EXHIBIT 10.11
MASTER CONSULTING SERVICES AGREEMENT BETWEEN
DOCENT, INC AND ▇▇▇▇▇▇▇▇ CONSULTING LLP
THIS MASTER CONSULTING SERVICES AGREEMENT (this "Agreement") is made and entered
into as of April 1, 2000 (the "Effective Date") by and between Docent, Inc., a
Delaware corporation, with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Docent") and ▇▇▇▇▇▇▇▇ Consulting LLP, an Illinois general
partnership registered as a limited liability partnership, with a place of
business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇
Consulting").
WHEREAS, Docent desires to obtain certain services from ▇▇▇▇▇▇▇▇ Consulting from
time to time; and
WHEREAS, ▇▇▇▇▇▇▇▇ Consulting desires to provide such services to Docent on the
terms set forth below;
FOR AND IN CONSIDERATION OF the premises and mutual agreements herein, ▇▇▇▇▇▇▇▇
Consulting and Docent agree as follows:
1. SERVICES
1.1 ▇▇▇▇▇▇▇▇ Consulting shall perform for Docent the consulting services (the
"Services") specified in one or more Arrangement Letters issued under this
Agreement and signed by both parties, each of which will incorporate all of the
terms and conditions of this Agreement by reference as though fully set forth
therein. In the event of a conflict between any term of this Agreement and the
terms of an Arrangement Letter, the terms of the Arrangement Letter shall
prevail.
1.2 Changes to the scope of the Services shall be made only in a writing
executed by authorized representatives of both parties. ▇▇▇▇▇▇▇▇ Consulting
shall have no obligation to commence work in connection with any change until
the fee and/or schedule impact of the change, if any, is agreed upon by the
parties in writing. The foregoing notwithstanding, if ▇▇▇▇▇▇▇▇ Consulting, at
the written request of Docent, performs work that is not covered by an
Arrangement Letter or that exceeds the scope of Services defined in the
applicable Arrangement Letter, such work shall be deemed Services provided
pursuant to this Agreement for which Docent shall compensate ▇▇▇▇▇▇▇▇ Consulting
pursuant to Section 2.1.
1.3 If any Arrangement letter requires the provision of third party products,
including hardware and software, ▇▇▇▇▇▇▇▇ Consulting's affiliated entity,
Proquire LLC, shall provide such third party products subject to the terms and
conditions set forth on an attachment to the applicable Arrangement Letter.
Nothing herein is intended to require Docent to purchase any third party
products through ▇▇▇▇▇▇▇▇ Consulting or through Proquire LLC. ▇▇▇▇▇▇▇▇
Consulting, as agent for Proquire, may invoice, collect, and receive from Docent
all sums that would be due to Proquire, including taxes and shipping charges, as
applicable.
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
-1-
2. PAYMENT FOR SERVICES AND EXPENSES
2.1 Docent agrees to obtain not less than Two Million Dollars ($2,000,000.00) in
Services (not including reasonable out-of-pocket expenses) from ▇▇▇▇▇▇▇▇
Consulting, which such obligation would commence upon the Effective Date of this
Agreement, and would be satisfied no later than two (2) years following the
Effective Date of this Agreement. Such Services and terms of payment will be
defined in one or more Arrangement. Letters issued under this Agreement. Docent
shall pay ▇▇▇▇▇▇▇▇ Consulting for the Services on the terms defined in the
applicable Arrangement Letter.
2.2 Docent shall pay the amounts payable to ▇▇▇▇▇▇▇▇ Consulting hereunder
within thirty (30) days of receipt of invoices submitted by ▇▇▇▇▇▇▇▇ Consulting.
Any invoice remaining unpaid for more than thirty (30) days from receipt
shall accrue interest at a rate of the lesser of one and one-half (1.5%) percent
per month or the highest rate allowed by law. In the event of any good faith
dispute with regard to a portion of an invoice, the undisputed portion shall be
paid as provided herein. Upon resolution of the disputed portion, any amounts
owed to ▇▇▇▇▇▇▇▇ Consulting shall be paid with interest at the rate set forth
above accruing from the date such amounts were originally due.
2.3 Unless provided otherwise in an Arrangement Letter, ▇▇▇▇▇▇▇▇ Consulting
shall be reimbursed by Docent for all reasonable expenses incurred by ▇▇▇▇▇▇▇▇
Consulting in the performance of the Services, including, but not necessarily
limited to, travel and lodging expenses, communications charges and computer
time and supplies.
2.4 Docent shall pay for all taxes, including any interest and penalties from
any related deficiency, in connection with this Agreement (except taxes based on
or measured by ▇▇▇▇▇▇▇▇ Consulting's net income) including any sales, use
excise, value-added, services, consumption, withholding and other taxes and
duties assessed on the provision of Services by ▇▇▇▇▇▇▇▇ Consulting to
Docent or on ▇▇▇▇▇▇▇▇ Consulting's charges to Docent under this Agreement
including the reimbursement of expenses. The parties shall cooperate in good
faith to minimize such tax liabilities to the extent legally permissible.
2.5 The parties acknowledge that where out-of-town personnel are assigned to
any project on a long-term basis (as defined from time to time in the applicable
provisions of the Internal Revenue Code and related IRS regulations, and
currently defined, under IRC Section 162, as a period of time reasonably
expected to be greater than one year), the associated compensatory tax costs
applied to out-of-town travel and living expenses also shall be calculated on an
individual basis, summarized, and assessed to such personnel. In such cases, the
expenses for which Docent shall reimburse ▇▇▇▇▇▇▇▇ Consulting hereunder shall be
deemed to include the estimated incremental compensatory tax costs associated
with the out-of-town travel and living expenses of ▇▇▇▇▇▇▇▇ Consulting's
personnel, including tax gross-ups; provided, however, that Docent has been
advised of such additional expenses in advance and agrees that the affected
personnel should remain assigned to the applicable project. ▇▇▇▇▇▇▇▇ Consulting
shall use reasonable efforts to limit such expenses.
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
-2-
3. Docent Responsibilities.
3.1 In connection with ▇▇▇▇▇▇▇▇ Consulting's provision of the Services, Docent
shall perform those tasks and fulfill those responsibilities specified in the
applicable Arrangement Letter ("Docent Responsibilities"). The Arrangement
Letter may also contain assumptions related to the Services. Docent understands
that ▇▇▇▇▇▇▇▇ Consulting's performance is dependent on Docent's timely and
effective performance of Docent Responsibilities hereunder and timely decisions
and approvals by Docent. Except to the extent an Arrangement Letter contains
specific acceptance provisions, all work product provided to the Docent for
approval shall be deemed accepted if, within ten(10) days after delivery, Docent
has not provided to ▇▇▇▇▇▇▇▇ Consulting written notice identifying specifically
any basis for not approving the work product. ▇▇▇▇▇▇▇▇ Consulting shall be
entitled to rely on all decisions and approvals of the Docent in connection with
the Services. Changes in decisions and approvals are subject to Section 1.2.
3.2 In addition to any particular items specified in the Arrangement Letter,
Docent shall supply on-site ▇▇▇▇▇▇▇▇ Consulting personnel with suitable office
space, desks, storage, furniture, and other normal office equipment support,
adequate computer resources (including necessary third party rights to use
software), telephone and facsimile service, postage, copying, secretarial
support, word processing, and general office supplies which may be necessary in
connection with ▇▇▇▇▇▇▇▇ Consulting's performance of the Services.
No bailment shall be created and no interest or obligation shall be conferred
upon ▇▇▇▇▇▇▇▇ Consulting regarding Docent's property or the property of Docent's
employees, agents, vendors, or other contractors, beyond the limited right to
use such property in furtherance of this Agreement. All such property,
regardless of its physical location or use, shall be deemed to be in the care,
custody and control of Docent.
3.3 Docent shall be responsible for its operation and use of the Deliverables,
as defined below, and for ensuring that the Deliverables meet Docent's
requirements. Docent shall not use ▇▇▇▇▇▇▇▇ Consulting's name outside Docent's
organization in connection with its use of the Deliverables or otherwise without
▇▇▇▇▇▇▇▇ Consulting's express written consent, which may be withheld by ▇▇▇▇▇▇▇▇
Consulting in its sole discretion.
3.4 Docent shall retain responsibility for its compliance with all applicable
federal, state and local laws and regulations.
4. Work Product.
------------
4.1 The Parties acknowledge and agree that in the course of each engagement,
▇▇▇▇▇▇▇▇ Consulting may provide or develop training materials, reports, business
or marketing plans and strategies, design documents, models, software, or other
work product or deliverables (collectively hereinafter referred to as the
"Deliverables"). The rights in such Deliverables, including the right to market,
transfer, sell, license or otherwise use such Deliverables, may depend upon the
nature of the Deliverables and the fees associated with such Deliverables.
Accordingly, the Parties agree that before commencing any work under a
Arrangement Letter under which ▇▇▇▇▇▇▇▇ COnsulting is to provide to, or develop
for, Docent any Deliverables, they
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
-3-
shall agree upon and describe in the Arrangement Letter, the Deliverables, the
extent of both parties' rights to use the Deliverables, and other terms,
responsibilities and rights as may be applicable, in accordance with the
following:
(a) The Deliverables shall be identified in each Arrangement Letter as being
either: Category A, B, or C Deliverables, categorized in accordance with the
definitions set forth below.
(i) Category A Deliverables - Category A Deliverables are those Deliverables
which may be possessed by ▇▇▇▇▇▇▇▇ Consulting prior to, acquired, or developed
by ▇▇▇▇▇▇▇▇ Consulting (either independently or in concert with Docent or third
parties) during the course of its performance under an Arrangement Letter, and
in which Docent shall have, upon final payment of undisputed invoices then due
associated with the Deliverables, a perpetual, irrevocable, nonexclusive,
paid-up, world-wide right and license to use for its internal business purposes,
copy, modify and prepare derivative works, from and distribute such Deliverables
in connection with its business.
For purposes of this Agreement, the term "internal business purposes" shall
include use by those of Docent's affiliates and subsidiaries which either are
wholly owned, or are under the control of, Docent ("Affiliates"); provided,
however, that Docent will not in any case provide such Deliverables to any
direct competitors of ▇▇▇▇▇▇▇▇ Consulting (which for purposes of this Agreement
shall mean those companies whose core business is the provision of technology
consulting services and which would reasonably be expected to compete for the
same or substantially similar work with ▇▇▇▇▇▇▇▇ Consulting) without ▇▇▇▇▇▇▇▇
Consulting's prior written consent. In addition, "internal business purposes"
includes providing access to Docent's customers and clients where an underlying
purpose of the Deliverables is identified in the applicable Arrangement Letter
as enabling Docent to interact with its customers and clients through such
Deliverables.
With the exception of the license granted to Docent, ▇▇▇▇▇▇▇▇ Consulting (or its
applicable third-party licensor(s)) shall have and/or retain all right, title
and interest in the Category A Deliverables. Subject to the rights granted to
Docent above, the Category A Deliverables shall be considered confidential and
proprietary to ▇▇▇▇▇▇▇▇ Consulting.
Category A Deliverables may consist of, by way of example and not limitation,
training materials, templates, ▇▇▇▇▇▇▇▇ Consulting proprietary systems and
market offerings (which may be modified or customized for Docent) and
proprietary ▇▇▇▇▇▇▇▇ Consulting software.
(ii) Category B Deliverables - Category B Deliverables are those Deliverables
which are originated and prepared for Docent by ▇▇▇▇▇▇▇▇ Consulting (either
independently or in concert with Docent or third parties) during the course of
▇▇▇▇▇▇▇▇ Consulting's performance of Services under an Arrangement Letter, and
in which Docent shall have, upon payment of undisputed invoices then due,
copyright. Where the applicable Arrangement Letter or this Agreement is
terminated for any reason other than non-payment by Docent, Docent shall be
entitled to receive all work in progress as of the effective date of the
termination. Such Deliverables shall be considered works made for hire under the
Copyright Act; provided, however, that to the extent such Deliverables are not
works made for hire, ▇▇▇▇▇▇▇▇ Consulting agrees to assign, to Docent all
copyright therein and thereto. Without otherwise limiting
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION -4-
▇▇▇▇▇▇▇▇ Consulting's rights in its Knowledge Capital, as that term is defined
in Subparagraph (b), below, such Category B Deliverables shall be considered
Docent's Confidential Information.
Category B Deliverables may consist of, by way of example and not limitation,
consulting studies or reports, business plans and strategies, marketing plans
and concepts, custom software or modifications and enhancements to Docent's
software, and systems which are intended to be proprietary to Docent. ▇▇▇▇▇▇▇▇
Consulting shall have the right to retain one copy of Category B Deliverables
for archival and reference purposes.
(iii) Category C Deliverables - Category C are those Deliverables which are
originated and prepared for Docent by ▇▇▇▇▇▇▇▇ Consulting (either independently
or in concert with Docent or third parties) during the course of ▇▇▇▇▇▇▇▇
Consulting's performance of Services under an Arrangement Letter, and in which
all right, title and interest to all intellectual property rights in the
Deliverables shall be jointly owned by ▇▇▇▇▇▇▇▇ Consulting and Docent, without
any right or duty of accounting to the other party. In the event the parties
wish to pursue a patent in any of the Category C Deliverables or any component
thereof, they shall cooperate with each other in preparing and submitting the
patent application. Where the parties share equally in the cost of prosecuting
the patent application, they shall jointly own any resulting patent without any
right or duty of accounting to the other party. Where only one of the parties
assumes the cost of prosecuting the patent application, that party shall own the
patent and the other party shall receive, absent any other agreement between the
parties, a perpetual, non-transferable, worldwide, irrevocable, royalty-free,
fully paid-up license with the right to sublicense under the patent, or patents
resulting from any applications or disclosures, including the right to make,
have made, use, import, offer for sale and sell or otherwise dispose of products
and services or to practice any process in connection therewith. In no event
will any such patent have claims that include any of either party's Knowledge
Capital (as that term is defined in Paragraph 4.1(b) below).
(b) Regardless of how the Desirables are characterized and subject to each
party's obligations pursuant to Section 6, each party shall have and retain all
rights and interests in all of its ideas, know-how, design guides,
methodologies, developmental tools, techniques, skills, and processes,
irrespective of whether possessed by the parties prior to, or refined during the
course of an engagement (collectively referred to as "Knowledge Capital").
(c) The Parties shall cooperate with each other and execute such other
documents as may be necessary and appropriate to perfect ownership and licensing
rights granted in this Section. Except as specifically provided in this
Agreement, nothing contained in this Agreement is intended to confer upon any
person (other than the Parties hereto) any rights, benefits, or remedies of
any kind or character whatsoever, and no person shall be deemed a third party
beneficiary under or by reason of this Agreement. The foregoing notwithstanding,
▇▇▇▇▇▇▇▇ Consulting acknowledges that Docent may assign its rights in and to the
Deliverables under this Agreement to its Affiliates, provided that such
Affiliates either agrees to assume all of Docent's obligations and
responsibilities under this Agreement, or Docent agrees to enforce all of
▇▇▇▇▇▇▇▇ Consulting's rights and remedies as they relate to such Affiliate.
4.2 Subject to the rights and interests which may be conveyed under this
Section 4 and subject to the party's confidentiality obligations described in
Section 6, in no event shall either
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION -5-
party be precluded from developing for itself, or for others, materials which
are competitive with the Desirables, irrespective of their similarity to the
Deliverables, provided that such activity does not otherwise constitute a breach
of such party's obligations pursuant to Section 6.
5. PROPRIETARY ITEMS
In the course of performance hereunder, ▇▇▇▇▇▇▇▇ Consulting may use products,
materials, tools and methodologies that are proprietary to ▇▇▇▇▇▇▇▇ Consulting
or to third parties (collectively "Proprietary Items"). As between Docent and
▇▇▇▇▇▇▇▇ Consulting, Proprietary Items will be deemed Confidential Information
of ▇▇▇▇▇▇▇▇ Consulting for purposes of Section 6. Included among the Proprietary
Items of ▇▇▇▇▇▇▇▇ Consulting are tools that ▇▇▇▇▇▇▇▇ Consulting identifies as
Solution Construction Aids ("SCAs"), which ▇▇▇▇▇▇▇▇ Consulting makes available
to clients under separate licensing terms. Docent shall have or obtain no rights
in such Proprietary Items (or in any modifications or enhancements to them)
other than (i) to use them as authorized by ▇▇▇▇▇▇▇▇ Consulting in writing from
time to time solely for purposes of performing Docent Responsibilities, (ii) to
the extent the Proprietary Items are incorporated into a Deliverable, to use
them as part of the Deliverable for purposes of Docent's internal business only,
or (iii) pursuant to ▇▇▇▇▇▇▇▇ Consulting's standard license for such Proprietary
Items or, in the case of Proprietary Items owned by third parties, pursuant to
terms acceptable to the applicable third party. If Proprietary Items are made
available to Docent under (i) or (ii) above, they will be made available in an
"AS IS" condition and without express or implied warranties of any kind; those
Proprietary Items made available under (iii) above shall be subject only to
applicable terms of the applicable license.
6. CONFIDENTIAL INFORMATION
During the course of ▇▇▇▇▇▇▇▇ Consulting performing Services for Docent, each
party may be given access to information (in hardcopy and/or electronic form)
that relates to the other's past, present, and future research, development,
business activities, products, services, and technical knowledge, and is
identified by the disclosing party as confidential ("Confidential Information").
In connection therewith, the following subsections shall apply:
6.1 The Confidential Information of the disclosing party may be used by the
receiver only in connection with the Services;
6.2 Each party agrees to protect the confidentiality of the Confidential
Information of the other in the same manner that it protects the confidentiality
of its own proprietary and confidential information of like kind, but in no
event shall either party exercise less than reasonable care in protecting such
Confidential Information. Access to the Confidential Information shall be
restricted to ▇▇▇▇▇▇▇▇ Consulting and Docent personnel engaged in a use
permitted hereby;
6.3 The Confidential Information may not be copied or reproduced without the
disclosing party's prior written consent;
6.4 All Confidential Information made available hereunder, including copies
thereof, shall be returned or destroyed upon the first to occur of (a)
completion of the Services or (b) request by the disclosing party, unless the
receiver is otherwise allowed to retain such Confidential
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION -6-
Information. ▇▇▇▇▇▇▇▇ Consulting may retain, subject to the terms of this
Section, copies of Docent's Confidential Information required for compliance
with its recordkeeping or quality assurance requirements;
6.5 Nothing in this Agreement shall prohibit or limit either party's use of
information (including, but not limited to, ideas, concepts, know-how,
techniques, and methodologies) (i) previously known to it without obligation of
confidence, (ii) independently developed by or for it, (iii) acquired by it from
a third party which is not, to its knowledge, under an obligation of confidence
with respect to such information, or (iv) which is or becomes publicly available
through no breach of this Agreement;
6.6 If either party receives a subpoena or other validly issued administrative
or judicial process requesting Confidential Information or the other party, it
shall provide prompt notice to the other of such receipt. The party receiving
the subpoena shall thereafter be entitled to comply with such subpoena or other
process to that extent permitted by law. Services provided hereunder in no event
include ▇▇▇▇▇▇▇▇ Consulting acting as an expert witness or otherwise providing
litigation support services; and.
6.7 In connection with the Services, ▇▇▇▇▇▇▇▇ Consulting may from time to time
undertake one or more quality assessment reviews. In order for such reviews to
be ▇▇▇▇▇ and candid, for the greatest benefit to both Docent and ▇▇▇▇▇▇▇▇, they
should be kept confidential to the greatest extent possible. The parties agree
that any documentation created in connection with such quality assessment
reviews shall be Confidential Information of ▇▇▇▇▇▇▇▇ Consulting and in no event
shall such documentation or the results of such reviews be discoverable or
admissible (or used for any purpose) in any proceedings related to this
Agreement or the Services.
7. WARRANTY
7.1 ▇▇▇▇▇▇▇▇ Consulting warrants that its Services will be performed in a good
and workmanlike manner. ▇▇▇▇▇▇▇▇ Consulting agrees to reperform any work not in
compliance with this warranty brought to its attention within a reasonable time
(or such specific period provided in the applicable Arrangement Letter) after
that work is performed.
7.2 THE PRECEDING IS ▇▇▇▇▇▇▇▇ CONSULTING'S ONLY WARRANTY CONCERNING THE
SERVICES, ANY DELIVERABLES, AND ANY WORK PRODUCT, AND IS MADE EXPRESSLY IN LIEU
OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY, OR
OTHERWISE.
8. INDEMNIFICATION
8.1 Each party shall indemnify, defend and hold harmless the other, its
employees, principals (partners, shareholders or holders of an ownership
interest, as the case may be) and agents, from and against any third party
claims, demands, loss, damage or expense relating to bodily injury or death of
any person or damage to real and/or tangible personal property directly caused
by the negligence or willful misconduct of the indemnifying party, its personnel
or agents in connection with the performance of the Services hereunder.
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION -7-
8.2 If Docent promptly notifies ▇▇▇▇▇▇▇▇ Consulting in writing of a third party
claim against Docent that any Deliverable infringes a United States patent in
existence as of the date of the applicable Arrangement Letter, a copyright or a
trade secret of any third party, ▇▇▇▇▇▇▇▇ Consulting will defend such claim at
its expense and will pay any costs or damages that may be finally awarded
against Docent. ▇▇▇▇▇▇▇▇ Consulting will not indemnify Docent, however, if the
claim of infringement is caused by (1) Docent's misuse or modification of the
Deliverable; (2) Docent's failure to use corrections or enhancements made
available by ▇▇▇▇▇▇▇▇ Consulting; (3) Docent's use of the Deliverable in
combination with any product or information not owned or developed by ▇▇▇▇▇▇▇▇
Consulting; (4) Docent's distribution, marketing or use for the benefit of third
parties of the Deliverable or (5) information, direction, specification or
materials provided by Docent or any third party. If any Deliverable is, or in
▇▇▇▇▇▇▇▇ Consulting's opinion is likely to be, held to be infringing, ▇▇▇▇▇▇▇▇
Consulting shall at its expense and option either (a) procure the right for
Docent to continue using it, (b) replace it with a noninfringing equivalent, (c)
modify it to make it noninfringing or (d) direct the return of the Deliverable
and refund to Docent the fees paid for such Deliverable less a reasonable amount
for Docent's use of the Deliverable up to the time of return. The foregoing
remedies constitute Docent's sole and exclusive remedies and ▇▇▇▇▇▇▇▇
Consulting's entire liability with respect to infringement.
8.3 Docent shall defend, indemnify and hold harmless ▇▇▇▇▇▇▇▇ Consulting and
its partners and employees from and against any loss, claim, damage or
liabilities (or actions in respect thereof that may be asserted by any third
party) that may result from any third party claims arising out of or relating to
▇▇▇▇▇▇▇▇ Consulting's Services or any use by the Docent of any Deliverable and
will reimburse ▇▇▇▇▇▇▇▇ Consulting for all expenses (including counsel fees) as
incurred by ▇▇▇▇▇▇▇▇ Consulting in connection with any such action or claim,
except to the extent any such claim is covered by the preceding indemnity
obligations of ▇▇▇▇▇▇▇▇ Consulting.
8.4 To receive the foregoing indemnities, the party seeking indemnification
must promptly notify the other in writing of a claim or suit and provide
reasonable cooperation (at the indemnifying party's expense) and full authority
to defend or settle the claim or suit. The indemnifying party shall have no
obligation to indemnify the indemnified party under any settlement made without
the indemnifying party's written consent.
8.5 Each party will determine the types and amounts of insurance coverage it
requires in connection with this Agreement. Neither party is required to obtain
insurance for the benefit of the other party. Each party shall pay all costs and
receive all benefits under policies arranged by it. Each party waives rights of
subrogation it may otherwise have regarding the other party's insurance
policies, including but not limited to property insurance, business interruption
insurance, and other first-party insurance.
9. EMPLOYEES
9.1 ▇▇▇▇▇▇▇▇ Consulting reserves the right to determine which of its personnel
shall be assigned to perform Services, and to replace or reassign such personnel
during the term hereof; provided, however, that it will, subject to scheduling
and staffing considerations, attempt to honor Docent's request for specific
individuals.
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION -8-
9.2 Except as the other party expressly authorizes in writing in advance,
neither party shall solicit, offer work to, employ, or contract with, whether as
a partner, employee or independent contractor, directly or indirectly, any of
the other party's Personnel during their participation in the Services or during
the twelve (12) months thereafter. For purposes of this Section 9.2, "Personnel"
includes any individual or company a party employs as a partner, employee or
independent contractor and with which a party comes into direct contact in the
course of the Services.
9.3 Neither party shall be deemed a joint employer of the other's employees,
each party being responsible for any and all claims by its employees, subject to
Section 8.1. Neither party's employees shall be deemed "leased" employees of the
other for any purpose.
10. INDEPENDENT CONTRACTOR
In connection with this Agreement, each party is an independent contractor and
as such will not have any authority to bind or commit the other. Nothing herein
shall be deemed or construed to create a joint venture, partnership, fiduciary
or agency relationship between the parties for any purpose.
11. LIMITATION OF LIABILITY
11.1 The limit of ▇▇▇▇▇▇▇▇ Consulting's liability (whether in contract, tort,
negligence, strict liability in tort or by statute or otherwise) to Docent or to
any third party concerning performance or non-performance by ▇▇▇▇▇▇▇▇
Consulting, or in any manner related to this Agreement, for any and all claims,
shall not in the aggregate exceed the fees and expenses paid by Docent to
▇▇▇▇▇▇▇▇ Consulting hereunder with respect to the work involved under the
applicable Arrangement Letter. Docent's exclusive remedy for any claim arising
out of these arrangements shall be for ▇▇▇▇▇▇▇▇ Consulting, upon receipt of
written notice pursuant to Section 12.2, to use commercially reasonable efforts
to cure the breach at its expense, and failing that, the return of fees paid to
▇▇▇▇▇▇▇▇ Consulting for the work related to the breach.
11.2 In no event shall either party be liable for consequential, incidental or
punitive loss, damage or expenses (including but not limited to business
interruption, lost business, or lost savings) even if it has been advised of
their possible existence. Any action by either party must be brought within two
(2) years after the cause of action arose.
11.3 The allocations of liability in this Section 11 represent the agreed and
bargained-for understanding of the parties and ▇▇▇▇▇▇▇▇ Consulting's
compensation for the Services reflects such allocations. The parties agree
further that they will look only to the assets of the other party in connection
with any liabilities hereunder and in no event shall they have any claim against
any shareholder, partner or holder of an ownership interest in the other party
in connection with this Agreement.
12. TERMINATION
12.1 Either party may terminate an Arrangement Letter by giving thirty (30) days
written notice of termination to the other party unless otherwise specified in
the applicable Arrangement
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION -9-
Letter. Termination of an Arrangement Letter shall have no impact upon this
Agreement or any other Arrangement Letter.
Either party may at any time and without cause terminate this Agreement by
giving thirty (30) days written notice of termination to the other party.
Termination of this Agreement shall have no impact upon performance of any
Arrangement Letters then under performance unless the parties otherwise
specifically agree in writing and this Agreement shall continue to govern such
Arrangement Letters until performance has been completed.
Upon such termination, Docent shall pay ▇▇▇▇▇▇▇▇ Consulting for all Services
rendered and expenses incurred by ▇▇▇▇▇▇▇▇ Consulting prior to the date of
termination. In the event of termination by Docent, Docent shall also pay
▇▇▇▇▇▇▇▇ Consulting for any demobilization or other costs resulting from such
early termination.
12.2 Either party may, upon giving thirty (30) days' written notice identifying
specifically the basis for such notice, terminate the applicable Arrangement
Letter (and not any other Arrangement Letter) for breach of a material term or
condition of the applicable Arrangement Letter unless the party receiving the
notice cures such breach within the thirty (30) day period. Upon such
termination, Docent shall pay ▇▇▇▇▇▇▇▇ Consulting for all Services rendered and
expenses incurred by ▇▇▇▇▇▇▇▇ Consulting prior to the date of termination. In
addition, if ▇▇▇▇▇▇▇▇ Consulting terminates an Arrangement Letter under this
Section 12.2, Docent shall also pay ▇▇▇▇▇▇▇▇ Consulting for any demobilization
or other costs resulting from such early termination.
12.3 The parties agree that, in the event of a dispute or alleged breach subject
to Section 12.2, they will work together in good faith first, to resolve the
matter internally by escalating it to higher levels of management and, then if
necessary, to use a mutually agreed alternative dispute resolution technique
prior to resorting to litigation. This provision shall not apply to disputes
involving confidentiality or infringement of intellectual property rights (in
which case either party shall be free to seek available remedies in any forum).
12.4 The terms of Sections 2, 3.3, 4, 5, 6, 7.2, 8, 10, 11, 12.3 and 17 shall
survive termination of this Agreement or completion of any Arrangement Letter.
5, 6, 7, 8, 11, 12.4, 13, 14, 16 and 17 shall survive termination of this
Agreement or completion of any Arrangement Letter.
13. SEVERABILITY
If any term or provision of this Agreement is found by a court of competent
jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall
not affect the other terms or provisions hereof or the whole of this Agreement,
but such term or provision shall be deemed modified to the extent necessary in
the court's opinion to render such term or provision enforceable, and the rights
and obligations of the parties shall be construed and enforced accordingly,
preserving to the fullest permissible extent the intent and agreements of the
parties herein set forth.
14. NOTICES
Any notice or other communication given pursuant to this Agreement shall be in
writing and shall be effective either when delivered personally to the party for
whom intended, or five (5)
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION-10-
days following deposit of the same into the United States mail (certified mail,
return receipt requested, or first class postage prepaid), facsimile (with
confirmation of delivery) or overnight delivery services (with confirmation of
delivery), addressed to such party at the address set forth on the initial page
of this Agreement. Either party may designate a different address by notice to
the other given in accordance herewith.
15. FORCE MAJEURE
Neither party shall be liable for any delays or failures in performance (other
than payment obligations hereunder) due to circumstances beyond its reasonable
control.
16. MISCELLANEOUS
16.1 Entire Agreement. This Agreement sets forth the entire understanding
between the parties hereto and supersedes all prior agreements, arrangements and
communications, whether oral or written, with respect to the subject matter
hereof. Any purchase order issued by the Docent shall be for its administrative
purposes only and none of its terms and conditions shall be of any force or
effect against ▇▇▇▇▇▇▇▇ Consulting. Each Arrangement Letter, except as its terms
otherwise expressly provide, shall be a complete statement of its subject matter
and shall supplement and modify the terms and conditions of this Agreement for
the purposes of that engagement only. No other agreements, representations,
warranties or other matters, whether oral or written, shall be deemed to bind
the parties hereto with respect to the subject matter hereof. Docent
acknowledges that it is entering into this Agreement solely on the basis of the
agreements and representations contained herein, and for its own purposes and
not for the benefit of any third party.
16.2 Modification. Neither this Agreement nor any Arrangement Letter may be
modified or amended except by the mutual written agreement of the parties. No
waiver of any provision of this Agreement shall be effective unless it is in
writing and signed by the party against which it is sought to be enforced.
16.3 Waiver. The delay or failure by either party to exercise or enforce any of
its rights under this Agreement shall not constitute or be deemed a waiver of
that party's right thereafter to enforce those rights, nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right.
16.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Illinois, without giving effect to
conflict of law rules. The parties expressly agree to exclude the application of
the U.N. Convention on Contracts for the International Sale of Goods (1980) to
this Agreement and the performance of the parties contemplated herein, to the
extent that such convention might otherwise be applicable.
16.5 Counterparts. This Agreement may be executed in counterparts or duplicate
originals, both of which shall be regarded as one and the same instrument, and
which shall be the official and governing version in the interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION-11-
DOCENT, INC. ▇▇▇▇▇▇▇▇ CONSULTING LLP
#####
___________________________________ -----------------------------------
Authorized Signature Authorized Signature
#####
___________________________________ -----------------------------------
Name (Printed or Typed) Name (Printed or Typed)
#####
___________________________________ -----------------------------------
Title (Printed or Typed) Title (Printed or Typed)
___________________________________ ___________________________________
Date of Signature Date of Signature
#####CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION-12-