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EXHIBIT 10.9
TI/DigitalThink
MSC #12491-r
Page 1 of 3
AGREEMENT
WHEREAS, TEXAS INSTRUMENTS INCORPORATED, acting through its Semiconductor
Group, ("TI"), with a principal place of business at 00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxx, Xxxxx 00000, desires to secure education and training
services for its employees; and
WHEREAS, DIGITALTHINK ("DIGITALTHINK") with a principal office at 000 0xx
Xxxxxx, Xxxxx 00, Xxx Xxxxxxxxx, XX 00000, desires to provide such education
and training services for TI,
NOW, THEREFORE, the parties agree as follows:
1. SCOPE OF WORK: The services to be performed according to this Agreement
relate to project management resources, development of course syllabus for
TI's course ("COURSE") of instruction for delivery worldwide via Internet
as specified in Attachment I (which is attached hereto and by this
reference made a part hereof).
2. TERM OF AGREEMENT: The Effective Date of this Agreement shall be May 1,
1997, regardless of the date of execution hereof, and shall continue until
December 31, 2002.
3. COMPENSATION: TI shall pay DIGITALTHINK a Pre-payment fee as follows:
twenty-five thousand dollars ($25,000.00) upon execution of this Agreement;
twenty-five thousand dollars ($25,000.00) at conclusion of Beat Test, and
fifty thousand dollars ($50,000.00) upon "live" launch via Internet (Total
$100,000.00).
4. COURSE: The COURSE, as currently defined, will contain between 10 and 20
hours of instruction. COURSE development includes all work required to
create and build this COURSE for delivery via the Web.
* DIGITALTHINK RESPONSIBILITIES:
- Provide project management resources
- Assist in the design of a COURSE syllabus and outline
- Review content and provide guidance to content expert
- Produce the COURSE including technical layout, creation of artwork,
use of interactive Java applets and tools, incorporation and production
of audio clips, and editing/proofing.
* TI RESPONSIBILITIES:
- Identify the content expert prior to the formal start of the project
- Design the COURSE syllabus and outline detailing lessons, quizzes,
exercises, projects, diagrams, and interactive elements
- Create the COURSE content (this may require as much as 120 hours from
the content expert but can vary depending on the state of existing
content and the expertise of the expert; content must be provided to
DIGITALTHINK in the form of an electronic ASCII file).
5. REPORTS With respect to the services performed by DIGITALTHINK according
to this Agreement, DIGITALTHINK shall deliver to TI reports and
documentation as may be periodically required by TI.
6. COMMUNICATION AND ADMINISTRATION For and on behalf of DIGITALTHINK and TI,
the persons designated below shall have cognizance of the services provided
pursuant to this Agreement, and liaison and general administration of the
Agreement for DIGITALTHINK and TI shall be through them. All documents required
hereunder shall be sent directly to these individuals:
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MSC #12491-r
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IF TO TI: IF TO DIGITALTHINK: WITH COPY TO:
0000 Xxxxxxxxxx Xxx, XX0000 000 0xx Xx., Xxxxx 00 0000 Xxxxxx Xxxxx, M/S 8670
Dallas, TX 75243 Xxx Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxx Xxxxxxxx Attn: Mgr., Business
Services
7. WORK PRODUCT COURSE materials designed and developed specifically for TI
shall be the exclusive property of TI, and shall not be disclosed to any
other person, firm, or corporation, or used by DIGITALTHINK or others
without the prior written consent of TI.
9. CONFLICTING AGREEMENT: DIGITALTHINK warrants that it is not a party to any
other existing agreement which would prevent DIGITALTHINK from entering
into this Agreement or which would adversely affect this Agreement.
10. INDEPENDENT CONTRACTOR: It is understood and agreed that DIGITALTHINK shall
be acting as an independent contractor and not as an agent or employee of
TI. Accordingly, DIGITALTHINK assumes all risks and hazards encountered in
its performance Agreement, and further DIGITALTHINK shall be solely
responsible for all injuries, including death, to all persons and all loss
or damage to property which are attributed to DIGITALTHINK performance
under this Agreement or that of any agent, employee or subcontractor
engaged by DIGITALTHINK.
11. TERMINATION:
Either party may terminate this Agreement at any time upon one (1) working
days' written notice prior to completion of last phase, i.e. "live" launch
on Internet, subject to:
A. CAUSE:
1. In the event TI terminates this Agreement due to
DIGITALTHINK'S material breach of its obligations
stated in the Agreement after TI has given written
notice of such breach and allowed DIGITALTHINK thirty
(30) days to cure, TI liability shall be limited to
the payment made to such termination date.
2. In the event DIGITALTHINK terminates this Agreement
due to TI's material breach of its obligation stated
in this Agreement after DIGITALTHINK has given
written notice of such breach and allowed TI thirty
(30) days to cure, DIGITALTHINK shall be liable for
the pre-payment fee, i.e. $100,000).
B. WITHOUT CAUSE:
1. In the event TI terminates this Agreement without
cause, TI will pay DIGITALTHINK the full pre-payment
fee ($100,000).
2. In the event DIGITALTHINK terminates this Agreement
without cause, DIGITALTHINK will refund all funds
paid by TI for services rendered under this
Agreement.
12. BINDING AGREEMENT: This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of TI and shall be binding upon and
inure to the benefit of TI's heirs, legal representatives, successors and
assigns.
13. GOVERNING LAW: The terms and conditions of this Agreement and performance
hereunder shall be construed in accordance with the laws of the State of
Texas.
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MSC #12491-r
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14. ASSIGNMENT: This Agreement shall not be assignable by DIGITALTHINK without
the written consent of TI, and any purported assignment, including full or
partial assignment or delegation to any event or subcontractor, not
permitted hereunder, shall be void.
15. MODIFICATION: TI may request DIGITALTHINK to provide additional services in
writing at any time during the duration of this Agreement. This Agreement
and any attachment hereto shall be modified only by an instrument in
writing and signed by duly authorized representatives of the parties.
16. TAXES: DIGITALTHINK shall be solely responsible for payment of all taxes
which arise in connection with its business activities in performing
services for TI.
17. INSURANCE: DIGITALTHINK shall be solely responsible for all personal injury
and property damage caused by DIGITALTHINK negligent or improper actions
while performing services for TI, and DIGITALTHINK agrees to maintain
general liability insurance coverage, including automobile insurance
coverage, adequate to cover this potential liability.
18. RELEASE OF INFORMATION: DIGITALTHINK shall not disclose the subject matter
of any TI service order issued to DIGITALTHINK, the terms of this
Agreement, or the fact that TI has contracted for its services, without the
prior written consent of TI.
19. ENTIRE AGREEMENT: This Agreement, Attachment I, and the service orders
issued hereunder constitute the entire business agreement between TI and
DIGITALTHINK, and supersedes any other agreements, express or implied. No
other terms and conditions shall be applicable, unless agreed upon between
TI and DIGITALTHINK by formal written modification of this Agreement. In
the event of a conflict between the terms of this Agreement and the terms
appearing on the face of any TI service order issued to DIGITALTHINK, the
terms of this Agreement shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date hereof.
TEXAS INSTRUMENTS INCORPORATED DIGITAL THINK
BY: /s/ X.X. XXXXXXX BY: /s/ XXXX X. XXXXX
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Xxxxxxxxx Xxxxxxx Xxxx X. Xxxxx
TITLE: MGR, TI MARKETING SVCS TITLE: Director Custom Services
-------------------------- --------------------------
DATE: 4-2-98 DATE: 4-30-98
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ATTACHMENT 1
MSC #12491-r
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ATTACHMENT I
STATEMENT OF WORK:
A. TARGET AUDIENCE/OBJECTIVES
TI's primary target audience is design engineers for use in the low-cost
'C54xDSK plus platform to:
* Experiment with digital signal processing concepts and techniques
* Analyze the capabilities of the 'C54x
* evaluate the 'C54x for possible use in their designs
B. BETA TESTING
At the conclusion of the production phase, DIGITALTHINK will install the
COURSE on its live site and begin the beta test phase. The parties estimate this
phase should take four weeks to complete. User feedback will be used to improve
the COURSE, train tutors, and build responses in the threaded discussion area.
* DIGITALTHINK will manage the beta test program including the
registration of beta testers, collection of beta feedback, and issue
resolution
* TI will identify a minimum of 10 beta testers and provide access to
the 'C54x DSK plus for beta test
C. COURSE DELIVERY
1. DIGITALTHINK RESPONSIBILITIES:
- Deliver COURSE worldwide via Internet; DIGITALTHINK will
initially support North America in 1997 and will
establish sites in Europe and Asia in 1998 to improve
delivery speed
- Ensure the site for this training is up 24 hours per
day, 7 days per week, 365 days per year with reasonable,
pre-scheduled down time for maintenance and upgrades
- Manage and monitor instructor involvement
- Manage and compensate tutors used to support this COURSE
- Collect data and market feedback and provide this to TI;
participants will be notified that their personal
information is being passed from DIGITALTHINK to TI and
will be given the option of being included/excluded
from company mailings
- Coordinate maintenance and incorporate changes to the
COURSE
2. TI RESPONSIBILITIES:
- Identify an instructor who will be involved in teaching
the COURSE; the instructor will spend approximately 1
hour per week participating in chats, discussions, and
answering e-mail
- Assist in identifying qualified tutors, e.g., former TI
employees, trainers, third parties, etc.
- Determine how to retrieve and use data and market
feedback collected by DIGITALTHINK
- Provide content updates and yearly maintenance is
estimated at hours per year
D. PROMOTION/SALES
TI will take the primary role in selling and promoting this COURSE which
may include the following elements:
* Education of sales force
* Sales programs
* Internal TI promotions
* Advertising
* Public relations
* CD-ROM kits
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Attachment I
MSC #12491-r
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E. COST
1. 3RD PARTY COST: This COURSE will list for $349/seat which includes the
$149 DSKplus kit. TI and DIGITALTHINK agrees to sales to 3rd parties, a
coupon will be included with the DSKplus kit when a seat has been
purchased. The coupon would contain a special code that would allow one
user to access the COURSE Web-site for a reasonable period of time to
complete the training. Coupons would be printed and supplied by
DIGITALTHINK. TI would insert the coupons into the DSKplus kit.
2. TI COST: TI will get the entire for the DSKplus kit for $149. Until
TI's uses $100,000 (prepaid fee) for its internal or "give-a-way" students,
$200/seat will be credited to TI, and $100/seat will be credited for all
other purchased seats. Upon TI's recouping the $100,000, DIGITALTHINK will
receive $200/seat. DIGITALTHINK will track seat purchases and reimburse TI
accordingly.
