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Confidential Treatment Requested
SEC Exhibit 10.44
[EXTRICITY SOFTWARE LOGO] [ASPENTECH LOGO]
EXTRICITY/ASPENTECH
SOFTWARE LICENSE, DISTRIBUTION AND
STRATEGIC RELATIONSHIP AGREEMENT
This Extricity/AspenTech Software License, Distribution and
Strategic Relationship Agreement, including the attached Exhibits A to G
(this "Agreement") is made as of September 30, 1999 (the "Effective
Date"), by and between Extricity Software, Inc. ("Extricity") and Aspen
Technology, Inc. ("AspenTech").
WHEREAS, Extricity is a software company which provides business to business
integration software and is committed to providing state of the art
solutions that allow businesses to collaborate through the automation
of shared business practices over the Internet, and to supporting
certain strategic relationships to bring this technology to the
marketplace; and
WHEREAS, AspenTech is a software and service technology company which provides
process design and plant control, management and optimization, business
integration and supply chain solutions to end user customers in various
process industries worldwide; and
WHEREAS, Extricity and AspenTech wish to collaborate in a strategic relationship
for the benefit of both parties to maximize the integrated solutions
offered by AspenTech to its customers and to promote the distribution
and licensing of Extricity's software products on a worldwide basis in
the process industries.
NOW THEREFORE, in consideration of the mutual covenants, conditions, and
obligations hereinafter set forth, the parties hereto enter into this
Agreement in furtherance of the goals of the alliance as specified
above, and hereby agree as follows:
1. DEFINITIONS.
For the purposes of this Agreement, the definitions set forth in this Section 1
will apply to the respective capitalized terms:
"ASPENTECH CUSTOMER PRODUCTS" means Extricity Products which are marketed and
licensed to licensed End Users and prospective End Users of AspenTech Products.
"ASPENTECH PRODUCTS" means the Software owned or licensed by AspenTech from a
third party for distribution to customers in the normal course of AspenTech's
business, and the corresponding Documentation developed by AspenTech for
distribution and use in combination with such Software, including all New
Releases, Updates and Upgrades. For the purposes of this
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Agreement, AspenTech Products will include services provided by AspenTech to
customers in the normal course of AspenTech's business.
"BUG" means any defect in Software that prevents its adequate functioning
whether because of design flaws in the Software, failure of the Software to
conform to the Documentation, improper coding and implementation, lack of
quality control and testing, or any other purpose.
"BUNDLED SOLUTION" means a combination of AspenTech Products and Extricity
Products which is not an Integrated Product.
"DISTRIBUTOR" means a person or entity which is authorized by AspenTech to
market and distribute copies of Eligible Products to potential End Users, either
directly or via sub-distributors.
"DOCUMENTATION" means all available technical information, training materials
and those instructions in printed or electronic media, manuals and diagrams
pertaining to Software, but does not include Source Code.
"ELIGIBLE PRODUCTS" means the Integrated Product, Bundled Solution or
AspenTech Customer Products.
"END USER" means an entity licensing from AspenTech any of the Eligible Products
for Internal Use and not for redistribution, sublicensing or resale in any form.
"END USER SUPPORT AND MAINTENANCE" will mean First and Second Level support and
maintenance services which AspenTech will provide to End Users as defined in
Exhibit F hereto.
"ERROR" means a malfunction in the Software that causes it to fail to perform
its intended function due to a Bug.
"EXTRICITY LIST PRICE OR PRICE LIST" means the then-current list price to
customers, in U.S. dollars, for Extricity Products, as further specified in
Section 4.1 of this Agreement. The current list price as of the Effective Date
is set forth in Exhibit A.
"EXTRICITY PRODUCTS" means the Software identified on Exhibit A and the
corresponding Documentation developed by Extricity for distribution and use in
combination with such Software, including all New Releases, Updates and Upgrades
which are or shall be made operable on the Operating Environment(s) and
including add-on modules subsequently developed by Extricity which would be
utilized with the Integrated Products and the Bundled Solution; provided
however, that Extricity is under no obligation to create or develop new
products.
"GOLD CD" means a computer compact disc which will contain the Extricity
Products in machine-readable, reproducible form, from which AspenTech will be
capable of reproducing the Extricity Products and Documentation.
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"INFORMATION" means any idea, data, program, technical, business or other
intangible information, however conveyed.
"INTEGRATED PRODUCT" means one or more Software product(s) resulting from the
integration by AspenTech of the Extricity Products with AspenTech Products,
including all Updates and Upgrades, and all supporting Documentation relating
thereto, including without limitation localization, derivative works,
modifications, interfaces, translations and/or development created by AspenTech.
"INTELLECTUAL PROPERTY RIGHTS" means patent rights, copyright rights (including,
but not limited to, rights in audiovisual works and Moral Rights), trade secret
rights, and any other intellectual property rights recognized by the law of each
applicable jurisdiction.
"INTERNAL USE" means use by employees, contractors and others affiliated with
the End User under the direction of and for the benefit of the End User.
Internal Use does not include the right to provide the Extricity Products to
third parties whether by lease, rental, sale, sublicense or any other means.
Except for the definition of End Users, Internal Use by AspenTech will also
include use by AspenTech's application developers.
"LICENSE AGREEMENT" means the form of AspenTech's license terms and conditions,
a current example of which is attached hereto as Exhibit C, which may be amended
from time to time by AspenTech.
"MORAL RIGHTS" means any right to claim authorship of a work, any right to
object to any distortion or other modification of a work, and any similar right,
existing under the law of any country in the world, or under any treaty.
"NEW RELEASES" means any new revision of Software that includes significant
enhancements which add new features to Software and which will be designated by
a new version number either to the left of the decimal point (e.g. v2.03 to
v3.00) or one decimal place to the right of the decimal point (e.g. v2.03 to
v2.10).
"OBJECT CODE" means computer programs assembled or compiled in magnetic or
electronic binary form on software media, which are readable and usable by
machines, but not generally readable by humans without reverse-assembly,
reverse-compiling, or reverse-engineering.
"OPERATING ENVIRONMENT(S)" means operating system Software, independent of
hardware, on which the Extricity Product is or shall be operable. As of the
Effective Date, the only operating system is Windows NT. Additional Operating
Environments will be added to this Agreement via an amendment as they are
developed by Extricity, provided however, that Extricity is under no obligation
to create or develop new products.
"SOFTWARE" means tangible and intangible Information in Object Code form
constituting one or more computer or apparatus programs and the informational
content of such programs.
"SOURCE CODE" means any human readable computer program code.
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"SOURCE CODE ESCROW" means the deposit by Extricity of the Source Code of the
Extricity Products (including such development documentation such as functional
and design specifications and systems manuals as all of the above may exist) in
an escrow account set up through a third party escrow agent in the normal course
of their business.
"SUPPORT AND MAINTENANCE" will mean the services which Extricity will provide to
AspenTech hereunder, as specified in Exhibit F hereto, , including but not
limited to installation and information regarding proper usage of the Extricity
Products, screening of suspected Errors, and dissemination of Updates, Upgrades
and New Releases.
"SUPPORT REVENUES" means all revenues received by AspenTech from End Users which
have entered into agreements for End User Support and Maintenance for the
Eligible Products.
"TERRITORY" means the entire world except Taiwan and as limited by the terms of
Section 2.4(b).
"TRADEMARKS" means all trade marks, trade names, service marks, logos, now owned
or hereinafter acquired by either party, and all other trademarks, trades names,
service marks and logos identifying or used in connection with their respective
Software, whether or not registered under the laws of the Territory.
"UPDATES" means any new revisions and/or modifications required to be made to
Software and/or Documentation in order to correct Errors.
"UPGRADES" means any new revision of Software that includes corrections and
minor modifications to existing features and which will be designated by a new
version number which has changed from the prior number only two places to the
right of the decimal point (e.g. v2.02 to v2.03).
2. GRANT OF RIGHTS.
2.1 GRANT OF LICENSE FOR EXTRICITY PRODUCTS.
During the Term, Extricity hereby grants to AspenTech, and
AspenTech hereby accepts, a non-exclusive, non-transferable,
perpetual and irrevocable license, except as otherwise provided
for in this Agreement, to:
(a) embed or integrate the Extricity Products into or with
AspenTech Products to create: (i) the Integrated Product;
(ii) interfaces to the Extricity Products or Integrated
Product; and (iii) develop, translate, localize, modify
and make derivative works of the Integrated Product;
(b) copy, distribute and sublicense the use of the Eligible
Products to potential End Users under License Agreements,
including for the purposes of demonstration, beta testing
or evaluation and such demonstration, beta testing or
evaluation only for a reasonably limited period of time;
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(c) sublicense the rights granted in subparagraphs (a) and (b)
above to Distributors and contractors hired by AspenTech,
in both situations solely for the purposes of exercising
the rights and licenses granted herein; and
(d) sublicense the Eligible Products to End Users, and to
Distributors for the purpose of further sublicensing to
End Users, either directly or through sub-distributors.
The license grant set forth in this Section 2 pertains to the
Extricity Products set forth on Exhibit A. Other than the
Integrated Product, under no circumstances may AspenTech grant to
any person or entity the right to use the Extricity Products as
part of any other product such that the Extricity Product would
be contained as part of or embedded in that other product. The
parties will, from time to time, add to Exhibit A any new
Software developed by Extricity which is related to this
Agreement.
2.2 GRANT OF LICENSE FOR DOCUMENTATION
Extricity hereby grants to AspenTech, and AspenTech accepts, a
non-exclusive, royalty-free license under Extricity's copyrights
in Extricity's Documentation (and to permit Distributors):
(a) for Integrated Products and Bundled Solutions to:
(i) translate, edit, reformat, rewrite and create
localizations; (ii) incorporate, in whole or in
part, into other written materials prepared by or
for AspenTech; and (iii) reproduce and distribute
modified and original versions of the
Documentation in hard copy or in an on-line
format, and, if such Documentation is in an
on-line format, allow Distributors and End-Users
to make print copies of the same; and
(b) for AspenTech Customer Products, to reproduce and
distribute modified and original versions of the
Documentation in hard copy or in an on-line format, and,
if such Documentation is in an on-line format, allow
Distributors and End-Users to make print copies of the
same.
Documentation that is delivered to the U.S. Government shall
include a restrictive rights legend.
2.3 LICENSE FOR INTERNAL USE.
Extricity hereby agrees to grant, from time to time and pursuant
to the terms of Extricity's standard license agreement, as
mutually agreed between the parties, licenses for the Internal
Use of Extricity Products, for which AspenTech will pay no
license fee.
2.4 RESTRICTIONS ON LICENSE GRANT.
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(a) AspenTech shall ensure that all Intellectual Property
Rights notices which are appropriate to adequately protect
both AspenTech's and Extricity's Intellectual Property
Rights in the Eligible Products are placed on all copies
and on other written materials distributed by AspenTech
and its Distributors.
(b) AspenTech will not distribute or allow distribution of
Eligible Products to any of the persons or entities listed
on Exhibit D, or to any person or entity which is a direct
competitor of Extricity as determined by Extricity.
(c) AspenTech and its Distributors' rights to sublicense
Extricity Products are limited to Eligible Products.
2.5 END USER AND DISTRIBUTOR LICENSES.
(a) AspenTech will: (i) require each Distributor or End User
to execute and/or accept Software protection obligations
substantially similar to those contained in Sections 2,
3, 5, 11 and 12 of the License Agreement, and as
otherwise specified in this Section 2; and (ii) provide
Extricity with copies of all executed License Agreements
with the quarterly reports required under Section 5.4.
(b) AspenTech will ensure that a valid and enforceable
license is obtained in each jurisdiction which protects
Extricity's Intellectual Property Rights in such
jurisdiction.
2.6 RESERVATION OF RIGHTS.
(a) Subject to the rights granted to AspenTech herein, all
right, title and interest in and to the Extricity
Products, including the Intellectual Property Rights and
technology inherent in the Extricity Products, are, and at
all times will remain, the sole and exclusive property of
Extricity. No right to use, print, copy or display the
Extricity Products, in whole or in part, is granted
hereby, except as provided in this Agreement. Nothing
contained in this Agreement will directly or indirectly be
construed to assign or grant to AspenTech any right, title
or interest in or to the Intellectual Property Rights,
Trademarks, or any ownership rights in or to the Extricity
Products. All right, title and interest in and to the
Integrated Product, AspenTech Products, including the
Intellectual Property Rights and technology inherent
therein (except the Extricity Products), are, and at all
times will remain, the sole and exclusive property of
AspenTech. AspenTech reserves the right to create
derivative works of the Integrated Products, and all
right, title and interest in such derivative works,
subject to protection of Extricity's ownership rights in
the Extricity Products.
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(b) AspenTech agrees not to reverse compile, reverse
engineer, disassemble or translate the Extricity
Products, in whole or in part, or create any
translations or derivative works from the Extricity
Products, except as necessary to fulfill the provisions
of this Agreement. To the extent this restriction is
prohibited by law, AspenTech may undertake such actions
as the applicable law requires, in strict accordance
with the absolute minimum use required to be permitted
by such law.
3. SOURCE CODE ESCROW.
(a) Within 30 days of the Effective Date, Extricity will amend its
existing Source Code Escrow arrangement to include AspenTech as
a beneficiary, and such Source Code Escrow will include all the
Extricity Products which are subject to this Agreement. Release
provisions for the Source Code Escrow shall be: (i) bankruptcy
or insolvency of Extricity; or (ii) termination by Extricity of
the licensing, support and maintenance of Extricity Products,
and there is no successor in interest to the obligations of
Extricity under this Agreement; or (iii) Change of Control of
Extricity and the acquirer is a Direct Competitor of AspenTech
and either Extricity or the Direct Competitor of AspenTech
materially breaches this Agreement subsequent to the Change of
Control and such material breach is not cured within 30 days of
written notice from AspenTech, such notice setting forth in
detail the material breach. For purposes of this Section 3(a), a
"Change of Control" will mean the acquisition by a third party
of 51% or more of the combined voting power of an entity's then
outstanding voting securities and a "Direct Competitor of
AspenTech" will mean an entity which is listed on Exhibit G, as
such exhibit may be modified by mutual agreement of the parties
from time to time. For the purposes of this provision, 'material
breach' shall include without limitation a material failure by
Extricity or the acquirer to fulfill its obligations set forth
in Sections 2, 3(b), 6, 8, 9.3, 10, 11, 14, 15, 16, 17, 21 and
22.1 of this Agreement. The provisions of subsection 3(a)(iii)
will not apply if, prior to a Change of Control of Extricity to
a Direct Competitor of AspenTech, there has been a Change of
Control of AspenTech.
(b) If there is a release of the Source Code pursuant to the terms
of Section 3(a)(iii), then the Source Code shall be released to
AspenTech from the Source Code Escrow, and AspenTech may use the
license granted hereby, for the period of 24 months from the
date of such release (the "Release Period"), to use the Source
Code to support, Upgrade and Update the Extricity Products to
the extent necessary to allow AspenTech to continue to license
the Extricity Product to its customers and provide related
support in accordance with the terms of this Agreement for the
Release Period. In such event, AspenTech shall be required to
fulfill all of its obligations under this Agreement, including
but not limited to, the obligations to protect the Intellectual
Property Rights of Extricity, use the Extricity Products only
for the purposes specified in this Agreement, and to pay the
applicable Royalty Amounts under this Agreement until the end of
the Release
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Period; provided however, that the Royalty Amount will be
decreased to an amount equal to [redact]% of the then current
Royalty Amount for the first 12 months of the Release Period and
then decreased to [redact]% of the then current Royalty Amount
for the last 12 months of the Release Period. If there is a
release of the Source Code pursuant to the terms of Sections
3(a)(i) and (ii), then the limitations on the release as set
forth in Section 3(b) will not apply.
(c) Within 30 days after Extricity makes a New Release, Update,
Upgrade, the Source Code and Documentation for the same shall be
deposited with the Escrow Agent by Extricity in compliance with
the terms and conditions of the Escrow Agreement. Extricity
shall provide AspenTech timely notice of each such New Releases,
Updates, Upgrades so that AspenTech can exercise its rights and
confirm the timely deposit as specified herein.
4. ROYALTIES AND DISCOUNTS.
The following terms will have the following meanings:
"Revenues" will mean all revenues from Software licenses, rentals,
leases and subscriptions, less actual returns, discounts and rebates.
"Standard License Revenues" will be all Revenues received by AspenTech
or its Distributors from End Users for Extricity Products but not
Revenues received by AspenTech or its Distributors for either (a)
Integrated Products or (b) Bundled Solutions with a price to End User
over $[redact]. From the Effective Date until the first Pricing and
Discount Review as specified in Section 4.3 hereunder, ▇▇▇▇▇▇▇▇▇ will
make best efforts to achieve Standard Net License Revenue of not less
than [redact]% of Extricity List Prices. After the first Pricing and
Discount Review Extricity List Prices and/or discounts specified
hereunder will be reset in accordance with Section 4.3(b) below. After
the first Pricing and Discount Review, the Standard Net License Revenue
will in no event be below the levels set by the Pricing and Discount
Review.
"Integrated Product License Revenues" means the portion of the Revenues
received by AspenTech or its Distributors from the Integrated Product
that is attributed to the Extricity Product as mutually agreed to by the
parties and shall be based on the relative contribution to value to the
End User and the underlying prices of the components provided by
Extricity as compared with the components provided by AspenTech, as if
they had been sold separately.
"Bundled Solution License Revenues" means the proportion of the Software
license Revenues received by AspenTech or its Distributors from a
Bundled Solution with a price to End User over $[redact] and it will be
computed by: (i) dividing the Extricity List Price of the Extricity
Product included in the Bundled Solution by the sum of the list prices
of all the other software components of the Bundled Solution (determined
from AspenTech's standard list pricing schedule); and (ii) multiplying
that number by the total Revenues received for such Bundled Solution.
Therefore, in the event the Extricity
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Product is sold at a discount under this calculation, the amount of the
discount shall be the same as for the other components of the solution
provided by AspenTech.
"Net License Revenues" will mean the aggregate of Standard
License Revenues, Integrated Product License Revenues and Bundled
Solution License Revenues.
4.1 ROYALTY AMOUNT.
(a) During the Term, for each copy of the Extricity
Product contained in an Eligible Product, licensed to an
End User by AspenTech or a Distributor, AspenTech will
pay Extricity a royalty in an amount equal to [redact]%
of the Net License Revenues; provided however, that if:
(i) the Aggregate Net License Revenue from the
Effective Date (equal $[redact] or more but
less than $[redact], as indicated in the
quarterly reports required in Section 5.4,
AspenTech will pay to Extricity a royalty in an
amount equal to [redact]% of the Net License
Revenues in excess of $[redact];
(ii) the Aggregate Net License Revenues equal
$[redact] or more but less than $[redact],
as indicated in the quarterly reports required
in Section 5.4, AspenTech will pay to Extricity
a royalty in an amount equal to [redact]% of the
Net License Revenues in excess of $[redact]; and
(iii) the Aggregate Net License Revenues equal
$[redact] or more, as indicated in the
quarterly reports required in Section 5.4,
AspenTech will pay to Extricity a royalty in an
amount equal to [redact]% of the Net License
Revenues in excess of $[redact] (each applicable
amount in this Section 4.1(a) will be referred
to as the "Royalty Amount").
For the purposes of this Agreement, "Aggregate" shall mean the
cumulative Net License Revenue from the Effective Date of this
Agreement.
(b) In the "no charge" case such as an evaluation or
demonstration license AspenTech shall owe no royalty to
Extricity.
(c) The parties may agree at any time during the Term to
lower the Royalty Amounts for particular potential End
Users.
4.2 ROYALTY AMOUNT ON SUPPORT REVENUES.
During the Term, for each End User Support and Maintenance
agreement entered into by an End User with AspenTech for the
Integrated Product or the Extricity
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Product, AspenTech will pay Extricity a royalty in an amount
equal to [redact]% of the net Support Revenues to AspenTech (the
"Service Royalty Amount").
4.3 EXTRICITY PRICE LIST.
(a) Extricity represents and warrants that for the purposes
of this Agreement, the Extricity Price List accurately
reflects the actual prices then currently in use by the
Extricity sales organization. Extricity may, from time
to time, change the Extricity Price List; provided
however, that any changes will not affect any royalty
payments calculated on Extricity List Prices for a 90
day period beginning on the date that Extricity gives
AspenTech notice of such price changes. The Extricity
Price List for this Agreement may be adjusted from time
to time to match current market conditions. Extricity
represents that the [redact]% level represents that the
[redact]% level is reflective of the greatest discounts
Extricity currently grants to any party except on an
exceptional basis to an end user customer.
(b) The parties agree that on a semi-annual basis they will
conduct a "Pricing and Discount Review" in which they
will communicate and share information regarding the
average prices and the discount to list prices that End
Users paid for licenses for the Extricity Product when
sold by ▇▇▇▇▇▇▇▇▇ and its Distributors, and by Extricity
and its other distributors. Based upon that review,
Extricity will set ongoing discount levels under this
Agreement at the greater of [redact]% or the discount
determined to be approximately the [redact] percentile
of the discounts granted by Extricity to its customers
in the prior 6 month period ("Maximum Allowable
Discount"), and the discounts granted by AspenTech
thereafter will not exceed the Maximum Allowable
Discount without approval by Extricity. The Maximum
Allowable Discount will be adjusted with each
semi-annual Pricing and Discount Review and will also
take into account the effect of any changes in the
Extricity List Price. Note, in the Pricing and Discount
Review, data for extraordinary transactions may be
removed from the analysis.
4.4 ASPENTECH PRICING.
Notwithstanding any other provision of this Agreement, AspenTech
is, and will remain, entirely free to determine its End User
prices and fees in its own discretion.
5. PAYMENTS, REPORTS AND AUDIT RIGHTS.
5.1 PREPAID AMOUNTS.
AspenTech will pay to Extricity the following amounts, on the
following dates (the "PrePaid Amounts"): (i) within 10 business
days of the Effective Date,
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$[redact]; (ii) within 10 business days of the closing date of
Extricity's Series E preferred stock financing, $[redact]; and
(iii) on July 1, 2000, $[redact]. The PrePaid Amounts shall
constitute prepaid royalties to be credited against the Royalty
Amounts accrued in accordance with Section 4.2 above, and will
be, on the dates paid, non-cancelable and non-refundable to
AspenTech. Effective on the day that royalties accrued under
this Agreement equal the PrePaid Amounts, AspenTech will be
required to pay the Royalty Amounts within 45 calendar days of
the end of each calendar quarter for the remainder of the Term.
5.2 ROYALTY PAYMENTS.
During the Term, AspenTech will be required to pay the Royalty
Amount and the Service Royalty Amount within 45 calendar days of
the end of each calendar quarter. For any overdue payments
pursuant to this Section 5.2, late fees will accrue at the
lesser of 1.5% per month or the maximum rate allowed under law.
5.3 TAXES.
All amounts payable under this Agreement are exclusive of all
sales, use, value-added, withholding, and other taxes and
duties. Provided AspenTech can provide a valid tax exemption
certificate, Extricity will not charge AspenTech sales tax.
AspenTech is solely responsible for and will pay all taxes and
duties assessed in connection with this Agreement (including but
not limited to withholding taxes) and its performance by any
authority within or outside of the United States, except for
taxes payable on Extricity's net income. AspenTech will promptly
reimburse Extricity for any and all taxes or duties that
Extricity may be required to pay in connection with this
Agreement or its performance. AspenTech will provide Extricity
with written documentation, including but not limited to copies
of receipts, of any and all such taxes paid in connection with
this Agreement.
5.4 REPORTS AND AUDIT RIGHTS.
(a) Within 15 business days after the last day of each
calendar quarter, AspenTech will present to Extricity a
payment due statement, indicating the Net License
Revenues and the Support Revenues accrued during such
quarter, the number of Extricity Products licensed and
the amount due. Any monetary conversions required to
make the report will be calculated based on the exchange
rate reported by the Wall Street Journal on the last day
of the month in which the revenues are reported.
(b) AspenTech will maintain, for a period of 2 years after
the end of the year to which they pertain, complete
sales and royalty records of the Extricity Products and
services received by AspenTech in order to calculate and
confirm ▇▇▇▇▇▇▇▇▇'s royalty obligations hereunder. Upon
reasonable prior notice, Extricity will have the right
to appoint an independent accounting firm or other agent
reasonably acceptable to ▇▇▇▇▇▇▇▇▇ to
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examine such financial books, records and accounts
during AspenTech's normal business hours to verify the
royalties due by ▇▇▇▇▇▇▇▇▇ to Extricity herein, subject
to execution of ▇▇▇▇▇▇▇▇▇'s standard confidentiality
agreement by the accounting firm or agent; provided,
however, that execution of such agreement will not
preclude such firm from reporting its results to
Extricity. In the event such audit discloses an
underpayment of royalties due Extricity hereunder of 15%
or more, AspenTech will bear all costs associated with
any such audit. In no event will AspenTech be subject to
more than 1 audit per year unless the prior audit in
such year disclosed an underpayment of royalties due
Extricity hereunder of 15% or more. Any Royalty Amount
underpaid or overpaid will be paid to the appropriate
party within 5 business days of the completion of the
audit.
6. TESTING AND ACCEPTANCE OF THE EXTRICITY PRODUCTS.
6.1 TESTING.
Extricity will deliver Extricity Products to AspenTech that have
been tested and passed Extricity's normal testing, acceptance
and certification processes.
6.2 OPERATING ENVIRONMENT AND SPECIFICATIONS.
Extricity shall provide AspenTech with the Extricity Product
operating on each Operating Environment (or a version thereof)
within 30 days of the date that Extricity makes Extricity
Products available on the new Operating Environment.
6.3 PACKAGING.
(a) AspenTech shall be permitted, at its option, to
repackage, market and distribute any Integrated
Product(s) and Bundled Solutions and associated
Documentation under either its own product name and
Trademarks or under Extricity's Trademarks currently or
hereafter associated with the Extricity Product
contained in the Integrated Product or Bundled Solution.
Prior to AspenTech's first use of any such Trademarks of
Extricity, however, ▇▇▇▇▇▇▇▇▇ agrees to notify Extricity
in writing as to how such Trademarks are to be used, for
Extricity's approval. Such approval by Extricity shall
not be unreasonably withheld.
(b) The quality of the packaging and Documentation produced
by AspenTech must be equal to that of Extricity's
standard retail version of the Extricity Products and
the training materials Extricity uses in the United
States, respectively, and of a sufficient quality to be
acceptable to potential End Users in the Territory.
Extricity will provide such assistance to AspenTech as
is necessary to ensure that such quality standards are
met.
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(c) Extricity will sell to AspenTech the Documentation (if
▇▇▇▇▇▇▇▇▇ decides not to reproduce them), retail
packaging boxes, or any portions thereof, and similar
materials at Extricity's cost of goods, plus shipping
costs, insurance, duties and taxes.
6.4 DELIVERY.
Extricity will provide the Extricity Products to AspenTech on a
Gold CD. AspenTech will reproduce the Extricity Products from
the Gold CD. Gold CDs for Upgrades or New Releases of Extricity
Software will be provided to AspenTech within 10 BUSINESS days
of the first commercial release of each Update or New Release.
Extricity will, as soon as practicable, provide AspenTech with
advance notice of each New Release or Upgrade.
7. DELETION OF PRODUCTS AND SUPPORT AND MAINTENANCE.
Extricity will notify AspenTech in writing at least 180 days prior to
the date on which Extricity ceases to sell licenses for any Extricity
Product and AspenTech may continue to license that Extricity Product for
another 180 days after discontinuation of the Extricity Product by
Extricity, and sell Support and Maintenance for such Extricity
Product(s) for no more than 12 months from the date of notice to
AspenTech.
8. DEMONSTRATIONS AND EVALUATIONS.
AspenTech will be responsible for demonstrations of the Eligible
Products to prospective End Users. Extricity agrees to provide
reasonable telephone assistance for demonstrations at no charge.
Assistance on-site by Extricity in any demonstrations or benchmarks will
be at Extricity's discretion. Each party will pay its own expenses
However, AspenTech may request the support of Extricity in
Demonstrations and Evaluations as outlined in Section 9.1 below.
9. EXTRICITY SUPPORT.
9.1 BUSINESS SUPPORT.
For the first 12 month period of the Term, Extricity will
provide to AspenTech the assistance of [redact] full-time
equivalent ("FTE") qualified business development and/or sales
support persons to assist with pre-sales support and business
development. The individuals provided shall be skilled in the
functioning and application of the Extricity Products sufficient
to explain to prospective End Users how the Extricity Products
would be used, how it would provide business benefits and to
provide other information that may be reasonably requested. For
subsequent 12 month periods of the term, Extricity will provide
to AspenTech the equivalent of [redact] FTE for the same
purpose. In the event that AspenTech reasonably requires
additional Business Support beyond the amounts specified
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above, Extricity will provide such support at the billing rates
Extricity charges similar preferred clients, distributors or
customers for similar services.
9.2 COMPENSATION OF EXTRICITY SALES PERSONNEL.
Extricity will make reasonable efforts to compensate its sales
personnel so that they are incentivized to make a significant
contribution to the licensing by AspenTech of the Eligible
Products.
9.3 DEVELOPMENT SUPPORT.
Extricity acknowledges that it is ▇▇▇▇▇▇▇▇▇'s intent to
incorporate the Extricity Software into one or more Integrated
Products. Extricity shall provide assistance and support to
AspenTech's Software development organization as needed to
accomplish this purpose. This support shall include:
(a) providing the services of 1 FTE of a senior development
person for a period of 6 months, at locations mutually
convenient to the parties and necessary for the work to
be done and to be scheduled by the mutual agreement of
the parties. If additional support is required, it will
be provided by Extricity upon request by ▇▇▇▇▇▇▇▇▇ and
charged to AspenTech at the billing rates Extricity
charges similar preferred clients, distributors or
customers for similar services.
(b) In addition, Extricity will provide to AspenTech any
necessary support to develop the interfaces, templates,
Integrated Product, splash screens and documentation,
including any information available in electronic
format, to enable AspenTech to complete its intended
development efforts as outlined in Section 9.3(c) below
at billing rates Extricity charges similar preferred
clients, distributors or customers for similar services.
(c) The intended development efforts will include, without
limitation: (i) customization of the Integrated Product
in order to create the AspenTech "look and feel" in
format, packaging, customer interfaces and
functionality; (ii) integration of the Extricity Product
and Integrated Product in operation with other AspenTech
Products; and (iii) creation of modifications,
extensions, improvements and/or derivative works based
upon the Extricity Product to fulfill the terms of this
Agreement and Integrated Products appropriate for the
general industry markets which are the focus of
AspenTech's normal business.
9.4 PROJECT SUPPORT.
Extricity agrees to provide consulting services support to
AspenTech for customer projects on an as available basis upon
AspenTech's request, at rates charged to
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AspenTech at the billing rates Extricity charges similar
preferred clients, distributors or customers for similar
services.
10. PRODUCT SUPPORT AND MAINTENANCE.
The parties will provide Support and Maintenance as set forth in Exhibit
F.
11. TRAINING.
11.1 TECHNICAL TRAINING.
Extricity will provide AspenTech with 1 week of training for
[redact] people, in California, but in no more than 6 separate
sessions, at no charge to AspenTech ("Technical Training").
Additional training will be billed to AspenTech at Extricity's
then current standard rates or at the rate of $[redact] per week
per person, whichever is less. AspenTech will pay all of its
out-of-pocket expenses associated with such training, including
but not limited to lodging, meals, travel, and the like.
AspenTech will ensure that at least 2 of its full time employees
have completed Technical Training within 60 days of the
Effective Date. Extricity may provide training at AspenTech's
site, subject to mutual agreement. Each party will pay its own
expenses for travel and living.
11.2 SALES TRAINING.
AspenTech will be responsible for ensuring that at least 2 of
its full time sales/marketing employees complete the sales
training offered by Extricity ("Sales Training") within 90 days
of the Effective Date.
11.3 END USER TRAINING.
Extricity will provide its standard end user training materials
to AspenTech and such information or support as is necessary to
enable AspenTech to provide such training to its End Users. If
requested by an End User, Extricity will provide training to
such End User at its then current rates.
12. DEVELOPMENT AND MARKETING.
12.1 DEVELOPMENT AND MARKETING PLAN.
AspenTech will be entitled to a seat on Extricity's Customer
Advisory Board (the "Advisory Board"). As a member of the
Advisory Board, ▇▇▇▇▇▇▇▇▇ shall have the right to participate in
Extricity's plan for development and marketing of Extricity
Products, with the intention that Extricity will provide due
consideration for development and marketing focused on the
industries set forth in the Section 12.3, and to ensure that
Extricity's development and marketing plan is proportionate in
relation to the amount of Extricity Products licensed by
AspenTech.
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12.2 ASPENTECH SALES.
AspenTech will undertake marketing and distribution of the
Eligible Products and marketing and sale of End User Support and
Maintenance using its own means and methods, for its own
account, and having sole discretion over distribution channels,
advertising and other aspects of marketing. AspenTech will use
diligent efforts to promote, advertise, market, distribute and
license the Integrated Product in the Territory during the Term.
12.3 TERRITORY.
(a) During the Term, Extricity agrees not to sell directly
to companies in the industries listed below (the
"Exclusion"). The Exclusion only applies to applications
and divisions of companies in the industries listed
below that are directly engaged in process-oriented
manufacturing functions related to AspenTech's core
products. [redact] The Exclusion will: (i) become null
and void for Industry A (see below), if, at the end of
12 months from the Effective Date, AspenTech and/or its
Distributors has(have) not licensed Extricity Products
to at least 2 End Users in Industry A; (ii) become null
and void for Industry B (see below), if, at the end of
12 months from the Effective Date, AspenTech and/or its
Distributors has(have) not licensed Extricity Products
to at least 2 End Users in Industry B; and (iii) become
null and void for Industry A and B, if, the Net License
Revenues for the 12 month periods beginning with the
25th and 37th months do not increase by at least
[redact]% over the amount of Net License Revenues for
the previous 12 month period. In any event, the
Exclusion will expire and be null and void at the
conclusion of 60 months from the Effective Date.
Industry A:
[redact]
Industry B:
[redact]
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The entities listed on Exhibit E2 will not be considered
part of the Exclusion.
(b) Extricity agrees to use best efforts to negotiate an
arrangement with its exclusive distributor in Taiwan so
that the Territory will include Taiwan.
13. MANAGEMENT AND GOVERNANCE OF THE STRATEGIC RELATIONSHIP.
13.1 STEERING COMMITTEE
As soon as reasonably possible after the Effective Date of this
Agreement, the Parties will establish a Steering Committee (the
"Committee") consisting of 2 or more representatives from
Extricity and AspenTech, one of which will be an "executive
level sponsor" which will mean a CEO or equivalent senior level
designate.
13.2 RESPONSIBILITIES.
The Committee shall be responsible for identifying, evaluating
and recommending sales, marketing and technology cooperation
plans. In order to facilitate its ability to accomplish its
objectives, the Committee:
(a) shall make reasonable efforts to meet not less often
than twice per calendar year;
(b) shall make reasonable efforts to issue to each of the
parties a report summarizing its activities not less
often than annually;
(c) may establish one or more separate subcommittees or task
forces, comprised only of members of the Committee, to
act on behalf of the Committee;
(d) shall coordinate product release planning and associated
technical support, pricing, sales and marketing support
and training activities for the ensuing 24-36 month
period; and
(e) shall establish operational guidelines for the
Committee.
Additional activities that will be undertaken by the Alliance
Steering committee are: (i) review of the business of AspenTech
and Extricity to make sure the parties' long-range and near-term
goals are understood and mutually supported; (ii) review of
Extricity's and AspenTech's development plans and priorities so
with the intention of mutually influencing priorities; (iii)
review general marketing, sales and business terms to achieve
optimum benefit for both parties; and (iv) coordinate sales and
marketing activities to the extent that it is needed.
14. PUBLICITY.
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Notwithstanding any provision of this Agreement to the contrary, the
parties will issue a mutually agreed-upon joint press release within 60
days of the Effective Date. Neither party shall issue any release
purporting to represent the other's opinions or use the other's name
without prior consent; however, this clause shall not restrict or
prohibit AspenTech from listing Extricity's name in its marketing
literature or press releases as a strategic relationship, nor restrict
or prohibit Extricity from listing AspenTech's name in its marketing
literature or press releases as a strategic relationship. Except as
specified herein, neither party shall release any information regarding
this Agreement, the other party or the relationship between the parties
without the other party's written consent, which shall not be
unreasonably withheld.
15. WARRANTIES.
15.1 POWER AND AUTHORITY.
Each party represents and warrants that it has the sufficient
rights and authority to enter into this Agreement and that this
Agreement violates no previous agreement between each party and
any third parties.
15.2 PRODUCT WARRANTY.
(a) Extricity warrants that the Extricity Products, when
properly installed and used, shall operate in accordance
with, and meet all, applicable functional and
performance specifications contained in the
Documentation.
(b) Extricity warrants to AspenTech that the Extricity
Products will perform in accordance with the
Documentation in all material respects; and the storage
media containing the Extricity Products will be free
from defects in materials and workmanship. In the event
the Extricity Products or storage media fail to conform
to the specifications and Documentation, Extricity will,
at its option and without charge to AspenTech, repair or
replace the Extricity Products or storage media with
conforming Products or media.
(c) THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER DOES
NOT AFFECT THE OBLIGATIONS UNDER SECTION 17.2.
(d) Except as expressly provided herein, during the Warranty
Period, Extricity will provide to AspenTech bug and
error fixes and workarounds in accordance with the terms
and conditions set forth in Exhibit F.
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(e) With respect to the Extricity Products only, Extricity
warrants that: (i) the operation of the Extricity
Products on or after January 1, 2000, without limitation
as to date, will in no way be different from the
operation prior to that date; and (ii) the Extricity
Products will be able to process, store, record and
present data containing dates in the Year 2000, and
thereafter without limitation as to date, in the same
manner as data containing dates prior to the Year 2000.
16. PROTECTION OF CONFIDENTIAL INFORMATION.
16.1 OBLIGATIONS.
(a) Each party agrees that: (a) neither party will disclose
to any third party any proprietary, trade secret, or
other information of the other party disclosed to the
receiving party in connection with this Agreement
(collectively, "Confidential Information") except to the
receiving party's full time employees with a need to
know who agree to observe the confidentiality
obligations under this Section 16; (b) each party will
use reasonable efforts to maintain the confidentiality
of all Confidential Information in its possession or
control, which will in no event be less than the
measures it uses to maintain the confidentiality of its
own information of similar importance; and (c) neither
party will use or authorize the use of Confidential
Information for any purpose other than to fulfill such
party's obligations hereunder.
(b) Confidential Information will include information
designated as proprietary, confidential or the like by
the disclosing party at the time of disclosure to the
receiving party or its agent or, with respect to oral
disclosures, confirmed in writing as Confidential
Information within 30 days of such disclosure. AspenTech
acknowledges that Extricity's Confidential Information
includes, but is not limited to, the Master Copies of
the Extricity Products and the Source Code therefor.
(c) Confidential Information will not include information
that: (a) is in or enters the public domain without
breach of this Agreement; (b) the receiving party
lawfully receives from a third party without restriction
on disclosure and without breach of a nondisclosure
obligation; (c) the receiving party develops
independently, which it can prove with written evidence,
or (d) is ordered to be disclosed by a court,
administrative agency, governmental body, or other
tribunal, provided that the receiving party first
provide the disclosing party with written notice and a
reasonable time to oppose such disclosure.
(d) Each party agrees that: (a) neither party will disclose
to any third party any of the terms of this Agreement,
which shall be treated as Confidential Information,
except to the receiving party's full time employees with
a
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need to know who agree to observe the confidentiality
obligations under this Section 16, and neither party
will use the terms of this Agreement for any purpose
other than to fulfill such party's obligations
hereunder, except as either party is otherwise required
by law.
16.2 INJUNCTIVE RELIEF.
Each party acknowledges that the other party's Confidential
Information contains trade secrets of such other party, the
disclosure of which would cause substantial harm to such other
party that could not be remedied by the payment of damages
alone. Accordingly, and notwithstanding Section 22.2, such other
party will be entitled to preliminary and permanent injunctive
relief and other equitable relief for any breach of this Section
16.
16.3 EXTRICITY'S OWNERSHIP.
The Extricity Products are and will remain the sole and
exclusive property of Extricity and its suppliers, if any,
whether the Extricity Products are separate or combined with any
other AspenTech Products. Extricity's rights under this
subsection will include, but not be limited to: (a) all copies
of the Extricity Products, in whole and in part, in stand-alone
or bundled form; and (b) all Intellectual Property Rights in the
Extricity Products.
16.4 ASPENTECH'S DUTIES.
AspenTech will use reasonable efforts to protect Extricity's
Intellectual Property Rights in the Extricity Products and will
report promptly to Extricity any infringement of such rights of
which AspenTech becomes aware.
16.5 THIRD PARTY INFRINGEMENT.
Extricity reserves the sole and exclusive right at its
discretion to assert claims against third parties for
infringement or misappropriation of its Intellectual Property
Rights in the Extricity Products.
16.6 TRADEMARKS.
If any advertisement or other marketing material used by
AspenTech makes any statement as to the technical features or
capabilities of the Extricity Products materially different than
the information provided to AspenTech by Extricity, AspenTech
will first obtain the written approval of Extricity prior to
publishing such advertisement or material. Subject to the terms
and conditions of this Agreement, Extricity grants AspenTech a
non-exclusive, non-transferable license for the term of this
Agreement to use the Trademarks in AspenTech's marketing of the
Extricity Products, provided that such use is in accordance with
Extricity's trademark usage guidelines then in effect, provided
that such guidelines are
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provided by Extricity to AspenTech in writing. Such use must
reference the Trademarks as being owned by Extricity. Nothing in
this Agreement grants AspenTech ownership or any rights in or to
use the Trademarks, except in accordance with this license. The
rights granted to AspenTech in this license will terminate, and
AspenTech will cease use of the Trademarks, upon any termination
or expiration of this Agreement. Extricity will have the
exclusive right to own, use, hold, apply for registration for,
and register the Trademarks during the term of, and after the
expiration or termination of, this Agreement; AspenTech will
neither take nor authorize any activity inconsistent with such
exclusive right.
17. INDEMNIFICATION.
17.1 DISTRIBUTION INDEMNITY.
Each party agrees to indemnify the other party against any third
party claims for loss, damage, liability, or expense (including
but not limited to attorneys' fees) arising solely out of any
negligent acts or omissions of the indemnifying party in
connection with their activities under this Agreement.
17.2 INFRINGEMENT INDEMNITY.
(a) Extricity represents and warrants that to the best of
its knowledge, the Extricity Product does not infringe,
and that no claim has been made by any party that the
Extricity Product infringes, any patent, copyright,
trademark, trade secret or similar proprietary right of
any third party ("intellectual property").
(b) Extricity will indemnify AspenTech against, and will
defend or settle at Extricity's own expense, any action
or other proceeding brought against AspenTech to the
extent that it is based on a claim that the use of the
Extricity Products as licensed in this Agreement
infringes any copyright, patent or intellectual property
right of another party, or equivalent rights of any of
the foregoing worldwide, or that any Extricity Product
incorporates any misappropriated trade secrets, or the
equivalent worldwide. Extricity will pay any and all
costs, damages, and expenses (including but not limited
to reasonable attorneys' fees) awarded against AspenTech
in any such action or proceeding attributable to any
such claim. Extricity will have no obligation under this
Section as to any action, proceeding, or claim unless:
(i) Extricity is notified of it promptly; (ii) Extricity
has sole control of its defense and settlement; and
(iii) AspenTech provides Extricity with reasonable
assistance in its defense and settlement.
(c) If AspenTech's use of any Extricity Products under the
terms of this Agreement is, or in Extricity's reasonable
opinion is likely to be, enjoined due to the type of
infringement or misappropriation specified in subsection
(a) above, then Extricity may, at its sole option and
expense, either: (i)
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procure for AspenTech the right to continue using such
Extricity Products under the terms of this Agreement; or
(ii) replace or modify such Extricity Products so that
they are non-infringing and substantially equivalent in
function to the enjoined Extricity Products; or (iii) if
options (i) and (ii) above cannot be accomplished
despite the reasonable efforts of Extricity, then
Extricity shall refund all royalty, maintenance and
license fees previously paid by AspenTech, and credit
AspenTech for all fees accrued and not yet paid, for the
infringing Extricity Product.
(d) AspenTech shall be entitled to withhold and offset
license and service revenue royalties from Extricity
until the indemnity is paid in full. Such withholding
and offset is not intended as AspenTech's sole remedy,
but is in addition to AspenTech's other rights and
remedies at law or in equity.
(e) Extricity will have no obligations under this Section 17
with respect to infringement or misappropriation arising
from modifications to the Extricity Products that were
created solely by AspenTech or its Distributors.
17.3 MUTUAL INDEMNIFICATION.
AspenTech shall indemnify and hold Extricity, its employees,
agents, and contractors harmless from and against any and all
losses, expenses and claims (including those of third parties)
caused by the gross negligence or willful misconduct of
AspenTech arising out of AspenTech's performance under this
Agreement.
Extricity shall indemnify and hold AspenTech, its employees,
agents, and contractors harmless from and against any and all
losses, expenses and claims (including those of third parties)
caused by the gross negligence or willful misconduct of
Extricity arising out of Extricity's performance under this
Agreement.
17.4 CONSEQUENTIAL DAMAGES
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, AND WITH
THE EXCEPTION OF INFRINGEMENT INDEMNIFICATION AS SPECIFIED IN
SECTION 17.2 OF THIS AGREEMENT, NEITHER PARTY ("DEFENDING
PARTY") SHALL BE LIABLE TO THE OTHER PARTY OR ANYONE CLAIMING
BY, THROUGH OR UNDER THE OTHER PARTY, ("CLAIMING PARTY") FOR ANY
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES
WHATSOEVER, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, ARISING
OUT OF, RESULTING FROM DEFENDING PARTY'S PERFORMANCE OR THIS
AGREEMENT FROM ANY CAUSE OR CAUSES, INCLUDING WITHOUT
LIMITATION, ANY
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SUCH DAMAGES CAUSED BY THE NEGLIGENCE, PROFESSIONAL ERRORS OR
OMISSIONS, STRICT LIABILITY OR BREACH OF CONTRACT OR WARRANTY,
EXPRESS OR IMPLIED, OF THE DEFENDING PARTY, PARTNERS, EMPLOYEES,
AGENTS OR SUBCONTRACTORS, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
17.5 TOTAL LIABILITY
EXCEPT FOR LIABILITY PURSUANT TO SECTION 17.2, EXTRICITY'S TOTAL
LIABILITY TO ASPENTECH UNDER THIS AGREEMENT WILL BE LIMITED TO
THE AMOUNTS RECEIVED BY EXTRICITY FROM ASPENTECH UNDER THIS
AGREEMENT TO THE EXTENT THAT THEY HAVE BEEN FULLY EARNED. EXCEPT
FOR EXCEPT FOR LIABILITY FOR BREACH OF SECTION 3(b) AND
ASPENTECH'S BREACH OF ITS OBLIGATIONS RELATING TO INTELLECTUAL
PROPERTY RIGHTS, ASPENTECH'S TOTAL LIABILITY TO EXTRICITY UNDER
THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS RECEIVED BY
EXTRICITY FROM ASPENTECH UNDER THIS AGREEMENT TO THE EXTENT THAT
THEY HAVE BEEN FULLY EARNED.
17.6 EXCLUSION OF DAMAGES.
WITH THE EXCEPTION OF EXTRICITY'S OBLIGATIONS WITH RESPECT TO
INFRINGEMENT INDEMNIFICATION AND ASPENTECH'S OBLIGATIONS UNDER
SECTION 3(b), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT THE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
17.7 FAILURE OF ESSENTIAL PURPOSE.
The parties have agreed that the limitations specified in this
Section 17 will survive and apply even if any limited remedy
specified in this Agreement is found to have failed of its
essential purpose.
18. TERM AND TERMINATION.
18.1 TERM.
"Term" means the period of time beginning on the Effective Date
and terminating at the end of 108 months thereafter; provided
however, that this Agreement will terminate if: (i) at the end
of the first 24 months of the Term, if Net License Revenues for
such 24 month period have not equaled or exceeded $[redact];
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(ii) Net License Revenues for each subsequent 12 month period do
not equal or exceed $[redact]; or (iii) at any time after the
first 24 months of the Term, AspenTech provides to Extricity
written notice of termination.
18.3 TERMINATION BY EITHER PARTY.
Either party may terminate this Agreement if the other party
breaches any material term or condition of this Agreement and
fails to cure such breach within 60 days after written notice or
by mutual agreement
18.4 EFFECT OF TERMINATION.
Except as set forth in Section 3, upon termination of this
Agreement: (i) in no event will AspenTech license, sell or
otherwise transfer the Extricity Products to any third party
after termination; and (ii) AspenTech will have a perpetual (to
the extent that such End User licenses are perpetual, if not,
only for the term of such License Agreements still in effect at
the time of termination) license for the Extricity Products and
any Confidential Information of Extricity's in AspenTech's
possession or control, only to the extent that such are
necessary to permit AspenTech to continue to support the
Eligible Products licensed by AspenTech or its Distributors to
End Users in accordance with the license or maintenance
agreements in effect. Notwithstanding the above, AspenTech may
continue to exercise the rights and licenses granted hereunder
for a period of up to 6 months after termination to fill any
orders received in the normal course of business by AspenTech
and accepted prior to the date of termination. Termination will
have no effect on the rights of End Users who have licensed the
Extricity Products prior to the effective date of termination.
18.4 SURVIVAL.
The provisions of this Agreement which by their nature would
continue beyond the termination or expiration of this Agreement
will survive the termination or expiration of this Agreement.
18.6 NO DAMAGES FOR TERMINATION.
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY
KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT
OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE
WITH ITS TERMS. ASPENTECH WAIVES ANY RIGHT IT MAY HAVE TO
RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR
EXPIRATION OF THIS AGREEMENT UNDER THE LAW OF THE TERRITORY OR
OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
Neither party will be liable to the other on account of
termination or expiration of this Agreement for reimbursement or
damages for the loss of goodwill, prospective
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profits or anticipated income, or on account of any
expenditures, investments, leases or commitments made by either
party or for any other reason whatsoever based upon or growing
out of such termination or expiration.
19. NONEXCLUSIVE REMEDY.
The exercise by either party of any remedy under this Agreement will be
without prejudice to its other remedies under this Agreement or
otherwise.
20. COMPLIANCE WITH LAWS.
Each party agrees to comply with all applicable laws, rules, and
regulations in connection with its activities under this Agreement.
21. EXPORT CONTROLS.
This Agreement is subject to and conditioned upon compliance with the
U.S. Export Administration Act and the applicable regulations thereunder
(collectively, the "U.S. Export Laws"), as well as any other laws of the
U.S. affecting the export of technology. AspenTech agrees to comply
fully with the U.S. Export Laws and to provide Extricity with such
documentation, assurances and access to records as may be required to
obtain licenses under the U.S. Export Laws. Extricity shall provide any
assistance necessary to enable AspenTech to comply with the provisions
of this Section 21, including furnishing current valid ECCNs and any
other information required under Export Control Law.
22. GENERAL.
22.1 ASSIGNMENT.
This Agreement will bind and inure to the benefit of each
party's permitted successors and assigns, provided however, that
neither party may assign this Agreement, in whole or in part,
without the other party's written consent. Any attempt to assign
this Agreement without such consent will be null and void. A
Change in Control will not be deemed an assignment.
22.2 GOVERNING LAW AND ARBITRATION.
(a) This Agreement will be governed by and construed in
accordance with the laws of the Commonwealth of
Massachusetts, excluding the Convention on Contracts for
the International Sale of Goods and that body of law
pertaining to conflicts of law. Any and all defenses
concerning the validity and enforceability of the
judgment will be deemed waived unless first raised in a
court of competent jurisdiction in the United States.
(b) Any dispute arising out of or related to this Agreement
will be submitted to the American Arbitration
Association ("AAA") for final and binding arbitration
pursuant to the AAA rules and procedures n effect on the
date
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of commencement of arbitration, as modified by this
Agreement. Each party will bear its own expenses and an
equal share of the expenses of the arbitrator(s) and the
fees of the AAA, unless the arbitration award provides
otherwise. Each party will bear the cost of preparing
and presenting its own case. The arbitration will be
conducted in accordance with United States Arbitration
Act, 9 U.S.C. 1-16 et seq. (the "USAA"), notwithstanding
any choice of law provision in this Agreement. The
location for the arbitration hearing will be in Palo
Alto, California. There will be 1 arbitrator if the
parties agree on such person, and if not, then Extricity
and AspenTech will each pick 1 arbitrator and the 2
arbitrators will select 1 additional person. Any
controversy over whether an issue is arbitrable will be
determined by the arbitrator(s). The award may be
confirmed and enforces in any court of competent
jurisdiction. All post-award proceedings will be
governed by the USAA. All defenses based on passage of
time will be suspended pending the termination of the
mediation. Nothing in this clause will be construed to
preclude any party from seeking injunctive relief in
order to protect its rights pending mediation.
22.3 SEVERABILITY.
If any provision of this Agreement is found invalid or
unenforceable by a court or other tribunal of competent
jurisdiction, that provision will be enforced to the maximum
extent permissible, and the other provisions of this Agreement
will remain in full force and effect.
22.4 FORCE MAJEURE.
Except for payments due under this Agreement, neither party will
be responsible for any failure to perform due to causes beyond
its reasonable control (each a "Force Majeure"), including, but
not limited to, acts of God, war, riot, embargoes, acts of civil
or military authorities, denial of or delays in processing of
export license applications, fire, floods, earthquakes,
accidents, strikes, or fuel crises, provided that such party
gives prompt written notice thereof to the other party. The time
for performance will be extended for a period equal to the
duration of the Force Majeure, but in no event longer than 60
days.
22.5 EQUITABLE RELIEF.
Each party acknowledges that any breach of its obligations under
this Agreement with respect to the proprietary rights or
confidential information of the other party will cause such
other party irreparable injury for which monetary damages are
inadequate, and therefore such other party will be entitled to
equitable relief in addition to all other remedies available to
it at law.
22.6 NOTICES.
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All notices under this Agreement will be deemed given when
delivered personally, sent by confirmed facsimile transmission,
or sent by certified or registered U.S. mail or
nationally-recognized express courier, return receipt requested,
to the address shown below the signature blocks of this
Agreement or as may otherwise be specified by either party to
the other in accordance with this section.
22.7 INDEPENDENT CONTRACTORS.
The parties to this Agreement are independent contractors. There
is no relationship of partnership, joint venture, employment,
franchise, or agency between the parties. Neither party will
have the power to bind the other or incur obligations on the
other's behalf without the other's prior written consent.
22.8 WAIVER.
No failure of either party to exercise or enforce any of its
rights under this Agreement will act as a waiver of such rights.
22.9 ENTIRE AGREEMENT.
This Agreement and its exhibits are the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding and replacing any and all prior agreements,
communications, and understandings (both written and oral)
regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document
executed by both parties.
22.10 VALID EXECUTION.
AspenTech's execution of this Agreement is contingent on review
by AspenTech's Board of Directors. AspenTech will notify
Extricity in writing when such review has been completed.
Failure to obtain favorable review by October 15, 1999 shall
render this Agreement null and void.
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NOW, THEREFORE, the parties have caused this Agreement to be executed by their
duly-authorized representatives as of the Effective Date.
EXTRICITY SOFTWARE, INC. ASPEN TECHNOLOGY, INC.
By: /s/ ▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇ ▇▇▇▇, President and CEO ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman and
Chief Executive Officer
Notices to: Notices to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-2200
Attn: VP of Finance Attn: General Counsel
Facsimiles: 650.596.1310 Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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EXHIBIT A
EXTRICITY(TM) ALLIANCESERIES(TM) PRODUCTS AND PRICE LIST
SEPTEMBER, 28 1999
EXTRICITY ALLIANCESERIES(TM)
Extricity's family of products which includes four components:
- Extricity Alliance(TM) Application Product
- Extricity AllianceFusion(TM) Integration Products
- Extricity Partner Deployment Products(TM)
- Extricity AllianceInteract(TM) e-Business Process Solutions
EXTRICITY ALLIANCE APPLICATION PRODUCT
EXTRICITY ALLIANCE:
Core Alliance product includes the following components:
- Business Process Implementation Environment
- Execution Engine
- Integration Manager
- Communications and Security Management
- Auditor
ADDITIONAL EXTRICITY ALLIANCE:
Refers to a second copy of Alliance, which is licensed by the same
licensee and will be used in a production environment.
ALLIANCE TEST AND DEVELOPMENT ENVIRONMENT
Refers to a single copy of Alliance and associated Partner Deployment
Products, AllianceFusion Products and AllianceInteract E-Business
Process Solutions that the licensee is allowed to make for development
and test purposes in association with a licensed production version.
EXTRICITY ALLIANCEFUSION(TM) INTEGRATION PRODUCTS
A series of integration adapter modules for packaged applications and middleware
along with a development environment to create new integration adapter modules
for custom applications or to modify packaged adapter modules provided.
EXTRICITY ALLIANCEFUSION ADAPTER DEVELOPMENT ENVIRONMENT(TM)
A graphical environment that enables businesses to quickly create
integration adapter modules and to customize packaged adapter modules.
Adapters created with the Adapter Development Environment utilize
AllianceFusion Integration Capacities.
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ALLIANCEFUSION MIDDLEWARE ADAPTERS(TM)
Middleware Adapters are adapters pre-configured for specific messaging
middleware packages. Middleware Adapters may need customizing for
specific implementations. Middleware Adapters include their own
AllianceFusion Integration Capacities which covers all adapters
established from the base packages. The license covers the connection to
multiple instances of the specific middleware package from a single
Alliance server.
ALLIANCEFUSION APPLICATION ADAPTERS(TM)
Application Adapters are applications to specific business applications,
such as Enterprise Resource Planning, supply chain management, etc.
Application Adapters may need customizing for specific implementations.
Application Adapters include their own AllianceFusion Integration
Capacities which covers all adapters established from the base packages.
The license covers the connection to multiple instances of the specific
application package from a single Alliance server.
ALLIANCEFUSION INTEGRATION CAPACITY PACKS(TM)
Integration Capacity consists of Slots that are required for each
adapter built with the Adapter Development Environment and registered in
the Information Manager. Integration Capacity is sold in Packs of four
Slots. Prepackaged adapters and Partner Deployment products that use
adapters provide their own Integration Capacity with unlimited Slots.
EXTRICITY PARTNER DEPLOYMENT PRODUCTS(TM)
A series of deployment products that enable varying degrees of business
collaboration based on existing environment, needs of partner and hub, size of
company, IT sophistication etc.
EXTRICITY ALLIANCEPARTNER(TM)
This is a restricted-use version of the AllianceSeries products which is
provided by the main AllianceSeries customer (the Hub) to their trading
partner. The trading partner is restricted to only using the products in
association public processes established by the Hub.
EXTRICITY EDICHANNEL(TM)
Enables partners with EDI investments to collaborate with hub licensee.
The Extricity EDIChannel product is a gateway product installed at the
hub location. It provides an interface between the Alliance Application
Product and a 3rd party EDI software package. An EDIChannel license is
required for each 3rd party EDI package with which AllianceSeries is
integrated.
EXTRICITY WEBCHANNEL(TM)
Enables partners to collaborate through simple web browser. WebChannel
is a gateway product installed at the hub location. It provides an
interface between the Alliance Application Product and web applications
developed by the customer. A license is required for each web
application connected to.
EXTRICITY ALLIANCEINTERACT(TM) E-BUSINESS PROCESS SOLUTIONS(TM)
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Market-specific (industry and cross-industry) shared business processes and
associated business objects in software. Can be used out of the box or as a
template to deploy Internet-based trading partner communities.
MAINTENANCE SUPPORT
ALLIANCE PARTNER SUPPORT
When Extricity AlliancePartner(TM) is deployed at third part sites,
support to those sites can be provided by the AllianceSeries customer
(the Hub) or directly by Extricity Software. This charge applies if
Extricity Software provides the support.
8. COMPONENT-BASED PRICING
Extricity Alliance Application Product
Extricity Alliance (1-4 way NT) $[redact]
Includes an AllianceFusion Integration Capacity Pack
Additional Alliance $[redact]
Alliance Test and Development Environment $[redact]
CPU Multipliers (times Alliance base price)
1-4 way [redact]
5-8 way [redact]
9-12 way [redact]
Extricity Partner Deployment Products
Component-Based Upgrade to Enterprise Bundle
--------------- ----------------------------
AlliancePartner [redact] [redact]
[redact] [redact]
[redact]
EDIChannel $[redact]
WEBChannel $[redact]
Extricity AllianceFusion Integration Products
Application Adapter Modules $[redact]
SAP, Baan, Oracle or PeopleSoft
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Middleware Adapter Modules $[redact]
Active, TIBCO or MQSeries Messenger,
Adapter Development Environment $[redact]
AllianceFusion Integration Capacity Pack (4 Slots) $[redact]
Capacity for four adapters developed using the Adapter Development Environment
Extricity AllianceInteract e-Business Process Solutions
Semiconductor $[redact]
Electronic Device Manufacturers $[redact]
Consumer Packaged Goods $[redact]
Third-Party Logistics $[redact]
E-Commerce $[redact]
Maintenance/Support
5x12 US, 7x24 Priority #1's [redact]% of Net
3 Identified contacts / hub business
AlliancePartner Support (optional) $[redact] per Partner per Year
3 Identified contacts/ AlliancePartner
9. ENTERPRISE BUNDLE PRICING
Alliance Application Product (1-4 way NT) [redact]
AlliancePartner [redact]
EDIChannel or WebChannel [redact]
AlliancePartner Integration Adapter (Application or Middleware) [redact]
OR
AllianceFusion Integration Capacity Pack [redact]
AllianceFusion Development Environment [redact]
PRICE: $[redact]
Maintenance/Support
5x12 US, 7x24 Priority #1's [redact]% of Net
3 Identified contacts / hub business
AlliancePartner Support (optional) $[redact] per Partner per Year
3 Identified contacts/ AlliancePartner
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Multipliers
CPU Multipliers (times Alliance base price)
1-4 way [redact]
5-8 way [redact]
9-12 way [redact]
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EXHIBIT B
BLANK
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EXHIBIT C - LICENSE AGREEMENTS
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EXHIBIT D - PROHIBITED END USERS
[redact]
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EXHIBIT E1 - ASPENTECH RESERVED ACCOUNTS
[redact]
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EXHIBIT E2 - EXTRICITY ACCOUNTS NOT PART OF EXCLUSION
[redact]
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EXHIBIT F
SUPPORT AND MAINTENANCE SERVICES
1. DEFINITIONS. As used in this Exhibit, the following terms shall have the
following meanings.
"DESIGNATED EXTRICITY LICENSEE" means a licensed End User.
"DESIGNATED SUPPORT CONTACTS" means, collectively, the persons
identified to Extricity by AspenTech as the persons authorized to request
Support and Maintenance. AspenTech may change a Designated Support Contact upon
prior written notice to Extricity.
"LEVEL ONE AND LEVEL TWO" means receipt, call screening, installation
assistance, problem identification and diagnosis, efforts to create a repeatable
demonstration of the program error (defect). If applicable, the distribution of
media, minor updates and service packs, workarounds or interim solutions.
"LEVEL THREE" means efforts to identify defective source code and to
provide corrections, workarounds and/or patches to correct program errors
(defect).
2. LEVEL ONE AND LEVEL TWO. AspenTech will provide Level One and Level Two
services to licensed End Users.
2. LEVEL THREE SUPPORT AND MAINTENANCE SERVICES. Extricity will provide the
following Level Three Support and Maintenance services with respect to the
Extricity Products:
2.1. Technical Assistance. The Extricity Customer Support department
will provide to 4 Designated Support Contacts the information needed to access
Extricity's customer support web site and to submit support requests on-line.
The Extricity Customer Support center is available to assist the Designated
Support Contact(s) during the hours between 6:00a.m. and 6:00p.m. Pacific Time
on regular business days, excluding Extricity holidays, with unresolved support
requests. Priority 1 support requests must be submitted both through the
customer support web site and by phone to the Priority 1 hotline anytime.
2.2. Extricity Software Problem Reporting. AspenTech agrees to test and
verify, or have the End Users test and verify, on an isolated development
environment, any suspected Errors in the Extricity Software or Documentation
and, through its Designated Support Contact(s) and to submit reports concerning
suspected Errors.
The Designated Support Contact should have the following
information available prior to calling Extricity: Extricity product and version,
single or multi-processor, available disk space, installed memory and hard disk
space, client operating system, server operating system (including Service
Pack), MS SQL server version (including Service Pack), the type of firewall used
(and whether Alliance Proxy is used), and a listing of Adapters and Plug-Ins. In
addition, Extricity Customer Support will need a clear description of the
problem or question, what steps have been tried and any error codes or messages.
If necessary, the Designated Support Contact will be responsible for providing
Extricity with data that Extricity reasonably requests in order to reproduce
operating conditions similar to those present when
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the potential Error was discovered. Extricity Customer Support may redefine
software problem reporting procedures as needed.
2.3. Bug Fixes. Extricity will investigate each suspected Error reported
by a Designated Support Contact within a reasonable time and determine whether
in Extricity's judgment the reported problem is, in fact, an Error, and whether
such Error is in the Extricity Software or in the Documentation. If Extricity
determines that there is an Error in the Extricity Software or in the
Documentation, Extricity will use reasonable efforts to provide an avoidance
procedure, a workaround, or a correction of such Error (a "Bug Fix") in
accordance with the Response Guidelines below. AspenTech is responsible for
distributing workarounds or bug fixes to Designated Extricity Licensees.
2.4. Extricity Software Updates. As permanent solutions are developed
for known Errors in the Extricity Software, they will be incorporated from time
to time in planned Maintenance Releases to the Extricity Software. Extricity
will provide AspenTech with Extricity Software and Documentation updates as they
are released. AspenTech is responsible for distributing and tracking Extricity
Software and Documentation at Designated Extricity Licensee sites.
3. CONDITIONS AND LIMITATIONS OF SERVICES. Extricity's obligations to
render Support and Maintenance are subject to the following conditions and
limitations:
3.1. Problems Caused by Third Party Products, Errors in Use of Extricity
Software, and Modifications to the Extricity Software. Extricity will have no
obligations or responsibilities of any kind hereunder with respect to problems
caused in the use or functioning of the Extricity Software by any hardware or
software product (including but not limited to operating systems, networks, and
third party software not provided to AspenTech by Extricity) other than the
Extricity Software, by any error in the use of the Extricity Software
inconsistent with the Documentation, or by any modification of the Extricity
Software by any person or entity other than one authorized by Extricity. If
services hereunder are rendered for any problem caused by any of the foregoing
or for troubleshooting with respect to any of the foregoing, or if Extricity's
service efforts are increased as a result, Extricity reserves the right to
impose charges at its then standard commercial time and materials rates for all
such services, including travel and per diem expenses. The Extricity customer
service engineer will notify a caller as soon as the billable status of the call
is determined. The caller may terminate the call at that time without charge.
3.2. Maintenance of Current Releases of the Extricity Software.
AspenTech is responsible for notifying and distributing Extricity Software to
each Designated Extricity Licensees. AspenTech should encourage End Users to
promptly install Maintenance Releases and Bug Fixes to maintain the Extricity
Software in the most current revision level.
3.3. Access to Designated Extricity Licensee's Facilities. AspenTech may
need to supply Extricity with access to and use of all information and
facilities reasonably necessary for Extricity to render these services, subject
to any security requirements or other company procedures of the Designated
Extricity Licensees. Resolving some product issues may require Extricity to dial
in to the affected Alliance server. Extricity may also request the use a
specific remote access software package. If Extricity is not permitted or is
unable to dial in, it may result in slower resolution times or inhibit
Extricity's ability to resolve a problem.
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3.4 Timing. Maintenance services will be provided only for the most
current released version through the previous sequential major release for up to
twelve months after the current major version becomes generally available.
Extricity will have no obligation to support AspenTech where a Designated
Extricity Licensee is using a version of the Extricity Software that is not a
then-supported release.
4. RESPONSE GUIDELINES. The table below outlines Extricity Customer
Support's response targets
----------------------------------------------------------------------------------
PRIORITY DESCRIPTION INITIAL RESOLUTION GOAL
RESPONSE
GOAL
----------------------------------------------------------------------------------
PRIORITY 1 Problems that Immediate One business day after
(P1) seriously interrupt (1 hour) Extricity Customer
Critical Impact or prevent the Support reproduces the
customer from problem
performing regular
business operations
----------------------------------------------------------------------------------
PRIORITY 2 Major product issues 4 Problem fixes will be
(P2) which do not business hours developed and made
Serious Impact severely impede available, an acceptable
customer operations workaround, a mutually
agreed upon action plan
or an answer to a
question to be provided
in two business days
----------------------------------------------------------------------------------
PRIORITY 3 Relatively low 1 Problem fixes are
(P3) impact -- product business day candidates for a future
Moderate Impact problems or issues product release, an
acceptable workaround,
a mutually agreed upon
action plan or an answer
to a question to be
provided in five
business days
----------------------------------------------------------------------------------
PRIORITY 4 Minor product 1 Problem fixes are
(P4) problems or issues business week candidates for a future
Low Impact having no product release, an
operational impact acceptable workaround,
on the customer an action plan or an
(i.e., customer answer to a question to
requests for be provided in a timely
information, fashion considering the
cosmetic problem
documentation, etc.)
----------------------------------------------------------------------------------
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EXHIBIT G - ASPENTECH DIRECT COMPETITORS
[redact]
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