EX-10.44
5
ex1044.htm
IBM MASTER AGREEMENT FOR SUBCONTRACTED SERVICES
Exhibit 10.44
Subcontractor
Agreement #4902A2003
Master
Agreement for Subcontracted Services
IBM
as Prime Contractor
This
Master Agreement for Subcontracted Services (called the “
Subcontractor
Agreement”) governs the terms under which Chordiant Software, Inc. (“Chordiant”)
as a subcontractor will supply International Business Machines Corporation
(“IBM”) as a prime contractor with Programs and/or Services as described within
this
Subcontractor Agreement. This
Subcontractor Agreement is an associated
contract between the Parties as contemplated by the Chordiant/IBM Master
Relationship Agreement (“MRA”). This
Subcontractor Agreement, however, is an
independent agreement between the Parties and does not therefore incorporate
terms and conditions contained within the MRA by reference.
Each
Party understands that Chordiant’s obligation to provide Programs or Services
under this
Subcontractor Agreement is contingent upon the execution of the
relevant prime contract by a Customer and IBM.
This
Subcontractor Agreement is written in English and signed with the understanding
that the Parties are bound by its terms. The Parties will distribute copies
of
this
Subcontractor Agreement to their respective Subsidiaries as required.
These
Subsidiaries will acknowledge acceptance of these terms through a Transaction
Document which incorporates this
Subcontractor Agreement by reference.
1.
Definitions
Combined
Offering
is the combination of Programs and/or Services provided by the Parties in a
prime contract with a Customer containing all or a portion of the Core
Competencies described in Exhibits 1 and 2 herein.
Customer
is the entity who awards the prime contract for Products and Services described
in the Combined Offering.
Deliverables
means
those Programs, Services and Materials which Chordiant prepares for or provides
to IBM as prime contractor (“Prime”)
or to the Customer directly, as authorized by IBM in a Transaction Document.
Enterprise
is any legal entity (such as a corporation) and the subsidiaries it owns by
more
than 50 percent.
Euro
Ready
means that the Products and
Materials provided under this
Subcontractor Agreement when used in accordance
with their associated documentation, and if specified in a particular Statement
of Work as
being Euro Ready,
are capable of correctly processing, providing and/or receiving data in the
Economic Monetary Union or Euro denomination, provided that all products (for
example, hardware, software, and firmware) used with the hardware provided
under
this Subcontractor Agreement properly and accurately exchange such data with
it.
Harmful
Code shall
mean machine-readable instructions and data, including the original and all
whole or partial copies, designed
to intentionally disrupt a Program’s operations or intentionally destroy or
damage a Program or data contained therein.
Inventions
shall
mean ideas, designs, concepts, techniques, inventions, discoveries or
improvements, whether or not patentable, conceived or reduced to practice solely
by one or more employees (and/or subcontractors) of one Party ("Sole
Invention")
or jointly by one or more employees (and/or subcontractors) of one Party with
one or more employees (and/or subcontractors) of the other Party ("Joint
Invention")
as a result of activities under this Subcontractor Agreement.
Materials
are literary works or other works of authorship (such as programs, program
listings, documentation, reports, drawings and similar works) that Chordiant
may
deliver to IBM or to a Customer as part of a Service. The term “Materials” does
not include Programs.
Party
shall
mean either IBM or Chordiant and Parties
shall mean both IBM and Chordiant.
Program
means Chordiant’s commercially available software and documentation required to
install, support, use, and maintain it. The term does not include
Materials.
Service
is performance of a task such as project management, engineering, programming,
consultation, education, training, installation, maintenance, site preparation,
facilities management or operations support, or use of a resource (such as
an
informational database or a network and associated enhanced communication and
support) that Chordiant makes available to IBM or to the Customer as authorized
by IBM in a Transaction Document.
Specified
Operating Environment
is the IBM or third party equipment and Programs with which a Program is
designed to operate, as described in the Program’s documentation.
Subsidiary
is an entity that is owned or controlled directly or indirectly (by more than
50% of its voting stock, or if not voting stock, decision-making power) by
Chordiant or IBM.
2.
Subcontractor Agreement Structure
A.
Transaction Documents.
The
following are examples of Transaction Documents, with examples of the
information they may contain:
| 1. |
Statements
of Work (as described in Section 2.B.
herein);
|
| 2. |
Documents
signed by local country Subsidiaries of the Parties acknowledging their
agreement to be bound by the terms of this Subcontractor Agreement
and
incorporating the terms of this Subcontractor Agreement by
reference;
|
| 3. |
Change
Orders (changes to the Statement of
Work);
|
| 4. |
Invoices
(item, quantity, price, and amount due);
|
B.
Statements of Work
This
Subcontractor Agreement contemplates the execution of a Master Statement of
Work
and future execution of one or more Statements of Work for Programs or Services
to be provided by Chordiant to IBM as Prime or to Customers in connection with
the Combined Offering. The Statement of Work shall specify the information
outlined below:
| 1. |
A
reference to this Subcontractor
Agreement;
|
| 2. |
A
description, in reasonable detail, of the Services to be performed
by
Chordiant, including a description of any associated Deliverables that
may
be delivered; These descriptions may
include:
|
| · |
License
supplements (quantity ordered, estimated shipment date, and other terms
referenced in Exhibit 3);
|
| · |
Exhibits
(eligible Programs by category, discounts schedules, and available
contract periods);
|
| 3. |
Contact
names, addresses and telephone numbers;
|
| 4. |
If
applicable, a description of expenses to be reimbursed by IBM, including
the basis for such reimbursement;
|
| 5. |
The
maximum total expenditure authorized for such Statement of Work, which
is
understood to mean:
|
| a. |
a
dollar amount or time limit beyond which Chordiant may not invoice
IBM for
Services under a specific Statement of Work;
and
|
| b. |
a
dollar amount or time limit beyond which Chordiant is not required
to
expend effort or provide Services under a specific Statement of Work
without IBM’s prior written consent;
|
| 6. |
Estimated
commencement and completion dates;
|
| 7. |
Inspection,
test, acceptance or completion criteria, if
applicable;
|
| 8. |
Shipping
and invoicing instructions; and
|
| 9. |
Signatures
of each Party’s respective authorized
representatives.
|
C.
Proposals.
From
time to time, IBM will be requested to submit a proposal to the Customer
describing the details of the solution that IBM will provide to the Customer.
As
part of the proposal preparation, IBM and Chordiant will enter into a Statement
of Work detailing Chordiant’s responsibilities under the proposed engagement.
The Parties agree that the Statement of Work will only be effective in the
event
the Customer executes a contract to acquire the Combined Offering from IBM,
and
IBM issues a purchase order signifying authorization for Chordiant to provide
Programs and/or Services to IBM or the Customer with respect to the Combined
Offering.
D.
Conflicting Terms.
If
there is a conflict among the terms of the various documents, the
order of precedence will be: 1) the terms of a Change Order; 2) the terms of
a
Statement of Work or other Transaction Document; 3) the terms of the Master
Statement of Work; and 4)
this Subcontractor Agreement.
3.
Responsibilities of the Parties
A.
Mutual Responsibilities
The
Parties agree that under this Subcontractor Agreement:
| 1. |
each
is an independent contractor, and that each is responsible for the
supervision, direction and control of its respective
personnel;
|
| 2. |
neither
may represent or act on behalf of the other, unless otherwise agreed
to in
writing;
|
| 3. |
neither
grants the other the right to use its trademarks, trade names, service
marks or other designation in any promotion or publication, without
prior
written consent;
|
| 4. |
neither
will disclose the terms of this Subcontractor Agreement, unless both
Parties agree in writing to do so, or unless required by
law;
|
| 5. |
each
is free to enter into similar agreements with others and to market
its
products and services to anyone;
|
| 6. |
each
will comply with the laws and regulations (such as import and export
restrictions) applicable to this Subcontractor
Agreement;
|
| 7. |
all
information exchanged is non-confidential, unless such information
is
deemed to be confidential pursuant to the terms of the Agreement for
Exchange of Confidential Information (AECI). If either Party requires
the
exchange of confidential information, it will be made under the AECI
signed by the Parties on March 27, 2002;
and
|
8.
each grants the other only the licenses specified. No other licenses (including
licenses under patents) are granted.
B.
Chordiant’s Other Responsibilities
Chordiant
will:
| 1. |
supply
IBM with the Programs and/or Services specified in a Transaction Document
if the Customer executes a prime contract with
IBM;
|
| 2. |
provide
as requested to IBM and the Customer information which describes such
terms as warranty, and licenses to Programs and Materials that will
be
delivered by Chordiant under a Statement of
Work;
|
| 3. |
not
deal directly with the Customer on matters that directly relate to
the
prime contract with the Customer unless otherwise authorized by IBM
in a
Transaction Document.
|
| 4. |
to
notify IBM of any recurring charges that may apply beyond the duration
of
the prime contract and of IBM’s obligation to pay Chordiant, if any, for
such recurring charges.
|
C.
IBM’s Other Responsibilities
IBM
agrees:
| 1. |
that
the Programs and/or Services provided under this Subcontractor Agreement
are not purchased for its own use or for remarketing (other than to
the
Customer). If it is required to deliver Programs and Services to another
contractor for ultimate delivery to the Customer, it will ensure
that:
|
| a. |
its
obligations under this Subcontractor Agreement (including those within
the
AECI) are met; and
|
| b. |
no
rights are granted to that contractor, other than to deliver the Programs
or Services on its behalf;
|
| 2. |
that
the licensing of Programs or the acquisition of Services relates solely
to
this Subcontractor Agreement and may not be used to determine attainment,
discounts, or payments to it under any other agreement between the
Parties;
|
| 3. |
as
applicable, to provide the Customer with a copy of the relevant Chordiant
customer agreement as per Section 6.A., and statement of warranty upon
transfer of the Programs and Materials, to the extent such customer
agreements, licenses and statements of warranty are provided by Chordiant
to IBM;
|
| 4. |
to
notify the Customer of any recurring charges that may apply beyond
the
duration of the prime contract and of the Customer’s obligation to pay
Chordiant, if any for such recurring charges;
and
|
| 5. |
for
non-Chordiant equipment or third party equipment that Chordiant supplies
that is not warranted by Chordiant or the third party, to inform the
Customer, in writing, that Chordiant or the third party does not warrant
it.
|
| 6. |
Notify
Chordiant of the (1) the planned date of submission of a proposal to
a
Customer; (2) acceptance of IBM’s proposal by the Customer; and (3) the
final installation site of the Products.
|
4.
Delivery
Chordiant
will deliver the Programs and Services in accordance with the delivery schedule
provided in a Statement of Work or a Transaction Document. Delivery may be
made
by Chordiant directly or through a Subsidiary. If there are any problems with
such delivery schedule, Chordiant will notify IBM within ten (10) working days
after the problem becomes apparent, unless otherwise specified in a Transaction
Document.
Chordiant
will pay normal transportation charges for the Programs it ships.
5.
Prices, Payment to the Subcontractor
The
prices for the Programs and Services shall be as specified in a Statement of
Work and/or Transaction Document. Chordiant may revise its prices within seven
days prior to the planned date of submission of IBM's proposal to the Customer
by written notice to IBM. IBM may price the Programs and Services to the
Customer at whatever price it deems appropriate.
Invoices
shall reference the applicable Statement of Work, this Subcontractor Agreement,
any relevant Transaction Document, and purchase order number applicable to
the
Programs and/or Services specified in the Invoice. Payment to Chordiant will
be
set forth in the applicable Statement of Work and/or any relevant Transaction
Document.
Payment
of invoices will not be deemed acceptance of Programs, but rather such Programs
will be subject to inspection, test, acceptance or rejection in accordance
with
the acceptance or completion criteria as specified in the relevant Statement
of
Work.
IBM
agrees to provide Chordiant with valid reseller exemption documentation for
each
applicable taxing jurisdiction. Otherwise, Chordiant shall be entitled to charge
all applicable state and local taxes or duties. IBM shall promptly notify
Chordiant if such documentation is revoked or modified. IBM shall be liable
for
any claims or assessments that result from any taxing jurisdiction refusing
to
recognize its exemption.
6.
Programs
A.
License.
Programs
are owned or licensed by Chordiant or one of its Subsidiaries or a Chordiant
supplier and are copyrighted and licensed (not sold) to IBM or to the Customer.
Chordiant
license terms for the Programs as set forth in Exhibit 3 attached hereto will
be
provided directly to the Customer by IBM or Chordiant at IBM’s request. IBM is
not a party to such license and is not liable to the Customer or Chordiant
for
any breach of its terms. To the extent that the Customer requires any
modification or clarification to the Chordiant license terms, Chordiant agrees
to negotiate in good faith directly with the Customer. Chordiant may, as
required, amend the Program license terms contained in Exhibit 3 with at least
thirty days prior written notice to IBM, except that Chordiant may not amend
the
terms contained in Exhibit 3 Section 5. Indemnity, Warranties, Remedies without
IBM’s prior written consent, which consent shall not be unreasonably withheld.
Chordiant may grant license rights to IBM in addition to those set forth
elsewhere in this Subcontractor Agreement for the purpose of performing services
under the Customer contract; such rights will be in accordance with the terms
of
the applicable Statement of Work.
B.
Warranty
For
each Program, Chordiant will, as applicable and if necessary as agreed between
the Customer and Chordiant, specify any amendments or supplements to the terms
contained in Exhibit 3, such as changes to the warranty period, in a Transaction
Document.
If
IBM determines that a Program needs to be Euro Ready for a specific Customer
engagement, the Parties agree to negotiate the terms related to such Euro
Ready warranty
for that Customer at that time.
Chordiant
warrants that Programs do not knowingly contain Harmful Code.
For
each Program, Chordiant warrants for a period specified in Exhibit 3 or for
a
greater period, if any, as specified in a Transaction Document, from the date
of
delivery to the Customer that the Program as delivered by Chordiant, will
substantially perform the functions described in the user guides and manuals
for
installation and use of the Program in all material respects when operated
in
the Specified Operating Environment. Provided that Customer or IBM gives
Chordiant written notice of a breach of the foregoing warranty during the
warranty period, Chordiant shall, as IBM’s and Customer’s sole and exclusive
remedy, correct any reproducible errors that cause the breach of warranty in
accordance with its technical support policies, or if Chordiant is unable to
make the Program operate as warranted, Customer shall be entitled to terminate
the Program license and Chordiant shall refund fees paid by IBM for the
Program.
If
Chordiant provides any Customer with a warranty more favorable than the
foregoing warranty, the terms of the more favorable warranty will apply to
IBM
to the extent that IBM is acting on behalf of such Customer. Chordiant shall
be
deemed to have satisfied its warranty remedy obligations by providing such
warranty remedy to EITHER
IBM or the Customer.
7.
Services
A.
Materials
| 1. |
During
a project, Chordiant may deliver Materials to IBM or the Customer,
as
specified in a Statement of Work.
|
| 2. |
The
Statement of Work will specify if Materials are applicable to the project.
If any such Materials are applicable, the applicable Statement of Work
shall identify them as being either "Type I Materials,” "Type II
Materials," “Type III Materials,” or otherwise as both Parties may agree.
If not specified, Materials shall be deemed to be Type I Materials.
|
| |
a.
|
Type
I Materials are those created in performance of a Statement of Work
in
which IBM or (at IBM’s request) the Customer will have all right, title
and interest (including ownership of copyright). Chordiant will retain
one
copy of the Materials. IBM grants to Chordiant: 1) an irrevocable,
nonexclusive, worldwide, paid-up right to use, execute, reproduce,
display, perform, distribute (internally
|
and
externally) copies of, and prepare derivative works based on Type I Materials
and 2) the right to authorize others to do any of the foregoing.
| b. |
Type
II Materials are those created in performance of a Statement of Work
or
otherwise (such as those that preexist the project) in which Chordiant
or
third parties have all right, title, and interest (including ownership
of
copyright). Chordiant will deliver one copy of the specified Type II
Materials to IBM. Chordiant grants to IBM or (at IBM’s request) authorizes
IBM to grant the Customer an irrevocable, nonexclusive, worldwide,
paid-up
license to use, execute, reproduce, display, perform, and distribute
within the Customer’s Enterprise copies of Type II Materials. In the event
IBM terminates this Subcontractor Agreement or a Statement of Work,
then
Chordiant agrees to grant and hereby grants IBM the same license granted
above to the Customer and authorizes the creation of derivative works
to
enable IBM to complete, or have completed, Chordiant’s obligations to IBM.
|
| c. |
Type
III Materials are those created in performance of a Statement of Work
in
which Chordiant will have all right, title and interest (including
ownership of copyright). IBM will retain one copy of the Materials.
Chordiant grants to IBM: 1) an irrevocable, nonexclusive, worldwide,
paid-up right to use, execute, reproduce, display, perform, distribute
(internally and externally) copies of, and prepare derivative works
based
on Type III Materials and 2) the right to authorize others to do any
of
the foregoing.
|
The
classifications and license rights described above are independent of any rights
associated with Inventions as described in and pursuant to Section 8 below
(Inventions).
| 3. |
Each
Party agrees to reproduce the copyright notice and any other notice
or
legend of ownership on any copies made under the licenses granted in
this
Section. IBM agrees that it will require a Customer to reproduce the
copyright notice and any other notice or legend of ownership on any
copies
of Type II or III licensed Materials.
|
| 4. |
IBM
hereby consents to Chordiant accessing and using IBM's programs licensed
to the Customer for purposes of Chordiant performing its obligations
under
a Statement of Work, without Customer or Chordiant being required to
acquire additional licenses or incur a fee from IBM. Chordiant hereby
consents to IBM accessing and using Chordiant's Programs licensed to
the
Customer for purposes of IBM fulfilling its obligations under a Statement
of Work and under the contract between IBM and the Customer, without
the
Customer or IBM being required to acquire additional licenses or incurring
a fee from Chordiant. In no event shall Chordiant’s or IBM’s permitted
access, as the case may be, of the other Party’s program(s) as described
herein, increase or otherwise change the scope or other limitation
contained within the applicable Customer
license.
|
Subject
to the express limitations contained within Section 7.A.4 herein, in the event
IBM provides Services (including but not limited to Services for purposes of
demonstration,
evaluation,
installation, implementation, customization, development, consulting, systems
integration, outsourcing, and/or hosting Services for Customers) to Chordiant’s
licensees, Chordiant authorizes IBM to run and use Chordiant’s Programs for the
sole permitted purpose of providing such Services to Chordiant’s licensees. In
addition, amd subject to the express terms and limitations of an applicable
Chordiant license, neither IBM nor the Customer will be required to pay
Chordiant any fees or additional license charges to transfer applicable
Chordiant licenses to an IBM or third party computer system which is of like
configuration as the computer system for which the particular Programs were
licensed. Upon expiration or termination of the agreement to provide IBM’s
Services to a Chordiant licensee, IBM’s right to use the Customer license to a
Program to provide Services to such licensee will end.
| 5. |
The
Parties agree that unless otherwise agreed to in a Statement of Work,
derivative works of Chordiant’s Programs shall belong to Chordiant,
irrespective of which Party made the derivative work. If Chordiant
does
not intend to make the derivative work available as part of its
commercially available Program(s), then Chordiant grants to IBM or
(at
IBM’s request) to the Customer the license to use, execute, modify, and
distribute such derivative work within the Customer’s enterprise. In the
event Chordiant chooses to include the derivative work as part of the
next
release of the respective Program, the warranties associated with the
license terms described in Exhibit 3
apply.
|
B.
Warranty
Chordiant
warrants that it will perform the Services using reasonable care and skill,
and
according to its current description (including any completion criteria)
contained in a Statement of Work or other Transaction Document. To the extent
that IBM determines that the Materials need to be Euro Ready for a specific
Customer engagement, the Parties agree to negotiate the terms of such Euro
Ready
warranty for such Materials at that time.
IBM
agrees that it must report any deficiencies of the Services to Chordiant in
writing within ninety (90) days of performance of the Services in order to
receive any warranty remedy.
Chordiant
does not warrant uninterrupted or error-free operation of any Deliverable or
Service. THE
WARRANTY PROVIDED HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF
ANY
KIND EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS
OF NONINFRINGEMENT, NONINTERFERENCE, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
FOR
ANY BREACH OF THE AFOREMENTIONED WARRANTY, IBM’S EXCLUSIVE REMEDY, AND
CHORDIANT’S ENTIRE LIABILITY, SHALL BE THE REPERFORMANCE OF THE SERVICES. IF
CHORDIANT IS UNABLE TO REPERFORM THE SERVICES AS WARRANTED, IBM SHALL BE
ENTITLED TO RECOVER THE FEES PAID TO CHORDIANT FOR THE DEFICIENT
SERVICES.
8.
Inventions
Inventions
will be treated as follows:
1.
Sole Inventions and all patent applications filed therefor and all patents
issued thereon, shall be the sole and exclusive property of the inventing Party
subject to a non-exclusive, worldwide, irrevocable, nontransferable and fully
paid-up license to the other Party which is hereby granted to make, have made,
use, have used, lease, offer for sale, sell, import and/or otherwise transfer
any product and to practice and have practiced any method.
2. The
inventing Party shall identify all countries in which it will seek patent
protection for each Sole Invention. The inventing Party authorizes the other
Party to act as its agent in obtaining patent protection for the Invention
in
countries where the inventing Party does not seek patent protection and will,
at
the other Party's expense, assist in the filing of patent applications on such
Inventions and have required documents signed. Such patents shall be the sole
property of the inventing Party subject to the license herein granted in Section
8.1.
3. All
Joint Inventions shall be jointly owned, title to all patents issued thereon
shall be joint, all expenses (including those related to preparation,
prosecution and maintenance) shall be jointly shared (except as provided below),
and each Party shall have the right to non-exclusively license third parties
thereunder without accounting to the other Party. Where one Party elects not
to
share equally in the expenses for a Joint Invention, the other Party shall
have
the right to seek or maintain such protection for such Joint Invention at its
own expense, and shall have full control over its preparation, prosecution
and
maintenance, even though title to any issuing patent will be held
jointly.
4. Each
Party grants the other only the licenses and rights expressly specified in
this
Subcontractor Agreement and Statements of Work hereunder. Except as may be
provided in other written agreements between the Parties, no other licenses
or
rights (including, without limitation, licenses or rights under patents,
trademarks or copyrights) are granted either directly or indirectly, by
implication, estoppel or otherwise under this Subcontractor
Agreement.
9.
Patent and Copyright Indemnification
If
a third party claims that a Deliverable that Chordiant provides to IBM or to
the
Customer infringes that third party’s patent or copyrights, or misappropriates
that third party’s trade secrets, regardless of whether that third party had
made such claim against IBM or a Customer which has been provided a Deliverable
that is the basis of the infringement or misappropriation claim, Chordiant
will
defend IBM or its Customer against that claim at Chordiant’s expense and shall
pay all costs, damages, and attorney's fees that a court finally awards, or
that
are included in a settlement approved by Chordiant, provided that IBM or its
Customer (as applicable):
| 1. |
promptly
notifies Chordiant in writing of the
claim;
|
| 2. |
allows
Chordiant to control and cooperates with Chordiant in the defense and
any
related settlement negotiations, provided that any such settlement
does
not adversely affect IBM.
|
If
such a claim is or is likely to be made, Chordiant will, at its own expense,
exercise the following remedies in any order selected by Chordiant: (i) obtain
for IBM and the Customer the right to continue to use, sell and license the
Deliverables consistent with this Subcontractor Agreement; (ii) modify
Deliverables so they are non-infringing and in compliance with this Agreement;
(iii) replace the affected Deliverables with non-infringing ones that comply
with this Subcontractor Agreement; or if after attempting to exercise (i),
(ii)
and (iii), none of these are commercially reasonable, then it shall accept
the
return of infringing Deliverable(s) and refund any amount paid for such
infringing Deliverable(s). Chordiant
may accept the first of remedies (i), (ii) or (iii), in whichever order it
may
select, that it may obtain and need not pursue the others.
This
is Chordiant’s entire obligation and IBM’s and the Customer’s sole remedy
regarding any claim of patent or copyright infringement or trade secret
misappropriation. Chordiant’s obligations and responsibilities with respect to
the Customer are subject to all the conditions, limitations and restrictions
contained in this Section 9, and no terms and conditions in the prime contract
between IBM and the Customer can expand Chordiant’s obligations and
responsibilities hereunder.
Claims
for which Chordiant is not responsible:
| 1. |
IBM's
or the Customer’s modification of a Deliverable, or a Deliverable’s use in
other than its Specified Operating Environment when the claim would
not
have occurred but for such modification or
use;
|
| 2. |
the
combination, operation, or use of a Deliverable with any products not
provided by Chordiant as a system, or not in accordance with the
Deliverable’s specifications, or the combination, operation or use of a
Deliverable with any product, data, business method or apparatus that
Chordiant did not provide or specify, when the claim would not have
occurred but for such combination, operation or use;
|
| 3. |
IBM’s
or the Customer’s failure to install a Chordiant-supplied update or
upgrade, when the claim would not have occurred but for such failure;
or
|
| 4. |
infringement
by a non-Chordiant Deliverable alone, when the claim would not have
occurred but for such non-Chordiant
Deliverable.
|
If
a third party claims that a deliverable provided by IBM to IBM’s Customer which
includes a Chordiant Deliverable infringes that third party’s patent or
copyright, or misappropriates that third party’s trade secrets, IBM will defend
Chordiant against that claim at IBM’s expense and shall pay all costs, damages,
and attorney's fees that a court finally awards, or that are included in a
settlement approved by IBM, provided that Chordiant:
1. promptly
notifies IBM in writing of the claim; and
| |
2.
|
allows
IBM to control and cooperates with IBM in the defense and any related
settlement negotiations, provided that any such settlement does not
adversely affect Chordiant;
|
IBM’s
foregoing obligation to defend shall only apply 1) if the IBM deliverable
without combination with the Chordiant Deliverable is the sole cause of the
infringement claim or 2) the claim is due solely to IBM’s or IBM’s Customer’s
failure to install a Chordiant-supplied update or upgrade and IBM’s obligation
to defend shall not apply if the combination, operation or use of the Chordiant
Deliverable in the IBM deliverable is in accordance with the documentation
or
specifications for the Chordiant Deliverable or the combination was made with
the written approval of Chordiant.
10.
Limitation of Liability
Circumstances
may arise, where, because of a default or other liability, one of the Parties
is
entitled to recover damages from the other. In each such instance, regardless
of
the basis on which damages can be claimed, the following terms apply as the
exclusive remedy.
A.
Chordiant’s Liability
Chordiant
is responsible for:
| 1. |
applicable
Chordiant payments referred to in the Patent and Copyright Indemnification
section above;
|
| 2. |
bodily
injury (including death), and damage to real property and tangible
personal property caused by Chordiant Products or Services;
|
| 3. |
any
damages resulting from a breach of the AECI existing between the Parties;
and
|
| 4. |
the
amount of any other actual loss or damage, up to the greater
of:
|
| b. |
the
charges (if recurring, 12 months’ charges apply) for
the Program or Service that is the subject of the claim. This limit
also
applies to any of Chordiant’s subcontractors or Program developers. It is
the maximum for which Chordiant, its subcontractors and its Program
developers are collectively responsible.
|
Items
for Which Chordiant is Not Liable
Under
no circumstances is Chordiant liable for any of the following:
| 1. |
third-party
claims against IBM for losses or damages (other than those under the
first
two items listed above);
|
| 2. |
loss
of or damage to records or data; or
|
| 3. |
economic
consequential damages (including lost profits or savings) loss of
business, revenue, goodwill, or anticipated savings or incidental damages
(collectively, “Consequential
Damages”),
or punitive damages, even if advised that any of these
types
|
of
damages may occur; provided, however, notwithstanding the foregoing, Chordiant
shall be liable for Consequential Damages associated with Chordiant’s
infringement or violation of IBM's intellectual property rights.
B.
IBM’s Liability
IBM
is responsible for:
| 1. |
applicable
IBM payments referred to in the Patent and Copyright Indemnification
section above
|
| 2. |
bodily
injury (including death), and damage to real property and tangible
personal property caused by IBM’s Products or Services;
|
| 3. |
any
damages resulting from a breach of the AECI existing between the Parties;
and
|
| 4. |
the
amount of any other actual loss or damage, up to the greater
of:
|
| b. |
the
charges (if recurring, 12 months’ charges apply) for the Program or
Service that is the subject of the claim. This limit also applies to
any
of IBM’s subcontractors or program developers. It is the maximum for which
IBM, its subcontractors and its program developers are collectively
responsible.
|
Items
for Which IBM is Not Liable
Under
no circumstances is IBM liable for any of the following:
| 1. |
third-party
claims against Chordiant for losses or damages (other than those under
the
first item listed above);
|
| 2. |
loss
of or damage to records or data; or
|
| 3. |
economic
consequential damages (including lost profits or savings) loss of
business, revenue, goodwill, or anticipated savings, or incidental
damages
(collectively, “Consequential
Damages”),
or punitive damages, even if advised that any of these types of damages
may occur; provided however, notwithstanding the foregoing, IBM shall
be
liable for Consequential Damages associated with IBM’s infringement or
violation of Chordiant’s intellectual property
rights.
|
11.
Term and Termination
The
term of this Subcontractor Agreement shall be three (3) year(s) from the date
hereof. This Subcontractor Agreement may be extended upon conclusion of the
term
by agreement of the Parties.
Either
Party may terminate this Subcontractor Agreement upon a material breach by
the
other Party. The terminating Party shall give the other Party written notice
of
the basis for termination and the other Party shall have 30 days in which to
cure the default or, if 30 days is deemed inadequate by the breaching Party,
the
non-breaching Party may mutually agree in writing to an
acceptable
cure plan and time period for cure with the other Party. If the default has
not
been cured within the 30-day period or substantial progress toward a cure has
not been made within the mutually agreed to cure period, the non-breaching
Party
may terminate this Subcontractor Agreement upon a second notice at the end
of
the 30-day period or the mutually agreed to period, whichever is applicable.
Either
Party may terminate this Subcontractor Agreement for convenience upon not less
than 60 days prior written notice.
In
the event this Subcontractor Agreement terminates any Statements of Work then
in
effect will continue until all work thereunder is performed, unless such
Statement of Work is earlier terminated as provided herein or in the Statement
of Work. Unless otherwise provided in a Statement of Work, IBM may terminate
a
Statement of Work, in whole or in part, providing 30 days’ prior written notice
to Chordiant specifying the extent to which the performance of work is
terminated and the date upon which such termination becomes effective. Upon
notice of termination, Chordiant will stop performance under the applicable
Statement of Work, and IBM agrees to pay Chordiant for the actual and reasonable
expenses incurred by Chordiant for work in progress up to and including the
date
of termination, provided Chordiant uses reasonable efforts to mitigate IBM’s
liability.
Any
terms of this Subcontractor Agreement which by their nature extend beyond its
termination remain in effect until fulfilled, and apply to respective successors
and assignees.
12.
General
A.
Assignment
Neither
Party will assign their rights or delegate or subcontract their duties under
this Subcontractor Agreement to third parties without the prior written consent
of the other Party, such consent not to be withheld unreasonably. However,
this
Subcontractor Agreement may be assigned by either party in conjunction with
the
sale of a substantial part of its business utilizing this Subcontractor
Agreement. Any unauthorized assignment of this Subcontractor Agreement is void.
B.
Force Majeure
Neither
Party will be considered in default or liable for any delay or failure to
perform any provision of this Subcontractor Agreement if such delay or failure
arises directly or indirectly out of an act of God, acts of the public enemy,
freight embargoes, quarantine restrictions, unusually severe weather conditions,
insurrection, riot, and other such causes beyond the reasonable control of
the
Party experiencing the delay or failure to perform (excluding labor disputes
affecting a Party and its suppliers, contractors and subcontractors), provided
the affected Party notifies the other Party as soon as is reasonably
practicable.
C.
Limitation of Actions
Neither
Party will bring a legal action under this Subcontractor Agreement more than
two
years after the cause of action arose unless otherwise provided by local law
without the possibility of contractual waiver or limitation.
D.
Governing Law
The
Parties consent to the application of the laws of the country in which the
transaction is executed and performed, to govern, interpret, and enforce all
of
each Party’s rights, duties, and obligations arising from, or relating in any
manner to, the subject matter of this Subcontractor Agreement, without regard
to
conflict of law principles. In the United States, this Subcontractor Agreement
shall be governed, interpreted and enforced in accordance with the laws of
the
State of New York. The Parties expressly waive any right to a jury trial
regarding disputes arising under or related to this Subcontractor Agreement.
The
United Nations Convention on Contracts for the International Sale of Goods
does
not apply.
E.
Electronic Commerce
The
Parties will conduct transactions via an electronic commerce approach under
which the Parties will electronically transmit and receive purchase orders,
invoices, and payments. Such electronic communications are acceptable as a
signed writing to the extent permissible under applicable law. An identification
code (called a “user
ID”)
contained in an electronic document is sufficient to verify the sendor’s
identify and the document’s authenticity. Any conflicting or additional terms,
that are preprinted or standard form in nature, of any purchase order,
acknowledgment or other ordering document submitted by either Party shall be
null and void.
F.
Insurance
During
the term of this Agreement and any Statement of Work entered into under this
Subcontractor Agreement, the Parties shall maintain insurance coverage
sufficient to fulfill their respective obligations under this Subcontractor
Agreement.
G.
Data Privacy
Chordiant
agrees to allow IBM and entities within its Enterprise to store and use
Chordiant’s contact information, including names, phone numbers, and e-mail
addresses, anywhere it does business. Such information will be processed and
used in connection with IBM’s business relationship, and may be provided to
contractors, Business Partners, and assignees of IBM and entities within its
Enterprise for uses consistent with its collective business activities,
including communicating with Chordiant (for example, for processing orders,
for
promotions, and for market research).
H.
Severability
In
the event that any provision of this Subcontractor Agreement is held to be
invalid or unenforceable, the remaining provisions of this Subcontractor
Agreement remain in full force and effect.
I.
Survival
Those
terms which by their nature extend beyond the terms of this Subcontractor
Agreement will remain in effect after the termination of this Subcontractor
Agreement until fulfilled,
and
apply to both of our respective successors and assignees.
J.
Territory
The
territory for this Subcontractor Agreement shall be limited to North America.
Any changes to the territory shall be mutually agreed between the Parties in
writing through an amendment to this Subcontractor Agreement. Additional terms
applicable to transactions within specific countries are contained in Attachment
A - Master Agreement for Subcontracted Services - Country Unique Terms, attached
hereto and hereby made part of this agreement by reference.
K.
Entire Agreement
This
Subcontractor Agreement and its applicable Attachments and Exhibits are the
complete agreement regarding these transactions, and replace any prior oral
or
written communications between the Parties. If any term in this Subcontractor
Agreement is found by competent judicial authority to be unenforceable in any
respect, the validity of the remainder of this Subcontractor Agreement will
be
unaffected, provided that such unenforceability does not materially affect
the
Parties’ rights under this Subcontractor Agreement. This Subcontractor Agreement
may only be amended or modified by a writing signed by both Parties.
By
signing below, both Parties agree to the terms of this Subcontractor
Agreement. Once
signed, any reproduction of this Subcontractor Agreement by any reliable means
(for example, photocopy or facsimile) is in all respects equivalent to an
original unless prohibited by local law.
International
Business Machines Corporation Chordiant
Software, Inc.
By:
___/s/
Xxxxxxxx Wexler__________ By:
___/s/
Xxxxx Vogel_______________
Name:
Xxxxxxxx Xxxxxx Name:
Xxxxx Xxxxx
Title:
Procurement Alliance Relationship Title:
Chief Financial Officer
Manager
Date: June
14, 2002 Date:
June 13, 2002
Exhibit
1
Chordiant’s
Core Competencies
Description
of Combined Offering:
Chordiant
5 - Enterprise Desktop initiative: Chordiant provides a
real-time Single Entry & Validation Point for Multiple Products, Channels
& Companies. A joint initiative will include the
redesign of business processes around Chordiant products, interfaces to existing
(or new) legacy systems, and EAI middleware solutions and products. Products
will include Chordiant 5 JX products. Customization of web pages, edits,
business rules, and workflow procedures are common to accommodate client
specific business and product differences. Chordiant software enhancements
may
be required occasionally. The initiative will include IBM Hardware and Software
for the installation and operation.
Programs:
| · |
Chordiant
5 Marketing Director (Online Marketing Director, Mobile Marketing
Director, Marketing Optimiser, One
Reporting);
|
| · |
Chordiant
5 Selling & Services (Call Center Advisor, Branch Advisor, Web
Advisor, Mobile Advisor);
|
| · |
Chordiant
5 Enterprise Platform (Foundation Server, Rules Server, Knowledge Server,
Collaboration Server, Connection Server)
|
Machines:
N/A
Services:
Chordiant Consulting Services related to Chordiant solutions,
including
Business
Analyst
Chordiant
Technical/Solution Architect
Java
Lead Developer
Chordiant
CTI, WorkFlow, Rules specialist
Technical
Trainer
The
core Chordiant Competency is Chordiant Technical Solution Architect with
in-depth knowledge of Chordiant software solutions and architecture, with a
key
focus on Gap Analysis and Quality Assurance of the implementation of the
Chordiant software in the overall solution. E-business Specialist and Developers
will be required where enhancements to the base software are required.
Additional services (for client customization outside the core software) overlap
IBM Competencies for e-business and will be utilized for (1) knowledge transfer
on initial projects, and (2) staff augmentation.
Exhibit
2
IBM’s
Core Competencies
Description
of Combined Offering:
Chordiant
5 - Enterprise Desktop initiative: Chordiant provides a
real-time Single Entry & Validation Point for Multiple Products, Channels
& Companies. A joint initiative will include the
redesign of business processes around Chordiant products, interfaces to existing
(or new) legacy systems, and EAI middleware solutions and products. Products
will include Chordiant 5 JX products. Customization of web pages, edits,
business rules, and workflow procedures are common to accommodate client
specific business and product differences. Chordiant software enhancements
may
be required occasionally. The initiative will include IBM Hardware and Software
for the installation and operation.
Programs:
MQ
Series
MQSI
MQWorkflow
MQ
FSE
CrossWorlds
WebSphere
VA
Java
Machines:
NT
RS/6000
Mainframe
Services:
Strategy
and Change Consulting
E-Business
Services
Project
Management Office Services
Enterprise
Application Integration Services
Testing
Services
Performance
/ Benchmarking Testing
IBM
Software Training
IBM
Insurance Application Architecture License and Services
ATTACHMENT
A
Master
Agreement for Subcontracted Services
Country
Unique Terms
The
terms of this Subcontractor Agreement and any subsequent Statements of Work
apply for all countries except that the following terms are country amendments
which replace or modify terms for the identified country. All terms which are
not changed by these Amendments remain in effect.
1.0 Governing
Law
1.1 Section
13.D
The
following replaces this section as it applies for those countries identified
in
bold print below:
Both
Chordiant and IBM consent to the application of the laws of the country in
which
the transaction is performed to govern, interpret, and enforce all of your
and
IBM’s rights, duties, and obligations arising from, or relating in any manner
to, the subject matter of this Subcontractor Agreement, without regard to
conflict of law principles.
However,
the phrase “the laws of the country in which the transaction is performed" is
replaced by the following phrases 1) “the laws of Austria” in Albania,
Armenia, Azerbeijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Georgia,
Hungary, Kazakhstan, Kyrghystan, FYR Macedonia, Moldavia, Poland, Romania,
Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine,
Uzbekistan,
and
FR Yugoslavia;
2) “the laws of the State or Territory in which the transaction is performed”
in
Australia;
3) “the laws of France” in
Algeria, Benin, Burkina Faso, Cameroon, Cape Verde,
Central
African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic
of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon,
Gambia, Guinea,
Guinea-Bissau,
Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco,
New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo,
Tunisia,
Vanuatu,
and Wallis & Futuna; 4)
“the laws in the Province of Ontario” in
Canada;
5) “the laws of Finland”
in Estonia, Latvia, and Lithuania; 6)
“the laws of England” in
Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan,
Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan,
Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda,
United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and
Zimbabwe;
7) “the laws of the State of New York, United States of America”
in Cambodia, Laos, the
United States of America, and Vietnam; 8)
“the laws of the State of New York, United States of America (except when local
law requires otherwise”) in the People’s
Republic of China;
and 9) “the laws of Hong Kong Special Administrative Region of China”
in Hong
Kong, Macau, and Taiwan.
6.0 NORTH
AMERICA
6.1 CANADA
6.1.1 Section
11.A.
Limitation of Liability
The
following replaces item 2:
damages
for bodily injury (including death) and physical harm to real property and
tangible personal property caused by Chordiant’s negligence;
and
6.1.2 Section
11.B.
Limitation of Liability
The
following replaces item 2:
damages
for bodily injury (including death) and physical harm to real property and
tangible personal property caused by IBM’s negligence; and
6.3 UNITED
STATES OF AMERICA
6.3.1 Section
6.A. Title
The
following replaces the second and third sentences of the first
paragraph:
Transfer
of title occurs when the Machine is shipped. However, Chordiant reserves a
purchase money security interest in the Machine until it receives the amounts
due. For a feature, conversion, or upgrade involving the removal of parts which
become Chordiant’s property, Chordiant reserves the security interest until it
receives the amounts due and the removed parts.
6.3.2 Section
6.C.
Limitation of Warranty
The
following paragraph is added to this Section:
If
a Machine is subject to federal or state consumer warranty laws, Chordiant’s
statement of limited warranty included with the Machine applies in place of
these Machine warranties.
