EXHIBIT 10.9
Portal Confidential & Proprietary.
BUSINESS ALLIANCE AGREEMENT
1 Parties
1.1 This Business Alliance Agreement ("Agreement") is made this [day] day of
[month], 1999 ("Effective Date") by and between Portal Software, Inc., a
California corporation with its principal place of business located at ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Portal") and
[company name], a(n) [state] with its principal place of business located at
[address] ("Alliance Member").
2 Definitions
2.1 Affiliate
"Affiliate" means an entity controlled by a party, where control means the
ownership or control, directly or indirectly, of more than fifty percent (50%)
of all of the voting power of the shares (or other securities or rights)
entitled to vote for the election of directors or other governing authority, as
of the date of this Agreement or hereafter during the term of this Agreement;
provided that such entity shall be considered an Affiliate only for the time
during which such control exists.
2.2 Application Solution
"Application Solution" means the Licensed Software plus any software, hardware
and services provided by the Alliance Member to an End User. In any event,
Alliance Member shall include, at a minimum: management consulting, project
management, and systems integration services; custom software application
development for Licensed Software implementation; application integration with
other application software packages and training services in connection with the
Application Solution.
2.3 Designated Equipment
"Designated Equipment" means (i) Portal certified Intel processor based computer
systems running Microsoft Windows NT or Microsoft Windows 95 operating systems
(or any successor operating system); (ii) Sun Microsystems SPARC processor based
systems running Solaris Operating System; or (iii) Hewlett Packard systems
running HP-UX Operating System.
2.4 End User
"End User" means a third party entity which licenses the Licensed Software from
Alliance Member.
2.5 Licensed Software
"Licensed Software" means (i) the software products designated on Schedule A
hereto provided to Licensee by Portal in executable form (but not the source
code), (ii) related program documentation ("Documentation"), (iii) updates,
modifications, maintenance releases, bug fixes or work-arounds provided by
Portal, and (iv) any source code or object code which Portal provides in its
sole discretion.
2.6 Term
The "Term" of this Agreement shall be two (2) years from the Effective Date.
2.7 Territory
"Territory" means the countries and/or geographical regions designated on
Schedule A.
3 Grant of License Rights
3.1 Development License
Subject to all the terms of this Agreement and payment of all fees, Portal
grants Alliance Member a non-transferable, non-exclusive, license to use the
Licensed Software on the Designated Equipment at the Designated Development
Sites set forth on Schedule A, to test and develop applications, in a non-
production environment, only for the purpose of interfacing the Licensed
Software with the Alliance Member's Application Solution.
3.2 Demonstration License
Alliance Member may use up to five (5) copies of the Licensed Software for
demonstration purposes on its premises or that of a prospective End User
("Prospect") provided all copies are removed by Alliance Member from the
Prospect's site on the same day such copy was installed.
3.3 Evaluation License
Alliance Member may install copies of the Licensed Software at a Prospect's site
on a trial basis and for evaluation purposes provided (i) the Prospect has
signed an Evaluation License Agreement containing at a minimum the terms and
conditions set forth on Schedule B, and (ii) all such copies are removed by
Alliance Member upon completion of the evaluation period or 30 days from such
delivery, whichever occurs first. Any evaluation copy of the Licensed Software
not removed or returned to the Alliance Member at the end of such period is
deemed to be licensed and license fees with respect thereto shall be due to
Portal. Alliance Member shall keep and maintain accurate records with respect
to any and all Evaluation Licenses granted and will provide Portal with a copy
of each such Evaluation License promptly upon execution. At no time will
Alliance Member be permitted to simultaneously issue more than five (5) copies
of the Evaluation Licenses without having obtained the prior written consent of
Portal.
3.4 Distribution License.
Subject to the terms of this Agreement, Portal grants to Alliance Member a
nonexclusive, nontransferable, license to distribute the Licensed Software to
its End Users in the Territory. Prior to the delivery of any Licensed Software
to an End User, Alliance Member and End User shall execute a license agreement
for the Licensed Software ("End User Agreement") that contains at a minimum the
terms and conditions set forth in Schedule B. Alliance Member shall maintain
complete and accurate records regarding all End Users and End User Agreements
and shall promptly deliver any such End User Agreement upon the request of
Portal. If Alliance Member learns of any breach of the terms set forth in
Schedule B, it will take prompt, commercially reasonable corrective action at
its expense to remedy the breach and/or obtain all other appropriate relief and
will immediately notify Portal in writing of the breach and corrective action
taken. The execution of these duties by Alliance Member shall not preclude
Portal from also taking corrective action. In addition, if a breach of the
terms set forth in Schedule B occurs that in Portal's opinion, results in
irreparable harm to Portal and/or its third party licensees, unless injunctive
or other equitable relief is entered into to restrain the violation, Alliance
Member shall use its best efforts to obtain such equitable relief as promptly as
possible. If Portal determines that Alliance Member is not adequately pursuing
such relief, Portal may require that Alliance Member assign to Portal its rights
under Alliance Member's license with the End User to permit Portal to seek such
equitable relief. Alliance Member will reimburse Portal for all costs and
expenses incurred in pursuing such relief, including reasonable attorneys' fees.
Alliance Member shall be liable in all respects for any breach by its End Users
of the terms set forth in Schedule B. Alliance Member's foregoing obligations
to enforce the End User Agreements as necessary to protect the interest of
Portal and its third party licensors shall survive expiration or termination of
this Agreement.
3.5 Affiliates.
Alliance Member may assign the licenses granted above to its Affiliates (for so
long as they remain Affiliates), provided that all such Affiliates become bound
in writing (for Portal's benefit) to Alliance Member's obligations under this
Agreement, that Alliance Member assumes full responsibility for compliance by
such Affiliates with such obligations and that all payments and reports from
Affiliates will be made through Alliance Member together with Alliance Member's
payments and reports.
4 License Restrictions
4.1 No Reverse Engineering
Alliance Member agrees that it will not (and will not permit others to) reverse
compile or disassemble object code versions of the Licensed Software or
otherwise create, or attempt to create or
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Portal Confidential & Proprietary.
permit, allow or assist others to create the source code of the Licensed
Software.
4.2 Copies
All copies of the Licensed Software or its related documentation must reproduce
copyright notices, restrictive rights legends, proprietary notices and other
notices as contained in the Licensed Software in whole or in part for any use or
purpose, other than as provided herein.
5 Ownership of Licensed Software.
5.1 The Licensed Software (including such portions as are incorporated in the
Application Solution) and any Documentation provided by Portal are and shall
remain at all time the property of Portal. Alliance Member shall be permitted
to create applications ("Infranet Applications") in order to obtain
interoperability with the Licensed Software using any code provided by Portal
for development of the Application Solution including, but not limited to, the
policy facilities modules source code and/or application programming interfaces
provided by Portal in its sole discretion.
5.2 Alliance Member hereby grants Portal a worldwide, non-exclusive,
sublicensable license to use, modify, sell, distribute, create derivative works
of and otherwise exploit the Infranet Applications developed by Alliance Member.
6 Training and Technical Support
6.1 Training and Technical Assistance
Portal will provide technical training classes at current training rates
comparable to those provided to other Licensed Software Alliance Members, at
Portal's premises at such dates as are mutually acceptable to both parties or,
at a location and at a time to be mutually agreed upon by the parties. Portal
will also provide Alliance Member with Silver Level Support Services during
Portal's normal business hours (8:00 AM to 5:00 PM, PST, Monday through Friday,
excluding holidays) for its internal development license. Portal's Technical
Support Guidelines, Policies and Procedures are set forth at Portal's website at
▇▇▇.▇▇▇▇▇▇.▇▇▇ ("Support Terms"). Portal reserves the right to modify its
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technical support policies and procedures at any time upon thirty (30) days
notice.
6.2 End User Support
Unless otherwise agreed in writing, Alliance Member shall be responsible for all
End User technical assistance and support services, including without limitation
any and all installation, maintenance, testing, management, and control of the
end user's use of the Application Solution, including the Licensed Software,
including any Evaluation Licenses thereof. Alliance Member shall provide each
end user with sufficient documentation to enable the end user to install and use
the Licensed Software in accordance with the Documentation and sufficient to
allow support of the Licensed Software. Portal may, if requested by Alliance
Member, provide backup support from its Cupertino headquarters during Portal's
normal hours of operation for the fee set forth on Schedule A. Alliance
Member's first level support obligations are set forth on Schedule D.
7 Fees and Taxes.
7.1 License Fees
Alliance Member shall pay all license fees in accordance with the terms set
forth in Schedule A.
7.2 Referral Fees
In those instances where Alliance Member actively pursues and is instrumental in
a customer's decision to license the Licensed Software from Portal directly,
Portal will pay Alliance Member a referral fee in accordance with the guidelines
set forth in Schedule A.
7.3 Payment Terms
Alliance Member shall pay to Portal all fees due hereunder in US dollars.
Monthly interest at the rate of 1.5%, or if lower, the maximum rate allowed by
law, shall be charged on any amounts due over thirty (30) days. All charges are
exclusive of all taxes, duties, including customs duties, and similar charges.
7.4 Taxes
Partner agrees to pay or reimburse Portal for all federal, state, dominion,
provincial or local sales, use, personal property, payroll, excise or other
taxes, fees or duties arising out of this Agreement or the transactions
contemplated by this Agreement (other than taxes on the net income of Portal).
If any tax is payable by the Alliance Member under this clause, then the
Alliance Member shall provide evidence of payment to Portal and Portal shall use
all reasonable efforts to obtain credit, rebate, or benefit for that amount
against its own tax, and if it receives such credit, rebate, or benefit it shall
refund to the Alliance Member an amount equal to the lesser of the amount paid
by the Alliance Member and the credit, rebate, or benefit obtained by Portal.
8 Confidential Information
8.1.1 Both parties agree that all code, inventions, know-how and ideas it
obtains from the other and all other business, technical and financial
information it obtains from the other are the confidential property of the
disclosing party and its licensors ("Proprietary Information"). Except as
expressly and unambiguously allowed herein, both parties will hold in confidence
and not use or disclose any Proprietary Information except to its employees and
consultants with a "need to know" and who are similarly bound by confidentiality
obligations. The parties' nondisclosure obligation shall not apply to
information that:
(a) is at the time of disclosure generally known by or available to the public
or became so known or available thereafter through no fault of the
receiving party; or
(b) is legally known to the receiving party at the time of disclosure without
any obligation of confidentiality; or
(c) is furnished by the disclosing party to third parties without restriction;
or
(d) is furnished to the either party without any obligation of confidentiality
by a third party who legally obtained said information and the right to
disclose it; or
(e) is developed independently by either party's employees who had no access to
such Proprietary Information where the party can document such independent
development.
8.1.2 Due to the unique and proprietary nature of the Confidential Information,
it is understood and agreed that each party's remedies at law for a breach by
the other of its obligations under this Section will be inadequate and that such
party shall, in the event of any such breach, be entitled to equitable relief
(including without limitation provisional and permanent injunctive relief and
specific performance) in addition to any other remedies under this Agreement or
available at law.
9 Termination
9.1.1 This Agreement will terminate:
(a) automatically upon the natural expiration of the Term;
(b) thirty (30) days (ten (10) in the case of non-payment and immediately in
the case of a breach of Section 4 or 8) after notice from one party of any
breach by the other party remaining uncured at the end of such notice
period; or
(c) immediately upon the commencement of any bankruptcy proceeding (or other
insolvency proceeding) of Alliance Member, or the dissolution of Alliance
Member. Termination is not an exclusive remedy and all other remedies will
be available whether or not termination occurs.
9.1.2 Upon termination of this Agreement, Alliance Member shall immediately pay
to Portal all fees then due to Portal, all licenses to the Licensed Software
shall immediately cease, and the parties shall mutually agree upon arrangements
for continued support of end users. Sections 4.1, 4.2, 5.2, 8, 13, 15, 16 and
19 (including all subsections of Section 9) of this Agreement shall survive any
termination or expiration of this Agreement.
10 Marketing Requirements
Alliance Member shall exercise its best efforts in all respects to advertise,
promote and market, in all parts of the Territory, the use of the Licensed
Software or the Application Solution and shall
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Portal Confidential & Proprietary.
protect the good name and reputation of Portal and its Licensed Software.
Alliance Member shall act in accordance with Portal's then current marketing
guidelines, a current copy of which is set forth in Schedule C.
11 Proprietary Rights and Trademarks
11.1 Alliance Member shall use Portal's then-current names, marks, logos, and
other identifiers for the Licensed Software ("Trademarks") on or in connection
with the Licensed Software, packaging for the Application Bundle, and Alliance
Member's advertising for the Application Bundle, provided that Alliance Member
shall:
(a) only use Trademarks in the form and manner, and in accordance with the
quality standards, that Portal prescribes (and which it may change from
time to time);
(b) at Portal's request, submit samples of Application Solution, packaging,
advertising, and Licensed Software to Portal for approval; and
(c) upon termination of this Agreement for any reason, immediately cease all
use of the Trademarks.
11.2 Alliance Member will not use, register or take other action with respect
to any name, logo, trademark, service ▇▇▇▇, or other identifier used anywhere in
the world by Portal, except to the extent authorized in writing by Portal in
advance.
12 Accounting Reports and Audit Rights
Alliance Member shall maintain accurate records regarding each end user
including without limitation, the names of the Licensed Software components
sublicensed and/or in use, the applicable version number(s), the dates of
delivery and installation, and the full legal name and address of each end user,
the number of copies of the Licensed Software provided and the make, model and
serial number of the machine on which the Licensed Software and/or the
Application Solution are installed. Within ten (10) days after the end of each
calendar month, Alliance Member shall provide Portal a written report containing
the information set forth above plus similar information regarding all copies of
the Licensed Software installed for evaluation purposes at an End User's or
Prospect's site; all copies of the Licensed Software under maintenance
contracts; all copies of the Licensed Software otherwise provided by Alliance
Member to end users (as expressly permitted under any Attachment to this
Agreement). Alliance Member shall remit to Portal all fees due to Portal as
reflected in such report. Portal may, with reasonable notice and at Portal's
expense, audit Alliance Member's records and inspect Alliance Member's
facilities to verify Alliance Member's compliance with the provisions of this
Agreement. If an audit indicates an underpayment of five percent (5%) or more of
any amounts due hereunder, Alliance Member shall promptly pay the deficiency and
reimburse Portal for the cost of the audit.
13 Indemnification
13.1 Portal shall hold Alliance Member harmless from liability to third parties
resulting from infringement by the Licensed Software of any United States patent
or any copyright or misappropriation of any trade secret. Portal shall have no
liability unless Alliance Member:
(a) promptly notifies Portal of the claim,
(b) gives Portal full authority, information and assistance to defend the
claim, and
(c) gives Portal sole control of the defense of the claim. Portal will not be
responsible for any settlement it does not approve in writing.
13.2 The foregoing obligations do not apply with respect to Licensed Software
or portions or components thereof:
(a) not supplied by Portal,
(b) made in whole or in part in accordance to Alliance Member specifications,
(c) that are modified after delivery by Portal,
(d) combined with other products, processes or materials where the alleged
infringement relates to such combination,
(e) where Alliance Member continues allegedly infringing activity after being
notified thereof or after being informed of modifications that would have
avoided the alleged infringement, or
(f) where Alliance Member's use of such Licensed Software is not strictly in
accordance with this Agreement.
13.3 In the event that Licensed Software is held or is believed by Portal to
infringe, Portal shall have the option, at its expense, to:
(a) modify the Licensed Software to be non-infringing,
(b) obtain for Alliance Member a license to continue using the Licensed
Software, or
(c) terminate this Agreement or licenses granted hereunder with respect to the
infringing Licensed Software and refund to Alliance Member the fees paid to
Portal for the infringing License Software under this Agreement depreciated
on a straight-line basis over a three (3) year period.
13.4 The foregoing states Portal's entire liability and Alliance Member's
exclusive remedies for a breach of its indemnification obligations under Section
13.
13.5 Alliance Member shall hold Portal harmless from liability to third parties
resulting from infringement by an Application Solution (that is not covered by
Portal's indemnification obligations as set forth above) of any patent,
copyright or misappropriation of any trade secret. Alliance Member shall have
no liability under this Section 13.5 unless Portal:
(a) promptly notifies Alliance Member of the claim,
(b) gives Alliance Member full authority, information and assistance to defend
the claim, and
(c) gives Alliance Member sole control of the defense of the claim. Alliance
Member will not be responsible for any settlement it does not approve in
writing.
13.6 The foregoing states Alliance Member's entire liability and Portal's
exclusive remedies for a breach of Alliance Member's indemnification obligations
under this Section 13.
14 Warranties
14.1 Portal warrants to Alliance Member and Alliance Member only that it is the
licensee or exclusive owner of the Licensed Software, and that it has the right
to sell, license or sublicense Licensed Software and grant to Alliance Member
the rights granted under this Agreement. If the Licensed Software does not
perform as warranted in this Section 14.1, Portal shall undertake at its own
expense to correct the non-conforming part of the Licensed Software. If
correction is not reasonably possible or commercially practicable, Alliance
Member may terminate the license(s) with respect to the non-conforming Licensed
Software and upon receiving written confirmation from Alliance Member that all
copies of the non-conforming Licensed Software and all related product
documentation have been returned to Portal or destroyed, Portal shall refund the
monies paid by Alliance Member for the non-conforming Licensed Software. The
foregoing states Portal's entire liability and Alliance Member's sole remedies
against Portal for failure of the Licensed Software to perform as warranted in
this Section 14.1.
14.2 Portal warrants to Alliance Member and Alliance Member only that to the
best of its knowledge the Licensed Software is free and clear of any lien,
encumbrance or written claim of any third party. If the Licensed Software does
not perform as warranted in this Section 14.2, Portal shall undertake at its own
expense to correct the non-conforming part of the Licensed Software. If
correction is not reasonably possible or commercially practicable, Alliance
Member may terminate the license(s) with respect to the non-conforming Licensed
Software and upon receiving written confirmation from Alliance Member that all
copies of the non-conforming Licensed Software and all related product
documentation have been returned to Portal or destroyed, Portal shall refund the
monies paid by Alliance Member for the non-conforming Licensed Software. The
foregoing states Portal's entire liability and Alliance Member's sole remedies
against Portal for failure of the Licensed Software to perform as warranted in
this Section 14.2.
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Portal Confidential & Proprietary.
14.3 Portal warrants to Alliance Member and Alliance Member only that the
Licensed Software will perform in substantial accordance with the Documentation
for a period of ninety (90) days from the Effective Date. If the Licensed
Software does not perform as warranted in this Section 14.3, Portal shall
undertake at its own expense to correct the non-conforming part of the Licensed
Software. If correction is not reasonably possible or commercially practicable,
Alliance Member may terminate the license(s) with respect to the non-conforming
Licensed Software and upon receiving written confirmation from Alliance Member
that all copies of the non-conforming Licensed Software and all related product
documentation have been returned to Portal or destroyed, Portal shall refund the
monies paid by Alliance Member for the non-conforming Licensed Software. The
foregoing states Portal's entire liability and Alliance Member's sole remedies
against Portal for failure of the Licensed Software to perform as warranted in
this Section 14.3.
14.4 Portal warrants to Alliance Member and Alliance Member only that the
Licensed Software is designated to be used prior to, during and after the
calendar year 2000 and that it will operate during each such time period without
error relating to, or the product of, date data which references different
centuries or more than one century ("Year 2000 Compliant"). If the Licensed
Software does not perform as warranted in this Section 14.4, Portal shall
undertake at its own expense to correct the non-conforming part of the Licensed
Software. If correction is not reasonably possible or commercially practicable,
Alliance Member may terminate the license(s) with respect to the non-conforming
Licensed Software and upon receiving written confirmation from Alliance Member
that all copies of the non-conforming Licensed Software and all related product
documentation have been returned to Portal or destroyed, Portal shall refund the
monies paid by Alliance Member for the non-conforming Licensed Software. The
foregoing states Portal's entire liability and Alliance Member's sole remedies
against Portal for failure of the Licensed Software to perform as warranted in
this Section 14.4. The foregoing warranty shall not apply to the extent that:
(a) the Licensed Software is used or interfaced with other software, data or
operating systems which are not Year 2000 Compliant;
(b) the Licensed Software has been modified in a manner not expressly
authorized by Portal;
(c) the party claiming relief under the warranty failed to install an upgrade,
update, patch or maintenance release which would have made the Licensed
Software Year 2000 Compliant within a reasonable time of Portal's having
made the upgrade, update, patch or maintenance release available.
14.5 As an accommodation to Alliance Member, Portal may supply Alliance Member
with limited production products, or with pre-production releases of Products
(which may be labeled "Alpha" or "Beta"). These Products are not suitable for
production use. Portal does not warrant Limited Production Products, pre-
production releases or computer-based training Products. THESE LIMITED
PRODUCTION AND ALPHA/BETA PRODUCTS ARE PROVIDED "AS IS".
15 Warranty Disclaimer
15.1 OTHER THAN EXPRESSLY PROVIDED IN SECTION 14 ABOVE, PORTAL MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO ITS PORTAL SOFTWARE OR AS TO ANY SERVICES
RENDERED TO ALLIANCE MEMBER OR ANY OTHER PERSON. PORTAL RESERVES THE RIGHT TO
CHANGE ITS WARRANTY AND SERVICE POLICIES AT ANY TIME, WITHOUT FURTHER NOTICE AND
WITHOUT LIABILITY TO ALLIANCE MEMBER OR ANY OTHER PERSON. EXCEPT AS SET FORTH
ABOVE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, PORTAL DISCLAIMS ALL
EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERRUPTION OF USE,
AND FREEDOM FROM PROGRAM ERRORS. ALLIANCE MEMBER SHALL BE RESPONSIBLE FOR ALL
WARRANTY RETURNS (DIRECT AND INDIRECT) FROM END USERS AND WILL BE ENTITLED TO
(AND ONLY TO) CREDIT FOR AMOUNTS PAID TO PORTAL UNDER THIS AGREEMENT. ALLIANCE
MEMBER SHALL MAKE NO REPRESENTATION OR WARRANTY CONCERNING THE QUALITY,
PERFORMANCE OR OTHER CHARACTERISTICS OF PORTAL SOFTWARE OTHER THAN THOSE WHICH
ARE CONSISTENT IN ALL RESPECTS WITH, AND DO NOT EXPAND THE SCOPE OF, THE
WARRANTIES IN SECTION 14 ABOVE.
16 Limitation of Liability
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR
BODILY INJURY, PORTAL SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE
SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
(a) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER
WITH RESPECT TO THE APPLICABLE PORTAL SOFTWARE PRIOR TO THE CAUSE OF
ACTION;
(b) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR
RIGHTS;
(c) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES;
(d) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR
(e) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
17 Foreign Law Representation
As a condition of Alliance Member's rights hereunder, Alliance Member warrants
and agrees that neither this Agreement (or any term hereof) nor the performance
of or exercise of rights under this Agreement, is restricted by, contrary to, in
conflict with, ineffective under, requires registration or approval or tax
withholding under, or affects Licensor's Proprietary Rights (or the duration
thereof) under, or will require any termination payment or compulsory licensing
under, any law or regulation of any organization, country, group of countries or
political or governmental entity located within or including all or a portion of
the Territory.
18 Export
Alliance Member shall comply with the U.S. Foreign Corrupt Practices Act and all
applicable export laws, restrictions, and regulations of the United States or
foreign agency or authority. Alliance Member will not export, or allow the
export or re-export of the Licensed Software or Application Solution in
violation of any such laws, restrictions or regulations. Alliance Member shall
obtain and bear all expenses relating to any necessary licenses and/or
exemptions with respect to the export from the U.S. of the Licensed Software or
Application Solution to any location so as to be in compliance with all
applicable laws and regulations.
19 Miscellaneous
19.1 Neither the Agreement or the licenses granted hereunder are assignable or
transferable by Alliance Member without the prior written consent of Portal; any
attempt to do so shall be void. Portal may assign this Agreement in whole or in
part.
19.2 Alliance Member agrees that it is an independent contractor and that this
Agreement and relations between Portal and Alliance Member hereby established do
not constitute a, joint venture, agency or contract of employment between them,
or any other similar relationship. Neither party has the right or authority to
assume or create any obligation or responsibility on behalf of the other.
19.3 Any notice, report, approval or consent required or permitted hereunder
shall be in writing.
19.4 No failure or delay in exercising any right hereunder will operate as a
waiver thereof, nor will any partial exercise of any right or power hereunder
preclude further exercise. Any waivers or amendments shall be effective only if
made in writing.
19.5 If any provision of this Agreement shall be adjudged by any court of
competent jurisdiction to be unenforceable or invalid, that provision shall be
limited or eliminated to the minimum extent
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Portal Confidential & Proprietary.
necessary so that this Agreement shall otherwise remain in full force and effect
and enforceable.
19.6 This Agreement shall be deemed to have been made in, and shall be construed
pursuant to the laws of the State of California and the United States without
regard to conflicts of laws provisions thereof, and without regard to the United
Nations Convention on the International Sale of Goods.
19.7 This Agreement is the complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels all previous written and
oral agreements and communications relating to the subject matter of this
Agreement.
19.8 The prevailing party in any action to enforce this Agreement will be
entitled to recover its attorney's fees and costs in connection with such
action.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals by an
officer duly authorized as of the date first above written.
[Company Name]
("Alliance Member")
By:__________________________________________________________
(print or type):_____________________________________________
Title:_______________________________________________________
Date:________________________________________________________
Portal Software, Inc.
By:__________________________________________________________
(print or type):_____________________________________________
Title:_______________________________________________________
Date:________________________________________________________
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Portal Confidential & Proprietary.
SCHEDULE A
1 Licensed Software
The following Licensed Software products and their associated online
documentation will be provided:
[_] Infranet(R) (includes Infranet Server, Infranet Developer, Infranet
Administrator, Infranet Payment Tool, Infranet Pricing Tool, Policy
Configuration Tool, Invoice Designer Tool);
[_] Infranet Terminal Server Manager;
[_] Infranet Mail Server Manager;
[_] MCIS Manager;
[_] Netscape(R) SuiteSpot(TM) Manager;
[_] Infranet IPT;
[_] Infranet IPT (manager only)
[_] Infranet Netflow Manager
[_] Other:
[_] Other:
2 Operating System/Hardware Platform
[_] Solaris-Unix
[_] HP-Unix
[_] Windows NT
3 Territory:
4 Designated Installation Sites
Development Site #1:
Development Site #2:
Development Site #3:
Development Site #4:
Development Site #5:
Demonstration Site #1:
Demonstration Site #2:
Demonstration Site #3:
Demonstration Site #4:
Demonstration Site #5:
Primary Backup Site:
5 License and Support Fees
5.1 License Fees
For each copy of the Licensed Software distributed to an End User, Alliance
Member will pay Portal Portal's current list price for such Licensed Software
less a discount of . After Alliance Member has paid Portal for
five (5) End User licenses, this discount shall be increased to .
5.2 Update Support Service Fees
Portal will provide update support services with respect to a particular End
User provided Alliance Member pays Portal an annual fee equal to
of the amount paid in license fees with respect to that End User within
thirty (30) days after the Effective Date of the End User Agreement and on each
anniversary thereafter.
5.3 Maintenance Support Service Fees
Portal will provide backup technical support services with respect to a
particular End User in accordance with Schedule D provided Alliance Member pays
Portal an annual fee equal to of the license fees paid to
Portal with respect to that End User within thirty (30) days after the Effective
Date of the End User Agreement and on each anniversary thereafter.
5.4 Non-compensated services
Unless otherwise agreed by the parties in writing, Alliance Member will not be
compensated for consulting services provided by Portal or for any upgrades or
additions to the licensed subscriber base occurring:
(a) more than one year after the Effective Date of the applicable End User
Agreement, or
(b) after Alliance Member has ceased providing First Level Technical Support
Services to the End User, whichever shall be later.
5.5 Portal's Price Lists
Portal maintains separate list price schedules for Domestic U.S. licenses and
International licenses of the Licensed Software and services. Portal may modify
its list price schedules from time to time. Portal will use reasonable
commercial efforts to provide Alliance Member with at least sixty (60) days
notice prior to any increase in the list price schedules. Any Licensed Software
distributed after the sixty (60) day notice period shall be subject to the
changed price.
Business Alliance Agreement Page 6 of 12
Portal Confidential & Proprietary.
6 Referral Fees
6.1 Lead Notice
Alliance Member may identify a potential business opportunity in the Territory
and may request the assistance of Portal in pursuing the opportunity by
completing a Customer Lead Notice in the form attached as Schedule A-1.
6.2 Qualified Project
6.2.1 Within fifteen (15) days after receipt of a Customer Lead Notice, the
parties will schedule a meeting to discuss the project identified therein,
further define each party's respective sales and marketing responsibilities,
establish rules of engagement and determine Alliance Members Compensation (as
defined in Section 6.3 below). Execution of a Customer Lead Notice by Portal
shall be entirely in Portal's discretion. Upon execution by Portal of the
amended Customer Lead Notice, the project shall be deemed a "Qualified Project".
6.2.2 Portal shall be under no obligation to consider a Customer Lead Notice if
the prospective customer is:
(a) a current user of Portal's products or
(b) an entity already being solicited by Portal or any of Portal's
distributors, dealers, agents or other manufacturing representatives.
6.3 Fees
6.3.1 With respect to each Qualified Project, Alliance Member will be entitled
to a fee ("Alliance Member Compensation") as specified in the Customer Lead
Notice signed by Portal provided
(a) the potential customer enters into a license agreement with Portal for the
Licensed Software within one hundred eighty (180) days from the time the
project is deemed a Qualified Project, and
(b) Alliance Member is chosen by end user to be the primary source of
professional services for the Qualified Project.
6.3.2 In no event shall the maximum Alliance Member Compensation paid per
Qualified Project exceed .
6.3.3 The amount of Alliance Member Compensation paid to Alliance Member by
Portal under this Section 6.3 will be based solely on the initial license
revenues received by Portal under the resulting license agreement and shall not
be based in any way on any additional software licensed by Portal to end user,
including Updates, or services provided to the end user by Portal.
Additionally, Portal may request that Alliance Member agree to a reduction in
the amount of the Alliance Member Compensation payable to Alliance Member as a
condition to licensing Licensed Software to an end user.
6.4 Payment
Within 30 days after Portal's receipt of payment for the Licensed Software from
the end user in connection with a Qualified Project, Portal will pay to Alliance
Member the applicable Alliance Member Compensation due in connection therewith.
In the event license fees paid by an end user with respect to a particular
Qualified Project are refunded by Portal for any reason, Alliance Member will
immediately refund to Portal any Alliance Member Compensation paid to it in
connection with the license fees refunded, or at Portal's option, Portal may
setoff such amounts from any other Alliance Member Compensation due and/or
payable.
6.5 Termination of Qualified Project
6.5.1 A Qualified Project may be terminated:
(a) by written agreement of the parties, unilaterally by either party provided
such party reasonably determines that a material dispute or claim involving
the Qualified Project has arisen,
(b) by Portal if it determines that the end user has inadequate credit or would
for any other reason be an inappropriate licensee of the Licensed Software,
(c) by Portal if the end user has, in Portal's opinion, made a commitment to
another vendor, or
(d) if Portal does not execute a license agreement with the end user within one
hundred eighty (180) days of the project being deemed a Qualified Project.
6.5.2 After a project's status as a Qualified Project has terminated, Alliance
Member agrees not to perform any sales or marketing assistance activities
on behalf of Portal with respect to that end user.
Business Alliance Agreement Page 7 of 12
Portal Confidential & Proprietary.
SCHEDULE A-1
LEAD NOTICE
Prospect's Company Name: ______________________________________________________________________________________
Address:_______________________________________________________________________________________________________
Contact Name:__________________________________________________________________________________________________
Telephone:_____________________________________________________________________________________________________
Fax:___________________________________________________________________________________________________________
E-mail_________________________________________________________________________________________________________
Prospect's Hardware:___________________________________________________________________________________________
Operating System:______________________________________________________________________________________________
Application (intended use of the Licensed Software):___________________________________________________________
Initial Subscriber Limit:______________________________________________________________________________________
Licensed Software components to be licensed:___________________________________________________________________
Portal's List Price for the Licensed Software:_________________________________________________________________
Estimated total project value (including maintenance and consulting services:__________________________________
Installation Site:_____________________________________________________________________________________________
Portal Alliance Member Contact:________________________________________________________________________________
Alliance Member Contacts:______________________________________________________________________________________
Address:_______________________________________________________________________________________________________
Telephone:_____________________________________________________________________________________________________
Fax:___________________________________________________________________________________________________________
E-mail:________________________________________________________________________________________________________
Rate of Alliance Member Compensation:__________________________________________________________________________
Effective Date of Lead Notice:_________________________________________________________________________________
Additional Rules of Engagement:________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
_______________________________________________________________________________________________________________
Business Alliance Agreement Page 8 of 12
Portal Confidential & Proprietary.
Lead Notice offered by:
_________________________________________
(Alliance Member)
_________________________________________
(Authorized Signature)
_________________________________________
(Print Name)
_________________________________________
(Title)
_________________________________________
(Date)
Lead Notice accepted by:
Portal Software, Inc.
_________________________________________
(Authorized Signature)
_________________________________________
(Print Name)
_________________________________________
(Title)
_________________________________________
(Date)
Business Alliance Agreement Page 9 of 12
Portal Confidential & Proprietary.
SCHEDULE B
MINIMUM END USER LICENSE TERMS AND CONDITIONS
1 Sublicenses
1.1 Each sublicense agreement between Alliance Member and its End Users
pertaining to the Licensed Software shall provide without limitation:
1.2 Sublicensee may use the Licensed Software only in object code form in
accordance with the Documentation, at a previously designated production site to
support the number of Subscriber's licensed for the Licensed Software;
1.3 Sublicensee may not transfer or duplicate the Licensed Software except for
temporary transfer in the event of CPU malfunction and a single backup or
archival copy;
1.4 Sublicensee may not sell, lease, license, sublicense, transfer, assign,
encumber or otherwise deal with any portion of the Licensed Software or
Documentation;
1.5 Sublicensee may not use the Licensed Software to provide data processing
services to third parties, commercial timesharing, rental or sharing
arrangements, or on a "service bureau" basis or otherwise use or allow others to
use the Licensed Software for the benefit of any third party;
1.6 Sublicensee may not use the Licensed Software for any purpose outside of
the scope of the authorized use Application (which Application must be approved
in writing by Portal), which shall be specifically set forth in the Sublicense
Agreement;
1.7 Except to the minimum extent necessary to comply with EC Directive, if
applicable, or other applicable legislation, Sublicensee shall not decompile,
disassemble, or reverse engineer any portion of the Licensed Software or attempt
to discover any source code or underlying ideas or algorithms of any Licensed
Software;
1.8 Title to the Licensed Software does not pass to Sublicensee;
1.9 Portal shall not be liable for any damages, whether direct, indirect,
incidental or consequential arising from the use of the Licensed Software;
1.10 Sublicensee, at the termination of the Agreement, shall discontinue use of
and destroy or return to Portal the Licensed Software, related Licensed Software
Documentation and all archival or other copies of the Licensed Software;
1.11 Customer may not publish any results of benchmark test runs on the Licensed
Software;
1.12 With respect to Licensed Software for use in the United States, Sublicensee
may not transfer the Licensed Software outside of the United States; for
Licensed Software licensed for use outside of the United States, Sublicensee
shall comply fully with all relevant export laws and regulations of the United
States to assure that neither the Licensed Software, nor any direct product
thereof, shall be exported, directly or indirectly, in violation of the United
States or other applicable law;
1.13 Portal is a third party beneficiary to the Sublicense Agreement;
1.14 The Licensed Software is not specifically developed or licensed for use in
any nuclear, aviation, mass transit, or medical application or in any other
inherently dangerous applications. Portal shall not be liable for any claims
for damages arising from such use if the Sublicensee uses the Licensed Software
for such applications. Sublicensee agrees to indemnify and hold Portal harmless
from any claims for losses, costs, damages or liability arising out of or in
connection with the use of the Licensed Software in such applications.
1.15 Sublicensee shall not use any Licensed Software, or allow the transfer,
transmission, export, or re-export of any Licensed Software or portion thereof
in violation of any export control laws or regulations administered by the U.S.
Commerce Department, OFAC, or any other government agency. All the limitations
and restrictions on the Licensed Software in this Agreement also apply to the
Documentation.
1.16 Unless otherwise approved by Portal in writing, Subscribers shall be
counted as follows: "Subscriber" means an individual customer record account
object ("Customer Record") in each database used in connection with the Licensed
Software ("Licensed Software Database"). The total number of Subscribers is
exactly equal to the number of Customer Records in the Licensed Software
database.
2 Evaluation Licenses
Each Evaluation License Agreement for the Licensed Software between Alliance
Member and its End Users shall contain all of the provisions set forth above for
Sublicenses plus will further provide:
2.1 The beginning and ending dates of the Licensed Software evaluation period;
2.2 All copies of the Portal software will be removed or destroyed upon
completion of the evaluation period;
2.3 Any evaluation copy of the Licensed Software not removed or returned to the
Alliance Member at the end of such period shall be deemed to be licensed and
license fees with respect thereto shall be due.
Business Alliance Agreement Page 10 of 12
Portal Confidential & Proprietary.
SCHEDULE C
MINIMUM MARKETING REQUIREMENTS
Alliance Member commits to use its best commercial efforts to market and promote
the Licensed Software throughout the Territory. In furtherance of this
objective, Alliance Member agrees to undertake, without limitation, the
following actions:
. Will establish a Portal Competency and Demonstration Center in two (2)
cities (locations to be determined) within six (6) months of the Effective
Date;
. Will provide sales and technically knowledgeable employees to display and
demonstrate the Licensed Software at no less than two (2) major trade shows
within one year of the Effective Date hereof;
. Once per year at least five (5) of Alliance Member's staff will attend
Portal's standard Basic and Advanced Infranet training course in Cupertino
California. Alliance Member will pay for such training at Portal's standard
rates with a twenty five percent (25%) discount;
. Will designate a primary Alliance Manager for all global account issues.
The current contacts are:
For Portal: For Alliance Member:
________________________________ ________________________________
(Name & Title) (Name & Title)
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ________________________________
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ________________________________
Telephone:______________________ Telephone:______________________
Fax:____________________________ Fax:____________________________
Email:__________________________ E-mail:_________________________
. Alliance Member designates the following person as the single point of
contact for Licensed Software technical support:
Name/Title:_____________________ Address:________________________
Phone Number:___________________ ________________________________
Email:__________________________ ________________________________
. Alliance Member designates the following person as the backup point of
contact for Licensed Software technical support:
Name/Title:_____________________ Address:________________________
Phone Number:___________________ ________________________________
Email:__________________________ ________________________________
. Will dedicate at least three (3) sales and technical personnel to the
Alliance activities in the Territory within six (6) months of the Effective
Date;
. Will be responsible for its own cost of sales;
. Will develop collateral materials that support the Application Solution
within six (6) months of the Effective Date;
. Will develop a joint marketing and sales activity plan mutually acceptable
to both parties;
. Will issue a joint press release (mutually acceptable to both parties)
announcing the Portal relationship within sixty (60) days of the Effective
Date;
. Will issue joint press releases announcing business wins that is mutually
acceptable to both parties;
. Will add a Portal URL pointer in the Alliance or Alliance Member section of
its external web site within six (6) months of the Effective Date.
Business Alliance Agreement Page 11
Portal Confidential & Proprietary.
SCHEDULE D
ALLIANCE MEMBER'S FIRST LEVEL SUPPORT OBLIGATIONS
1 Alliance Member's Technical Support Team
1.1 As a precondition to being deemed authorized to provide First Level
Support to End Users, Alliance Member agrees to establish a dedicated
Licensed Software Technical Support Team ("Technical Support Team") which
shall be comprised of the following personnel:
1.2 First Level Support Engineers
1.2.1 Alliance Member agrees to train and maintain at least two (2) Licensed
Software First Level Support Engineers at all times during the term of
this Agreement and during the term of any other Portal-related agreement,
including without limitation any sublicense of the Licensed Software,
whereby Alliance Member has undertaken the obligation to provide First
Level Support.
1.2.2 Alliance Member agrees to take all reasonable steps to ensure that the
First Level Engineers will be trained on Infranet and related support
services and installed within sixty (60) of the Effective Date of this
Agreement.
1.2.3 Each First Level Support Engineer must be Portal Certified before he/she
will be deemed qualified to be installed to provide First Level Support.
"Portal Certified" means that the First Level Support Engineer will have
been issued the Portal Certificate of Competency which is awarded to
candidates who have successfully completed Beginning and Advanced
Infranet Developer Training and any other classes made available by
Portal. All First Level Support Engineers will be required to maintain
their Portal Certified status by complying with Portal's standard
continuing education requirements, including without limitation,
attending Portal's Product Update classes at least once per year.
2 Alliance Member's First Level Support Commitments
2.1 In fulfillment of its First Level Support obligations Alliance Member's
Technical Support Team will, without limitation;
2.2 Use its best efforts to adequately and efficiently respond to and
successfully resolve End User technical problems;
2.3 Alliance Member's Technical Support Team will obtain all necessary
information regarding an End User's configuration, log files, screen
dumps, and any other additional data required to troubleshoot and/or
reproduce a reported problem. Research the Program Documentation,
including the Portal knowledge base, FAQ's database and "White Papers" in
order to gain a more thorough understanding of the Licensed Software and
in the course of troubleshooting and resolving reported problems;
2.4 Compile a full description of a reported problem, including its initial
diagnosis before seeking backup support from Portal;
2.5 Initiate appropriate problem escalation procedures as set forth in
Portal's standard Gold and Silver level support guidelines, policies and
procedures;
2.6 Promptly report identified bugs to Portal, provide detailed instructions
on how to reproduce such bugs and will cooperate with Portal, including
obtaining and/or supply such information as may be reasonably necessary
in order to debug such bugs;
2.7 Report all End User requested product enhancements so that Portal may
determine the appropriateness of incorporating such enhancements into
future product releases;
2.8 Provide technical assistance to End Users via email, the internet through
an established web page or by telephone during Alliance Member's normal
business hours (8:00 AM to 5:00 PM Monday through Friday);
2.9 Will provide End Users with 7x24 support packages;
2.10 Will designate one senior level First Level Support Engineer who will
serve as the primary support liaison with Portal and one backup First
Level Support Engineer;
2.11 Upon request, Alliance Member will provide Portal with monthly management
reports which shall include for the preceding calendar month, among other
things: the number of support-related calls received, the initial
response times for such calls, the initial diagnosis, the ultimate
diagnosis, the level of severity ascribed, the total time elapsed from
when the initial End User report of the problem was received until the
problem was cured and a description of how the cure was effected;
2.12 Will promptly inform its End Users of newly released patched and
maintenance upgrades.
3 Portal's Backup Support Commitments:
3.1 Portal will provide a designated support staff to provide backup support
and address escalated issues;
3.2 Portal will provide support for escalated issues on the base Infranet
product between our normal business hours (8:00 AM to 5:00 PM Monday
through Friday) in connection with Silver Level Support End User accounts
and 7x24 in connection with Gold Level End User accounts;
3.3 Portal will provide fixes or patches and status for serious bugs in base
Infranet product as set forth in the Support Terms;
3.4 Portal will make available a listing of problems, fixes, workarounds
and/or updates that it makes generally available;
3.5 In the event Portal makes future modifications to the Support Terms,
Portal will provide Alliance Member with reasonable prior written notice
of such modifications.
Business Alliance Agreement Page 12