Exhibit 10.16
[CONFIDENTIAL TREATMENT REQUESTED]
SOLUTION PARTNER AGREEMENT
This Solution Partner Agreement ("Agreement") is dated as of the last date set
forth below (the "Effective Date") by and between Cyclone Commerce, Inc., at
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Cyclone"), and
CrossWorlds Software, Inc., at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("CrossWorlds").
1. DEFINITIONS
"CrossWorlds Distributor" shall have the meaning set forth in Section 2.10.
"CrossWorlds Product" means the products listed as such on Schedule A.
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"Customer" means end users of the Licensed Software that have a license
agreement for Licensed Software with CrossWorlds or a CrossWorlds Distributor.
"Customer License" means [*] sublicense that permits the Customer to
utilize the Licensed Software only for the Customer's internal business
communications purposes (including communicating with third party trading
partners). A Service Provider License is not a Customer License.
[*] Material has been omitted pursuant to a request for confidential
treatment.
"Deposit Materials" means the Licensed Software in source and object code
form, related programmer notes, tools and compilers (not commercially available
for a reasonable fee) and all other processes, information, technology and
materials reasonably necessary to allow a reasonably skilled programmer to
modify compile, troubleshoot, test and support the Licensed Software, including
in each case Release 3.0.3 and all major Updates thereto as described in Section
3.5. Notwithstanding the foregoing, the Deposit Materials do not include the
portions of the Licensed Software licensed from third parties to the extent such
portions are listed in Schedule A.
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"Designated Operating Systems" means the operating systems identified in
the Licensed Software descriptions in Schedule A.
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"FTE" means work performed by a full time equivalent Cyclone employee or
Cyclone consultant, as explained in Schedule F.
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"FTE-Work" means any support, development, engineering or other support
services that are designated as FTE-Work in Schedule F or other portions of this
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Agreement.
"Level 1, Level 2 and Level 3 Support" each has the meaning set forth in
Schedule E.
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"Licensed Software" means Cyclone Interchange(TM) Enterprise Edition
("Enterprise Edition") and Cyclone Interchange(TM) Solo Edition ("Solo
Edition"), as described on Schedule A.
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"Service Provider License" means a license that permits the Customer to
utilize the Licensed Software as a "service provider" to provide secure data
communication or data processing services to third parties. As examples only of
whether a Customer is using the Licensed Software as a service provider: (i) a
situation in which a Customer and its Affiliates use the Licensed Software to
operate an exchange or marketplace in which the Customer and its Affiliates'
trading partners interact with the Customer and the Affiliates shall be deemed
internal use and not service provider use; (ii) a situation in which a Customer
uses the Licensed Software to operate an exchange or marketplace to transact
business with its trading partners shall be deemed internal use and not service
provider use, whether or not the Customer charges a fee; (iii) a situation in
which a Customer uses the Licensed Software to operate an exchange or
marketplace which allows its trading partners to transact business with one
another shall be deemed service provider use, whether or not the Customer
charges a fee; (iv) a situation in which Customer uses the Licensed Software to
operate an exchange or marketplace both for transacting business with its
trading partners and allowing trading partners to transact business amongst
themselves, whether or not the Customer charges a fee (i.e. a hybrid of (i) and
(ii)), shall be deemed service provider use only (that is, a separate internal
use license would not be required), and the Customer would be considered as one
of the trading partners; and (v) a situation in which the Customer uses the
Licensed Software to host applications for clients where the clients upload
their business data to Customer for processing, and the Customer processes the
clients' business data and provides reports and analysis to the clients (i.e. a
typical outsourcer or application service provider model), shall be deemed
service provider use. For the purposes of clause (i) above, "Affiliates" shall
mean all current and future business entities that, directly or indirectly,
control, are controlled by, or are under common control with a Customer. As
used herein, "control" shall mean the ownership or control of fifty percent
(50%) or more of the shares of the subject entity which entitle the holder to
vote at a meeting of such entity.
"Territory" means the worldwide set of existing and new customers of the
CrossWorlds Product.
"Updates" means all updates, upgrades, bug fixes, corrections,
modifications, including feature enhancements, and revisions to and of the
Licensed Software.
2. LICENSE GRANT
2.1 Distribution License. Cyclone grants CrossWorlds a non-exclusive,
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non-transferable (subject to Section 13.5) license to use, operate, reproduce
and execute the Licensed Software for marketing and sales support purposes, to
enter into Customer Licenses for the Licensed Software on the Designated
Operating Systems to Customers in the Territory, and to deliver the Licensed
Software to Customers. This license includes the right to sublicense and bundle
Enterprise Edition along with the CrossWorlds Product. Each copy of the
Licensed Software licensed to the Customer may be used by the Customer only on a
single production
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server corresponding to the platform (or platform class - see Schedule A and
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Schedule B) designated by Customer. CrossWorlds shall count and record each
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production server installation of the Enterprise Edition and each production
server installation of the Solo Edition, including all installations resulting
from resales by any CrossWorlds Distributors.
2.2 Service Provider Licenses. This Agreement does not grant to
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CrossWorlds or any CrossWorlds Distributors the right to resell Service Provider
Licenses to the Licensed Software. If a Service Provider License opportunity
presents itself, Cyclone and CrossWorlds will negotiate in good faith for a
joint solution proposal for the proposed service provider.
2.3 No Stand-Alone Sales. CrossWorlds may resell a copy of Enterprise
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Edition to an existing Customer of the CrossWorlds Product for the purpose of
bundling Enterprise Edition with the CrossWorlds Product. CrossWorlds shall not
otherwise resell Enterprise Edition as a stand-alone product. CrossWorlds may
resell copies of Solo Edition to any new or existing Customer that uses
Enterprise Edition bundled with the CrossWorlds Product. CrossWorlds shall not
otherwise resell Solo Edition as a stand-alone product. If CrossWorlds resells
Solo Editions to a Customer for distribution to such Customer's trading partner,
CrossWorlds shall require that the Customer notify CrossWorlds of all trading
partners who receive the Solo Edition.
2.4 Private-Label Provisions. The Enterprise Edition and Solo Edition
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products will be private-labeled under the same brand name as the CrossWorlds
Products (or such other brand names as CrossWorlds shall request and Cyclone
shall reasonably approve in writing). Subject to the other terms of this
Agreement, CrossWorlds shall include all proprietary and copyright notifications
of Cyclone and its licensors, and shall emphasize Cyclone's authorship with
either the tag line "Cyclone Powered," or with similar tag branding that is
mutually agreed to by the parties, and shall reference Cyclone anywhere the
functions of the Licensed Software are described, including in CrossWorlds
collateral materials that describe the Licensed Software.
2.5 Internal Use Licenses. CrossWorlds may use, and make a reasonable
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number of copies of, the Licensed Software as necessary for testing, quality
assurance, marketing and sales purposes consistent with its obligations under
this Agreement, for providing maintenance support, training, pre-sales and
consulting services to its Customers and CrossWorlds Distributors, and for
limited activity relating to the development of application programming
interfaces ("APIs") and connectors and collaborations for the CrossWorlds
products, in each case as permitted under this Agreement. Cyclone agrees to
provide to CrossWorlds, at no charge, all APIs and other interoperability
information that Cyclone generally provides to its other distributors or
licensees, and all updates thereto, upon making the same generally available to
its other distributors and licensees. Cyclone hereby grants CrossWorlds a non-
exclusive, non-transferable, royalty free license to use, copy and distribute as
embedded in the CrossWorlds Products, such interoperability information provided
to CrossWorlds by Cyclone. Upon request, and at Cyclone's discretion, Cyclone
shall assist CrossWorlds to identify and document desired APIs. Any work
provided under the foregoing sentence shall be FTE-Work and shall be paid for by
CrossWorlds as FTE-Work. Where copies are made for training purposes, all
copies (other than the trainers') shall be fully deleted following each relevant
training session. CrossWorlds
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shall not use the Licensed Software for the purpose of providing application
hosting or service bureau services to any party.
2.6 Collateral Licenses. Cyclone grants CrossWorlds a license to use,
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copy, modify and distribute, during the term of the Agreement: (i) any
marketing collateral, presentations and white papers created by Cyclone relating
to the Licensed Software and made available to other Cyclone distributors or
partners; provided, however, that Cyclone shall have the right to review and
approve any material modifications made by CrossWorlds to such materials in
advance of their distribution by CrossWorlds; and (ii) all Cyclone training
documentation (and updates as issued and made available to other Cyclone
distributors or partners) for the purpose of training CrossWorlds employees,
CrossWorlds Distributors and Customers in the use and support of the Licensed
Software.
2.7 Licensing Procedure. When obtaining orders for the Licensed Software,
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CrossWorlds shall require the Customer to disclose the Customer's platform and
database that will be used with the Licensed Software, the term of the license
and the term of product support. CrossWorlds shall cause each Customer to
execute (or agree to through click-through practice) a Customer License
substantially in the form of the CrossWorlds end user license agreement attached
as Schedule D. CrossWorlds may amend or modify this form from time to time
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without Cyclone's prior consent, provided that the amended form contains
substantially the same restrictions on use and protections of rights of Cyclone
and its suppliers, and is at least as restrictive as licenses that CrossWorlds
uses to license its own similar software products of comparable value in the
Customer's territory. In addition, when CrossWorlds distributes the Solo
Edition, if the distribution is to a Customer for redistribution by the Customer
to its trading partners, CrossWorlds shall utilize license agreements that
contain substantially the same restrictions on use and the protection of rights
of Cyclone and its suppliers as CrossWorlds uses to license its own similar
software products that are subject to redistribution by the Customer.
2.8 License Enforcement. CrossWorlds agrees to inform Cyclone, as
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promptly as practicable, of any known material breach of a sublicense agreement
relating to the Licensed Software. CrossWorlds agrees to use commercially
reasonable efforts (and in any event efforts that are no less than those
CrossWorlds normally uses to enforce customer obligations under license
agreements relating to CrossWorlds software products of comparable value) to
enforce Customer obligations under the Customer Licenses.
2.9 Demonstration and Evaluation License; Development Rights. CrossWorlds
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may install temporarily the Licensed Software, for demonstration (including
proof of concept) purposes, at potential Customer sites, potential CrossWorlds
Distributor's sites and at CrossWorlds' systems integrators' ("CrossWorlds SI")
demonstration centers (a ""Demonstration Center""). CrossWorlds shall not leave
the Licensed Software unsecured and shall delete the same following the
demonstration. Notwithstanding the foregoing: (a) CrossWorlds may leave a
demonstration copy of the Licensed Software on a potential Customer site or a
potential CrossWorlds Distributor's site, unattended if the Customer or
CrossWorlds Distributor shall have first executed an evaluation license
agreement that: (i) is in substantially the same form that CrossWorlds uses for
evaluation licenses of its own similar software products of comparable
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value in the Customer's or CrossWorlds Distributor's territory; (ii) contains
terms at least as protective of Cyclone's intellectual property rights as the
Customer License; and (iii) has a term of no longer than 90 days; and (b)
CrossWorlds may license a demonstration copy of the Licensed Software to a
CrossWorlds SI for use at its Demonstration Center on terms substantially the
same in form and duration as CrossWorlds then uses for licenses of its own
similar software products of comparable value in such Demonstration Center. In
addition to the foregoing, CrossWorlds may grant to CrossWorlds SIs the right to
use the Licensed Software in connection with the development of connectors and
collaborations for the CrossWorlds Products; provided that the terms of such
license are substantially the same as CrossWorlds then uses for licenses of its
own similar software products. CrossWorlds shall also have the right to
sublicense its rights under this Section to CrossWorlds Distributors.
2.10 CrossWorlds Distributors. CrossWorlds may sublicense all or any part
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of its distribution and sublicensing rights under this Agreement to those
entities within its normal distribution channels listed on Schedule A, as
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amended as provided herein (each such entity, a "CrossWorlds Distributor"),
provided that in each such case: (i) the CrossWorlds Distributor agrees to
comply with all material terms and restrictions applicable to CrossWorlds under
this Agreement, including but not limited to Section 2.11 and Territory
restrictions; and (ii) either: (a) such CrossWorlds Distributor agrees in
writing that Cyclone is a third party beneficiary of such distribution agreement
to the extent necessary to enforce against such CrossWorlds Distributor the
terms and restrictions of such distribution agreement which relate to the
Licensed Software, or (b) CrossWorlds agrees to use commercially reasonable
efforts to enforce this Agreement in full against a CrossWorlds Distributor in
the event of non compliance with any material terms and restrictions of such
distribution agreement which relate to the Licensed Software , and to use
commercially reasonable efforts to seek full recovery on Cyclone's behalf in the
event any such non compliance results in any losses by, damages to, or claims
against, Cyclone. The foregoing shall not limit any rights or remedies that
Cyclone may have under law or equity against the CrossWorlds Distributor. If
CrossWorlds wishes to designate a new channel partner as a CrossWorlds
Distributor under this Section, it shall provide Cyclone with at least five
business days' written notice of such request, prior to entering into a resale
relationship with the channel partner relating to the Licensed Software.
Cyclone shall have the right to reasonably object to the addition of the partner
within such notice period and if Cyclone does object, the parties shall meet to
discuss whether CrossWorlds may enter into a distribution relationship for the
Licensed Software with the proposed channel partner. If Cyclone does not object
within such notice period, CrossWorlds may add the channel partner as a
CrossWorlds Distributor and Schedule A will be deemed amended accordingly.
2.11 Access Restrictions. Each party shall take all steps reasonably
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necessary to ensure that no person involved in the development of software
products similar to or potentially competitive with the other party's products
shall have or have had access to such other party's Confidential Information
(defined in Section 6.2) relating to its products.
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3. RESPONSIBILITIES AND OBLIGATIONS OF CYCLONE
3.1 Delivery Integration Modifications. Cyclone shall deliver golden
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master copies of the Licensed Software (together with any documentation, in
electronic format), in a form that will allow CrossWorlds to reproduce such
Licensed Software for the purposes described in this Agreement. The initial
golden master copy shall be delivered on signing of this Agreement by both
parties and subsequent versions of the golden master copies shall be delivered
no later than when generally available. CrossWorlds acknowledges that
rebranding requirements will normally cause a delay between the general release
of an Update of the generic Licensed Software and the delivery of the rebranded
version to CrossWorlds.
3.2 Integration Projects -- General. From time to time, CrossWorlds may
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request that Cyclone perform, or assist CrossWorlds in performing, private-
labeling and other integration modifications to the Licensed Software to
facilitate bundling of the Licensed Software with the CrossWorlds Products.
Such work shall be deemed FTE-Work (except as otherwise provided below) and paid
for by CrossWorlds as FTE-Work. Cyclone shall own all such modifications
(unless otherwise agreed to in writing by the parties); provided, that Cyclone
hereby grants to CrossWorlds a royalty-free, paid-up license to use, copy and
distribute such modifications to the same extent as it does the Licensed
Software, and (unless otherwise agreed to in writing by the parties) each party
shall provide Product Support for such modifications to the same extent that it
provides Product Support for the Licensed Software. Cyclone shall either enable
such modifications to be incorporated into all subsequent Updates or include
such modifications in all subsequent Updates.
3.2.1 [*]
3.2.2 [*]
3.2.3 [*]
[*] Material has been omitted pursuant to a request for confidential
treatment.
3.2.4 Modifications for Customers/Vertical Markets. CrossWorlds may
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from time to time request modifications of the Licensed Software on behalf
of Customers or to address vertical market requirements. Any such
requested modifications shall be performed solely by Cyclone, and the
parties shall discuss and agree in writing with respect to the ownership
(in the case of Customer modifications), pricing and support for each such
project.
3.2.5 Cyclone Integration Team. Cyclone will develop and maintain
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during the term of this Agreement, at no charge to CrossWorlds, an
integration team with responsibility for reviewing and responding to
CrossWorlds' integration/customization requests.
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3.3 Training. Cyclone will provide training and training support in
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accordance with the terms set forth in Schedule G. Upon request, Cyclone shall
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provide CrossWorlds with a copy of the course agendas and prospectus for all
upcoming publicly available Licensed Software training classes.
3.4 Product Support. For the copies of the Licensed Software used
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internally by CrossWorlds and for each limited term license of Licensed
Software, Cyclone shall provide Level 3 Support as described in Schedule E at no
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additional charge. For each perpetual license Customer, Cyclone shall provide
Level 3 Product Support and, after the 90-Day Period (defined in Schedule G)
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CrossWorlds shall provide ▇▇▇▇▇ ▇ and Level 2 Product Support for a Customer,
each only for so long as the Customer remains under an extended annual
maintenance contract with CrossWorlds. Cyclone shall also provide the
additional Product Support specified in Schedule G. Cyclone agrees that in
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addition to the support described in Schedule G, all Customers entitled to
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product support in accordance with this Section 3.4 may receive and use under
the license terms applicable to the Licensed Software, at no additional charge,
all Updates to the Licensed Products then licensed by each such Customer.
3.5 Source Code Escrow. Cyclone shall, within twenty days after the
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delivery of Release 3.0.3 (as described in Section 3.2.1), add CrossWorlds to
Cyclone's existing Master Preferred Beneficiary source code escrow account with
DSI Technology Escrow Services ("DSI"), which provides for release of the
Deposit Materials upon the occurrence of, and for the duration of, certain
trigger events including (A) the failure (uncured within 45 days) of Cyclone to
maintain the support of the Cyclone Products and (B) insolvency events
(including events short of actual bankruptcy). CrossWorlds shall reimburse
Cyclone for the annual out of pocket costs to Cyclone (currently estimated at
$650 per year) of adding CrossWorlds to the escrow agreement. The initial
deposit of the Deposit Materials shall be made with DSI upon execution of the
schedule adding CrossWorlds to the escrow agreement. Deposit of subsequent
major and point release Updates (i.e., Releases 3.1, 3.2, 4.0, etc.) to the
Deposit Materials shall be made within 30 days of the date such Updates are
first distributed to Cyclone's licensees or CrossWorlds, whichever is earlier.
Cyclone hereby grants to CrossWorlds a royalty free, worldwide, non-transferable
license to use, maintain, modify, recompile, copy and reproduce the Deposit
Materials, solely to fulfill its product support obligations to its Customers
and CrossWorlds Distributors; provided that such license may be exercised by
CrossWorlds only upon the release of the Deposit Materials and shall expire once
CrossWorlds ceases to provide product support for the Licensed Software. Any
changes made to the Deposit Materials and the Licensed Software pursuant to such
right will create derivative works that remain the property of Cyclone, subject
to CrossWorlds' rights under this Section. A copy of any such derivative works
will be promptly delivered to Cyclone upon request. Should the circumstance
which resulted in a release under the escrow agreement be resolved and Cyclone
tenders performance of its support obligations (and if requested by CrossWorlds,
reasonably demonstrates its ability to perform), cures any continuing breaches
under this Agreement and provides reasonable evidence that it is likely to avoid
further breaches, in each case to the reasonable satisfaction of CrossWorlds,
then the parties shall negotiate in good faith whether or not the Deposit
Materials should be returned to DSI and the licenses to CrossWorlds under this
Section should thereupon be suspended.
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4. OBLIGATIONS OF CROSSWORLDS/ADDITIONAL JOINT OBLIGATIONS
4.1 Assistance. CrossWorlds shall provide Cyclone with reasonably
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necessary assistance and information as necessary or appropriate and as
reasonably agreed by CrossWorlds to permit Cyclone to complete any integration
or customization projects agreed to by the parties.
4.2 Packaging. CrossWorlds shall, at its sole cost, produce all
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packaging, bounded manuals, documentation and exterior containers for the
Licensed Software for Customer distribution.
4.3 Promotion. CrossWorlds shall maintain a sufficient number of
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qualified and adequately trained sale and support staff to perform its
obligations hereunder.
4.4 No Misrepresentations. CrossWorlds shall make no representations,
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warranties or guarantees with respect to the Licensed Software that are
inconsistent with those made by Cyclone.
4.5 Customer Support. After the 90-Day Period, CrossWorlds shall provide
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Level 1 and Level 2 Support for the Licensed Software as described in Schedule
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E.
-
4.6 Product Rollout. Both parties will work together in good faith to
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inform each other of new product release rollout activities no later than when
similarly situated distributors or suppliers are informed, and use reasonable
efforts to include each other's support management in new release planning for
supportability input.
4.7 Marketing and Other Support. Each party will provide additional
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support to the other as specified in Schedule G.
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4.8 Communications. CrossWorlds and Cyclone will each designate primary
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contacts to handle sales issues, such as perceived sales or channel conflict
matters. Any such sales issue will be addressed promptly and in good faith for
the purposes of reaching a mutual resolution that fairly serves the interests of
the Customer: (i) first by the V.P of business partner marketing for Cyclone
and the relevant Director or V.P of Sales for CrossWorlds for the territory;
(ii) if resolution does not occur at that level, second by the Senior V.P. of
sales for each of Cyclone and CrossWorlds; and (iii) if resolution does not
occur at that level, third by the President for each of Cyclone and CrossWorlds.
4.9 Beta Testing. Cyclone agrees to share planned beta release schedules
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and provide CrossWorlds, at CrossWorlds' request and option, with beta versions
of the Licensed Software for testing and review.
4.10 Malicious Statements. Neither party shall knowingly make any false,
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misleading or malicious statements concerning the other's business, products or
service offerings, or the relationship described in this Agreement.
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5. PAYMENTS TO CYCLONE
5.1 FTE Work. FTE-Work performed by Cyclone under this Agreement shall be
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reported and paid monthly as specified in Schedule F.
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5.2 License Fees. CrossWorlds shall pay the license fee prepayments (the
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"Prepayments") specified in Schedule B. Except as set forth below, for each
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sublicense of Licensed Software to a Customer, CrossWorlds shall pay Cyclone a
license fee (the "License Fee") equal to Cyclone's then current list price for
the applicable Licensed Software license, less the applicable discount, all as
set forth in Schedule B. [*] Cyclone reserves the right to modify its list
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prices and will give CrossWorlds 90 days prior written notice of such
modification; provided, however, that: (i) no price increases shall apply to
CrossWorlds within the first six months after the Effective Date; and (ii)
Cyclone shall make best efforts to time the effective date of any Cyclone
changes to list prices to coincide with releases of Updates. Payments due
Cyclone shall be paid in U.S. Dollars. CrossWorlds shall determine its own
retail prices for the Licensed Software. [*]
[*] Material has been omitted pursuant to a request for confidential
treatment.
5.3 Timing of Payment. For each resale of Licensed Software, CrossWorlds
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shall, subject to offset against Prepayments as provided in Schedule B, pay
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Cyclone the relevant License Fees as follows: (i) in the case of a perpetual
license, CrossWorlds will pay Cyclone the entire required License Fee upfront;
(ii) in the case a limited term license where the Customer makes annual payments
to CrossWorlds, CrossWorlds will pay Cyclone the corresponding required License
Fees on an annual basis; and (iii) in the case a Customer limited term license
where the Customer makes a pre-payment to CrossWorlds for a multi-year period,
CrossWorlds will pay Cyclone the required License Fee upfront.
5.4 Support Fees. CrossWorlds shall pay Cyclone the support fees
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described in Schedule B for each sale of one-year's worth of annual support to a
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perpetual license Customer, whether coupled with the initial License Fee or sold
separately as an annual maintenance or maintenance renewal contract. The
support fees described in Schedule B are premised on the assumption that
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CrossWorlds shall continue to offer maintenance and support in one-year
increments; should CrossWorlds decide to offer extended maintenance and support
in different increments (i.e., 9 months or 15 months), the Level 3 Support fees
described in Schedule B shall continue to apply but shall be adjusted
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proportionally.
5.5 Quarterly Reports. Within 30 days of the end of each calendar
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quarter, CrossWorlds shall provide Cyclone with: (i) a written report
("Quarterly Report") of Licensed Software sales and annual maintenance and
support sales for such quarter worldwide, substantially in the format set forth
in Schedule C; and (ii) payment of all License Fees and support fees due for
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Licensed Software licensed in such quarter. For Licensed Software, the
Quarterly Report shall describe in each case the date of the sublicense, and the
Customer's name, address, and industry, in accordance with general categories to
be agreed to by the parties. For
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annual maintenance and support sold, the Quarterly Report shall identify the
Customer name and address and the term of the support period, and CrossWorlds'
calculation of support fees due Cyclone under Section 5.4.
5.6 Taxes. Fees due Cyclone under this Section 5 are exclusive of
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federal, state, local dominion and provincial excise, value-added, sales,
withholding, use and similar taxes. CrossWorlds will not be responsible for any
taxes based on Cyclone's net income.
6. PROPRIETARY RIGHTS AND PROTECTION
6.1 Title To Intellectual Property. Unless otherwise agreed to in writing
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by the parties: (i) Cyclone and its licensors shall retain all rights, title
and interest in the Licensed Software and in all improvements, enhancements,
modifications and derivative works thereof, including but not limited to all
patent, copyright, trade secret and trademark and rights; and (ii) CrossWorlds
and its licensors shall retain all rights, title and interest in the CrossWorlds
Products and in all improvements, enhancements, modifications and derivative
works thereof, including but not limited to all patent, copyright, trade secret
and trademark rights. Where the parties agree in writing that newly created
intellectual property rights should be owned by a specific party (the "Owner"),
the other party hereby assigns, and agrees to cause each of its subcontractors
to assign, to the Owner all intellectual property rights which are created in
connection with the specific development project. Each party agrees to execute,
and to cause each of its subcontractors to execute, all documents and
instruments reasonably necessary to give effect and reaffirm the foregoing
assignments. Except as expressly permitted under Section 3.5, neither party
will modify, translate, decompile, reverse engineer, disassemble or otherwise
attempt to derive source code from the other party's products or assist a third
party in so doing.
6.2 Protection of Licensed Software. CrossWorlds agrees to secure and
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protect the Licensed Software using measures that are at least equal to the
standard of performance used by CrossWorlds to safeguard its own software
products of a similar nature, but in no event less than reasonable care.
CrossWorlds shall not disable any use limitation or copy protection features of
any Licensed Software under this Agreement without the prior written consent of
an officer of Cyclone.
6.3 Confidential Information. The parties acknowledge that by reason of
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their relationship to each other hereunder, each will have access to certain
information and materials (including, but not limited to, drawings, graphs,
charts, prototypes, samples, processes or techniques used in the parties'
software products) concerning the other party's, or its suppliers or
distributors, business plans, finances, customers, technology, and/or products
which from the circumstances surrounding disclosure should be understood by the
receiving party to be confidential and of substantial value to the disclosing
party, or its suppliers or distributors, which value would be impaired if such
information were improperly used or disclosed to third parties ("Confidential
Information"). The parties hereby agree that all Customer and CrossWorlds
Distributor information provided by CrossWorlds to Cyclone is Confidential
Information of CrossWorlds. Each party agrees that it will not use in any way
for its own account or the account of any third party, except in each case as
necessary to perform its obligations or exercise its rights
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under this Agreement and that it will take every reasonable precaution to
protect the confidentiality of such information, including measures that are at
least equal to those such party takes to protect the confidentiality of its own
confidential information of a similar nature. Each party may disclose relevant
aspects of the other party's Confidential Information to its employees,
affiliates, subcontractors and agents with a need to know and to the extent such
disclosure is reasonably necessary for the performance of its obligations or the
exercise of its rights under this Agreement; provided, however, that such party
shall require that such employees, affiliates, subcontractors or agents agree in
writing to comply with appropriate confidentiality provisions with respect
thereto or otherwise be under a professional duty of nondisclosure. In the event
of termination of this Agreement, there will be no use or disclosure by a party
of any Confidential Information of the other party, and neither party will
develop or have developed any software programs by utilizing any of the other
party's Confidential Information; provided that CrossWorlds may use Cyclone
Confidential Information to the extent necessary to fulfill its support rights
and obligations as set forth in Section 11.3. Additionally, each party agrees
that while either may disclose the existence of the Agreement, the exact terms
of this Agreement shall be deemed Confidential Information and not disclosed,
except as required by applicable laws, without the prior written consent of the
other party. If a party is required to file this Agreement as an exhibit in
connection with a public filing under the securities laws, the parties shall
confer and the filing party shall use good faith efforts to seek confidential
treatment of terms deemed commercially sensitive by the parties. Nothing in this
Agreement shall prohibit or limit either party's use of Confidential Information
(including ideas, concepts, know-how, techniques and methodologies): (i)
previously known to it without obligation of confidence, (ii) independently
developed by it without use of the Confidential Information of the other party,
(iii) acquired by it from a third party that is not under an obligation of
confidence with respect to such information, or (iv) that is or becomes publicly
available through no breach of this Agreement. Each party may disclose
Confidential Information to the extent required by applicable law or in
connection with the enforcement of this Agreement.
6.4 Proprietary Notices. Except as otherwise provided in this Agreement,
-------------------
CrossWorlds shall not remove any proprietary notices from any part of the
Licensed Software, or from any collateral materials described in Section 2.5,
and shall reproduce such notices on any copies of such materials made by
CrossWorlds in the same manner as such notices appear on the originals.
7. LIMITED WARRANTY
7.1 Cyclone Limited Warranties. Cyclone represents and warrants to
--------------------------
CrossWorlds that it has the right to enter into this Agreement and to grant
CrossWorlds the rights granted herein. Cyclone further represents and warrants
that the Licensed Software will conform with the related Licensed Software
documentation provided by Cyclone when operated on the applicable Designated
Operating System. Cyclone's sole obligation with respect to any Licensed
Software errors will be to use its best efforts to correct, at its expense, any
error about which it receives written notice. The warranty and obligations of
this Section 7.1 are contingent upon proper use of the Licensed Software and
shall not apply to the extent that any failure is caused by (i) modification of
Licensed Software by CrossWorlds or a third party without prior written
11
approval from Cyclone or (ii) use of the Licensed Software in a hardware or
software environment other than the environment in which the Licensed Software
is intended to be used, as described in the Cyclone documentation at the time of
such use. Cyclone further represents and warrants that the Licensed Software
does not contain any virus, Trojan horse, worm, or other software designed to
permit unauthorized access to, or improperly to modify, delete, damage,
deactivate or disable, any software, hardware, or data. Cyclone further
represents and warrants that the Licensed Software, when used in accordance with
its associated documentation, will be capable upon installation of accurately
processing, providing and/or receiving date data from, into, and between the
twentieth and twenty-first centuries, including the years 1999 and 2000, and
leap year calculations, provided that all other products (e.g., hardware,
software and firmware) used in combination with the Licensed Software properly
exchange date data with it.
7.2 Warranty Disclaimer. THE EXPRESS PRODUCT WARRANTIES CONTAINED IN
-------------------
SECTION 7.1 ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES. CYCLONE DISCLAIMS ANY
AND ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE LICENSED SOFTWARE.
8. INDEMNIFICATION
8.1 By Cyclone. Subject to Section 8.3, Cyclone shall defend, indemnify
----------
and hold harmless CrossWorlds from and against any claims (including claims
asserted against CrossWorlds by either its Customers or CrossWorlds
Distributors), awarded damages, liabilities and costs, including, but not
limited to, reasonable attorneys' fees ("Claims") relating to or resulting from
infringement of any third party's United States patent, copyright or other
proprietary rights by the Licensed Software or the distribution or use thereof,
except to the extent that a Claim is based on modification of the Licensed
Software without authorization of Cyclone. In the event an infringement is
found, Cyclone shall promptly obtain a license for the continued distribution
and use of the affected Licensed Software, replace the affected Licensed
Software with substantially equivalent non-infringing Licensed Software or
modify the affected Licensed Software so that it is non-infringing.
8.2 By CrossWorlds. Subject to Section 8.3, CrossWorlds shall defend,
--------------
indemnify and hold harmless Cyclone from and against any Claims relating to or
resulting from: (i) modifications to the Licensed Software made by CrossWorlds
or its agents without Cyclone's consent; (ii) any Claim of infringement of any
third party's patent, copyright or other proprietary rights relating to any
CrossWorlds Product bundled with the Licensed Software, if such claim would have
been avoided by distribution of the Licensed Software as a stand-alone product;
and (iii) to the extent CrossWorlds is found legally liable or pays
consideration to settle, any Claim brought by a Customer against both Cyclone
and CrossWorlds (whether or not in the same proceeding), to the extent it is
based on a performance warranty or representation made by CrossWorlds with
respect to the Licensed Software that is inconsistent with the Cyclone product
documentation and not otherwise approved by Cyclone.
12
8.3 Indemnification Procedure. Each of the indemnities in Sections 8.1
-------------------------
and 8.2 is subject to the following conditions: (i) an indemnified party
promptly shall notify the indemnifying party in writing of any Claim (provided
that the failure of an indemnified person or entity to provide prompt notice
shall not relieve the indemnifying party of its obligations under this Section
8, except to the extent that the indemnifying party is actually prejudiced by
such failure); and (ii) the indemnifying party shall have the right to, if it so
chooses, and shall, if requested by the indemnified party, control and direct,
at the indemnifying party's sole expense and through counsel of its choosing,
the investigation, defense and settlement of any third party Claim. The
indemnified person or entity shall cooperate fully with the indemnifying party
in the defense of any such Claim, and the indemnifying party shall compensate
the indemnified person for any out of pocket costs incurred in providing such
cooperation. The indemnified person or entity shall have the right to approve
any settlement of such a Claim, such approval not to be unreasonably withheld or
delayed.
9. LIMITATION OF LIABILITY
EXCEPT IN THE CASE OF A VIOLATION OF SECTION 6, OR CLAIMS FOR
INDEMNIFICATION FROM INFRINGEMENT CLAIMS UNDER SECTIONS 8.1 OR 8.2, IN NO EVENT
SHALL EITHER PARTY HAVE ANY LIABILITY FOR LOST PROFITS, LOSS OF DATA OR ANY
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS
AGREEMENT, WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR
OTHERWISE AND REGARDLESS OF THE CAUSE OF SUCH DAMAGES EVEN IF SUCH DAMAGES WERE
FORESEEABLE.
10. TRADEMARKS
Cyclone grants CrossWorlds a license to use the Cyclone trademarks and
trade names only in connection with reproducing copyright notices and similar
disclosures contained in the Licensed Software and related collateral, including
the CrossWorlds prepared materials and web sites, and in connection with using
tag lines, such as "Cyclone Powered," agreed to by the parties pursuant to
Sections 2.4 and 3.2. All uses of Cyclone trademarks shall be for the benefit
of Cyclone. Cyclone shall not use any trademarks, service marks or trade names
of CrossWorlds without CrossWorlds' prior written consent. Upon termination of
this Agreement, each party shall immediately cease displaying, advertising and
using such trademarks and shall not thereafter use, advertise or display any
name, ▇▇▇▇ or logo which is or any part of which is similar to or capable of
being confused with any of such trademarks.
13
11. TERM AND TERMINATION
11.1 Initial Term and Renewal. The term of this Agreement shall have an
------------------------
initial period which expires on [*] unless earlier terminated as provided below;
thereafter the term shall automatically renew and extend for consecutive 12
month periods unless either party provides the other with written notice, at
least 90 days in advance of the relevant renewal date, of its election not to
renew.
11.2 Termination for Breach. Either party may, by giving written notice to
----------------------
the other, terminate this Agreement if the other party is in material breach of
this Agreement, and fails to cure such breach within 30 days after written
notice specifying the breach or failure is given by the other party, provided
that no termination shall occur as a result of such breach or failure if such
breach or failure (other than an obligation to pay money or protect intellectual
property rights) is not susceptible of cure within such 30 day period, and the
party in breach shall have commenced in good faith commercially reasonable
efforts to cure such breach or failure and shall proceed to cure such breach or
failure within 90 days after the delivery of the original notice.
[*] Material has been omitted pursuant to a request for confidential
treatment.
11.3 Post-Termination License. For a period of 90 days following the
------------------------
expiration or termination of this Agreement, CrossWorlds will have the right to
(i) continue to attempt to sell Licensed Software to Customers which were, at
the time of termination or expiration, engaged in discussions with CrossWorlds
to license the Licensed Software, and (ii) fulfill all orders placed in such 90
day period. All of the rights, licenses and obligations of CrossWorlds under
this Agreement related to such right to offer and fulfill shall continue during
such period. In addition, effective upon any expiration or termination of this
Agreement, CrossWorlds shall retain a worldwide, nonexclusive, nontransferable
(subject to Section 13.5), limited license to use, copy and distribute the
Licensed Software, Updates and related materials for the sole purpose of
continuing to provide support for Customers as provided in this Agreement,
including Section 3.4 and Schedule E. This license shall continue so long as
----------
CrossWorlds continues to provide support for the Licensed Software to Customers.
Cyclone shall continue to offer and provide Level 3 Support following the
expiration or termination of this Agreement, provided that: (i) with respect to
perpetual licenses, CrossWorlds has paid and continues to pay the applicable
Level 3 Support fees set forth in Section 5; (ii) Cyclone continues to support
the Licensed Software for other users; and (iii) Customers continue to use a
then supported version of the Licensed Software. Cyclone commits to offering
Level 3 Support for the Licensed Software through at least [*] and to support a
point release version of the Licensed Software for at least 12 months following
release of the next succeeding point release version of such Licensed Software.
If at anytime after such date Cyclone proposes to stop providing Level 3 Support
for the Licensed Software then Cyclone shall provide CrossWorlds with at least
180 days prior notice that it is terminating Level 3 Support and shall also
grant CrossWorlds a limited source code license to the Licensed Software to
allow CrossWorlds to take over Level 3 Support during the remainder of any
outstanding licenses.
14
11.4 Effect of Termination. Except as provided in Section 11.3,
---------------------
CrossWorlds shall immediately discontinue use of the Licensed Software upon
expiration or termination of this Agreement, and certify in writing to Cyclone
within 10 days after expiration or termination that all copies of the Licensed
Software have either been returned to Cyclone or destroyed. All payment
obligations of Customer or CrossWorlds incurred prior to termination shall
survive this Agreement. In addition, Sections 1, 2.8, 2.10, 2.11, 3.4, 3.5, 4.5,
5.2, 5.3, 5.4, 5.5, 5.6, 6, 7, 8, 9, 10, 11, 12, and 13 and the related
Schedules, or portions thereof, shall survive termination or expiration of the
Agreement.
12. RECORDS AND AUDIT
CrossWorlds shall maintain for the term of this Agreement plus an
additional two years, complete records of license and support transactions
involving the Licensed Software, for the purpose of determining whether the fees
paid by CrossWorlds to Cyclone have been accurately calculated. Cyclone shall
have the right, exercisable not more than once every 12 months (or not more than
every six months following an audit which discloses a greater than 10%
underpayment), to cause an audit of CrossWorlds records relating to payments due
Cyclone under this Agreement, provided that Cyclone gives CrossWorlds 30 days
advance written notice of such audit, that such audit occurs during the normal
business hours of the location to be audited with minimal disruption to the
other business of CrossWorlds and such audit is conducted by a qualified
national independent accounting firm. CrossWorlds shall fully cooperate with the
audit, as reasonably requested by Cyclone or its representative. Cyclone shall
provide a copy of the audit report from an inspection to CrossWorlds promptly
upon its completion and CrossWorlds shall within 30 days thereafter pay to
Cyclone the amount of any license or other fees shown by the audit report to
have been underpaid by CrossWorlds. In the event that an audit ultimately shows
that CrossWorlds has underpaid Cyclone by ten percent (10%) or more of the
amounts due hereunder for the period audited, then all reasonable costs of such
audit shall be paid by CrossWorlds. If the audit shows that CrossWorlds has
overpaid Cyclone, then Cyclone shall refund to CrossWorlds the amount of such
overpayment within 30 days.
13. GENERAL
13.1 Joint Retained Marketing Rights. Each party reserves the right to
-------------------------------
contact end point users of Solo Edition for the purpose of selling potential
upgrades or other products and services offered by such party.
13.2 Export. CrossWorlds shall comply with all applicable export control
------
laws and regulations, including the Export Administration Regulations maintained
by the United States Department of Commerce, and any other country having proper
jurisdiction, and shall obtain all necessary export licenses in connection with
any subsequent export, reexport, transfer and use of all products, technology
and software acquired from Cyclone under this Agreement.
15
13.3 Governing Law. This Agreement shall be governed by the laws of the
-------------
State of California without regard to conflicts of laws principles. In the event
of any litigation between the parties to enforce any provisions of this
Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and court costs.
13.4 Severability. If any provision of the Agreement is held invalid the
------------
parties agree that such invalidity will not affect the remaining provisions.
13.5 Assignment. Except as set forth in this Agreement, neither party
----------
shall, without the prior written consent of the other party (which shall not be
withheld unreasonably), assign this Agreement in whole or in part or delegate
any right or duty hereunder to any third party, sub-agent, representative or
consultant; provided, however, that the complete rights and obligations of a
party (the "assigning party") may be assigned, without the consent of the other
party, by the assigning party to any corporation which is or becomes a wholly
owned subsidiary or parent of the assigning party, or which survives a merger in
which the assigning party participates or to any corporation or other person or
business entity which acquires all or substantially all of the assets of the
assigning party; provided that, in each case, the party to whom such assignment
is made agrees to comply in full with the obligations of the assigning party
hereunder.
13.6 Integration. This Agreement (including exhibits) constitutes the
-----------
entire agreement between the parties and supersedes any previous or
contemporaneous, oral or written agreements, commitments, representations or
communications regarding its subject matter. No alteration, amendment, waiver or
cancellation shall be effective unless mutually agreed in writing.
13.7 Notices. All notices, demands, consents, approvals and other
-------
communications shall be sufficient if in writing and sent by prepaid wire,
facsimile transmission (with a hard copy mailed on the same date) or registered
or certified mail, return receipt requested, postage prepaid to the addresses of
the parties specified in their signatures below. Notices shall be effective when
received, three (3) days following mailing, or upon facsimile transmission,
whichever is earliest. Notices should be mailed to the parties at the following
addresses:
If to Cyclone: If to CrossWorlds:
Cyclone Commerce, Inc. CrossWorlds Software, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President Attn: VP Corporate Development
With a copy to: Legal Counsel
The address for notice may be changed by providing written notice pursuant to
this Section.
13.8 No Waiver. The failure of either party to enforce at any time any of
---------
the provisions of this Agreement shall not be deemed to be a waiver of the right
of such party thereafter to enforce any such provisions.
16
13.9 Relationship. The parties acknowledge and agree that Cyclone and
------------
CrossWorlds are independent contractors. This Agreement does not create a
general agency, joint venture, partnership, employment relationship or franchise
between the parties.
13.10 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one agreement binding on all the parties,
notwithstanding that all the parties are not signatories to the original or the
same counterpart.
13.11 Publicity. The parties agree to issue a joint press release
---------
announcing the relationship between Cyclone and CrossWorlds no later than 15
days after the Effective Date. The contents of the press release shall be
approved by both parties in writing in advance. Either party, in its marketing
and advertising materials (including web-based materials), may refer to
CrossWorlds' resale of the Licensed Software, but it shall not attribute
promotional quotes or endorsements to the other party or its employees without
such other party's prior written consent.
Effective Date: December 12, 2000
CYCLONE COMMERCE, INC. CROSSWORLDS SOFTWARE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------- -------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------ -----------------------
Title: CEO Title: President & CEO
----------------- ----------------------
17
Schedule A
----------
A. Licensed Software
-----------------
Cyclone Interchange Enterprise Edition (current and future releases from and
after release 3.0.2) for Windows 95/98/00/NT, UNIX (HP UX, SUN Solaris, IBM
AIX), OS/400, OS/390 and all other operating systems now or hereafter supported
by such product, in machine readable, object code form, including: (i) manuals
and other related end user documentation provided by Cyclone; and (ii) all
Updates. Enterprise Edition shall include any substantially similar product that
Cyclone shall identify in its marketing materials as a replacement and successor
product to Enterprise Edition, but which Cyclone chooses to identify with a new
name..
Cyclone Interchange Solo Edition (current and future releases from and after
release 3.0.2) for Windows 95/98/00/NT, UNIX (HP UX, SUN Solaris, IBM AIX), and
OS/400 and all other operating systems now or hereafter supported by such
product, in machine readable, object code form, including: (i) manuals and other
related end user documentation provided by Cyclone; and (ii) all Updates. Solo
Edition shall include any substantially similar product that Cyclone shall
identify in its marketing materials as a replacement and successor product to
Solo Edition, but which Cyclone chooses to identify with a new name..
The Solo Edition product is a version of the Licensed Software that is specially
coded so that it is only capable of supporting a single "Partner Profile" at any
one time. A "Partner Profile" means a profile for a single trading partner that
one can enter and designate on the software to enable use of the product to
exchange data with the trading partner.
The Enterprise Edition product is a version of the Licensed Software that is
specially coded prior to delivery to the Customer so that it is capable of
supporting an unlimited or predetermined multiple number (e.g., 50, 100, 250) of
Partner Profiles at any one time.
B. CrossWorlds Product
-------------------
CrossWorlds InterChange Server, current and future releases.
C. CrossWorlds Distributors
------------------------
The following entities are qualified as CrossWorlds Distributors under Section
2.9 of the Agreement:
[*]
D. Third Party Products
--------------------
The following third party products are components of the Licensed Software but
are excluded from the Deposit Materials:
[*]
[*] Material has been omitted pursuant to a request for confidential
treatment.
1
Schedule B
----------
[*]
[*] Material has been omitted pursuant to a request for confidential
treatment.
1
Schedule C
----------
Form of Quarterly Report
(attached)
Cyclone Quarterly Sales Report
Partner________________
For the calendar quarter ______________
Report Date _________________
------------------------------------------------------------------------------------------------------------------------------------
Cyclone
Customer Order Product Cyclone List License Fees
Name Date Name Quantity Platform [*] [*] [*] Price Due Cyclone
------------------------------------------------------------------------------------------------------------------------------------
1
------------------------------------------------------------------------------------------------------------------------------------
2
------------------------------------------------------------------------------------------------------------------------------------
Totals: $ 0.00 $ 0.00
------------------------------------------------------------------------------------------------------------------------------------
Note: To update table totals, right click on the total $ amount and choose
Update Field.
Please fax report to: "Cyclone Commerce, Inc., ATTN: Accounting Dept." at
(▇▇▇) ▇▇▇-▇▇▇▇
[*] Material has been omitted pursuant to a request for
confidential treatment.
1
Schedule D
----------
CrossWorlds Customer License Agreement
(attached)
1
CROSSWORLDS SOFTWARE
SOFTWARE LICENSE AND SUPPORT AGREEMENT
This SOFTWARE LICENSE AND SUPPORT AGREEMENT ("Agreement") is entered into as
of ________________, 200_____ ("Effective Date") by _________________________,
a corporation, having a principal place of business at _____________________
("Customer"), and CrossWorlds Software, Inc., a Delaware corporation, having a
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("CrossWorlds"), and describes the terms and conditions
pursuant to which CrossWorlds shall license to Customer and support certain
Software (as defined below).
In consideration of the mutual promises and upon the terms and conditions set
forth below, the parties agree as follows:
1. Definitions
1.1 "Affiliates" means all current and future business entities that,
directly or indirectly, control, are controlled by, or are under common
control with Customer, which are not competitors of CrossWorlds;
provided, that an Affiliate shall not include any entity that is an
application integration software vendor. As used herein, "control" shall
mean the ownership or control of fifty percent (50%) or more of the
shares of the subject entity which entitle the holder to vote at a
meeting of such entity.
1.2. "Collaborations" means the applications business logic portion of the
Software so designated in an Attachment A.
1.3 "Confidential Information" means this Agreement and all its Attachments
and Appendices, any addenda hereto signed by both parties, and (a) with
respect to information of CrossWorlds, all Software listings,
Documentation, information, data, drawings, benchmark tests,
specifications, trade secrets, object code and machine-readable copies of
the Software, source code relating to the Software, and any other
proprietary information supplied to Customer by CrossWorlds, including
all items defined as "confidential information" of CrossWorlds in any
other agreement between Customer and CrossWorlds whether executed prior
to or after the date of this Agreement ("CrossWorlds Confidential
Information"), and (b) with respect to information of Customer, all
confidential and/or proprietary business information of Customer supplied
or made available by Customer to CrossWorlds.
1.4 "Connectors" means the portions of the Software that connect
applications, which are so designated in an Attachment A.
1.5 "Documentation" means the user manual distributed by CrossWorlds that is
included with the Software.
1.6. "Environment" means the computer system, including peripheral equipment
and operating system software, specified in an Attachment A.
1.7. "InterChange Server" means the portion of the Software that manages,
stores and executes data, events and transactions from and for Connectors
and Collaborations.
1.8 "Maintenance and Support" means the services described in Section 7.
1.9 "Maps" means software code that transforms Objects from an
application-specific form to a generic form.
1.10 "Objects" means data elements and data structures that are either
application-specific or generic.
1.11 "Server" means a computer system that allows Users to access the Software
from local or remote personal computers or terminals.
1.12 "Site" means each physical location of one or more Servers, specified in
an Attachment A, on which Customer is entitled to Use the Software.
1.13 "Software" means the computer software programs specified in an
Attachment A and all Major Releases/Versions thereto provided to
Customer, consisting of one or more of the following: InterChange Server,
Connectors, Collaborations, and Tools. "Software" also includes without
limitation the Third Party Technology, except as otherwise expressly
stated in this Agreement. "Software" excludes Maps and Objects.
1.14 "Third Party Technology" means the third party technology set forth in
the Third Party Technology Appendix.
1.15 "Tools" means the software tools set forth in an Attachment A for
customizing and enhancing Connectors and Collaborations.
1.16 "Use" means utilization of the Software by Customer (and such other
entities as are expressly permitted by Section 2) on no more than the
number of Servers set forth on an Attachment A, for its own internal
information processing services and computing needs (except as expressly
permitted by Section 2), by copying or transferring the same into
Customer's Environment. "Use" of the Software shall be subject to the
restrictions set forth in Sections 2 and 3.
1.17 "Major Release/Version" means a release or version of the Software
containing functional enhancements, extensions, error corrections or
fixes that is generally made available free of charge (other than media
and handling charges) to CrossWorlds' customers who have contracted for
Maintenance and Support.
1.18 "User" means those Customer employees authorized by Customer to
Use/access the Software through a Server.
2. Grant of License
2.1. Grant. Subject to the terms and conditions of this Agreement and any and
all Attachment A's hereto, CrossWorlds hereby grants to Customer a [*]
2.2. Reservation of Rights. Customer acknowledges and agrees that all right,
title and interest in all copies of the Software and Documentation
whether in machine-readable or printed form, [*]
2.3. Delivery. Upon execution of this Agreement by Customer and CrossWorlds,
CrossWorlds shall issue to Customer one (1) machine-readable copy of the
Software for Use at the Site only, along with one (1) copy of the
appropriate Documentation. CrossWorlds will provide Customer with
additional copies of the Documentation at CrossWorlds' then current
standard charges. Customer acknowledges that no copy of the source code
of the Software will be provided to Customer.
2.4. Use by Affiliates. Affiliates of Customer may use the Software as set
forth in Section 2, solely pursuant to the terms and conditions of this
Agreement. The foregoing is subject to the provision that at least once
per year, and from time to time upon CrossWorlds' request, Customer shall
notify CrossWorlds in writing stating the Affiliates of Customer that are
using the Software. With respect to use of the Software by Affiliates,
CrossWorlds' affirmative obligations under this Agreement will be limited
to Customer. Customer acknowledges and agrees that it is responsible for
any damage or loss of CrossWorlds caused by its Affiliates' breach of
this Agreement and that a breach of this Agreement by any Affiliate shall
be deemed a breach of the Agreement by Customer.
2.5. Disaster Recovery. If the specified Environment is inoperable or the
equipment therein is under repair, Customer will be entitled to transfer
the Software to a substitute Server using an operating system that is
supported by CrossWorlds, upon providing written notice to CrossWorlds of
such transfer and the address of the new Server.
2.6. Backup Copy. Customer will be entitled to make a reasonable number of
machine-readable copies of the Software for backup or archival purposes.
Customer may not copy the Software, except as permitted by an Attachment
A. Customer shall maintain accurate and up-to-date records of the number
and location of all copies of the Software and inform CrossWorlds in
writing of such location(s). All copies of the Software will be subject
to all terms and conditions of this Agreement. Whenever Customer is
permitted to copy or reproduce all or any part of the Software, all
titles, trademark symbols, copyright symbols and legends, and other
proprietary markings must be reproduced.
2.7. Third-Party Consultant Use. Subject to the terms and conditions of this
Agreement, Customer may permit such Third Party Consultants [*] access
the Software solely for the purpose of providing systems
Page 1
[*] Material has been omitted pursuant to a request for confidential
treatment.
integration, disaster recovery or consulting services to Customer in
connection with the business of Customer for which the Software is herein
licensed.
[*]
3. License Restrictions. Customer agrees that it will not itself, or
through any parent, subsidiary, affiliate, agent or other third party:
3.1. sell, lease, license or sublicense the Software or the Documentation;
3.2. decompile, disassemble, or reverse engineer the Software, in whole or in
part;
3.3. Use the Software on any Server not located at the Site;
3.4. write or develop any derivative work or any other software program based
upon the Software or any Confidential Information, except pursuant to
authorized Use of Tools as set forth in Section 2.1.5, if any; or
3.5. use the Software to provide processing services to third parties, or
otherwise use the Software on a "service bureau" basis, unless otherwise
specifically set forth in an Attachment A.
4. Fees.
4.1. License Fees. In consideration of the license granted pursuant to Section
2.1, Customer agrees to pay CrossWorlds the nonrefundable license fee
specified in an Attachment A ("License Fee"). The License Fee is due and
payable in accordance with the payment schedule specified in an
Attachment A.
4.2. Maintenance Fees. Customer may order Maintenance and Support for the
Software pursuant to this Agreement, subject to the payment by Customer
to CrossWorlds of the nonrefundable Maintenance Fees set forth in an
Attachment A. The initial Maintenance Fee is due and payable in
accordance with the payment schedule specified in an Attachment A. The
Maintenance Fee for each subsequent year is subject to modification by
CrossWorlds provided that notice of such modification is given by
CrossWorlds to Customer at least thirty (30) days prior to the end of the
then-current term of Maintenance and Support.
4.3. Additional Licenses. By executing a mutually agreed additional Attachment
A, Customer and CrossWorlds may agree to expand the license granted to
Customer pursuant to Section 2.1 to include Use of the Software at
additional Sites, to increase the allowed number of Servers and/or to
purchase a license to Use additional software products.
4.4. Taxes. All charges and fees provided for in this Agreement (including the
Maintenance Fees) are exclusive of any taxes, duties or similar charges
imposed by any government (including without limitation withholding
taxes) and all amounts payable hereunder shall be made without deduction
for such taxes, duties or charges. Customer agrees to pay or reimburse
CrossWorlds for all federal, state, dominion, provincial, or local sales,
use, personal property, excise or other taxes, fees, or duties arising
out of this Agreement or the transactions contemplated by this Agreement
(other than taxes on the net income of CrossWorlds).
4.5 Payments. All fees shall be paid in U.S. Dollars. All invoices are due
and payable net thirty (30) days from the date of invoice. Any amounts
not paid within thirty (30) days will be subject to interest of 1.5% per
month or the maximum amount permitted by law, whichever is less, which
interest will be immediately due and payable.
5. Source Code Escrow. [*]
6. Audit Rights. CrossWorlds retains the right to audit Customer's use of
the Software at the principal place of business listed above with
reasonable prior notice of such audit given to Customer. Such audit shall
not occur more than once per year and shall be performed during normal
business hours. If the result of such audit reveals that Customer is out
of compliance with this Agreement, Customer shall pay to CrossWorlds the
appropriate fees required to bring Customer back into compliance.
Customer shall reimburse CrossWorlds for the reasonable costs of any
audit which reveals that the discrepancy between the amount paid by
Customer and the amount actually owed by Customer to CrossWorlds exceeds
ten percent (10%) of the amount actually owed by Customer to CrossWorlds.
CrossWorlds shall invoice Customer for such fees with the sum due payable
within thirty (30) days. In addition, Customer will, upon request by
CrossWorlds at any time, promptly provide CrossWorlds with a written
report, certified by an officer of Customer, stating the Site(s), number
of Designated Users, quantities of Connectors and Collaborations and
number of Servers with respect to which Customer is using the Software.
7. Maintenance and Support. For so long as Customer is current in the
payment of all Maintenance Fees as described in Section 4.2, and is
otherwise in compliance with this Agreement, Customer will be entitled to
maintenance and support with respect to the Software ("Maintenance and
Support") as specified in this Section 7.
7.1. Term and Termination. Unless otherwise specified in an Attachment A,
CrossWorlds' provision of Maintenance and Support to Customer (a) will
commence on the date of the applicable Attachment A, and (b) will
continue for an initial term of one (1) year from the date of the
applicable Attachment A. Maintenance and Support will automatically renew
at the end of the initial term and any subsequent term for a renewal term
of one (1) year unless Customer has provided CrossWorlds with a written
termination notice of its intention not to renew the Maintenance and
Support prior to the end of the then-current term of Maintenance and
Support. Termination of Maintenance and Support due to Customer's notice
of intention not to renew will not affect the license of the Software.
7.2. Maintenance and Support Services. Maintenance and Support means that
CrossWorlds will provide Customer, all as further described in Attachment
B:
[*]
Maintenance and Support will be provided only with respect to versions of
the Software that, in accordance with CrossWorlds' policy as set forth in
Attachment B, are then being supported by CrossWorlds. It is understood
and agreed that, as provided in the Third Party Technology Appendix,
Maintenance and Support may not always be available from CrossWorlds with
respect to certain of the Third Party Technology.
7.3 Eligibility of Software. [*]
7.4 Responsibilities of Customer. CrossWorlds' provision of Maintenance and
Support to Customer is subject to (and if Customer employs a Third Party
Consultant as described in Section 2.7, such Third Party Consultant's
compliance with) the following:
7.4.1. Customer shall provide CrossWorlds with access to Customer's personnel
and Environment during normal business hours. This access must include
the ability to dial-in to any part of the Environment on which the
Software is operating necessary to maintain the Software. CrossWorlds
will inform Customer of the specifications of the modem equipment needed,
and Customer will be responsible for the costs and use of said equipment.
7.4.2. Customer shall provide supervision, control and management of the Use of
the Software. In addition, Customer shall implement procedures for the
protection of information and the implementation of backup facilities in
the event of errors or malfunction of the Software or Environment.
7.4.3. Customer shall document and promptly report all errors or malfunctions of
the Software sufficient to enable CrossWorlds to replicate and verify the
error or malfunction. Customer shall take all steps necessary to carry
out procedures for the rectification of errors or malfunctions within a
reasonable time after such procedures have been received from
CrossWorlds.
7.4.4. Customer shall maintain a current backup copy of all programs and data.
7.4.5. Customer shall properly train its personnel in the Use and application of
the Software and the Environment on which it is used.
8. Limited Warranty.
8.1. Warranty. [*] The warranty will not apply to events under this paragraph
caused by:
8.1.1. the Software has not been properly installed and used at all times and in
accordance with the instructions for Use; and
8.1.2. [*]
8.1.3. [*]
[*] Material has been omitted pursuant to a request for confidential
treatment.
Page 2
8.2. Disclaimer. EXCEPT AS SET FORTH ABOVE, CROSSWORLDS MAKES NO WARRANTIES,
WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE
SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR
PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING MAINTENANCE AND
SUPPORT. CROSSWORLDS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SUCH OTHER MATERIALS AND
SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
9. Limitation of Liability.
9.1 [*]
10. Intellectual Property Infringement.
10.1 Third Party Claims. [*] CrossWorlds will not be obligated to provide any
such defense or payment unless: (i) Customer provides CrossWorlds with
written notice of any such claim within thirty (30) days of receipt by
Customer of such claim; (ii) Customer allows CrossWorlds to control the
defense and/or settlement of the proceeding or action with counsel of its
choice; (iii) in the event Customer enters into a settlement directly
with the claimant, CrossWorlds has consented in writing to such
settlement before Customer enters into such settlement; and (iv) Customer
provides CrossWorlds with reasonable cooperation and assistance in
connection with such proceeding or action. [*]
10.2. Exclusions. [*]
10.3. Sole Remedy. The foregoing constitutes the entire and exclusive
obligation and remedy of each of the parties hereto with respect to the
infringement of any intellectual property or other proprietary rights of
a third party.
11. Confidential Information.
11.1. General. Each party acknowledges that the Confidential Information of the
other constitutes valuable trade secrets and each party agrees that it
shall use the other party's Confidential Information solely in accordance
with the provisions of this Agreement and will not disclose, or permit to
be disclosed, the same, directly or indirectly, to any third party
without the disclosing party's prior written consent. Each party agrees
to exercise due care in protecting the Confidential Information of the
other party from unauthorized use and disclosure. However, a party bears
no responsibility for safeguarding the Confidential Information of the
other party that is publicly available, already in such party's
possession and not subject to a confidentiality obligation, obtained by
such party from third parties without restrictions on disclosure,
independently developed by such party without reference to the
information of the other party, or required to be disclosed by order of a
court or other governmental entity.
11.2. Remedies. In the event of actual or threatened breach of the provisions
of Section 11.1, the non-breaching party will have no adequate remedy at
law and will be entitled to immediate and injunctive and other equitable
relief, without bond and without the necessity of showing actual money
damages.
12. Term and Termination.
12.1. Term. [*]
12.2. Termination. Either party may, by written notice to the other party,
terminate this Agreement if any of the following events ("Termination
Events") occur:
12.2.1. The other party is in material breach of any term, condition or
provision of this Agreement, which breach is not cured within thirty (30)
days after the non-defaulting party gives written notice of such breach;
or
12.2.2. The other party: (a) terminates or suspends its business; (b)
becomes insolvent, admits in writing its inability to pay its debts as
they mature, makes an assignment for the benefit of creditors, or becomes
subject to direct control of a trustee, receiver or similar authority; or
(c) becomes subject to any bankruptcy or insolvency proceeding under any
federal or state statutes or other statutes of the country in which it is
organized. If any of the foregoing termination events occur, any
termination will become effective immediately or on the date set forth in
the written notice of termination.
12.3. Effect of Termination. Within thirty (30) days after the date of
termination or discontinuance of this Agreement for any reason, Customer
shall return the Software and all partial and complete copies, all
Documentation relating thereto, and any other Confidential Information in
its possession that is in tangible form and shall destroy/erase any
Confidential Information in electronic form. Customer shall furnish
CrossWorlds with a certificate signed by an executive officer of Customer
verifying that the same has been done. Sections 2.2, 3, 6, 8.2, 9-11,
12.3, 13, 14 and 15 shall survive the termination of this Agreement for
any reason.
13. Non-assignment/Binding Agreement. Neither this Agreement nor any rights
under this Agreement may be assigned or otherwise transferred by either
party, in whole or in part, whether voluntary or by operation of law,
including by way of sale of assets, merger or consolidation, without the
prior written consent of the other party, which consent will not be
unreasonably withheld. Notwithstanding the foregoing, either party may,
without obtaining the consent of the other party, assign all of its
rights and obligations under this Agreement to a successor by way of
merger, acquisition, consolidation or sale of all or substantially all of
its assets provided that the successor is not a competitor of the non-
assigning party. Subject to the foregoing, this Agreement will be binding
upon and will inure to the benefit of the parties and their respective
successors and assigns.
14. Notices. Any notice required or permitted under the terms of this
Agreement or required by law must be in writing and must be: (a)
delivered in person; (b) sent by first class registered mail, return
receipt requested; or (c) sent by overnight air courier, in each case
properly posted and fully prepaid to the appropriate address set forth
below. Either party may change its address for notice by notice to the
other party given in accordance with this Section 14. Notices will be
considered to have been given at the time of actual delivery in person,
three (3) business days after deposit in the mail as set forth above, or
one (1) day after delivery to an overnight air courier service. Notices
shall be sent to the following addresses:
To Customer at:
___________________________________
___________________________________
___________________________________
To CrossWorlds at:
CrossWorlds Software, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attention: Legal Department
15. Miscellaneous.
15.1. Force Majeure. Neither party will incur any liability to the other party
on account of any loss or damage resulting from any delay or failure to
perform all or any part of this Agreement if such delay or failure is
caused, in whole or in part, by events, occurrences, or causes beyond the
control and without negligence of the parties. Such events, occurrences,
or causes will include, without limitation, acts of God, strikes,
lockouts, riots, acts of war, earthquake, fire and explosions, but the
inability to meet financial obligations is expressly excluded.
15.2. Waiver. Any waiver of the provisions of this Agreement or of a party's
rights or remedies under this Agreement must be in writing to be
effective. Failure, neglect, or delay by a party to enforce the
provisions of this Agreement or its rights or remedies at any time, will
not be construed and will not be deemed to be a waiver of such party's
rights under this Agreement and will not in any way affect the
[*] Material has been omitted pursuant to a request for confidential treatment.
Page 3
validity of the whole or any part of this Agreement or prejudice such
party's right to take subsequent action.
15.3. Severability. If any term, condition, or provision in this Agreement is
found to be invalid, unlawful or unenforceable to any extent, the parties
shall endeavor in good faith to agree to such amendments that will
preserve, as far as possible, the intentions expressed in this Agreement.
If the parties fail to agree on such an amendment, such invalid term,
condition or provision will be severed from the remaining terms,
conditions and provisions, which will continue to be valid and
enforceable to the fullest extent permitted by law.
15.4. Integration. This Agreement (including the Attachments and Appendices and
any addenda or amendments hereto signed by both parties) contains the
entire agreement of the parties with respect to the subject matter of
this Agreement and supersedes all previous communications,
representations, understandings and agreements, either oral or written,
between the parties with respect to said subject matter, except as
provided in Section 1.3 with respect to the definition of "Confidential
Information."
15.5. Superseding Terms. No terms, provisions or conditions of any purchase
order, acknowledgment or other business form that Customer may use in
connection with the acquisition or licensing of the Software will have
any effect on the rights, duties or obligations of the parties under, or
otherwise modify, this Agreement, regardless of any failure of
CrossWorlds to object to such terms, provisions or conditions.
15.6. Amendment. This Agreement may not be amended or modified, except by a
writing signed by authorized representatives of both parties.
15.7. Export Controls. Customer may not export or re-export the Software
without the prior written consent of CrossWorlds and without the
appropriate United States and foreign government licenses. Customer shall
comply fully with all then current applicable laws, rules and regulations
relating to the export of technical data, including, but not limited to
any regulations of the United States Bureau of Export Administration and
other applicable governmental agencies.
15.8. Publicity. Customer acknowledges that CrossWorlds may desire to use
Customer's name and describe its business and its CrossWorlds
implementation in product brochures, marketing collateral, presentations,
earnings releases, analyst calls and financial reports, and Customer
agrees that CrossWorlds may do so. CrossWorlds will obtain Customer's
prior written approval prior to first using Customer's name in a
CrossWorlds press release other than an earnings release.
15.9. Counterparts; Facsimile Signatures. This Agreement may be executed in
counterparts, each of which so executed will be deemed to be an original
and such counterparts together will constitute one and the same
agreement. Facsimile signatures shall have the same legal force and
effect as original, manual signatures.
15.10. Governing Law. The rights and obligations of the parties under this
Agreement shall not be governed by the 1980 U.N. Convention on Contracts
for the International Sale of Goods; rather, this Agreement shall be
governed by and construed in accordance with the laws of the State of
California, without reference to its conflict of laws principles.
15.11. Dispute Resolution and Arbitration. Any alleged breach of this Agreement
by a party shall be resolved as follows: the parties shall commence the
resolution process by making a good faith effort, for thirty (30) days
following written notice by the non-breaching party of the alleged
breach, to resolve the matter through information negotiations ("Good
Faith Negotiations"). These Good Faith Negotiations shall involve the
primary business contacts for each of the parties and, if these persons
are unable to resolve the matter, the alleged breach shall be
successively escalated through each party's management until an
authorized executive of each party indicates in writing that an impasse
has been reached, but in no event shall Good Faith Negotiations extend
beyond the 30-day period described above. If the Good Faith Negotiations
reach an impasse, and in any event after the 30-day period described
above has passed, any alleged breach of this Agreement shall be settled
by arbitration in San Francisco, California, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. Arbitration shall be conducted by a
panel of three (3) members, with CrossWorlds and Customer each selecting
one member and the third member, who shall be chairperson, selected by
agreement between the other two members. The chairperson shall be an
attorney-at-law, and the other members shall have a background or
training in computer law, computer science, or marketing of computer
products. The arbitrators' fees shall be divided equally between the
parties, but the arbitrators shall be permitted, in their discretion, to
awarded to the prevailing party its reasonable attorneys' fees, costs and
expenses (including expert witness fees, if any). Notwithstanding the
foregoing, CrossWorlds shall not be precluded from seeking equitable
relief, nor invoking the jurisdiction of any competent court, at any time
to remedy or prevent violation of any provision relating to the
intellectual property of CrossWorlds or its suppliers.
15.12 U.S. Government Conditions. The Software and Documentation are
"commercial items" as that term is defined in 48 C.F.R. 2.101 and
successor regulations consisting of "commercial computer software" and
"commercial computer software documentation" or "documentation related to
commercial computer software" as such terms are used in 48 C.F.R. 12.212
and 48 CFR 252.227-7014(a)(1) and their successor regulations. Consistent
with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 and
their successor regulations, all U.S. Government users, agencies and
contractors acquire the Software and Documentation with only those rights
described in this paragraph.
IN WITNESS WHEREOF, duly authorized representatives of the parties have
executed this Agreement as of the Effective Date indicated above.
CrossWorlds Software, Inc. Customer
____________________________ ______________________________
Authorized Signature Authorized Signature
____________________________ ______________________________
Name Name
____________________________ ______________________________
Title Title
Page 4
CROSSWORLDS SOFTWARE LICENSE AND SUPPORT AGREEMENT
ATTACHMENT A-___
This is Attachment A-___ to that certain CrossWorlds Software License and
Support Agreement between ____________________________ ("Customer") and
CrossWorlds Software, Inc. ("CrossWorlds"), entered into as of
______________________ (the "Agreement").
[*]
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed
this Attachment A-__ to the CrossWorlds Software License and Support Agreement
as of the date set forth below.
Dated: ___________________, 200__
CrossWorlds Software, Inc. Customer
__________________________________ _______________________________
Authorized Signature Authorized Signature
__________________________________ _______________________________
Name Name
__________________________________ _______________________________
Title Title
[*] Material has been omitted pursuant to a request for confidential treatment.
Page 5
ATTACHMENT B
to
CROSSWORLDS SOFTWARE LICENSE AND SUPPORT AGREEMENT
SUPPORT RESPONSE SCHEDULE
CrossWorlds' Customer Support personnel will make commercially reasonable
efforts to respond to error reports according to the following schedule:
[*]
THIRD PARTY TECHNOLOGY APPENDIX
to
CROSSWORLDS SOFTWARE LICENSE AND SUPPORT AGREEMENT
The following terms and conditions of this Third Party Technology Appendix
("Appendix") are incorporated into the CrossWorlds Software License and Support
Agreement.
With respect to all Third Party Technology:
[*]
Without limiting the foregoing, the following terms and conditions also apply:
[*]
Third Party Technology shall also include such additional third party software,
not listed on this Third Party Technology Appendix, as CrossWorlds may
incorporate into products that CrossWorlds provides to Customer. However,
Sections 8.1 and 10.1 of the Agreement shall not apply to such additional,
unlisted third party software, nor shall CrossWorlds have any duty to provide
maintenance or support for such software, unless and until Customer and
CrossWorlds execute a new Third Party Technology Appendix that explicitly
addresses such software.
CrossWorlds Software, Inc. Customer
____________________________ ______________________________
Authorized Signature Authorized Signature
___________________________ ______________________________
Name Name
___________________________ ______________________________
Title Title
[*] Material has been omitted pursuant to a request for confidential treatment.
Page 6
Schedule E
Cyclone and CrossWorlds Product Support Obligations
A. Definitions
The following definitions apply to this Schedule:
[*]
[*] Material has been omitted pursuant to a request for confidential
treatment.
1
Schedule F
FTE Procedures and Work
A. FTE Procedures
--------------
The following procedures shall govern the reporting and compensation for FTE
Work:
[*]
[*] Material has been omitted pursuant to a request for confidential
treatment.
1
Schedule G
----------
Training and Additional Support Provisions
[*]
[*] Material has been omitted pursuant to a request for confidential
treatment.
1