marks"). As
between MCIS and C1, MCIS shall own and retain any and all rights in
the MCIS Marks. C1 shall not have the right to use any MCIS Marks or
other intellectual property without MCIS' express prior written consent.
Except as expressly provided above with respect to the C1 Logos, MCIS
shall not have the right under this Agreement to use any other C1 owned
or controlled trademarks, service marks, trade names, logos, trade dress
or other similar designations without C1's prior written consent.
9.2 OWNERSHIP. Except as expressly provided herein (including in Schedule A
attached hereto), ownership of any Work Product or other intellectual
property developed or otherwise arising pursuant to this Agreement shall
be treated as prescribed by the License Agreement.
9.3 COMPETING PRODUCTS AND SERVICES. Subject to Schedule A "Co-Marketing
Obligations", this Agreement shall not preclude the parties from
developing materials or providing services which are competitive to the
Work Product irrespective of their similarity to computer programming
code, documentation or other materials or services which might be
delivered pursuant to this Agreement, except to the extent any of same
may infringe or misappropriate any of the other party's or its
subcontractor's or supplier's patent, copyright or other proprietary
rights or Confidential Information.
12
10.0 PUBLICITY
10.1 Except as may be required by law or by the rules, regulations or by-laws
of any stock exchange or securities regulator, neither party will make
any news release, public announcement, advertisement, or publicity
concerning the existence or contents of this Agreement, a Proposal, any
resulting Contract, or any subcontract, without the prior written
approval of the other party and Customer as may be required. Any such
publicity shall give due credit to the contributions of each party.
10.2 Each party will:
(i) conduct business in a manner that reflects favorably at all times
on the good name, goodwill and reputation of the other party;
(ii) not engage or cooperate in deceptive, misleading or unethical
practices or representations that are or might be detrimental to
the other party or reflect adversely on the other party's products
or services;
(iii) not make any representations to anyone with respect to the
specifications, features or capabilities of the other party's
products or services that are inconsistent with the literature
distributed by the other party, including all disclaimers
contained in such literature, this Agreement or any Schedule or
Exhibit hereunder;
(iv) not make any warranty or representation in respect of the subject
matter of this Agreement to anyone that would give the recipient
any claim or right of action against the other party;
(v) not infringe any patent, copyright, trade secret, trade xxxx or
other proprietary right in connection with any published
advertising or promotional materials produced by such party and
provided to the other party pursuant to this Agreement; and
(vi) indemnify and hold the other party harmless from any cost,
liability and expense, including legal fees, arising out of any
breach by such party of the terms of this Section 10.0.
11.0 NON-SOLICITATION
11.1 During the term of this Agreement, and for a period of one year after the
termination hereof, each party agrees not to directly solicit any
employee of the other who has participated in the performance of this
Agreement without the prior written consent of such other party.
However, if an employee of either party in an unsolicited manner
approaches the other for potential employment, and such person was
subsequently hired by the other party, such actions shall not constitute
a breach.
13
12.0 TERMINATION
12.1 This Agreement shall automatically expire and be deemed terminated
effective upon the date of the occurrence of any one of the following
events, whichever shall first occur:
(i) mutual agreement of the parties to terminate the Agreement;
(ii) any Act of Insolvency by or in respect of any party;
(iii) material breach of this Agreement by any party with such breach
remaining unremedied within thirty (30) days after written notice
to the breaching party specifying the nature of the breach; or
(iv) termination of the License Agreement pursuant to Section 4(c)
thereof.
12.2 In the event [*] enters into a license agreement for the license of the
C1 Software and establishes a project plan (including a target "go live"
date) for the implementation of such C1 Software as such business unit's
electronic procurement solution during the term of the Agreement, then C1
shall have the option by giving [*] prior written notice, to terminate
the Agreement at the end of the first contract year. Upon election of
this option, all joint marketing funds for the applicable year (as
provided in Schedule A) which are paid and which are not expended, shall
be returned to the parties. In the event C1 does not elect such
termination on or before the thirtieth day prior to the close of the
first contract year, then C1 shall be deemed to have waived its
termination option and the contract shall remain in effect for the
remainder of the term. In the event of early termination under this
Section 12.2, C1 shall pay any commissions payable pursuant to Section
5.0 hereof for any license of the C1 Software or ECN transaction fees
falling within the scope Section 5.0; provided such license is entered
into or such ECN transaction fee is incurred within one (1) year of the
effective date of such early termination.
12.3 In the event of MCIS' divestiture from the MCI family of companies,
(including, upon successful completion of the pending merger, WorldCom),
and the failure or inability of the successor to perform the services
which are contemplated as part of this Agreement (whether directly or
through an alliance or subcontractor) at least in substantially the same
manner and with the same degree of competency as MCIS and its Affiliates
prior to such divestiture during the first six (6) months after such
divestiture, C1 shall have the option to terminate this Agreement;
provided C1 refund any and all marketing dollars paid by MCIS or its
successor for the year during which such termination takes place.
_______________________________
[*] =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.
14
12.4 The parties' rights and obligations under Section 1.0 "Interpretation",
Section 2.0 "Term", Section 3.0 "Relationship of the Parties", Section
6.0 "Dispute Resolution", Section 7.2, Section 7.4, Section 8.0 "Audits
and Reports", Section 9.0 "Intellectual Property Rights", Section 10.1,
Section 11.0 "Non-Solicitation", Section 12.0 "Termination", Section 13.0
"Liability", Section 14.0 "Indemnity" and Section 15.0 "General" and
those provisions of the Non-Disclosure Agreement, Schedule B, that
survive in accordance with the terms thereof, shall survive termination
or expiration of this Agreement for any reason.
13.0 LIABILITY
13.1 NEITHER PARTY NOR ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR ANY LOSS
OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT
LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN THIS SECTION
13.0 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS
AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14.0 INDEMNITY
14.1 C1 Indemnity.
14.1.1 GENERAL INDEMNITY. C1 at C1's own expense, shall defend, hold
harmless and indemnify MCIS, its Affiliates, and its and their
respective directors, officers, employees and agents, from and
against any and all claims, costs, liabilities, damages, losses or
expenses (including without limitation reasonable attorneys' fees)
arising from: (a) third party claims that the C1 Software or any
other Services performed or delivered by C1 to MCIS, its
Affiliates, or its Customers (i) infringes a copyright or other
intellectual property right or misappropriates a third party's
trade secret under the law of any country that is a member of the
Berne Convention or (ii) infringes any valid patent issued in any
country that is a party to the Paris Convention; (b) third party
claims of injury to or death of any person or loss of or damage to
any tangible property to the extent caused by the intentional or
negligent acts or omissions of C1, its Affiliates or their
respective personnel in the performance or delivery of any
Services hereunder; or (c) any C1 personnel being declared to have
"employee" status with respect to MCIS. MCIS
15
or the applicable MCIS Affiliate shall: (x) promptly notify C1
in writing of the claim; (y) grant C1 sole control of the
defense and all related settlement negotiations; and (z)
provide C1 with the assistance, information and authority
necessary to perform C1's obligations under this Section 14.1.
C1 will reimburse MCIS' and its Affiliates' reasonable
out-of-pocket expenses incurred in providing such assistance.
To the extent any failure by MCIS or its Affiliate to perform
any of the foregoing directly has an adverse impact on C1's
liability to the applicable third party, C1 shall be entitled
to reduce the amount of its indemnification exposure hereunder
by the amount of such adverse impact. MCIS or its Affiliate
may, at its own expense, be represented in such defense.
14.1.2 EXCLUSIONS. C1 shall have no liability for any claim of
infringement or misappropriation to the extent based on (i) use of
other than the latest release of the C1 Software during the period
of time when the infringement would have been avoided by use of
the latest release; (ii) modification of the C1 Software by MCIS
if the infringement would have been avoided without such
modification; or (iii) the combination or use of the C1 Software
furnished hereunder with materials not furnished or specified by
C1 if such infringement would have been avoided by use of the C1
furnished or specified materials alone.
14.1.3 ALTERNATIVES. In the event the C1 Software is held to, or C1
believes is likely to be held to, infringe any intellectual
property right, C1 shall have the right at its sole option and
expense to (i) substitute or modify the C1 Software in a manner
that is functionally and operationally equivalent and
noninfringing; or (ii) obtain for MCIS a license to continue using
the C1 Software as provided in this Agreement; or (iii) if (i) and
(ii) are not reasonably practicable, terminate this Agreement.
14.1.4 EXCLUSIVE REMEDY. THE FOREGOING STATES THE SOLE AND EXCLUSIVE
REMEDY OF MCIS AND THE ENTIRE LIABILITY AND OBLIGATION OF C1 WITH
RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY ARISING HEREUNDER.
14.2 MCIS Indemnity.
14.2.1 MCIS at MCIS' own expense, shall defend, hold harmless and
indemnify C1, its Affiliates, and its and their respective
directors, officers, employees and agents, from and against any
and all claims, costs, liabilities, damages, losses or expenses
(including without limitation reasonable attorneys' fees) arising
from (a) third party claims that the Services performed or
delivered by MCIS to C1, its Affiliates, or its Customers (i)
infringes a copyright or other intellectual property right or
misappropriates a third party's trade secret under the law of any
country that is a member of the Berne Convention or (ii) infringes
any valid patent issued in any country that is a party to the
Paris Convention; or (b) third party claims of injury to or death
of any person or loss of or damage to any tangible property to
16
the extent caused by the intentional or negligent acts or
omissions of MCIS, its Affiliates or their respective personnel
in the performance of any Services hereunder. C1 or the applicable
C1 Affiliate shall: (x) promptly notify MCIS in writing of the
claim; (y) grant MCIS sole control of the defense and all related
settlement negotiations; and (z) provide MCIS with the
assistance, information and authority necessary to perform MCIS'
obligations under this sub-Section 14.2. MCIS will reimburse C1's
and its Affiliates' reasonable out-of-pocket expenses incurred in
providing such assistance. To the extent any failure by C1 or its
Affiliate to perform any of the foregoing directly has an adverse
impact on MCIS' liability to the applicable third party, MCIS
shall be entitled to reduce the amount of its indemnification
exposure hereunder by the amount of such adverse impact. C1 or
its Affiliate may, at its own expense, be represented in such
defense.
14.2.2 EXCLUSIVE REMEDY. THE FOREGOING STATES THE SOLE AND EXCLUSIVE
REMEDY OF C1 AND THE ENTIRE LIABILITY AND OBLIGATION OF MCIS WITH
RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT ARISING HEREUNDER
15.0 GENERAL
15.1 NOTICES. All notices or reports permitted or required under this
Agreement shall be in writing and shall be by personal delivery,
telegram, telex, telecopier, facsimile transmission, or by certified or
registered mail, return receipt requested, and shall be deemed given upon
personal delivery, five (5) days after deposit in the mail, or upon
acknowledgment of receipt of electronic transmission. Notices shall be
sent to the addresses set forth below, or such other address as either
party may specify in writing.
For MCIS: Xxxxx Xxxxxxx
MCI Systemhouse Corp.
000 000xx Xxx., XX, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Fax #: ______________
For C1: Xxxx Xxxxx
Commerce One, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax #: 000-000-0000
15.2 FORCE MAJEURE. Neither party shall be liable hereunder by reason of any
failure or delay in the performance of its obligations hereunder on
account of strikes, riots, insurrection, fires, flood, storm, explosions,
acts of God, war, governmental action, labor conditions,
17
earthquakes, material shortages or any other cause which is beyond the
reasonable control of such party.
15.3 ASSIGNMENT. This Agreement shall not be assigned by C1 or MCIS in whole
or in part without the prior written approval of the other party,
provided either party shall have the right to assign this Agreement in
connection with the merger or acquisition of such party or the sale of
all or substantially all of its assets related to this Agreement without
such consent. Any assignment in violation of this sub-Section shall be
void and of no effect. Nothing in this Section 15.3 is intended to
prevent either party from subcontracting certain obligations under this
Agreement to third parties for purposes of delivering Services.
15.4 WAIVER. The failure of either party to require performance by the other
party of any provision hereof shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by either
party of a breach of any provision hereof be taken or held to be a waiver
of the provision itself. No failure on the part of any party hereto to
exercise and no delay in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or remedy by any party preclude any other or
further exercise thereof or the exercise of any other right, power or
remedy. No express waiver or consent by any party hereto to any breach
of or default in any term or condition of this Agreement shall constitute
a waiver or an assent to any succeeding breach of or default in the same
or any other term or condition hereof.
15.5 WARRANTY. Each party acknowledges that it has read this Agreement,
understands it and agrees to be bound by it.
15.6 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which will be considered an original, but all
of which together will constitute one and the same instrument.
15.7 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties and their respective successors and
permitted assigns.
15.8 FURTHER ASSURANCES. Each party agrees that upon the written
request of the other party, it shall do all such acts and execute all
such further documents, conveyances, deeds, assignments, transfers and
the like, and shall cause the doing of all such acts and shall cause the
execution of such further documents as are within its powers to cause the
doing and execution of, as the other Party hereto may from time to time
reasonably request be done and/or executed as may be reasonably necessary
to give effect to this Agreement.
15.9 COMPLIANCE WITH LAWS. Each party shall strictly comply with, and
abide by, all consents, licenses, and permits that may exist concerning
its activities and/or performance obligations under this Agreement, and
each party shall perform its obligations under this
18
Agreement and otherwise conduct its affairs and business in any
connection with this Agreement in strict compliance with all laws,
by-laws, regulations, orders, judgments and governmental rulings and
decrees. Without limiting the foregoing, neither party shall attempt,
or otherwise undertake, to influence the award of a Contract through
any unethical, illegal, fraudulent, deceptive or misrepresentative
means whatsoever.
15.10 DUE DILIGENCE. Each party hereto acknowledges (i) the risks of its
undertakings hereunder; (ii) the uncertainty of the benefits and
obligations hereunder; and (iii) its assumption of such risks and
uncertainty. Each party has conducted its own due diligence and
requested and reviewed any contracts, business plans, financial
documents, and other written material as in such party's opinion shall be
the basis of the party's decision to enter into this Agreement.
15.11 NON-COMPETITION. The Parties agree and confirm that the restrictions
set out in this Agreement, including the [*] conferred herein: (i) are
fair and reasonable in the commercial circumstances of this Agreement;
(ii) reasonably protect the legitimate business interests of the parties
and do not constitute any undue restraint of trade; (iii) are fair and
reasonably in the interests of the parties because (a) the consideration
provided to each party under this Agreement adequately and fairly
compensates such party in connection with such restrictions, and (b)
neither party would have entered into this Agreement but for the other
party's agreement with such restrictions and that such restrictions have
been an inducement to enter into this Agreement.
15.12 NO MERGER. The parties agree and acknowledge that none of the
warranties, representations and covenants contained in this Agreement
shall merge upon either the execution and delivery of this Agreement by
both parties, or upon the full payment (or any partial payments) of any
monies that are due and payable hereunder and that all such warranties,
representations, and covenants shall continue in full force and effect
throughout the term.
_______________________________
[*] =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.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the
Effective Date.
MCI SYSTEMHOUSE CORP. COMMERCE ONE, INC.
By: ______________________________ By: ______________________________
Name: _________________________ Name: _________________________
Title: _________________________ Title: _________________________
Date: _________________________ Date: _________________________
20
