Exhibit 10.28
MARKETING AGREEMENT
This Marketing Agreement is entered into as of December 6, 1999 (EFFECTIVE
DATE) by and between Prime Response, Inc., a Delaware corporation (PR) and
Xxxxxxxx Consulting LLP, an Illinois partnership (XXXXXXXX CONSULTING)
Background
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PR develops, manufactures and sells multi-channel marketing automation software
products for the customer relationship management (CRM) market; Xxxxxxxx
Consulting provides consulting services, including third party software
developer and Business Integration Services, to clients; and PR and Xxxxxxxx
Consulting desire to enter into an agreement granting Xxxxxxxx Consulting the
right to market the Products (as defined below).
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, PR and Xxxxxxxx Consulting agree
as follows:
1. DEFINITIONS.
Capitalized terms used in this Agreement and not otherwise defined herein
shall have the meaning set forth below.
AFFILIATE means with respect to either party, any Person that, directly or
indirectly, is controlled by, controls or is under common control with such
party and, with respect to Xxxxxxxx Consulting, Proquire LLC. For purposes of
this Agreement, CONTROL means, with respect to any Person, the direct or
indirect ownership of more than fifty percent (50%) of the voting or income
interest in such Person or the possession otherwise, directly or indirectly, of
the power to direct the management or policies of such Person.
BUSINESS INTEGRATION SERVICES shall include, but not be limited to, the
provision by Xxxxxxxx Consulting or an Affiliate of systems design and
development and implementation of modifications, extensions and interfaces to a
software system, modifications to current applications, identification of
operational strategies and business changes required to take advantage of a
software product, integration, implementation and conversion assistance, and
organization design and conversion training, and as a general matter may include
strategic systems planning, productivity improvement/work simplification,
systems design, change management and training, and systems management and
outsourcing.
CLIENT means those third parties and all subsidiaries or affiliates of
those third parties which have licensed or purchased the Products or that may
license or purchase the Products.
CONFIDENTIAL INFORMATION means all data, specifications, training and any
other know-how related to the design, implementation, performance or manufacture
of the Products, as well as all other information and data provided by either
party to the other party pursuant to this Agreement in written or other tangible
medium and marked as confidential, or if disclosed orally or displayed,
confirmed in writing at the time of disclosure, except any portion thereof
which: (i) is known to the receiving party, as evidenced by the receiving
party's written records, before receipt from the disclosing party; (ii) is
disclosed to the receiving party by a third person who is under no obligation of
confidentiality to the
disclosing party hereunder with respect to such information and who otherwise
has a right to make such disclosure; (iii) is or becomes generally known in the
trade through no fault of the receiving party; (iv) is independently developed
by the receiving party, as evidenced by the receiving party's written records,
without access to such information; or (v) is the subject of a subpoena or other
validly issued administrative or judicial process requesting disclosure of such
Confidential Information; provided, the party that receives such order or
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process provide prompt notice to the disclosing party and permits the disclosing
party to contest or narrow such request for disclosure and thereafter complies
with such subpoena or other process.
LIST PRICE means PR's standard published list prices for the Products, as
in effect from time to time.
FORCE MAJEURE means any event beyond the control of the parties, including,
without limitation, failures of computers, computer-related equipment, hardware
or software, fire, flood, riots, strikes, epidemics, war (declared or undeclared
and including the continuance, expansion or new outbreak of any war or conflict
now in existence), embargoes and governmental actions or decrees.
IMPROVEMENTS means any additions, developments, enhancements,
modifications, new versions, updates and other changes in the Products,
including but not limited to any derivatives for any Product(s) and any new
designs for the Product(s) delivered by PR to Xxxxxxxx Consulting hereunder.
PERSON means any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company,
limited liability partnership, unincorporated organization, government (or any
agency or political subdivision thereof) or other legal entity or organization.
PRODUCTS means the object code (machine readable format); version of and
the user documentation regarding PR's multi-channel customer relationship
management software products marketed under the name "Prime@Vantage" and
"Xxxxx@Xxxxxxx.xxx," as further described in Attachment A, together with any
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Improvements and any related Third Party Products that are incorporated into the
Product.
PRODUCT SPECIFICATIONS means the specifications for the Product set forth
in Attachment A, as such specifications may be modified from time to time to
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reflect Improvements (if any) as notified by PR to Xxxxxxxx Consulting.
RESELL means that Xxxxxxxx Consulting shall purchase copies of a Product
from PR (at a price that is discounted in accordance with Section 4.1(b)) and
distribute such Products in their original form to a Client at a price to be
negotiated by Xxxxxxxx Consulting and the Client, provided that Xxxxxxxx
Consulting shall have no right to use, copy or sublicense such Products and the
Client shall be required to enter into a separate license agreement with PR
governing any use of such Product.
THIRD PARTY PRODUCT(S) means the object code version of any software, which
is proprietary to a third party and embedded in the Products.
TRADEMARKS means (i) the trademarks described on Attachment C, and (ii)
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any other trademarks, as may be agreed upon in writing from time to time by the
parties for use by
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Xxxxxxxx Consulting in connection with the promotion, marketing and sale of the
Products in accordance with the terms hereof.
OTHER DEFINED TERMS. Each of the following terms have the meanings
ascribed to it in the section set forth opposite such term:
XXXXXXXX CONSULTING Recitals
AGREEMENT Recitals
ASC Section 2.2
CRM Recitals
EAI Section 2.1
EFFECTIVE DATE Recitals
INDEMNIFYING PARTY Section 9.3
Indemnitees Section 9.3
LOSSES Section 9.2
PERSONNEL Section 11.18
PLAN Section 2.2
PRODUCT INFORMATION Section 7.1
PRODUCT REVENUE Section 4.1(c)
PROJECT WORK Section 5.3
PROSPECT REGISTRATION FORM Section 2.3
PR Recitals
REGISTERED PROSPECT Section 2.3
RFP Section 5.2
THIRD PARTY DEVELOPMENT FIRM Section 5.4
WORK PRODUCT Section 5.3
Y2K COMPLIANT Section 8.3
2. MARKETING ARRANGEMENT.
2.1 APPOINTMENT. (a) Subject to the terms of this Agreement, PR
hereby appoints Xxxxxxxx Consulting as PR's non-exclusive reseller for the
promotion, sale and delivery of the Products to customers. Xxxxxxxx Consulting
hereby accepts the appointment as non-exclusive reseller.
(b) Subject to the terms set forth in this Agreement, PR will also
designate Xxxxxxxx Consulting as a "Preferred" Business Integration Services
provider for the Products and will provide Xxxxxxxx Consulting with the
opportunity to participate in certain joint marketing activities and Client
proposal opportunities described herein. Subject to the terms of this
Agreement, Xxxxxxxx Consulting may recommend PR as a preferred Enterprise
Application Integration (EAI) technology for its offerings that embody CRM
functionality.
(c) It is understood and agreed that each of Xxxxxxxx Consulting and
PR reserves the right to continue to recommend the most appropriate available
solution for their client(s). As a result, each party recognizes situations
will arise among target clients where they shall mutually determine it is not
beneficial to pursue an opportunity together. It is further understood and
agreed that: (i) Xxxxxxxx Consulting may market and demonstrate other software
solutions to its clients, and if a Client selects an alternative or competing
solution, Xxxxxxxx Consulting will not be restricted from installing or
implementing such alternative or competing solution; (ii) nothing in this
Agreement shall restrict Xxxxxxxx Consulting or its Affiliates from developing,
marketing or installing competing software or entering into arrangements with
any third party; and (iii) neither party makes any commitment that a minimum
number of sales or licenses of the Products will be effected or
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a minimum amount of total revenue will be generated by either party as a result
of this Agreement.
(d) Neither party shall have the right to make commitments of any kind for
or on behalf of the other party without the prior written consent of the other
party, in each and every case. Except as set forth herein, each party will be
responsible for its own costs associated with any marketing activities performed
pursuant to this Agreement.
2.2 MARKET DEVELOPMENT STRATEGY; ALLIANCE STEERING COMMITTEE. (a)
The parties will work together to create a joint marketing and business
development plan (PLAN)each year, which Plan shall be completed and approved by
the parties at least thirty (30) business days prior to the end of each such
year. Each party will use commercially reasonable efforts to implement such
Plan.
(b) An Alliance Steering Committee (ASC) shall be responsible for
quarterly review and oversight of the Plan. The ASC shall consist of four
members, two members to be appointed by each of Xxxxxxxx Consulting and PR.
Each party may with notice to the other substitute any of its members serving on
the ASC. The initial PR members shall be Xxxxx Xxxxxxx and Xxxxxxx X'Xxxxxxx
and the initial Xxxxxxxx Consulting members shall be Xxxxxxx X'Xxxxxxxx and
Xxxxxxx Xxxxx.
(c) The ASC shall be responsible for the development management and
execution of the Plan and shall in particular: (i) consider, review and amend
the Plan from time to time in such manner as may be appropriate; (ii) monitor
progress of the Plan; and (iii) report regularly to the management of both
parties upon the progress of the Plan.
(d) The ASC shall hold formal meetings quarterly or at any time upon the
reasonable request of either party during the term of the agreement. Unless
otherwise agreed by the parties all meetings of the ASC shall be held in Chicago
and in Boston on an alternating basis, with the first meeting to be held in
Paris on or around November 17, 1999. Meetings shall be scheduled with at least
twenty-one (21) business days notice; the party that seeks to convene a
particular meeting shall be responsible for the meeting notice and scheduling;
provided, that the hosting party shall be responsible for notice and scheduling
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of the quarterly meetings. The quorum for ASC meetings shall be two, provided
there are at least one member from each of Xxxxxxxx Consulting and PR present.
The ASC will act by vote of a majority of those present at any meeting, but at
least one member from each party will be required to take any action.
2.3 JOINT MARKETING EFFORTS. (a) Subject to the provisions of this
Agreement, Xxxxxxxx Consulting and PR will jointly work together to create a
mutual understanding of opportunities which are of priority interest and assist
each party in focusing their marketing efforts. The parties shall also work to
identify target Clients and develop proposals for potential Clients to propose a
solution encompassing PR's Products and Xxxxxxxx Consulting's professional
services.
(b) For each Client opportunity that either party is aware of, such
party will notify the other party and the parties shall use reasonable efforts
to mutually agree upon and execute a PROSPECT REGISTRATION FORM in the form of
Attachment B, with such changes as the parties may mutually agree upon. The
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Prospect Registration Form the parties will (i)describe the Client (each a
REGISTERED PROSPECT), (ii) the project, (ii) the specific roles each party will
play in obtaining such Client and performing such project, and (iv) the
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applicable Prospect resale/marketing assistance fee Percentage (determined in
accordance with Section 4.1).
(c) If a party does not respond to the other party's submission of a
Prospect Registration Form within five (5) business days, then such non-
responding party will be deemed to have agreed to the Prospect Registration
Form. For each Registered Prospect, as mutually agreed by the parties PR shall:
(i) authorize Xxxxxxxx Consulting to Resell such Products to the Registered
Prospect; or (ii) provide its Products directly to the Registered Prospect on
PR's standard licensing terms and conditions and, if the Registered Prospect
licenses the Product, remit to Xxxxxxxx Consulting a marketing assistance fee in
accordance with Section 4.1. In cases where Xxxxxxxx Consulting does not elect
to Resell Products to a Registered Prospect, Xxxxxxxx Consulting shall be
entitled to receive a marketing assistance fee in respect of such Registered
Prospect if Xxxxxxxx Consulting participates, to the extent provided in the
applicable Prospect Registration Form, in the sale to such Registered Prospect
if the Registered Prospect licenses the Product. Participation in a sale may
include: (1) introducing PR to contacts at the Registered Prospect having the
authority to make purchasing decisions; (2) performing software demonstrations
of the Product for the Registered prospect; and (3) making a formal, written
recommendation to the Registered Prospect which details, with a high degree of
specificity, ways in which Products can be used by the Registered Prospect.
Xxxxxxxx Consulting shall be entitled to Resell or receive a marketing
assistance fee as described in Section 2.3(c)(i)-(ii) for the duration of the
project described in the applicable Prospect Registration Form.
(d) PR and Xxxxxxxx Consulting will address the specifics of each
client opportunity on a case-by-case basis. These arrangements shall specify
the scope, roles and responsibilities, staffing, and other terms for the
engagement. In general, the parties contemplate PR providing Products and
Xxxxxxxx Consulting providing its Business Integration Services to Clients,
under separate agreements with the Client. In the event that Xxxxxxxx
Consulting requires professional services from PR that are directed or
customized to the needs of a particular Client, the parties will use reasonable
efforts to enter into a subcontractor services agreement containing mutually
acceptable terms.
(e) Unless the parties mutually agree otherwise in writing, in the
event that a Registered Prospect requires that PR Products and Business
Integration Services be delivered under a single contract as a condition of
awarding the contract, Xxxxxxxx Consulting will be the prime contractor and PR
would provide subcontracted services pursuant to the subcontractor agreement
described above. In such event the parties will operate as independent
contractors in providing such services to such Client.
(f) In accordance with Sections 6.1 and 7.1, each party will appoint
one or more business development personnel who will be responsible for the
exchange of information with the other party and for coordinating the
development of jointly pursued leads.
(g) Except as set forth herein, each party will be responsible for its
own costs and expenses associated with activities under this Agreement, such as
any cost or expenses related to marketing to any Registered Prospects.
3. RESELLER PRODUCT ORDERS; MARKETING ASSISTANCE PRODUCT ORDERS
3.1 PRODUCT ORDERS. In the event that Xxxxxxxx Consulting Resells PR
Products to a Registered Prospect, Proquire LLC or Xxxxxxxx Consulting shall
place an order for Products by mail or facsimile, or by other means agreed upon
by the parties. No order shall be binding upon PR until the same shall have
been accepted by PR. PR shall use
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reasonable efforts to accept or reject all orders within ten (10) business days
following receipt of same and shall use reasonable efforts to deliver all orders
that are accepted by a mutually agreed upon delivery date. PR may reject any
order that does not comply with the provisions of this Agreement by providing to
Xxxxxxxx Consulting, a written notice specifying the noncompliance. In case of
conflict between the standard printed terms of purchase/sale of Xxxxxxxx
Consulting and PR, the former shall prevail, but in no event shall either
party's standard terms override any provisions of this Agreement. When
allocating production with respect to filling orders for Products, PR shall use
reasonable efforts to ensure that Xxxxxxxx Consulting orders are accepted and
filled in a manner that is in all material respects the same as or superior to
the priority and fill rate PR applies to Products ordered by third parties or
PR's own sales organization.
3.2 CHANGED ORDERS. In the event that Xxxxxxxx Consulting cancels,
reschedules or otherwise changes a purchase order less than five (5) days in
advance of the scheduled delivery date, Xxxxxxxx Consulting shall pay to PR a
cancellation fee equal to ten percent (10%) of the price of the Products that
are the subject of such cancellation.
3.3 OBLIGATION TO SUPPLY. PR shall use reasonable efforts to accept
and fill each order for Products submitted by Xxxxxxxx Consulting. Without
limiting the generality of the foregoing, it is expressly understood PR shall
not be in breach of this Section 3.3 if PR's failure to supply Products is due
to a Force Majeure event.
3.4 PRODUCT PRICES; SHIPPING. (a) Prices for the Products shall be as
described in Section 4.1, exclusive of shipping charges and other costs which
shall be imposed on Xxxxxxxx Consulting pursuant to Section 3.4(b). At all times
during the term of this Agreement, Xxxxxxxx Consulting's price for the Products
shall be at least as favorable as the pricing PR is then offering to any third
party with similar volumes and terms. In the event that PR reduces its prices on
any Products ordered by Xxxxxxxx Consulting but which have not yet been shipped
to Xxxxxxxx Consulting, then all Xxxxxxxx Consulting orders that have been
accepted by PR shall be invoiced at a price that reflects the reduction in PR's
price .
(b) PR shall arrange for shipment and invoicing to Xxxxxxxx Consulting of
the Products ordered by Xxxxxxxx Consulting or its Affiliates via common
carrier, FCA PR's loading dock (as defined in Incoterms).
3.5. ACCEPTANCE. (a) Xxxxxxxx Consulting shall notify PR within five
(5) business days of the receipt of a shipment of the Product of any apparent
non-conformity of the Product to the Product Specifications. PR's obligations
under Section 9.2 shall survive acceptance of the Product by Xxxxxxxx
Consulting.
(b) PR shall at its expense and at no further cost to Xxxxxxxx Consulting
replace any Products that do not conform to the Product Specifications. All
defective units of the Product shall be returned to PR using the procedure
specified in this Section 3.5(b). Xxxxxxxx Consulting shall notify PR in
writing of its rejection of Product under Section 3.5(a), shall request a Return
Material Authorization (RMA) number and shall within five (5) business days of
receipt of such RMA number return such rejected Product to PR freight prepaid
and properly insured, along with a reasonably detailed statement of the claimed
defect and proof of date of purchase. In the event PR determines that the
returned Product is defective and properly rejected by Xxxxxxxx Consulting, PR
shall replace such defective Product. PR shall return to Xxxxxxxx Consulting
within three (3) business days following receipt of the defective Products,
freight prepaid, all replaced Products properly rejected,
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along with reimbursement of the shipment charges for return of the nonconforming
Product. In the event that any rejected Product is determined by PR to not be
defective, Xxxxxxxx Consulting shall reimburse PR for all costs and expenses
related to the inspection, repair, if any, and return of such Product to
Xxxxxxxx Consulting.
3.6. NON-RESELLER SALES. In the event that Xxxxxxxx Consulting does
not Resell PR Products to a Registered Prospect, the provisions of Sections 3.1-
3.5 shall not apply to such transaction as between Xxxxxxxx Consulting and PR.
Instead, Xxxxxxxx Consulting shall place PR in contact with the Registered
Prospect and PR shall negotiate directly with the Registered Prospect concerning
the license of the Products to such Registered Prospect.
4. RESALE DISCOUNTS; MARKETING ASSISTANCE COMPENSATION.
4.1 REVENUE SHARING RATES. (a) Until the earlier of (i) the first
anniversary of the Effective Date or (ii) the licensing of Products to five (5)
Registered Prospects pursuant to this Agreement, PR will provide Xxxxxxxx
Consulting with Products for Resale to Registered Prospects at a price equal to
one-half (50%) of the List Price or pay Xxxxxxxx Consulting a marketing
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assistance fee (if Xxxxxxxx Consulting elects to have PR sell such Products
directly to such Registered Prospects) equal to one-half (50%) of the Product
Revenue associated with the Registered Prospect. Notwithstanding the sales
strategy and compensation structures set forth in this Section 4, the parties
acknowledge and agree that Xxxxxxxx Consulting shall have no right to sublicense
the Products to Clients, and that all licenses shall be directly between PR and
the Client.
(b) After the expiration of the period described in Section 4.1(a), PR
will provide Xxxxxxxx Consulting with Products for Resale to Registered
Prospects at a discount level equal to twenty percent (20%) of the List Price,
or pay Xxxxxxxx Consulting a marketing assistance fee (if Xxxxxxxx Consulting
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elects to have PR sell such Products directly to such Registered Prospects)
equal to twenty percent (20%) of the Product Revenue associated with the
Registered Prospect.
(c) PRODUCT REVENUE means the aggregate license fees invoiced to a
Registered Prospect who licenses Products less charges in respect of (i)
outbound shipping, packaging, insurance and delivery, separately billed to the
Registered Prospect or prepaid; (ii) taxes, duties, and similar governmental
charges (not including PR's net income tax); (iii) rebates, discounts and
refunds remitted to the Registered Prospect; and (iv) Product returns by the
Registered Prospect. Product Revenue shall include both initial and subsequent
licenses by PR to such Registered Prospect, at any time during the duration of
the project that is the subject of the Prospect Registration Form. Product
Revenue shall not include any revenue payable in respect of PR's maintenance,
support, training, installation and other professional services. Xxxxxxxx
Consulting may, however, xxxx up and resell PR's professional services on a
case-by-case basis pursuant to a mutually agreed subcontract agreement among the
parties.
(d) Neither party shall disclose any billing or cost rates of the other
party to any Client, potential Client or Registered Prospect without prior
written approval of the other party.
(e) It is understood and agreed that Xxxxxxxx Consulting will retain all
(100%) of its professional fees related to Business Integration Services
provided by Xxxxxxxx Consulting to third parties, including Registered
Prospects.
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4.2 PAYMENT. Except as otherwise provided in any agreement between the
parties with respect to a particular Registered Prospect, Xxxxxxxx Consulting
shall pay for Products (or PR shall pay Xxxxxxxx Consulting the applicable
marketing assistance fee) within thirty (30) business days after receipt of PR's
invoice. All payments shall be stated and paid in U.S. Dollars. Product Revenue
received in currencies other than U.S. Dollars shall be converted to U.S.
Dollars using the exchange rate in effect as of the date that the payment is
received by Xxxxxxxx Consulting as stated in the Wall Street Journal, New York
edition. All payments will be reduced by any applicable withholding taxes.
Xxxxxxxx Consulting and PR will cooperate to minimize, to the extent legally
permissible, the tax liabilities related to the transactions contemplated by
this Agreement; provided such cooperation shall not cause any adverse tax
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consequences to be incurred by either party which would not have been incurred
under the terms and conditions as described in this Agreement. Each party shall
provide and make available to the other party any resale certificates,
information regarding out-of-state or out-of-country sales, and other exemption
certificates or information reasonably requested by the other party.
4.3 REPORTS. PR, when accounting for sales of Products and Product
Revenue, shall maintain records in accordance with Generally Accepted Accounting
Principles, as specified by the American Institute of Certified Public Accounts,
consistently applied, sufficient to determine sales revenue and marketing
assistance fees relating to sales of Products to Registered Prospects. Within
forty-five (45) days following each March 31, June 30, September 30 and December
31, PR shall provide Xxxxxxxx Consulting with a report including at least (a)
the quantity of Products sold to Registered Prospects during the preceding
quarter; (b) the monetary amount, in the applicable national currency, of such
sales; (c) actual Product Revenue, by country; (d) the currency conversion rate
used and U.S. dollar-equivalent of such sales (for sales made in currency other
than U.S. dollars); (e) the calculation of marketing assistance fees thereon;
and (f) the marketing assistance fees so computed and due Xxxxxxxx Consulting.
Such reports shall be submitted whether or not any sales of Products have been
made during such period. Upon delivery of the report due for the period ending
December 31 of each year, PR shall also report the aggregate sales and aggregate
marketing assistance fees due Xxxxxxxx Consulting for the entire preceding year.
4.4 AUDITS. Xxxxxxxx Consulting shall have the right, not more than once
in any twelve (12)-month period, to have PR's relevant books and records audited
by an independent certified public accountant of Xxxxxxxx Consulting's choosing
and reasonably acceptable to PR, to ascertain the accuracy of the reports under
Section 4.3. All such audits shall be scheduled within thirty (30) days
following delivery of notice by Xxxxxxxx Consulting, and conducted during PR's
normal business hours, in a manner that does not unreasonably interfere with
PR's normal business activities. If any audit discloses underreporting of sales
of Products to Registered Prospects or underpayment of marketing assistance
fees, PR shall promptly amend the report with respect to aggregate sales of
Registered users and pay Xxxxxxxx the marketing assistance fees due, as
applicable. Xxxxxxxx Consulting shall be responsible for all expenses it incurs
in connection with any audit; provided, that if any audit determines that the
reported sales of Products to Registered Prospects or the reported Product
Revenue was less than the actual sales of Products or Product Revenue for the
period in question, the actual out-of-pocket cost of such audit shall be borne
by PR. Xxxxxxxx Consulting will hold in confidence, and will require any
certified public accountant it retains to perform an audit to hold in
confidence, all information learned in the course of any audit, except to the
extent necessary for Xxxxxxxx Consulting to enforce its rights under this
Agreement.
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5. CONFIDENTIALITY; PROPRIETARY RIGHTS; LICENSES
5.1. PUBLICITY. (a) Except as is necessary to comply with applicable
laws and regulations or to enforce their respective rights under this Agreement,
or to a party's legal or financial advisors, and except as otherwise agreed to
by the parties in writing, the parties shall: (i) keep the material terms of
this Agreement confidential, (ii) agree upon the text and the exact timing of an
initial public announcement relating to the transactions contemplated by this
Agreement as soon as possible after the Effective Date (such agreement not to be
unreasonably withheld or delayed) and (iii) agree on the text and the timing of
any subsequent public announcements regarding this Agreement or the transactions
contemplated herein. If this Agreement is required to be filed by PR with the
Securities and Exchange Commission, PR shall not file this Agreement with the
Securities and Exchange Commission without first notifying Xxxxxxxx Consulting
and seeking confidential treatment for any provisions of this Agreement that
Xxxxxxxx Consulting believes would disclose trade secrets, confidential
commercial or financial information that would impair the value of the
contractual rights represented by this Agreement or provide detailed commercial
and financial information to competitors or third parties.
(b) Except as otherwise provided in Section 5.6, neither party shall use
the name of the other party or any director, officer or employee of the other
party or any adaptation thereof without the prior written approval of the other
party; provided that: (i) Xxxxxxxx Consulting shall have the right to inform its
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customers and prospective customers of its designation as a Global Reseller of
the Products and its relationship with PR as a marketer and reseller of the
Products as set forth in this Agreement and (ii) subject to approval of the text
of any promotional material(s) or disclosures by Xxxxxxxx Consulting, PR shall
have the right to promote Xxxxxxxx Consulting as its Preferred Business
Integration Services provider in its marketing collateral and in customer
presentations (including press tours, industry analyst visits, production of
vision presentations, white papers, speaking engagements, executive events,
trade shows, demonstration center exhibits, marketing brochures, and product
demonstration script/scenario development).
5.2 CONFIDENTIALITY. (a) It is contemplated that in the course of the
performance of this Agreement each party may, from time to time, disclose
Confidential Information to the other. Each party agrees to take all reasonable
steps to prevent disclosure of Confidential Information and not to use any
Confidential Information except for the limited purposes set forth in this
Agreement.
(b) All Confidential Information made available hereunder, including
copies thereof, shall be returned or destroyed upon the first to occur of (a)
termination of this Agreement or (b) written request by the discloser.
(c) In the event either party receives a Requests for Proposals (RFP) from
any client or prospective client under circumstances permitting it to share such
RFP with the other party to this Agreement, then such RFP will be treated as
Confidential Information for purposes of this Agreement.
5.3 PROPRIETARY RIGHTS; WORK PRODUCT; ETC. (a) This Agreement does not
convey to Xxxxxxxx Consulting any ownership rights in any Products or in any
intellectual property rights embodied in such Products by implication, estoppel
or otherwise except for the license rights expressly granted under this
Agreement. Title to the Products and the intellectual property rights embodied
in the Products shall at all times remain vested in PR or its licensors.
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(b) This Agreement does not convey to PR any ownership rights in any
products, materials, tools and methodologies that are proprietary to Xxxxxxxx
Consulting or to its licensors or in any intellectual property rights embodied
in such products, materials, tools and methodologies by implication, estoppel or
otherwise except for the rights expressly granted under this Agreement. Title
to all such products, materials, tools and methodologies and the intellectual
property rights embodied in such products, materials, tools and methodologies
shall at all times remain vested in Xxxxxxxx Consulting or its licensors.
Xxxxxxxx Consulting may, at its discretion, license such products, materials,
tools and methodologies and the intellectual property rights embodied in such
products, materials, tools and methodologies to Clients under a separate license
agreement.
(c) In the course of performing Business Integration Services for Clients
pursuant to this Agreement, Xxxxxxxx Consulting may develop new products,
materials, tools and methodologies that operate with, or link to, the Products
and may make modifications or enhancements to its existing products, materials,
tools and methodologies (collectively, WORK PRODUCT). The foregoing does not in
any way, however, xxxxx Xxxxxxxx Consulting the right to modify, enhance or
create derivative works of the Product; any right to modify, enhance or create
derivative works must be the subject of a separate written agreement between the
parties. Xxxxxxxx Consulting or the applicable Client, as agreed upon between
such parties, will own any Work Product which is linked, combined or otherwise
operated with the Products. PR shall have or obtain no rights in such Work
Product other than (i) to use them as authorized by Xxxxxxxx Consulting in
writing from time to time solely for purposes of performing PR's
responsibilities pursuant to an agreement for a particular Client, or (ii)
pursuant to Xxxxxxxx Consulting's standard license for such Work Product. If
Work Product is made available to PR under Section 5.3(c)(i), it will be made
available in an "AS IS" condition and without express or implied warranties of
any kind.
(d) Subject to the terms hereof, including the confidentiality provisions
of Section 5, in no event shall Xxxxxxxx Consulting be precluded from
independently developing for itself, or for others, materials which are
competitive with the Products. In addition, Xxxxxxxx Consulting shall be free to
use its general knowledge, skills and experience, and any ideas, concepts, know-
how, and techniques within the scope of its consulting practice that are used in
the course of providing services to Clients pursuant to this Agreement.
5.4 JOINT DEVELOPMENT OF PRODUCT. PR will not (a) offer or negotiate with
any third party commercial enterprise that engages in software development
projects (excluding individuals or small businesses with whom PR regularly
contracts for such work) (THIRD PARTY DEVELOPMENT FIRM) to have such Third Party
Development Firm design, develop, implement or integrate any modifications,
extensions or interfaces to the Products, or (b) enter into any other form of
collaboration with any Third Party Development Firm for the design, development,
implementation or integration of any modifications, extensions or interfaces
relating to the Products, unless PR shall first offer such opportunity to
Xxxxxxxx Consulting. For purposes of offering Xxxxxxxx Consulting any such
opportunity, PR shall notify Xxxxxxxx Consulting of the opportunity, including
sufficient detail to permit Xxxxxxxx Consulting to evaluate its interest in the
opportunity, and Xxxxxxxx Consulting shall meet with PR as soon as possible, but
no later than fifteen (15) business days following such notice to discuss the
technical features of the opportunity. Xxxxxxxx Consulting shall notify PR
within thirty (30) business ) business days following PR's initial notice of its
interest (or lack of interest) in pursuing such opportunity. If Xxxxxxxx
Consulting indicates that it wishes to pursue such opportunity, then the parties
shall within ten(10) business days following Xxxxxxxx Consulting's notice engage
in good faith negotiation of terms for a development and/or integration
agreement which shall be in substantially the form attached hereto as
10
Attachment E. If the Parties cannot negotiate mutually acceptable terms for an
agreement within thirty (30) business days from the commencement of
negotiations period, then PR may negotiate with a third party concerning such
opportunity; provided, however, that any such agreement shall contain terms
-------- -------
that in the aggregate are no more favorable to such third party than those
offered to Xxxxxxxx Consulting. If PR wishes to offer such opportunity to a
third party on terms that in the aggregate are more favorable than those
offered to Xxxxxxxx Consulting, PR shall first notify Xxxxxxxx Consulting and
provide it a period of ten (10) business days to consider such improved terms.
The parties agree that this Section 5.4 shall under no circumstances restrict or
limit PR's right to develop any software using its own resources or personnel.
5.5 ENABLING LICENSES. (a) PR hereby grants to Xxxxxxxx Consulting a
worldwide, paid-up and royalty-free license during the term of this Agreement to
(i) demonstrate and display the Products, alone or in conjunction with third
party products, in object code form to potential Clients and Xxxxxxxx Consulting
personnel (including but not limited to activities performed at exhibits and
Xxxxxxxx Consulting demonstration centers) and (ii) use up to ten (10) copies of
the Products internally, in object code form to (1) develop and demonstrate
proof-of-concepts, implementation methodology, and implementation aides relating
to the Products; (2) train Xxxxxxxx Consulting personnel; and (3) provide
Business Integration Services to Clients who have a license from PR for the
Products. Xxxxxxxx Consulting shall provide PR with a copy of all
implementation methodology, aids, etc. and other tools or processes that are
used in conjunction with the Products for PR's review and comment prior to their
release.
(b) Xxxxxxxx Consulting, its Affiliates shall not (i) copy or reproduce
the Products except as necessary to demonstrate and use internally the Products,
as allowed under this Agreement; (ii) copy the Product documentation except as
necessary to perform its obligations under this Agreement; (iii) translate,
adapt, vary or modify the Products; (iv) disassemble, decompile or reverse
engineer the Products or create any derivative works based thereon; (v)
sublicense, lease, distribute or enter into any time share or service bureau
arrangement with respect to the Products; (vi) make more than one (1) copy of
the Products for back-up purposes, which must be stored in a secure place and be
clearly marked; and (vii) permit use of the Products other than by its own
authorized employees. It is understood and agreed that the limitations imposed
under this Section 5.5(b) shall not restrict Xxxxxxxx Consulting from producing
Work Product in accordance with Section 5.3.
(c) PR will provide Xxxxxxxx Consulting at no charge with PR's standard
maintenance and technical support services for the Products licensed under this
Section 5.5 (including installation support).
(d) PR will provide Xxxxxxxx Consulting at no charge any updates and
upgrades it makes to the Products that PR makes available to its Clients
receiving maintenance or support services. PR will also provide Xxxxxxxx
Consulting at no charge any new releases it makes for the Products. All such
Improvements shall be considered "Products" for all purposes hereunder. PR
shall use reasonable efforts to deliver updates and upgrades to Xxxxxxxx
Consulting not later than the date it initially releases such updates and
upgrades to Clients.
(e) Where reasonably possible, PR will provide Xxxxxxxx Consulting at no
charge with advanced releases of all new versions of the Products (Beta
versions) within the context of PR's Beta testing program. Xxxxxxxx Consulting
will use such advanced releases
11
of the Products only for internal training and demonstration unless PR provides
prior written approval for external use of such advanced releases.
5.6 TRADEMARK LICENSE. (a) Subject to Xxxxxxxx Consulting's compliance
with this Agreement, PR hereby grants to Xxxxxxxx Consulting a fully paid up and
royalty-free right and license to use the Trademarks in connection with the
promotion and marketing of the Products during the term of this Agreement. All
right, title and interest to the Trademarks, and all goodwill therein, shall
remain with PR and no other license relating thereto is granted hereunder. PR
shall have no obligation to maintain or file for trademark protection in any
given jurisdiction.
(b) Subject to the wind-down rights set forth in Section 9.3, upon any
expiration or termination of this Agreement, the license to Xxxxxxxx Consulting
to use the Trademarks shall terminate, and Xxxxxxxx Consulting shall take all
necessary action and execute and deliver to PR all necessary documents and
instruments to remove Xxxxxxxx Consulting as a registered user and/or a recorded
licensee of the Trademarks.
(c) Each party hereto agrees to notify the other in writing promptly
(but not later than thirty (30) business days) after obtaining knowledge of any
infringements or imitations of the Trademarks by third parties.
(d) PR reserves the right to modify or abandon the Trademarks or
substitute alternative marks for any or all of the Trademarks at any time
provided, that Xxxxxxxx Consulting shall not be required to incur any expense to
--------
re-xxxx or otherwise modify packaging or sales collateral to adopt such
modified, substituted or alternative marks but shall implement such marks in a
commercially reasonable manner consistent with the depletion of then existing
inventory and sales collateral, but in no event shall Xxxxxxxx Consulting
display or distribute obsolete marks later than sixty (60) business days after
notice from PR.
(e) No later than thirty (30) business days prior to anticipated release,
Xxxxxxxx Consulting shall provide PR with a sample of all product packaging and
advertising that makes use of the Trademarks for purposes of permitting PR to
verify that Xxxxxxxx Consulting's use of the Trademarks is consistent with the
provisions of Attachment X. Xxxxxxxx Consulting shall not challenge, directly
---------- -
or indirectly, PR's rights in respect of the Trademarks, nor shall it register
any trademark, logo, xxxx or name that is confusingly similar therewith, as a
trademark, trade name, corporate name or domain name in any jurisdiction
provided, that Xxxxxxxx Consulting shall not waive its rights with respect to
--------
existing trademarks owned by Xxxxxxxx Consulting or trademarks that Xxxxxxxx
Consulting acquires during the term of this Agreement, and Xxxxxxxx Consulting
shall not waive any rights with respect to the protection of its trademarks.
Xxxxxxxx Consulting shall comply with the Trademark guidelines set forth in
Attachment X. Xxxxxxxx Consulting shall not adopt other marks for use in the
------------
promotion, marketing and sale of the Products without the prior written
consent of PR, which consent shall not be given unless PR jointly owns such
marks.
6. XXXXXXXX CONSULTING'S MARKETING OBLIGATIONS.
6.1 JOINT MARKETING FUNDING. Xxxxxxxx Consulting will provide an
aggregate $1 Million in funding to support targeted industry seminars and
educational events that feature the Products as determined by the ASC. Xxxxxxxx
Consulting's obligation to provide funding under this Section 6.1 is subject to
and shall accrue upon Xxxxxxxx Consulting's prior receipt of a corresponding
amount of revenue pursuant to Section 2.3 of this Agreement, in the form of
reseller discounts or marketing assistance fees.
12
6.2 BUSINESS DEVELOPMENT STAFFING. Xxxxxxxx Consulting will appoint two
(2) full-time Business Development Directors for the Products: one based in
Europe and one based in the United States. Said Business Development Directors
shall be responsible for (a) building awareness and acceptance of the Products
within Xxxxxxxx Consulting and its Affiliates and (b) coordinating joint
marketing and sales efforts pursuant to this Agreement.
6.3 PRODUCT FEEDBACK; SALES TOOLS. Xxxxxxxx Consulting will provide PR
with guidance and field feedback from Xxxxxxxx Consulting staff concerning the
Products and PR's software development plans at monthly feedback meetings
organized by the ASC. Such feedback shall be focused on: (a) core architecture
review and enhancements; (b) real time integration capabilities to web and call
center functions; and (c) integration of the Products with analytical tools.
Xxxxxxxx Consulting will develop return on investment models that demonstrate
the benefit of marketing automation to be used in joint sales efforts according
to a schedule developed by the ASC.
6.4 SALES SUPPORT. Xxxxxxxx Consulting shall, and shall cause its
Affiliates to, devote commercially reasonable efforts to promote the Products to
appropriate Clients and prospective Clients and the acceptance of the Products
by such Clients and prospective Clients. Xxxxxxxx Consulting's promotion and
sales efforts shall include the following general activities performed in the
manner dictated by the reasonable business judgment of Xxxxxxxx Consulting: (a)
considering the Products as a component of any CRM-related offering or venture
it proposes for its customers; (b) considering, as the relationship between PR
and Xxxxxxxx Consulting progresses, expanding the scope of this Agreement to
include development of industry vertical solutions incorporating the Products;
(c) considering, on a case-by-case basis, speaking at private invitation
conferences and seminars with PR; (d) targeting early engagements that include
the Products to develop case studies and return on investment models, and
customer testimonials to be leveraged in joint marketing efforts incorporating
the Products; (e) tailoring and extending Xxxxxxxx Consulting's existing
methodologies to reflect the nuances of marketing automation and PR Products;
and (f) otherwise conducting such activities as are reasonably appropriate for
the marketing and sale of the Products. Notwithstanding any provision of this
Agreement to the contrary, Xxxxxxxx Consulting shall promote the Products using
only the information and sales material provided by PR pursuant to Section 7.3,
and Xxxxxxxx Consulting shall make no statement or representation regarding the
operation, capabilities or performance of the Products except as stated by PR in
such written materials. Except as set forth herein, it is understood and agreed
that Xxxxxxxx Consulting will have no obligation to establish or maintain a
formal sales organization or marketing program related to this Agreement.
6.5 PRODUCT TRAINING. Xxxxxxxx Consulting shall put twenty (20) of its
consulting personnel through PR training concerning the Products. Such training
shall be provided in accordance with Section 7.6 and scheduled by mutual
agreement of the parties.
7. PR'S OTHER OBLIGATIONS.
7.1 THIS SECTION INTENTIONALLY OMITTED.
7.2 BUSINESS DEVELOPMENT STAFFING. PR will appoint one (1) full-time
Alliance Relationship Manager. Said Alliance Relationship Manager shall be
responsible for (a) building awareness and acceptance of the Business
Integration Services within PR and (b) coordinating joint marketing and sales
efforts pursuant to this Agreement.
13
7.3 SALES COLLATERAL. (a) PR shall furnish at no cost to Xxxxxxxx
Consulting reasonable quantities of promotional materials, such as sales
literature, technical data, instruction manuals and technical journal reprints
(the PRODUCT INFORMATION)in order for Xxxxxxxx Consulting to promote the
Products as provided for in this Agreement. PR shall supply Xxxxxxxx Consulting
with Product Information in electronic and paper format. Except as otherwise
agreed by the parties, Xxxxxxxx Consulting may use such Product Information
without any limitation on disclosure. In any event, PR hereby grants Xxxxxxxx
Consulting permission to disclose certain Product Information to be designated
and furnished by PR to Clients without the requirement for non-disclosure
agreements. PR may require a Client to enter into a nondisclosure agreement
with PR to protect its Confidential Information after a sales opportunity is
qualified and reaches a detailed discussion stage. PR shall control the release
of its Confidential Information to prospective Clients and will be responsible
for putting in place such nondisclosure agreements with prospective Clients. PR
will use reasonable efforts to ensure that the Product Information as provided
to Xxxxxxxx Consulting shall be accurate in all material respects when provided,
and PR undertakes to update such Product Information when necessary.
(b) PR will provide Xxxxxxxx Consulting with its current form(s) of license
agreements and maintenance agreements. The current versions of such materials
are attached as Attachment D to this Agreement. PR will provide Xxxxxxxx
------------
Consulting with any revisions or updates to such materials and shall provide
additional copies of such materials upon request of Xxxxxxxx Consulting.
7.4 SALES SUPPORT. PR shall devote commercially reasonable efforts to
support Xxxxxxxx Consulting's promotion and sales efforts, including the
following general activities: (a) supplying experts to support detailed
technical presentations and meetings relating to the Products; (b) providing
quotations for standard and custom configurations for the Products; and (c)
responding to phone calls from prospective Clients.
7.5 SALES INCENTIVES. PR shall create an incentive structure for the PR
direct sales force that rewards such sales personnel for undertaking and closing
joint engagements as contemplated by this Agreement. Specifically, PR will
implement a sales reward structure that provides the PR sales force with
financial incentives for closing sales with Registered Prospects and Clients
that purchase PR Products and Xxxxxxxx Consulting services as a combined
solution that are greater than any other PR reward program for its sales force.
7.6 TRAINING; TECHNICAL ASSISTANCE. (a) PR will provide Xxxxxxxx
Consulting at no charge with a total of at one hundred sixty (160) hours of
training services covering the Products for up to twenty (20) Xxxxxxxx
Consulting personnel. PR shall also provide Xxxxxxxx Consulting at no charge
with a reasonable level of update or "delta" training for each major release of
the Products for up to twenty (20) Xxxxxxxx Consulting personnel; such update
training to be provided in a timely manner to enable Xxxxxxxx Consulting to
remain current with all Improvements. Training will be performed at a PR
facility. PR will provide Xxxxxxxx Consulting personnel with written
educational materials as part of the training program and will ensure that
Xxxxxxxx Consulting personnel are afforded the opportunity to discuss with PR
trainers the operation of the Products. Xxxxxxxx Consulting may use (but not
copy) PR training materials for purposes of training additional Xxxxxxxx
Consulting personnel after the initial training. PR will make additional copies
of training materials available to Xxxxxxxx Consulting at its standard rates.
In the event that Xxxxxxxx Consulting requests that PR deliver training at a
site other than a PR training facility, Xxxxxxxx Consulting agrees to reimburse
PR for travel and living expenses based on PR's
14
standard internal expense policies. PR shall provide a copy of such expense
policy upon request by Xxxxxxxx Consulting.
(b) PR shall provide to Xxxxxxxx Consulting upon request such technical
assistance and/or additional training as Xxxxxxxx Consulting may reasonably
request to enable Xxxxxxxx Consulting to more effectively market, sell, and
distribute the Products, and enable Xxxxxxxx Consulting to install, operate and
use the Products effectively (and train Clients to do so). PR shall also
provide to Xxxxxxxx Consulting any service or other support information that
would assist Xxxxxxxx Consulting in marketing the Products. Such technical
assistance or additional training shall be provided at a discount of 30% off of
PR's normal rates for such services.
8. REPRESENTATIONS AND WARRANTIES.
8.1 AUTHORIZATION; ENFORCEABILITY. Each of PR and Xxxxxxxx Consulting
represent and warrant to the other that: (a) it is duly organized, validly
existing and in good standing under the laws of its incorporating jurisdiction;
(b) it has all requisite corporate power and authority to enter into this
Agreement; (c) it is duly authorized to execute and deliver this Agreement and
to perform its obligations hereunder and consummate the transactions
contemplated hereby; and (d) this Agreement is a valid and binding obligation of
such party enforceable in accordance with its terms.
8.2 PRODUCT WARRANTY. (a) PR represents and warrants to Xxxxxxxx
Consulting that owns or has valid licenses to all copyrights, patents, trade
secrets, trademarks, and other proprietary or intellectual property rights
relating to the Products and has the right to grant to Xxxxxxxx Consulting the
rights and licenses purported to be granted by or pursuant to this Agreement,
and has all other rights necessary for the performance of its obligations under
this Agreement.
(b) PR represents and warrants to Xxxxxxxx Consulting that there have been
no claims filed against PR alleging that the Products infringe a third party's
intellectual property rights.
(c) PR represents and warrants to Xxxxxxxx Consulting that to its
knowledge there are no products liability or other claims pending or any alleged
problem or defect in any of the Products.
8.3 CLIENT WARRANTIES. (a) PR shall extend to each Client that enters into
an agreement to acquire Products pursuant to this Agreement, the warranties and
indemnification for its Products and services that it generally extends to its
Clients.
(b) PR will offer each Client that enters into an agreement to acquire
Products pursuant to this Agreement, the software maintenance, technical
support and training services that PR generally offers to its Clients.
(c) It is understood and agreed that, as between the parties, PR shall
remain solely responsible to Clients for the performance and good working order
of the Products and the performance of its services. Xxxxxxxx Consulting is not
responsible for the performance of PR's Products or services, and PR is not
responsible for the performance of Xxxxxxxx Consulting's products or services.
(d) PR represents and warrants that it will provide each of the Clients
that licenses the Product pursuant to this Agreement with the following warranty
concerning millenium
15
compliance: "During the period ending at midnight on June 30, 1999, the Product,
when used properly in accordance with its documentation, is capable of correctly
receiving, processing and providing date data without regard to whether any date
involved in the operation occurs in the 20th or 21st Century and without regard
to the system date at the time the calculation is performed; provided that all
applications, hardware and other systems used in conjunction with the Product
correctly exchange date data with or provide data to the Product and that the
most current and an unaltered version of the Product is being used (Y2K
COMPLIANT). The foregoing warranty shall not apply if any failure of the Product
to be Y2K Compliant results from its interaction with applications, hardware or
other systems not supplied by PR. PR represents and warrants that the Product
does not embody a "windowing" approach to resolve issues concerning the correct
performance of date related operations".
9. RISK ALLOCATION
9.1 LIMITATION OF LIABILITY. EXCEPT FOR INFRINGEMENT OF THE OTHER PARTY'S
INTELLECTUAL PROPERTY RIGHTS OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 5.2 AND EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.2 WITH RESPECT TO
THIRD PARTY CLAIMS, THE AGGREGATE LIABILITY OF EITHER PARTY FOR DIRECT DAMAGES
ARISING OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
LIMITED TO THE AGGREGATE AMOUNT OF $[1,000,000]. IN NO EVENT SHALL EITHER PARTY
BE LIABLE TO THE OTHER FOR LOST PROFITS OR SAVINGS OR FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER
CAUSED, UNDER ANY THEORY OF LIABILITY.
9.2. INFRINGEMENT INDEMNIFICATION. (a) Subject to the provisions of Section
9.4, PR shall defend, indemnify and hold harmless Xxxxxxxx Consulting, its
subsidiaries, parent corporations, Affiliates, officers, directors, independent
contractors, partners, shareholders, employees, agents, successors and assigns
from and against any claim, suit, demand, loss, damage, expense (including
reasonable attorney's fees of indemnitee(s) and those that may be asserted by a
third party) or liability (collectively, LOSSES) arising from or related to an
allegation by any third party (including any Client) that the Products
(including any Improvements) provided by PR to Xxxxxxxx Consulting pursuant to
this Agreement infringe or misappropriate any intellectual property right of any
third party (including without limitation, any United States patent, copyright,
trade secret or trademark).
(b) Subject to the provisions of Section 9.4, Xxxxxxxx Consulting shall
defend, indemnify and hold harmless PR, its subsidiaries, parent corporations,
Affiliates, officers, directors, independent contractors, partners,
shareholders, employees, agents, successors and assigns from and against any
Losses arising from or related to an allegation that any
16
Business Integration Services of Xxxxxxxx Consulting (or the offering or
performance thereof) infringe or misappropriate any intellectual property right
of any third party (including without limitation, any United States patent,
copyright, trade secret or trademark).
In addition to its obligations under Section 9.2(a), if any Product licensed to
Xxxxxxxx Consulting hereunder is held to constitute an infringement or
misappropriation of any third party's intellectual property rights or if in PR's
opinion, any Product is, or is likely to be held to constitute, an infringement
or misappropriation, PR may at its expense and option: (i) procure the right
for Xxxxxxxx Consulting to continue using the Product; (ii) replace each copy of
the Product in Xxxxxxxx Consulting's inventory for resale to a Client and each
copy of the Product licensed by Xxxxxxxx Consulting for use pursuant to Section
5.5 with a non-infringing and non-misappropriating substantially equivalent
product; or (iii) modify the Product to make it non-infringing and non-
misappropriating while conforming to the Product Specifications or if (i), (ii)
and (iii) are not reasonably practical, PR will (iv) terminate the applicable
license and require the return of the infringing Product and refund to Xxxxxxxx
Consulting the purchase price of such Products.
9.3 OTHER CLAIMS. (a) Subject to the provisions of Section 9.4, each of
PR and Xxxxxxxx Consulting (each, an INDEMNIFYING PARTY) will defend, indemnify
and hold harmless the other party, its subsidiaries, parent corporations,
affiliates, officers, directors, partners, shareholders, employees, agents, and
their successors and assigns (collectively, the INDEMNITEES) from and against
any Losses imposed upon the Indemnitee(s) by any third party arising from or
related to personal injury or property damage which is proximately caused by any
negligence or intentional misconduct by such Indemnifying Party (or its
employees, agents or representatives) in performing its obligations under this
Agreement. The foregoing indemnification action shall not apply in the event
and to the extent that a court of competent jurisdiction determines that such
Losses arose as a result of any Indemnitee's negligence, intentional misconduct
or breach of this Agreement.
(b) Subject to the provisions of Section 9.4, each party (as an
Indemnifying Party) will defend, indemnify and hold harmless the other party and
its Indemnitees from and against any Losses imposed upon the Indemnitee(s) by
any employee, agent or representative of the Indemnifying Party or its
Affiliates under any applicable termination. labor, social security or other
similar laws or regulations and arising from or related to the transactions
contemplated by this Agreement.
9.4 PROCEDURE. To receive the benefit of indemnification under 9.2 or 9.3,
the party seeking indemnification must promptly notify the other party in
writing of a claim or suit and provide reasonable cooperation (at the
Indemnifying Party's expense) and tender to the Indemnifying Party (and its
insurer) full authority to defend or settle the claim or suit. Neither party
has any obligation to indemnify the other party in connection with any
settlement made without the Indemnifying Party's written consent. The
Indemnitee has the right to participate at its own expense in the claim or suit
and in selecting counsel therefor. The Indemnitee shall cooperate with
Indemnifying Party (and its insurer), as reasonably requested, at Indemnifying
Party's sole cost and expense.
9.5 INSURANCE. Each party shall procure and maintain insurance or self-
insurance, including product liability insurance, adequate to cover its
obligations hereunder and which are consistent with normal business practices of
prudent companies similarly situated. It is understood that such insurance
shall not be construed to create a limit of either party's liability with
respect to its indemnification obligations under this Section 9. Each party
shall
17
provide the other with written evidence of such insurance (or financial
information that describes the amounts available under any self-insurance
facility) upon request. Each party shall provide the other with written notice
at least fifteen (15) business days prior to the cancellation, non-renewal or
material change in such insurance or self-insurance which materially adversely
affects the rights of the other party hereunder. If such party does not obtain
replacement insurance or take other measures that allow it to provide comparable
coverage within such 15-day period, the other party shall have the right to
terminate this Agreement effective at the end of such fifteen (15) day period
without notice or any additional waiting periods.
10. TERM AND TERMINATION.
10.1 TERM. This Agreement shall take effect as the Effective Date and
shall remain in effect until the fourth anniversary of the Effective Date,
unless sooner terminated in accordance with Section 10.2 or extended in
accordance with this Section 10.1. Not later than three (3) months prior to the
fourth anniversary of the Effective Date, the parties shall confer regarding
renewal of this Agreement for an additional term. If the parties agree to
renew this Agreement the terms of this Agreement shall remain in effect during
the renewal term, unless expressly amended by mutual agreement of the parties.
10.2 TERMINATION. (a) Either party may terminate this Agreement at any
time upon sixty (60) business days notice to the other party in the event that
the other party shall have breached any of its material obligations hereunder
and shall not have cured such breach prior to the expiration of the sixty (60)-
day period. In addition, either party shall have the right to terminate this
Agreement upon thirty (30) business days notice if a Force Majeure condition has
prevented performance by the other party for more than one hundred twenty (120)
consecutive days. The parties may also terminate this Agreement at any time
upon mutual written agreement of the parties.
(b) Xxxxxxxx Consulting shall have the right to terminate this Agreement
upon thirty (30) days notice to PR following the closing of any transaction in
which a third party acquires control of PR by means of a merger or acquisition
of PR's capital stock. For purposes of this Section 10.2(b) "control" has the
meaning ascribed to it under the definition of Affiliate.
10.3 EFFECT OF TERMINATION. (a) Upon termination (including expiration) of
this Agreement:
(i) PR and Xxxxxxxx Consulting will terminate all tasks for all
affected Client projects being performed pursuant to Section 2.3 in an
orderly manner, as soon as practical or in accordance with a schedule
agreed to by Xxxxxxxx Consulting and PR to minimize disruption to Clients;
(ii) each party shall return to the other party or certify in writing
to the other party that it has destroyed all documents and other tangible
items it or its employees or agents have received or created pertaining,
referring or relating to the Confidential Information of the other party;
(iii) (1) Xxxxxxxx Consulting and its Affiliates shall discontinue
making any representation regarding its status as a "Global Reseller" or
"Preferred Business Integration Services Provider" for the Products and
shall cease conducting any activities with respect to the marketing,
promotion, sale or distribution of the Products; and (2) PR shall
discontinue making any representation regarding its status
18
as a "Preferred EAI Technology Provider" for offerings that embody CRM
functionality;
(iv) Each party and its Affiliates will discontinue any and all use of
trade names and/or trademarks authorized for use under this Agreement,
except as necessary to fulfill its obligations to Clients in accordance
with this Section 10.3;
(v) Xxxxxxxx Consulting will discontinue any and all use of the
licenses granted under Section 5.5; and
(vi) each party will return to the other party or certify in writing
to the other party that it has destroyed all documents and other tangible
items it or its employees or agents have received or created pursuant to
this Agreement pertaining, referring or relating to the Confidential
Information of the other party, except that each party may retain one (1)
complete copy of Confidential Information (1) for use in accordance with
Sections 10.3(a)(i) and (2) for archival purposes to assure compliance with
this Agreement.
(b) Termination of this Agreement by either party for any reason shall not
affect the rights and obligations of the parties that accrued prior to the
effective date of termination of this Agreement or release either party from
obligations to resell or license Products made prior to the date of termination,
or affect existing licenses or purchase orders for the Products.
Notwithstanding any provision of this Agreement to the contrary, each party may
continue to exercise the rights and licenses granted hereunder to the extent
necessary to allow such party to fulfill its obligations under existing
engagement agreements or included in any proposal to a Client that was
outstanding at the time of termination.
(c) The provisions of Sections 5.1-5.3, 5.5-5.6, 7.6(a), 8, 9, 10 and 11
shall survive any expiration or termination of this Agreement (except that
Sections 5.5-5.6 and 7.6(a) may subsequently terminate in accordance with the
provisions of Section 10.3(a)-(b)).
(d) In the event of a termination or upon expiration of this Agreement in
accordance with this Section 10, neither party shall have any obligation to the
other party or any of its Affiliates, or to any of their employees for
compensation or for damages of any kind, whether on account of the loss by such
party or any of its Affiliates or their employees of present or prospective
sales, investments, compensation or goodwill. Each party and its Affiliates,
for theirselves and on behalf of each of their employees, hereby waives any
rights which may be granted to them under the laws and regulations of state, any
province, county, district or similar political entity world wide or otherwise
which are not granted to it or them by this Agreement.
11. GENERAL PROVISIONS.
11.1 ISSUE RESOLUTION. In the event that any dispute arises relating to
this Agreement, the Representatives shall promptly meet and attempt to resolve
same through good faith discussions. If the Representatives are unable to
resolve any dispute to their mutual satisfaction within thirty (30) business
days after they commence discussions regarding same, and do not agree to extend
the time for resolution of the issue at the end of their meeting, then they may
by mutual agreement: (a) escalate the matter to higher levels in their
organizations and, (b) if necessary, resort to a mutually agreed alternative
dispute resolution technique prior to resorting to litigation.
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11.2 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts excluding its
rules on conflicts of laws.
11.3 THIS SECTION INTENTIONALLY OMITTED.
11.4 AMENDMENT AND WAIVER. No provision of or right under this Agreement
shall be deemed to have been waived by any act or acquiescence on the part of
either party, its agents or employees, but only by an instrument in writing
signed by an authorized officer of each party. No waiver by either party of any
breach of this Agreement by the other party shall be effective as to any other
breach, whether of the same or any other term or condition and whether occurring
before or after the date of such waiver.
11.5 INDEPENDENT CONTRACTORS. Each party represents that it is acting on
its own behalf as an independent contractor and is not acting as an agent for or
on behalf of any third party. This Agreement and the relations hereby
established by and between PR and Xxxxxxxx Consulting do not constitute a
partnership, joint venture, franchise, agency or contract of employment.
Neither party is granted, and neither party shall exercise, the right or
authority to assume or create any obligation or responsibility on behalf of or
in the name of the other party or its Affiliates.
11.6 ASSIGNMENT. Neither party may assign its rights or obligations
hereunder without the prior written consent of the other party, which consent
shall not be unreasonably withheld in the case of any assignment; provided that
the proposed assignee under this Section 11.6 agrees in writing to assume all of
the obligations of the assignor party under this Agreement.
11.7 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
11.8 NOTICES. Unless otherwise provided herein, any notice, report,
payment or document to be given by one party to the other shall be in writing
and shall be deemed given when delivered personally or mailed by certified or
registered mail, postage prepaid (such mailed notice to be effective on the date
which is three (3) business days after the date of mailing), or sent by
nationally recognized overnight courier (such notice sent by courier to be
effective one business day after it is deposited with such courier), or sent by
telefax (such notice sent by telefax to be effective when sent, if confirmed by
certified or registered mail or overnight courier as aforesaid):
If to PR:
Prime Response Group, Inc.
000 XxxxxxxxxXxxx Xxxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
If to Xxxxxxxx Consulting:
Xxxxxxxx Consulting LLP
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: J. Xxxxxxx X'Xxxxxxxx
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Phone: 000.000.0000
Fax: 000.000.0000
Copy to:
Xxxxxxxx Consulting LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: General Counsel
Phone: 000.000.0000
Fax: 000.000.0000
or to such other place as any party may designate as to itself by written notice
to the other party.
11.9 SEVERABILITY. In the event any provision of this Agreement shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other term or
provision hereof. The parties agree that they will negotiate in good faith or
will permit a court or arbitrator to replace any provision hereof so held
invalid, illegal or unenforceable with a valid provision which is as similar as
possible in substance to the invalid, illegal or unenforceable provision.
11.10 CONFLICT OR INCONSISTENCY. In the event of any conflict or
inconsistency between the terms and conditions hereof and any terms or
conditions set forth in the Plan, any purchase order or other document relating
to the transactions contemplated by this Agreement, the terms and conditions set
forth in this Agreement shall prevail.
11.11 CAPTIONS. Captions of the sections and subsections of this
Agreement are for reference purposes only and do not constitute terms or
conditions of this Agreement and shall not limit or affect the meaning or
construction of the terms and conditions hereof.
11.12 WORD MEANINGS. Words such as HEREIN, HEREINAFTER, HEREOF and
HEREUNDER refer to this Agreement as a whole and not merely to a section or
paragraph in which such words appear, unless the context otherwise requires.
The singular shall include the plural, and each masculine, feminine and neuter
reference shall include and refer also to the others, unless the context
otherwise requires.
11.13 ENTIRE AGREEMENT. The terms and provisions contained in this
Agreement (including the Attachments) constitute the entire understanding of the
parties with respect to the transactions and matters contemplated hereby and
supersede all previous communications, representations, agreements and
understandings relating to the subject matter hereof. No representations,
inducements, promises or agreements, whether oral or otherwise, between the
parties not contained in this Agreement or incorporated by reference in this
Agreement shall be of any force or effect. No agreement or understanding
extending this Agreement or varying its terms (including any inconsistent terms
in any purchase order, acknowledgment or similar form) shall be binding upon
either party unless it is in a writing specifically referring to this Agreement
and signed by the duly authorized representative of the applicable party.
11.14 RULES OF CONSTRUCTION. The parties agree that they have
participated equally in the formation of this Agreement and that the language
and terms of this Agreement shall not be construed against either party by
reason of the extent to which such party or its professional advisors
participated in the preparation of this Agreement.
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11.15 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart.
11.16 FORCE MAJEURE. Except as otherwise provided in this Agreement, in
the event that a delay or failure of a party to comply with any obligation,
other than a payment obligation, created by this Agreement is caused by a Force
Majeure condition, that obligation shall be suspended during the continuance of
the Force Majeure condition.
11.17 FURTHER ASSURANCES. Each party covenants and agrees that,
subsequent to the execution and delivery of this Agreement and without any
additional consideration, it will execute and deliver any further legal
instruments and perform any acts which are or may become reasonably necessary to
effectuate the purposes of this Agreement.
[REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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11.18 NON-SOLICITATION. Except as the parties may expressly agree
otherwise in writing, neither party shall solicit, offer work to, employ, or
contract with, whether as a partner, employee or independent contractor,
directly or indirectly, any of the other party's Personnel during their
participation in the activities addressed by this Agreement or during the twelve
(12) months thereafter. For purposes of this Section 11.18, PERSONNEL includes
any Person a party employs as a partner, employee or independent contractor and
with which the other party comes into direct contact in the course of the
transactions contemplated by this Agreement.
BOTH PARTIES REPRESENT THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY THE TERMS AND CONDITIONS STATED HEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized officers, and have duly delivered and
executed this Agreement under seal as of the date first set forth above.
PRIME RESPONSE, INC. XXXXXXXX CONSULTING LLP
By: /s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ J. Xxxxxxx X'Xxxxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx Name: J. Xxxxxxx X'Xxxxxxxx
------------------------------- -------------------------------
Title: Secretary, Treasurer, Senior Title: Partner
Vice President and Chief ------------------------------
Financial Officer
------------------------------
Date: December 6, 1999 Date: December 6, 1999
------------------------------ ------------------------------
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