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**Confidential treatment has been requested with
respect to certain information contained in this
document. Confidential portions have been omitted
from the public filing and have been filed separately
with the Securities and Exchange Commission
EXHIBIT 10.09
STRATEGIC MARKETING ALLIANCE AGREEMENT
This Strategic Marketing Alliance Agreement (the "Agreement") is made
and entered into as of December 17, 1997 (the "Effective Date") between Portable
Software Corporation ("Portable"), a Washington corporation and American Express
Company ("AmEx"), a New York corporation.
R E C I T A L S
A. Portable has developed and is licensing and marketing its Xpense
Management Solution enterprise software products to customers;
B. AmEx provides, inter alia, personal and corporate credit card
products and services, travel agency services, and electronic travel booking
services and products;
C. Portable and AmEx desire to enter into a strategic worldwide
marketing alliance providing for the integration of XMS with complementary
products and services of AmEx and for the marketing of XMS to Customers and
Prospects of AmEx on the terms and conditions set forth in this Agreement.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS.
1.1 [*]
1.2 "Affiliate" shall mean with respect to any person (which for
purposes of this definition shall include individuals and all legal entities),
any other person directly or indirectly controlling, controlled by, or under
common control with such person. For purposes of this definition, "control"
shall mean the power to direct or cause the direction of, the management and
policies of such person whether through the ownership of voting interests, by
contract, or otherwise.
1.3 "Authorized User" shall have the meaning given to it in the Volume
License Agreement and shall include [*].
1.4 "AXI" shall mean AmEx's corporate travel booking software product.
1.5 "Closing" shall mean conversion of a Lead into a Referred Customer.
1.6 "Corporate Card" shall mean a corporate charge, credit or
procurement card issued by AmEx to the employees and agents of Customers for use
in connection
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Commission. Confidential treatment has been requested with respect to the
omitted portions.
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with travel and entertainment expenses or procurement expenses incurred on
behalf of Customers.
1.7 "Customer" shall mean a business enterprise that is authorized to
use the Corporate Card, [*] or XMS for its own internal business purposes.
1.8 [*]
1.9 [*]
1.10 "Incremental Net Software License Revenue" is the Net Software
License Revenue received by Portable from an [*] during the [*] period beginning
on the effective date of the Volume License Agreement, that is attributable to
[*]
1.11 "Integration Program" shall mean the integration of product and
service offerings of the Parties in order to add value to the customer
experience in using such products and services, including providing
compatibility between certain software products and enabling the communication
of data between such products.
1.12 "Lead Referral Sales Cycle" shall mean the length of time that
elapses between acceptance of a Lead by Portable and the closing of the
applicable license transaction.
1.13 Net Software License Revenues shall have the meaning set forth in
Section 7.4.
1.14 "Party" shall mean Portable or AmEx.
1.15 "Prospect" shall mean a potential Customer.
1.16 "Referred Customer" shall mean a Prospect with respect to which (i)
AmEx has submitted a Lead (as defined in Section 7.1 hereof), (ii) Portable has
accepted the Lead, and (iii) Portable has entered into a Volume License
Agreement on or before the Lead Expiration Date. Referred Customers include
[*] to the extent XMS is licensed for [*]
1.17 [*]
1.18 "Technical Information" shall mean all technical information of a
Party that is reasonably necessary in order to carry out the Integration
Program, including data technologies, specifications, designs, plans, drawings,
data prototypes, processes, methods, know-how, software, and copyrighted or
copyrightable materials.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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1.19 "Volume License Agreement" shall mean Portable's standard
enterprise customer license agreement, a copy of which is attached as Exhibit A.
1.20 "Work Plan" shall mean a plan setting forth the specifications for
a component of the Integration Program, a description of the development tasks
to be accomplished to complete production of such component of the Integration
Program, and a schedule for completion of those tasks.
1.21 "XMS" shall mean Portable's Xpense Management Solution software
product.
2. MARKETING AND LICENSING OF XMS TO [*]
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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[*]
3. MARKETING AND LICENSING OF XMS TO OTHER CUSTOMERS.
3.1 General. Portable and AmEx wish to cooperate in marketing XMS to
Customers and Prospects who are [*]. Portable agrees that it will offer XMS to
such Customers on pricing terms no less favorable than those set forth in the
then current Master Price List (a copy of which (a) has been provided to AmEx
prior to the execution of this Agreement and (b) shall be provided to AmEx
whenever such list is revised). Portable represents and warrants to AmEx that it
has, or will obtain as promptly as is commercially practicable, the necessary
personnel and capacity to adequately provide the services set forth in the
Volume License Agreement if such Prospect becomes a Referred Customer.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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3.2 Rebate. In consideration of AmEx's efforts in promoting the use of
XMS, Portable agrees to pay a rebate to AmEx in accordance with the provisions
of Section 7 of this Agreement.
3.3 Future Negotiations. Upon notice from AmEx given on or before [*],
Portable agrees to enter into negotiations regarding the remarketing and/or
reselling of XMS by AmEx to Prospects. Portable and AmEx each agree to negotiate
in good faith, the terms and conditions of a remarketing or reseller license.
While establishment of a reseller relationship is the long term intent of the
Parties, nothing in this Agreement shall bind either Party to enter such a
relationship or any other relationship other than the relationship defined in
this Agreement and neither Party shall have any liability to the other should a
reseller relationship not be established.
4. INTERNAL LICENSE.
4.1 License Option. AmEx shall have the right, exercisable at any time
on or before [*] after the Effective Date, to acquire a license (the "License")
to use the current version of XMS for its internal data processing operations on
the terms and subject to the conditions set forth in Section 4.2 and in the
Volume License Agreement, subject to such modifications thereto as may be agreed
through good faith negotiations of the Parties. The License will permit use of
XMS by a maximum of [*] North America-based Authorized Users.
4.2 License Pricing. If AmEx exercises its option to acquire a License,
AmEx agrees to pay to Portable, on the terms set forth in the Volume License
Agreement, (i) a license fee of [*] and (ii) annual maintenance fees equal to
[*] of the aggregate software license fees paid under the Volume License
Agreement. Licenses covering additional Authorized Users may thereafter be
purchased at a rate of [*] per Authorized User. Portable agrees, that for the
[*] period commencing on the exercise of the License option, it will provide
AmEx with consulting services related to AmEx's implementation of XMS at a rate
of [*]. AmEx shall reimburse Portable for its actual travel and out-of-pocket
expenses incurred in connection with providing consulting services.
5. PRODUCT INTEGRATION.
5.1 Integration Program. Both Parties agree (i) that they will mutually
develop Work Plans regarding the Integration Program, (ii) that each will commit
and utilize sufficient resources to meet the milestones set forth in any aspect
of the Integration Program and to complete development of each Integration
Program component in accordance with the Work Plans (including the schedule set
forth therein), (iii) that each will use reasonable best efforts to maintain the
compatibility of their respective products and services [*] that are part of the
Integration Program either currently (as listed in the following sentence) or as
later added to the Integration Program by mutual agreement, and (iv) that each
will provide to the other, from time to time, a set of features and possible
product extensions for
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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inclusion in the Integration Program. The initial portion of the Integration
Program will be the design and development of [*]. The currently contemplated
features of the initial portion of the Integration Program are set forth in
Exhibit C-1. [*]
5.2 Technical Information. Each Party agrees to grant to the other Party
a nontransferable limited license, during the term of this Agreement, to use its
Technical Information in connection with the other Party's development of
Integration Program components; provided, however, if any such Technical
Information is owned by a third party and is non-assignable, prior to any use by
any Party, the other Party shall (a) first obtain the consent of the owner to
such transfer and (b) use its reasonable best efforts to obtain such consent.
5.3 No Financial Obligation. Neither Party shall have any financial
obligation with respect to any development work undertaken by the other Party,
except as may be set forth in a separate written agreement, or amendment to this
Agreement, executed in either case by both Parties.
5.4 Support After Termination. Each Party agrees that following any
termination of this Agreement it will take such actions as are reasonably
necessary to maintain for each Customer that is a Customer of both AmEx and
Portable the level of product and service integration that existed at
termination.
6. MARKETING AND SUPPORT.
6.1 Joint Marketing Responsibilities.
(a) AmEx shall participate with Portable in the development and
delivery of a press release announcing the relationship between AmEx and
Portable. The press release shall be subject to the prior written approval of
both AmEx and Portable.
(b) All information to be disseminated externally about the
relationship between Portable and AmEx and the products marketed hereunder shall
be reviewed and approved by both Parties prior to any use or other publication.
(c) Portable and AmEx each agree, upon reasonable request, to
provide training to one another's sales and marketing personnel regarding the
products and services that are being marketed to Customers and Prospects under
this Agreement and the Integration Program.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(d) The Parties agree to participate in a committee (the
"Steering Committee") through designated personnel of equal number. The Parties
intend that the Steering Committee shall meet at least once per calendar quarter
to review the status and direction of the Parties' relationship, the Integration
Program, and any issues of concern to either Party regarding the matters that
are the subject of this Agreement. All details regarding time, manner, place and
agenda for such meetings shall be decided by the Steering Committee.
6.2 Marketing and Support Responsibilities of Portable.
(a) Portable shall provide AmEx with Portable marketing
literature in such quantities as are reasonably requested from time to time by
AmEx for distribution to its Customers and other valid purposes.
(b) Portable shall provide AmEx with such reasonable access to
appropriate sales and marketing personnel of Portable as may be mutually agreed
by the Parties in order to present information about AmEx's products or
services, the Integration Program, and to conduct the training referenced in
Section 6.1(c).
(c) Portable may provide a link from its Website to AmEx's
corporate services Website if requested by AmEx, and in that connection agrees
to enter into a Hyperlink Agreement in the form annexed hereto as Exhibit D
subject to such modifications thereto as may be agreed through good faith
negotiations of the Parties. Any material presented on Portable's Website
regarding AmEx shall be prepared by AmEx, approved in writing by Portable and
subject to the continuing approval of Portable and AmEx.
(d) Portable will provide warranty service and support and
Customer One Services to Customers, including [*] under the terms of its Volume
License Agreement with each Customer.
(e) Portable agrees that copies of XMS licensed to [*] and
Referred Customers shall include an AmEx logo on the splash screen and other
mutually agreed areas in a manner proposed by AmEx, and subject to reasonable
approval of Portable.
6.3 Marketing Responsibilities of AmEx.
(a) AmEx shall provide Portable with marketing literature of AmEx
in such quantities as are reasonably requested from time to time by Portable for
distribution to Customers and other valid purposes.
(b) AmEx may arrange for Portable's participation in events
sponsored or attended by AmEx that provide a forum for the joint marketing of
XMS and the products and/or services of AmEx (e.g. user groups, vendor fairs,
trade shows, seminars). Each Party will be responsible for its own out-of-pocket
expenses incurred in connection
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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with these events.
(c) AmEx shall provide Portable with such reasonable access to
appropriate sales and marketing personnel of AmEx as may be mutually agreed by
the Parties in order to present information about Portable's products and
services, the Integration Program, and to conduct the training referenced in
Section 6.1(c).
(d) AmEx may provide a link from its corporate services Website
to Portable's Website if requested by Portable, and in that connection agrees to
enter into the Hyperlink Agreement in the form annexed hereto as Exhibit D
subject to such modifications thereto as may be agreed through good faith
negotiations of the Parties. Any material presented on AmEx's Website regarding
Portable shall be prepared by Portable, approved in writing by AmEx, and subject
to the continuing approval of AmEx and Portable.
(e) AmEx shall make no representations, warranties, or guarantees
to Prospects, Expense Manager Customers, Customers, or the trade with respect to
the specifications, features, or capabilities of XMS or the Customer One
Services that are substantively inconsistent with the documentation Portable
supplies with XMS, the warranties and disclaimers contained in the Volume
License Agreement, or the XMS literature supplied by Portable.
7. LEAD REFERRALS AND ACCEPTANCE.
7.1 Lead Referrals. AmEx agrees to provide Portable with qualified XMS
customer leads (a "Lead") and shall be responsible for the customer development,
marketing, and support functions set forth in Exhibit D for which it is
designated a Responsible Party. In order to be eligible to receive a rebate in
connection with the referral of a Lead, AmEx must complete and submit within
thirty (30) days of pre-qualifying a referral, a "Lead Referral Worksheet" in
the form of the attached Exhibit E for each sales opportunity AmEx identifies
for XMS. Each Lead Referral Worksheet must be completed in all material
respects. A Lead Referral Worksheet may be submitted in either paper or
electronic form. [*]
7.2 Lead Acceptance. Portable shall act diligently in responding to
Leads submitted by AmEx; a Lead shall be deemed accepted by Portable unless
rejected within [*] from the date Portable receives the Lead Referral Worksheet.
Portable may [*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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[*]. Any conflicts will be submitted to the Steering Committee for
resolution. With respect to Leads that it has accepted, Portable shall be
responsible for the customer development, marketing, and support activities set
forth in Exhibit E for which it is designated a Responsible Party.
7.3 Rebate Payment Eligibility. Rebate payments shall be payable by
Portable to AmEx on each Lead accepted during the term of this Agreement, which
is converted into a Referred Customer on or before the Lead Expiration Date. The
Lead Expiration Date shall be [*] after the date a Lead is accepted by Portable.
Leads may be resubmitted by AmEx after the Lead Expiration Date and will be
treated pursuant to the terms of Section 7.2 above.
7.4 Rebate Program. For each Referred Customer, Portable shall pay to
AmEx a rebate payment [*]
(a) Standard Rebate Rate. For transactions in which the Lead
Referral Sales Cycle is [*] the applicable Rebate Rate shall be determined
as follows:
Range of [*]
Where The Closing Occurs in This Lead Rebate [*]
Referral Sales Cycle Applicable Within Each Range
------------------------------------- -----------------------------
Level 1 [*] [*]
Xxxxx 0 [*] [*]
Level 3 [*] [*]
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Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(b) Preferred Rebate Rate. For transactions in which the Lead
Referral Sales Cycle is [*] the applicable Rebate Rate shall be determined as
follows:
Range of [*]
Where The Closing Occurs in This Lead Rebate [*]
Referral Sales Cycle Applicable Within Each Range
------------------------------------- -----------------------------
Level 1 [*] [*]
Xxxxx 0 [*] [*]
Level 3 [*] [*]
(c) [*]
7.5 Reporting and Payment. (a) Portable will provide a monthly report to
AmEx within thirty (30) days following the end of a calendar month of all
accepted or rejected Leads submitted by AmEx and a quarterly report of [*].
Additional reports shall be provided by Portable at AmEx's reasonable request.
Portable shall use diligent efforts to transition to reporting on [*] on a
monthly basis by September 1, 1998.
(b) Rebate payments will not be paid to AmEx until the [*] to
which the payment relates are collected by Portable from a Referred Customer.
Portable will make such payments to AmEx not later than thirty (30) days
following the end of a calendar quarter (or calendar month, after the transition
to a monthly reporting system has occurred) based on the [*] collected by
Portable during the applicable period.
7.6 Audit. AmEx may from time to time, but not more than once every
twelve (12) months, perform an audit upon reasonable notice to Portable to
determine compliance with the terms of this Agreement. Any audit must be
conducted during the hours of 8 AM and 5 PM Pacific Time by an independent
certified public accountant selected by AmEx and reasonably satisfactory to
Portable and all costs of an audit shall be borne by AmEx; provided, however,
that if the results of an audit disclose a shortfall, Portable shall promptly
pay to AmEx the amount of such underpayment and, if the results
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Commission. Confidential treatment has been requested with respect to the
omitted portions.
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disclose a shortfall of more than two percent (2%) shall also promptly pay to
AmEx interest on such underpayment at the rate of twelve percent per annum and
the reasonable costs of the audit.
8. TERM AND TERMINATION.
8.1 This Agreement shall commence on the Effective Date and, unless
sooner terminated as provided in this Agreement, shall remain in full force and
effect for a term of [*] (the "Initial Term"). Thereafter, this Agreement shall
automatically renew for successive [*] (each, a "Renewal Term"), provided,
however, that a Party may terminate this Agreement on the expiration of the
Initial Term or any Renewal Term by delivering written notice of termination to
the other not less than sixty (60) days before the expiration of such Initial or
Renewal Term.
8.2 Termination. This Agreement may be terminated at any time prior to
the expiration of its term, as follows:
(a) By either Party by written notice to the other Party if a
receiver shall have been appointed over the whole or any substantial part of the
assets of the other Party, a petition or similar document is filed by the other
Party initiating any bankruptcy or reorganization proceeding, or such a petition
is filed against the other Party and such proceeding shall not have been
dismissed or stayed within sixty (60) days after such filing;
(b) By either Party upon written notice if the other Party has
breached the terms of this Agreement in any material respect and fails to cure
such breach within thirty (30) days after receipt of written notice of such
default;
(c) by AmEx if the Financial Statements provided by Portable
pursuant to Section 12.4 do not demonstrate that Portable is solvent and able to
pay its commercial insurance premiums in commercially reasonable amounts;
(d) by either Party upon written notice given upon the
Acquisition (as defined in Section 13.5) of Portable by a [*]; and
(e) by AmEx upon the acquisition of [*] or more of the voting or
equity securities of Portable by an AmEx Competitor.
8.3 Effect of Termination. Upon any termination or expiration of this
Agreement:
(a) For a period of one year after the date of termination, all
applicable books and records of Portable shall be made available to AmEx for the
purpose of determining compliance by Portable with its obligations under this
Agreement;
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(b) Each Party shall immediately cease distribution of all items
in its possession which bear the trademarks of the other Party, shall as
promptly as is practicable cease all use of the trademarks of the other Party,
and will not use any xxxx which is confusingly similar to any trademarks of the
other Party;
(c) Each Party shall return to the other Party marketing
literature and materials of the other Party in its possession or shall destroy
such items and certify their destruction to the other Party; and
(d) Each Party's rights and obligations with respect to payments
due hereunder as well as the provisions of Sections 2.3, 3.2, 4.1 (unless the
Agreement has been terminated by AmEx), 4.2, 5.4, 7.4, 7.5, 7.6, 8.3, 8.4, 9,
10, 11, 12, and 13 shall survive termination of this Agreement. In addition,
upon a termination of this Agreement pursuant to Section 8.2(d) or Section
8.2(e), the Parties agree that the provisions of Sections 3.1, 5.1, 5.2, 5.3,
6.1(b), 6.1(d), 6.2, 6.3, 7.1, 7.2, and 7.3 (or such other provisions as may be
negotiated pursuant to Section 3.3 hereof) shall survive termination for a
period of twelve (12) months.
8.4 No Damages. NEITHER PORTABLE NOR AMEX SHALL BE LIABLE TO THE OTHER
FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF
GOODWILL OR LOSS OF PROSPECTIVE PROFITS, ON ACCOUNT OF THE TERMINATION OR
EXPIRATION OF THIS AGREEMENT STRICTLY IN ACCORDANCE WITH THE TERMS OF 8.1 OR
8.2; PROVIDED, HOWEVER, THAT A PARTY TERMINATING THE AGREEMENT FOR BREACH
PURSUANT TO SECTION 8.2 (b) SHALL BE ENTITLED TO RECOVER FOR DIRECT DAMAGES
CAUSED BY THE BREACH. EACH OF AMEX AND PORTABLE WAIVES ANY RIGHT IT MAY HAVE TO
RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS
AGREEMENT IN ACCORDANCE WITH ITS TERMS. THE PARTIES ACKNOWLEDGE THAT THIS
SECTION 8.4 HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER
INTO THIS AGREEMENT AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS
AGREEMENT, BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
9. TITLE AND COPYRIGHT.
9.1 General Overview. The Parties contemplate that the Integration
Program will include the joint development of technical specifications followed
by the independent development of software modules, based in part on such
technical specifications, that will integrate the products that are part of the
Integration Program. The Parties contemplate that such software modules will be
incorporated in the product offering(s) of the developing Party ("Incorporated
Modules") and will not be independent components or software programs. [*]
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Commission. Confidential treatment has been requested with respect to the
omitted portions.
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[*]
9.2 Portable. AmEx acknowledges and agrees that, as between AmEx and
Portable, XMS and any software module developed by Portable as part of the
Integration Program and used by Portable as an Incorporated Module (a "Portable
Module") are and shall remain the exclusive property of Portable and that
Portable will retain all right, title and interest thereto during the term of
this Agreement and thereafter. Copyright to all of the source code, object code,
documentation, any other embodiment of XMS and any Portable Module belong to and
shall remain with Portable.
9.3 AmEx. Portable acknowledges and agrees that, as between Portable and
AmEx, any software module developed by AmEx as part of the Integration Program
and used by AmEx as an Incorporated Module (an "AmEx Module") shall remain the
exclusive property of AmEx and that AmEx will retain all right, title and
interest therein during the term of this Agreement and thereafter. Copyright to
all of the source code, object code and any other embodiment of any AmEx Module
belong to and shall remain with AmEx.
9.4 [*]
10. LIMITATIONS OF LIABILITY.
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 10, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUES, LOSS OF PROFITS, OR
COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY, EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY TO ANY
CLAIM OR CAUSE OF ACTION WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE)
STRICT LIABILITY, OR BREACH OF WARRANTY, BUT SHALL NOT APPLY IF (A) A PRODUCT IS
DETERMINED TO BE DEFECTIVE AND TO HAVE CAUSED BODILY INJURY OR DEATH, OR (B) IF
SUCH DAMAGES ARE THE RESULT OF THE OTHER PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
11. PROPRIETARY INFORMATION AND CONFIDENTIALITY.
11.1 Proprietary Information. The Parties intend to disclose and
exchange confidential, proprietary and trade secret, Technical Information,
technical and business plans, proposed products, and marketing and sales reports
regarding their businesses and, in the case of Portable, benchmark tests of XMS,
the Rebate Rates, and the pricing terms set forth in this Agreement (the
"Proprietary Information").
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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11.2 Obligation of Confidentiality. Each Party shall protect and keep
confidential any and all Proprietary Information of the other Party embodied in
any information licensed or disclosed hereunder, and shall not use, disclose or,
except as permitted by Section 11.3, allow any third party access to any such
Proprietary Information, except to the extent allowed by the licenses granted in
this Agreement. In furtherance and not in limitation of the foregoing, each
Party agrees to maintain the strict confidentiality of any source code delivered
by the other Party.
11.3 Limited Access. Each Party shall use its best efforts to ensure
that only employees and third parties whose duties give them a need to know such
Proprietary Information of the other Party shall have access thereto. All such
persons and entities shall be instructed to treat the same as proprietary and
confidential and the receiving Party shall take such other measures to protect
the confidentiality of such Proprietary Information as it deems reasonable under
the circumstances. Without limiting the generality of the foregoing, each Party
shall require any third party to whom it discloses any Proprietary Information
to sign a confidentiality agreement, enforceable by the other Party, whereby
such third party agrees to be bound by the confidentiality provisions set forth
in Section 11.2.
11.4 Required Disclosure. If a Party, or any of its employees, shall be
under a legal obligation in any administrative, governmental, or judicial
circumstance involuntarily to disclose any Proprietary Information of the other,
it shall give the Party that owns such Proprietary Information (the "Disclosing
Party") prompt notice thereof so that the Disclosing Party may seek an
appropriate protective order. If the Disclosing Party is finally unsuccessful in
obtaining such protective order, and if the Party receiving such Proprietary
Information (the "Receiving Party") or any such employee would, in the opinion
of its counsel, be held in contempt or suffer other censure or penalty for
failure to disclose, disclosure pursuant to the order or decree of an
administrative, governmental or judicial authority with jurisdiction over such
Party may be made by the Receiving Party or its employees without liability
hereunder.
11.5 Permitted Disclosures. Notwithstanding the foregoing, neither Party
shall be liable to the other with regard to any disclosure of Proprietary
Information of the other Party which:
(a) was known to the Receiving Party, without restriction, at the
time of disclosure, as shown by the files of the Receiving Party in existence at
the time of disclosure;
(b) is disclosed with the prior written approval of the
Disclosing Party;
(c) was independently developed by the Receiving Party, without
any use of the Proprietary Information and by employees or other agents of (or
independent contractors hired by) the Receiving Party who have not been exposed
to such Proprietary Information; or
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(d) becomes known to the Receiving Party, without restriction,
from a source who obtained such information other than through the breach of
this Agreement by the Receiving Party and not otherwise in violation of the
Disclosing Party's rights.
11.6 Remedies. The Parties recognize and acknowledge that Proprietary
Information may have competitive value and be of a confidential nature and that
irreparable damage might result to the Disclosing Party if such Proprietary
Information were improperly disclosed by a Receiving Party to a third party.
11.7 Survival. The obligations of confidentiality and limitations of
use, disclosure, and access set forth herein shall survive the termination of
this Agreement for a period of three years from the date of such termination.
12. INDEMNIFICATION.
12.1 By Portable. Portable agrees to indemnify, defend and hold harmless
AmEx and its Affiliates, and their respective directors, officers, employees,
and agents, from any and all third party claims, suits and liabilities
(including reasonable attorney's fees and expenses) arising out of or resulting
from (a) any claim, suit, or proceeding, and any damages or liability therefrom
or settlement thereof (including reasonable fees of attorneys and related costs)
to the extent based on a claim that XMS or Portable infringes the patent,
copyright, trademark, trade secret, or other proprietary right of a third party,
(b) any actual or alleged act or omission on the part of Portable, its
directors, officers, employees or agents (including Affiliates and licensees) in
the marketing or selling of XMS or its predecessors and successors (other than
to [*] unless the acts or omissions of Portable are primarily responsible for
the claims of the [*]), whether or not such acts or omissions occurred prior to
the Effective Date.
12.2 By AmEx. AmEx agrees to indemnify, defend and hold harmless
Portable and its Affiliates, and their respective directors, officers, employees
and agents, from any and all claims, suits and liabilities (including reasonable
attorney's fees and expenses) (a) arising out or resulting from any actual or
alleged act or omission on the part of AmEx, its directors, officers, employees
or agents (including Affiliates and licensees) in the marketing or selling of
(i) [*] and (ii) any AmEx products or services to Customers and Prospects,
whether or not such acts or omissions occurred prior to the Effective Date,
including without limitation, providing representations, commitments, or
warranties (or failing to effectively disclaim all warranties and liabilities on
behalf of Portable) to Prospects and [*] and (b) of third parties arising out of
or resulting from any claim, suit, or proceeding, and any damages or liability
therefrom or settlement thereof (including reasonable fees of attorneys and
related costs) to the extent based on a claim that [*] or AmEx infringes the
patent, copyright, trademark, trade secret, or other proprietary right of a
third party.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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12.3 Indemnification Procedure. If any action shall be brought against
either Party in respect of which indemnity may be sought from the other Party
pursuant to the provisions of this Section 12 ("Claim"), the indemnified party
shall promptly notify the indemnifying party in writing, specifying the nature
of the Claim, the total monetary amount sought, as well as such relief as is
sought therein. The indemnified party shall cooperate with the indemnifying
party at the indemnifying party's expense in all reasonable respects in
connection with the defense of the Claim if by a third party. If the Claim from
a third party is solely for monetary damages or a claim of infringement, the
indemnifying party shall, upon written notice to the indemnified party,
undertake the defense or settlement of the Claim; in all other instances, the
indemnified party, upon written notice to the indemnifying party, may undertake
the defense or settlement of the Claim. In the event the indemnified party
undertakes the defense or settlement of the Claim, the indemnifying party shall
have the right to employ separate counsel at its own expense and participate in
the defense of the Claim. The indemnifying party shall reimburse the indemnified
party upon demand the judgment of a court of competent jurisdiction or pursuant
to a bona fide compromise or settlement of claims, demands or actions, and shall
reimburse the indemnified party upon demand for any payments of attorney's fees
and related expenses made by the indemnified party. A Party's failure to give
timely notice or to provide copies of documents or to furnish relevant data in
connection with any claim for indemnification shall not constitute a defense (in
part or in whole) to any claim for indemnification for such Party, except and
only to the extent that such failure shall result in any prejudice to the
indemnifying party; provided, that any such compromise or settlement must be
approved by the indemnifying party, and any such compromise or settlement must
be approved by the indemnified party, which approval shall not be unreasonably
withheld.
12.4 Financial Statements. As promptly as practicable following the end
of each of its fiscal years during the term of this Agreement, Portable shall
deliver to AmEx a complete copy of Portable's audited financial statements
certified by Portable's independent certified accountants (the "Financial
Statements"). The Financial Statements shall be Proprietary Information of
Portable.
13. GENERAL.
13.1 Entire Agreement; Amendment. This Agreement, together with any
exhibits attached hereto, contains the complete and exclusive understanding and
agreement of the parties with respect to its subject matter and supersedes,
merges, and replaces all prior writings, discussions and understandings relating
to such subject matter. This Agreement may only be amended by a written
agreement and signed by authorized representatives of both parties.
13.2 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, excluding those laws that
direct the application of the laws of another jurisdiction. The Parties hereby
consent to the exclusive jurisdiction of any State or Federal court located in
New York County. Neither
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Party shall knowingly take or fail to take any action that might cause it or the
other Party to be in violation of any law or regulation of the United States,
including the United States Foreign Corrupt Practices Act.
13.3 Force Majeure. Neither Party shall be liable for any delay or
failure to meet its obligations pursuant to this Agreement due to natural
circumstances beyond its reasonable control, including, but not limited to war,
riots, insurrection, civil commotion, fire, flood, storm or inability to obtain
necessary labor, materials or manufacturing facilities as a direct result of
such natural disasters.
13.4 Severability. If any term or provision of this Agreement is found
to be invalid or unenforceable for any reason, it shall be adjusted rather than
avoided, if possible, so as best to accomplish the objective of the parties to
the extent possible. In any event, the remaining terms and provisions shall be
deemed valid and enforceable. It is expressly understood and agreed that each
provision of this Agreement providing for a limitation of liability disclaimer
or limitation of warranties, or exclusion of damages is intended by the parties
to be severable and independent of any other provisions and to be enforced as
such.
13.5 Assignment. This Agreement shall be binding on the Parties and on
their successors and assigns. Except as expressly provided herein, neither Party
shall transfer, assign or subcontract any right or obligation hereunder without
the prior written consent of the other Party, which consent shall not be
unreasonably withheld; provided, however, that consent shall not be required (i)
in connection with any assignment to an entity that acquires all or
substantially all of a Party's assets, voting stock, or business (an
"Acquisition"); or (ii) to an Affiliate of a Party.
13.6 Waiver. The failure of either Party any time to require performance
by the other Party of any provision hereof shall not affect in any way the full
right to require such performance at any time thereafter; nor shall the waiver
by either Party of a breach of any provision hereof be taken or held to be a
waiver of the provision itself.
13.7 Indemnification; Attorneys' Fees. Subject to the limitations of
Article 10, each Party agrees to indemnify and hold harmless the other and their
respective Affiliates and their respective directors, officers, employees, from
losses, damages and liabilities to the extent arising out of or based upon a
breach by such Party of this Agreement. In the event of any suits and actions
with respect to this Agreement, the prevailing Party shall be entitled to
recover reasonable attorneys' fees and other costs and expenses incurred in
resolving such dispute.
13.8. Cooperation. Each Party to this Agreement agrees to execute and
deliver all documents and to perform all further acts and to take any and all
further steps that may be reasonably necessary to carry out the provisions of
this Agreement and the transactions contemplated hereby.
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13.9 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but which together shall constitute a
single instrument.
13.10 Notices. All notices relating to this Agreement shall be in
writing, signed by the Party giving or making such notice or communication, and
shall be delivered by: (a) personal delivery; (b) telecopier facsimile
transmission; or (c) by postage-prepaid certified or registered mail (airmail if
available), return receipt requested. Notices shall be sent to the address of
the other Party set forth below, or such other address as either Party may
specify in writing in accordance with this Section 13.10, and shall be deemed
given upon personal delivery, three (3) business days after deposit in the mail,
or upon acknowledgment or receipt of facsimile transmission:
For Portable: For AmEx:
S. Xxxxxx Xxxxx [*]
President and CEO [*]
Portable Software Corporation [*]
00000 XX 00xx Xxxxxx American Express Company
Xxxxxxx, XX 00000 000 Xxxxxxxx (00xx Xxxxx)
Xxx Xxxx, XX 00000
13.11 Voluntary Preliminary Dispute Resolution.
(a) In the event of any controversy or claim arising out of or
relating to this Agreement, the Steering Committee will first attempt in good
faith to resolve the matter. If the Steering Committee is unable to resolve such
matter, the Parties will attempt in good faith to resolve such matter by
negotiations between senior executives of the Parties who have settlement
authority but do not have direct responsibility for the administration of this
Agreement. If the Parties are unable to resolve a controversy or claim within
sixty (60) days after written submission to the Steering Committee, then the
matter may be submitted to a court of competent jurisdiction. All negotiations
conducted pursuant to this Section 13.11 are confidential and shall be treated
as compromise and settlement negotiations for purposes of the Federal Rules of
Evidence and state rules of evidence;
(b) The Parties shall submit any claim, dispute, or controversy
within one year after such claim, dispute, or controversy becomes known to the
Party seeking redress; and
(c) This Section 13.11 sets forth the exclusive method for
adjudicating disputes between the Parties arising out of or relating to this
Agreement; provided that nothing in this Section 13.11 shall prevent a Party
from applying to the federal or state courts to obtain injunctive relief pending
resolution of the dispute through the voluntary dispute resolution procedures
set forth herein and to join in any such action such other claims as may be
required to be brought by applicable joinder rules.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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13.12 No Agency. All decisions regarding effectuation this Agreement and
any action to be taken hereunder shall be solely at the discretion of the Party
making such decision. Neither Party shall hold itself out as an agent of the
other. Neither Party shall have any authority to bind or obligate the other in
any manner.
13.13 Insurance. Portable shall at all times during the term of this
Agreement maintain insurance in commercially reasonable amounts covering
interruption of services and other general liabilities. Such insurance shall
name AmEx as an additional insured. Portable shall promptly notify AmEx in the
event of a cancellation or other termination of any such policy.
13.14 Trademarks. The use by a Party of any logo, trademark or other
xxxx owned by the other Party or Affiliates of the other Party shall be strictly
limited to each specific right to use articulated in this Agreement.
13.15 Investment. Portable agrees to grant AmEx an option to purchase
shares of Portable's Series E Preferred Stock, for an aggregate purchase price
of One Million Dollars and at a pre-money valuation of not less than [*] on the
terms set forth in Exhibit G. This option shall expire at the earlier of (i)
February 14, 1998, and (ii) delivery of written notice of expiration to AmEx by
Portable.
13.16 Interpretation. The headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties and shall not in any way affect the meaning or interpretation of this
Agreement. As used in this Agreement, the term "person" shall mean and include
an individual, a partnership, a joint venture, a corporation, a trust, a limited
liability company, an unincorporated organization and a government or any
department or agency thereof. In the event of a conflict between the terms of
this Agreement and the terms of an Exhibit, the terms of this Agreement shall
control.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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IN WITNESS WHEREOF, the Parties hereto agree to the provisions set forth
above and have executed this Strategic Marketing Alliance Agreement as of the
Effective Date.
PORTABLE SOFTWARE CORPORATION AMERICAN EXPRESS COMPANY
By: /s/ S. XXXXXX XXXXX By: /s/ [*]
---------------------------------- ---------------------------------
S. Xxxxxx Xxxxx [*]
Title: President and CEO Title: [*]
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
21
EXHIBIT A
Portable Software Corporation Volume License Agreement
22
PORTABLE AGREEMENT NUMBER:__________
PORTABLE SOFTWARE CORPORATION
VOLUME LICENSE AGREEMENT
Volume License Agreement (the "Agreement") made this ______ day of ____________,
1997, (the "Agreement Date") by and between Portable Software Corporation
("Portable") and _____________________ ("Customer").
In consideration of the license fee paid by Customer to Portable and of the
mutual covenants and conditions set forth herein, the parties agree as follows:
DEFINITIONS:
"Authorized User" means an employee or agent of Customer (including any
wholly-owned subsidiary of Customer) who prepares or processes a Customer
expense report.
"CustomerOne Services" means the technical support and related services provided
by Portable for the Licensed Programs as set forth in Section 5.1 and Exhibit B.
"Documentation" means technical manuals and other documentation relating to the
operation and use of the Licensed Programs which are delivered with the
respective Licensed Programs.
"Licensed Programs" means the Portable Software and the Third Party Software.
"Portable Software" means object code versions of the software programs
developed by or for Portable and described in Exhibit A including any
accompanying Documentation, and also including all Updates thereto which may be
provided to Customer by Portable pursuant to the terms of Section 5.
"Third Party Software" means the object code versions of the third party
software programs described in Exhibit A, including any accompanying
Documentation, and including all Updates thereto which may be provided to
Customer by Portable pursuant to the terms of Section 5.
"Updates" means one (1) copy of all published revisions and corrections to the
Documentation and one (1) copy of corrections and new releases of the Licensed
Programs that are generally made available at no additional cost to Portable's
customers who have ordered CustomerOne Services for the relevant time period.
Updates shall not include any options or future products which Portable or third
party vendors license separately.
1. LICENSE
1.1 Portable hereby grants to Customer, subject to the terms and conditions
of this Agreement and payment of the license fees set forth in Exhibit
A, a fully-paid, non-exclusive license without right of sublicense (the
"License") to have the Licensed Programs used by Authorized Users
solely for Customer's own internal data processing operations. This
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License permits Customer to have the Licensed Programs used by a number
of Authorized Users not exceeding the number of user licenses Customer
has purchased as listed on Exhibit A. Portable reserves the right to
include within the Licensed Programs means to audit or determine the
number of Authorized Users using the Licensed Programs. Customer may
only duplicate the Licensed Programs and the Documentation in order to
make a copy available to each Authorized User.
1.2 Customer agrees to maintain an annual record of the number of users who
have submitted an expense report. Such record will be obtained by
running a report against Customer's XMS database. These annual records
must be retained for as long as the Licensed Programs remain in use and
for a period of two (2) years thereafter, and must be made available
for inspection by Portable or its authorized representative upon
demand.
1.3 Other than as provided in the preceding paragraph, Customer may not
copy any Licensed Programs, or any portion thereof, except to (a) make
one copy solely for backup or archival purposes; or (b) transfer the
Licensed Programs to a single hard disk provided Customer keeps the
original solely for backup or archival purposes. Customer agrees to
reproduce on each copy the copyright and other proprietary notices
provided on the Master Disk(s) and the Documentation. Customer may not
market, rent, lease, or relicense the Licensed Programs or use the
Licensed Programs for third party training, commercial timesharing, or
service bureau use.
1.4 Customer is authorized to use the Licensed Programs on a back-up
computer, at no additional charge, when its primary computer is
temporarily inoperable until operable status is restored and processing
on the back-up computer is completed. In addition, Customer may install
the Licensed Programs on a nonproduction test computer, at Customer's
disaster recovery site, for a period not to exceed thirty (30) days per
year, solely to recreate Customer's production environment for disaster
recovery testing. Customer expressly agrees that it shall neither apply
nor benefit from the functionality of the Licensed Programs under such
disaster recovery testing, except in the case of disaster.
1.5 Customer agrees not to alter, merge, modify or adapt the Licensed
Programs or the Documentation in any way or remove or obscure
Portable's copyright or trademark notices. In particular, Customer
agrees not to cause or permit the disassembly, decompilation, or
reverse engineering of any Licensed Program. In jurisdictions where a
right to reverse engineer is provided by law unless information is
available about products in order to achieve interoperability,
functional compatibility, or similar objectives, Customer agrees to
submit a detailed written proposal to Portable
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concerning Customer's information needs before engaging in reverse
engineering.
1.6 Other Portable products and/or run time versions of Third Party
Software, may be embedded in or delivered with the Licensed Programs
under this Agreement ("Embedded Programs"). Customer's right to use any
Embedded Programs shall be limited to use necessary to implement the
Licensed Programs it has licensed. Customer shall have no right to use
such Embedded Programs other than as necessary for the licensed
ordinary use of the Licensed Programs.
2. OWNERSHIP
2.1 Portable is the owner of, or has the rights to distribute, all of the
software components of the Licensed Programs, all copies of the
Licensed Programs, the forms generated by the Licensed Programs and the
Documentation for the Licensed Programs. The Licensed Programs and the
Documentation are also protected under applicable copyright laws and
Customer's right to use the Licensed Programs and the Documentation is
limited to the terms and conditions set forth in this Agreement. Any
use of the Licensed Programs by the U.S. government is subject to
"restricted rights" as that term is defined in FAR 52.227-19(c)(2) or
DFAR 252.227.7013(c)(1) (if used in a defense related agency). Customer
does not acquire any rights, express or implied, in the Licensed
Programs, other than those specified in this Agreement.
3. LIMITED WARRANTY AND LIMITATION OF REMEDIES
3.1 Warranties
A. Licensed Programs
Portable warrants that (i) each Licensed Program will perform in all
material respects in accordance with the Documentation for a period of
ninety (90) days from the date of delivery of such Licensed Program to
Customer, and (ii) each Licensed Program will not, as a result of the
date change from December 31, 1999 to January 1, 2000 fail to perform
in all material respects in accordance with the Documentation in the
year 2000 and beyond.
Portable further warrants that the Licensed Programs do not contain any
time bombs, usage authorization codes, or other codes or programming
devices that may be used to access, modify, delete, damage, deactivate
or disable the Licensed Programs. The foregoing will not be deemed to
prohibit or limit Portable in any way from including features in the
Licensed Programs which restrict unlicensed use.
B. Media
Portable warrants that the Master Disk provided by Portable will be
free from defects in materials and workmanship under normal use for a
period of ninety (90) days from the
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date of delivery of the Master Disk to Customer.
C. Services
Portable warrants that its CustomerOne Services and consulting services
will be performed consistent with generally accepted industry
standards. This warranty shall be valid for ninety (90) days from
performance of service.
3.2 Limitations of Warranty
The warranties above are the sole warranties provided by Portable. To
be covered by these limited warranties, Customer must provide Portable
with written notice of the breach of warranty within the applicable
warranty period. Please do not return any defective Master Disks until
you have called Portable's technical service support group and received
a return authorization number ("RMA"). The warranties do not apply if a
Master Disk has been damaged by
misuse, or abuse or if a Licensed Program error is caused, in whole or
in part, by the failure of any hardware or other equipment to function
in accordance with the specifications of the applicable manufacturer.
PORTABLE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY
OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE LICENSED PROGRAMS, THE MEDIA, THE CUSTOMERONE
SERVICES AND CONSULTING SERVICES. In no event does Portable warrant
that the LICENSED PROGRAMS, related Documentation, or services will
satisfy Customer's requirements, be without errors, or that all
Licensed Program errors will be corrected, or that the operation of the
LICENSED PROGRAMS will be uninterrupted.
3.3 Exclusive Remedies
Customer's exclusive remedy, and Portable's entire liability for any
breach of warranty, shall be:
A. For Licensed Programs
At the option of Portable, either correction of the error that caused
the breach of warranty, or refund of the license fees paid to Portable
for the non-performing Licensed Program.
B. For Media
Portable will replace the defective materials unless the Master Disks
have been damaged by misuse or abuse.
C. For Services
At the option of Portable, either the reperformance of the services, or
refund the fees paid to Portable for the unsatisfactory services.
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4. LIMITATION OF LIABILITY AND DAMAGES
4.1 NEITHER PARTY (INCLUDING PORTABLE'S THIRD PARTY SOFTWARE PROVIDERS)
WILL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR
THIRD PARTY DAMAGES (INCLUDING LOST PROFITS OR SAVINGS, BUSINESS
INTERRUPTION, LOSS OF DATA, OR SIMILAR CLAIMS), WHETHER IN AN ACTION IN
CONTRACT OR IN TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitation of
liability set forth in this Section shall not be applicable to claims
by Portable for Customer's breach of the scope of the license rights
under Section 1.
4.2 To the maximum extent permitted by law, Portable's total liability
under this Agreement, for whatever cause other than bodily injury,
whether in an action in contract or in tort, will be limited to the
actual license fees paid by Customer under this Agreement, and if such
liability results from Customer's use of the Licensed Programs or from
services provided by or on behalf of Portable, such liability will be
limited to the actual fees paid by Customer for the relevant Licensed
Program or services giving rise to the liability. The limitation of
liability set forth in this Section shall not be applicable to claims
of infringement under Section 9.
4.3 The parties acknowledge that this Agreement allocates the risks between
Portable and Customer and that the fees reflect the limited warranties,
limitation of liability, and allocation of risk under this Agreement.
Customer further acknowledges that the pricing and terms of this
Agreement would have been different had there been a different
allocation of risk.
4.4 The parties acknowledge and agree that the limitations specified in
this Section will survive and apply even if any remedy provided in this
Agreement is determined to have failed of its essential purpose.
5. CUSTOMERONE, CONSULTING AND INTEGRATION SERVICES
5.1 CustomerOne Services will be provided to customer only under the terms
of Portable's CustomerOne policies (including applicable fees) in
effect on the date customer support is rendered. Portable's current
policies for its CustomerOne Services are set forth in Exhibit B
attached to this Agreement. Reinstatement of lapsed CustomerOne
Services is subject to Portable's CustomerOne reinstatement fees in
effect on the date CustomerOne Services are reordered.
5.2 Portable will provide consulting and training services agreed to by the
parties in writing under the terms of this Agreement. All consulting
services shall be billed on a time and materials basis unless the
parties
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expressly agree otherwise in writing. Any consulting or training
services acquired from Portable shall be bid separately from the
Licensed Programs and Customer may acquire either Licensed Programs or
consulting services without acquiring the other. For any on-site
services requested in writing by Customer, Customer shall reimburse
Portable for reasonable, actual travel and out-of-pocket expenses
incurred.
6. PAYMENT AND TAXES
6.1 Payment of license fees shall be due thirty (30) days after delivery of
the Licensed Programs. All other fees, including fees for CustomerOne
Services which are payable in advance of the applicable Support Period,
shall be paid within thirty (30) days of Customer receipt of a proper
invoice. If Customer's procedures require that an invoice be submitted
against a purchase order before payments can be made, Customer will be
responsible for issuing the purchase order at the time of order.
Customer agrees to pay applicable media and shipping charges. Customer
shall pay all applicable shipping charges and any federal, state, or
local excise, sales, use or other taxes (except taxes based on
Portable's net income) imposed in respect of the License granted
hereunder or otherwise arising out of this Agreement. In the event that
Portable is required to pay any such tax, Customer shall promptly
reimburse Portable for the same. Customer shall reimburse Portable for
all reasonable travel and out-of-pocket expenses incurred by Portable
in rendering any services. If past due amounts owing from Customer are
not paid within thirty (30) days (i) the unpaid amount shall bear
interest at the rate of 1% per month, and (ii) Portable will have the
right to terminate this Agreement upon thirty (30) days written notice
to Customer. Customer shall reimburse Portable for all reasonable cost
incurred (including reasonable attorneys' fees) in collecting past due
amounts.
7. EXPORT RESTRICTIONS
7.1 Customer agrees to comply fully with all relevant export laws and
regulations of the United States ("Export Laws") to ensure that neither
the Licensed Programs nor any direct product thereof are (i) exported
directly or indirectly, in violation of Export Laws; or (ii) intended
to be used for any purposes prohibited by the Export Laws, including
without limitation, nuclear, chemical, or biological weapons
proliferation. If a Licensed Program has been rightfully obtained by
Customer outside of the United States, Customer agrees not to re-export
such Licensed Program or any related technical information except as
permitted by the laws and regulations of the United States and those of
the jurisdiction in which Customer obtained such Licensed Programs.
8. TERM AND TERMINATION
8.1 This Agreement remains effective until terminated. Customer can
terminate this Agreement at any
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other time upon returning the Master Disk to Portable and destroying
all the copies of the Licensed Programs in any form in Customer's
possession. This License will also terminate if Customer fails to
comply with any material term or condition of this Agreement and such
breach is not cured within thirty (30) days following written notice
from Portable specifying such breach. This Agreement will terminate
automatically upon any transfer of a copy of the Licensed Programs by
Customer other than as permitted by this Agreement. The parties rights
and obligations under Sections 1.2, 2, 3.2, 4, 6, 7, 8.1, 9, 10, 11,
and 12 shall survive termination of this Agreement.
8.2 In the event of a termination of this Agreement, and in addition to any
other rights or remedies available to Portable, Customer shall promptly
return to Portable the Master Disk and destroy all copies of the
Licensed Programs in any form in Customer's possession. Within two (2)
weeks after any termination, Customer shall certify in writing to
Portable that it has destroyed any and all copies of the Licensed
Programs in Customer's possession. Except as provided in Section 3,
Customer shall not be entitled to a refund of any portion of the
license fee upon termination of this Agreement.
9. INDEMNIFICATION FOR INFRINGEMENT
9.1 Portable warrants to Customer that the Licensed Programs do not
infringe any patent issued in the United States or a European Union
country, or any trade secret, copyright, or other proprietary rights.
As Customer's exclusive remedy for breach of this warranty and
Portable's entire liability for infringement, Portable agrees to
indemnify and hold Customer harmless with respect to any suit, claim,
or proceeding brought against Customer alleging that Customer's
permitted use of the Licensed Programs under this Agreement constitutes
an infringement of any patent issued in the United States or a European
Union country, or any trade secret, copyright, or other proprietary
right. Portable shall defend Customer against any such suit, claim, or
proceeding, and pay all litigation costs and reasonable attorneys' fees
incurred in connection with such suit, claim or proceeding, and all
settlement payments and damages awarded therein, provided that Portable
is notified in writing within thirty (30) days of any such suit, claim
or proceeding, Customer tenders the control of any such claim or
proceeding to Portable, and Customer cooperates with Portable in the
defense or settlement of same.
9.2 Upon notice of alleged infringement or if in Portable's opinion such a
claim is likely, Portable shall have the right, at its option and
expense, either: (a) to procure for Customer the right to continue
using the Licensed Programs; or (b) to replace or modify the Licensed
Programs so that they provide substantially the same, or greater,
functionality and performance than the infringing
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Licensed Program, but are no longer subject to a claim or infringement.
If, in Portable's opinion, none of the options above are reasonably
available, Customer's sole and exclusive remedy shall be to return the
infringing Licensed Programs to Portable in exchange for a refund of
the price that Customer paid to Portable for such Licensed Programs,
less reasonable amortization pro-rated over a forty-eight (48) month
term from the date the infringing Licensed Programs are shipped to
Customer. Portable shall not have any obligation under this Section:
(a) to the extent the claim arises from a modification of the Licensed
Program other than by or on behalf of Portable or from Customer's use
of the Licensed Program in combination with other non-Portable
software, equipment or devices; or (b) if Portable has provided
Customer with a non-infringing version of the Licensed Programs (that
provide substantially the same, or greater, functionality and
performance than the infringing Licensed Program) and Customer does not
promptly replace all copies of the infringing version of the Licensed
Programs with the non-infringing version.
10. CONFIDENTIALITY
10.1 By virtue of this Agreement, Portable and Customer may have access to
information that is confidential to one another ("Confidential
Information"). Confidential Information shall be limited to the
Licensed Programs, the results of any benchmark testing of the Licensed
Programs (both of the foregoing are trade secrets of Portable), the
terms and pricing under this Agreement and all information clearly
identified as confidential. A party's Confidential Information shall
not include information that: (a) is or becomes a part of the public
domain through no act or omission of the other party; (b) was
rightfully in the possession of the other party or was known by it
prior to its disclosure; (c) is independently developed by the
receiving party without use of any Confidential Information of the
other party; or (d) was or is provided by the disclosing party to third
parties without restriction on disclosure.
10.2 The parties (including their respective employees and agents) agree to
hold each other's Confidential Information in confidence during the
term of this Agreement and for two (2) years thereafter. The parties
further agree, unless required by law or by court order, not to
disclose or make any Confidential Information of the other party
available in any form to any third party or to use it for any purpose
other than the implementation of this Agreement. Customer will not
permit anyone except Authorized Users to have access to the Licensed
Programs.
11. RIGHT TO AUDIT
11.1 Portable may from time to time request Customer to provide a
certification that actual use of the Licensed Programs are in
compliance with the terms of this
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Agreement. Portable may also, upon advance notice of at least five (5)
days, perform an audit during regular business hours to determine
compliance with the terms of this Agreement, provided that such audit
shall not unreasonably interfere with Customer's operations. If the
number of copies or Authorized Users is found to be greater than that
specified in this Agreement, or any modification to this Agreement,
Portable may charge Customer the applicable current license fees
therefor. If the resulting adjustment to the license fees owing by
Customer are greater than 5% of the license fees previously paid by
Customer to Portable, Portable may also charge Customer the reasonable
expenses associated with such audit.
12. GENERAL TERMS
12.1 This Agreement is governed by the laws of the State of Washington,
excluding those laws that direct the application of the laws of another
jurisdiction. The parties agree that this Agreement shall not be
governed by the 1980 U.N. Convention on Contracts for the International
Sale of Goods and that English is the governing language of this
Agreement. The parties hereby irrevocably consent to the personal
jurisdiction of the federal and state courts sitting in King County in
the State of Washington, and to service of process within or without
Washington by certified mail requiring a signed receipt, and the
parties agree that any court action relating to the enforcement of any
arbitration award or judgment or seeking injunctive or other equitable
relief, shall be brought in such courts.
12.2 All controversies or claims arising out of or relating to this
Agreement shall be resolved in accordance with the terms and conditions
set forth in this Section. First, the parties will attempt in good
faith to resolve each controversy or claim within sixty (60) days by
negotiations between senior executives of the parties who have
settlement authority and who do not have direct responsibility for the
administration of this Agreement. The disputing party shall give the
other party written notice of the controversy or claim in accordance
with the notice provision of this Agreement. The other party shall
submit a response within twenty (20) days after receiving said notice.
The notice and response shall include (a) a summary of the party's
position and a summary of the evidence and arguments supporting its
position, and (b) the name of the executive who will represent the
party. The executives shall meet at a mutually acceptable time and
place within thirty (30) days of the disputing party's notice and
thereafter as often as they deem reasonably necessary to resolve the
controversy or claim. Portable and Customer agree that all negotiations
conducted pursuant to this Section are confidential and shall be
treated as compromise and settlement negotiations for purposes of the
Federal Rules of Evidence and state rules of evidence.
If the controversy or claim has not been resolved within sixty (60)
days
10
31
of the disputing party's notice, the controversy or claim will be
resolved through binding arbitration conducted in accordance with the
commercial arbitration rules of the American Arbitration Association
("AAA") then in effect. If Customer initiates arbitration, the
arbitration proceeding will be held in King County in the State of
Washington and if Portable initiates arbitration, the arbitration
proceeding will be held in the city of the federal district courthouse
closest to Customer's principal place of business. The parties agree
that service of any notices in the course of such arbitration at their
respective addresses as provided in Section 12.4 shall be valid and
sufficient. All proceedings will be held and a transcribed record
prepared in English. The parties will choose, by mutual agreement, one
arbitrator within thirty (30) days of receipt by a party of the other
party's notice of its intent to arbitrate. If no arbitrator is
appointed within the time provided in this Agreement or any extension
of time which is mutually agreed upon, the AAA will make such
appointment within thirty (30) days of such failure. The award rendered
by the arbitrator shall include costs of arbitration, reasonable
attorneys' fees and reasonable costs for expert and other witnesses,
and judgment on such award may be entered in any court having
jurisdiction thereof. Nothing in this Section shall be deemed to
prohibit or restrict either party from seeking injunctive relief and
such other rights and remedies as it may have at law or equity for any
actual or threatened breach of any provision of this Agreement relating
to a party's confidential information or proprietary rights. Except for
actions for nonpayment or breach of proprietary rights in the Licensed
Programs, no action, regardless of form, arising out of this Agreement
may be brought more than one (1) year after the cause of action has
accrued.
12.3 Except for Customer's obligation to pay Portable, neither party shall
be liable for any delay or failure to perform due to external causes
beyond its reasonable control.
12.4 All notices shall be in writing and shall be delivered personally
(including overnight mail by private courier) or sent by first-class
mail (return receipt requested) or facsimile transmission to the
address listed in the signature page to this Agreement. Notice shall be
deemed to have been given at the time of delivery, twelve (12) hours
after confirmation of receipt if sent by facsimile, and three (3)
business days after mailing if sent by first-class mail. If Customer
has any questions concerning this Agreement, Customer can contact
Portable at the following address:
Portable Software Corporation
00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention: Contract Administration
12.5 Customer acknowledges that it has read this Agreement, understands it
and agrees to be bound by its terms
11
32
and conditions. Customer further agrees that this Agreement (including
the Exhibits attached to this Agreement) is the complete and exclusive
statement of the agreement between Customer and Portable regarding its
subject matter and supersedes and merges any earlier proposal or prior
arrangement, whether oral or written, and any other communications
between Customer and Portable relative to the subject matter of this
Agreement. If any provision of this Agreement is found void or
unenforceable, that provision will be enforced to the maximum extent
possible, and the remaining provisions of this Agreement will remain in
full force and effect. To expedite order processing, Customer agrees
that Portable may treat documents faxed by Customer to Portable as
original documents; nevertheless, either party may require the other to
exchange original signed documents. No purchase order, other ordering
document, or any handwritten or typewritten text which purports to
modify or supplement the printed text of this Agreement shall add to or
vary the terms of this Agreement. Customer consents to Portable
identifying Customer as a customer of the Licensed Programs on
Portable's customer list.
12.6 Neither this Agreement nor the License granted herein may be assigned
or transferred without the prior written permission of Portable, which
permission shall not be unreasonably withheld. Any attempted assignment
without such consent will be void.
Portable: Portable Software Corporation Customer:_____________________________________
Name: Xxx Xxxxxxxxxx Name:_________________________________________
Title: Vice President of North American Sales Title:________________________________________
Signature: ______________________________________ Signature:____________________________________
Date: _____________________________________________ Date:_________________________________________
Volume License Administrator:_________________
Phone / Fax:__________________________________
Address:______________________________________
_______________________________________
12
33
EXHIBIT A
VOLUME AGREEMENT
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
DATE MODIFICATION SOFTWARE PRODUCTS # OF USER [*] [*]
NUMBER LICENSED LICENSES
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
$ $
[*]
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*]
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*]
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*]
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*]
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*] [*] $
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
o Amounts above do not include applicable taxes and shipping charges.
o For a period of ____ years from the Agreement Date, Customer may purchase
additional user licenses of the software products listed above for the
applicable per user price specified above, provided that Customer submits a
minimum order of ____ user licenses for each such purchase.
CUSTOMERONE SERVICES
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
DATES MODIFICATION SOFTWARE PRODUCTS # OF USER [*] [*]
COVERED NUMBER LICENSED LICENSES
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
$ $
[*]
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*] $
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*] $
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*] $
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*] $
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
[*] [*] [*] [*]
------------------- ------------------- ---------------------------------- ------------- ------------- -----------------
o Amounts above do not include applicable taxes and shipping charges.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
34
EXHIBIT B
Summary of CustomerOne Services
35
During the one year period commencing on the Agreement Date, Portable
will provide the CustomerOne Services described below for the fees indicated on
Exhibit A. The period during which CustomerOne Services will be provided to and
purchased by Customer will be automatically extended: (i) for an additional
one-year period unless terminated in writing by Portable or Customer at least
thirty (30) days before the end of the initial one-year period and; (ii)
thereafter, for successive additional one-year periods unless terminated in
writing at least thirty (30) days before the end of the initial one-year period
by Portable or Customer (the initial end of any one-year period and each
subsequent extension period are hereinafter each referred to as a "Support
Period"). Portable reserves the right to change any term of its CustomerOne
Services (including the fee), effective at the beginning of any Support Period,
by giving Customer written notice at least sixty (60) days before the end of the
prior Support Period. This Agreement may also be terminated during a Support
Period as provided in Section 8 of the Agreement.
A. Updates. Portable will promptly provide to Customer at no additional charge
Updates of the Licensed Program(s) if and when each such Update is
generally made available by Portable to its customers. Customer
acknowledges and agrees that each such shall be regarded as a Licensed
Program under this Agreement, and Customer's use of the Updates shall be
subject to all the terms and conditions of this Agreement regarding
Licensed Programs. It is expressly understood and agreed by Customer that
Portable is under no obligation to issue Updates under future products that
Portable or a third party vendor licenses separately.
B. Technical Support. Portable will provide to Customer telephone technical
support for seven (7) days a week and twenty-four (24) hours per day,
excluding holidays. During the hours of 6:00 p.m. to 6:00 a.m. Portable's
technical support department is available via a pager service. Customer
will be given the pager number. No support will be available from 6:00 p.m.
Pacific Time on the day immediately preceding a holiday until 6:00 a.m.
Pacific Time on the day immediately following a holiday. Portable currently
observes the following holidays: New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day, Day after Thanksgiving, and Christmas
Day. These holidays are subject to change without prior notice to Customer.
The following categories of telephone technical support will be provided:
o Second tier support for QuickXpense Enterprise Software. Second tier
technical support is defined as those questions forwarded to Portable
from the internal help desk or designated representative of Customer.
o End user support for all other Licensed Programs.
C. Error Corrections. Provided that the Licensed Programs are running under an
operating environment that is support by Portable (each, a "Supported
Environment"), Portable shall use its reasonable efforts to correct any
reproducible programming error in a Licensed Program which significantly
degrades the use of the Licensed Program ("Error") with a level of effort
commensurate with the severity of the Error, provided that Portable (i)
shall have no obligation to correct all Errors in the Licensed Programs;
and
36
(ii) shall not be responsible for correctly any Errors not attributable to
the Licensed Programs. Errors attributable to Portable shall be those that
are reproducible by Portable on unmodified Licensed Program. Errors
attributable to Customer's modification or misuse of a Licensed Program, or
to Customer's change in or of its Supported Environment, will be billed at
Portable's standard consulting rates then in effect.
D. XpensePolicy. Provide XpensePolicy development and redesign services for
one (1) modifications or one (1) new XpensePolicy during each Support
Period.
E. Exclusions and Limitations. Portable is not required to provide any
CustomerOne Services relating to problems arising out of (i) Customer's
failure to implement all Updates issued under the Agreement; (ii) any
alternations or additions to the Licensed Programs performed by parties
other than Portable; (iii) interconnection or the Licensed Programs with
other software products not supplied by Portable except as expressly
prescribed in the Documentation; or (iv) use of the Licensed Programs on a
system other than a Supported Environment.
Portable reserves the right to terminate support (including Error
correction services) of any Licensed Program or prior release that has been
superseded by a new release anytime after six (6) months have elapsed since
the shipment of a new release.
2
37
EXHIBIT B
[*]
[*]
NAME OF [*] [*]
CUSTOMER [*] [*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
3
38
Sheet 1
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 1
39
Sheet 1
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 2
40
Sheet 1
[*]
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Page 3
41
Sheet 1
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 4
42
EXHIBIT C-1
Integration Program Features
4
43
Integration Program Feature Set
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
5
44
EXHIBIT C-2
[*]
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
45
EXHIBIT E
[*]
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
6
46
[*]
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
7
47
EXHIBIT F
LEAD REFERRAL WORKSHEET
2
48
Portable Software Corporation
XMS Lead Referral Worksheet
[*]
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
49
EXHIBIT G
SUMMARY OF TERMS
[*]
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
