CONFIDENTIAL TREATMENT - REDACTED VERSION
CORIO INC.
LICENSE AND HOSTING AGREEMENT
This License and Hosting Agreement (the "AGREEMENT") is made and
entered into as of December 13, 1999 ("EFFECTIVE DATE") by and between Corio
Inc., a Delaware corporation, having its principal place of business at ▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CORIO") and Changepoint, Inc., a
Delaware corporation having a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("CHANGEPOINT").
BACKGROUND
A. Changepoint is the owner or has the right to license certain
proprietary software products (the "SOFTWARE" as further defined
below); and
▇. ▇▇▇▇▇ wishes to obtain a license to use and host the Software on the
terms and conditions set forth herein in connection with the hosting
services that Corio will provide to its Customers (as defined below)
and Changepoint wishes to ▇▇▇▇▇ ▇▇▇▇▇ such a license on such terms;
C. The parties further wish to jointly market and promote the other
party's software and/or services as well as provide support services to
Corio and its Customers in accordance with this Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
1. DEFINITIONS.
The following terms shall have the following meanings:
1.1 "SOFTWARE USER" means a named user of the Corio Services worldwide to
whom a user identification number and password has been assigned, which
permits that user to access and use the Software on a designated Corio
Server. The identification number and password used by a Software User
is reusable and reassignable and may be used and transferred by Corio,
in accordance with the licenses granted below, between Customers as one
Customer discontinues the Corio Services and another Customer
subscribes.
1.2 "ASP" means Application Service Provider.
1.3 "APPLICATION MANAGEMENT REVENUE" means all revenue Corio receives from
Customers for use of the Software and basic support of the Software
provided at no additional charge to Customers (Level 1 and Level 2
support as defined in Exhibit C hereto), operational support of the
Software and basic infrastructure support (hardware, database and
operating system) for the Software, less taxes, freight, insurance,
refunds or credits and other non-product items.
1.4 "CORIO SERVERS" means the unlimited number of computer servers owned or
operated by or for Corio in North America which will contain the
installed Software (as defined below) for access by Customers in
connection with the Corio Services.
1.5 "CORIO SERVICES" means the hosting services offered by Corio to its
Customers in which Corio allows Customers to access the Corio Servers.
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1.6 "CUSTOMER(S)" means one or more customers of the Corio Services having
its principal executive offices in North America who obtains a
sublicense from Corio to use the Software by accessing one or more
Corio Servers.
1.7 "DEMONSTRATION SOFTWARE" means copies of the Software which are for
demonstration purposes only and which contain sample data and
transactions.
1.8 "DOCUMENTATION" means any on-line help files or written instruction
manuals regarding the use of the Software.
1.9 "RELATIONSHIP MANAGERS" means the appointed employee of each party, as
set forth on EXHIBIT A attached hereto and made a part hereof, who
shall be the primary contact for implementing and administering the
terms and conditions of this Agreement.
1.10 "SOFTWARE" means Changepoint's proprietary software described in
EXHIBIT A attached hereto and made a part hereof, in object code form
only, and any Updates or Upgrades (as defined below) thereto. The
Software shall also include any Application Programming Interfaces
("API") provided by Changepoint to Corio, but such API intellectual
property shall not be sublicenseable to Customers.
1.11 "TERRITORY" means throughout the world.
1.12 "UPDATE(S)" means any error corrections, bug fixes, modifications or
enhancements to the Software made generally available by Changepoint to
its licensees, which are indicated by a change in the numeric
identifier to the Software in the digit to the right of the decimal, or
any error corrections, bug fixes, modifications or enhancements of the
Software.
1.13 "UPGRADE(S)" means a release, function or version of the Software
designated as such by Changepoint which contains new features or
significant functional enhancements to the Software, which are
indicated by a change in the numeric identifier for the Software in the
digit to the left of the decimal, which Upgrade is provided to
Changepoint's installed customer base for the Software. For the
purposes of this Agreement, "Software Support and Maintenance" means
those services listed in Section 5.3 of this Agreement and EXHIBIT C
and the provision of Updates and Upgrades as called for by this
Agreement.
1.14 "PSA APPLICATION" means a commercially available suite or collection of
integrated proprietary software applications marketed as a suite or a
combination of software products which offer substantially the
following functionality specifically designed for information
technology professional services users : (i) time and expense, which
allows users to enter and modify time and expenses associated with a
project/task for a time period, approve time and expenses entered, and
determine who has submitted time and expense reports, (ii) project
accounting and billing, which allows users to apply cost and billing
rates to time entered for projects, generate client invoices based on
terms and conditions of engagement, track amounts billed and earned for
each project, feed invoice data to an accounts receivables system, and
feed cost and billing accounting entries to a general ledger system,
(iii) project management, which allows users to create work breakdown
structure, schedule dates and resource assignments for project, record
project and task status, and create reports to monitor project
progress, (iv) resource management, which allows users to assign
resources to projects based on skills and availability, and create
reports to monitor and manage resource utilization, (v) engagement
management, which allows users to create billing terms and conditions
for a client, and create reports to monitor and manage engagement
billing, (vi) opportunity management, which allows users to track
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customers/prospects, sales opportunities and sales activities, and
forecast sales by various criteria, and (vii) marketing campaign
management, which allows users to create marketing campaigns, track
campaign effectiveness, and manage marketing lists.
2. GRANT OF RIGHTS.
2.1 HOSTING SOFTWARE LICENSE. Subject to the terms and conditions of this
Agreement, Changepoint hereby grants to Corio a fee-bearing,
irrevocable, nonexclusive, nontransferable (except in accordance with
Section 14.1 of this Agreement) license in the Territory to (i)
reproduce the Software in machine executable object code format only
for installation on the Corio Servers; (ii) install multiple copies of
the Software on Corio's Servers which will be made remotely accessible
to Corio's Customers for their internal business purposes, (iii) permit
limited access to and use of the Software by Customers through Corio
Servers solely for such Customer's internal business purposes; (iv)
sublicense an unlimited number of Customers to access and use the
Software only through the installation on Corio Servers solely for such
Customer's internal business purposes; and (v) use Changepoint's tools
and utilities, if any, subject to any restrictions placed on the
Changepoint by third party software providers and payment of any
applicable fees required by such third parties, to configure, integrate
and manage the Software. Corio shall not authorize Customers to
download or reproduce the Software for use except as necessary in
connection with the Corio Services. Except as specifically authorized
by this Agreement, no license is granted under this Agreement to Corio
to distribute the Software to its Customers or for use other than as
part of the Corio Services.
2.2 INTERNAL USE LICENSE FOR PRODUCTION, TESTING, DEVELOPMENT, UPGRADE,
REPORTING AND TRAINING. Subject to the terms and conditions of this
Agreement, Changepoint grants to Corio a nonexclusive, nontransferable
(except in accordance with Section 14.1 of this Agreement),
royalty-free, fully paid up license in the Territory to reproduce,
install and use additional copies of the Software, Documentation, and
Software tools and utilities if any, subject to any restrictions placed
on the Changepoint by third party software providers and payment of any
applicable fees required by such third parties, in machine executable
object code for production, testing, development, upgrade, reporting
and training for the purpose of allowing the Software to be made
available to Customers as part of the Corio Services. This license
includes the right to integrate the Software with Corio's system
software and other hosted applications in connection with providing the
Software to Customers as part of the Corio Services.
2.3 INTERNAL USE LICENSE FOR CORIO'S INTERNAL BUSINESS OPERATIONS.
Changepoint grants to Corio a nonexclusive, nontransferable (except in
accordance with Section 14.1 of this Agreement), royalty-free, fully
paid-up license to install and use the Software, Documentation, and
Software tools and utilities if any, for an unlimited number of Corio
users, subject to any restrictions placed on the Changepoint by third
party software providers and payment of any applicable fees required by
such third parties, in machine executable object code for Corio's
internal business purposes. Corio's internal use license under this
Section 2.3 is subject to and shall be in accordance with the terms and
conditions of Changepoint's standard License Agreement, a copy of which
is attached hereto as EXHIBIT G and made a part hereof. The provisions
of EXHIBIT G shall apply only to the internal use license granted in
this Section 2.3 and not to any other licenses granted to Corio in this
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CONFIDENTIAL TREATMENT
Agreement. Any conflict or inconsistency between the terms of this
Agreement and the terms of the license set forth in EXHIBIT G with
respect to the internal use license granted in this Section 2.3 shall
be controlled by the terms of this Agreement. Notwithstanding anything
to the contrary in Section 11 of this Agreement, the internal use
license in this Section 2.3 shall remain in effect during the term of
this Agreement and for a period of nine (9) months after termination or
expiration of this Agreement.
2.4 DEMONSTRATION LICENSE. Subject to the terms and conditions of this
Agreement, Changepoint hereby grants to Corio a nonexclusive,
nontransferable (except in accordance with Section 14.1 of this
Agreement) royalty-free, fully paid up right and license in the
Territory, on Corio Servers, to make a reasonable number of copies of
the Demonstration Software solely for demonstration purposes to
potential Customers. Demonstration Software shall be made available to
Corio's sales personnel and the parties agree to cooperate to make the
Changepoint demonstration database available to Corio sales personnel
on an ongoing basis. Corio shall not distribute any demonstration
copies of the Software. Corio shall not demonstrate the Software to any
one Customer for more than sixty (60) days from the start of that
Customer demonstration, and Corio shall not demonstrate the Software to
more than ten (10) Software Users at any one time. Further, the
demonstration copies shall not permit the entry of additional data.
2.5 DISTRIBUTION LICENSE: Corio shall have the right to resell licenses for
the Software to any Corio Customer according to the terms and
conditions of Changepoint's standard Distribution Agreement
("Changepoint's Distribution Agreement"). Corio and Changepoint shall
enter into Changepoint's Distribution Agreement within sixty (60) days
following the Effective Date, the terms of which shall be in
substantial accordance with the copy of Changepoint's Distribution
Agreement provided to Corio. Any conflict or inconsistency between the
terms of this Agreement and the terms of Changepoint's distribution
license with respect to the distribution license granted in this
Section 2.5 shall be controlled by the terms of this Agreement. Under
Changepoint's Distribution Agreement, Changepoint shall give a ***
discount from the then-current Changepoint list price for
such Software licenses to Corio for the first Two Million Dollars
($2,000,000U.S.) of such cumulative calendar year sales based on
Changepoint's list price, and a *** discount based on
Changepoint's then-current list price thereafter. This pricing formula
shall apply for each calendar year during the term of this Agreement
which Corio has distribution rights under this Section 2.5. For those
Corio Customers who purchase Changepoint Software licenses from Corio
pursuant to this Section 2.5 and Changepoint's Distribution Agreement,
Corio shall pay to Changepoint a Software Support and Maintenance fee
equal to *** of Changepoint's standard support and
maintenance services for the Software Support and Maintenance services
provided by Changepoint as specified in Section 5.3 of this Agreement
and EXHIBIT C attached hereto and made a part hereof, and for Updates
and Upgrades. Subject to Corio's payment of the Software support and
maintenance fee as set forth in this Section 2.5, Changepoint's
Software Support and Maintenance obligation with respect to Software
distributed by Corio pursuant to this Section 2.5 shall continue after
termination or expiration of this Agreement with respect to all
Software Users granted access to the Software prior to termination or
expiration of this Agreement, for the remaining duration of each such
Software Users' rights to use the Software pursuant to agreements
between Corio and its Customers. Under no circumstances shall
Changepoint contact Corio Customers regarding a non-hosting license
sale, unless requested to do so by Corio. Further, if a Corio Customer
contacts Changepoint to purchase the Software license independent of
the Corio Services, Changepoint shall immediately refer that Customer
to
*** The omitted material has been filed separately with the
Securities and Exchange Commission pursuant to a request for
confidential treatment.
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Corio. Changepoint shall not be entitled to share in any Application
Management Revenue received by Corio related to or arising from hosting
services provided to Customers which obtain a license to the Software
from Changepoint pursuant to this Section 2.5. Corio's right to collect
fees from Customers under the Changepoint licenses under this Section
2.5 will expire upon termination of the Corio contracts with its
Customers for such Software.
2.6 LICENSE AGREEMENTS. Corio shall make the Software on the Corio Servers
remotely accessible to Customers under the then-current terms of its
standard Customer license agreement. Each such Customer license shall,
at a minimum, contain the provisions set forth in EXHIBIT E attached
hereto and made a part hereof ("CUSTOMER LICENSE AGREEMENT TERMS"), or
the substantial equivalent thereof. As to each Software User who is
provided access to the Software, Corio or its Customers shall secure
the Software User's consent to an end user agreement with terms at
least equivalent to those in EXHIBIT E hereto.
2.7 RESTRICTIONS. Corio may not copy, distribute, reproduce, use or allow
access to the Software except as explicitly permitted under this
Agreement, and Corio shall not, nor will it permit any third party to,
modify, adapt, translate, prepare derivative works from, decompile,
reverse engineer, disassemble or otherwise attempt to derive source
code from the Software or any internal data files generated by the
Software.
2.8 OWNERSHIP. Changepoint and its licensors hereby retain all of their
right, title, and interest in and to the Software and Documentation,
including all copyrights, patents, trade secret rights, trademarks and
other intellectual property rights therein. All rights not expressly
granted hereunder are reserved to Changepoint and its licensors. The
Software and Documentation and all copies thereof are licensed, not
sold, to Corio. All changes, modifications and enhancements or
derivative works made to the Software or Documentation by Corio or
Changepoint, or jointly by the parties, shall be owned by Changepoint,
including all copyrights, patents, trade secret rights, trademarks and
other intellectual property rights therein. Any works, inventions and
developments, including but not limited to interface code, created by
Corio or its contractors which enables the Software to work with and in
conjunction with Corio's system software or Corio's other hosted
applications, including all copyrights, patents, trade secret rights,
trademarks and other intellectual property rights therein shall be
owned by Corio. Ownership of any works to be created jointly by the
parties, including all copyrights, patents, trade secret rights,
trademarks and other intellectual property rights therein, shall be
decided by the parties at the commencement of such joint efforts. Each
of the parties shall, from time to time, execute and deliver all
documents and other instruments reasonably requested by the other party
to perfect such other party's ownership of the interests set forth in
this Section 2.8.
2.9 NEW PRODUCTS. Updates and Upgrades to the Software are subject to the
terms of this Agreement and are included in the applicable Software
Support and Maintenance fees payable by Corio. Changepoint and Corio
may, in the future, agree that new products and solutions offered by
Changepoint may be added to this Agreement according to the license
fees and other terms and conditions as the parties may agree.
2.10 PREFERRED RELATIONSHIP. During the one (1) year period commencing on
the Effective Date (i) Changepoint and its affiliates, to the extent
they publicly promote, market or advertise hosting services for the
Software, will Publicly Promote Corio as its preferred hosting supplier
and partner for the Software and will, in any non-public marketing or
promotion of the Software, treat Corio as its preferred partner and
supplier of hosting services for the Software, and (ii) Corio and its
affiliates, to the extent they publicly promote, market or
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CONFIDENTIAL TREATMENT
advertise the use of a PSA Application in conjunction with the Corio
Services, will Publicly Promote the Software as their preferred PSA
Application and will, in any non-public marketing or promotion of
the hosting services offered by Corio, treat Changepoint as their
preferred supplier and partner for PSA Applications. In this Section
2.10, the term "Publicly Promote" means any marketing, promotion or
solicitation of business made by any means in public or intended for
reception by the public including, without limitation, in published
sales, advertising and marketing materials, materials or statements
posted on websites, public announcements and press releases, but
does not include sales and marketing materials intended for
reception by a specific customer or prospective customer, any
confidential solicitation of business from a specific customer, nor
any referral from a third party to solicit a specific customer.
Should either party be in violation of the terms of the Preferred
Relationship set forth in this Section 2.10, both parties agree that
the sole and exclusive remedy for such breach is for the accused
party to diligently use best commercial efforts to cease the
activities in violation of this Section 2.10 and to correct the
violation and, as soon as reasonably possible, cease to distribute
or publish and destroy "Offensive Materials" after receiving written
notice from the other party, and to provide such other party with
commercially reasonable evidence that it has done so. "Offensive
Materials", for purposes of this provision, means published sales,
advertising and marketing brochures and collateral, statements
posted on websites and public announcements and press releases or
any other promotional materials, all intended for viewing by the
public and published by or with the concurrence of the accused party.
2.11. MARKET DEFINITION. During the term of this Agreement, Corio agrees not
to provide the Software in connection with Corio Services or distribute
the Software under Section 2.5 of this Agreement to the following
companies or their subsidiaries: ***. Corio and Changepoint agree that
on an semi-annual basis, this list of companies will be reviewed by
the parties and each party agrees that its consent to the other
party's request for changes to this list (additions and deletions)
will not be unreasonably withheld or delayed.
3. DELIVERY OF SOFTWARE.
3.1 DELIVERY AND ACCEPTANCE. Changepoint shall issue to Corio, via
electronic means of delivery, as soon as practicable, one (1)
machine-readable copy of the Software, along with one (1) copy of the
on-line Documentation. Changepoint will provide Corio with five (5)
written copies of the Documentation at no cost, and any additional
written copies at Changepoint's standard charges. Corio acknowledges
that no copy of the source code of the Software will be provided to
Corio. Within one hundred twenty (120) days after delivery of the
Software, Corio shall test the Software for conformance with the
Documentation ("Acceptance Test"). If the Software performs in
substantial accordance with the Documentation, then Corio shall notify
Changepoint in writing of its acceptance of the Software. In the event
Corio finds material errors or defects with the Software, Corio shall
notify Changepoint in writing of such errors or defects and provide
adequate detail to facilitate Changepoint replicating the error or
defect. Upon receipt of written notice, Changepoint shall have fifteen
(15) days to correct the defect, reinstall the Software at the Corio
site and re-perform the Acceptance Test. If Corio does not accept the
Software after the second Acceptance Test, a third Acceptance Test will
be performed. If after the third
*** The omitted material has been filed separately with the
Securities and Exchange Commission pursuant to a request for
confidential treatment.
6
Acceptance Test Corio does not accept the Software, Corio may, at
its sole option, elect to (i) repeat the Acceptance Test in
accordance with the provisions of this Section 3.1 as many times as
Corio chooses or (ii) terminate the Agreement and receive a refund
of any fees paid to Changepoint as of such date. Termination of this
Agreement by Corio for non conformance of the Software to the
Documentation under this Section 3.1 shall, upon a refund of all
fees paid to Changepoint, be Corio's sole and exclusive remedy
against Changepoint for any nonconformance of the Software with the
Documentation. Both parties acknowledge that any professional
services provided to Corio subsequent to the installation and
acceptance of the Software are non-essential for the purpose of the
acceptance of the Software.
3.2 NEW VERSIONS. Changepoint shall use commercially reasonable efforts to
provide Corio with any pre-release versions of relevant Updates or
Upgrades of the Software. Changepoint shall make these versions
available to Corio to preview at the earliest possible date.
Changepoint shall provide all such Updates and Upgrades to Corio free
of additional charge and Corio shall provide any such Updates and/or
Upgrades to its Customers within twenty four (24) months after their
release to Corio. Changepoint agrees to make changes to the Software
such that all functionality currently available in the Software will be
one hundred percent (100%) thin client and browser-based as set forth
in the schedule attached hereto as EXHIBIT F and made a part hereof.
Changepoint agrees to promptly provide existing APIs for the Software
to Corio and use commercially reasonable efforts to develop and provide
applicable APIs for the web-enabled version of the Software.
3.3 ADDITIONAL MATERIALS. Changepoint shall use all commercially reasonable
efforts to promptly provide Corio with, at a minimum, the following:
(i) release notes; (ii) beta releases; (iii) contacts at beta
customers, when requested by Corio and subject to the approval of the
Changepoint; (iv) proactive bug notification; (v) Software patches;
(vi) release documentation including technical reference manuals and
user guides; and (vii) all applicable set-up data, data structures and
other files relevant to installing and integrating the Software, but
not including source code. These materials shall be provided at no cost
to Corio.
4 FEES.
4.1 LICENSE FEES. In consideration for the licenses granted to Corio
pursuant to Section 2 (except Section 2.5) of this Agreement, Corio
shall pay the revenue sharing fees specified in EXHIBIT B hereto.
Payment terms of such revenue sharing fees shall be as set forth in
EXHIBIT B hereto.
4.2 SOFTWARE SUPPORT AND MAINTENANCE FEES. Except with respect to Software
Support and Maintenance under the distribution license granted to Corio
pursuant to Section 2.5 of this Agreement, Corio shall pay to
Changepoint a Software Support and Maintenance fee for the support
services to be provided by Changepoint specified in Section 5.3 of this
Agreement and EXHIBIT C attached hereto and made a part hereof, and
Updates and Upgrades, according to the fees set forth in EXHIBIT B
hereto. Payment terms of Software Support and Maintenance fees shall be
as set forth in EXHIBIT B hereto. Software Support and Maintenance
shall automatically continue during the term of this Agreement and
thereafter for the remaining term of any contracts Corio has with its
Customers to continue providing the Corio Services, provided that Corio
continues to pay the revenue sharing fees as provided in EXHIBIT B
hereto.
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CONFIDENTIAL TREATMENT
4.3 TAXES. All fees are exclusive of any sales taxes, Goods and Services
use taxes, other use taxes and any other taxes and charges of any kind
imposed by any federal, state, provincial or local governmental entity
for products and services provided under this Agreement, and Corio is
responsible for payment of all taxes concerning the Corio Services,
excluding taxes based solely upon Changepoint's income or revenue.
4.4 AUDIT RIGHTS. Corio shall keep true and accurate books of accounts and
records for determining the amounts payable to Changepoint under this
Agreement. Such books and records shall be kept for at least three (3)
years following the end of the calendar month to which they pertain,
and shall be open for inspection by an independent certified public
accountant reasonably acceptable to Corio, and made subject to Corio's
standard non-disclosure agreement, for the sole purpose of verifying
the amounts payable to Changepoint under this Agreement. Such
inspections may be made no more than once each calendar year, at
reasonable times and upon reasonable notice. Changepoint shall bear all
costs and expenses of such inspection. If any such inspection discloses
a shortfall or an overpayment, the appropriate party shall promptly pay
the amount of such shortfall or refund such overpayment. In addition,
if any such inspection reveals an underpayment of more than five
percent (5%) for the period under audit, Corio shall reimburse
Changepoint for the reasonable cost of the examination.
4.5 REPORTING. Within thirty (30) days following the end of each calendar
month, Corio will submit to Changepoint a report in a form reasonably
acceptable to both parties setting forth the number of Customers and
Software Users which have been licensed to use the Software during the
preceding month, as well as the Application Management Revenue received
by Corio during the preceding month. The report shall also set forth
all amounts collected by Corio pursuant to the Distribution License
granted under Section 2.5 of this Agreement during the preceding month,
and a calculation of all amounts due to Changepoint for such
distributions by Corio during the preceding month.
4.6 INTEREST. In the event any payment by Corio under this Agreement is not
made within thirty (30) calendar days of its due date, interest on any
such unpaid amount shall accrue at a rate of eighteen percent (18%) per
annum, or the maximum amount permitted by law, whichever is less.
4.7 FEE EXCEPTIONS. Changepoint agrees that for all Software Users of the
Corio Services that Corio must use software products from *** .
5 INSTALLATION SUPPORT, MAINTENANCE AND TRAINING.
5.1 INSTALLATION. Changepoint shall provide Corio with access to full-time
operations personnel at no charge to Corio as part of the installation
project as described in the "Corio, Inc.
*** The omitted material has been filed separately with the
Securities and Exchange Commission pursuant to a request for
confidential treatment.
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CONFIDENTIAL TREATMENT
Statement of Work", dated December 9, 1999 ("Statement of Work")
incorporated herein by reference.
5.2 IMPLEMENTATION. Changepoint shall provide Corio with sufficient access
to Changepoint's professional services organization during the first
four (4) implementations of the Software (Corio's internal
implementation as defined in Section 2.3 of this Agreement plus
implementation by three (3) Corio Customers) conducted by Corio and its
Customers subject to the payment by Corio of Changepoint's standard
professional services fee at a *** discount.
Additionally, during the term of this Agreement the parties shall meet
periodically to discuss Updates and Upgrades to the Software to better
support Corio's and its Customers' specific application requirements,
to be provided at no charge to Corio. Changepoint agrees to share its
consulting implementation methodologies with Corio. Corio acknowledges
that such consulting methodologies are confidential information of
Changepoint and shall be used by Corio solely in connection with the
Software when offered as part of the Corio Services. Changepoint agrees
to provide Corio with proposal development materials.
5.3 SOFTWARE SUPPORT AND MAINTENANCE. Changepoint shall provide Corio with
support described in EXHIBIT C hereto, and maintenance in the form of
Updates and Upgrades, subject to Corio's payment of the fees set forth
in EXHIBIT B hereto. Corio shall be responsible for providing its
Customers with routine technical support of the Software (Levels 1 and
2) as described in the schedule set forth in EXHIBIT C hereto.
Changepoint agrees to provide Level 2 support and maintenance to Corio
for the first four (4) months after the first Customer commences using
the Software in connection with the Corio Services. Corio shall
escalate any technical support questions or problems it is unable to
answer or resolve directly to Changepoint for Changepoint to resolve as
described in the schedule set forth in EXHIBIT C hereto. The support
described in this Section 5.3 and EXHIBIT C hereto shall be provided to
Corio, but Changepoint shall have no obligation to provide any Software
Support or Maintenance services to other third parties. Subject to
Corio's payment of the Software revenue sharing fees as set forth in
EXHIBIT B hereto and the Software Support and Maintenance fee as
provided in Section 2.5 of this Agreement, Changepoint's Software
Support and Maintenance obligation shall continue after termination or
expiration of this Agreement with respect to all Software Users granted
access to the Software prior to termination or expiration of this
Agreement for the remaining duration of each such Software Users'
rights to use the Software pursuant to agreements between Corio and its
Customers. Corio shall assign up to five (5) trained persons to contact
Changepoint on Software Support and Maintenance matters within the
scope of Changepoint's responsibility under EXHIBIT C.
5.4 MANAGEMENT MEETINGS. The parties agree to meet either in person or via
teleconference on no less than a quarterly basis to discuss, without
limitation, engineering, feature-functionality and architecture-related
issues as they pertain to the Software. The specific topics of the
meetings will be determined on a meeting-by-meeting basis. Each party
shall appoint a product manager to coordinate these meetings.
Changepoint may, where appropriate, provide Corio with information
relevant to future Software development efforts, including product and
service roadmap, rollout strategy, and plans for future development
efforts. The product managers shall be those persons set forth on
EXHIBIT A hereto or as subsequently agreed by the parties. The parties
also agree to discuss the amount of Application Management Revenue
received by Corio for Corio Services related to the Software and, at
the end of eighteen (18) months after the Effective Date, the parties
agree to
*** The omitted material has been filed separately with the
Securities and Exchange Commission pursuant to a request for
confidential treatment.
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CONFIDENTIAL TREATMENT
discuss the license fee structure set forth in EXHIBIT B attached
hereto. Corio agrees to use commercially reasonable efforts to
maximize Application Management Revenue received from Customers for
the Corio Services.
5.5 TRAINING. Changepoint shall provide Corio with training as reasonably
requested by Corio to train Corio's technical and support personnel
regarding implementation, use and operation of the Software at no
charge to Corio as set forth in the Statement of Work. Upon completion
of the Statement of Work, during the first year of this Agreement,
Changepoint shall provide training to Corio employees at Corio's
request subject to payment of Changepoint's standard training fees at a
*** discount. Corio Customers may receive training
directly from Changepoint at Changepoint's normal training fees. Corio
shall otherwise be responsible for training its Customers regarding the
Software. Throughout the term of this Agreement, Changepoint shall
provide Corio with training materials and instruction manuals and the
right to re-distribute these training materials and instruction manuals
to its Customers of the Software solely in connection with the Corio
Services. Further, the parties shall work together and cooperate to
train Corio's sales force and product consultants on the Software and
the alliance contemplated by this Agreement, including without
limitation, how to position, sell and demonstrate the Software to
potential customers.
5.6 OTHER SERVICES. Upon Corio's request, Changepoint shall provide certain
professional services, including without limitation, consulting
services, to Corio or its Customers, subject to the mutual written
agreement on the scope of such services, pricing and other terms and
conditions.
5.7 SALES AND MARKETING EFFORTS. The parties shall engage in joint
marketing and sales activities as set forth in EXHIBIT D attached
hereto and made a part hereof. Additionally, Changepoint agrees to
provide Corio with marketing and sales presentation materials. During
the term of this Agreement, Corio agrees to use commercially reasonable
efforts to develop joint customer references or testimonials. Corio and
Changepoint agree that they will promote each other as a leading PSA
Application vendor and a leading Enterprise ASP, respectively, as long
as the preferred relationship between the parties continues in effect
as set forth in Section 2.10 of this Agreement.
6 TRADEMARKS.
6.1 RIGHT TO DISPLAY. During the term of this Agreement, each party
authorizes the other party to display and use the other's trademarks,
trade names and logos (collectively, the "TRADEMARKS") in connection
with that party's sale, advertisement, service and promotion of the
Corio Services or the Software. Each party shall indicate in all
product, service, publicity and printed materials relating to the Corio
Services or the Software that such trademarks are the property of the
originating party. Upon termination of this Agreement, each party shall
cease all display, advertising and use of all Trademarks of the other
party and shall not thereafter use, advertise or display any trademark,
trade name or logo which is, or any part of which is, confusingly
similar to any such designation association with Corio or the Corio
Services or Changepoint or any Changepoint product.
6.2 PROMOTION MATERIALS AND ACTIVITIES. All representations of the other
party's Trademarks that a party intends to use shall be exact copies of
those used by the other party and shall first be submitted to the
originating party for approval of design, color and use, including use
in conjunction with advertisement, service and promotional materials,
which consent shall not be unreasonably withheld or delayed. To ensure
trademark quality, each party shall fully
*** The omitted material has been filed separately with the
Securities and Exchange Commission pursuant to a request for
confidential treatment.
10
comply with all written guidelines provided by the other party
concerning the use of the originating party's Trademarks. Each party
agrees to change or correct any material or activity that the
originating party determines to be inaccurate, objectionable,
misleading or a misuse of the originating party's Trademarks.
6.3 GOODWILL AND TRADEMARKS. Each party acknowledges that the other has and
will have substantial goodwill in its Trademarks used in conjunction
with this Agreement, and agrees it shall not do anything that could
injure, diminish or depreciate the value of the goodwill associated
with the Trademarks or business of the other. All goodwill associated
with the use of each party's Trademarks shall enure exclusively to the
owner of such Trademarks.
6.4 CONDUCT OF BUSINESS. Each party shall conduct its business of marketing
each other's products and services pursuant to this Agreement in a
manner that will reflect favorably on the good name and reputation of
the other party. Each party shall comply with all laws, regulations and
ordinances in dealing with each other and with third parties, and in
performing their respective obligations under this Agreement. Each
party shall refrain from engaging in any unfair or deceptive trade
practice or unethical business practice that could unfavorably reflect
upon the other party and its products or services.
7 WARRANTIES AND DISCLAIMER.
7.1 NO CONFLICT. Each party represents and warrants to the other party that
it is under no current obligation or restriction, nor will it knowingly
assume any such obligation or restriction that does or would in any way
interfere or conflict with, or that does or would present a conflict of
interest concerning the performance to be rendered hereunder or the
rights and licenses granted herein.
7.2 INTELLECTUAL PROPERTY WARRANTY. Changepoint represents and warrants to
Corio that (a) Changepoint is the sole and exclusive owner of the
Software or is a licensee of the Software; (b) Changepoint has full and
sufficient right, title and authority to grant the rights and/or
licenses granted to Corio under this Agreement; (c) the Software does
not contain any materials developed by a third party used by
Changepoint except pursuant to a license agreement; and (d) the
Software does not, to the best of Changepoint's knowledge and belief,
infringe any patent, copyright, trade secret, trademark or other
intellectual property rights of a third party.
7.3 PRODUCT WARRANTY. Changepoint warrants that the Software will perform
in substantial accordance with the Documentation, and the media on
which the Software is distributed will be free from defects in
materials and workmanship under normal use, for a period of one hundred
twenty (120) days after delivery of the Software to Corio for
Acceptance Testing (the "Warranty Period"). In addition, Changepoint
warrants that during the Warranty Period the Software is free of any
willfully introduced computer virus, or any other similar harmful,
malicious or hidden program or data, which is designed to disable,
erase, or alter the Software, or any other files, data, or software.
If, during the Warranty Period, the Software does not perform in
substantial compliance with the Documentation, Changepoint shall take
all commercially reasonable efforts to correct the Software, or if
correction of the Software is reasonably not possible, at Changepoint's
option, replace such Software free of charge. Changepoint will replace
any defective media returned to Changepoint during the Warranty Period.
In the event any such breach of warranty can not be reasonably
corrected at Changepoint's sole expense, Corio has the right to
terminate this Agreement and receive a
11
refund of all prepaid fees, if any. The foregoing are Corio's sole
and exclusive remedies for breach of the foregoing product warranty.
The warranty set forth above is made to and for the benefit of Corio
only. This product warranty shall not apply if:
(a) the Software has been not properly installed and used at all
times and in accordance with the Documentation; and
(b) Corio has requested modifications, alterations or additions to
the Software that cause it to deviate from the Documentation.
7.4 PRODUCT WARRANTY - YEAR 2000 COMPLIANCE. Changepoint warrants that the
Software, when used in accordance with the Documentation, is in all
material respects capable upon installation of accurately processing,
providing and/or receiving date data from, into and between the
twentieth and twenty-first centuries, including the years 1999 and
2000, and leap year calculations; provided that all licensee and third
party equipment, systems, hardware, software and firmware used in
combination with the Software properly exchange date data with the
Software and accurately process, provide and/or receive date data from,
into and between the twentieth and twenty-first centuries, including
the years 1999 and 2000, and leap year calculations. Changepoint's sole
liability under this Section 7.4 is limited to use of reasonable
efforts to correct or replace the defective Software with conforming
Software, and if neither of the foregoing are commercially practicable,
as determined by Changepoint in its reasonable discretion, Changepoint
may, at its option, terminate this Agreement and refund all prepaid
fees, if any. The foregoing are Corio's sole and exclusive remedies for
breach of this Year 2000 warranty and Changepoint's sole obligation.
7.5 CORIO WARRANTIES. Corio represents and warrants that (i) it has the
right and power to enter into and fully perform this Agreement, (ii) in
entering into this Agreement, Corio is not, to the best of its
knowledge and belief, in breach of any contractual or other obligation
to any third party, (iii) it will comply with the terms of its
agreements with its Customers who purchase the right to use the
Software in connection with the Corio Services; (iv) it shall not make
any representations about the Software to third parties, including
Customers, which it is not authorized by Changepoint in writing to
make, or which are not set forth in the Documentation or other written
sales, marketing and training materials provided by Changepoint
intended for distribution to customers, and (v) it shall not make any
representations and warranties on behalf of Changepoint unless
expressly authorized by Changepoint in writing.
7.6 DISCLAIMER. Except as expressly provided herein, CHANGEPOINT LICENSES
THE SOFTWARE TO CORIO ON AN "AS IS" BASIS. NEITHER PARTY MAKES ANY
OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NONINFRINGEMENT
AND FITNESS FOR A PARTICULAR PURPOSE.
8 INDEMNIFICATION.
8.1 BY CHANGEPOINT. Changepoint shall indemnify, defend and hold harmless
Corio and its Customers from any and all damages, liabilities, costs
and expenses (including reasonable attorneys' fees) awarded by a court
against Corio or its Customers, and from settlements approved in
writing by Changepoint, arising out of any claim that the Software
infringes any patent, copyright, trademark or trade right secret of a
third party; provided that Corio or its Customer promptly notifies
Changepoint in writing of any such claim and promptly tenders
12
the control and the defense and settlement of any such claim to
Changepoint at Changepoint's expense and with Changepoint's choice
of counsel. Nothing in this provision shall limit Changepoint's
immediate duty to defend Corio and its Customers against any such
claims. Corio or its Customer shall cooperate with Changepoint, at
Changepoint's expense, in defending or settling such claims and
Corio or its Customer may join in defense with counsel of its choice
at its own expense. If the Software is, or in the opinion of
Changepoint may become, the subject of any claim of infringement or
if it is adjudicatively determined that the Software infringes, then
Changepoint may, at its sole option and expense, either (i) procure
for Corio the right from such third party to use the Software, (ii)
replace or modify the Software with other suitable and substantially
equivalent products so that the Software becomes noninfringing, or
if (i) and (ii) are not practicable after Changepoint has exhausted
all reasonable efforts, (iii) terminate this Agreement.
8.2 LIMITATIONS. Changepoint shall have no liability for any infringement
based on (i) the use of the Software other than as set forth in the
Documentation; (ii) the modification of the Software by a party other
than Changepoint, when such infringement would not have occurred but
for such modification, (iii) the combination of the Software with any
other hardware or software product or service when such infringement
would not have occurred using the Software by itself or (iv) Corio's
copying, distribution or use of the Software after receiving
Changepoint's written notice to Corio of a third party claim of
infringement applicable to the Software.
8.3 BY CORIO. Corio shall indemnify, defend and hold harmless Changepoint
and its affiliated companies from any and all damages, liabilities,
costs and expenses (including reasonable attorneys' fees) awarded by a
court against Changepoint and its affiliated companies, and from
settlements approved in writing by Corio, for infringement of any
patent, copyright, trademark or trade right secret of a third party
arising out (i) use of the Software by Corio other than as set forth in
the Documentation or as authorized by this Agreement; (ii) modification
of the Software by Corio except as authorized by Changepoint or by this
Agreement, when such infringement would not have occurred but for such
unauthorized modification, (iii) Corio's copying, distribution or use
of the Software after receiving Changepoint's written notice to Corio
of a third party claim of infringement applicable to the Software, or
(iv) a combination of the Software with other hardware or software
product or service, if such infringement would not have occurred using
the Software alone. Corio's obligation to indemnify Changepoint is
subject to Changepoint providing Corio with prompt written notice of
any such claim and promptly tendering the control and the defense and
settlement of any such claim to Corio at Corio's expense and with
Corio's choice of counsel. Nothing in this provision shall limit
Corio's immediate duty to defend Changepoint against any such claims.
Changepoint shall cooperate with Corio, at Corio's expense, in
defending or settling any such claims and Changepoint may join in
defense with counsel of its choice at its own expense.
9 LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 2.7, 8, 10 AND 12.3 OF THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE
EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CORIO HEREUNDER FOR THE
TRANSACTION WHICH THE LIABILITY RELATES TO DURING THE TWELVE (12)
MONTHS IMMEDIATELY PRIOR TO THE CAUSE OF
13
ACTION FIRST ARISING, EVEN IF IT IS A CONTINUOUS ONE, OR IN THE
AGGREGATE, WITH RESPECT OF ALL CLAIMS ARISING OUT OF OR RELATED TO
THIS AGREEMENT, THE TOTAL AMOUNT ACTUALLY PAID BY CORIO UNDER THIS
AGREEMENT TO CHANGEPOINT. EXCEPT FOR LIABILITY ARISING UNDER
SECTIONS 2.7, 8, 10 AND 12.3 OF THIS AGREEMENT, IN NO EVENT SHALL
EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST
PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR
FOR ANY INDIRECT, INCIDENTIAL, SPECIAL OR CONSEQUENTIAL DAMAGES
HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE
PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION
OF RISK.
10 CONFIDENTIALITY.
Each party hereby agrees that it shall not use any Confidential
Information received from the other party other than as expressly
permitted under the terms of the non-disclosure agreement in effect
between the parties dated October 29, 1999, which is incorporated
herein by reference and made a part hereof. For purposes of this
Agreement, "Confidential Information" means the definition given to
that term in such non-disclosure agreement. The parties agree that
Changepoint's Software and Documentation (except that Documentation
which this Agreement contemplates will be provided to Customers) shall
be deemed Confidential Information subject to that non-disclosure
agreement. The terms and conditions of this Agreement shall also be
deemed Confidential Information subject to that non-disclosure
agreement, but the terms of this Agreement may be disclosed by a party
in connection with a significant transaction involving the merger or
sale of all or a substantial part of the assets of the receiving party.
Further, each party represents and warrants that their respective
employees, agents, contractors or consultants that will be provided the
other party's confidential information have or will have signed
agreements with customary terms containing confidentiality provisions
and assignment of inventions ("EMPLOYEE NDA/INVENTION AGREEMENT"). Each
party covenants that during the term of this Agreement, it will
continue to require all of such employees, agents, contractors or
consultants to sign an Employee NDA/Invention Agreement.
11 TERM AND TERMINATION.
11.1 TERM. The term of this Agreement shall commence on the Effective Date
and, subject to the provisions of this Agreement, shall continue in
full force and effect for an initial period of five (5) years.
Thereafter, this Agreement shall automatically renew for subsequent one
(1) year periods unless either party provides the other party with
written notification at least thirty (30) days prior to the expiration
of the initial five (5) year term or any one (1) year renewal thereof
of its intention to terminate this Agreement.
11.2 TERMINATION. If either party breaches any material term or condition of
this Agreement and fails to cure such breach within sixty (60) days
after receiving written notice of the breach, the nonbreaching party
may terminate this Agreement on written notice at any time following
the end of such sixty (60) day period. Notwithstanding the foregoing,
Corio shall have thirty (30) calendar days after receipt of written
notice from Changepoint to cure any nonpayment. Compliance by the
Software with the Software's Documentation after expiration of the
Warranty Period shall be deemed a material condition of this Agreement.
To the extent permitted by applicable law, either party may terminate
this Agreement by
14
notice in writing to the other party in the event that (i) a
receiver, trustee, liquidator, administrator or administrative
receiver should be appointed for either party or its property, (ii)
either party should become insolvent or unable to pay its debts as
they mature or cease to pay its debts as they mature in the ordinary
course of business, or makes an assignment for the benefit of
creditors or makes a proposal to its creditors or files a notice of
intention to do so, (iii) any proceedings should be commenced
against either party under any bankruptcy, insolvency or debtor's
relief law, and such proceedings are not vacated or set aside within
fifteen (15) days from the date of commencement thereof, or (iv)
either party is liquidated or dissolved (except as part of an
assignment permitted under Section 14.1 of this Agreement).
11.3 EFFECT OF TERMINATION OR EXPIRATION. The following Sections shall
survive the termination or expiration of this Agreement according to
the provisions of this Section 11.3: 2.1, 2,2, 2.3, 4.2, 4,5, 4.6, 4.7,
5.3, 7, 8, 9, 10, 12, 14 and Exhibits B and ▇. ▇▇▇▇▇'▇ right to allow
its then-existing Customers and their Software Users to use and access
the Software in accordance with Sections 2.1 and 2.5 of this Agreement
and all payment obligations related thereto shall survive any
termination or expiration of this Agreement only for the remaining term
of any contracts Corio has with its Customers to continue providing the
Corio Services. Changepoint's obligation to provide Software Support
and Maintenance to Corio and its Customers shall survive any
termination or expiration of this Agreement for the remaining term of
any contracts Corio has with such Customers to continue providing the
Corio Services, provided Corio continues to make its revenue share fee
payments (and Software Support and Maintenance payments under Section
2.5 of this Agreement with respect to those licenses) to Changepoint as
specified in this Agreement. Notwithstanding the foregoing, the license
grants in Sections 2.1 and 2.2 of this Agreement, and Changepoint's
continuing obligation to provide Software Support and Maintenance under
Sections 4.2 and 5.3 of this Agreement shall terminate if Changepoint
terminates this Agreement for Corio's non-payment or other material
breach according to the provisions of Section 11.2 of this Agreement.
Sections 7, 8, 9, 10, 12 and 14 of this Agreement shall survive
termination or expiration of this Agreement for any reason. Upon
termination or expiration of this Agreement, each party shall otherwise
return or destroy any Confidential Information of the other party
provided, however, Corio may retain such Confidential Information as is
necessary for Corio to continue supporting it's then-existing Customers
according to the provisions of this Section 11.3. Upon termination or
expiration of this Agreement, all outstanding and unpaid amounts owed
by Corio to Changepoint under this Agreement shall become immediately
due and payable. Section 2.3 of this Agreement shall survive for the
time period provided in such section.
12 SOURCE CODE ESCROW.
12.1 ESCROW ACCOUNT. Within sixty (60) days of the Effective Date,
Changepoint agrees to execute an escrow agreement by and among Corio,
Changepoint and a mutually acceptable escrow agent (the "ESCROW
AGENT"). The Escrow Agent shall require Changepoint to place in an
escrow account in Toronto a copy of the source code of the Software
including all Updates and Upgrades thereto, documentation and similar
materials (the "SOURCE CODE"). The escrow agreement shall contain, at a
minimum, the terms and conditions set forth in this Section 12. Corio
shall bear all fees, expenses and other charges to open and maintain
such escrow account. If a Release Condition (as defined in Section 12.2
of this Agreement) occurs and the Escrow Agent provides the Source Code
to Corio under the escrow agreement, Corio agrees to hold the Source
Code in strict confidence, and not to use the Source Code for any
purpose other than those purposes set forth under Section 12.3 of this
Agreement. This
15
source code escrow shall survive any termination or expiration of
this Agreement for the remaining term of any contracts Corio has
with such Customers to continue providing the Corio Services.
12.2 RELEASE. Corio shall notify Changepoint in writing if it believes that
one of the following events (the "RELEASE CONDITIONS") has occurred and
that it intends to seek release of the Source Code from the escrow
account: (i) Changepoint's dissolution or ceasing to do business in the
normal course, except as a result or a merger, amalgamation or sale of
all or a substantial part of the assets of Changepoint, or (ii)
Changepoint's repeated and material breach of Changepoint's Software
Support and Maintenance obligations defined under Section 5 of this
Agreement and EXHIBIT C pertaining to the correction of programming
errors and such breach is not cured within sixty (60) days of receipt
of written notice thereof from Corio. If Changepoint notifies Corio in
writing that it disputes whether any such event has occurred, officers
of each of the parties shall negotiate for a period of ten (10)
business days to attempt to resolve the dispute. At the end of such ten
(10) business day period, if the parties have not resolved the dispute,
the matter shall be referred to dispute resolution in the manner set
forth in the escrow agreement and there shall be no release until the
dispute is resolved.
12.3 LICENSE. Upon the release of the Source Code to Corio pursuant to
Section 12.2 of this Agreement, Corio shall have a royalty-free,
nonexclusive, nontransferable, right and license at its head office to
use and modify the Source Code to support and maintain the Software
until the expiration or termination of Corio's Customers' License
Agreements for the Corio Services. The object code derived from the
Source Code so modified shall be subject to the same rights and
restrictions on use, reproduction and disclosure that are contained in
this Agreement with respect to the Software. Corio shall not
distribute, sell or sublicense the Source Code or use the Source Code
to develop new products or for commercial purposes other than to
support Customers of the Corio Services. Subject to the licenses
expressly granted in this Agreement, Changepoint shall retain all
right, title and interest in and to the Source Code. Corio may disclose
the Source Code to a contractor(s) for the purposes set forth in this
Section 12.3 provided that such contractor is not a direct or indirect
competitor of Changepoint of any affiliate of Changepoint, and provided
further that such contractor(s) agrees to maintain the Source Code in
strict confidence and to use the Source Code only as expressly
permitted under this Section 12. Access to the Source Code shall be on
a need to know only basis and shall be retained by contractors only for
so long as reasonably required for the purposes set forth in this
Section 12.
13 SHARED RESOURCES.
13.1 OPERATIONS. To the extent not provided for within the Statement of
Work, Changepoint shall provide Corio with access to Changepoint
operations personnel as reasonably requested by Corio, subject to
availability of such personnel and payment by Corio of Changepoint's
standard fees at a twenty percent (20%) discount along with payment by
Corio of reasonable travel and living expenses. These Changepoint
operations personnel shall work together with Corio personnel to
optimize the architecture and performance of the Software in a hosted
environment as well as to help Corio address changes Changepoint has
made to the Software as part of an Update or Upgrade that affect
Corio's ability to host the Software. Changepoint and Corio shall only
commit personnel with expertise in installations, operating
environments and networking functionality.
16
13.2 CONSULTING. To the extent not provided for within the Statement of
Work, Changepoint shall provide Corio with access to Changepoint
consulting personnel as reasonably requested by Corio, subject to
availability of such personnel and payment by Corio of Changepoint's
standard professional services fees at a twenty percent (20%) discount
along with payment by Corio of reasonable travel and living expenses.
These Changepoint consulting personnel shall initially work together
with Corio personnel to develop implementation templates.
13.3 ENGINEERING. Subject to availability of such personnel, Changepoint
shall, on a case by base basis, provide Corio with reasonable access to
Changepoint engineering personnel at no additional cost to Corio. Such
joint engineering work may include product development, including
without limitation, technical and functional application development
and integration.
13.4 OTHER. Any other services not provided for under this Agreement shall
be subject to the terms of a separate agreement between the parties at
a cost to Corio of twenty percent (20%) off Changepoint's standard fees
for the applicable services.
14 MISCELLANEOUS.
14.1 ASSIGNMENT. Neither party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise,
without the prior written consent of the other party. Notwithstanding
the foregoing, either party shall have the right to assign this
Agreement in connection with the merger or acquisition of such party or
the sale of all or substantially all of its assets related to this
Agreement without such consent, except in the case where such
transaction involves a direct competitor of the other party where
consent of the other party will be required. Subject to the foregoing,
this Agreement will bind and inure to the benefit of the parties, their
respective successors and permitted assigns. Any assignment in
violation of this Section 14.1 shall be null and void.
14.2 WAIVER AND AMENDMENT. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and
signed by the party to be charged. No failure or delay by either party
in exercising any right, power, or remedy under this Agreement, except
as specifically provided herein, shall operate as a waiver of any such
right, power or remedy.
14.3 CHOICE OF LAW; ARBITRATION; VENUE. This Agreement shall be governed by
the laws of the State of California, USA, excluding conflict of laws
provisions and excluding the 1980 United Nations Convention on
Contracts for the International Sale of Goods. Any disputes arising out
of this Agreement shall be resolved by binding arbitration in
accordance with the then-current commercial arbitration rules of the
American Arbitration Association ("RULES"). The arbitration shall be
conducted by one (1) arbitrator appointed in accordance with the Rules
in San Francisco County, California. A judgment upon the award may be
entered in any court having jurisdiction of the parties, including
without limitation the courts in San Francisco, California. The
non-prevailing party in the arbitration shall pay all fees and charges
of the American Arbitration Association; each party, however, shall be
responsible for the payment of all fees and expenses connected with the
presentation of its respective case.
14.4 NOTICES. All notices, demands or consents required or permitted under
this Agreement shall be in writing. Notice shall be considered
delivered and effective on the earlier of actual receipt or when (a)
personally delivered; (b) the day following transmission if sent by
facsimile followed by written confirmation by registered overnight
carrier or certified United
17
States or Canadian mail; or (c) one (1) day after posting when sent
by registered private overnight carrier (e.g., DHL, Federal Express,
etc.); or (d) five (5) days after posting when sent by certified
United States or Canadian mail. Notice shall be sent to the parties
at the addresses set forth on the first page of this Agreement or at
such other address as shall be specified by either party to the
other in writing.
14.5 INDEPENDENT CONTRACTORS. The parties are independent contractors with
respect to each other. Each party is not and shall not be deemed to be
an employee, agent, partner or legal representative of the other for
any purpose and shall not have any right, power or authority to create
any obligation or responsibility on behalf of the other.
14.6 SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall be
changed and interpreted so as to best accomplish the objectives of the
original provision to the fullest extent allowed by law and the
remaining provisions of this Agreement shall remain in full force and
effect.
14.7 FORCE MAJEURE. Neither party shall be deemed to be in breach of this
agreement for any failure or delay in performance caused by reasons
beyond its reasonable control, including but not limited to acts of
God, earthquakes, strikes or shortages of materials.
14.8 SUBCONTRACT. Changepoint understands and agrees that Corio shall solely
direct the provision of Corio Services and may subcontract certain
portions of the operations of the Corio Services to third parties at
any time during the term of the Agreement. Corio shall not sublicense
its distribution license rights under Section 2.5.
14.9 BANKRUPTCY. The parties hereto agree that Corio, as a licensee of
Changepoint's intellectual property, shall be afforded all of the
protections afforded to a licensee under Section 365(n) of the United
States Bankruptcy Code, as amended from time to time (the "CODE") so
that the Trustee or Debtor in Possession, as defined in the Code, will
not interfere with Corio's license with respect to the Software as
provided in this Agreement, as set forth in Section 365(n) of the Code.
The equivalent provisions of Canadian bankruptcy law shall also apply
to Corio's rights under this Agreement.
14.10 COMPLETE UNDERSTANDING. This Agreement including all Exhibits, the non
disclosure agreement between the parties incorporated herein pursuant
to Section 10 of this Agreement and the Statement of Work referenced in
this Agreement and incorporated by reference herein, constitutes the
final, complete and exclusive agreement between the parties with
respect to the subject matter hereof, and supersedes any prior or
contemporaneous agreement.
14.11 EXPORT CONTROLS AND U.S. GOVERNMENT TRANSACTIONS. Corio agrees that it
shall not export or reexport the Software or Documentation outside the
United States and Canada without first obtaining permission from
applicable authorities in the United States and Canada. Changepoint
agrees to reasonably assist Corio in obtaining any required export
permissions at no additional cost to Corio. Corio agrees not to provide
the Corio Services involving the Software to the United States
government without the prior written consent of Changepoint as to the
form and substance of the restricted rights legends to be applied to
the Software.
14.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and which, if
taken together, shall be deemed to constitute one and the same
instrument.
18
14.13 CONSTRUCTION. The fact that one party drafted some or all of this
Agreement shall not be held against such party in any dispute regarding
construction or interpretation of this Agreement or any part of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
CORIO, INC. CHANGEPOINT, INC.
By: _______________________________ By: _____________________________
Name: _____________________________ Name: ___________________________
Title: ____________________________ Title: __________________________
Date: _____________________________ Date: ___________________________
19
EXHIBIT A
SOFTWARE
1. SOFTWARE.
Changepoint v 5.1
2. DEMONSTRATION SOFTWARE.
Changepoint v 5.1
3. RELATIONSHIP MANAGERS. The Corio Relationship Manager shall be:
____________. The Changepoint Relationship Manager shall be:
_____________.
4. PRODUCT MANAGERS. For purposes of Section 5.4 of this Agreement, the
Corio product manager shall be: _______________. The Changepoint
product manager shall be:______________________.
20
CONFIDENTIAL TREATMENT
EXHIBIT B
PRICING
SOFTWARE:
Changepoint v 5.1
REVENUE SHARING FEES:
1. Corio Customer Application Management Revenue:
Corio to pay Changepoint *** of all Application
Management Revenue from Corio Customers for use of Changepoint Software
subject to the following limitations.
A. The Corio invoice amounts used to calculate the revenues
subject to this revenue share shall not include Professional
Service fees or Network access fees.
B. These Application Management Revenue fees shall begin
accruing when the Corio Customer first commences making
payments to Corio for the Corio Services.
Software support and maintenance fees are included in the 10% Revenue
Sharing Fee.
PAYMENT TERMS
Revenue Sharing Fees: Quarterly payments shall be due to receiving party, net 30
days after quarter close.
Implementation or Professional Service Fees: Net 30 days from date of
Changepoint invoice, which shall be issued only after successful completion of
each agreed upon milestone.
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
21
EXHIBIT C
CUSTOMER SERVICE OUTLINE
CORIO RESPONSIBILITIES:
Corio will provide "Level 1 Support" and "Level 2 Support" directly to Customers
and Software Users.
Level 1 Support means the service provided in response to the initial phone call
placed by a Customer or Software User which identifies and documents an error in
the Software. This includes problem source identification assistance, problem
analysis, problem resolution, installation planning information and preventative
and corrective service information.
Level 2 Support means the service provided to analyze or reproduce the error or
to determine that the error is not reproducible. This includes problem
recreation and in-depth technical analysis.
Corio shall use all commercially reasonable efforts to promptly provide
Changepoint with notification of "bugs" encountered in the Software.
CHANGEPOINT RESPONSIBILITIES:
Changepoint will provide "Level 3 Support" to Corio for problems that have been
escalated beyond ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇ will provide Level 3 Support to Corio according to the following
problem priority level definitions and respective schedules:
- "Priority One Problems" are those in which the Software fails to perform
major functions on a system-wide basis resulting in a critical business
impact. Changepoint will allocate resources to address the problem within
two (2) business hours.
- "Priority Two Problems" are those in which the functionality of the
Software is substantially restricted or the problem is restricted to
individual workstations. Changepoint will allocate resources to address the
problem within eight (8) business hours.
- "Priority Three Problems" are those in which the functionality of the
Software is slightly restricted. Changepoint will allocate resources to
address the problem within two (2) business days.
- "Priority Four Problems" are minor errors that do not affect the
functionality of the Software. Changepoint will allocate resources to
address the problem within five (5) business days.
Beginning February 15, 2000, Changepoint, as part of Level 3 Support will
provide access 24 hours per day, 7 days per week telephone or pager support for
Priority One Problems.
Corio shall use all commercially reasonable efforts to promptly provide
Changepoint with notification of "bugs" encountered in the Software.
22
EXHIBIT D
SALES AND MARKETING COOPERATION
The parties agree to the following non-binding sales and marketing cooperation
efforts:
1. RELATIONSHIP MANAGERS. The parties' Relationship Managers would attempt to
meet at mutually agreeable times no less than every quarter to review and
coordinate sales efforts and review customer response to the Software and
the Corio Services, and address other topics related to this Agreement.
2. JOINT MARKETING PLANS. During the term of this Agreement the parties agree
to develop, review and submit to each other new and continuing marketing
plans with respect to the Corio Services and the Software, respectively.
3. MARKETING FUND. Within six (6) months after the Effective Date of the
Agreement, Corio and Changepoint each would contribute to a marketing fund
to be jointly managed by the parties to promote the sale and marketing of
the Corio Services and the Software. Each party's initial amount of
contribution is Fifty Thousand dollars ($50,000U.S.).
4. PERSONNEL. Each party agrees to assign sufficient sales or marketing
personnel to assist in the sales and marketing promotional activity set
forth in this Exhibit D.
5. COOPERATION AND PUBLICITY. Upon mutual agreement, Corio and Changepoint may
engage in the following activities: joint publicity releases, joint
marketing materials, joint marketing calls, joint conference and trade show
efforts, and strategy coordination concerned with promoting the Software
and the Corio Services in the commercial marketplace.
6. INITIAL CUSTOMERS. Within sixty (60) days after the Effective Date of the
Agreement, Corio agrees to use commercially reasonable efforts to obtain
orders from two (2) Customers for the Corio Services which include access
to the Software.
7. SALES INCENTIVES. During the period of their preferred relationship, the
parties will provide their internal and external sales personnel sufficient
incentives designed to actively promote and encourage cross selling of the
Corio Services and the Software, respectively.
23
EXHIBIT E
CUSTOMER LICENSE TERMS AND CONDITIONS
1. THIRD-PARTY BENEFICIARY. Changepoint, Inc. ("Changepoint") shall be a
direct and intended third-party beneficiary to this Agreement.
2. AUDIT. Changepoint's independent certified auditors will have the right,
exercisable not more than once every twelve (12) months, to inspect upon
reasonable notice and during End User's regular business hours, End User's
relevant records to verify End User's compliance with the terms of this
Agreement and/or Changepoint's compliance with its obligations to
Changepoint.
3. NO ADDITIONAL WARRANTY. CORIO MAY PROVIDE THE SOFTWARE TO END USERS WITH
ONLY THOSE WARRANTIES GIVEN BY CHANGEPOINT TO CORIO IN THE ATTACHED
AGREEMENT. ALL OTHER CONDITIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED,
OR STATUTORY, ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT. CORIO SHALL BE SOLELY RESPONSIBLE FOR ANY WARRANTIES IT
MAY GIVE TO END USERS WHICH ARE IN ADDITION TO OR OTHERWISE DIFFERENT FROM
THOSE WARRANTIES GIVEN BY CHANGEPOINT TO CORIO IN THE ATTACHED AGREEMENT.
4. LIMITATION OF LIABILITY. IN NO EVENT WILL CHANGEPOINT BE LIABLE UNDER SUCH
AGREEMENT FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE
FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES PERFORMED
HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT,
INCLUDING NEGLIGENCE, EVEN IF CHANGEPOINT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN ADDITION, CHANGEPOINT WILL NOT BE LIABLE
FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR
SAID SERVICES. CHANGEPOINT'S, LIABILITY UNDER SUCH AGREEMENT FOR DIRECT,
INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED
THE FEE PAID BY END USER TO CHANGEPOINT UNDER SUCH AGREEMENT.
5. SOFTWARE USER LIMITS. The Software may only be used by the number of
Software Users licensed under Customer agreements with Corio for the
Software as part of the Corio Services.
6. RESTRICTIONS ON END USE. Software Users shall not reverse engineer the
Software and shall maintain the Software in confidence.
24
CONFIDENTIAL TREATMENT
EXHIBIT F
SCHEDULE FOR WEB-ENABLED SOFTWARE
LEGEND
[CLOCK] Feature shall exist in v5.2 of the "Software" (shipping
approximately Dec 15, 1999)
Q1/Q2 Feature planned for Q1 or Q2 calendar year 2000
------------------------------------------------------------------------------------
FEATURE DESCRIPTION BROWSER CLIENT
------------------- --------------
------------------------------------------------------------------------------------
MY FAVOURITES
-------------
------------------------------------------------------------------------------------
Home Page
------------------------------------------------------------------------------------
Reminders ***
------------------------------------------------------------------------------------
Workflow ***
------------------------------------------------------------------------------------
Approve/Reject Time ***
------------------------------------------------------------------------------------
Approve/Reject Expense Reports ***
------------------------------------------------------------------------------------
Approve/Reject Invoices ***
------------------------------------------------------------------------------------
Scheduled Activities ***
------------------------------------------------------------------------------------
Pipeline Report ***
------------------------------------------------------------------------------------
My Contacts
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Maintain List ***
------------------------------------------------------------------------------------
Projects
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Create Attachment ***
------------------------------------------------------------------------------------
View Attachment ***
------------------------------------------------------------------------------------
Delete Attachment ***
------------------------------------------------------------------------------------
Change Status ***
------------------------------------------------------------------------------------
▇▇▇▇▇ Planning Tool ***
------------------------------------------------------------------------------------
Reassign Project ***
------------------------------------------------------------------------------------
Project Rollup ***
------------------------------------------------------------------------------------
MSP Integration ***
------------------------------------------------------------------------------------
Tasks
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
CONFIDENTIAL TREATMENT
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Reorder ***
------------------------------------------------------------------------------------
Create Attachment ***
------------------------------------------------------------------------------------
View Attachment ***
------------------------------------------------------------------------------------
Delete Attachment ***
------------------------------------------------------------------------------------
Update Billing Role ***
------------------------------------------------------------------------------------
Status Task ***
------------------------------------------------------------------------------------
Baseline ***
------------------------------------------------------------------------------------
Create Sub-Project ***
------------------------------------------------------------------------------------
Timesheet
------------------------------------------------------------------------------------
View Time ***
------------------------------------------------------------------------------------
Book Time ***
------------------------------------------------------------------------------------
Status Tasks ***
------------------------------------------------------------------------------------
Central Time Booking ***
------------------------------------------------------------------------------------
Expense sheet
------------------------------------------------------------------------------------
View Expenses ***
------------------------------------------------------------------------------------
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
25
CONFIDENTIAL TREATMENT
------------------------------------------------------------------------------------
Enter Expenses ***
------------------------------------------------------------------------------------
Create Expense Report ***
------------------------------------------------------------------------------------
Central Expense Submission ***
------------------------------------------------------------------------------------
Team Folders
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create New Items ***
------------------------------------------------------------------------------------
Edit Items ***
------------------------------------------------------------------------------------
Create New Team Folders ***
------------------------------------------------------------------------------------
Availability
------------------------------------------------------------------------------------
View Calendar ***
------------------------------------------------------------------------------------
Update Calendar ***
------------------------------------------------------------------------------------
DIRECTORY
---------
------------------------------------------------------------------------------------
Companies
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Create Attachment ***
------------------------------------------------------------------------------------
View Attachment ***
------------------------------------------------------------------------------------
Delete Attachment ***
------------------------------------------------------------------------------------
Contacts
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Resource
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Group Homepages ***
------------------------------------------------------------------------------------
Personal Options ***
------------------------------------------------------------------------------------
Product
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
CONFIDENTIAL TREATMENT
MARKETING
---------
------------------------------------------------------------------------------------
Prospects
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Import from file ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Leads
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Campaigns
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Competition
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
26
CONFIDENTIAL TREATMENT
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Corporate News
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
SALES
-----
------------------------------------------------------------------------------------
Opportunities
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Create Attachment ***
------------------------------------------------------------------------------------
View Attachment ***
------------------------------------------------------------------------------------
Delete Attachment ***
------------------------------------------------------------------------------------
Activities
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Print ***
------------------------------------------------------------------------------------
▇▇▇▇ Complete ***
------------------------------------------------------------------------------------
Customize ***
------------------------------------------------------------------------------------
Sales Management
------------------------------------------------------------------------------------
CLIENT SERVICES
---------------
------------------------------------------------------------------------------------
Engagements
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Create Attachment ***
------------------------------------------------------------------------------------
View Attachment ***
------------------------------------------------------------------------------------
Delete Attachment ***
------------------------------------------------------------------------------------
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
CONFIDENTIAL TREATEMNT
Resource Scheduling ***
------------------------------------------------------------------------------------
Resource Search ***
------------------------------------------------------------------------------------
Skill Search ***
------------------------------------------------------------------------------------
SUPPORT DESK
------------
------------------------------------------------------------------------------------
Support Customers
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Calls
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Book Time ***
------------------------------------------------------------------------------------
Knowledge Base
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Search ***
------------------------------------------------------------------------------------
Assets
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
27
CONFIDENTIAL TREATMENT
------------------------------------------------------------------------------------
FINANCE
-------
------------------------------------------------------------------------------------
Invoices
------------------------------------------------------------------------------------
View ***
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Edit ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Submit for Approval ***
------------------------------------------------------------------------------------
Print ***
------------------------------------------------------------------------------------
Approve/Reject Invoice ***
------------------------------------------------------------------------------------
Create Credit Note ***
------------------------------------------------------------------------------------
Edit Credit Note ***
------------------------------------------------------------------------------------
Record Payment ***
------------------------------------------------------------------------------------
Archive Invoice ***
------------------------------------------------------------------------------------
Expense Advance
------------------------------------------------------------------------------------
Create ***
------------------------------------------------------------------------------------
Delete ***
------------------------------------------------------------------------------------
Currency Exchange
------------------------------------------------------------------------------------
Add Exchange Rate ***
------------------------------------------------------------------------------------
Modify Exchange Rate ***
------------------------------------------------------------------------------------
Time
------------------------------------------------------------------------------------
De-Submit Time ***
------------------------------------------------------------------------------------
Transfer Time/Expense ***
------------------------------------------------------------------------------------
REPORTING
---------
------------------------------------------------------------------------------------
Report Viewing ***
------------------------------------------------------------------------------------
Report Favorites ***
------------------------------------------------------------------------------------
OLAP Analysis Tools ***
------------------------------------------------------------------------------------
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
28
EXHIBIT G
CHANGEPOINT SOFTWARE
LICENSE AND MAINTENANCE AGREEMENT (U.S.A. SS)
Between: and:
-------------------------------------------------------------------------------------
CHANGEPOINT INC. CORIO, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Redwood City, CA 94063
Canada ▇.▇.▇.
▇▇▇ ▇▇▇
-------------------------------------------------------------------------------------
(hereinafter referred to as "Changepoint") (hereinafter referred to as "Customer")
Contract No. _______________
This Agreement sets out the terms pursuant to which Customer may use the
Licensed Materials (as that term is hereinafter defined). This Agreement also
sets out the terms pursuant to which Changepoint will provide Implementation
Services and Maintenance Services to Customer.
The "CHANGEPOINT Software License and Maintenance Agreement - Terms and
Conditions" on the following pages of this document and the attached Appendix A
form an integral part of this Agreement.
The parties by their authorized representatives and intending to be legally
bound have entered into this Agreement as of the ___ day of _____, 1999 (the
"Effective Date").
CHANGEPOINT INC. CORIO, INC.
Signature ________________________ Signature _____________________
Name _____________________________ Name __________________________
Title ____________________________ Title _________________________
29
CHANGEPOINT SOFTWARE
LICENSE AND MAINTENANCE AGREEMENT -
TERMS AND CONDITIONS
ARTICLE 1 - INTERPRETATION
1.1 DEFINITIONS
In this Agreement and in Appendix A the following terms shall have the
respective meanings ascribed to them as follows:
(A) "AFFILIATE" means with respect to any person, any other person directly
or indirectly controlling, controlled by, or under common control of
such person. "Control" as used here means the legal, beneficial or
equitable ownership, directly or indirectly, of more than 50% of the
aggregate of all voting interests in such entity.
(B) "BUSINESS DAYS" means Monday through Friday excluding any day which is
a nationally observed holiday in both the United States of America and
Canada.
(C) "BUSINESS HOURS" means 8:00 a.m. - 7:00 p.m. Eastern Time on Business
Days.
(D) "CLIENT ACCESS LICENSE" means a Software License which authorizes
Customer to install a Component of the Licensed Software on a single
client device (e.g. - computer workstation).
(E) "COMPONENTS" mean the components of the CHANGEPOINT Software referred
to in Appendix A.
(F) "CONFIDENTIAL INFORMATION" means (i) all information of either party or
its affiliates or of third persons to whom a party owes a duty of
confidence that is marked confidential, restricted or proprietary or
that may reasonably be considered as confidential from its nature or
from the circumstances surrounding its disclosure; and (ii) the
Licensed Materials.
(G) "DOCUMENTATION" means in relation to the Licensed Software, the user
documentation made generally available by Changepoint to customers
which have been granted a license from Changepoint to use the Licensed
Software.
(H) "INSTALLATION FEES" has the meaning given to it in Section 4.2.
(I) "INSTALLATION SERVICES" has the meaning given to it in Section 3.2.
(J) "INTELLECTUAL PROPERTY RIGHTS" includes all worldwide intellectual and
industrial property rights including all rights in each country to
copyrights, trademarks, service marks, patents, inventions, industrial
designs, trade secrets, trade dress and all other proprietary rights.
(K) "LICENSE" means Customer's license to use the Licensed Materials
described in Article 2 and in Appendix A.
(L) "LICENSE FEES" means the license fees to be paid by Customer to
Changepoint which are described in Section 4.1.
(M) "LICENSED MATERIALS" means the Licensed Software and Documentation and
includes Maintenance Releases and Enable Codes which Changepoint may
from time to time provide to Customer hereunder.
(N) "LICENSED SOFTWARE" means the Components of the CHANGEPOINT Software in
object code format licensed to Customer hereunder and described in
Appendix A and such additional Components of the CHANGEPOINT Software
which Customer and Changepoint hereinafter agree shall be added to
Appendix A.
(O) "MAINTENANCE" has the meaning given to it in Section 4.2.
(P) "MAINTENANCE FEES" has the meaning given to it in Section 4.2.
(Q) "MAINTENANCE RELEASE" means new versions and releases of the Licensed
Software which Changepoint makes generally available to its customers
who have contracted with it to receive Maintenance Service for the
Licensed Software.
(R) "MAINTENANCE SERVICES" means the services described in Section 7.2.
(S) "SOFTWARE LICENSES" means the utilization licenses and associated
restrictions with respect to the Licensed Software granted to Customer
hereunder which are set forth in Appendix A.
(T) "WARRANTY PERIOD" means the period as set out in Appendix A.
(U) "WARRANTY SUPPORT" means the warranty support set forth in Section
6.1(a).
ARTICLE 2 - LICENSE
2.1 LICENSE
(a) Subject to the provisions of this Agreement including the provisions of
Article 8, Changepoint hereby grants to Customer and Customer hereby accepts
from Changepoint the perpetual, personal, non-transferable and non-exclusive
Software Licenses to use the Licensed Software for Customer's internal business
purposes. Customer may also make a reasonable number of back-up copies, but not
to exceed two (2) copies, of the Licensed Software for use as part of Customer's
disaster recovery plan.
(b) The Licensed Materials may be used only as set out in this Agreement
and Customer agrees not to make any copies (whether in electronic or any other
form) or use thereof other than as expressly permitted herein or by Changepoint
in writing in advance, even if it is technically feasible to do so. Without
limiting the generality of the foregoing, Customer agrees to use the Licensed
Software only to the extent authorized by the Software Licenses.
(c) Customer's License to use the Licensed Materials shall commence on the
Effective Date.
2.2 DOCUMENTATION
30
The Documentation may be used by Customer at Customer sites for the
purpose of assisting Customer in using the Licensed Software for the internal
business purposes of Customer. Changepoint agrees to deliver one copy of the
Documentation to Customer in either printed or electronic form. Documentation
provided in machine readable form may be printed and used solely for the
internal business purposes of Customer. No other reproduction or use of the
Documentation is permitted.
2.3 THIRD PARTY USERS
For the purpose of operating Customer's business, the parties intend
that certain unrelated third parties with whom Customer has a business
relationship such as a supplier or customer and the employees of such third
person (hereunder "Business Third Parties"), will have limited right to use
certain Components of the Licensed Software solely for the purpose of providing
services to Customer. All such persons must execute an agreement in writing with
Customer to maintain the Confidential Information in confidence and to use the
Licensed Materials only as permitted. Customer agrees to strictly enforce the
provisions of such non-disclosure agreements set forth in this Section 2.3 and
all other provisions of this Agreement as applicable to any and all uses of the
Licensed Materials.
ARTICLE 3 - DELIVERY AND INSTALLATION
3.1 DELIVERY OF LICENSED MATERIALS
Changepoint agrees to deliver to Customer one (1) copy of the most
current release and version of the Licensed Materials. The Documentation will be
provided solely in the English language.
3.2 INSTALLATION SERVICES
Changepoint agrees to provide the installation services (the
"Installation Services") described in Appendix A.
3.3 ENABLE CODES
To enable Customer to install the Licensed Software, Changepoint will
provide Customer with information or data which are intended to enable the
Licensed Software to be used ( the "Enable Codes"). The Enable Codes are
designed to enable Customer to use the Licensed Software in accordance with the
number of Software Licenses acquired hereunder. Customer acknowledges and agrees
that additional Enable Codes will need to be obtained from Changepoint if
Customer acquires one or more additional Software Licenses from Changepoint.
Customer agrees not to, and shall cause all users not to, modify, adapt or
create derivative works of any Enable Codes provided, develop or have developed
any Enable Codes, or use any Enable Codes other than those provided by
Changepoint.
ARTICLE 4 - PRICE AND PAYMENT TERMS
4.1 LICENSE FEES
Customer shall pay to Changepoint the license fees described in
Appendix A (the "License Fees"). The License Fees shall be due and paid as
provided for in Appendix A.
4.2 MAINTENANCE AND INSTALLATION FEES
Customer agrees to pay to Changepoint the Maintenance Fees and the
Installation Fees set out in Appendix A.
4.3 TAXES AND INTEREST
(a) Customer shall pay (and Changepoint shall have no liability for), any
taxes, tariffs, duties and other charges or assessments imposed or levied by any
government or governmental agency in connection with this Agreement, including,
without limitation, any federal, provincial, state and local sales, use, goods
and services, value-added and personal property taxes on any payments due
Changepoint in connection with the Licensed Materials and/or Maintenance
Services and other services provided hereunder, excluding only income taxes
payable by Changepoint.
(b) All overdue payments shall bear interest at a rate of 12% per annum on
the amounts outstanding from the time such amounts become due until payment is
received by Changepoint.
ARTICLE 5 - PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION
5.1 TITLE TO LICENSED MATERIALS
Customer acknowledges and agrees that Changepoint or licensors of
Changepoint shall retain all right, title and interest in and to the Licensed
Materials and all copies thereof, including, without limitation, the
Intellectual Property Rights therein, and that nothing herein transfers or
conveys to Customer any ownership right, title or interest in or to the Licensed
Materials or to any copy thereof or any license right with respect to same not
expressly granted herein, including, without limitation, with respect to the
Intellectual Property Rights therein.
5.2 CONFIDENTIAL INFORMATION
(a) Each party agrees to maintain the confidentiality of the Confidential
Information of the other party and to use same only as expressly authorized
herein. Each party shall safeguard and maintain the other party's Confidential
Information in strict confidence and shall not disclose, provide, or make the
Confidential Information or any part thereof available in any form or medium to
any person except to such party's employees, and to contractors and consultants
of
31
such party who have executed an agreement in writing to protect such
Confidential Information and who have a need to access such Confidential
Information hereunder.
(b) The provisions of Section 5.2(a) shall not apply to any information
which: (i) was at the time of disclosure to a party, in the public domain, (ii)
after disclosure to a party becomes part of the public domain through no fault
of the receiving party, (iii) was in the possession of the receiving party prior
to the time of disclosure to it without any obligation of confidence or any
breach of confidence, (iv) was received after disclosure to a party from a third
party who had a lawful right to disclose such information to it, (v) was
independently developed by a party without reference to the confidential
information of the other party or (vi) was ordered to be disclosed by a court,
administrative agency, or other governmental body with jurisdiction over the
parties hereto, provided that the ordered party will first have provided the
disclosing party with prompt written notice of such required disclosure and will
take reasonable steps to allow the disclosing party to seek a protective order
with respect to the confidentiality of the information required to be disclosed.
Further, the ordered party will promptly cooperate with and assist the
disclosing party in connection with obtaining such protective order.
5.3 PROTECTION OF PROPRIETARY RIGHTS
(a) Customer shall not remove any proprietary, copyright, patent, trade
▇▇▇▇, design right, trade secret, or any other proprietary rights legends from
the Licensed Materials.
(b) Customer agrees not to disassemble, decompile, translate or convert
into human readable form or into another computer language, reconstruct or
decrypt, or reverse engineer, all or any part of the Licensed Materials in
accordance with law. Further, Customer shall not write or develop any derivative
works or computer programs based upon any part of the Licensed Materials.
5.4 EXPORT OF SOFTWARE
Customer will not export or re-export the Licensed Materials or any
copies thereof, either directly or indirectly, outside of the country in which
such materials are delivered to Customer except in compliance with all
applicable laws, ordinances and regulations. Customer shall have the exclusive
obligation to ensure that any export of the Licensed Materials is in compliance
with all applicable export laws and the laws of any foreign country.
ARTICLE 6 - WARRANTIES OF CHANGEPOINT
6.1 WARRANTY AND DISCLAIMERS
(a) Changepoint warrants that during the Warranty Period: (i) the Licensed
Software will conform substantially to the description thereof in the
Documentation, and (ii) the media upon which the Licensed Software and
Documentation are provided will be free from defects in materials and
workmanship.
(b) Changepoint warrants that the Licensed Software shall be able to
accurately process date data (including but not limited to, calculating,
comparing, and sequencing) from, into and between the ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇
"▇▇▇ ▇▇▇▇▇▇▇▇"). However, such warranty does not apply to any failures to
process date data that result from any software other than the Licensed Software
or hardware or which relate to accepting data from any system not supplied by
Changepoint. For greater clarity the Y2K Warranty shall only apply if Customer
uses the Software in accordance with the Documentation.
(c) Customer's exclusive remedy and Changepoint's sole obligation with
respect to the breach of any of the foregoing warranties is for Changepoint to
(i) make commercially reasonable efforts to correct or provide Customer with a
workaround for the failure of the Licensed Software to conform substantially to
the description thereof in the Documentation or to comply with the Y2K Warranty,
as the case may be, or, at Changepoint's sole option, provide Customer with a
refund for the License Fees paid with respect to such Licensed Software, and
(ii) provide Customer with replacement media in the event there are defects in
materials or workmanship in the media upon which the Licensed Software and
Documentation are provided if the media is returned to Changepoint within the
Warranty Period.
(d) OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 6.1(A) AND
6.1(B), CHANGEPOINT EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES
AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF QUALITY, PERFORMANCE,
RESULTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND THOSE
ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF
TRADE. CHANGEPOINT DOES NOT REPRESENT OR WARRANT THAT (I) THE LICENSED MATERIALS
WILL MEET CUSTOMER'S BUSINESS REQUIREMENTS, (II) THE OPERATION OF THE LICENSED
SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED OR (III) THAT ALL PROGRAMMING
ERRORS CAN BE CORRECTED.
(e) Customer is responsible for taking precautionary measures to prevent
the loss or destruction of customer data and databases such as, for example,
making regular backups and verifying the results obtained from using the
Licensed Materials, and Changepoint shall have no obligations or liability
whatsoever with respect to any such loss or destruction.
6.2 LIMIT OF LIABILITY
(a) FOR ANY BREACH OR DEFAULT BY CHANGEPOINT OF ANY OF THE PROVISIONS OF
THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO,
EXCEPT FOR ANY CLAIM FOR BREACH OF SECTION 5.2 (UNAUTHORIZED DISCLOSURE OF
CONFIDENTIAL INFORMATION), OR FOR BREACH OF SECTION 6.4(A) (INTELLECTUAL
PROPERTY INDEMNITY), CHANGEPOINT'S ENTIRE LIABILITY, REGARDLESS OF THE FORM OF
ACTION, WHETHER BASED ON CONTRACT OR TORT, INCLUDING
32
NEGLIGENCE, SHALL IN NO EVENT EXCEED (I) THE AMOUNT PAID BY CUSTOMER
HEREUNDER FOR THE LICENSED MATERIALS, (II) THE AMOUNT PAID BY CUSTOMER FOR
THE MAINTENANCE SERVICE THAT IS THE SUBJECT OF THE CLAIM IF THE CLAIM RELATES
TO A BREACH OR DEFAULT BY CHANGEPOINT OF THE PROVISIONS OF ARTICLE 7, (III)
THE AMOUNT PAID BY CUSTOMER FOR THE INSTALLATION SERVICE THAT IS THE SUBJECT
OF THE CLAIM IF THE CLAIM RELATES TO A BREACH OR DEFAULT BY CHANGEPOINT OF
THE PROVISIONS OF THIS AGREEMENT PERTAINING TO INSTALLATION SERVICE, OR (IV)
IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS UNDER OR RELATED TO THIS
AGREEMENT, THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT.
(b) IN NO EVENT WILL CHANGEPOINT BE LIABLE FOR SPECIAL, INCIDENTAL,
INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF
PROFITS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY
CLAIM AGAINST CUSTOMER BY ANY OTHER PERSON (EVEN IF CHANGEPOINT HAS BEEN ADVISED
OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE).
(c) CHANGEPOINT SHALL BE LIABLE TO CUSTOMER AS EXPRESSLY PROVIDED IN THIS
AGREEMENT BUT SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN
CONTRACT, TORT OR OTHERWISE TO CUSTOMER INCLUDING ANY LIABILITY FOR NEGLIGENCE.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY
IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY
CUSTOMER, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, OR
ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE
FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED
HEREIN.
6.3 LIMITATION PERIOD
Neither party may bring an action, regardless of form, arising out of
or related to this Agreement (other than to recover License Fees or Maintenance
Fees) more than two (2) years after the cause of action has arisen or the date
of discovery of such cause, whichever is later.
6.4 INTELLECTUAL PROPERTY CLAIMS
(a) Changepoint will defend or (at its option) settle, any claim or action
brought against Customer to the extent that it is based on a claim that the
Licensed Materials infringe any copyright, patent, trade secret or trademark
enforceable in the United States of America of any third person (an
"Infringement Claim") and will indemnify Customer against damages and costs
awarded against Customer by a court of competent jurisdiction by final order
from which no appeal is taken or the time for appealing has expired, provided
that Customer notifies Changepoint promptly in writing of same, and provided
further that Customer permits Changepoint to control the litigation and to
defend, compromise or settle the claim and provides all available information,
assistance and authority to enable Changepoint to do so. Changepoint shall not
be liable to reimburse Customer for any compromise or settlement made by
Customer without Changepoint's prior written consent, or for any legal fees or
expenses incurred by Customer in connection with such claim. Customer shall have
no authority to settle any claim on behalf of Changepoint.
(b) Should the Licensed Materials or any of them become, or in
Changepoint's sole opinion be likely to become, the subject of a claim of
infringement, misappropriation, or violation of an Intellectual Property Right
(an "Infringement Claim") Changepoint may (i) procure for Customer, at no cost
to Customer the right to continue to use the Licensed Materials which are the
subject of the Infringement Claim (ii) replace or modify the Licensed Materials
or part thereof subject to such Infringement Claim with software or
documentation of at least comparable functionality, at no cost to Customer, or
(iii) if neither of the forgoing alternatives are reasonably practical in
Changepoint's sole judgement, remove the component that is the subject of the
Infringement Claim or any or all other parts of the Licensed Materials and
refund to Customer the License Fees paid by Customer for the part removed as
depreciated on a straight line five (5) year basis from the date of delivery of
the part to Customer.
(c) Notwithstanding the foregoing, Changepoint shall have no liability for
any claim that is based on (i) the use of other than the latest release and
version of the Licensed Materials, if such infringement could have been avoided
by the use of the latest version and release and such version or release had
been made available to Customer, (ii) the use or combination of the Licensed
Materials with software, hardware or any other product not provided by
Changepoint, or (iii) any modification to the Licensed Materials or use of the
Licensed Materials other than as expressly authorized herein or as expressly
described or recommended in writing by Changepoint.
(d) This Section 6.4 states the entire liability of Changepoint and
Customer's sole remedies with respect to any Infringement Claim.
ARTICLE 7 - MAINTENANCE AND ENHANCED MAINTENANCE SERVICE
7.1 TERM
(a) Following the expiry of the Warranty Period, Changepoint shall provide
Customer with Maintenance Services during successive annual maintenance terms
(each such term is referred to here as a "Maintenance Term") provided that
Customer pays to Changepoint the Maintenance Fees for each Maintenance Term as
and when due hereunder.
(b) Customer or Changepoint may terminate Maintenance Services at the end
of a Maintenance Term by providing the other with no less than thirty (30) days
prior written notice before the end of the Maintenance Term.
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7.2 MAINTENANCE SERVICE
(a) During the Warranty Period and each Maintenance Term, Changepoint will
provide Maintenance Releases to Customer. Changepoint will also during Business
Hours provide telephone assistance to Customer with respect to initial error
diagnosis and support regarding the functionality of the Licensed Software.
Maintenance Service shall be provided by Changepoint to up to three (3) customer
support staff who are trained and knowledgeable in the use of the Licensed
Materials and who have been designated from time to time by Customer to request
and receive such service.
(b) As part of Maintenance Service and Warranty Support, Customer will have
access to Changepoint's CHANGEPOINT Knowledge Base technical database which
contains technical information concerning the use of the Licensed Software.
Customer acknowledges that information in this database may not have been
verified by Changepoint. Accordingly, Changepoint shall have no responsibility
hereunder with respect to any inaccurate or incomplete information contained in
the CHANGEPOINT Knowledge Base or the use thereof by Customer.
7.3 SERVICES NOT INCLUDED
(a) Maintenance Services and Warranty Support does not include or apply to
any of the following: (i) making modifications to the Licensed Materials for
Customer, (ii) user training, (iii) consultation for new programs or equipment,
(iv) hardware problems including any malfunction of hardware, or to any external
causes affecting the Licensed Materials including the media upon which the
Licensed Materials are provided such as accident, disaster, electrostatic
discharge, fire, flood, lightning, water or wind, or (v) correction of errors
attributable to software other than the Licensed Software. Changepoint may
charge Customer at its then applicable list price for providing such services.
Changepoint may also charge Customer at its then applicable list price for
analysis or removal of errors which are caused by improper operation or handling
of the Licensed Materials or caused by circumstances unrelated to Changepoint.
Payment for these services shall be made by Customer within 30 days of invoicing
by Changepoint.
(b) The obligation to provide Maintenance Services is subject to the
following: (i) Maintenance Services are only provided for the Licensed Software
provided under this Agreement, (ii) if Customer ceases to pay for and receive
Maintenance Services and later requests Maintenance Services, Customer will be
required to pay to Changepoint the Maintenance Fees not paid during the period
in which the service was discontinued, and (iii) Maintenance Services need not
be provided by Changepoint if Customer is not using the most current or an
immediately previous release of the Licensed Materials, or if Customer has made
any modifications to the Licensed Materials and (iv) Changepoint has no
obligation to provide Customer with any Maintenance Services unless Customer has
paid for the Maintenance Services in advance as required hereunder.
ARTICLE 8 - TERM AND TERMINATION
8.1 TERM
This Agreement shall be effective on the Effective Date and shall
terminate in accordance with this Article.
8.2 TERMINATION
Either party may by notice in writing terminate this Agreement if (i)
the other party breaches or fails to observe or perform any of its obligations
set out in this Agreement, including failure to pay any License Fees due and
owing, and fails to cure such breach or failure within thirty (30) days after
written notice; or (ii) either party becomes insolvent, or makes an assignment
for the general benefit of creditors, or any proceedings are commenced by or
against either party under any bankruptcy or insolvency laws or if proceedings
for the appointment of a trustee, custodian, receiver, or receiver manager for
either party are commenced, or if either party ceases or threatens to cease to
carry on business.
8.3 RETURNING LICENSED MATERIALS
Within fifteen (15) days after termination or expiration of this
Agreement for any reason, Customer shall return to Changepoint the original and
all copies of the Licensed Materials in the possession or control of Customer
(including any copies in the possession or control of Business Third Parties or
other Users) and shall certify to Changepoint in writing that all such copies
have been so returned and/or deleted from all computer records. Customer shall
also cease to use the Licensed Materials and ensure that all Business Third
Parties to whom Customer has given access to the Licensed Software also cease to
use the Licensed Materials.
8.4 SURVIVAL
The parties hereto agree that the provisions of Sections 3.3 (the last
sentence), 4.3, 6.2, 6.3 and 8.3, 9.9 and 9.10 and Article 5 shall survive and
remain in full force and effect after the termination of the License or this
Agreement for any reason.
ARTICLE 9 - GENERAL
9.1 HEADINGS
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of the Agreement, as the case may be. The
terms "this Agreement", "hereof", "hereunder" and similar expressions in this
Agreement refer to this Agreement and not to any particular Article, Section or
other portion and include any Agreement supplemental hereto. Unless something in
the subject matter or context is inconsistent therewith, references herein to
Articles and Sections are to Articles and Sections of this Agreement.
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9.2 EXTENDED MEANINGS
In this Agreement words importing the singular number only shall
include the plural and VICE VERSA, and words importing persons shall include
individuals, partnerships, associations, trusts, unincorporated organizations
and corporations. The terms "provision" and "provisions" in this Agreement refer
to terms, conditions, provisions, covenants, obligations, undertakings,
warranties and representations in this Agreement.
9.3 NOTICES
For the purposes of this Agreement, and for all notices and
correspondence hereunder, the addresses of the respective parties have been set
out at the beginning of this Agreement and no change of address shall be binding
upon the other party hereto until written notice thereof is received by such
party at the address shown herein. All notices shall be effective upon receipt
if delivered personally or sent by facsimile and seven (7) days after mailing if
sent by registered mail.
9.4 CURRENCY
All references to currency are deemed to mean lawful money
of the United States of America unless expressed to be in
some other currency.
9.5 FORCE MAJEURE
If the performance of this Agreement, or any obligation thereunder
except the making of payments hereunder is prevented, restricted, or interfered
with by reason of: fire, flood, earthquake, explosion or other casualty or
accident or act of God; strikes or labour disputes; inability to procure or
obtain delivery of parts, supplies, power, equipment or software from suppliers,
war or other violence; any law, order, regulation, ordinance, demand or
requirement of any governmental authority; or any other act or condition
whatsoever beyond the reasonable control of the affected party, the party so
affected, upon giving prompt notice to the other party, shall be excused from
such performance to the extent of such prevention, restriction or interference;
provided, however, that the party so affected shall take all reasonable steps to
avoid or remove such cause of non-performance and shall resume performance
hereunder with dispatch whenever such causes are removed.
9.6 SEVERABILITY
The parties agree that it is the intention of each party not to violate
any public policy, statutory or common law or government regulation. To the
extent that any provision, portion or extent of this Agreement is deemed to be
invalid, illegal or unenforceable, such provision, portion or extent shall be
severed and deleted herefrom or limited so as to give effect to the intent of
the parties insofar as possible and the parties will use their best efforts to
substitute a new provision of like economic intent and effect for the illegal,
invalid or unenforceable provisions and each remaining provision so remaining
shall be enforced.
9.7 ASSIGNMENT
Customer may assign this Agreement without Changepoint's consent (i) to
an Affiliate of Customer; or (ii) to a purchaser of all or substantially all of
Customer's assets. Otherwise, neither this Agreement nor any rights granted
hereby may be transferred or assigned by Customer to any other person without
Changepoint's prior written consent, (such consent shall not be unreasonably
withheld), and any such attempted assignment shall be null and void. In the
event Customer assigns this Agreement to a third person as permitted by this
Section 9.7 or with consent from Changepoint, Customer shall cease all use of
the Licensed Materials and destroy or cause to be destroyed all copies thereof
within its possession or control and the third party assignee shall agree in
writing with Changepoint to assume all of Customer's obligations hereunder.
Customer shall also certify in writing to Changepoint that the foregoing has
been accomplished. This Agreement shall enure to the benefit of and be binding
upon any successor or assign of Changepoint or, any permitted successor or
assign of Customer. The parties agree that Changepoint may delegate to
affiliates of Changepoint and to agents, suppliers, contractors and resellers of
Changepoint any of the obligations herein imposed upon Changepoint and
Changepoint may disclose to any such persons any information required by them to
perform the duties so delegated to them, but such delegation shall not relieve
Changepoint of its performance obligations hereunder.
9.8 WAIVER
No modification, addition to or waiver of any rights, obligations or
defaults shall be effective unless in writing and signed by the party against
whom the same is sought to be enforced. One or more waivers of any right,
obligation or default shall not be construed as a waiver of any subsequent
right, obligation or default. No delay or failure of either party in exercising
any right hereunder and no partial or single exercise thereof shall be deemed of
itself to constitute a waiver of such right or any other rights hereunder.
9.9 GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without
reference to its conflict or choice of law rules or
principles. Customer hereby submits to the non-exclusive
jurisdiction of the courts of the State of New York for
any legal action arising out of this Agreement or the
performance of the obligations hereunder or thereunder.
This Agreement shall be deemed to be made in the State of
New York, and Customer agrees not to commence any action,
suit or proceeding against Changepoint or any affiliate of
Changepoint or any of their employees, officers or
directors in any jurisdiction other than the State of New
York.
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9.10 DISPUTE RESOLUTION AND ARBITRATION
In the event that any dispute or disagreement between
Customer and Changepoint with respect to the
interpretation of any provision of this Agreement, the
performance of Changepoint or Customer under this
Agreement, or any other matter that is in dispute between
the parties related to this Agreement, upon the written
request of either party, the parties will meet for the
purpose of resolving such dispute. The parties agree to
discuss the problem and negotiate in good faith without
the necessity of any formal proceedings related thereto.
No formal proceedings for the resolution of such dispute
may be commenced until either party concludes in good
faith that the applicable resolution through continued
negotiation of the matter in issue does not appear likely.
The parties further agree that all disputes hereunder
which cannot be settled in the manner hereinbefore
described (any such dispute is referred to here as a
"Dispute") will be settled by final and binding
arbitration conducted in accordance with the American
Arbitration Association (or any successor thereto), as
amended from time to time. Judgment upon the award
rendered in any such arbitration may be entered in any
court having jurisdiction thereof, or application may be
made to such court for a judicial acceptance of the award
and an enforcement, as the law of such jurisdiction may
require or allow.
Notwithstanding the foregoing, disputes with respect to any
Infringement Claim including without limitation any claim based on the
infringement, violation or misappropriation of any Intellectual Property Right
shall not be settled by arbitration, without the prior written consent of the
parties.
The arbitration panel will be composed of one person
appointed by the party requesting the arbitration (the
"Applicant"), one person appointed by the other party (the
"Respondent") and a third person to act as chairperson,
chosen by the two arbitrators, or, if both parties agree,
the arbitration panel will consist of a sole arbitrator.
No person may be appointed as an arbitrator unless he or
she is independent of the Applicant and Respondent, is
skilled in the subject matter of the Dispute and is not
directly or indirectly carrying on or involved in a
business being carried on in competition with the business
of the parties. The decision of the arbitration panel
shall be made by a majority vote or by the sole
arbitrator, as the case may be. In the event of the
failure of the arbitration panel to reach a majority
decision, the decision of the chairperson shall constitute
the decision of the arbitration panel. The venue for the
arbitration shall be at the City of New York, New York
unless otherwise agreed to by the parties in writing.
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CONFIDENTIAL TREATMENT
Corio/Changepoint Rev. 12/13/99
Confidential/Draft
APPENDIX A
The Components which are the subject of the License, the Software Licenses
granted to Customer and the fees payable to Changepoint hereunder are as
follows:
1. LICENSED SOFTWARE
The Components of the CHANGEPOINT Software which are licensed to
Customer hereunder are the following: CHANGEPOINT, SQL edition, version
5.2, for an unlimited number of users, including the following modules:
- Service Delivery Management
- Project and Resource Management
- Customer Relationship Management
- Support Management.
2. SOFTWARE LICENSES
The utilization rights of Customer are as follows:
(a) Customer is granted an unlimited number of Client Access Licenses.
Each Client Access License entitles Customer to receive one (1)
Enable Code from Changepoint which will enable Customer to have
one (1) user use the Licensed Materials.
(b) Customer may install Licensed Software on one or more computer
servers as it desires.
3. LICENSE FEES
The License Fee is ***.
4. WARRANTY PERIOD
The Warranty Period for the Licensed Software shall mean the period
commencing on the Effective Date and ending ninety (90) days
thereafter.
5. MAINTENANCE FEES
(a) Customer will pay Changepoint for each Maintenance Term an annual
maintenance fee (the "Annual Maintenance Fee"). The Annual
Maintenance Fee is 18% of the undiscounted License Fees due to
Changepoint hereunder and is payable annually in advance. The
first Annual Maintenance Fee is due upon the expiration of the
Warranty Period and is ***. Subsequent Annual Maintenance Fees
are due on the anniversary of the date the first Annual
Maintenance Fee is due. Additional Maintenance Fees that result
from the acquisition of additional Software Licenses shall become
due when the additional Software Licenses are given to Customer
and shall be prorated to the end of the Maintenance Term.
(b) The Maintenance Fees may be increased annually by Changepoint by
providing Customer with notice of not less than thirty (30) days
prior to the end of a Maintenance Term. Changepoint agrees not to
increase its Maintenance Fees annually by more than six percent
(6%) from the fees charged in the previous Maintenance Term.
6. INSTALLATION SERVICES TO BE PROVIDED BY CHANGEPOINT
(a) Changepoint agrees to provide the following services
("Installation Services") to Customer:
Executive Expectations Review ***
Project Management ***
Infrastructure Support ***
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
1
CONFIDENTIAL TREATMENT
Corio/Changepoint Rev. 12/13/99
Confidential/Draft
Systems Configuration & Installation ***
Implementation Support ***
Administrator Training ***
Train-the-Trainer Training ***
(b) Customer agrees to pay Changepoint for any Installation Services
requested by Customer and provided by Changepoint at the daily
rates listed in 6(a) above.
(c) Changepoint does not guarantee that all services will be provided
for the above-mentioned fees. The fees may be higher or lower
depending on the actual services requested by Customer.
(d) Customer shall reimburse Changepoint for reasonable travel
expenses, and reasonable incidental expenses relating to
Installation Service and Maintenance Service at Changepoint's then
current prices then in effect. Changepoint shall invoice Customer
for such fees and expenses on a monthly basis. Customer shall not
be liable for the aforesaid expenses unless Customer has given
Changepoint approval to incur them.
CHANGEPOINT INC. CORIO, INC.
Signature ________________________ Signature _____________________
Name _____________________________ Name __________________________
Title ____________________________ Title _________________________
*** The omitted material has been filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment.
2