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EXHIBIT 10.10
AGREEMENT BETWEEN INDUS AND BROADBASE
Understanding that Indus and Broadbase are, and will continue to, make good
faith efforts toward the successful conclusion of an OEM relationship, both
parties agree to the following:
Broadbase agrees to take an active role in the development, testing and release
of the Indus Knowledge Warehouse (IKW).
In consideration for Broadbase's efforts Indus agrees to commit to a prepayment
of OEM royalties in the amount of $250,000 on or before March 31, 1999.
This prepay balance can be used to offset royalty payments due from Indus to
Broadbase on sales of the IKW on or after the general availability release of
the product at a rate of 50% of the amounts owed.
The amounts of the royalty payments owed will be calculated in accordance with
whatever OEM agreement is in effect at the time the amount owed is incurred.
The prepay balance may not be used to offset amounts owed for consulting,
training, maintenance, or technical support.
The $250,000 prepayment of royalties will be due upon the General Availability
release of the IKW product (expected on July 1).
INDUS BROADBASE
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Bay
Name: Xxxxx Xxxxxx Name: Xxxxx Bay
Title: SVP Marketing Title: CFO & EVP
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BROADBASE PARTNER TERMS AND CONDITIONS
THESE BROADBASE PARTNER TERMS AND CONDITIONS ("Terms and Conditions")
are entered into between Broadbase Information Systems, Inc. ("Broadbase") and
the party identified below ("Partner") as of ____________, 199_ (the "Effective
Date").
The parties desire to have Partner participate in Broadbase partner
programs pursuant to the terms and conditions set forth herein and any amendment
hereto.
The parties expect to execute a Broadbase Partner Agreement setting
forth the details of the partner relationship established herein.
NOW, THEREFORE, in consideration of the promises and mutual obligations
of the parties set forth herein, and for other good and valuable consideration,
the parties hereby agree as follows:
1. TERM AND TERMINATION.
1.1. Term Any Broadbase Partner Agreement document signed by the parties
relating to these Terms and Conditions ("BPA") will remain in effect until it
terminates or expires in accordance with its terms.
1.2 Termination. Either party may terminate a BPA upon written notice if the
other party materially breaches a material term thereof and fails to cure the
breach within thirty (30) days following written notice.
1.3. Rights and Duties Upon Termination. Termination of a BPA will not limit
either party from pursuing any other remedies available to it, including but not
limited to injunctive relief, nor will such termination relieve Partner's
obligation to pay all fees that accrued prior to such termination. Upon
termination of any BPA; Partner will (a) fully comply with all terms and
conditions in the BPA regarding termination; (b) cease any and all use of
Broadbase software provided by Broadbase to Partner (the "Software") and all
Confidential Information (as defined herein) of Broadbase; and (c) certify to
Broadbase within thirty (30) days that Partner has destroyed or returned to
Broadbase all copies of the Software and Confidential Information of Broadbase.
1.4 No Damages for Termination. BROADBASE SHALL NOT BE LIABLE TO PARTNER FOR
DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, ON ACCOUNT OF THE TERMINATION OF ANY BPA IN ACCORDANCE WITH ITS TERMS.
PARTNER WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS
ON TERMINATION OF ANY BPA UNDER THE LAW OF THE TERRITORY DESIGNATED IN THE BPA
OR OTHERWISE, OTHER THAN EXPRESSLY PROVIDED THEREIN. Broadbase will not be
liable to Partner on account of termination of any BPA for reimbursement or
damages for the loss of goodwill, prospective profits or anticipated income, or
on account of any expenditures, investments, leases or commitments made by
Broadbase or for any other reason whatsoever based upon or growing out of such
termination or expiration. Partner acknowledges that (i) Partner has no
expectation and has received no assurances that any investment by Partner in the
promotion of Broadbase products will be recovered or recouped or that Partner
will obtain any anticipated amount of profits by virtue of any BPA, and (ii)
Partner will not have or acquire by virtue of any BPA or otherwise any vested,
proprietary or other right in the promotion of Broadbase products or in
"goodwill" created by its efforts thereunder. THE PARTIES ACKNOWLEDGE THAT THIS
SECTION 1.4 HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR BROADBASE TO ENTER
INTO ANY BPA AND THAT BROADBASE WOULD NOT HAVE ENTERED INTO ANY BPA BUT FOR THE
LIMITATIONS OF LIABILITY SET FORTH HEREIN.
1.5 Survival. Sections 1.3, 1.4, 3.4, 3.5, 5, and 7 of these Terms and
Conditions will survive any expiration or termination of any BPA.
2. PROPRIETARY RIGHTS.
2.1 Software Ownership. Partner hereby acknowledges that, as between
Broadbase and Partner, Broadbase is the owner of all right and title in and to
the Software, and Partner shall acquire no rights in or to the Software.
2.2 No Other Rights. Partner acknowledges and agrees that, except as
otherwise provided in any BPA, Partner has no and will acquire no proprietary
rights in the Software, whether express or implied. Partner will not at any time
during or after the term of any BPA do anything that may adversely affect the
validity or enforceability of, or infringe or contribute to the infringement of,
any proprietary right of Broadbase. Partner will not modify the Software except
as expressly authorized in any BPA. Partner will not reverse engineer,
decompile, or disassemble the Software or other Broadbase product or authorize
anyone else to do so.
2.3 Obligation to Protect. Partner agrees to use best efforts to protect
Broadbase's proprietary rights and to cooperate in Broadbase's efforts to
protect its proprietary rights. Partner agrees to promptly notify Broadbase of
any known or suspected breach of any such proprietary right that comes to
Partner's attention.
3. INDEMNITY, WARRANTIES, REMEDIES, LIMITATION OF LIABILITY.
3.1 Infringement Indemnification.
(a) Broadbase will defend and indemnify Partner
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against a claim that the Software as furnished by Broadbase and used within the
scope of these Terms and Conditions (and any BPA) infringes a copyright or trade
secret, provided that: (i) Partner promptly notifies Broadbase in writing of the
claim, (ii) Broadbase has sole control of the defense and all related settlement
negotiations, and (iii) Partner provides Broadbase with the assistance,
information and authority necessary to perform the above.
(b) Broadbase will have no liability for any claim of infringement based
on: (i) use of a superseded release of the Software if such infringement would
have been avoided by the use of a current release of the Software; (ii) the
combination, operation, or use of any Software furnished under any BPA with
programs or data not provided by Broadbase, if such infringement would have been
avoided by the use of the Software without such programs or data; or (iii)
modifications to the Software by any party other thanthan Broadbase, if such
infringement would have been avoided in the absence of such modifications.
(c) In the event that the Software is held, or is believed by Broadbase,
to infringe a copyright or trade secret, Broadbase will have the option, at its
expense, to: (i) modify the Software to be noninfringing, (ii) obtain for
Partner a license to continue its use of the Software; or (iii) terminate the
affected BPA for the infringing Software and refund any license fees paid by
Partner attributable to that Software, amortized over a five year term from the
Effective Date of the affected BPA on a straight-line basis.
(d) THIS SECTION 3.1 STATES PARTNER'S SOLE AND EXCLUSIVE REMEDY AND
BROADBASE'S ENTIRE LIABILITY FOF INFRINGEMENT.
3.2. Software Warranty. Broadbase warrants that, for a period of ninety (90)
days from the effective date of the relevant BPA, the Software will conform to
the applicable product documentation provided by Broadbase in all material
respects. The foregoing warranty does not apply to modifications or improper use
of the Software by Partner. Broadbase does not warrant that the Software will
meet Partner's requirements, that the Software will operate in the combinations
that Partner may select or use, that the operation of the Software will be
uninterrupted or error-free, or that all Software errors will be corrected. FOR
ANY BREACH OF THE FOREGOING WARRANTY, PARTNER'S SOLE AND EXCLUSIVE REMEDY WILL
BE, AT BROADBASE'S OPTION: (I) THE REPLACEMENT OR CORRECTION OF THE DEFECTIVE
SOFTWARE; OR (ii) THE TERMINATION OF ANY BPA AS TO THE DEFECTIVE SOFTWARE AND
THE REFUND OF THE LICENSE FEE PAID TO BROADBASE FOR SUCH SOFTWARE.
3.3. Warranties of Authority and Rights. Broadbase warrants that it has the
authority to enter into these Terms and Conditions and any BPA, and that it has
sufficient rights to the Software to grant to Partner the rights set forth in
these Terms and Conditions and any BPA.
3.4. Warranty Limitations. EXCEPT AS SPECIFICALLY SET FORTH ABOVE, BROADBASE
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, TO PARTNER OR ANY OTHER PERSON OR
ENTITY WITH RESPECT TO THE SOFTWARE, AND HEREBY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
3.5. Limitation of Liability. IN NO EVENT WILL BROADBASE BE LIABLE FOR ANY
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS,
REVENUE, DATA, OR USE, INCURRED BY PARTNER OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), EVEN IF IT HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. BROADBASE'S LIABILITY FOR DAMAGES UNDER
THESE TERMS AND CONDITIONS AND ALL BPAS WILL IN NO EVENT EXCEED THE LESSER OF
(i) FIFTY THOUSAND DOLLARS ($50,000); OR (ii) THE AMOUNT OF FEES PAID BY PARTNER
TO BROADBASE UNDER ANY BPA IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF
PARTNER'S CLAIM.
4. PAYMENT.
4.1. Payment. Invoices for payment of any amounts due to Broadbase under any
BPA will be payable net 30 days. All payments will be nonrefundable and
nonrecoupable when paid. Amounts unpaid when due will accrue interest at the
rate of one and one half percent (1.5%) per month or the maximum rate allowed by
law, whichever is less.
4.2. Taxes. Partner agrees to pay all present or future sales, excise, use,
value-added, foreign withholding, or other similar taxes or duties (not
including taxes on the net income of Broadbase) owed in connection with these
Terms and Conditions, on any BPA, or on the Software in regard to its use by
Partner.
5. CONFIDENTIALITY AND PUBLICITY.
5.1 Confidentiality. Partner will not disclose to any third party or, except
as expressly permitted under the BPA, use any Software or other confidential or
proprietary information disclosed to it by Broadbase ("Confidential
Information"), and will use best efforts to maintain the confidentiality of all
Confidential Information in its possession or control, which will in no event be
less than the measures it uses to maintain the confidentiality of its own
information of equal importance. Confidential Information will not include
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information that: (a) is in or enters the public domain without breach of these
Terms and Conditions, any BPA or any other confidentiality agreement between the
parties; (b) Partner received from a third party without restriction on
disclosure and without breach of a nondisclosure obligation; or (c) Partner
develops independently, which it can prove with written evidence. PartnerPartner
agrees not to disclose to any third party any benchmarks, tests, or other
evaluations of the Software without the prior written consent of Broadbase.
5.2 Software. Partner acknowledges that the Software is a trade secret of
Broadbase, the disclosure or which would cause substantial harm to Broadbase
that could not be remedied by the payment of damages alone. Accordingly, the
parties agree that Broadbase will be entitled to seek preliminary and permanent
injunctive relief and other equitable relief for any breach of this Section 5.
5.3 Publicity. Partner agrees to permit, and hereby authorizes, Broadbase to
use Partner's name and/or trademarks and services marks, and to identify Partner
as a Broadbase partner in Broadbase's publicity, promotional and/or marketing
materials.
6. INDEMNITY. Partner will indemnify Broadbase and hold it harmless from
any claims, losses or damages (including but not limited to court costs and
reasonable attorneys' fees) for personal injury, tangible or intangible property
damage or any other liability, arising from any act or omission of Partner, its
employees or agents relating to Broadbase, the Software, or any Broadbase
product.
7. GOVERNMENT RIGHTS. The Software is provided with restricted rights. Use,
duplication, or disclosure by the U.S. Government is subject to restrictions as
set forth in any BPA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a)
(1991), DFARS 212.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a)(1991), FAR
12.227-19, or FAR 12.227-14 (ALT III), as applicable. Broadbase Information
Systems, Inc., 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx Xxxx, XX 00000.
8. GENERAL TERMS. This Agreement and all BPAs will be governed by the laws
of the State of California, without regard to choice of law principles. Any
litigation arising under these Terms and Conditions or any BPA will be brought
in the federal or state courts of the Northern District of California, and
Partner agrees and hereby submits to the exercise of jurisdiction over it in
such courts. The relationship of the parties is solely that of independent
contractors, and not partners, joint venturers or agents. All notices required
to be sent hereunder will be in writing and will be deemed to have been given
when mailed by certified mail, overnight express, or sent by confirmed facsimile
to the recipient's address listed in the cover page hereto. In the event any
provision of these Terms and Conditions is held to be unenforceable, the
remaining provisions of these Terms and Conditions will remain in full force and
effect. The waiver by either party of any default or breach of these Terms and
Conditions will not constitute a waiver of any other or subsequent default or
breach. Any waiver, amendment or other modification to these Terms and
Conditions will be effective only if in writing and signed by the parties.
Neither party will be liable by reason of failure of performance (except failure
to pay) if the failure arises out of causes beyond the party's reasonable
control. Each party agrees to comply with all applicable laws, rules and
regulations in connection with its activities under these Terms and Conditions.
Partner agrees to comply fully with all relevant regulations of the U.S.
Department of Commerce and with the U.S. Export Administration Act to ensure
that the Software and media are not exported in violation of U.S. law. This
Agreement combined with any BPA, is the complete and exclusive statement of the
agreement between the parties relating to the subject matter of these Terms and
Conditions and any such BPA which supersedes any proposal or prior agreement,
written or oral, and any other communications between the parties regarding such
subject matter. To the extent there is a conflict between these Terms and
Conditions any BPA, the terms and conditions of the BPA shall override these
Terms and Conditions. It is expressly agreed that any terms and conditions of
Partner's purchase orders and/or other forms will be superseded by the relevant
BPA and these Terms and Conditions.
IN WITNESS WHEREOF, the parties have caused their authorized
representatives to execute these Terms and Conditions as of the Effective Date.
BROADBASE INFORMATION SYSTEMS, INC. Indus International
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(PARTNER)
By: By: /s/ Xxx Xxxxxxxx
--------------------------------- ---------------------------------
Name: Name: Xxx Xxxxxxxx
------------------------------- -------------------------------
Title: Title: GM Channels
------------------------------ ------------------------------
Address: Address: 00 Xxxxx Xx.
---------------------------- ----------------------------
Xxx Xxxxxxxxx, XX 00000
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BROADBASE PARTNER AGREEMENT
AUTHORIZED SOLUTIONS PROVIDER
THIS BROADBASE AUTHORIZED SOLUTIONS PROVIDER PARTNER AGREEMENT (the
"Agreement") is made as of __________, 199_ (the "Effective Date"), by and
between Broadbase Information Systems, Inc., a California corporation
("Broadbase"), and Indus International ("ASP Partner").
A. The parties desire to define a mechanism by which ASP Partner may
market and distribute Broadbase software products to its customers.
B. The parties have previously or are concurrently executing a document
setting forth the terms and conditions of Broadbase's partner program (the
"Terms and Conditions"). Broadbase and ASP Partner desire to incorporate the
Terms and Conditions into this Agreement. Capitalized terms not otherwise
defined herein have the meanings ascribed to them in the Terms and Conditions.
C. The parties agree that in the event of a conflict between this
Agreement and the Terms and Conditions, this Agreement will prevail.
NOW, THEREFORE, in consideration of the promises and mutual obligations
of the parties set forth herein, and for other good and valuable consideration,
the parties hereby agree as follows:
1. DEFINITIONS.
1.1 "End User" means a customer of ASP Partner that is licensed by ASP
Partner to use the Products for its internal business purposes.
1.2 "Products" means the Broadbase object code products specified in Exhibit
B and shall also include any documentation that is normally included as part of
the product.
2. APPOINTMENT, GRANT OF LICENSE.
2.1 Appointment. Subject to the terms and conditions of this Agreement,
Broadbase appoints ASP Partner, and ASP Partner accepts such appointment, as an
independent non-exclusive distributor of the Products and hereby grants ASP
Partner a limited, nonexclusive, nontransferable license solely for the purposes
of demonstration, display, marketing and distribution of the Products to End
Users during the term of this Agreement. Pursuant to the terms hereof, Broadbase
shall sell to ASP Partner, and ASP Partner shall purchase from Broadbase, the
Products ordered by ASP Partner at the purchase prices and upon the payment
terms described below. ASP Partner will not use the Products for general
internal use. ASP Partner will have no right under this Agreement to reproduce
or copy any Products for internal use, distribution to third parties or
otherwise.
2.2 Demonstration Licenses. ASP Partner shall have the right to use the
Product to (i) demonstrate Product on ASP Partner's premises, (ii) demonstrate
Product at a prospective End User's site provided that all copies of the Product
are removed within 5 days of when they are installed and provided further that
ASP Partner shall be responsible for protecting the confidentiality of the
Products while on the prospective End User's site.)
2.3 Evaluation Copies. ASP Partner may deliver copies of the Product for
evaluation purposes only (an "Evaluation Copy") to a prospective End User after
it has signed a evaluation license with at a minimum the provisions contained in
Exhibit C (except that back-up and/or archival copies may not be made and upon
termination of the evaluation license, all copies of the Product must be
returned to ASP Partner [i.e., certification of destruction will not be
enough]). All such Evaluation Copies shall be reported in the Quarterly Reports
Exhibit D contemplated by Section 4.1 but will show no royalty owing. Any
Evaluation Copies not removed at the completion of the evaluation period or 90
days from delivery to End User (whichever occurs first) are deemed to be
perpetually licensed, and End-User License Fees shall be due to Broadbase from
ASP Partner as of that date.
3. OBLIGATIONS OF ASP PARTNER.
3.1 Startup License Configuration. Upon execution of this document, ASP
Partner agrees to acquire at least one Startup License as well as a support
contract for that license from Broadbase. ASP Partner also agrees to purchase a
quantity of nonrefundable Product as inventory from Broadbase. The prices and
terms thereof to be defined in Exhibit A.
3.2 Sales, Demonstration and Implementation Certification. Within six months
of the signing of this document, ASP Partner agrees to cause at least one of its
employees to complete the Broadbase Sales and Demonstration Certification and
the Broadbase Implementation Certification (a description of which can be found
on Exhibit B). ASP Partner also agrees to maintain at least one certified
employee in each of these areas throughout the term of the agreement.
3.3 Support Certification. In order to enable the ASP Partner to effectively
provide first level post-sales service and support for all the Products
distributed by ASP Partner, ASP Partner is encouraged but not required to cause
a sufficient number of its personnel to complete the
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Broadbase Support Certification. Until such time as this certification is
complete, Broadbase agrees to provide support as per its then-current published
support policies for all customers for whom a valid support agreement is in
place.
3.4 Broadbase Packaging. ASP Partner will distribute the Products with all
packaging, any and all warranties and disclaimers, intact as shipped from
Broadbase.
3.5 Compliance with Law. ASP Partner will comply with all applicable
international, national, state, regional and local laws and regulations in
performing its duties hereunder and in any of its dealings with respect to the
Products.
3.6 Export and Re-export. ASP Partner will not, and will require its
customers to agree to refrain from, any and all export or re-export of any
Product (including documentation and other technical data) in violation of U.S.
export laws.
3.7 Covenants of ASP Partner. ASP Partner will: (i) conduct business in a
manner that reflects favorably at all times on the Products and on the good
name, goodwill and reputation of Broadbase; (ii) avoid deceptive, misleading or
unethical practices that are or might be detrimental to Broadbase or the
Products; and (iii) make no representations, warranties or guarantees with
respect to Broadbase or the Products that are inconsistent with those
customarily provided by Broadbase.
4. INSPECTIONS, RECORDS AND REPORTING.
4.1 Quarterly Reports. Within [thirty (30)] days of the end of each quarter
during the term of this Agreement, ASP Partner will provide to Broadbase a
written report, a template of which is provided as Exhibit D, (which Broadbase
will keep strictly confidential) showing, for such quarter:
(a) the identity of each customer to whom ASP Partner has distributed
any Product during such quarter, including company name, complete address and
both business and technical contact information for each such customer.
(b) the license configuration for each of the Products distributed,
including number of licenses, number of users, current discount percentage, and
license and support fees due Broadbase.
4.2 Notification. ASP Partner will: (i) notify Broadbase in writing of any
claim or proceeding involving the Products within ten (10) days after ASP
Partner learns of such claim or proceeding; (ii) report promptly to Broadbase
all claimed or suspected product defects; and (iii) notify Broadbase in writing
not more than thirty (30) days after any transfer of more than twenty-five
percent (25%) of ASP Partner's voting control or a transfer of substantially all
its assets.
4.3 Records. ASP Partner will maintain, for at least [two] years after
expiration or termination of this Agreement, its records, contracts and accounts
relating to distribution of the Products, and will permit examination thereof by
authorized representatives of Broadbase at all reasonable times.
5. ORDER PROCEDURE.
5.1 Broadbase Acceptance. All orders for the Products by ASP Partner will be
subject to acceptance in writing by Broadbase at its principal place of business
and will not be binding until the earlier of such acceptance or shipment, and,
in the case of acceptance by shipment, only as to the portion of the order
actually shipped. Broadbase agrees that it will not unreasonably withhold its
acceptance and it will notify ASP Partner promptly of any partial shipments.
5.2 License Requirements. For each Product distributed to its End Users, ASP
Partner agrees to, at its option, execute with such End User either Broadbase's
standard, then-current end user license agreement, or substantially include
mandatory minimum terms and conditions, as defined in Exhibit C, within its own
licensing document.
5.3 Cancellation. Broadbase reserves the right to cancel any orders placed
by ASP Partner and accepted by Broadbase as set forth above, or to refuse or
delay shipment thereof, if ASP Partner: (i) fails to make any payment as
provided in this Agreement or under the terms of payment set forth in any
invoice or otherwise agreed to by Broadbase and ASP Partner, (ii) fails to meet
reasonable credit or financial requirements established by Broadbase, including
any limitations on allowable credit, or (iii) otherwise fails to comply with the
Terms and Conditions or the terms and conditions of this Agreement. Broadbase
also reserves the right to discontinue the manufacture or distribution of any or
all Products at any time, and to cancel any orders for such discontinued
Products without liability of any kind to ASP Partner or to any other person. No
such cancellation, refusal or delay will be deemed a termination (unless
Broadbase so advises ASP Partner) or breach of this Agreement by Broadbase.
6. PRICES AND PAYMENT.
6.1 Prices to ASP Partner. Prices to ASP Partners for the Products are
calculated by applying the distribution discount, as defined on Exhibit A, to
the applicable product price, as defined in the then-current Broadbase Price
List for the country in which the Broadbase Product(s) will be installed and/or
used. Distribution discounts are also applicable to the purchase by the ASP
Partner and re-distribution to its End Users of Broadbase Support, Training
Credits, and Documentation. Broadbase may change its list prices from time to
time upon at least thirty (30) days' prior written notice. Notwithstanding the
foregoing, Broadbase will not change its prices for any order that has been
accepted by it.
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6.3 Taxes, Tariffs, Fees. Broadbase's list prices do not include any
national, state or local sales, use, value added or other taxes, customs duties,
or similar tariffs and fees which Broadbase may be required to pay or collect
upon the delivery of the Products or upon collection of the payments due or
otherwise. Should any tax or levy be owed or made, ASP Partner agrees to pay
such tax or levy and indemnify Broadbase for any claim for such tax or levy
demanded. ASP Partner represents and warrants to Broadbase that all Products
acquired hereunder are for redistribution in the ordinary course of ASP
Partner's business, and ASP Partner agrees to provide Broadbase with appropriate
resale certificate numbers and other documentation satisfactory to the
applicable taxing authorities to substantiate any claim of exemption from any
such taxes or fees.
6.3 Payment. ASP Partner will pay to Broadbase the amounts owed it in United
States dollars and at the address designated by Broadbase.
6.4 No Setoff. ASP Partner will not setoff or offset against Broadbase's
invoices amounts that ASP Partner claims are due to it. ASP Partner will bring
any claims or causes of action it may have in a separate action and waives any
right it may have to offset, setoff or withhold payment for the Products and
delivered by Broadbase.
7. SHIPMENT, RISK OF LOSS AND DELIVERY.
7.1 Shipment. All Products will be shipped F.O.B. Broadbase's point of
shipment. Shipments will be made to ASP Partner's identified warehouse
facilities or freight forwarder, subject to approval in writing by Broadbase in
advance of shipment. Unless specified in ASP Partner's order, Broadbase will
select the mode of shipment and the carrier. ASP Partner will be responsible for
and pay all packing, shipping, freight and insurance charges.
7.2 Title and Risk of Loss. Title and all risk of loss of or damage to the
Products will pass to ASP Partner upon delivery by Broadbase to the carrier,
freight forwarder or ASP Partner, whichever first occurs.
8. ASP PARTNER DETERMINES ITS OWN PRICE.
Although Broadbase may publish suggested wholesale or retail prices, these are
suggestions only and ASP Partner will be entirely free to determine the actual
prices at which the Products will be licensed to its customers.
9. TRADEMARKS, TRADE NAMES, LOGOS, DESIGNATIONS AND COPYRIGHTS.
9.1 Use During Agreement. During the term of this Agreement, ASP Partner is
authorized by Broadbase to use the trademarks, trade names, logos and
designations Broadbase uses for the Products in connection with ASP Partner's
advertisement, promotion and distribution of the Products. ASP Partner's use of
such trademarks, trade names, logos and designations will be in accordance with
Broadbase's policies in effect from time to time, including but not limited to
trademark usage and cooperative advertising policies. ASP Partner agrees not to
attach any additional trademarks, trade names, logos or designations to any
Product. ASP Partner further agrees not to use any Broadbase trademark, trade
name, logo or designation in connection with any non-Product.
9.2 Copyright and Trademark Notices. ASP Partner will include on each
Product that it distributes, and on all containers and storage media therefore,
all trademark, copyright and other notices of proprietary rights included by
Broadbase on such Product. ASP Partner agrees not to alter, erase, deface or
overprint any such notice on anything provided by Broadbase. ASP Partner also
will include the appropriate trademark notices when referring to any Product in
advertising and promotional materials.
9.3 ASP Partner Does Not Acquire Proprietary Rights. ASP Partner has paid no
consideration for the use of Broadbase's trademarks, trade names, logos,
designations or copyrights, and nothing contained in this Agreement will give
ASP Partner any right, title or interest in any of them. ASP Partner
acknowledges that Broadbase owns and retains all goodwill, trademarks, trade
names, logos, designations, copyrights and other proprietary rights in or
associated with the Products, and agrees that it will not at any time during or
after this Agreement assert or claim any interest in or do anything that may
adversely affect the validity of any trademark, trade name, logo, designation or
copyright belonging to or licensed to Broadbase (including, without limitation
any act or assistance to any act, which may infringe or lead to the infringement
of any of Broadbase's proprietary rights).
9.4 No Continuing Rights. Upon expiration or termination of this Agreement,
ASP Partner will immediately cease all display, advertising and use of all
Broadbase trademarks, trade names, logos and designations and will not
thereafter use, advertise or display any trademark, trade name, logo or
designation which is, or any part of which is, similar to or confusing with any
trademark, trade name, logo or designation associated with any Product.
9.5 Obligation to Protect. ASP Partner agrees to promptly notify Broadbase
of any known or suspected breach of Broadbase's proprietary rights that comes to
its attention. ASP Partner agrees to cooperate at Broadbase's expense in
Broadbase's efforts to protect its proprietary rights.
10. COSTS.
Except as may be agreed in writing by Broadbase and ASP Partner, each party will
pay all costs and expenses incurred in the performance of its obligations and
the exercise of its rights under this Agreement.
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11 TERM AND TERMINATION.
11.1. This Agreement commences on the Effective Date and will remain in effect
for a term of [one (1)] year unless earlier terminated in accordance with the
terms of the Partner Agreement. At the end of the initial term (and each
subsequent renewal term), this Agreement will automatically renew for an
additional [one (1) year] term, unless either party provides the other party
with written notice of termination, at least thirty (30) days prior to the date
of any such automatic renewal.
11.2. Rights and Duties Upon Termination. Upon termination or expiration of
this Agreement, in addition to the obligations of each party set forth in the
Terms and Conditions:
(a) Broadbase, at its option, may reacquire any or all Products then in
ASP Partner's possession at prices not greater than the prices paid by ASP
Partner for such Products (or, if the Products are not in unopened factory
sealed boxes, fifty percent (50%) of such prices). Upon receipt of any Products
so reacquired from ASP Partner, Broadbase will issue an appropriate credit to
ASP Partner's account.
(b) The due dates of all outstanding invoices to ASP Partner for the
Products automatically will be accelerated so they become due and payable on the
effective date of termination, even if longer terms had been agreed previously.
All orders or portions thereof remaining unshipped as of the effective date of
termination will automatically be canceled.
11.3 Survival. The rights and obligations of the parties contained in
Sections 4 and 11 will survive any termination or expiration of this Agreement.
11.4. Entire Agreement. This Agreement, the Exhibits attached hereto, and the
Terms and Conditions which are incorporated herein by this reference, is the
sole and entire agreement between the parties hereto pertaining to the subject
matter hereof and supersedes all prior communications or agreements, written or
oral pertaining to such subject matter.
IN WITNESS WHEREOF the parties have caused their authorized
representatives to execute this Agreement as of the Effective Date.
BROADBASE INFORMATION SYSTEMS, INC. Indus International
--------------------------------------
(ASP PARTNER)
By: By: /s/ Xxx Xxxxxxxx
---------------------------- -------------------------------
Name: Name: Xxx Xxxxxxxx
---------------------------- -------------------------------
Title: Title: GM Channels
---------------------------- -------------------------------
Exhibits:
EXHIBIT A:_____ASP Partner Order Form
EXHIBIT B:_____License and Discount Types
EXHIBIT C:_____Mandatory Terms of End User License
EXHIBIT D:_____Quarterly Sales Reconciliation Report Template
EXHIBIT E:_____Special Terms and Conditions
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EXHIBIT A
ASP PARTNER ORDER FORM
MAXIMUM FIRST YEAR
NUMBER OF NAME OF SOFTWARE OR SERVICE CONCURRENT UNIT EXTENDED SUPPORT AND
UNITS USERS PRICE PRICE MAINTENANCE
20%
-------------------------------------------------------------------------------------------------------
Partner Startup License $25,000 $25,000 $5,000
Early Partner Discount $25,000 $25,000 $5,000
Broadbase Workgroup License $50,000 $ 0 $ 0
DISTRIBUTION DISCOUNT = 20% $ (0) $ 0
SUB TOTAL: $ (0) $ 0
TOTAL: $ (0)
*First Year Support to be reported and paid within 30 days of the end of the
quarter in which Product(s) are distributed to ASP Partner's End Users (Section
4.1).
BILLING CONTACT TECHNICAL SUPPORT CONTACT
Contact Name Contact Name
Title: Title:
Xxxxxxx Xxxxxxx
Xxxx, Xxxxx, XXX Xxxx, Xxxxx, ZIP
Phone Phone
SHIP TO CONTACT MARKETING CONTACT
Contact Name Contact Name
Title: Title:
Xxxxxxx Xxxxxxx
Xxxx, Xxxxx, XXX Xxxx, Xxxxx, ZIP
Phone Phone
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EXHIBIT B
LICENSE AND DISCOUNT TYPES
ASP PARTNER TRAINING - ASP Partners are eligible to attend any regularly
scheduled Broadbase training classes for no charge, the amount of training time
will be reasonable and appropriate in Broadbase's judgment and ASP Partner will
bear all travel and living expenses for such personnel sent to Broadbase for
training.
PRODUCTS ELIGIBLE FOR DISTRIBUTION -Broadbase Workgroup Server, Broadbase
Departmental Server, Brio Designer for Broadbase, Brio Query for Broadbase,Brio
Insight for Broadbase Web, Brio Quickview for Broadbase Web
PRODUCT DISCOUNTS FOR END-USER DISTRIBUTION - End-User distribution discounts
are tiered based on unit volume commitments. Prices to the ASP Partner are
calculated by applying the distribution discount, as defined on the following
discount schedule, to the applicable product price (as defined in the
then-current Broadbase Price List) for the country in which the Broadbase
Product(s) will be installed and/or used.
Number of Units* 2 5 10 20
----- ----- ----- -------
Cumulative List Price* $100K $250K $500K 1,000K
(Distribution Discount) 20% 25% 30% 35%
Prepaid License Fees $ 80K 188K $350K $650K
*Number of actual units may vary. Calculations are based on an average per unit
list price of $50K.
OTHER DISCOUNTS FOR END-USER DISTRIBUTION - The then-current distribution
discount, is also applicable to Support, Training, and Documentation. As with
the Product discounts, the price to the ASP Partner is derived by applying the
distribution discount to the applicable support fees (as defined in the
then-current Broadbase Price List).
SALES AND DEMONSTRATION CERTIFICATION - To ensure that ASP Partner is able to
effectively communicate the Broadbase value proposition to their customers,
Broadbase makes available sales and demonstration materials that offer step by
step instruction on the presentation and demonstration of the Broadbase
products. Broadbase also offers coaching and education to ensure a smooth
knowledge transfer. Sales and Demonstration Certifications are available to
individuals within the partner's organization that have satisfactorily completed
a short presentation and demonstration to a Broadbase representative. Partners
to are encouraged to certify as many of their employees as possible.
IMPLEMENTATION CERTIFICATION - Broadbase makes available training materials that
educate our Partners on the most efficient ways to implement a Broadbase
solution. As part of the certification process, Broadbase will provide a test
case, whereby individuals within the partner's organization will be encouraged
to construct a Broadbase data mart from beginning to end. Implementation
Certification can be achieved by submitting the finished results to a Broadbase
representative for approval. Partners to are encouraged to certify as many of
their employees as possible.
SUPPORT CERTIFICATION - For partners that provide front-line Broadbase product
support, Broadbase makes available training materials, documentation and access
to an on-line knowledge base that educates our Partners on the most efficient
way to provide Broadbase support to their end customers. To be designated as a
Certified Broadbase Support Engineer, individuals within the partner's
organization are required to have completed the Implementation Certification as
well as pass a written Support Certification exam. Partners are encouraged to
certify as many of their employees as possible.
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EXHIBIT C
MANDATORY TERMS OF END USER LICENSES
All Agreements covering the distribution of the Program shall include
substantially the following provisions (i.e. ASP Partner will include these
terms in its agreements with End Users):
(1) ASP Partner licensor retains all title to the Program, and all copies
thereof, and no title to the Program, or any intellectual property therein, is
transferred to the licensee;
(2) The licensee may not copy the Program, except for backup and archival
purposes only, and the licensee shall include on all copies of the Program all
copyright and other proprietary notices or legends included on the Program when
it was shipped to such licensee;
(3) The licensee agrees not to reverse assemble, decompile or otherwise
attempt to derive source code from the Program;
(4) The licensee agrees to comply with all export and re-export restrictions
and regulations ("Export Restrictions") imposed by the government of the United
States;
(5) Although copyrighted, the Program is unpublished and contains
proprietary and confidential information of licensor and is considered by such
licensor to constitute valuable trade secrets. The licensee will hold the
Program in confidence and shall protect the Program with at least the same
degree of care with which the licensee protects its own similar confidential
information;
(6) ASP Partner's licensor is a direct and intended third party beneficiary
of the license agreement and may enforce it directly against the licensee;
provided however that such licensors shall not be liable to the licensee for any
general, special, direct, indirect, consequential, incidental or other damages
arising out of or related to the Program;
(7) Upon termination of the license for the Program, the licensee shall
return to ASP Partner all copies of the Program, or certify to ASP Partner that
the licensee has destroyed all such copies;
(8) ASP Partner and/or ASP Partner licensor shall have the right to direct a
recognized accounting firm to conduct, during normal business hours, an audit of
(and to copy) the appropriate records of the licensee to verify the number of
copies of the Program in Use by the licensee, the computer systems on which such
copies are installed and in the case of limited user licenses, the number of
users Using such copies. Representatives of the auditing firm shall protect the
confidentiality of the licensee's Confidential Information and abide by the
licensee's reasonable security regulations while on licensee's premises. If the
number of copies or users is found to be greater than that contracted for or the
computer system on which the Program is in use differs from the single computer
system for which license rights have been granted to the licensee, the licensee
shall be invoiced for the additional copies, users or computer systems at the
prices quoted in the then current price list of Broadbase (subject to any
applicable discounts to which ASP Partner may have agreed). The additional
license fees shall be payable within thirty (30) days of such invoice;
(9) The licensee shall not release the results of any benchmark of the
Program to any third party without the prior written approval of ASP Partner's
licensor for each such release;
(10) Licensee acknowledges its responsibility to (i) regularly back-up data
maintained on any computer system using the Program, and (ii) adequately test
prior to deployment each production version of the Program in a configuration
which reasonably simulates licensee's planned production environment.
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EXHIBIT D
Quarterly Reconciliation Report
_____ Quarter, 19_98__
Customer Name and Support Contact Broadbase Number of Broadbase Support Fees
Site Address And Products Concurrent List Prices (18**%)
Phone Number of Users And Dates
DATE: 1. Total of List Prices
NAME OF ASP Partner: 2. Subtract Distribution
Discount (See Exhibit A)
20%
SPECIAL DISCOUNT***
BY: (please print) 3. DISCOUNTED TOTAL
(Signature) 4. BEGINNING PREPAID BALANCE
TITLE: 5. ENDING PREPAID BALANCE
PHONE: 6. AMOUNT OWED TO BROADBASE
* SPECIAL ONE TIME CHEVRON PRICING allows unlimited users but limits data
source to Passport only. See Chevron-Indus agreement for details.
** SPECIAL ONE TIME DISCOUNT OF SUPPORT from 20% to 18%.
*** EXTRA $30K Discount only good if Purchase Order is received by Broadbase
on or before May 8, 1998.
8
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EXHIBIT E
This Exhibit E ("Exhibit E ") dated ______________, 199__, entered into by
_________________ ("Partner") and BROADBASE INFORMATION SYSTEMS (Broadbase)
supplements the terms of the Broadbase Partner Agreement dated
__________________, 199__ between Partner and Broadbase (the "Agreement").
Capitalized terms not otherwise defined in this Exhibit shall have the same
meaning as in the Agreement.
1. SECTION 1.4 OF THE BROADBASE TERMS AND CONDITIONS IS DELETED AND
REPLACED WITH THE FOLLOWING:
1.4 No Damages for Termination. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OF
ANY BPA IN ACCORDANCE WITH ITS TERMS. BOTH PARTIES WAIVE ANY RIGHT THEY
MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OF
ANY BPA UNDER THE LAW OF THE TERRITORY DESIGNATED IN THE BPA OR
OTHERWISE, OTHER THAN EXPRESSLY PROVIDED THEREIN. Neither party will be
liable to the other party on account of termination of any BPA for
reimbursement or damages for the loss of goodwill, prospective profits
or anticipated income, or on account of any expenditures, investments,
leases or commitments made by either party or for any other reason
whatsoever based upon or growing out of such termination or expiration.
Partner acknowledges that (i) Partner has no expectation and has
received no assurances that any investment by Partner in the promotion
of Broadbase products will be RECOVERED OR RECOUPED OR THAT PARTNER WILL
OBTAIN ANY ANTICIPATED AMOUNT OF PROFITS BY VIRTUE OF ANY BPA, AND (II)
PARTNER will not have or acquire by virtue of any BPA or otherwise any
vested, proprietary or other right in the promotion of Broadbase
products or in "goodwill" created by its efforts thereunder. THE PARTIES
ACKNOWLEDGE THAT THIS SECTION 1.4 HAS BEEN INCLUDED AS A MATERIAL
INDUCEMENT FOR BROADBASE TO ENTER INTO ANY BPA AND THAT BROADBASE WOULD
NOT HAVE ENTERED INTO ANY BPA BUT FOR THE LIMITATIONS OF LIABILITY SET
FORTH HEREIN.
2. SECTION 2.1 OF THE BROADBASE TERMS AND CONDITIONS IS DELETED AND
REPLACED WITH THE FOLLOWING:
2.1 Software Ownership. Partner hereby acknowledges that, as between
Broadbase and Partner, Broadbase is the owner of all right and title in
and to the Software, and Partner shall acquire no rights in or to the
Software. Both parties agree that, unless otherwise agreed upon in
writing, any models, scripts, structures and/or business metrics that
are developed as part of this agreement shall remain the sole property
of the Partner.
3. IN SECTION 3.2 OF THE BROADBASE TERMS AND CONDITIONS, THE WARRANTY
PERIOD IS CHANGED FROM 90 DAYS TO 6 MONTHS.
4. SECTION 5.1 OF THE BROADBASE TERMS AND CONDITIONS IS DELETED AND
REPLACED WITH THE FOLLOWING:
5.1 Confidentiality. Neither party will disclose to any third party or,
except as expressly permitted under the BPA, use any Software or other
confidential or proprietary information disclosed to it by the other
party ("Confidential Information"), and will use best efforts to
maintain the confidentiality of all Confidential Information in its
possession or control, which will in no event be less than the measures
it uses to maintain the confidentiality of its own information of equal
importance. Confidential Information will not include information that:
(a) is in or enters the public domain without breach of these Terms and
Conditions, any BPA or any other confidentiality agreement between the
parties; (b) either party received from a third party without
restriction on disclosure and without breach of a nondisclosure
obligation; or (c) either party develops independently, which it can
prove with written evidence. Both parties agree not to disclose to any
third party any benchmarks, tests, or other evaluations of the Software
without the prior written consent of the other party.
5. SECTION 2.1 OF THE BROADBASE PARTNER AGREEMENT IS DELETED AND REPLACED
WITH THE FOLLOWING:
2.1 Appointment. Subject to the terms and conditions of this Agreement,
Broadbase appoints ASP Partner, and ASP Partner accepts such
appointment, as an independent non-exclusive distributor of the Products
and hereby grants ASP Partner a limited, nonexclusive, nontransferable
license solely for the purposes of demonstration, display, marketing,
distribution and development of the Products to End Users during the
term of this Agreement. Pursuant to the terms hereof, Broadbase shall
sell to ASP Partner, and ASP Partner shall purchase from Broadbase, the
Products ordered by ASP Partner at the purchase prices and upon the
payment terms described below. Except as
9
14
described above, ASP Partner will not use the Products for general
internal use. ASP Partner will have no right under this Agreement to
reproduce or copy any Products for distribution to third parties.
6. SECTION 4.1 OF THE BROADBASE PARTNER AGREEMENT, IS DELETED AND REPLACED
WITH:
4.1 Semi-Annual Reports. Within [thirty (30)] days of the end of
each calendar quarter that a distribution of the Product period
has occurred, and during the term of this Agreement, ASP Partner
will provide to Broadbase a written report, a template of which
is provided as Exhibit D, (which Broadbase will keep strictly
confidential) showing, for such period:
(a) the identity of each customer to whom ASP Partner has
distributed any Product during such period, including
company name, complete address and both business and
technical contact information for each such customer.
(b) the license configuration for each of the Products
distributed, including number of licenses, number of
users, current discount percentage, and license and
support fees due Broadbase.
7. SECTION 4.2, SUBSECTION (III) OF THE BROADBASE PARTNER AGREEMENT IS
DELETED
8. TO SECTION 6.1 OF THE BROADBASE PARTNER AGREEMENT, THE FOLLOWING IS APPENDED:
. . . or in an active proposal stage, but not to exceed 180 days from
the notification to Partner of the change of the Broadbase list price.
9. SECTION 6.4 OF THE BROADBASE PARTNER AGREEMENT IS DELETED AND REPLACED
WITH THE FOLLOWING:
6.4 No Setoff. ASP Partner will not setoff or offset against Broadbase's
invoices amounts that ASP Partner claims are due to it. ASP Partner will
bring any claims or causes of action it may have in a separate action
and waives any right it may have to offset, setoff or withhold payment
for the Products and delivered by Broadbase, except for valid warranty
claims by Partner's customers.
NAME OF CUSTOMER: Indus International
--------------------------------------------------------------------------------
By: By: /s/ Xxx Xxxxxxxx
--------------------------------------------------------------------------------
(Authorized Signature) (Authorized Signature)
--------------------------------------------------------------------------------
Name: Name: Xxx Xxxxxxxx
--------------------------------------------------------------------------------
Title: Title: GM Channels
--------------------------------------------------------------------------------
Date of this Exhibit:
--------------------------------------------------------------------------------
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EXHIBIT F
This Exhibit F ("Exhibit F") dated June 30, 1999, entered into by Indus
International, Inc. ("Partner") and BROADBASE INFORMATION SYSTEMS (Broadbase)
supplements the terms of the Broadbase Partner Agreement dated June 2, 1998
between Partner and Broadbase (the "Agreement"). Capitalized terms not otherwise
defined in this Exhibit shall have the same meaning as in the Agreement.
TERM: Term of the Agreement shall be extended to 2 years from the date of this
Exhibit and will automatically renew for an additional [one (1) year] term per
the terms defined in section 11 in the Agreement. License and distribution
rights for the Brio products are excluded from this agreement unless mutually
agreed upon on a case-by-case basis.
TERMINATION: Upon termination or expiration of this Agreement, license and
distribution rights of the Broadbase products (excluding Brio) will survive
until all prepaid royalties are used up.
PREPAYMENT ROYALTY: Partner agrees to make a nonrefundable prepayment of future
royalties in the amount of $1,000,000 on net 30 day terms from the execution
date of this Exhibit. (This prepayment brings the total prepay balance to
$1,250,000).
ROYALTY: Partner agrees to pay a royalty to Broadbase equaling a percentage of
the actual selling price of the Derivative Offering. (For the purposes of this
agreement "Derivative Offering" means both the Partner software which contains
Broadbase Products and any annual software maintenance and/or support fees.)
Cumulative revenue shall include all revenue from the sale of the Derivative
Offering from the execution of this Exhibit forward. Royalty amounts will be
calculated on the following graduated scale.
-Upon execution of this Exhibit -- 50/50 split
-After first million of cumulative revenue -- 60% Partner/40% Broadbase
-After second million of cumulative revenue -- 70% Partner/30% Broadbase
-After third million of cumulative revenue -- 80% Partner/20% Broadbase
ROYALTY REPORTING: Partner agrees to report royalty and/or royalty burn down on
an Exhibit D within 10 business days after the end of the same calendar quarter
that the royalty or royalty burn-down has occurred.
BURN-DOWN RATE: Prepaid royalties are decremented at 100% of royalty amounts
due.
MINIMUM ROYALTY: Notwithstanding the above, in no event shall the pricing per
End User be less than $50,000.
MAXIMUM ROYALTY: Notwithstanding the above, in no event shall royalty be paid on
amounts in excess of $800,000 of the actual selling price for each End User
transaction. The parties may mutually agree to exceptions to the Maximum and
Minimum Royalty.
1
[*] Confidential treatment has been requested for certain portions of
this document. Such omitted portions have been filed separately with the
Securities and Exchange Commission.
16
USE LIMITATIONS: End User license rights exclude the use of the Broadbase
software independently of the Derivative Offering. License rights do include the
ability to access, extract, transform, or contain data from data sources other
than those owned or controlled by the Partner but only insofar as data from
these sources is added to the Derivative Offering. If an End User customer
wishes to use the Broadbase software as a general purpose tool (and to build
applications that are independent of the Derivative Offering), they will be
required to contract directly with Broadbase.
NAME OF CUSTOMER:
--------------------------------------------------------------------------------
By: By: Indus International, Inc.
--------------------------------------------------------------------------------
(Authorized Signature) /s/ Xxxx X. Xxxxx
--------------------------------------------------------------------------------
Name: Name: Xxxx X. Xxxxx
--------------------------------------------------------------------------------
Title: Title: CFO
--------------------------------------------------------------------------------
Date of this Exhibit: June 30, 1999
--------------------------------------------------------------------------------
2
