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SIEBEL ALLIANCE PROGRAM
MASTER AGREEMENT
THIS SIEBEL ALLIANCE PROGRAM MASTER AGREEMENT (the "Agreement") is between
SIEBEL SYSTEMS, INC., with its principal place of business at 0000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Siebel') and the ALLIANCE PARTNER
("Partner") identified below.
THIS AGREEMENT ESTABLISHES THE FRAMEWORK OF THE SIEBEL ALLIANCE PROGRAM (THE
"ALLIANCE PROGRAM"), A COMPREHENSIVE TECHNICAL AND MARKETING PROGRAM FOR
SIEBEL'S ALLIANCE PARTNERS TO DEVELOP AND PROMOTE THEIR PRODUCTS, SERVICES AND
SOLUTIONS IN CONJUNCTION WITH THE SIEBEL APPLICATIONS. THE BENEFITS AVAILABLE
TO PARTNER THROUGH THE ALLIANCE PROGRAM, AND THE REQUIREMENTS PARTNER MUST MEET,
DEPEND ON THE PARTNER'S CATEGORY AND PARTNER LEVEL (AS DESIGNATED ON EXHIBIT A)
AND ARE SET FORTH IN THE SIEBEL ALLIANCE PROGRAM GUIDE.
1. DEFINITIONS
The following definitions shall apply to this Agreement and any addenda hereto
(if any). Many of the definitions below are not referred to in this Agreement
but may be referred to in addenda to this Agreement:
1.1 "DELIVERABLES" shall mean any tangible materials provided to Partner by
Siebel in the course of performing technical support services (if any).
1.2 "DOCUMENTATION" shall mean Siebel's then current published guides,
manuals and on-line help made generally available to its customers for the
Ordered Programs.
1.3 "EFFECTIVE DATE" shall mean the effective date set forth at the end of
this Agreement.
1.4 "INTELLECTUAL PROPERTY RIGHTS" will mean and include all trade secrets,
patents, copyrights, designs, mask works, drawings, Marks and other proprietary
rights, whether registered or unregistered, and all applications and
registrations therefor, which pertain to the Alliance Program, the Programs, or
the Partner Products.
1.5 "LOGO USE POLICY" shall mean Siebel's then current written policies for
proper usage and placement of the Marks, as amended from time to time by Siebel
in its discretion.
1.6 "MARKS" shall mean the trademarks, service marks, trade names, and logos
of Siebel, its licensors, and Partner.
1.7 "PARTNER CATEGORY" shall mean Siebel's then current Alliance Program
categories, as amended from time to time by Siebel in its discretion. As of the
Effective Date, the current Partner Categories are listed in EXHIBIT A.
1.8 "PARTNER LEVEL" shall mean Siebel's then current Alliance Program
participation levels within a given Partner Category, as amended from time to
time by Siebel in its discretion. As of the Effective Date, the current Partner
Levels are listed in EXHIBIT A.
1.9 "PARTNER PRODUCTS" shall mean one or more of the following value-added
goods and/or services developed, sold, or provided by Partner to customers in
the ordinary course of business: (i) provision of consulting, professional,
training, technical support or educational services; (ii) development and/or
licensing of application software; (iii) development and/or licensing of
software content; (iv) development and/or sale of hardware, database systems,
network services, and/or operating systems.
1.10 "PROGRAMS" shall mean those Siebel software programs that are listed as
generally available in Siebel's then-current marketing literature and that are
generally licensed by Siebel for commercial use.
1.11 "SIEBEL ALLIANCE LOGO" shall mean the logo specified by Siebel for use in
association with a given Partner Category and Partner Level.
1.12 "SIEBEL ALLIANCE PROGRAM GUIDE" shall mean Siebel's then current
published guide for the Siebel Alliance Program setting forth the specific
benefits and requirements for each Partner Category and Partner Level, as
amended from time to time by Siebel in its discretion.
1.13 "SIEBEL CERTIFIED PROFESSIONALS" shall mean the individuals who have been
certified with respect to a particular major version of the Programs by Siebel,
or a third party authorized by Siebel, upon completion of the applicable
certification requirements established by Siebel, as amended from time to time
by Siebel in its discretion.
1.14 "TERRITORY" shall mean the geographical territory and/or vertical markets
as specified in EXHIBIT A.
1.15 "TRAINING MATERIALS" shall mean any training materials provided in
connection with any training courses ordered by Partner and delivered by Siebel.
1.16 "USERS" shall mean the named or specified (by password or other user
identification) individuals authorized by Partner to use Programs, regardless of
whether the individual is actively using the Programs at any given time. The
maximum number of Users that may use the User Programs or access the System
Programs is specified in the Order Form attached as Exhibit B to the Limited Use
License. Users may only include employees of Partner; notwithstanding the
foregoing, Users shall exclude any individuals employed by, or acting on behalf
or under the direction of, a direct competitor of Siebel.
2. APPOINTMENT
Siebel hereby appoints Partner within the Territory as a non-exclusive Siebel
Alliance Program Partner for the Partner Category and Partner Level specified in
EXHIBIT A. Upon Partner's request, Siebel has the right, but not the
obligation, to upgrade Partner to a higher Partner Level and/or approve Partner
for a new Partner Category. If Partner is upgraded to a higher Partner Level
and/or is approved for a new Partner Category, then Partner shall satisfy the
corresponding requirements and obligations as set forth in the Siebel Alliance
Program Guide. If during the term of this Agreement Siebel offers a more
desirable program Partner will have the right to participate in such a program
with the commitments and benefits of that level.
3. TERM AND TERMINATION
3.1 TERM. This Agreement will commence as of the Effective Date and will
remain in effect for a period of one (1) year, unless terminated earlier upon
mutual written agreement of the parties or as otherwise described in this
Section 3. This Agreement and any addenda hereto may be renewed for additional
terms of one (1) year each so long as Partner has satisfied and continues to
satisfy the Partner obligations and requirements as set forth in the Siebel
Alliance Program Guide, this Agreement, and any addenda hereto, including
without limitation timely payment of all applicable fees due hereunder. Any
renewal term is subject to Siebel's acceptance and final
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approval, which shall be indicated by delivery to Partner of Siebel's letter of
acceptance or notice of renewal. If Siebel does not accept Partner's renewal or
if Partner fails to pay the applicable fees on or before the anniversary date of
this Agreement, then this Agreement shall immediately expire.
3.2 TERMINATION. Either party may terminate this Agreement or any addenda
hereto without cause upon thirty (30) days prior written notice to the other
party. In addition, either party may terminate this Agreement or any addenda
hereto immediately upon notice to the other party if (i) the other party
materially breaches any obligation under this Agreement or any addenda hereto,
and, if the breach is capable of being cured, such party fails to cure such
breach within thirty (30) calendar days after written notice of the breach;
(ii) the other party ceases to conduct business in the normal course, becomes
insolvent, enters in bankruptcy procedures or becomes subject to any other
judicial proceedings that relate to insolvency or protection of creditor's
rights; or (iii) the other party undergoes a change in control that, in the
terminating party's sole discretion, may have an adverse affect on the
terminating party's business or rights under this Agreement or any addenda
hereto.
3.3 LIABILITY FOR FEES UPON TERMINATION. If Partner terminates this
Agreement or any addenda hereto for cause, or if Siebel terminates this
Agreement or any addenda hereto without cause, Partner shall only be liable for
payment of any fees under this Agreement or any addenda hereto through the date
of such termination and Partner shall receive a pro-rata refund of any remaining
pre-paid fees. If Siebel terminates this Agreement or any addenda hereto for
cause, or if Partner terminates this Agreement or any addenda hereto without
cause, Partner shall be liable for payment of any accrued fees under this
Agreement or any addenda hereto through the end of the current annual period.
Neither party shall be responsible to the other for any costs or damages
resulting from the termination of this Agreement.
3.4 EFFECTS OF TERMINATION. Upon termination of this Agreement with or
without cause: (i) all rights and obligations granted to either party under this
Agreement and any addenda hereto will immediately cease; (ii) Partner will
immediately cease to represent itself as a Siebel Alliance Program Partner and
Siebel will immediately cease to represent Partner as a Siebel Alliance Program
Partner; and (iii) each party will promptly cease use of, and, at the other
party's option, either promptly destroy or return to the other party: (a) all
copies of the Programs, the license for which was granted under an addendum to
this Agreement, (b) all logos, files and other materials provided by the other
party under this Agreement, and (c) all Confidential Information of such other
party as well as any materials that embody any such Confidential Information.
Partner shall cease use of and either return or destroy all copies of the
Programs licensed to Partner under the Limited Use License Addendum to this
Agreement within five business days of the termination or expiration of this
Agreement. Termination of this Agreement shall not limit either party from
pursuing other remedies available to it, including injunctive relief, nor shall
such termination relieve Partner of its obligation to pay all fees that have
accrued or are otherwise owed by Partner under this Agreement or an addenda
hereto.
3.5 SURVIVAL. Notwithstanding any provision to the contrary, Sections 4, 8,
9, 10, 11, 12 and this Section 3 will survive termination of this Agreement.
4. PAYMENT
4.1. FEES. During the initial term and for each renewal term, Partner shall
pay Siebel (i) the applicable annual fee for the Partner Category and Partner
Level as stated in the Siebel Alliance Program Guide, and (ii) any fees or
charges due pursuant to a valid addendum hereto (if any).
4.2. PAYMENT TERMS. The applicable annual fee for the Partner Category and
Partner Level as stated in the Siebel Alliance Program Guide shall be due and
payable in full on or before the anniversary date of this Agreement. Except as
specifically provided otherwise, all other fees shall be due and payable in full
on or before thirty (30) days from the receipt of Siebel's invoice. All
payments made pursuant to this Agreement or any addenda hereto shall be
(i) payable in U.S. currency, (ii) made without any deduction, whether by
set-off, counterclaim, or otherwise, and (iii) nonrefundable and irrevocable
except as set forth in Section 3.3 above.
4.3 TAXES. The fees listed in this Agreement do not include taxes, duties or
fees; if Siebel is required to pay (i) sales, use, property, value-added,
withholding or other taxes, (ii) any customs or other duties, or (iii) any
import, warehouse or other fees, associated with the importation or delivery
based on the Programs or services provided in this Agreement or on Partner's use
of Programs or services, then such taxes, duties or fees shall be billed to and
paid by Partner. If Partner is permitted to declare any such taxes, Partner
shall declare and pay such taxes and Siebel shall not be required to invoice
Partner. This Section shall not apply to taxes based on Siebel's income or
payroll taxes.
5. ALLIANCE PROGRAM FEATURES
5.1 SIEBEL ALLIANCE MARKETING PROGRAMS. Partner shall be eligible to
participate in the Siebel marketing programs as set forth in the Siebel Alliance
Program Guide. Certain Siebel marketing programs are restricted to particular
Partner Categories and/or Partner Levels as stated in the Siebel Alliance
Program Guide.
5.2 MARKET DEVELOPMENT FUND. If Partner is joining the Siebel Alliance
Program at a particular Partner Category and Partner Lever for which a Market
Development Fund amount is specified under the Siebel Alliance Program Guide,
Partner shall commit the amount specified for such Market Development Fund. In
Siebel's sole discretion, Siebel may match up to the amount that Partner spends
based upon the amount that Partner actually spends on Partner Joint Marketing
Programs to benefit the parties, Programs, and/or Partner Products. The parties
agree to jointly develop a plan for using such Market Development Fund to
benefit the parties, Programs, and/or Partner Products.
5.3 SIEBEL ALLIANCE LOGO USAGE. Partner may use the applicable Siebel
Alliance Program Partner Logo in accordance with the Logo Use Policy upon
(i) entering into a Logo License Addendum with Siebel pursuant to which Siebel
grants Partner the right to use the applicable Siebel Alliance Program Partner
Logo in connection with Partner's marketing materials for the Partner Products,
(ii) paying any corresponding license fees (if any), and (iii) fulfilling all
other applicable requirements and obligations under this Agreement. Except as
specifically set forth in this Agreement, Partner's right to use a Xxxx of the
Siebel Alliance Program shall be governed exclusively by the Siebel Alliance
Program Logo License Addendum.
5.4 MARKETING AND DEMONSTRATION LICENSE. Partner may use the Programs upon
(i) entering into a Limited Use Program License Addendum executed by Siebel and
Partner pursuant to which Siebel grants Partner limited use rights with respect
to certain Programs for Partner's marketing and demonstration use and
(ii) paying the corresponding license fees (if any). The Siebel Alliance
Program Guide sets forth whether entering into such addendum is required for a
particular Partner Category and Partner Level. Except as specifically set forth
in this Agreement, Partner's rights and obligations with respect to such
marketing and demonstration use shall be governed exclusively by the Siebel
Alliance Program Limited Use Program License Addendum.
5.5 DEVELOPMENT LICENSE. Partner may use the Programs upon (i) entering into
a Siebel Alliance Program Limited Use Program License Addendum executed by
Siebel and Partner pursuant to which Siebel grants Partner limited use rights
with respect to certain Programs for Partner's internal development and testing
use and (ii) paying the corresponding license fees (if any). The Siebel
Alliance Program Guide sets forth whether entering such addendum is required for
a particular Partner Category and Partner Level. Except as specifically set
forth in this Agreement, Partner's rights and obligations with respect to such
internal development and testing use shall be
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governed exclusively by the Siebel Alliance Program Limited Use Program License
Addendum.
5.6 TECHNICAL SUPPORT ADDENDUM. If offered by Siebel, Partner shall be
entitled to receive technical support from Siebel upon (i) entering into the
Siebel Alliance Program Technical Support Addendum pursuant to which Siebel
provides Partner with certain technical support with respect to the Programs and
(ii) paying any corresponding fees (if any). The Siebel Alliance Program
Technical Support Addendum and the Siebel Alliance Program Guide set forth the
scope of technical support available to Partner. Except as specifically set
forth in this Agreement, Partner's rights and obligations with respect to such
technical support shall be governed exclusively by the Siebel Alliance Partner
Technical Support Addendum.
5.7 TRAINING SERVICES. Siebel will provide training to Partner, subject to
availability, in accordance with Siebel's Training Services schedule in effect
at the time such training is ordered (available upon request).
5.8 TECHNICAL SERVICES. Siebel will provide technical services, subject to
availability, in accordance with Siebel's Technical Services schedule in effect
at the time such services are ordered (available upon request).
5.9 ADVERTISING AND PROMOTIONAL MATERIALS.
5.9.1 PERMITTED USES OF PARTNER MARKS. Siebel may, in its discretion,
reference the Partner and Partner's products by using the names and/or
logos of Partner and/or its Products in advertising and promotional
materials in connection with the sale and promotion of the Programs
and/or promotion of the Alliance Program as follows: (i) in lists of the
Siebel Alliance Program Partners for customer information, (ii) in
general advertising of the Siebel Alliance Program, (iii) in general
marketing materials listing all Siebel Alliance Partners of a particular
Partner Category(ies) and/or Partner Level(s), (iv) by framing and
displaying the names and/or logos along with those of other Alliance
Partners at Siebel's corporate headquarters in San Mateo, California and
at its selected business offices, (v) by displaying such names and/or
logos in a professionally prepared graphic for display at promotional
events and trade show events, and (vi) displaying such names and/or
logos as a link to Partner's web site on the Siebel web site.
5.9.2 OTHER USES OF PARTNER MARKS. When a specific advertisement or promotion
is planned which will refer to Partner without reference to any other
Siebel Alliance Partners, Siebel will obtain Partner's written permission
before such use. Siebel shall also obtain Partner's written permission
before use of any logo of Partner; provided that Partner hereby consents
to Siebel's display of Partner's logo on the area of the Siebel website
relating to the Siebel Alliance Program and Partner shall provide Siebel
with digital files and artwork of Partner's logo for this purpose.
5.10 CHANGES TO THE SIEBEL ALLIANCE PROGRAM. Partner acknowledges and agrees
that Siebel may expand, change the scope or contents of, and/or delete, any
terms of benefits offered under the Siebel Alliance Program, including but not
limited to expanding, changing the scope or contents of and/or deleting the
Siebel Alliance Program Guide or any terms therein. Siebel will provide Partner
with thirty (30) days advance written notice of any changes to the scope,
contents and/or benefits offered under the Siebel Alliance Program that in
Siebel's reasonable sole discretion are material. "Written notice" for the
purposes of this Agreement may include notice via electronic means such as
email. In the event that Siebel changes any Alliance Program features, and
should Partner be dissatisfied with those changes, Partner may terminate this
Agreement upon thirty (30) days' written notice to Siebel, receive a pro rata
refund of any unused prepaid fees, and will have no further recourse against
Siebel.
6. VALIDATION
The terms of this Section 6 shall only apply where Partner is required, pursuant
to the Siebel Alliance Program Guide, to have its Partner Products validated by
Siebel.
6.1 TESTING. Partner shall submit the Partner Products to Siebel for testing
compatibility with the specifications, standards, and objectives as set forth in
Siebel's Validation Guidelines (the "Testing Criteria"), as amended from time to
time by Siebel in its discretion. Upon Siebel's request, Partner shall make
available, at no charge, a technical liaison to assist in such compatibility
testing.
6.2 VALIDATION; ACCEPTANCE. If Siebel's testing procedure demonstrates that,
in Siebel's discretion, the Partner Product satisfies all applicable Testing
Criteria, then Siebel shall provide written notice validating that such Partner
Product conforms to Siebel's Validation Guidelines. Such Partner Product shall
not be deemed accepted by Siebel until Siebel notifies Partner of its acceptance
in writing. Any validation granted by Siebel with respect to a Partner Product
shall apply only with respect to the particular Programs and versions for which
the Partner Product was tested and approved by Siebel. If, in Siebel's
discretion, the Partner Product does not satisfy all applicable Testing
Criteria, then Siebel shall notify Partner in reasonable detail of the reasons
for deficiency. Upon receipt of such notification, Partner shall use its
commercially reasonable efforts to remedy such deficiencies and resubmit, within
a reasonable period, the Partner Product to Siebel for re-testing. The parties
agree that, if a Partner Product fails to satisfy, in Siebel's discretion, the
Testing Criteria after three (3) cycles of rejection and resubmission, Siebel
shall have the option, in its discretion, to terminate this Agreement
immediately either in its entirety or partially with respect to the such
rejected Partner Product.
6.3 NEW RELEASES. If Partner issues a new release of the Partner Program
that incorporates new features or functionality, Partner shall notify Siebel of
such new release and shall apply for re-validation of the Partner Program
pursuant to this Section 6. Such new release shall not be deemed approved by
Siebel until Siebel notifies Partner of its approval in writing. If Siebel
issues a new release of the Programs that incorporates new features or
functionality, the Siebel-validated status of any Partner Products on the new
release of the Programs is conditional upon Partner re-validating the Partner
Products pursuant to this Section 6 within three (3) months of the general
availability of the new release of the Programs.
7. PARTNER REPRESENTATIONS AND WARRANTIES
7.1 MEMBERSHIP APPLICATION. Partner represents and warrants that all the
information provided on any registration or application form submitted to Siebel
is, in all material respects, true and correct, and warrants that the
information will continue to be so during the term of this Agreement unless
Partner otherwise notifies Siebel in writing. Should there by any changes in
such information during the course of this Agreement, Partner agrees to promptly
inform Siebel in writing giving details of such changes.
7.2 PARTNER PRODUCTS. [NOT APPLICABLE FOR CONSULTING PARTNERS]. Partner
represents and warrants that it currently markets and sells the Partner
Products, that it meets the requirements of the applicable Partner Category and
Partner Level as set forth in the Siebel Alliance Program Guide, and that it
will continue to do so during the term of this Agreement.
7.3 CERTIFIED STAFFING LEVELS. [FOR CONSULTING PARTNERS ONLY]. Partner
acknowledges and agrees that, at all times during the term of this Agreement and
any renewals hereto, Partner shall employ the number and types of Siebel
Certified Professionals as set forth in the Siebel Alliance Program Guide for
the Partner Category and Partner Level applicable to Partner (if any). Partner
acknowledges and agrees that, as a condition to maintaining Siebel Certified
Professional status, each Siebel Certified Professional must be re-certified
with respect to each new major release of the Programs within three (3) months
of the general availability of such new major release by completion of
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the applicable validation requirements established by Siebel, as amended from
time to time by Siebel in its discretion.
7.4 FULL POWER AND AUTHORITY; ETHICAL CONDUCT. Partner represents and
warrants that (i) it has full power and authority to enter into this Agreement;
(ii) it shall conduct its business in a manner that reflects favorably at all
times on the Programs and the good name, goodwill, and reputation of Siebel;
(iii) it shall make no representations, warranties, or guarantees with respect
to the Programs, or their features, functionality, or specifications, that are
inconsistent with Siebel's then current published Program documentation or
Siebel's then current standard Software License and Services Agreement for such
Programs; and (iv) it shall make no representations, warranties, or guarantees
on behalf of Siebel.
7.5 STANDARDIZATION ON SIEBEL APPLICATIONS. If required under the Siebel
Alliance Program Guide, Partner represents and warrants that (i) it has already
entered into a valid and binding Software License and Services Agreement for the
Programs with Siebel or it will do so within thirty (30) days of the Effective
Date of this Agreement; and (ii) it has standardized on such Programs or is
using its best efforts to promptly standardize on such Programs. Such Software
License and Services Agreement for the Programs, and all fees payable
thereunder, shall be entirely separate and distinct from this Agreement.
8. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
8.1 WARRANTY DISCLAIMER. ALL GOODS AND/OR SERVICES PROVIDED HEREUNDER ARE
PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND. EACH PARTY HEREBY
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR
ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS, DAMAGE
OR EXPENSE THAT DIRECTLY OR INDIRECTLY ARISES FROM OR IN CONNECTION WITH THE
INABILITY OF EITHER THE PARTNER PRODUCTS OR THE PROGRAMS TO WORK WITH EACH
OTHER. Except for Siebel's liability for any breach of its obligations under
Sections 9 (Indemnification) or 11 (Nondisclosure), Siebel's aggregate and
cumulative liability for damages hereunder shall in no event exceed the amount
of fees paid by Partner under this Agreement. Except for any breach of its
obligations under Sections 4 (Payment), 9 (Indemnification) and 11
(Nondisclosure), Partner's aggregate and cumulative liability for damages
hereunder shall in no event exceed the amount of fees paid by Partner under this
Agreement.
9. INDEMNIFICATION
9.1 SIEBEL'S INDEMNITY. If a third party makes a claim against Partner that
the Programs directly infringe any U.S. or Canadian patent issued as of the
Effective Date or any copyright, trade secret or trademark ("IP Claim"); Siebel
will defend Partner against the IP Claim and pay all costs, damages and expenses
(including reasonable legal fees) finally awarded against Partner by a court of
competent jurisdiction or agreed to in a written settlement agreement signed by
Siebel arising out of such IP Claim; PROVIDED THAT: (i) Partner promptly
notifies Siebel in writing no later than sixty (60) days after Partner's receipt
of notification of a potential claim; (ii) Siebel may assume sole control of the
defense of such claim and all related settlement negotiations; and (iii) Partner
provides Siebel, at Siebel's request and expense, with the assistance,
information and authority necessary to perform Siebel's obligations under this
Section. Notwithstanding the foregoing, Siebel shall have no liability for any
claim of infringement based on (a) the use of a superseded or altered release of
Programs if the infringement would have been avoided by the use of a current
unaltered release of the Programs, which Siebel provided to Partner, (b) the
modification of a Program, or (c) the use of the Programs other than in
accordance with the Documentation and this Agreement.
If, due to an IP Claim or the threat of an IP Claim, (i) the Programs are held
by a court of competent jurisdiction, or in Siebel's reasonable judgment may be
held to infringe by such a court, or (ii) Partner receives a valid court order
enjoining Partner from using the Programs, or in Siebel's reasonable judgment
Partner may receive such an order, Siebel shall in its reasonable judgment, and
at its expense, (a) replace or modify the Programs to be non-infringing;
(b) obtain for Partner a license to continue using the Programs; or (c) if
Siebel cannot reasonably obtain the remedies in (a) or (b), terminate the
Program License for the infringing Programs and refund the license fees paid for
those Programs upon return by Partner. This Section 9.1 states Siebel's entire
liability and Partner's exclusive remedy for any claim of infringement.
9.2 PARTNER'S INDEMNITY. Partner will defend and indemnify Siebel against
any and all costs, damages and expenses (including reasonable legal fees)
finally awarded against Siebel by a court of competent jurisdiction or agreed to
in a written settlement agreement signed by Partner arising out of or in
connection with: (i) the performance or use of Partner's Products by any third
party; (ii) information supplied by Partner to any third party regarding the
features, functionality, performance, or use of the Programs except where either
such information was supplied to Partner by Siebel for further distribution, or
such supply by Partner was specifically authorized by Siebel in writing;
(iii) any representation made by Partner that Siebel has endorsed, warranted, or
guaranteed Partner's Products without the specific, prior written consent of
Siebel; PROVIDED THAT: (a) Siebel promptly notifies Partner in writing no later
than sixty (60) days after Siebel's receipt of notification of a potential
claim; (b) Partner may assume sole control of the defense of such claim and all
related settlement negotiations; and (c) Siebel provides Partner, at Partner's
request and expense, with the assistance, information and authority necessary to
perform Partner's obligations under this Section.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 OWNERSHIP. Siebel and Partner hereby acknowledge that the other party is
the exclusive owner of all rights, title, and interest in and to, or authorized
licensee of, their respective Intellectual Property Rights (with respect to the
Partner Products for Partner, and with respect to the Programs, the Alliance
Program, Training Materials and Deliverables for Siebel). Neither party will
acquire any rights in or to any of the Intellectual Property Rights of the
other. Neither party will take any action that may adversely affect or impair
the other party's, or its licensor's, rights, title and interest in or to their
Intellectual Property Rights. Any terms regarding Intellectual Property Rights
in other materials shall be separately negotiated and agreed to in writing.
10.2 INFRINGEMENT NOTIFICATION. Each party shall render to the other party
all reasonable assistance as may be required to preserve the validity and
enforceability of the other party's, or its licensor's, rights, title and
interest in and to the Intellectual Property Rights. Each party agrees that it
shall promptly notify the other party (i) of any and all infringements,
imitations, illegal use, misuse, or misappropriation, by any third party of the
Intellectual Property Rights which comes to its attention, and (ii) of any
claims or objections that such party's use of the Intellectual Property Rights
may or will infringe the copyrights, patents, designs, trademarks or other
proprietary rights of any other third party. Each party, as the owner or
authorized licensor of the Intellectual Property Rights, shall be responsible
for taking any action or initiating any proceedings which such party, in its
sole discretion, determines to be necessary or appropriate to prevent any
infringement of its Intellectual Property Rights, and the parties shall provide
each other with such assistance as reasonably requested in connection with any
such action or proceeding.
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11. NONDISCLOSURE
11.1 DEFINITION. Each party may have access to information that is
confidential to the other party ("Confidential Information"). Siebel's
Confidential Information shall include, but not be limited to, the Programs,
Documentation, formulas, methods, know how, processes, designs, new products,
developmental work, marketing requirements, marketing plans, customer names,
prospective customer names, the terms and pricing under this Agreement, and all
information clearly identified in writing at the time of disclosure as
confidential. Siebel's Confidential Information constitutes trade secrets of
Siebel and/or its suppliers. Partner's Confidential Information constitutes
trade secrets of Partner and/or its suppliers. Partner's Confidential
Information shall include, but not be limited to, its Partner Products,
formulas, methods, know-how, processes, designs, new products, developmental
work, marketing requirements, marketing plans, customer names, prospective
customer names, and all information clearly identified in writing at the time of
disclosure as confidential. Confidential Information includes all information
received from third parties that either party is obligated to treat as
confidential and oral information that is identified by either party as
confidential.
11.2 EXCEPTIONS. A party's Confidential Information shall not include
information that (i) is or becomes a part of the public domain through no act or
omission of the other party; (ii) was in the other party's lawful possession
prior to the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (iii) is lawfully disclosed to
the other party by a third party without restriction on disclosure; (iv) is
independently developed by the other party without use of or reference to the
other party's Confidential Information; or (v) is required to be disclosed by
law or valid order of a court or other governmental authority; PROVIDED,
HOWEVER, that the responding party shall first have given notice to the other
party and shall have made a reasonable effort to obtain a protective order
requiring that the Confidential Information so disclosed be used only for the
purposes for which the order was issued.
11.3 RESTRICTIONS. The parties agree, unless required by law, not to make
each other's Confidential Information available in any form to any third party
(except third parties who are Users as defined hereunder) or to use each other's
Confidential Information for any purpose other than in the performance of this
Agreement. Partner shall not disclose the results of any performance tests of
the Programs to any third party without Siebel's prior written approval. Each
party agrees to take all reasonable steps to ensure that Confidential
Information is not disclosed or distributed by its employees or agents in breach
of this Agreement. The parties agree to hold each other's Confidential
Information in confidence during the term and any renewal terms of this
Agreement and for a period of three (3) years thereafter.
11.4 EQUITABLE RELIEF. Each party acknowledges and agrees that, due to the
unique nature of Confidential Information, there can be no adequate remedy at
law for breach of this Section 11 and that such breach would cause irreparable
harm to the non-breaching party; therefore, the non-breaching party shall be
entitled to seek immediate injunctive relief, in addition to whatever remedies
it might have at law or under this Agreement. This Section 11 constitutes the
entire understanding of the parties and supersedes all prior or contemporaneous
agreements, representations or negotiations, whether oral or written, with
respect to Confidential Information.
12. GENERAL PROVISIONS
12.1 NO PARTNERSHIP. The parties undertake their respective obligations under
this Agreement as independent contractors. This Agreement does not, and is not
intended to, create any employment, agency, distributorship, franchise, joint
venture, legal partnership or other similar legal relationship between Siebel
and Partner. Neither party will have any right or authority to act on behalf
of, or to bind, the other party and neither party will represent to any third
party that it has such right or authority.
12.2 NON-EXCLUSIVITY; FREEDOM OF ACTION. This Agreement is not exclusive in
any respect. Each party may enter into similar agreements with other parties.
Partner acknowledges that, under the Alliance Program, Siebel intends to enter
into similar agreements with other companies who may compete directly or
indirectly with Partner or Partner's Products. Nothing contained in this
Agreement will limit the right of each party to develop products and/or services
similar to those of the other party, provided that such development activity
does not violate any term or condition of this Agreement, including but not
limited to the confidentiality provisions of Section 11. Each party shall be
free to use for any purpose the ideas, concepts, know-how and techniques that
are contained in the Confidential Information provided hereunder and retained in
the memories of each party's employees who have had valid access to the
Confidential Information provided pursuant to this Agreement.
12.3 NO ASSURANCES. Siebel makes no representation or warranty that Partner
will succeed in licensing or selling any Partner Product to any present or
future Siebel customer, and Siebel will not be liable to Partner for Partner's
failure to license or sell Partner Products. Partner makes no representation or
warranty that Siebel will succeed in licensing or selling the Programs or
related products and services to any present or future Partner customer, and
Partner will not be liable to Siebel for Siebel's failure to license or sell the
Programs or related products and services.
12.4 GOVERNING LAW. This Agreement and all matters arising out of or relating
to this Agreement, shall be governed by the laws of the State of California,
excluding its conflict of law provisions.
12.4.1. DISPUTE RESOLUTION. The dispute resolution procedures set forth in
this Section 12.4.1 shall apply to any claim, controversy, or dispute arising
from this Agreement ("Dispute"). In the event of a Dispute involving the
material breach of this Agreement by Partner that is not cured after Siebel has
provided the appropriate written notice to Partner under Section 3.2 of this
Agreement, Siebel may, at its option, bring a judicial proceeding in the
location where the actions giving rise to the dispute occurred, in the Superior
Court of California, County of Santa Xxxxx or County of San Francisco or, if
appropriate, in the United States Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx of
California, or Siebel may finally settle such Dispute in the English language
under the rules of the International Chamber of Commerce (ICC) or the American
Arbitration Association (AAA), by a single arbitrator in accordance with such
rules. Siebel and Partner expressly and irrevocably consent and submit to the
exclusive jurisdiction of such courts (and of the appropriate appellate courts)
in any such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world. The arbitrator shall be mutually
agreeable to the parties and shall be an attorney at law with arbitration
experience and at least ten years' demonstrated legal experience in computer
software license arrangements. Siebel may choose among the following locations
for the arbitration: London, Hong Kong, or San Francisco, California. The
arbitration award shall be substantiated in writing, shall be binding on the
parties, and may be entered in any court having jurisdiction thereof. The
arbitral award, if any, will be paid in United States Dollars, exclusive any
tax, deduction or offset. The arbitrator shall be bound by the applicable rules
of procedure and evidence and the damage limitation clauses contained in this
Agreement, and shall not have authority to award punitive damages. The
arbitrator shall take all steps as may be necessary to (i) schedule the initial
hearing within ninety (90) days of the initial demand for
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arbitration, (ii) schedule all hearings to be heard consecutively and for not
longer than two days with each party allotted half the available time, and (iii)
issue a written decision no later than fourteen (14) days after the hearing.
Each party shall bear its own costs and attorneys' fees in connection with such
arbitration and shall share equally in the fees and expenses of the arbitrator.
All information related to the arbitration proceedings described herein shall be
deemed Confidential Information and subject to the restrictions on disclosure
contained in Section 9.1 of this Agreement. Notwithstanding the foregoing, in
the event of an actual or threatened breach of Partner's obligations regarding
Siebel's intellectual property rights or Siebel's Confidential Information,
Siebel shall be entitled, to immediately seek equitable relief as set forth in
Section 11.4 of this Agreement, as well as such further relief as may be granted
by a court of competent jurisdiction.
In the event of a Dispute involving the material breach of this Agreement by
Siebel that is not cured after Partner has provided the appropriate notice to
Siebel under Section 3.2 of this Agreement, Partner may, at its option, bring an
action in the Superior Court of California, County of Santa Xxxxx or County of
San Francisco, or, if appropriate, in the United States Xxxxxxx Xxxxxxxx Xxxxx,
Xxxxxxxx Xxxxxxxx of California, or Partner may finally settle such Dispute in
the English language under the rules of the AAA by a single arbitrator in
accordance with such rules. The place of arbitration shall be San Francisco,
California. Siebel and Partner expressly and irrevocably consent and submit to
the exclusive jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waive any objection to venue laid
therein. Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world. The arbitrator shall
be mutually agreeable to the parties and shall be an attorney at law with
arbitration experience and at least ten years' demonstrated legal experience in
computer software license arrangements. The arbitration award shall be
substantiated in writing, shall be binding on the parties, and may be entered in
any court having jurisdiction thereof. The arbitral award, if any, will be paid
in United States Dollars, exclusive any tax, deduction or offset. The
arbitrator shall be bound by the applicable rules of procedure and evidence and
the damage limitation clauses contained in this Agreement, and shall not have
authority to award punitive damages. The arbitrator shall take all steps as may
be necessary to (i) schedule the initial hearing within ninety (90) days of the
initial demand for arbitration, (ii) schedule all hearings to be heard
consecutively and for not longer than two days with each party allotted half the
available time, and (iii) issue a written decision no later than fourteen (14)
days after the hearing. Each party shall bear its own costs and attorneys' fees
in connection with such arbitration and shall share equally in the fees and
expenses of the arbitrator. All information related to the arbitration
proceedings described herein shall be deemed Confidential Information and
subject to the restrictions on disclosure contained in Section 9.1 of this
Agreement.
12.5 NOTICES. All notices required to be sent hereunder shall be in writing
and shall be deemed to have been given upon (i) the date sent by confirmed
facsimile, (ii) on the date it was delivered by courier, or (iii) if by
certified mail return receipt requested, on the date received, to the addresses
set forth above and to the attention of the signatory of this Agreement or to
such other address or individual as the parties may specify from time to time by
written notice to the other party.
12.6 SEVERABILITY. In the event any provision of this Agreement is held to be
invalid or unenforceable, the remaining provisions of this Agreement will remain
in full force.
12.7 WAIVER. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent default or
breach. Except for actions for nonpayment or breach of Siebel's proprietary
rights in the Programs or Documentation, no action, regardless of form, arising
out of this Agreement may be brought by either party more than one year after
the cause of action has accrued.
12.8 EXPORT CONTROLS. Partner agrees to comply fully with all relevant export
laws and regulations of the United States, including but not limited to the U.S.
Export Administration Regulations (collectively, "U.S. Export Controls").
Without limiting the generality of the foregoing, Partner expressly agrees that
it shall not, and shall cause its representatives to agree not to, export,
directly or indirectly, re-export, divert, or transfer the Programs or any
direct product thereof to any destination, company or person restricted or
prohibited by U.S. Export Controls.
12.9 DELIVERY. All materials provided by Siebel hereunder shall be delivered
to Partner on a F.O.B. Siebel's San Mateo Headquarters basis for destinations
within the United States, or on a FCA (Incoterms 1990) Siebel's San Mateo
Headquarters basis for destinations outside the United States; at which point
title to the carrier media and risk of loss or damage to the materials shall be
transferred from Siebel to Partner. Nothing in this Section shall be deemed to
transfer title to, or provide Partner with any rights in, the Programs,
Deliverables or Documentation, except as specifically provided in this
Agreement.
12.10 ORDER OF PRECEDENCE. In the event of conflict between this Agreement and
any addendum hereto, the terms and conditions of the applicable addendum shall
prevail with respect to the subject matter of such addendum.
12.11 ENTIRE AGREEMENT. This Agreement together with all exhibits and addenda,
each of which is hereby incorporated by reference, constitutes the complete
agreement between the parties and supersedes all prior or contemporaneous
agreements or representations, written or oral, concerning the subject matter of
this Agreement, its exhibits and addenda. This Agreement may not be modified or
amended except in writing signed by a duly authorized representative of each
party. No other act, document, usage or custom shall be deemed to amend or
modify this Agreement.
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12.12 SIGNATURE. This Agreement, and any addenda hereto, must be executed in
hardcopy originals. The exchange of a fully executed Agreement with the
original signature of each party shall be sufficient to bind the parties to the
terms and conditions of this Agreement.
The Effective Date of this Agreement shall be
-------------------------
EXECUTED BY:
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ALLIANCE PARTNER
ADDRESS:
---------------------------------------------------------------
---------------------------------------------------------------
Signed: "Signed"
---------------------------------------------------------------
Name:
---------------------------------------------------------------
Title:
---------------------------------------------------------------
Date:
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EXECUTED BY: SIEBEL SYSTEMS, INC.
0000 XXXXX XXXXX XXXXXX
XXX XXXXX, XXXXXXXXXX 00000
Signed: "Signed"
---------------------------------------------------------------
Name:
---------------------------------------------------------------
Title:
---------------------------------------------------------------
Date:
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EXHIBIT A
SIEBEL ALLIANCE PROGRAM
PARTNER CATEGORIES, PARTNER LEVELS, AND TERRITORY
--------------------------------------------------------------------------------
THIS FORM IS TO BE FILLED OUT BY SIEBEL. INSTRUCTIONS: Check a total of 3
boxes below:
(1) Check one box only under the Partner Categories and Partner Levels
heading,
(2) Check one box only under the Geographical Territory heading; and
(3) Check one box only under the Vertical Markets heading.
--------------------------------------------------------------------------------
PARTNER CATEGORY AND PARTNER LEVEL: Partner's applicable Partner Category and
Partner Level is listed below:
Siebel Premier Software Partner
TERRITORY: For purposes of the Agreement, the Territory shall be the
geographical territory and vertical markets indicated below. Siebel may grant
Partner rights outside this Territory by separate addendum to this Agreement and
Partner acknowledges that such separate addendum may contain additional terms,
conditions and restrictions relating to Partner's rights hereunder:
GEOGRAPHICAL TERRITORY (check one box only)
/ / United States and Canada
/ / Latin America
/ / Europe
/ / Japan
/X/ Worldwide
/ / Other: ________
VERTICAL MARKETS (check one box only)
/ / Unrestricted
/ / Restricted to the following Vertical Markets: _______
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