EXHIBIT 10.8
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement ("Strategic Alliance" or "Agreement")
is made and entered into as of the 20th day of April, 2000, by and between Click
Commerce, Inc., a Delaware corporation ("Click") and Xxxxxxxx Consulting, LLP,
an Illinois Limited Liability Partnership ("Xxxxxxxx Consulting") on behalf of
and for the benefit of all entities throughout the world comprising the Xxxxxxxx
Consulting worldwide organization (i.e., any Xxxxxxxx Consulting entity having a
Member Firm Interfirm Agreement with Xxxxxxxx Worldwide or any successor entity
to Xxxxxxxx Worldwide, or any other entity controlling, controlled by or under
common control with such an entity or a partner of Xxxxxxxx Worldwide or any
successor entity) (the "AC Affiliates").
RECITALS:
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WHEREAS, Xxxxxxxx Consulting has developed a substantial reputation and
goodwill in the field of providing consulting services under the XXXXXXXX
CONSULTING service xxxx (together with its logos and other intellectual property
relating thereto, the "Xxxxxxxx Consulting Xxxx");
WHEREAS, Click has developed a substantial reputation and goodwill in
the field of computer software solutions and related consulting services under
the CLICK, CLICK COMMERCE and CLICK INTERACTIVE trademarks and service marks and
is pursuing protection of the trademark ENTERPRISE CHANNEL MANAGEMENT (together
with its logos and other intellectual property relating thereto, the "Click
Marks").
WHEREAS, Xxxxxxxx Consulting and Click believe that by working together
to jointly enhance their products and services offering in the e-commerce area
they will be able to achieve mutual and independent success in the marketplace
as a result of promoting Click's products and services and Xxxxxxxx Consulting's
services to their respective clients. It is therefore the desire of Xxxxxxxx
Consulting and Click to work together in a strategic alliance to jointly market
Click's products and services and Xxxxxxxx Consulting's services.
Now, therefore, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Click and Xxxxxxxx Consulting hereby agree as follows:
ARTICLE I - PURPOSE
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1.1 Strategic Alliance Business Goals. The purpose of this Strategic
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Alliance is to achieve mutual and independent success in the marketplace through
the promotion of Click products and services and Xxxxxxxx Consulting services.
In this regard, it is the intention of Xxxxxxxx Consulting and Click to work
together to achieve the following joint business goals: (i) market and sell
Click products and services to Designated Customers (as defined herein), (ii)
market and sell Xxxxxxxx Consulting services to Designated Customers and Click
accounts; and
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(iii) design and develop mutually agreeable marketing materials, such as white
papers, industry and product analyses and other similar collateral materials,
and develop and implement mutually agreeable marketing strategies tailored to
the needs of the Designated Customers. It is the intention of the parties hereto
that with respect to any third party that is determined to be a Designated
Customer pursuant to the terms of this Agreement, all Click software, products
and services provided to such Designated Customer, by either of Xxxxxxxx
Consulting or Click, either independently or in conjunction with another party,
shall be provided pursuant to this Agreement (except as otherwise specified in
this Agreement).
1.2 Designated Customers. "Designated Customer" means an AC Entity (as
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defined below) or any other third party that (A) is introduced to Click by
Xxxxxxxx Consulting, AC Affiliates or other parties reasonably agreed to by
Xxxxxxxx Consulting and Click (Xxxxxxxx Consulting together with such AC
Affiliates and other entities, the "AC Entities") or (B) is introduced to
Xxxxxxxx Consulting by Click, and, in either case, as to which personnel of the
AC Entities play a material role, and the AC Entities provide a reasonable level
of assistance, in the marketing efforts related to such party's decision to
purchase or license software, goods or services from Click. Xxxxxxxx Consulting
shall notify Click that the introduced party would constitute a Designated
Customer if a sale or license shall be consummated. If Click disagrees with such
designation, Click shall notify Xxxxxxxx Consulting within ten (10) days after
delivery of the designation notice by Xxxxxxxx Consulting. Click may indicate
its disagreement with such designation only if Click or any other party with
which Click has engaged in joint marketing activities (a "Click Marketing
Partner") has had material contact with the prospect which is the subject of the
designation in the 180 days prior to receipt of the designation notice and begun
material marketing activities. The parties shall diligently pursue the
consummation of a Qualifying Order with each Designated Customer, and Click
shall negotiate in good faith a Qualifying Order with such Designated Customer.
The parties agree to negotiate in good faith to resolve any disputes with
respect to the designation of Designated Customers in a manner that reflects the
relative contribution of the parties..
1.3 Exclusions from the Strategic Alliance. The parties specifically
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intend to exclude from the parties' efforts hereunder all marketing efforts made
by Click pursuant to strategic alliance or system integration agreements between
Click and third parties identified by Click to Xxxxxxxx Consulting in writing
which is acknowledged by Xxxxxxxx Consulting prior to the date hereof and one
additional Click Preferred Systems Integrator.
1.4 Non-United States Matters. In some cases, specific implementation
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of this relationship in countries other than the United States will need to be
reflected in local country addendum added to this Agreement from time to time,
executed by the AC Affiliate in the country and an entity representing Click.
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ARTICLE II - OPERATION OF THE STRATEGIC ALLIANCE
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2.1 Management of the Relationship. The parties will each designate an
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executive sponsor to participate on a Management Committee who will be
responsible for the coordination of all activities between Click and Xxxxxxxx
Consulting, the facilitation of information flow between the two companies and
the coordination of joint marketing and sales opportunities. The
responsibilities of each party in this Strategic Alliance will be determined by
this Agreement and the Management Committee. All decisions by the Management
Committee with respect to Designated Customers and otherwise with respect to the
operation of the Strategic Alliance must be unanimously approved by both members
of the Management Committee. Xxxxxxxx Consulting hereby designates Xxx Xxxxxx as
its executive sponsor and Click hereby designates Xxxxx X. Xxxx as its executive
sponsor. Either party may replace its executive sponsor, provided that such
successor shall be reasonably acceptable to the other party and at a similar
level of responsibility within such party's organization.
2.2 Meetings of the Management Committee. Meetings of the Management
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Committee may be conducted in person or by teleconferencing and shall be with
such frequency as the parties may agree upon. The location of meetings conducted
in person shall be as nearly evenly distributed as is practicable between the
home offices of Xxxxxxxx Consulting and Click. Each party shall be responsible
for its own travel expenses in attending meetings of the Management Committee.
2.3 Development of Business Plans and Budgets. The Management
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Committee may review any written business plans and financial budgets that are
prepared by either party with respect to any marketing project which the parties
agree to undertake or develop jointly. Each party will use its diligent and
reasonable efforts to develop or implement each project in accordance with the
agreed upon business plan and budget.
2.4 Pricing and Payment Terms to Designated Customers. Each party
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shall have the right to designate pricing and payment terms in accordance with
its own business practices to all of its own accounts and the pricing and terms
of each party's products and services directly sold by that party to Designated
Customers. On a case-by-case basis, the Management Committee will have the
ability to request that the parties modify their pricing to Designated Customers
when appropriate in light of the competition for similar products and services
and taking into account the value received by the Designated Customer associated
with the products and services provided by this Strategic Alliance.
2.5 Independent Contractors. Nothing contained in this Agreement shall
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be construed as creating a relationship between Xxxxxxxx Consulting and Click
other than that of independent contractors. The parties are independent
contractors and neither party shall have any liability for the acts or omissions
of the other party or the other party's clients or employees. Each party shall
not be deemed an employee or agent of the other party or of any other company
affiliated with the other party. Accordingly, each party shall have no right,
power or authority to act, and shall not act, in any way in the name of the
other party or its affiliated companies. As
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independent contractors, each party shall pay its own taxes and maintain its own
requisite insurance. The parties shall cooperate in good faith to minimize such
tax liabilities to the extent legally permissible and to incorporate provisions
to recover such taxes into underlying contracts with Designated Customers.
Neither party is responsible to any end user (including, but not limited to,
Designated Customers) for the quality of services or products provided by the
other party. Nothing contained herein is intended to constitute or create a
joint venture or partnership relationship between Click and Xxxxxxxx Consulting.
Each party is solely responsible for establishing the prices for its own
products and services. Except as otherwise provided in this Agreement or the
agreements contemplated herein, each party shall be responsible for its own
costs and expenses associated with its performance of this Agreement. The
parties shall not, during the term of this Agreement, use the terms "joint
venturer," "co-venturer," "partner," "marketing partner," "partnership,"
"affiliate," or similar terms to describe the relationship between the parties
under this Agreement. Any inadvertent use of such terms is not intended by the
parties either to describe in any manner the relationship of the parties under
this Agreement, or expressly or impliedly to create a legal partnership or joint
venture, or any responsibility by one party for the actions of the other.
ARTICLE III - RESPONSIBILITIES OF THE PARTIES
3.1 Responsibilities of Click. Click shall have primary
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responsibility for the following matters:
(a) Evaluating its existing customers and prospects to determine
which may provide marketing opportunities for Xxxxxxxx
Consulting's services.
(b) Identifying highly qualified accounts as potential Xxxxxxxx
Consulting customers. Click's first proposed customer shall be
disclosed to Xxxxxxxx Consulting upon execution of this
Agreement, but shall not be considered a Designated Customer.
(c) Providing Xxxxxxxx Consulting with reasonably sufficient
marketing materials for Click's products and services so that
Xxxxxxxx Consulting may effectively perform its obligations
under this Agreement.
(d) Providing Xxxxxxxx Consulting with a commercially reasonable
level of marketing and sales assistance consistent with
standard software industry practices, including but not
limited to: responding to phone calls from prospective
clients, providing proposal assistance, and providing tutorial
assistance.
(e) Providing Xxxxxxxx Consulting with a commercially reasonable
level of support similar to that provided to Click personnel
in connection with Click's marketing efforts, including
answering technical questions, and where mutually agreed by
the joint project team leaders, supplying experts to support
detailed technical presentations and meetings.
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(f) Providing Xxxxxxxx Consulting with a commercially reasonable
level of support similar to that provided to Click personnel
in connection with Click's system integration efforts,
including supplying, at no cost to Xxxxxxxx Consulting,
documentation and dedicated telephone technical support
sufficient for Xxxxxxxx Consulting to perform its role as a
system integrator.
(g) In the event Xxxxxxxx Consulting elects to execute an
engagement to provide a Designated Customer with front-line
client support, Click shall treat Xxxxxxxx Consulting
personnel in the same manner, and provide to them the same
commercially reasonable level of support, that Click would be
obligated to provide to employees of such Designated Customer
under the support and maintenance agreement between Click and
such Designated Customer (which may include telephone
technical support) during normal Click's business hours and
shall not impose an additional cost on Xxxxxxxx Consulting
related to such services.
(h) Providing software maintenance, technical support, software
warranty and training services, to Designated Customers at
fees not to exceed Click's standard fees. Click agrees to
extend to each Designated Customer the same basic warranties
and indemnifications with respect to Click's software, goods
and services that Click generally extends to its clients;
provided, however, that Click shall not provide any warranties
or indemnifications with respect to any other software, goods
or services provided by Xxxxxxxx Consulting or any other
entity. The terms of Click's warranties shall commence upon
delivery of the applicable product(s) to the Designated
Customer; provided, however, that upon Xxxxxxxx Consulting's
prior written request, warranty coverage shall be extended for
a further period (not to exceed 90 days following installation
of the Click software, unless otherwise agreed by the parties)
as if the warranty commencement date did not occur until
installation and acceptance of the applicable product by the
Designated Customer. In such cases, Xxxxxxxx Consulting shall
advise Click when the imputed warranty commencement date
commences.
(i) Other responsibilities as determined by the Management
Committee, from time to time.
3.2 Responsibilities of Xxxxxxxx Consulting. Xxxxxxxx Consulting
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shall have primary responsibility for the following matters:
(a) Forming a dedicated team of Xxxxxxxx Consulting consultants
whose objective will be to develop new business for Click
products and services based on the concept of an Enterprise
Channel Management offering.
(b) Evaluating its existing customers and prospects to determine
which may provide marketing opportunities for Click's products
and services.
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(c) Identifying highly qualified accounts as Designated Customers.
Xxxxxxxx Consulting's first proposed Designated Customer shall
be disclosed to Click upon execution of this Agreement.
(d) Designing and developing non-customer specific marketing
materials, such as white papers, industry and products
analyses and other similar collateral materials to support the
joint marketing of Click products and services and Xxxxxxxx
Consulting services under this Strategic Alliance Agreement.
(e) Providing Click with reasonably sufficient marketing materials
for Xxxxxxxx Consulting's services so that Click may
effectively perform its obligations under this Agreement.
(f) Providing Designated Customers access to Xxxxxxxx Consulting's
solution centers or other facilities as jointly agreed by the
account team leaders to be necessary or desirable to best
fulfill the functions and effectuate the purposes and goals of
this Strategic Alliance and subject to Xxxxxxxx Consulting's
then-current policies regarding access to such solution
centers and facilities.
(g) Other responsibilities as determined by the Management
Committee, from time to time.
3.3 Joint Responsibilities of Click and Xxxxxxxx Consulting. Click
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and Xxxxxxxx Consulting shall have joint responsibility for the following
matters:
(a) Develop specific objectives, targets and plans for business
development for the benefit of both parties, including joint
support for marketing, investments, target segments and
specific Designated Customers or other accounts.
(b) To jointly develop an account strategy and plan with respect
to each of the Designated Customers, including the manner of
handling marketing to, and the management of, each Designated
Customer.
(c) To develop an appropriate strategy for maintaining, upgrading,
updating and supporting all of the software, goods and
services provided to Designated Customers.
(d) To prepare mutually acceptable written budgets estimating the
cost of implementing any agreed upon marketing effort to an
identified Designated Customer.
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(e) To provide training to marketing personnel for each of
Xxxxxxxx Consulting and Click to enable each party to
effectively promote each other's products and services to
Designated Customers and other accounts.
(f) Xxxxxxxx Consulting and Click will coordinate marketing
activity related to this Agreement on a regular basis. Such
marketing coordination may include:
- An initial joint marketing planning meeting
- Follow-up planning meetings every 3 months
- Monthly opportunity status reporting
(g) To create mutually acceptable website links on terms and
conditions agreed to by the parties.
3.4 Xxxxxxxx Consulting's Appointment as "Click Preferred Systems
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Integrator". During the term of this Agreement, Xxxxxxxx Consulting shall be
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designated by Click as a "Click Preferred Systems Integrator" on a global basis
and shall promote Xxxxxxxx Consulting as such where appropriate. Click shall
specify Xxxxxxxx Consulting as a Click Preferred Systems Integrator on all Click
marketing materials which contain a listing of multiple systems integrators
recommended or preferred by Click. Xxxxxxxx Consulting may also use this term on
any promotional or marketing materials it creates to market its services. During
the term of this Agreement, Click shall not designate more than one other "Click
Preferred Systems Integrator" or other equivalent designation (other than those
preferred systems integrators identified by Click to Xxxxxxxx Consulting in
writing and acknowledged and agreed to by the Company prior to the date hereof)
and shall not appoint any systems integrator a status superior to that granted
to Xxxxxxxx Consulting under this Agreement. This Agreement shall not preclude
Click from working or contracting with any other systems integrator.
3.5 Project-Based Consulting Services Arrangements. During the
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three year term of the Consulting Agreement (as defined below), Xxxxxxxx
Consulting and Click shall mutually agree to Xxxxxxxx Consulting separately
providing consulting services to Click under additional arrangement letters to
be attached from time to time to a consulting agreement agreed to by the parties
(the "Consulting Agreement").
3.6 Use or Recommendation of Competitors. Neither party will be
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restricted from: (i) recommending and marketing services or products which may
be competitive with the services or products of the other party if the
recommending or marketing party reasonably determines that such services or
products will better meet the needs of an entity; or (ii) subject to the terms
of this Agreement, entering into alliance or marketing arrangements with any
third party.
3.7 Compensation for Sales. Click does not have, and will not
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establish, an incentive compensation system for its sales personnel that reduces
the basis on which incentives are paid
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for sales of Click products and services to Designated Customers as compared to
sales to other Click customers.
3.8 Training of Xxxxxxxx Consulting Personnel. Click will provide, at
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no cost to Xxxxxxxx Consulting, up to sixteen (16) (i.e., four (4) per calendar
quarter) day-long training sessions on the use, installation and integration of
Click products for up to 10 Xxxxxxxx Consulting personnel. If requested by
Xxxxxxxx Consulting, and subject to available Click resources, Click shall
provide, and Xxxxxxxx Consulting shall pay at 75% of Click's then current
standard rates for, additional requested training sessions. Xxxxxxxx Consulting
shall be responsible for all costs of its personnel attending such sessions
(including any travel, lodging or similar expenses). Time spent by Xxxxxxxx
Consulting personnel in such training sessions shall not be credited towards any
Xxxxxxxx Consulting obligations under this Agreement or otherwise be chargeable
to Click as consulting services.
ARTICLE IV - COSTS AND PURSUING DESIGNATED CUSTOMERS
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4.1 Costs. In consideration of the mutual benefits anticipated from
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successful efforts hereunder, each party shall bear its own respective costs,
expenses, risks and liabilities arising out of performance under the Strategic
Alliance, including, but not limited to the operations of this Strategic
Alliance and marketing to Designated Customers and other accounts (but excluding
any services provided by Xxxxxxxx Consulting to Click pursuant to a separate
agreement). Each party may re-coup specified costs related to specific projects
for Designated Customers as approved by the Management Committee.
4.2 Pursuing Designated Customers.
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(a) With respect to each Designated Customer, the Management Committee
will decide whether the parties will proceed to (1) jointly propose according to
a teaming or prime/sub relationship or (2) jointly propose as two concurrent but
separate contractors. If the prime/subcontract relationship is pursued, the
Management Committee will also determine (i) which party will take the lead as
the prime contractor and which will perform as a subcontractor and (ii) the
scope of services to be provided by each party should a contract be awarded. The
parties agree to exert commercially reasonable efforts to cause each Designated
Customer to award a contract to the party designated as the prime contractor
(the "Prime") and to accept the party designated as the subcontractor (the
"Subcontractor") or to award separate contracts to each of Xxxxxxxx Consulting
and Click, as applicable.
(b) The Prime shall consult with the Subcontractor but shall (i)
decide, in its reasonable discretion, the final form and content
of the Strategic Alliance's proposal to the Designated Customer
and (ii) retain final control of all post-award activities as
prime contractor, including but not limited to, program
management, technical direction and client liaison.
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(c) The Subcontractor shall (i) timely prepare and submit to the Prime
the substantive content of the Subcontractor's proposal; and (ii)
furnish appropriately qualified personnel, information and
materials as necessary, and shall devote substantial efforts to
assist the Prime in developing and preparing the proposal.
(d) If a contract is awarded to the Prime during the term of this
Agreement, the Prime and Subcontractor shall enter into a
subcontract for such work. The parties' obligations under this
subparagraph are conditioned on the client's approval, if
required, of the Subcontractor's participation as a subcontractor
and of the terms and conditions of the subcontract and agreement
by the parties as to the terms and conditions of the subcontract.
The parties agree that the subcontract shall include, but not be
limited to, the scope of work agreed to by the parties.
4.3 Audit. Not more frequently than once annually, Xxxxxxxx Consulting
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may audit, or engage an independent certified public accountant to audit, the
books and records of Click related to the fees credited to Xxxxxxxx Consulting
under the performance warrant to purchase Click common stock issued to Xxxxxxxx
Consulting by Click on the date hereof (the "Warrant")-. Xxxxxxxx Consulting
shall pay for the cost of such certified public accountant unless the inspection
reveals that Click under reported the fees credited to Xxxxxxxx Consulting by
more than ten percent (10%) of the revenues actually remitted. In such case, the
Click shall pay all reasonable costs of the certified public accountant.
ARTICLE V - LICENSE AND OWNERSHIP OF
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INTELLECTUAL PROPERTY RIGHTS
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5.1 Use of Marks in this Strategic Alliance. Xxxxxxxx Consulting may
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use the Click Marks as agreed by Click prior to such use, and Click may use the
Xxxxxxxx Consulting Marks as agreed by Xxxxxxxx Consulting prior to such use,
and, in each case, only in the manner agreed to by the consenting party. Except
as provided in the prior sentence or as otherwise agreed by the parties, neither
party shall use the other party's trademarks or service marks without the prior
written consent of the other party.
5.2 Use of Click Marks. Subject to the terms and conditions of this
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Agreement, following the consent of Click with regard to Click Marks as
contemplated by Section 5.1 (each a "Click Disclosure Agreement"), Click hereby
grants to Xxxxxxxx Consulting a license to use the Click Marks solely as
provided in the Click Disclosure Agreement in connection with promoting Click's
software, goods and services pursuant to this Agreement. Xxxxxxxx Consulting
agrees to use the Click Marks solely in the form provided to Xxxxxxxx Consulting
by Click, and otherwise in accordance with Section 5.1 hereof and Click's
then-current trademark use policies, as well as any written instructions given
by Click. Xxxxxxxx Consulting recognizes and acknowledges that the Click Marks
represent valuable goodwill and must be used only in connection with goods and
services of the highest quality. Xxxxxxxx Consulting agrees that with regard to
its use of the Click Marks, that it shall not act in any manner which would be
reasonably expected to impair or reduce their value, or use them in connection
with any products
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or services which are or could be inconsistent with the image and goodwill
represented by the Click Marks. Xxxxxxxx Consulting agrees that the Strategic
Alliance's use, or its use of the Click Marks shall inure to the benefit of
Click. Ownership of the Click Marks shall always be held by Click, and Click
shall not at any time challenge, contest or call into question the validity, or
Click's rights in, the Click Marks or any registration thereof. Xxxxxxxx
Consulting agrees that the scope of the foregoing license does not permit
Xxxxxxxx Consulting to use Click's intellectual property other than in
connection with the performance of its responsibilities pursuant to this
Agreement.
5.3 Use of Xxxxxxxx Consulting Xxxx. Subject to the terms and
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conditions of this Agreement, following the consent of Xxxxxxxx Consulting with
regard to Xxxxxxxx Consulting Marks as contemplated by Section 5.1 (the
"Xxxxxxxx Consulting Disclosure Agreement"), Xxxxxxxx Consulting hereby grants
to Click a license to use the Xxxxxxxx Consulting Xxxx solely as provided in the
Xxxxxxxx Consulting Disclosure Agreement, in connection with promoting Xxxxxxxx
Consulting's services pursuant to this Agreement. Click agrees to use the
Xxxxxxxx Consulting Marks solely in the form provided to Click by Xxxxxxxx
Consulting in accordance with Section 5.1 hereof and Xxxxxxxx Consulting's
then-current trademark use policies, as well as any written instructions given
by Xxxxxxxx Consulting as to use of the Xxxxxxxx Consulting Xxxx. Click
recognizes and acknowledges that the Xxxxxxxx Consulting Marks represent
valuable goodwill and must be used only in connection with services of the
highest quality. Click agrees that with regard to its use of the Xxxxxxxx
Consulting Marks, that it shall not act in any manner which would be reasonably
expected to impair or reduce the value of any of the Xxxxxxxx Consulting Xxxx,
or use the Xxxxxxxx Consulting Xxxx in connection with any products or services
which are or could be inconsistent with the image and goodwill represented by
the Xxxxxxxx Consulting Xxxx. Click agrees that the Strategic Alliance's use, or
its use of the Xxxxxxxx Consulting Xxxx shall inure to the benefit of Xxxxxxxx
Consulting. Ownership of the Xxxxxxxx Consulting Marks shall always be held by
Xxxxxxxx Consulting, and Click shall not at any time challenge, contest or call
into question the validity, or Xxxxxxxx Consulting's rights in, the Xxxxxxxx
Consulting Xxxx or any registration thereof. Click agrees that the scope of the
foregoing license does not permit Click to use Xxxxxxxx Consulting's
intellectual property other than in connection with the performance of its
responsibilities pursuant to this Agreement.
5.4 Intellectual Property Rights.
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(a) Each party will retain ownership of any assets or materials they
bring to this Agreement, such as software, designs, methodology
and knowledge capital. Unless otherwise agreed to, the parties
will each directly license their own materials to the Designated
Customer. Intellectual property rights and licenses with respect
to software developed by Xxxxxxxx Consulting for Click in
connection with Click products shall be covered by separate
agreements between the parties and such Designated Customers.
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(b) Notwithstanding anything to the contrary herein, the provisions of
this Section 5.4(b) relate solely to the development of certain
items, including, but not limited to, high level software
interface designs, high level product offering customization
information, documentation, marketing collateral, workplans and
training materials (collectively, "Materials") to be used in
connection with this Strategic Alliance during the joint marketing
and/or the engagement process with prospective clients. Materials
shall not include any items or deliverables developed for or
licensed to a party by the other under a separate contractual
arrangement. As between the parties, the ownership and
intellectual property rights to the Materials will fall into the
following three categories:
(i) Click Developed and Owned: All Materials developed by
Click's personnel and any software and product offering
related items (such as training, documentation and
marketing collateral) upon which Click contributes
materially (financial or otherwise) to the development of
will be considered to be owned by Click. If such Materials
contain Confidential Information of Xxxxxxxx Consulting,
the applicable portions of such Materials will be
designated as such and will be distributed subject to the
terms of a proprietary information agreement agreed to by
Xxxxxxxx Consulting.
(ii) Xxxxxxxx Consulting Developed and Owned: Any Materials
developed by Xxxxxxxx Consulting or a sales prospect with
minimal assistance from Click personnel or minimal
financial contribution by Click will be owned by Xxxxxxxx
Consulting. If such Materials contain Confidential
Information of Click, the applicable portions of such
Materials will be designated as such and will be
distributed subject to the terms of a proprietary
information agreement agreed to by Click.
(iii) Jointly Developed: Ownership rights to Materials jointly
developed by Click and Xxxxxxxx Consulting will be jointly
shared by the parties. Neither party shall have any
obligation to account to the other for its use of any
jointly owned Materials; provided, however, that neither
party shall license or provide access to such jointly
owned Materials to a competitor of either Xxxxxxxx
Consulting or Click, or create an alliance involving any
such jointly owned Materials with such a competitor,
without the prior written agreement of the other party.
(f) The parties will cooperate with each other and execute such other
documents as may be appropriate to achieve the objectives of this
Section. Notwithstanding the above provisions of this Section
regarding ownership, each party shall have a license to use
Materials owned by the other party (as provided for in this
Section) as necessary to fulfill the purposes of this Agreement.
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(g) Subject to each party's confidentiality obligations, each party
reserves the right to use any skills, knowledge or techniques used
or acquired while providing services to or for a prospective
client, provided such skills, knowledge or techniques are not
owned by the other party.
5.5 Limited Marketing License. Subject to the terms and conditions of
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this Agreement, Click hereby grants to the AC Entities a
worldwide, non-exclusive, non-transferable, paid-up license to
market, promote, use, install, copy, reproduce, and display, on an
as-needed basis, Click's software and product offering, and on a
case-by-case basis with the prior consent of Click, to develop
enhancements, modifications, and derivative works of such software
and product offering during the term of this Agreement for the
following purposes: marketing, promoting and demonstrating the
software and product offerings in exhibits, in all present and
future Xxxxxxxx Consulting facilities, and to potential sales
prospects; developing and demonstrating implementation methodology
and application programs utilizing the Click's software and
product offerings; training Xxxxxxxx Consulting personnel; and in
conjunction with providing products and services to clients of
Click and Xxxxxxxx Consulting.
5.6 Licenses for Embedded Software. Click will be solely responsible
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for obtaining any and all rights necessary to allow Xxxxxxxx
Consulting to market, in accordance with this Agreement, any third
party components contained in Click's software and/or product
offering, including responsibility for any administrative or
financial arrangements in relation to such third party components.
5.7 Non-Solicitation of Employees. For the period of this Agreement
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and for one (1) year after any termination or expiration hereof, neither party
shall directly, or indirectly through any other individual, person or entity
owned or controlled by any of them, solicit for employment or employ any
"Employee" of the other party. For purposes of this Section 5.7, "Employee"
shall mean and include all persons employed by a party in relation to the
performance of any services related to this Agreement. However, either party
shall have the right to hire any Employee who, without other solicitation
targeted to such Employee, responds to employment advertising in the newspapers,
trade publications, website or other public commercial media or any unsolicited
walk-in candidates not related to this Agreement. The parties expressly
acknowledge the materiality of this covenant.
ARTICLE VI - TERM AND TERMINATION
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6.1 Initial Term. Unless otherwise terminated as hereinafter set
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forth, this Agreement shall be effective as of the date of execution by both
parties and continue in force for a period of three (3) years to and including
____, 2003 (the "Initial Term").
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6.2 Additional Terms. Unless terminated by either party by written
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notice served thirty (30) days prior to the expiration of the Initial Term or
any additional term, the term of this Agreement will be extended for successive
one year periods.
6.3 Termination Upon Default. If either party defaults at any time in
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the performance of its material obligations hereunder, and such default is not
cured within thirty (30) days after written notice thereof is given to the
defaulting party by the non-defaulting party, the non-defaulting party shall
have the right to terminate this Agreement by giving written notice of
termination to the defaulting party that this Agreement is terminated effective
fifteen (15) days after the date upon which the notice of termination is given.
Notwithstanding the foregoing sentence, either party may terminate this
Agreement immediately upon written notice to the other party in the event such
other party breaches its confidentiality obligations or the intellectual
property licensing provisions of this Agreement.
6.4 Click Change of Control. Upon a Click Change of Control, Xxxxxxxx
-----------------------
Consulting shall have the right to terminate this Agreement by giving written
notice of termination to Click that this Agreement is terminated effective
fifteen (15) days after the date upon which the notice of termination is given.
"Click Change of Control" shall mean the occurrence of any of the following with
regard to Click: (A) the sale, lease, transfer, conveyance, or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of Click to any "person"
or "group" (as such terms are used in Section 13(d) and Section 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or any
successor provisions), (B) the adoption of a plan relating to the liquidation or
dissolution of Click, (C) the consummation of a transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" or "group" (as defined above) becomes the "beneficial owner" (as
defined in Rule 13d-3 and 13d-5 of the Exchange Act), directly or indirectly, of
more of than 35% of the voting power of Click (excluding from the definition of
"person" the individuals or entities owning common stock of Click on the date of
issuance of this Warrant), (D) the consummation of a transaction (including,
without limitation, any merger or consolidation) the result of which is that any
"person" or "group" (as defined above) which is, or includes, an AC Competitor
becomes the "beneficial owner" (as defined in Rule 13d-3 and 13d-5 of the
Exchange Act), directly or indirectly, of more of than 20% of the voting power
of Click (excluding from the definition of "person" the individuals or entities
owning common stock of Click on the date of issuance of this Warrant), or (E)
the first date on which a majority of the members of the Board of Directors of
Click are not "Continuing Directors". "Continuing Directors" means, as of the
date of determination, any member of the Board of Directors of Click who (x) was
a member of the Board of Directors on the date prior to the transaction or
series of transactions resulting in the Click Change of Control or (y) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election. Click shall provide prompt
written notice to Xxxxxxxx Consulting of any Click Change of Control.
13
6.5 Insolvency. Either party shall have the right to terminate this
----------
Agreement in the event of the insolvency of the other party.
6.6 Effect of Termination.
---------------------
(a) Upon termination or expiration of this Agreement, each party shall
(1) promptly return to the other party or dispose of as mutually
agreed, all advertising materials and other properties, including
all confidential materials, furnished to it by the other party
pursuant to this Agreement, (2) immediately cease holding itself
out, in any manner, as affiliated with the other party, except as
may be provided in any surviving separate agreement, and (3)
discontinue any and all use of trade names and/or trademarks as
provided for under this Agreement, except as necessary for either
party to fulfill its obligations to a Designated Customers and
under proposals issued to sales prospects.
(b) Termination or expiration of this Agreement shall not result in a
diminution or modification of obligations of either party to
provide ongoing services to a client or with respect to the
parties' obligations, if any, relating to any proposals issued
prior to such termination or expiration. Each party may continue
to exercise the rights and licenses granted hereunder to the
extent necessary to allow such party to fulfill its obligations
under agreements with clients or included in any proposal to a
sales prospect that was outstanding at the time of termination or
expiration. Xxxxxxxx Consulting specifically shall retain the
right to use the Click's software and/or product offerings for as
long as necessary to meet any obligations or services that
Xxxxxxxx Consulting has undertaken. Xxxxxxxx Consulting shall also
continue to have the right to use and access Click's software
and/or product offerings to allow Xxxxxxxx Consulting to fulfill
its obligations to sales prospects to whom a proposal has been
submitted or to clients to whom Click's software and/or product
offerings has been implemented. Solely in support of the
foregoing, Click agrees to provide Xxxxxxxx Consulting with
continued access to Click's software and product offerings
(including source code and documentation) to enable Xxxxxxxx
Consulting to meet its obligations to sales prospects and/or to
clients.
(c) In the event of a termination of this Agreement by Xxxxxxxx
Consulting pursuant to Section 6.3, Xxxxxxxx Consulting shall
have no obligation to pay any amount otherwise required to be paid
as a result of Xxxxxxxx Consulting failing to satisfy the revenue
generation requirements provided for in the Warrant.
ARTICLE VIII-COMPLIANCE WITH LAWS AND REGULATIONS
-------------------------------------------------
Both parties agree to comply with all United States laws and
regulations regarding export licenses or the control or regulation of
exportation or re-exportation of materials supplied to each other hereunder.
Both Xxxxxxxx Consulting and Click further agree to take the required steps
14
necessary to satisfy any laws or requirements to declare, file, record or
otherwise render this Agreement valid. Both parties agree not to use all or any
portion of any compensation received hereunder to make or offer a direct or
indirect payment or gift to any employee, officer or representative of any
government or government agency or other instrumentality under circumstances
where the payment or gift would constitute an illegal payment under the laws of
any applicable jurisdiction.
ARTICLE IX - WARRANTIES/INDEMNIFICATION/LIABILITY
--------------------------------------------------
9.1 Warranties.
----------
(a) EXCEPT AS PROVIDED IN PARAGRAPH (b) BELOW, EACH PARTY ACCEPTS THE
OTHER PARTY'S MATERIAL UNDER THIS AGREEMENT "AS IS". NEITHER PARTY
EXTENDS ANY WARRANTIES TO THE OTHER REGARDING THE MATERIAL,
EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
(b) Each party represents and warrants that:
i) the execution, delivery and performance by it of this
Agreement is within its powers and has been duly authorized
by all necessary action on its part;
ii) this Agreement constitutes a legal, valid and binding
agreement enforceable against it in accordance with its
terms;
iii) the execution, delivery and performance of this Agreement by
such party will not be in violation of any applicable law or
governmental regulation (including, but not limited to, any
applicable immigration laws);
iv) the execution, delivery and performance of this Agreement
does not and will not contravene or conflict with,
constitute a default under, or give rise to any right of
termination, loss of benefit or other adverse action under
any agreement to which it is a party.
9.2 Indemnification.
---------------
(a) Click agrees to indemnify and hold harmless the AC Entities, and
their respective officers, directors, employees, partners,
principles and agents, and Xxxxxxxx Consulting agrees to indemnify
and hold harmless Click, and its officers, directors, employees,
partners, principles and agents, from and against any and all
amounts payable under any judgment, verdict, court order or
settlement payable to third parties (other than affiliates of the
indemnified party) for death or bodily injury or the damage to or
loss or destruction of any tangible personal property to the
extent arising out of the negligence in the performance of this
Agreement of the indemnifying party.
15
(b) Click agrees to defend, indemnify and hold harmless the AC
Entities, and their respective officers, directors, employees,
partners, principles and agents, from any and all liabilities,
damages, costs and expenses, including reasonable attorneys' fees,
incurred as a result of any claim asserted by a third party (other
than affiliates of Click) that any of the Click software or
product offerings, or any enhancement, update, modification or
addition to any Click software or product offering created or
otherwise provided by Click to AC Entities or a Designated
Customer hereunder or any of Click's services provided to a
Designated Customer infringe any copyright, United States
trademark, or any trade secret. Click agrees to promptly notify
Xxxxxxxx Consulting of any claims of infringement against Click's
services, software or product offerings that may be relevant to
past or future Xxxxxxxx Consulting engagements or Xxxxxxxx
Consulting's marketing activities related to Click products or
services of which the executive of Click appointed pursuant to
Section 2.1 has knowledge.
(c) Xxxxxxxx Consulting agrees to defend, indemnify and hold harmless
Click, and its officers, directors, employees, partners,
principles and agents, from any and all liabilities, damages,
costs and expenses, including reasonable attorneys' fees, incurred
as a result of any claim asserted by a third party (other than
affiliates of Xxxxxxxx Consulting) that any of Xxxxxxxx
Consulting's services to a Designated Customer infringe any
copyright, United States trademark or any trade secret. Xxxxxxxx
Consulting agrees to promptly notify Click of its knowledge of any
claims of infringement against Xxxxxxxx Consulting as a result of
Xxxxxxxx Consulting integrating or implementing Click's products
or software and which may be relevant to past or future Click
engagements of which the executive of Xxxxxxxx Consulting
appointed to pursuant Section 2.1 has knowledge.
(d) If any action, suit, proceeding or investigation is commenced, the
indemnified party shall notify the indemnifying party with
reasonable promptness in writing, including therewith copies of
any papers served; provided, however, that any failure by
indemnified party to notify the indemnifying party shall not
relieve the indemnifying party from its obligations hereunder
unless the indemnifying party has been materially prejudiced by
such delay. Upon receiving any such notification, the indemnifying
party may elect to assume the defense of any such action, suit,
proceeding or investigation. In the event the indemnifying party
fails to assume the defense of any indemnification claim, then
indemnified party shall have the right to retain counsel of its
own choice to represent it, and the indemnifying party shall pay
the reasonable fees, expenses and disbursement of such counsel,
and such counsel shall, to the extent consistent with its
professional responsibilities, cooperate with the indemnifying
party and any counsel designated by the indemnifying party. The
indemnifying party shall be liable for any settlement of any claim
against indemnified party made with the indemnifying party's
written consent, which consent shall not be unreasonably withheld
or delayed. The indemnifying party shall not, without the prior
written
16
consent of indemnified party (which consent shall not be
unreasonably withheld or delayed), settle or compromise any
claim, or permit a default or consent to the entry of any
judgment in respect thereof, unless such settlement, compromise
or consent includes, as an unconditional term thereof, the giving
by the claimant to indemnified party of an unconditional and
irrevocable release from any liability in respect of any such
claim (except for claims to the extent they resulted from any
gross negligence or willful misconduct of indemnified party).
9.3 Limitation of Liability.
-----------------------
(a) Except as provided in Section 9.2, each party's entire liability
to the other party, and such other party's sole and exclusive
remedy for damages concerning performance or nonperformance by a
party under or in relation to this Agreement shall be limited to
the payment by a party of actual damages of the other party not
to exceed $100,000.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
ANY CLAIM BASED UPON ANY THIRD PARTY CLAIM OR FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION LOSS OF USE, TIME OR DATA, INCONVENIENCE, COMMERCIAL
LOSS, LOST PROFITS OR SAVINGS) TO THE FULL EXTENT SUCH MAY BE
DISCLAIMED BY LAW EVEN IF CLICK OR XXXXXXXX CONSULTING HAS BEEN
APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. No action,
regardless of form, arising out of this Agreement may be brought
by either party more than one (1) year after the cause of action
has accrued.
ARTICLE X - PROPRIETARY AND CONFIDENTIAL INFORMATION
----------------------------------------------------
10.1 During the term of this Agreement, either party may receive
information that the other party regards as confidential and proprietary. The
parties agree that all information which is clearly marked to indicate its
confidential and proprietary status or which is reasonably discernible as the
confidential information of the other party, if disclosed by one party to the
other in written, graphic, recorded, photographic or any machine readable form,
or disclosed orally and reduced to writing within thirty (30) days after
disclosure, shall be considered "Confidential Information" and shall be subject
to the provisions of this Article X.
10.2 A party receiving Confidential Information (the "Receiving
Party") shall hold such information in strict confidence and shall not use,
disclose or duplicate such information except for the purpose of, and to the
extent required for, its performance under this Agreement. The Receiving Party
shall permit access to Confidential Information only to its and its affiliates'
partners, principals, directors, officers, employees, attorneys and auditors
having a need to know such information in order to perform fully this Agreement.
The Receiving Party shall ensure that such individuals are informed of the
confidential and proprietary status of such information and
17
of the restrictions on its use, disclosure and duplication contained in this
Agreement. In no event shall the Receiving Party utilize less than the same
degree of care with respect to the other party's Confidential Information as the
Receiving Party normally utilizes to safeguard and protect its own confidential
and proprietary information, or, in the event that such care is less than a
reasonable degree of care, no less than a reasonable degree of care.
10.3 The restrictions in this Article X shall not apply:
(a) If the Confidential Information is or becomes publicly
available without breach of this Agreement;
(b) If the Confidential Information is already known to the
Receiving Party at the date of disclosure as shown by the
Receiving Party's files and records, or it is rightfully
obtained by the Receiving Party from a third party without
restriction, or is independently developed by the Receiving
Party without reliance thereon;
(c) If the Disclosing Party has previously provided the
Confidential Information to any third party (including client
agencies or bureaus) without restriction; or
(d) To information independently developed by the Receiving Party
without use of the Confidential Information.
10.4 If the Receiving Party receives a subpoena, court order or
other legal process with respect to the Disclosing Party's Confidential
Information, the Receiving Party shall provide prompt notice to the Disclosing
Party and shall thereafter be entitled to comply with such subpoena, court order
or other legal process; provided, however, that the Receiving Party, if
requested by the Disclosing Party, at the Disclosing Party's own expense, shall
take, or allow the Disclosing Party to take, all reasonable legal steps to
oppose such disclosure. Click may disclose its business relationship with
Xxxxxxxx Consulting, this Agreement, the Warrant and any other agreements
between the parties only to the extent appropriate or required under applicable
securities laws and regulations, provided that Click will use its reasonable
efforts to give Xxxxxxxx Consulting as much prior written notice of such
disclosure as possible and, to the extent permitted by applicable law or
regulations, Click shall use commercially reasonable efforts to summarize and/or
redact any terms of such business relationship and contracts that are deemed
confidential by Xxxxxxxx Consulting. Subject to the reasonable approval of
Click's legal counsel, Click will allow Xxxxxxxx Consulting to participate in
and to assist Click in preparing any documentation necessary to summarize and/or
redact such confidential information from securities filings.
10.5 Nothing in this Agreement shall prohibit or restrict either
party's right to develop, use, or market products and services similar to the
Confidential Information of the other party as long as (a) the Receiving Party
shall not thereby breach this Agreement, and (b) such products and services are
independently developed by the Receiving Party without reliance the Disclosing
Party's Confidential Information.
18
10.6 Each party shall notify the other (a) immediately upon learning
of any unauthorized use, disclosure or duplication of Confidential Information
or (b) before using any Confidential Information without restriction in reliance
on the foregoing. Except as otherwise expressly set forth herein, no license or
other right or property interest under trademark, patent, copyright or other
legal theory is granted, transferred or implied with respect to Confidential
Information furnished by one party to the other pursuant to this Agreement.
10.7 Each party represents and warrants to the other that its
disclosure of any information pursuant to this Agreement shall not constitute an
infringement of any trade secret, trademark, patent, copyright or other
proprietary right of any third party and that it has all necessary and
appropriate legal rights to make such disclosures. Each party acknowledges that
the other party will suffer irreparable injury as a result of any misuse,
disclosure or duplication of its Confidential Information by the other party in
violation of the provisions of this Article X. Accordingly, either party shall
be entitled in such event to seek a preliminary and final injunctive relief
without a requirement to post bond in addition to any other applicable remedies,
including the recovery of damages.
10.8 Upon termination or expiration of this Agreement for any reason,
each party shall, at the option of the other party, immediately return to the
other party or destroy, and certify to the other party the destruction of all
Confidential Information and other documents, materials and properties of the
other party, together with any copies thereof or notes thereon held by each for
the purpose of performing this Agreement. Xxxxxxxx Consulting and Click may
retain, subject to the terms of this Section, copies of the other party's
Confidential Information required for compliance with its recordkeeping or
quality assurance requirements.
10.9 In the event a party receives a Request for Proposal ("RFP") or
other information from a sales prospect, and such information is disclosed to
the other party to this Agreement, then such RFP and other information will be
considered Confidential Information. The parties agree not to disclose such RFP
and other information to anyone other than their employees who have a need to
know such information for the purposes of this Agreement without the prior
written permission of the disclosing party.
10.10 Except as (a) necessary to fulfill its obligations in relation to
the activities contemplated by this Agreement or (b) provided in Section 10.4
hereof, the parties shall keep the terms of this Agreement confidential.
ARTICLE XI - MISCELLANEOUS
--------------------------
11.1 Amendment. Except as expressly provided herein, neither this
---------
Agreement nor any term hereof may be amended, waived, modified, supplemental,
discharged or terminated other than by a written instrument signed by or on
behalf of all parties to this Agreement.
19
11.2 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the internal substantive laws of the State of Illinois,
without giving effect to principles of conflict of law.
11.3 Notices. All notices, requests and demands, authorizations,
-------
approvals and other communications permitted or required to be given under the
provisions of this Agreement shall be in writing and shall be deemed to have
been given if delivered by hand or sent by, recognized overnight courier
service, certified or registered mail, postage prepaid, return receipt
requested, addressed as follows:
If to Xxxxxxxx Consulting, to: Xxxxxxxx Consulting, LLP
Xxxxx 0000
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxx X. Xxxxxx
Fax: 000-000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to Click, to: Click Commerce, Inc.
Suite 4900
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Fax: (000) 000-0000
Any party to this Agreement may, by notice given in accordance with the
provisions of this Section, designate a new person or address for notices and
other communications to such party. A notice of communication shall be deemed to
have been given as of (i) the date of delivery if hand delivered, (ii) the next
business day after delivery to a recognized overnight courier service if sent by
courier service, or (iii) three (3) business days after the date when placed in
the U.S. Mail, addressed and mailed as provided herein.
11.4 Publicity/Press Releases. Neither party may publicly announce
------------------------
this Agreement and the relationship this Agreement has established between
Xxxxxxxx Consulting and Click without the mutual written consent of the parties,
which shall not be unreasonably withheld. The parties intend to issue a mutually
agreed upon joint press release describing the nature of the
20
agreement and announcing the alliance between the parties. Both parties must
approve, in writing, the press release prior to its release.
11.5 Entire Agreement. This Agreement, together with the Exhibits
----------------
hereto, and, with respect to the matters not specifically covered hereunder,
that certain letter agreement between the parties, dated March 24, 2000,
together constitute the full and entire agreement and understanding among the
parties hereto in respect of the subject matter of this Agreement and such
letter agreement and supersede all prior and contemporaneous agreements and
understandings among the parties hereto in connection with such subject matter.
The terms of this Agreement shall not be contradicted, varied, supplemented or
modified by any course of dealing or course of performance between the parties,
trade practices, evidence of prior, contemporaneous or subsequent oral
agreements or discussions between the parties, or other extrinsic evidence of
any nature. No party shall be liable or bound to any other party in any matter
by any warranties, representations or covenants except as specifically set forth
herein.
11.6 Captions. The captions contained in this Agreement are included
--------
only for convenience of reference and do not define, limit, explain or modify
this Agreement or its interpretation, instruction or meaning and are in no way
to be construed as a part of this Agreement.
11.7 Waiver. Any waiver by any party of a breach of any provisions of
------
this Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of any party to insist upon strict adherence to any term
of this Agreement on one or more occasions shall not be construed as a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
the term or any other term of this Agreement.
11.8 Severability. If any of this Agreement shall be determined to be
------------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons and
circumstances. It is the intention of each party to this Agreement that if any
provisions of this Agreement is susceptible to two or more constructions, one of
which would render the provision enforceable and the other or others which would
render the provision unenforceable, then the provision shall have the meaning
which renders it enforceable.
11.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.10 Assignment. No party to this Agreement may sell, assign,
----------
transfer, pledge, hypothecate or otherwise convey any of its rights, or delegate
any of its duties, under this Agreement without the prior written consent of the
other parties hereto, other than by operation of law. Such consent shall not be
unreasonably withheld. Any attempted sale, assignment,
21
transfer conveyance, or delegation in violation of this Section shall be void
and shall not relieve the party attempting to make such assignment of any
liability hereunder; provided, however, that, subject to Xxxxxxxx Consulting's
right to terminate this Agreement following a Click Change of Control, nothing
contained in this Section 11.10 (or in Section 11.11 below), shall preclude or
otherwise restrict either party from selling equity or assets of its business to
a third party. Notwithstanding the foregoing, Xxxxxxxx Consulting shall have the
right to cause this Agreement to be performed, in whole or in part, by an AC
Affiliate.
11.11 Successors and Assigns. All of the terms and provisions of this
----------------------
Agreement by or for the benefit of the parties hereto shall be binding upon and
inure to the benefit of their respective successors, permitted assigns, heirs
and personal representatives (including successive, as well as immediate
successors, assigns, heirs and personal representatives).
11.12 No Third Party Beneficiaries. This Agreement is made for the sole
----------------------------
benefit of the parties hereto and their respective successors, permitted
assigns, heirs and personal representatives and no other person or entity is
intended to or shall have any rights hereunder, whether as a third party
beneficiary by assignment under operation of law or otherwise.
11.13 Insurance. During the term of this Agreement each party shall
---------
maintain insurance coverage of a kind and in an amount that is commercially
reasonable and shall provide to the other party upon request certificates of
insurance coverage and shall promptly notify the other party of the cancellation
of any insurance policy maintained pursuant to this paragraph.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and date first written above.
XXXXXXXX CONSULTING, LLP CLICK COMMERCE, INC.
By: ________________________________ By: ________________________________
Title: _____________________________ Title: _____________________________
22
