EXHIBIT 10.23
GLOBAL ALLIANCE AGREEMENT
This GLOBAL ALLIANCE AGREEMENT ("this Agreement") is entered into this March
31, 2000 ("Effective Date") by and between Adaytum Software, Inc., a Delaware
corporation with principal offices at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000 ("Adaytum") and Xxxxxxxx Consulting LLP, an
Illinois limited liability partnership with an office at 0000 Xxxx Xxxx Xxxx,
Xxxx Xxxx, Xxxxxxxxxx 00000 ("Xxxxxxxx"), for the benefit of all Xxxxxxxx
worldwide organizations and Xxxxxxxx owned Affiliates as hereinafter more
fully described. Adaytum and Xxxxxxxx may also be referred to herein
individually as "Party" or collectively as "Parties."
BACKGROUND
WHEREAS, Adaytum is a company that develops and markets
"best-of-class" planning, forecasting, budgeting and performance analysis
software for medium and large organizations.
WHEREAS, Adaytum seeks to:
- Leverage Xxxxxxxx'x global reach and industry
expertise so as to create a true "world class"
solution; and
- Leverage Xxxxxxxx'x superior reputation for marketing
and promotion of software-based solutions.
WHEREAS, Xxxxxxxx is a leading consulting firm engaged in the
business of providing strategic consulting services, systems integration,
change management, business process re-engineering, application management,
business process outsourcing and other services its clients.
WHEREAS, Both Xxxxxxxx and Adaytum desire to work together to sell
and implement Adaytum's business planning software.
WHEREAS, Xxxxxxxx and Adaytum mutually desire to develop, create,
and deploy global, co-specialized, world-class business planning solutions in
selected market segments.
NOW, THEREFORE, in mutual consideration of the promises and
covenants contained herein, the Parties mutually agree as follows:
SECTION 1 - DEFINITIONS
The defined terms used in this Agreement shall have the meanings
specified in this Section 1 or as specifically defined in the text of this
Agreement.
1.1 "ADAYTUM SOFTWARE" shall mean Adaytum's Planning and ePlanning software
for planning, budgeting and forecasting, and any other similar products
which Adaytum, may offer, from time to time, in object code form, as
well as source code form.
1.2 "AFFILIATE" shall mean any entity which is a member of the Xxxxxxxx
Consulting Organization or any entity which is at the relevant time
directly or indirectly controlled by any such entity or any entity
which is otherwise part of the Xxxxxxxx Consulting. An Affiliate will
have the ability to be bound by and receive the benefit of the terms of
this Agreement by executing an Addendum confirming such Affiliate's
acceptance of the terms of this Agreement.
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1.3 "BUSINESS INTEGRATION SERVICES" shall mean services provided by
Xxxxxxxx such as, but are not limited to, systems design and
implementation of interfaces to Adaytum's system, modifications to the
Client's planning, forecasting and budgeting processes, identification
of operational strategies and business and organizational changes
required to take advantage of the Adaytum Software, implementation and
conversion assistance, and system training
1.4 "CLIENT" shall mean those third parties and all subsidiaries or
affiliates of those third parties which have licensed or purchased the
Adaytum Software or that may license or purchase the Adaytum Software.
1.5 "DOCUMENTATION" shall mean Adaytum's functional documentation, user and
system operating manuals, training materials, program descriptions,
programmers' guides, system guides, specifications, instructions and
explanatory materials related to the Adaytum Software.
SECTION 2 - ALLIANCE MANAGEMENT
2.1 Xxxxxxxx and Adaytum each will designate a senior executive ("EXECUTIVE
SPONSOR") who will be responsible for (i) the exchange of leads, and
(ii) jointly with the other Party's Executive Sponsor, the selection
and prioritization of which leads to pursue.
2.2 Once leads have been identified and prioritized under Section 2.1,
Xxxxxxxx and Adaytum will each appoint a project manager ("Project
Manager") who will be responsible for all activities related to that
lead.
SECTION 3 - MARKETING ACTIVITIES AND MATERIALS
3.1 The geographic scope of this Agreement shall be global.
3.2 In order for Xxxxxxxx to promote the Business Integration Services
and/or to promote the Adaytum Software as provided for in this
Agreement, Adaytum shall supply Xxxxxxxx with marketing collateral in
electronic and paper format describing the Adaytum Software in
reasonable detail that can be used by Xxxxxxxx without limitation on
disclosure. These materials will be provided at no charge to Xxxxxxxx.
3.3 Except as set forth in Section 3.2, neither Party shall use any of the
other Party's trademarks, service marks or company names in advertising
or other promotional material or activity (including use on Internet
web sites), unless the Party has obtained the owner's prior express
written consent. Such consent shall not be unreasonably withheld or
delayed.
3.4 Except as set forth in Section 3.2, neither Party shall issue any press
release, marketing, advertising or other promotional material related
to this Agreement (the "PROMOTIONAL MATERIALS") without the other
Party's prior written consent. Consent from Xxxxxxxx must come from the
Xxxxxxxx XX-Marketing Communications or his or her designee. Once
approved, the Promotional Materials may be used by a Party and its
affiliates for the purposes contemplated by this Agreement and the
content contained therein and reused for such purpose until such
approval is withdrawn with reasonable prior notice.
3.5 Neither Party shall disclose any billing or cost rates of the other
Party to any potential Client without prior approval.
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3.6 Adaytum will provide Xxxxxxxx its current price list as it may be
updated from time to time. Price changes will become effective 60 days
after written notice has been received by Xxxxxxxx of such changes. For
orders received by Adaytum within the 60 days after Xxxxxxxx has
received written notice of a price increase, Adaytum will honor the
previous price. For any price decrease, Clients shall be invoiced at
the lower price regardless of the prices indicated on the Client's
purchase order.
3.7 Adaytum will provide Xxxxxxxx with sufficient quantities of copies of
Adaytum's standard licensing agreements and maintenance agreements for
the Adaytum Software. Adaytum will also supply further copies of such
agreements as requested by Xxxxxxxx.
3.8 Adaytum will provide marketing and technical support to Xxxxxxxx, such
as answering questions about the Adaytum Software, providing hot line
telephone technical support and gateway/dialogue information, assisting
in positioning the Adaytum Software, supplying experts to support
detailed technical presentations and meetings and by providing
quotations for standard and custom configurations.
3.9 Xxxxxxxx shall provide marketing and technical support to Adaytum, such
as answering questions about the Business Integration Services,
supplying experts to support detailed technical presentations and
meetings and by participating in the development of joint business
proposals.
3.10 On a regular basis, Xxxxxxxx and Adaytum will share leads related to
potential sales of Adaytum Software and explore opportunities for joint
teaming arrangements. Xxxxxxxx will use reasonable efforts to market
Adaytum Software through its normal marketing channels. These marketing
efforts shall be targeted globally as identified by the Xxxxxxxx and
Adaytum Executive Sponsors.
3.11 In the event the Parties agree to enter into a joint teaming
arrangement, *** shall be the prime contractor for all such
arrangements, unless the Parties otherwise mutually agree.
3.12 Nothing in this Agreement shall be construed as a commitment or
guarantee on the part of Xxxxxxxx to produce any level of sales or
revenue with regard to the Adaytum Software. However, there will be
joint marketing and business plan developed on an annual basis
("Business Plan").
3.13 Each Party shall be responsible for its own costs associated with the
marketing activities performed under this Agreement.
3.14 Adaytum will ensure that the sales force compensation plan for selling
Adaytum Software provides enhanced compensation to its sales force
where Adaytum Software is sold with Xxxxxxxx involvement.
SECTION 4- MARKETING ASSISTANCE FEE
4.1 For any license sold for the Adaytum Software in any industry and/or
client where Xxxxxxxx either generated the sales lead or actively
participated in the joint marketing activities, Adaytum shall pay to
Xxxxxxxx a fee (a "Marketing Assistance Fee" or "MAF").
4.2 The MAF shall be based on a percentage of the net fees billed to the
Client (the "Percentage") for a period of *** (the
"MAF PERIOD") from the date of sale of any Adaytum
*** Denotes confidential information that has been omitted from the
exhibit and filed separately, accompanied by a confidential
treatment request, with the Securities and Exchange Commission
pursuant to Rule 406 of the Securities Act of 1933.
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Software to any Client. The Percentage shall be, ***. Adaytum will
pay Marketing Assistance Fees to Xxxxxxxx within sixty (60) days of
the date of such sale. All MAF fees due to Xxxxxxxx may be reduced
for prior MAF payments relating to uncollectible license fees, as
mutually agreed. For the purposes of this Section 6.2 "net License
fee" shall mean a license fee or other similar payments related to
the use of Adaytum Software, not of discounts to Clients on the
license fee applicable sales and the taxes and prior to any withholding
taxes imposed by a foreign government.
4.3 Xxxxxxxx will retain *** of its fees and other charges related to
services it provides to the Client.
4.4 Adaytum will pay MAFs in United States dollars. For licenses outside
the United States, the United States dollar equivalent amount due to
Xxxxxxxx for MAFs will be determined by the exchange rate in effect as
of the date that the Adaytum Software was sold.
4.5 Xxxxxxxx and Adaytum will cooperate to minimize, to the extent legally
permissible, the tax liabilities related to this Agreement. However,
the cooperation shall not cause any adverse tax consequences to be
incurred by either Party that would not have been incurred under the
terms and conditions as described in this Agreement.
4.6 Adaytum shall pay for all taxes in connection with the licensing of
Adaytum Software and Services under this Agreement including any sales,
use, excise, value-added, services, consumption, withholding, invoicing
and other taxes. Xxxxxxxx or the applicable Client, as agreed upon
between such parties pursuant to a separate written agreement, will pay
for all taxes in connection with the provision of Business Integration
Services by Xxxxxxxx to such Client, including any sales, use, excise,
value-added, services, consumption, withholding, invoicing and other
taxes. Each Party shall provide and make available to the other any
resale certificates, information regarding out-of-state or
out-of-country sales or use of equipment, materials, or services, and
other exemption certificates or information reasonably requested by the
other Party. Each Party shall use reasonable efforts to promptly notify
the other Party of, and coordinate with such other Party the response
to and settlement of, any claim for taxes asserted by applicable taxing
authorities for which such original Party is responsible hereunder.
4.7 Adaytum shall keep accurate and complete records ("RECORDS") of all
Revenue, including all documents required for the full computation and
verification of MAFs, for as long as Adaytum is obligated to pay MAFs
plus twenty-four (24) months. Xxxxxxxx shall be permitted within ten
(10) days notice to Adaytum to audit the calculation of MAFs and the
corresponding Records. If an audit reveals a discrepancy equal to or
greater than five-percent (5%) of the difference between MAFs paid to
Xxxxxxxx and MAFs actually due to Xxxxxxxx, Adaytum agrees to reimburse
Xxxxxxxx for its reasonable costs for the audit.
SECTION 5 - SOFTWARE AND SUPPORT
5.1 Adaytum hereby grants to Xxxxxxxx a worldwide, royalty-free license to
market, use, modify, install, copy, and display Adaytum Software,
except for the source code, for the following purposes: (i) marketing,
promoting and demonstrating the Adaytum Software in exhibits, Xxxxxxxx
demonstration centers, and to potential Clients; (ii) developing and
demonstrating implementation methodology and application programs
utilizing the Adaytum Software; (iii) training Xxxxxxxx personnel; and
(iv) in conjunction with providing Business Integration Services
*** Denotes confidential information that has been omitted from the
exhibit and filed separately, accompanied by a confidential
treatment request, with the Securities and Exchange Commission
pursuant to Rule 406 of the Securities Act of 1933.
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to Clients who have a license from Adaytum for the Adaytum Software. On
an as needed basis, as mutually determined by the parties, Adaytum
hereby grants Xxxxxxxx license to use the source code, which will be
used by Xxxxxxxx as mutually agreed to by both parties in writing.
5.2 In addition to the license granted in Section 5.1, Xxxxxxxx shall have
the right to purchase additional copies of the Adaytum Software for
Xxxxxxxx'x internal use at a price equal to *** of the then-current
list price of the Licensed Software during the term of this Agreement.
5.3 Adaytum will be solely responsible for obtaining any and all rights
necessary to allow Xxxxxxxx to market, in accordance with this
Agreement, any computer code, modules, programs, data files and
Documentation that is proprietary to a third party and that is embedded
or inseparable from the Adaytum Software, or used in conjunction with
the Adaytum Software and Services ("THIRD PARTY PRODUCTS"), including
responsibility for any administrative or financial arrangements in
relation to such Third Party Products.
5.4 Adaytum shall license the Adaytum Software directly to the Client and
shall be responsible for packaging, delivery, support and maintenance
of the Adaytum Software. However, when the situation requires such an
arrangement, as mutually determined by the Parties, Adaytum shall grant
to Xxxxxxxx, on an exception-only basis, the right to sub-license
Adaytum Software. Xxxxxxxx shall not sub-license the Adaytum Software
without the prior written consent of Adaytum. In the event of such a
sub-license, (i) Xxxxxxxx shall provide to Adaytum copies of the
executed sub-license, and (ii) will use reasonable efforts to notify
Adaytum of any breach of the sub-license by the sub-licensee, of which
Xxxxxxxx is aware.
5.5 Adaytum shall provide installation support to Xxxxxxxx at no charge for
Xxxxxxxx'x use of the Adaytum Software pursuant to Section 5.1.
5.6 Adaytum shall provide its standard technical support and maintenance
for the Adaytum Software and Services to Xxxxxxxx at no charge pursuant
to Section 5.1.
5.7 Adaytum shall provide software maintenance, technical support,
warranty, training services, to Clients at Adaytum's standard fees.
5.8 Adaytum will provide to Xxxxxxxx training, including documentation and
other training materials, at no cost to Xxxxxxxx, for up to 1000
training days per year as determined annually in the Business Plan for
the Term of this Agreement. The Parties will mutually agree upon the
time and location of the training. Additional training will be supplied
by Adaytum at a cost equaling 50% of the price Adaytum usually charges
its customers.
5.9 Adaytum will promptly make available to Xxxxxxxx at no charge any new
releases, upgrades, updates, additions, enhancements and other versions
(collectively, "VERSIONS") of the Adaytum Software including any
preliminary or "beta" versions made available.
SECTION 6- CONFIDENTIALITY
6.1 During the course of this Agreement, Xxxxxxxx and Adaytum may be given
access to information that (i) relates to the other Party's past,
present, and future research, development, business activities, Adaytum
Software, services, and technical knowledge, and (ii) has been
identified in writing as confidential ("Confidential Information").
*** Denotes confidential information that has been omitted from the
exhibit and filed separately, accompanied by a confidential
treatment request, with the Securities and Exchange Commission
pursuant to Rule 406 of the Securities Act of 1933.
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6.2 The Receiving Party ("Receiving Party") may use the Confidential
Information of the other Party only in connection with the performance
of its obligations under this Agreement.
6.3 Each Receiving Party agrees to protect the confidentiality of the other
Party's Confidential Information in the same manner that the Receiving
Party protects the confidentiality of its own proprietary and
confidential information of like kind.
6.4 All Confidential Information made available hereunder, including copies
thereof, shall be returned or destroyed upon written request of the
Party disclosing the Confidential Information ("Disclosing Party").
6.5 Nothing in this Agreement shall prohibit or limit either Party's use of
information (including, but not limited to, ideas, concepts, know-how,
techniques, and methodologies) (i) previously known to it without
obligation of confidence: (ii) independently developed by it; (iii)
acquired by it from a third party which is not, to its knowledge, under
an obligation of confidence with respect to such information; or (iv)
which is or becomes publicly available through no breach of this
Agreement. Nothing in this Agreement shall prohibit or restrict either
Party's right to develop, use, or market software and services similar
to the Confidential Information of the other Party as long as it shall
not thereby breach this Agreement.
6.6 If the Receiving Party receives a subpoena or other validly issued
administrative or judicial process requesting Confidential Information
of the Disclosing Party, the Receiving Party may disclose the
Disclosing Party's Confidential Information as required under the
applicable subpoena or other validly issued administrative or judicial
process; provided, however, that (i) the Receiving Party must give the
Disclosing Party prompt notice prior to such disclosure and make a
reasonable effort to obtain a protective order against such disclosure,
and (ii) any such disclosure shall be limited in scope, nature and
degree to that deemed necessary by competent counsel.
6.7 If either Party receives requests for proposals or other information
from its current or prospective Clients along with permission to
disclose this information to the other Party, then such request for
proposal and information will be considered Confidential Information.
6.8 Except as necessary to fulfill its obligations in relation to the
activities contemplated by this Agreement, both Parties agree to keep
the terms of this Agreement confidential.
SECTION 7- OWNERSHIP AND PROPRIETARY RIGHTS
7.1 Each Party will retain ownership of any software or other assets that
such Party brings to this Agreement; including, but not limited to,
knowledge capital, system design and code, trademarks, service marks,
patents and any type of intellectual property asset.
7.2 Adaytum will own any enhancements, modifications or derivative works of
any Adaytum Software created by Adaytum. Jointly developed extensions
to Adaytum Software will be jointly owned by Adaytum and Xxxxxxxx. The
terms of this joint ownership will be set forth in the Joint
Development Addendum.
7.3 As between the Parties, Xxxxxxxx and Adaytum each reserve the right to
use any skills, knowledge or techniques used or acquired while
providing services to or for a Client and the other Party, provided
such items are not owned by the other Party.
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SECTION 8- REPRESENTATIONS AND WARRANTIES
8.1 As between the Parties, each Party shall remain solely responsible to
its Clients for the performance and good working order of its own
products and the performance of its own services. Neither Party is
responsible for the performance of the other Party's products or
services.
8.2 Adaytum represents and warrants that all technology associated with the
Adaytum Software that may be supplied in conjunction with this
Agreement are Year 2000 Compliant. "Year 2000 Compliant" means, unless
otherwise stated in specifications for the Adaytum Software, that the
Adaytum Software, accurately processes, provides, and/or receives date
data from, into and between the twentieth and twenty-first centuries,
and the years 1999 and 2000, including leap year calculations.
8.3 Each Party represents and warrants that it has the right to grant to
the other Party the licenses purported to be granted by or pursuant to
this Agreement.
8.4 Adaytum represents and warrants that there are no claims against it
relating to any of the Adaytum Software or the Documentation or to any
of the trade secrets, copyrights, trademarks, or other intellectual
property rights related thereto and no demand of any person or entity
pertaining to it, and no proceedings have been instituted or are
pending or, to the knowledge of Adaytum, threatened that challenge the
rights of Adaytum in respect thereof. Adaytum has not been charged or
threatened with infringement or violation of any intellectual property
right of any person or entity and, to the knowledge of Adaytum, is not
infringing any intellectual property rights through any license or use
of any the Adaytum Software. There are no product liability claims
pending or, to the knowledge of Adaytum, threatened that are based on
any alleged problem or defect in any of the Adaytum Software or the
Documentation, trade secrets, copyrights, trademarks, or other
intellectual property rights related thereto, or any alleged
misrepresentation or failure to meet any claim or promise made in any
sales literature or otherwise by Adaytum to any person, or on any
implied covenant or legal requirement relating to any of the Adaytum
Software. Adaytum will notify Xxxxxxxx of its knowledge of any future
claims against the Adaytum Software, trade secrets, copyrights,
trademarks or other intellectual property rights; any future charges of
infringement or violation of any intellectual property right; or any
future liability claims made or threatened in relation to the Adaytum
Software.
SECTION 9 - INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION
9.1 Adaytum agrees to indemnify and hold harmless Xxxxxxxx, and any partner
or employee thereof, from any and all liabilities, damages, costs and
expenses, including attorneys' fees, incurred by Xxxxxxxx as a result
of any claim that any of the Adaytum Software, including any version,
update or enhancement of any of the Adaytum Software created or
otherwise provided by Adaytum to Xxxxxxxx, its Affiliates or a Client
hereunder infringes a copyright, patent, trade secret or any other
proprietary right. However, Adaytum shall have no liability to
indemnify Xxxxxxxx with respect to any claim that any of the Adaytum
Software infringes a copyright, patent, trade secret or any other
proprietary right caused by modification of the Adaytum Software by
Xxxxxxxx without Adaytum's consent, where the Adaytum Software without
the modification would otherwise not be infringing. The foregoing
indemnity is conditioned upon (i) Xxxxxxxx providing to Adaytum prompt
written notice of such claim, (ii) Xxxxxxxx tendering to Adaytum sole
control over the defense and settlement of such claim, and (iii)
Xxxxxxxx providing
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to Adaytum all information and assistance reasonably requested by
Adaytum in connection with the defense and settlement of such claim, at
Adaytum's sole expense. In no event, however, may there be a settlement
of any such claim without the written consent of Xxxxxxxx.
9.2 Xxxxxxxx agrees to indemnify and hold harmless Adaytum, and any
employee thereof, from any and all liabilities, damages, costs and
expenses, including attorneys' fees, incurred by Adaytum as a result of
any claim that any of the Adaytum Software infringes a copyright,
patent, trade secret or any other proprietary right caused by
modification of the Adaytum Software by Xxxxxxxx without Adaytum's
consent, where the Adaytum Software without the modification would
otherwise not be infringing. The foregoing indemnity is conditioned
upon (i) Adaytum providing to Xxxxxxxx prompt written notice of such
claim, (ii) Adaytum tendering to Xxxxxxxx sole control over the defense
and settlement of such claim, and (iii) Adaytum providing to Xxxxxxxx
all information and assistance reasonably requested by Xxxxxxxx in
connection with the defense and settlement of such claim, at Xxxxxxxx'x
sole expense. In no event, however, may there be a settlement of any
such claim without the written consent of Adaytum.
SECTION 10 - TERM AND TERMINATION
10.1 This Agreement shall remain in effect through August 31, 2005
thereafter shall be renewable upon the mutual agreement of the Parties.
10.2 If either Party defaults in the performance of any material obligation
hereunder, the non-defaulting Party may terminate this Agreement by
written notice specifying the default, which notice shall become
effective ninety (90) days after the delivery of notice to the
defaulting Party, unless during such 90-day period the default shall
have been corrected by the defaulting Party to the non-defaulting
Party's reasonable satisfaction.
10.3 Xxxxxxxx shall have the right to immediately terminate this Agreement
by providing written notice to Adaytum in the event (i) all or portions
of the ownership rights in the Adaytum Software are transferred or
assigned by Adaytum to a third party, (ii) Adaytum discontinues its
Adaytum Software, (iii) Adaytum transfers or assigns a material right
or obligation under this Agreement, or (iv) a change of control of
Adaytum.
10.4 Either Party may terminate this Agreement immediately upon giving
notice to the other Party if the other Party is adjudicated as
bankrupt, becomes insolvent, suffers permanent or temporary
court-appointed receivership of substantially all of its property,
makes a general assignment for the benefit of creditors, or suffers the
filing of a voluntary or involuntary bankruptcy petition that is not
dismissed within forty-five (45) days after filing.
10.5 Upon termination or expiration of this Agreement, each Party shall
immediately:
10.5.1 Cease acting in any manner that would suggest a continuing
relationship with the other Party, except as may be provided
in any surviving separate agreement;
10.5.2 Discontinue any and all use of marks authorized for use under
this Agreement, except as necessary for either Party to
fulfill its obligations to a Client; and
10.5.3 Return to the other Party or destroy the other Party's
Confidential Information in its possession unless this
Agreement expressly provides otherwise.
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10.6 Upon either the expiration of the term of this Agreement or the
termination of this Agreement for any reason other than a breach by
Xxxxxxxx, Adaytum shall pay to Xxxxxxxx the MAF generated during the
Term of this Agreement, as defined in Section 4.2, for a period of
*** from the date of the initial license of the Adaytum Software,
whichever is later.
10.7 Upon termination of this Agreement by Adaytum due to breach by
Xxxxxxxx, Xxxxxxxx shall be entitled to the portion of the MAF earned
through the date of termination.
10.8 Notwithstanding the provisions of this Section 10, each Party may
continue to exercise the rights and licenses granted hereunder to the
extent necessary to allow such Party to fulfill its obligations under
existing engagement agreements with Clients or included in any proposal
to a Client that was outstanding at the time of termination. Xxxxxxxx
specifically shall retain the right to use the Adaytum Software for as
long as necessary to meet any obligations or services that Xxxxxxxx has
undertaken. Xxxxxxxx shall also continue to have the right to use and
access the Adaytum Software (specifically including Documentation and
related technical information and support) to allow Xxxxxxxx to fulfill
its obligations to Clients to whom a proposal has been submitted or is
in the process of being submitted.
SECTION 11 - EXPORT
Both Parties shall comply with all applicable export laws, restrictions of the
United States or comparable foreign agency or authority. Neither Party shall
export, or allow the export or re-export of any Adaytum Software in violation of
any such laws, restrictions or regulations.
SECTION 12 - MISCELLANEOUS
12.1 The Parties agree that in the event of any dispute or alleged breach
under this Agreement, they will work together in good faith first, to
resolve the matter internally and then, if necessary, to use a mutually
agreed alternative dispute resolution technique prior to resorting to
litigation in accordance with Exhibit A.
12.2 This Agreement shall be subject to existing relationships between each
Party and its partners, Clients and service providers. Neither Party
will be prohibited from honoring any contractual obligations that
pre-exist this Agreement to the extent in conflict with the terms of
this Agreement.
12.3 Neither Party may assign any of its rights or obligations under this
Agreement without the prior written consent of the other Party;
provided, however, that Xxxxxxxx may cause this Agreement, in part or
whole, to be performed by an Affiliate and may assign its rights and
obligations hereunder to an Affiliate.
12.4 Except as the Parties may expressly agree otherwise in writing, neither
Party shall solicit, offer work to, employ, or contract with, whether
as a partner, employee or independent contractor, directly or
indirectly, any of the other Party's Personnel during their
participation in the activities addressed by this Agreement or during
the twenty-four (24) months after such participation ends. For purposes
of this Section 16.4, "Personnel" includes any individual or company a
Party employs as a partner, employee or independent contractor and with
which a Party comes into direct contact in the course of the activities
under this Agreement. Each party will use reasonable efforts to notify
the other if an employment contact is made by a current employee of the
other party.
*** Denotes confidential information that has been omitted from the
exhibit and filed separately, accompanied by a confidential
treatment request, with the Securities and Exchange Commission
pursuant to Rule 406 of the Securities Act of 1933.
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12.5 Neither Party shall be liable for any delays or failures in performance
due to circumstances beyond its reasonable control, including failures
of computers, computer-related equipment, hardware or software.
12.6 Except in relation to Xxxxxxxx'x and Adaytum's indemnification
obligations hereunder, neither Party will be liable to the other for
any indirect, special, incidental, consequential, exemplary or punitive
loss, damages or expenses (including lost profits or savings).
Xxxxxxxx'x liability for direct damages shall not exceed ***.
12.7 If any provision of this Agreement is found to be prohibited by or
invalid under applicable law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of the
Agreement.
12.8 Sections 1, 4, 5.6, 6, 7, 8, 9, 10, 11 and 12 shall extend beyond the
expiration or termination of this Agreement and shall survive and
remain in effect beyond any expiration or termination. In addition, any
payment obligations shall survive the term of this Agreement.
12.9 This Agreement shall be governed by and construed in accordance with
the laws of Illinois, without giving effect to conflict of law rules.
12.10 This Agreement may be executed in one or more counterparts, each of
which shall be considered an original counterpart, and shall become a
binding agreement when each Party shall have executed one counterpart.
12.11 Captions and headings appearing in this Agreement are for convenience
only and shall not be deemed to explain, limit or amplify the
provisions hereof.
12.12 Any notice or other communication given pursuant to this Agreement
shall be in writing and shall be deemed to have been received either
when delivered personally to the Party for whom intended, or five (5)
days following the deposit of the same into the United States mail
(certified mail, return receipt requested, or first class postage
prepaid), addressed to such Party at the address set forth below:
For Adaytum:
Attention: Xxxx Xxxxxxxx, General Manager
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
For Xxxxxxxx:
Attention: Xxxx X. Xxxxxxx, Partner
000 0xx Xxx., Xxxxx 000
Xxxxxxx, XX 00000
*** Denotes confidential information that has been omitted from the
exhibit and filed separately, accompanied by a confidential
treatment request, with the Securities and Exchange Commission
pursuant to Rule 406 of the Securities Act of 1933.
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12.13 Either Party may designate a different address by notice to the other
given in accordance herewith.
12.14 Nothing in this Agreement shall be construed to grant either Xxxxxxxx
or Adaytum the right to make any commitment or obligation of any kind
for or on behalf of the other Party without prior written consent of
the other Party. Neither Party shall have the power to control the
activities and operations of, or contractually bind or commit the other
Party. The status of the Parties with respect to one another is that of
independent contractors. Neither Party shall act as, or be deemed to
be, the other Party's agent or a partner for any purpose, and the
employees of one Party shall not be deemed the employees of the other
Party. Nothing contained in this Agreement shall be deemed or construed
as creating a joint venture or partnership between Adaytum and
Xxxxxxxx.
12.15 Neither Party is a distributor or agent for the products or services of
the other Party. Each Party's products and services shall be available
to prospective Clients only through a separate agreement between that
Party and its Clients, unless that Party has given its prior written
consent for the other Party to make the commitment on their behalf. In
any case, neither Party is responsible for the quality of products or
services provided by the other Party, unless the Parties otherwise
agree in writing with respect to specific Client engagements, pursuant
to which one Party is the prime contractor and the other Party is the
subcontractor. Each Party is solely responsible for establishing the
prices for its own products and services.
12.16 Nothing in this Agreement shall restrict Xxxxxxxx or Affiliates from
marketing, demonstrating or teaming with providers of other products,
irrespective of the similarity of such products to the Adaytum
Software, or from developing, marketing, demonstrating, installing or
using competing products or entering into any arrangements with any
third party, unless otherwise mutually agreed upon by the Parties in an
addendum. If any addendum makes changes to this Section 12.16, the
change shall only apply to the addendum in which such a change is
included. If one of its Clients selects an alternative or competing
solution, Xxxxxxxx will not be restricted from installing or
implementing such alternative or competing solution.
12.17 Xxxxxxxx shall have the right to market consulting services to
Adaytum's Clients independent of the sale of the Adaytum Software, and
Adaytum shall have the right to market products to Xxxxxxxx'x Clients
independent of the sale of the Adaytum Software. Each Party shall be
free to negotiate prices and rates separately with its Clients.
12.18 This Agreement contains the entire understanding of the Parties with
regard to the subject matter contained herein. Adaytum and Xxxxxxxx
may, by mutual agreement in writing, amend, modify and supplement this
Agreement. The failure of any Party hereto to enforce at any time any
provision of this Agreement shall not be construed to be a waiver of
such provision, nor in any way to affect the validity of this Agreement
or any part hereof or the right of such Party thereafter to enforce
each and every such provision. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or
subsequent breach
12.19 Except as expressly stated in this Agreement, each Party will be
responsible for its own costs and expenses associated with activities
under this Agreement.
11
BOTH PARTIES REPRESENT THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED HEREIN.
ADAYTUM SOFTWARE, INC. XXXXXXXX CONSULTING, LLP
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxxx
---------------------------------- --------------------------------
Name: Xxxx Xxxxxxxx Name: Xxxx X. Xxxxxxx
-------------------------------- ------------------------------
Title: GM/VP Title: Partner
------------------------------- -----------------------------
Date: 3-31-2000 Date: March 31, 2000
-------------------------------- ------------------------------
Date: Date:
-------------------------------- ------------------------------
12
EXHIBIT A
ALTERNATIVE DISPUTE RESOLUTION
General
The Parties shall attempt to resolve any questions or dispute that arises
regarding or under this Agreement by prompt good faith discussions between
the Coordinators.
Escalation To Senior Management
Any such question or dispute which cannot be resolved by such discussions
between the Coordinators or their respective designee, within fifteen (15)
calendar days for initiation of discussion by either Coordinator or their
respective designee, shall be escalated for resolution to the Parties'
respective senior management, i.e., Adaytum's Chief Executive Officer and one
of Xxxxxxxx'x Managing Partners of the Finance and Performance Management
line of Business.
Mediation
Any such question or dispute which cannot be resolved by discussion between
the Parties' respective senior management, within thirty (30) calendar days
from initiation of discussion by either such individual, may be resolved by a
non-binding mediation which if selected shall proceed as follows.
A. Notice. The following procedures shall apply to the
mediation, unless otherwise agreed in advance by the Parties as evidenced in
writing by their respective Coordinators or their respective designee. The
mediation shall be commenced by the initiating Party notifying the other
Party in writing to its Coordinator, or their respective designee, and Legal
Department of its desire for such non-binding mediation and of the mediator
whom it selected and requesting that the other Party select its mediator.
B. Panel Composition and Criteria. The proceeding shall be
held by a panel of three mediators, one selected by Xxxxxxxx and one selected
by Adaytum, with a third being appointed by the two so chosen. If the third
mediator is not selected within fourteen (14) days after the request is
served s/he shall be selected in accordance with the rules and regulations of
the American Arbitration Association. Except as otherwise provided herein,
the mediation under this Section shall be conducted in accordance with the
Commercial Dispute rules then in effect of the American Arbitration
Association or its successor. The mediators may only be persons who for at
least ten (10) of the last fifteen (15) years have held one or more
management positions in one or more companies engaged in, and who
individually have been responsible for some combination of, the design,
development, installation, support of and/or provision of consulting services
regarding semi-custom business software applications and systems. However, no
mediator shall have or be permitted to have had in the last five (5) years,
any employment, consulting, investing, personal/social, or other relationship
to either Party or their respective attorneys or CPA's.
C. Process; Location. The mediators will decide whether or not
the formal rules of evidence, and whether discovery procedures will, or will
not, be available. The proceeding will be held in a mutually agreed location.
The initiation, substance, and outcome of the proceeding shall be maintained
confidential by the Parties, their respective attorneys, and the mediators.
13
AMENDMENT
TO
GLOBAL ALLIANCE AGREEMENT
BETWEEN
ADAYTUM SOFTWARE, INC. AND XXXXXXXX CONSULTING LLP
This Amendment, effective this _6_ day of __June_, 2000 (the "Effective
Date"), amends the Global Alliance Agreement , by and between Adaytum
Software, Inc. ("Adaytum") and Xxxxxxxx Consulting LLP ("Xxxxxxxx"), dated
March 31, 2000 (the "Agreement"). This Amendment is intended by the parties
to modify the Agreement specifically as follows:
1. In Section 1 - Definitions of the Agreement, the following new subsection is
added:
1.6 "Subsidiary" shall mean any majority-owned subsidiary of the parent
corporation, Adaytum, operating outside the United States. A Subsidiary
may request that an Affiliate in the same country as the requesting
Subsidiary perform services for the Subsidiary on the terms and
conditions set forth in the mutually agreed to Joint Development and
Consulting Services Agreement. In such event, references in this
Agreement to "Adaytum" would be deemed to refer to the specific
"Subsidiary" and references to "Xxxxxxxx" would be deemed to apply to
the specific "Affiliate". In determining where such substitutions are
or are not required by the context of the particular clause or
provision in question, the interpretation will be adopted which best
preserves the Parties' mutual intention that the respective rights and
obligations as between a Subsidiary and an Affiliate are to be
equivalent to the rights and obligations existing as between Adaytum
and Xxxxxxxx in this Agreement. The Parties shall use their reasonable
efforts to prevail upon their Subsidiaries and Affiliates (as
applicable) to either acknowledge in the applicable appendix their
acceptance of the terms and conditions of this Agreement or enter into
service agreements with each other on the same terms and conditions as
those set forth or referenced in this Agreement, modified only to the
extent necessary to conform to local law and commercial practice."
2. In Section 4 - Marketing Assistance Fee, the following new subsection is
added:
"4.7 Adaytum shall remit any payment due Xxxxxxxx from Adaytum to
Xxxxxxxx'x Affiliate, Proquire LLC ("Proquire"), at the
following address:
Proquire LLC
000 Xxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000"
3. The last sentence of Section 5.4 is replaced in its entirety by the
following:
"In the event Xxxxxxxx sub-licenses the Adaytum Software to a Client
(as defined in the Agreement), (i) Xxxxxxxx shall provide to Adaytum
copies of the executed sub-license, (ii) Xxxxxxxx will use reasonable
efforts to notify Adaytum of any breach of the sub-license by the
sub-licensee, of which Xxxxxxxx becomes aware, and (iii) the Adaytum
Software shall be provided to the Client subject to Proquire Sales
Contract between Proquire and the Client, and Xxxxxxxx, as agent for
Proquire, may invoice, collect, and receive from Client all sums that
are or become due to Proquire and Adaytum. Outside the United States,
an Xxxxxxxx Affiliate reserves the option to provide third party
products through itself, related entities or other third parties.
Regardless of whether the Adaytum Software is licensed by Adaytum or
sub-licensed by Xxxxxxxx, Adaytum, and not Xxxxxxxx, shall at all times
remain responsible to Client for the performance or non-performance of
the Adaytum Software."
4. The second sentence of Section 7.2 of the Agreement is modified in its
entirety to read as follows:
"Jointly developed extensions, modifications and derivative works of
the Adaytum Software will be jointly owned by Adaytum and Xxxxxxxx, and
each Party shall have no obligation to account to the other for its use
of such materials; however, neither Party shall license or provide
access to such jointly owned materials to a competitor of the other
Party, or create an alliance involving any such jointly owned materials
with such a competitor, without the prior written agreement of the
other Party."
5. The third sentence of Section 7.2 of the Agreement is modified to read in its
entirety as follows:
"The terms of this joint ownership understanding will be further
described in a separate Joint Development Agreement between the
Parties."
6. Section 12.6 of the Agreement is modified in its entirety as follows:
"12.6 Except in relation to Xxxxxxxx'x and Adaytum's indemnification
obligations hereunder, neither Party will be liable to the
other for any indirect, special, incidental, consequential,
exemplary or punitive loss, damages or expenses (including
lost profits or savings). Xxxxxxxx'x or an Affiliate's
liability for direct damages shall not in the aggregate exceed
***.
*** Denotes confidential information that has been omitted from the
exhibit and filed separately, accompanied by a confidential
treatment request, with the Securities and Exchange Commission
pursuant to Rule 406 of the Securities Act of 1933.
*** The liability of Adaytum and Xxxxxxxx as between them and
each of their respective Subsidiaries and Affiliates shall be
several and not joint. A breach by a Subsidiary or an Affiliate
of this Agreement shall not be deemed a breach by Adaytum or
Xxxxxxxx, respectively. Likewise, a breach by Adaytum or
Xxxxxxxx of this Agreement shall not be considered a breach
by any of their respective Subsidiaries or Affiliates."
Except as provided herein, the Agreement remains unchanged and in full force
and effect. In the event of a conflict between any term of the Agreement and
this Amendment, the terms of this Amendment shall prevail.
Agreed and Accepted: Agreed and Accepted:
ADAYTUM SOFTWARE, INC. XXXXXXXX CONSULTING LLP
By /S/ Xxxx X. Xxxxxxxx By /S/ XXXX X. XXXXXXX
----------------------------------- ----------------------------------
Title VP Market Development Title Partner
-------------------------------- -------------------------------
Date 6/6/2000 Date 5/22/2000
--------------------------------- --------------------------------
*** Denotes confidential information that has been omitted from the
exhibit and filed separately, accompanied by a confidential
treatment request, with the Securities and Exchange Commission
pursuant to Rule 406 of the Securities Act of 1933.
EDUCATION & GOVERNMENT ADDENDUM
TO GLOBAL ALLIANCE AGREEMENT
THIS ADDENDUM (this "E&G Addendum") is entered into this 31st day of
March, 2000 (the "Addendum Effective Date") by and between Adaytum Software,
Inc., a corporation organized under the laws of Delaware, with its principal
office at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000 ("Adaytum"),
and Xxxxxxxx Consulting, LLP an Illinois limited liability partnership with
an office at 0000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 ("Xxxxxxxx"),
for the benefit of all Xxxxxxxx worldwide organizations and Xxxxxxxx owned
Affiliates as hereinafter more fully described. Adaytum and Xxxxxxxx may also
be referred to herein individually as "Party" or collectively as "Parties."
WHEREAS, Adaytum and Xxxxxxxx Consulting entered into a Global
Alliance Agreement dated March 31, 2000, as amended by the Parties on June 6,
2000 (collectively, the "Agreement") to form a global alliance (the
"Xxxxxxxx/Adaytum Global Alliance") to enable selling and delivery of
world-class business planning solutions;
AND WHEREAS, Adaytum and Xxxxxxxx Consulting now desire to broaden
the scope of the Xxxxxxxx/Adaytum Global Alliance to include a specific
alliance (the "Xxxxxxxx/Adaytum E&G Alliance") to target business planning
solutions for the institutions of higher education, and federal, national and
state-and-local governmental entities ("Education and Government").
NOW THEREFORE, in consideration of the promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do mutually agree
as follows:
SECTION 1 - DEFINITIONS
The capitalized terms used but not defined in this Addendum shall have the
meanings specified in the Agreement.
SECTION 2 - EDUCATION & GOVERNMENT INITIATIVES
2.1 Xxxxxxxx Consulting and Adaytum will use reasonable efforts to mutually
agree in writing on a detailed business plan for Education and
Government (the "E&G Business Plan") within 60 days of the Addendum
Effective Date. The E&G Business Plan will be updated at least
quarterly and signed by authorized representatives of both Parties. The
E&G Business Plan shall include jointly agreed to performance metrics
including annual revenues generated, defined rules of engagement,
escalation processes, marketing plans, and other business objectives.
The E&G Business Plan will initially be focused in the United States.
1
2.2 Xxxxxxxx Consulting and Adaytum will use reasonable efforts to enter
into a separate, Joint Development Agreement ("JDA") which will define
the mutually agreed upon Adaytum Software product extensions and
modifications to the Adaytum Software products for the Education and
Government market within sixty (60) days of the Addendum Effective
Date. The JDA will define, among other terms and conditions, the
responsibilities of the parties for the joint development of extensions
and modifications to the Adaytum Software, and, to the extent it may be
different than the MFA arrangement set forth in Section 4 of the
Agreement, royalty payments to be paid by Adaytum to Xxxxxxxx based on
the sales of the Adaytum Software product offerings.
SECTION 3 -PARTNER STATUS
3.1 Xxxxxxxx shall be Adaytum's strategic and preferred partner to provide
Business Integration Services in the Education and Government market
globally ("E&G Preferred Partner"). Adaytum shall not offer the
opportunity to provide Business Integration Services or any other
similar service to any third party, except as provided in Section 3.2.
As the E&G Preferred Partner, Xxxxxxxx shall have preferential access
to all of Adaytum's capabilities. Adaytum shall at all times position
Xxxxxxxx as its E&G Preferred Partner.
3.2 For all opportunities to provide Business Integration Services for the
Education and Government market, or any such similar service, in
connection with Adaytum Software ("Opportunities"), as the E&G
Preferred Partner, Xxxxxxxx shall have the right of first refusal for
all Opportunities. Adaytum shall provide written notice to Xxxxxxxx of
all Opportunities as they arise, where such notice shall provide
Xxxxxxxx sufficient information with which to make an informed decision
whether to participate in the Opportunity. Xxxxxxxx shall have ten (10)
business days to decide whether to participate in the Opportunity. If
Xxxxxxxx communicates to Adaytum in writing (including by postal mail,
facsimile, or electronic mail) that Xxxxxxxx does not wish to
participate in the Opportunity, Adaytum may then offer the option to
participate in the specific Opportunity to another party. Any decision
by Xxxxxxxx not to participate in any given Opportunity shall not be
deemed a decision not to participate in any other Opportunity.
SECTION 4 - MISCELLANEOUS
4.1 This Addendum shall be governed by and construed in accordance with the
laws of Illinois, without giving effect to conflict of law rules.
4.2 This Addendum may be executed in one or more counterparts, each of
which shall be considered an original counterpart, and shall become a
binding agreement when each Party shall have executed one counterpart.
2
4.3 Captions and headings appearing in this Addendum are for convenience
only and shall not be deemed to explain, limit or amplify the
provisions hereof. This Addendum is an appendix to the Agreement and
all terms and conditions of the Agreement are incorporated herein by
reference. Except as expressly set forth in this Addendum, the
Agreement remains in full force and effect. In the event of a conflict
in the terms and conditions of the Agreement and this Addendum, the
terms and conditions of the Addendum shall control strictly with
respect to this Addendum.
BOTH PARTIES REPRESENT THAT THEY HAVE READ THIS ADDENDUM, UNDERSTAND IT, AND
AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED HEREIN.
ADAYTUM SOFTWARE, INC. XXXXXXXX CONSULTING LLP
By: /S/ J. D. G. Haddleton By: /S/ Xxxxx X. Xxxxxxxxx
--------------------------------- --------------------------------
Name: J. D. G. Haddleton Name: Xxxxx X. Xxxxxxxxx
------------------------------- ------------------------------
Title: CEO Title: Partner
------------------------------ -----------------------------
Date: 5/31/2000 Date: 5/31/2000
------------------------------- ------------------------------
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