EXHIBIT 10.20
[LOGO]
SIEBEL ALLIANCE PROGRAM
MASTER AGREEMENT
THIS SIEBEL ALLIANCE PROGRAM MASTER AGREEMENT (the "Agreement") is between
SIEBEL SYSTEMS, INC., with its principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Siebel") and the ALLIANCE PARTNER
("Partner") identified below.
THIS AGREEMENT ESTABLISHES THE FRAMEWORK OF THE SIEBEL ALLIANCE PROGRAM (THE
"ALLIANCE PROGRAM"), A COMPREHENSIVE TECHNICAL AND MARKETING PROGRAM FOR
SIEBEL'S ALLIANCE PARTNERS TO DEVELOP AND PROMOTE THEIR PRODUCTS, SERVICES AND
SOLUTIONS IN CONJUNCTION WITH THE SIEBEL APPLICATIONS. THE BENEFITS AVAILABLE TO
PARTNER THROUGH THE ALLIANCE PROGRAM, AND THE REQUIREMENTS PARTNER MUST MEET,
DEPEND ON THE PARTNER'S CATEGORY AND PARTNER LEVEL (AS DESIGNATED ON EXHIBIT A)
AND ARE SET FORTH IN THE SIEBEL ALLIANCE PROGRAM GUIDE. EACH OF PARTNER AND
SIEBEL ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS NOT INTENDED TO AND SHALL
NOT BE CONSTRUED TO AMEND, MODIFY OR CONTROL IN ANY WAY ANY OTHER AGREEMENT
BETWEEN THE PARTIES.
1. DEFINITIONS
The following definitions shall apply to this Agreement and any addenda hereto
(if any). Many of the definitions below are not referred to in this Agreement
but may be referred to in addenda to this Agreement:
1.1 "DELIVERABLES" shall mean any tangible materials provided to Partner by
Siebel in the course of performing technical support services (if any).
1.2 "DOCUMENTATION" shall mean Siebel's then current published guides, manuals
and on-line help made generally available to its customers for the Ordered
Programs.
1.3 "EFFECTIVE DATE" shall mean the effective date set forth at the end of this
Agreement.
1.4 "INTELLECTUAL PROPERTY RIGHTS" will mean and include all trade secrets,
patents, copyrights, designs, mask works, drawings, Marks and other proprietary
rights, whether registered or unregistered, and all applications and
registrations therefor, which pertain to the Alliance Program, the Programs, or
the Partner Products.
1.5 "LOGO USE POLICY" shall mean Siebel's then current written policies for
proper usage and placement of the Marks, as amended from time to time by Siebel
in its discretion.
1.6 "MARKS" shall mean the trademarks, service marks, trade names, and logos of
Siebel, its licensors, and Partner.
1.7 "PARTNER CATEGORY" shall mean Siebel's then current Alliance Program
categories, as amended from time to time by Siebel in its discretion. As of the
Effective Date, the current Partner Categories are listed in EXHIBIT A.
1.8 "PARTNER LEVEL" shall mean Siebel's then current Alliance Program
participation levels within a given Partner Category, as amended from time to
time by Siebel in its discretion. As of the Effective Date, the current Partner
Levels are listed in EXHIBIT A.
1.9 "PARTNER PRODUCTS" shall mean one or more of the following value-added goods
and/or services developed, sold, or provided by Partner to customers in the
ordinary course of business: (i) provision of consulting, professional,
training, technical support or educational services; (ii) development and/or
licensing of application software; (iii) development and/or licensing of
software content; (iv) development and/or sale of hardware, database systems,
network services, and/or operating systems.
1.10 "PROGRAMS" shall mean those Siebel software programs that are listed as
generally available in Siebel's then-current marketing literature and that are
generally licensed by Siebel for commercial use.
1.11 "SIEBEL ALLIANCE LOGO" shall mean the logo specified by Siebel for use in
association with a given Partner Category and Partner Level.
1.12 "SIEBEL ALLIANCE PROGRAM GUIDE" shall mean Siebel's then current published
guide for the Siebel Alliance Program setting forth the specific benefits and
requirements for each Partner Category and Partner Level, as amended from time
to time by Siebel in its discretion.
1.13 "SIEBEL CERTIFIED PROFESSIONALS" shall mean the individuals who have been
certified with respect to a particular major version of the Programs by Siebel,
or a third party authorized by Siebel, upon completion of the applicable
certification requirements established by Siebel, as amended from time to time
by Siebel in its discretion.
1.14 "TERRITORY" shall mean the geographical territory and/or vertical markets
as specified in EXHIBIT A.
1.15 "TRAINING MATERIALS" shall mean any training materials provided in
connection with any training courses ordered by Partner and delivered by Siebel.
1.16 "USERS" shall mean the named or specified (by password or other user
identification) individuals authorized by Partner to use Programs, regardless of
whether the individual is actively using the Programs at any given time. The
maximum number of Users that may use the User Programs or access the System
Programs is specified in Exhibit A to the Limited Use License. Users may only
include employees of Partner; notwithstanding the foregoing, Users shall exclude
any individuals employed by, or acting on behalf or under the direction of, a
direct competitor of Siebel.
2. APPOINTMENT
Siebel hereby appoints Partner within the Territory as a non-exclusive Siebel
Alliance Program Partner for the Partner Category and Partner Level specified in
EXHIBIT A. Upon Partner's request, Siebel has the right, but not the obligation,
to upgrade Partner to a higher Partner Level and/or approve Partner for a new
Partner Category. If Partner is upgraded to a higher Partner Level and/or is
approved for a new Partner Category, then Partner shall satisfy the
corresponding requirements and obligations as set forth in the Siebel Alliance
Program Guide. If during the term of this Agreement Siebel offers a more
desirable program Partner will have the right to participate in such a program
with the commitments and benefits of that level
3. TERM AND TERMINATION
3.1 TERM. This Agreement will commence as of the Effective Date and will remain
in effect for a period of one (1) year, unless terminated earlier upon mutual
written agreement of the parties or as otherwise described in this Section 3.
This Agreement and any addenda hereto may be renewed for additional terms of one
(1) year each so long as Partner has satisfied and continues to satisfy the
Partner obligations and requirements as set forth in the Siebel Alliance Program
Guide, this Agreement, and any addenda hereto, including without limitation
timely payment of all applicable fees due hereunder. Any renewal term is subject
to Siebel's acceptance and final approval that shall be indicated by delivery to
Partner of Siebel's letter of acceptance or notice of renewal. If Siebel does
not accept Partner's renewal or if Partner fails to pay the applicable fees on
or before the anniversary date of this Agreement, then this Agreement shall
immediately expire.
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3.2 TERMINATION. Following the initial one year term of this Agreement, either
party may terminate this Agreement or any addenda hereto without cause upon 180
days prior written notice to the other party. In addition, either party may
terminate this Agreement or any addenda hereto immediately upon notice to the
other party if (i) the other party materially breaches any obligation under this
Agreement or any addenda hereto, and, if the breach is capable of being cured,
such party fails to cure such breach within thirty (30) calendar days after
written notice of the breach; (ii) the other party ceases to conduct business in
the normal course, becomes insolvent, enters in bankruptcy procedures or becomes
subject to any other judicial proceedings that relate to insolvency or
protection of creditor's rights; or (iii) the other party undergoes a change in
control that, in the terminating party's sole discretion, may have an adverse
affect on the terminating party's business or rights under this Agreement or any
addenda hereto.
3.3 LIABILITY FOR FEES UPON TERMINATION. If Partner terminates this Agreement or
any addenda hereto for cause, or if Siebel terminates this Agreement or any
addenda hereto without cause, Partner shall only be liable for payment of any
fees under this Agreement or any addenda hereto through the date of such
termination and Partner shall receive a pro-rata refund of any remaining
pre-paid fees. If Siebel terminates this Agreement or any addenda hereto for
cause, or if Partner terminates this Agreement or any addenda hereto without
cause, Partner shall be liable for payment of any accrued fees under this
Agreement or any addenda hereto through the end of the current annual period.
Neither party shall be responsible to the other for any costs or damages
resulting from the termination of this Agreement.
3.4 EFFECTS OF TERMINATION. Upon termination of this Agreement with or without
cause: (I) all rights and obligations granted to either party under this
Agreement and any addenda hereto will immediately cease; (ii) Partner will
immediately cease to represent itself as a Siebel Alliance Program Partner and
Siebel will immediately cease to represent Partner as a Siebel Alliance Program
Partner; and (iii) each party will promptly cease use of, and, at the other
party's option, either promptly destroy or return to the other party: (a (b) all
logos, files and other materials provided by the other party under this
Agreement, and (b) all Confidential Information of such other party as well as
any materials that embody any such Confidential Information. Partner shall cease
use of and either return or destroy all copies of the Programs licensed to
Partner under the Limited Use License Addendum to this Agreement within five
business days of the termination or expiration of this Agreement. Termination of
this Agreement shall not limit either party from pursuing other remedies
available to it, including injunctive relief, nor shall such termination relieve
Partner of its obligation to pay all fees that have accrued or are otherwise
owed by Partner under this Agreement or an addenda hereto.
3.5 SURVIVAL. Notwithstanding any provision to the contrary, Sections 4, 8, 9,
10, 11, 12 and this Section 3 will survive termination of this Agreement.
4. PAYMENT
4.1. FEES. During the initial term and for each renewal term, Partner shall pay
Siebel (i) the applicable annual fee for the Partner Category and Partner Level
as stated in the Siebel Alliance Program Guide, and (ii) any fees or charges due
pursuant to a valid addendum hereto (if any).
4.2. PAYMENT TERMS. The applicable annual fee for the Partner Category and
Partner Level as stated in the Siebel Alliance Program Guide shall be due and
payable in full on or before the anniversary date of this Agreement. Except as
specifically provided otherwise, all other fees shall be due and payable in full
on or before thirty (30) days from the receipt of Siebel's invoice. All payments
made pursuant to this Agreement or any addenda hereto shall be (i) payable in
U.S. currency, (ii) made without any deduction, whether by set-off,
counterclaim, or otherwise, and (iii) nonrefundable and irrevocable except as
set forth in Section 3.3 above.
4.3 TAXES. The fees listed in this Agreement do not include taxes, duties or
fees; if Siebel is required to pay (i) sales, use, property, value-added,
withholding or other taxes, (ii) any customs or other duties, or (iii) any
import, warehouse or other fees, associated with the importation or delivery
based on the Programs or services provided in this Agreement or on Partner's use
of Programs or services, then such taxes, duties or fees shall be billed to and
paid by Partner. If Partner is permitted to declare any such taxes, Partner
shall declare and pay such taxes and Siebel shall not be required to invoice
Partner. This Section shall not apply to taxes based on Siebel's income or
payroll taxes.
5. ALLIANCE PROGRAM FEATURES
5.1 SIEBEL ALLIANCE MARKETING PROGRAMS. Partner shall be eligible to participate
in the Siebel marketing programs as set forth in the Siebel Alliance Program
Guide. Certain Siebel marketing programs are restricted to particular Partner
Categories and/or Partner Levels as stated in the Siebel Alliance Program Guide.
5.2. MARKET DEVELOPMENT FUND. If Partner is joining the Siebel Alliance Program
at a particular Partner Category and Partner Lever for which a Market
Development Fund amount is specified under the Siebel Alliance Program Guide,
Partner shall commit the amount specified for such Market Development Fund.
Siebel will match up to the amount that Partner actually spends on jointly
managed marketing programs approved by Siebel. The parties agree to jointly
develop a plan for using such Market Development Fund to benefit the parties,
Programs, and/or Partner Products.
5.3. SIEBEL ALLIANCE LOGO USAGE. Partner may use the applicable Siebel Alliance
Partner Logo in accordance with the Logo Use Policy upon (i) entering into a
Logo License Addendum with Siebel pursuant to which Siebel grants Partner the
right to use the applicable Siebel Alliance Program Partner ▇▇▇▇ in connection
with Partner's marketing materials for the Partner Products, (ii) paying any
corresponding license fees (if any), and (iii) fulfilling all other applicable
requirements and obligations under this Agreement. Except as specifically set
forth in this Agreement, Partner's right to use the Marks of the Siebel Alliance
Program shall be governed exclusively by the Siebel Alliance Program Logo
License Addendum.
5.4 MARKETING AND DEMONSTRATION LICENSE. Partner may use the Programs upon (i)
entering into a Limited Use Program License Addendum executed by Siebel and
Partner pursuant to which Siebel grants Partner limited use rights with respect
to certain Programs for Partner's marketing and demonstration use and (ii)
paying the corresponding license fees (if any). The Siebel Alliance Program
Guide sets forth whether entering into such addendum is required for a
particular Partner Category and Partner Level. Except as specifically set forth
in this Agreement, Partner's rights and obligations with respect to such
marketing and demonstration use shall be governed exclusively by the Siebel
Alliance Program Limited Use Program License Addendum.
5.5 DEVELOPMENT LICENSE. Partner may use the Programs upon (i) entering into a
Siebel Alliance Program Limited Use Program License Addendum executed by Siebel
and Partner pursuant to which Siebel grants Partner limited use rights with
respect to certain Programs for Partner's internal development and testing use
and (ii) paying the corresponding license fees (if any). The Siebel Alliance
Program Guide sets forth whether entering such addendum is required for a
particular Partner Category and Partner Level. Except as specifically set forth
in this Agreement, Partner's rights and obligations with respect to such
internal development and testing use shall be governed exclusively by the Siebel
Alliance Program Limited Use Program License Addendum.
5.6 TECHNICAL SUPPORT ADDENDUM. If offered by Siebel, Partner shall be entitled
to receive technical support from Siebel upon (i) entering into the Siebel
Alliance Program Technical Support Addendum pursuant to which Siebel provides
Partner with certain technical support with respect to the Programs and (ii)
paying any corresponding fees (if any). The Siebel Alliance Program Technical
Support Addendum and the Siebel Alliance Program
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Guide set forth the scope of technical support available to Partner. Except as
specifically set forth in this Agreement, Partner's rights and obligations with
respect to such technical support shall be governed exclusively by the Siebel
Alliance Partner Technical Support Addendum.
5.7 TRAINING SERVICES. Siebel will provide training to Partner, subject to
availability, in accordance with Siebel's Training Services schedule in effect
at the time such training is ordered (available upon request).
5.8 TECHNICAL SERVICES. Siebel will provide technical services, subject to
availability, in accordance with Siebel's Technical Services schedule in effect
at the time such services are ordered (available upon request).
5.9 ADVERTISING AND PROMOTIONAL MATERIALS.
5.9.1 PERMITTED USES OF PARTNER MARKS. Siebel may, in its discretion, reference
the Partner and Partner's products by using the names and/or logos of
Partner and/or its Products in advertising and promotional materials in
connection with the sale and promotion of the Programs and/or promotion
of the Alliance Program as follows: (i) in lists of the Siebel Alliance
Program Partners for customer information, (ii) in general advertising of
the Siebel Alliance Program, (iii) in general marketing materials listing
all Siebel Alliance Partners of a particular Partner Category(ies) and/or
Partner Level(s), (iv) by framing and displaying the names and/or logos
along with those of other Alliance Partners at Siebel's corporate
headquarters in San Mateo, California and at its selected business
offices, (v) by displaying such names and/or logos in a professionally
prepared graphic for display at promotional events and trade show events,
and (vi) displaying such names and/or logos as a link to Partner's web
site on the Siebel web site. In the event Partner provides Siebel with
images of Partner's logo for use as set forth above, Siebel agrees it
will not alter the color or configuration of such image, except as to
size, provided however that the proportions shall remain the same.
5.9.2 OTHER USES OF PARTNER MARKS. When a specific advertisement or promotion
is planned which will refer to Partner without reference to any other
Siebel Alliance Partners, Siebel will obtain Partner's written permission
before such use. Siebel shall also obtain Partner's written permission
before use of any logo of Partner; provided that Partner hereby consents
to Siebel's display of Partner's logo on the area of the Siebel website
relating to the Siebel Alliance Program and Partner shall provide Siebel
with digital files and artwork of Partner's logo for this purpose.
5.10 CHANGES TO THE SIEBEL ALLIANCE PROGRAM. Partner acknowledges and agrees
that Siebel may expand, change the scope or contents of, and/or delete, any
terms of benefits offered under the Siebel Alliance Program, including but not
limited to expanding, changing the scope or contents of and/or deleting the
Siebel Alliance Program Guide or any terms therein. Siebel will provide Partner
with thirty (30) days advance written notice of any changes to the scope,
contents and/or benefits offered under the Siebel Alliance Program that in
Siebel's reasonable sole discretion are material. "Written notice" for the
purposes of this Agreement may include notice via electronic means such as
email. In the event that Siebel changes any Alliance Program features, and
should Partner be dissatisfied with those changes, Partner may terminate this
Agreement in accordance with Section 3.2 and will have no further recourse
against Siebel.
6. VALIDATION
The terms of this Section 6 shall only apply where Partner is required, pursuant
to the Siebel Alliance Program Guide, to have its Partner Products validated by
Siebel.
6.1 TESTING. Partner shall submit the Partner Products to Siebel for testing
compatibility with the specifications, standards, and objectives as set forth in
Siebel's Validation Guidelines (the "Testing Criteria"), as amended from time to
time by Siebel in its discretion. Upon Siebel's request, Partner shall make
available, at no charge, a technical liaison to assist in such compatibility
testing.
6.2 VALIDATION; ACCEPTANCE. If Siebel's testing procedure demonstrates that, in
Siebel's discretion, the Partner Product satisfies all applicable Testing
Criteria, then Siebel shall provide written notice validating that such Partner
Product conforms to Siebel's Validation Guidelines. Such Partner Product shall
not be deemed accepted by Siebel until Siebel notifies Partner of its acceptance
in writing. Any validation granted by Siebel with respect to a Partner Product
shall apply only with respect to the particular Programs and versions for which
the Partner Product was tested and approved by Siebel. If, in Siebel's
discretion, the Partner Product does not satisfy all applicable Testing
Criteria, then Siebel shall notify Partner in reasonable detail of the reasons
for deficiency. Upon receipt of such notification, Partner shall use its
commercially reasonable efforts to remedy such deficiencies and resubmit, within
a reasonable period, the Partner Product to Siebel for re-testing. The parties
agree that, if a Partner Product fails to satisfy, in Siebel's discretion, the
Testing Criteria after three (3) cycles of rejection and resubmission, Siebel
shall have the option, in its discretion, to terminate this Agreement
immediately either in its entirety or partially with respect to the such
rejected Partner Product.
6.3 NEW RELEASES. If Partner issues a new release of the Partner Program that
incorporates new features or functionality, Partner shall notify Siebel of such
new release and shall apply for re-validation of the Partner Program pursuant to
this Section 6. Such new release shall not be deemed approved by Siebel until
Siebel notifies Partner of its approval in writing. If Siebel issues a new
release of the Programs that incorporates new features or functionality, the
Siebel-validated status of any Partner Products on the new release of the
Programs is conditional upon Partner re-validating the Partner Products pursuant
to this Section 6 within three (3) months of the general availability of the new
release of the Programs.
7. PARTNER REPRESENTATIONS AND WARRANTIES
7.1 MEMBERSHIP APPLICATION. Partner agrees that all the information provided on
any registration or application form submitted to Siebel is, in all material
respects, true and correct. Should there by any changes in such information
during the course of this Agreement, Partner agrees to promptly inform Siebel in
writing giving details of such changes.
7.2 PARTNER PRODUCTS. [NOT APPLICABLE FOR CONSULTING PARTNERS]. Partner agrees
that it currently markets and sells the Partner Products, that it meets the
requirements of the applicable Partner Category and Partner Level as set forth
in the Siebel Alliance Program Guide, and that it will continue to do so during
the term of this Agreement.
7.3 CERTIFIED STAFFING LEVELS. [FOR CONSULTING PARTNERS ONLY]. Partner
acknowledges and agrees that, at all times during the term of this Agreement and
any renewals hereto, Partner shall employ the number and types of Siebel
Certified Professionals as set forth in the Siebel Alliance Program Guide for
the Partner Category and Partner Level applicable to Partner (if any). Partner
acknowledges and agrees that, as a condition to maintaining Siebel Certified
Professional status, each Siebel Certified Professional must be re-certified
with respect to each new major release of the Programs within three (3) months
of the general availability of such new major release by completion of the
applicable validation requirements established by Siebel, as amended from time
to time by Siebel in its discretion.
7.4 FULL POWER AND AUTHORITY. Each party represents and warrants that (i) it has
full power and authority to enter into this Agreement; and (ii) it shall make no
representations, warranties, or guarantees on behalf of the other party.
7.5 STANDARDIZATION ON SIEBEL APPLICATIONS. If required under the Siebel
Alliance Program Guide, Partner represents and warrants that (i) it has already
entered into a valid and binding Software License and Services Agreement for
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the Programs with Siebel or it will do so within thirty (30) days of the
Effective Date of this Agreement; and (ii) it has standardized on such Programs
or is using its best efforts to promptly standardize on such Programs. Such
Software License and Services Agreement for the Programs, and all fees payable
thereunder, shall be entirely separate and distinct from this Agreement.
8. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
8.1 WARRANTY DISCLAIMER. ALL GOODS AND/OR SERVICES PROVIDED HEREUNDER ARE
PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND. EACH PARTY HEREBY
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR
ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS, DAMAGE
OR EXPENSE THAT DIRECTLY OR INDIRECTLY ARISES FROM OR IN CONNECTION WITH THE
INABILITY OF EITHER THE PARTNER PRODUCTS OR THE PROGRAMS TO WORK WITH EACH
OTHER. Except for Siebel's liability for any breach of its obligations under
Sections 9 (Indemnification) or 11 (Nondisclosure), Siebel's aggregate and
cumulative liability for damages hereunder shall in no event exceed the amount
of fees paid by Partner under this Agreement. Except for any breach of its
obligations under Sections 4 (Payment), 9 (Indemnification) and 11
(Nondisclosure), Partner's aggregate and cumulative liability for damages
hereunder shall in no event exceed the amount of fees paid by Partner under this
Agreement.
9. INDEMNIFICATION
9.1 SIEBEL'S INDEMNITY. If a third party makes a claim against Partner that the
Programs directly infringe any U.S. or Canadian patent issued as of the
Effective Date or any copyright, trade secret or trademark ("IP Claim"); Siebel
will defend Partner against the IP Claim and pay all costs, damages and expenses
(including reasonable legal fees) finally awarded against Partner by a court of
competent jurisdiction or agreed to in a written settlement agreement signed by
Siebel arising out of such IP Claim; PROVIDED THAT: (i) Partner promptly
notifies Siebel in writing no later than sixty (60) days after Partner's receipt
of notification of a potential claim; (ii) Siebel may assume sole control of the
defense of such claim and all related settlement negotiations; and (iii) Partner
provides Siebel, at Siebel's request and expense, with the assistance,
information and authority necessary to perform Siebel's obligations under this
Section. Notwithstanding the foregoing, Siebel shall have no liability for any
claim of infringement based on (a) the use of a superseded or altered release of
Programs if the infringement would have been avoided by the use of a current
unaltered release of the Programs, which Siebel provided to Partner, (b) the
modification of a Program, or (c) the use of the Programs other than in
accordance with the Documentation and this Agreement.
If, due to an IP Claim or the threat of an IP Claim, (i) the Programs are held
by a court of competent jurisdiction, or in Siebel's reasonable judgment may be
held to infringe by such a court, or (ii) Partner receives a valid court order
enjoining Partner from using the Programs, or in Siebel's reasonable judgment
Partner may receive such an order, Siebel shall in its reasonable judgment, and
at its expense, (a) replace or modify the Programs to be non-infringing; (b)
obtain for Partner a license to continue using the Programs; or (c) if Siebel
cannot reasonably obtain the remedies in (a) or (b), terminate the Program
License for the infringing Programs and refund the license fees paid for those
Programs upon return by Partner. This Section 9.1 states Siebel's entire
liability and Partner's exclusive remedy for any claim of infringement.
9.2 MUTUAL GENERAL INDEMNITY. Each party ("Indemnitor") will defend and
indemnify the other party ("Indemnitee") against any and all costs, damages and
expenses (including reasonable legal fees) finally awarded against Indemnitee by
a court of competent jurisdiction or agreed to in a written settlement agreement
signed by Indemnitor arising out of or in connection with any claim by any third
party arising out of or in connection: (i) information supplied by Indemnitor to
the third party regarding the features, functionality, performance, or use of
the Programs or Partner's Products (as applicable) except where either such
information was supplied to Indemnitor by Indemnitee for further distribution,
or such supply by Indemnitor was specifically authorized by Indemnitee in
writing; (ii) any representation made by Indemnitor that Indemnitee has
endorsed, warranted, or guaranteed Indemnitor's Products or Programs (as
applicable) without the specific, prior written consent of Indemnitee; PROVIDED
THAT: (a) Indemnitee promptly notifies Indemnitor in writing no later than sixty
(60) days after Indemnitee's receipt of notification of a potential claim; (b)
Indemnitor may assume sole control of the defense of such claim and all related
settlement negotiations; and (c) Indemnitee provides Indemnitor, at Indemnitor's
request and expense, with the assistance, information and authority necessary to
perform Indemnitor's obligations under this Section.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 OWNERSHIP. Siebel and Partner hereby acknowledge that the other party is
the exclusive owner of all rights, title, and interest in and to, or authorized
licensee of, their respective Intellectual Property Rights (with respect to the
Partner Products for Partner, and with respect to the Programs, the Alliance
Program, Training Materials and Deliverables for Siebel). Neither party will
acquire any rights in or to any of the Intellectual Property Rights of the
other. Neither party will take any action that may adversely affect or impair
the other party's, or its licensor's, rights, title and interest in or to their
Intellectual Property Rights. Any terms regarding Intellectual Property Rights
in other materials shall be separately negotiated and agreed to in writing.
10.2 INFRINGEMENT NOTIFICATION. Each party shall render to the other party all
reasonable assistance as may be required to preserve the validity and
enforceability of the other party's, or its licensor's, rights, title and
interest in and to the Intellectual Property Rights. Each party agrees that it
shall promptly notify the other party (i) of any and all infringements,
imitations, illegal use, misuse, or misappropriation, by any third party of the
Intellectual Property Rights which comes to its attention, and (ii) of any
claims or objections that such party's use of the Intellectual Property Rights
may or will infringe the copyrights, patents, designs, trademarks or other
proprietary rights of any other third party. Each party, as the owner or
authorized licensor of the Intellectual Property Rights, shall be responsible
for taking any action or initiating any proceedings which such party, in its
sole discretion, determines to be necessary or appropriate to prevent any
infringement of its Intellectual Property Rights, and the parties shall provide
each other with such assistance as reasonably requested in connection with any
such action or proceeding.
11. NONDISCLOSURE
11.1 DEFINITION. Each party may have access to information that is
confidential to the other party ("Confidential Information"). Siebel's
Confidential Information shall include, but not be limited to, the Programs,
Documentation, formulas, methods, know how, processes, designs, new products,
developmental work, marketing requirements, marketing plans, customer names,
prospective customer names, the terms and pricing under this Agreement, and
all information clearly identified in writing at the time of disclosure as
confidential. Siebel's Confidential Information constitutes trade secrets of
Siebel and/or its suppliers. Partner's Confidential Information constitutes
trade secrets of Partner and/or its suppliers. Partner's Confidential
Information shall include, but not be limited to, its Partner Products,
formulas, methods, know-how, processes, designs, new products, developmental
work,
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marketing requirements, marketing plans, customer names, prospective customer
names, and all information clearly identified in writing at the time of
disclosure as confidential. Confidential Information includes all information
received from third parties that either party is obligated to treat as
confidential and oral information that is identified by either party as
confidential.
11.2 EXCEPTIONS. A party's Confidential Information shall not include
information that (i) is or becomes a part of the public domain through no act or
omission of the other party; (ii) was in the other party's lawful possession
prior to the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (iii) is lawfully disclosed to
the other party by a third party without restriction on disclosure; (iv) is
independently developed by the other party without use of or reference to the
other party's Confidential Information; or (v) is required to be disclosed by
law or valid order of a court or other governmental authority; PROVIDED,
HOWEVER, that the responding party shall first have given notice to the other
party and shall have made a reasonable effort to obtain a protective order
requiring that the Confidential Information so disclosed be used only for the
purposes for which the order was issued.
11.3 RESTRICTIONS. The parties agree, unless required by law, not to make each
other's Confidential Information available in any form to any third party
(except third parties who are Users as defined hereunder) or to use each other's
Confidential Information for any purpose other than in the performance of this
Agreement. Partner shall not disclose the results of any performance tests of
the Programs to any third party without Siebel's prior written approval. Each
party agrees to take all reasonable steps to ensure that Confidential
Information is not disclosed or distributed by its employees or agents in breach
of this Agreement. The parties agree to hold each other's Confidential
Information in confidence during the term and any renewal terms of this
Agreement and for a period of three (3) years thereafter.
11.4 EQUITABLE RELIEF. Each party acknowledges and agrees that, due to the
unique nature of Confidential Information, there can be no adequate remedy at
law for breach of this Section 11 and that such breach would cause irreparable
harm to the non-breaching party; therefore, the non-breaching party shall be
entitled to seek immediate injunctive relief, in addition to whatever remedies
it might have at law or under this Agreement. This Section 11 constitutes the
entire understanding of the parties and supersedes all prior or contemporaneous
agreements, representations or negotiations, whether oral or written, with
respect to Confidential Information.
12. GENERAL PROVISIONS
12.1 NO PARTNERSHIP. The parties undertake their respective obligations under
this Agreement as independent contractors. This Agreement does not, and is not
intended to, create any employment, agency, distributorship, franchise, joint
venture, legal partnership or other similar legal relationship between Siebel
and Partner. Neither party will have any right or authority to act on behalf of,
or to bind, the other party and neither party will represent to any third party
that it has such right or authority.
12.2 NON-EXCLUSIVITY; FREEDOM OF ACTION. This Agreement is not exclusive in any
respect. Each party may enter into similar agreements with other parties.
Partner acknowledges that, under the Alliance Program, Siebel intends to enter
into similar agreements with other companies who may compete directly or
indirectly with Partner or Partner's Products. Nothing contained in this
Agreement will limit the right of each party to develop products and/or services
similar to those of the other party, provided that such development activity
does not violate any term or condition of this Agreement, including but not
limited to the confidentiality provisions of Section 11. Each party shall be
free to use for any purpose the ideas, concepts, know-how and techniques that
are contained in the Confidential Information provided hereunder and retained in
the unaided memories of each party's employees who have had valid access to the
Confidential Information provided pursuant to this Agreement; provided, however,
that this Section 12.2 (i) shall not give either party the right to disclose the
other party's Confidential Information to a third party and (ii) is subject to
the respective copyright and patent rights of the parties.
12.3 NO ASSURANCES. Siebel makes no representation or warranty that Partner will
succeed in licensing or selling any Partner Product to any present or future
Siebel customer, and Siebel will not be liable to Partner for Partner's failure
to license or sell Partner Products. Partner makes no representation or warranty
that Siebel will succeed in licensing or selling the Programs or related
products and services to any present or future Partner customer, and Partner
will not be liable to Siebel for Siebel's failure to license or sell the
Programs or related products and services.
12.4 GOVERNING LAW. This Agreement and all matters arising out of or relating to
this Agreement, shall be governed by the laws of the State of California,
excluding its conflict of law provisions.
12.4.1. DISPUTE RESOLUTION. The dispute resolution procedures set forth in
this Section 12.4.1 shall apply to any claim, controversy, or dispute arising
from this Agreement ("Dispute"). In the event of a Dispute involving the
material breach of this Agreement by Partner that is not cured after Siebel
has provided the appropriate written notice to Partner under Section 3.2 of
this Agreement, Siebel may, at its option, bring a judicial proceeding in the
location where the actions giving rise to the dispute occurred, in the
Superior Court of California, County of Santa ▇▇▇▇▇ or County of San
Francisco or, if appropriate, in the United States ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of California, or Siebel may finally settle such Dispute in
the English language under the rules of the International Chamber of Commerce
(ICC) or the American Arbitration Association (AAA), by a single arbitrator
in accordance with such rules. Siebel and Partner expressly and irrevocably
consent and submit to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waive any
objection to venue laid therein. Process in any action or proceeding referred
to in the preceding sentence may be served on any party anywhere in the
world. The arbitrator shall be mutually agreeable to the parties and shall be
an attorney at law with arbitration experience and at least ten years'
demonstrated legal experience in computer software license arrangements.
Siebel may choose among the following locations for the arbitration: London,
Hong Kong, or San Francisco, California. The arbitration award shall be
substantiated in writing, shall be binding on the parties, and may be entered
in any court having jurisdiction thereof. The arbitral award, if any, will be
paid in United States Dollars, exclusive any tax, deduction or offset. The
arbitrator shall be bound by the applicable rules of procedure and evidence
and the damage limitation clauses contained in this Agreement, and shall not
have authority to award punitive damages. The arbitrator shall take all steps
as may be necessary to (i) schedule the initial hearing within ninety (90)
days of the initial demand for arbitration, (ii) schedule all hearings to be
heard consecutively and for not longer than two days with each party allotted
half the available time, and (iii) issue a written decision no later than
fourteen (14) days after the hearing. Each party shall bear its own costs and
attorneys' fees in connection with such arbitration and shall share equally
in the fees and expenses of the arbitrator. All information related to the
arbitration proceedings described herein shall be deemed Confidential
Information and subject to the restrictions on disclosure contained in
Section 11.3 of this Agreement. Notwithstanding the foregoing, in the event
of an actual or threatened breach of Partner's obligations regarding Siebel's
intellectual property rights or Siebel's Confidential Information, Siebel
shall be entitled, to immediately seek equitable relief as set forth in
Section 11.4 of this Agreement, as well as such further relief as may be
granted by a court of competent jurisdiction.
In the event of a Dispute involving the material breach of this Agreement by
Siebel that is not cured after Partner has provided the appropriate notice to
Siebel under Section 3.2 of this Agreement, Partner may, at its option, bring
an action in the Superior Court of California, County of Santa ▇▇▇▇▇ or
County of San Francisco, or, if appropriate, in the United States ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of California, or Partner may finally
settle such Dispute in the English language under the rules of the AAA by a
single arbitrator in accordance with
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such rules. The place of arbitration shall be San Francisco, California.
Siebel and Partner expressly and irrevocably consent and submit to the
exclusive jurisdiction of such courts (and of the appropriate appellate
courts) in any such action or proceeding and waive any objection to venue
laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world. The
arbitrator shall be mutually agreeable to the parties and shall be an
attorney at law with arbitration experience and at least ten years'
demonstrated legal experience in computer software license arrangements. The
arbitration award shall be substantiated in writing, shall be binding on the
parties, and may be entered in any court having jurisdiction thereof. The
arbitral award, if any, will be paid in United States Dollars, exclusive any
tax, deduction or offset. The arbitrator shall be bound by the applicable
rules of procedure and evidence and the damage limitation clauses contained
in this Agreement, and shall not have authority to award punitive damages.
The arbitrator shall take all steps as may be necessary to (i) schedule the
initial hearing within ninety (90) days of the initial demand for
arbitration, (ii) schedule all hearings to be heard consecutively and for not
longer than two days with each party allotted half the available time, and
(iii) issue a written decision no later than fourteen (14) days after the
hearing. Each party shall bear its own costs and attorneys' fees in
connection with such arbitration and shall share equally in the fees and
expenses of the arbitrator. All information related to the arbitration
proceedings described herein shall be deemed Confidential Information and
subject to the restrictions on disclosure contained in Section 11.3 of this
Agreement.
12.5 NOTICES. All notices required to be sent hereunder shall be in writing
and shall be deemed to have been given upon (i) the date sent by confirmed
facsimile, (ii) on the date it was delivered by courier, or (iii) if by
certified mail return receipt requested, on the date received, to the
addresses set forth above and to the attention of the signatory of this
Agreement or to such other address or individual as the parties may specify
from time to time by written notice to the other party.
12.6 SEVERABILITY. In the event any provision of this Agreement is held to be
invalid or unenforceable, the remaining provisions of this Agreement will remain
in full force.
12.7 WAIVER. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent default or
breach. Except for actions for nonpayment or breach of Siebel's proprietary
rights in the Programs or Documentation, or the parties' obligations under
Section 11 (Nondisclosure) no action, regardless of form, arising out of this
Agreement may be brought by either party more than one year after the cause of
action has accrued.
12.8 EXPORT CONTROLS. Partner agrees to comply fully with all relevant export
laws and regulations of the United States, including but not limited to the U.S.
Export Administration Regulations (collectively, "U.S. Export Controls").
Without limiting the generality of the foregoing, Partner expressly agrees that
it shall not, and shall cause its representatives to agree not to, export,
directly or indirectly, re-export, divert, or transfer the Programs or any
direct product thereof to any destination, company or person restricted or
prohibited by U.S. Export Controls.
12.9 DELIVERY. All materials provided by Siebel hereunder shall be delivered to
Partner on a F.O.B. Siebel's San Mateo Headquarters basis for destinations
within the United States, or on a FCA (Incoterms 1990) Siebel's San Mateo
Headquarters basis for destinations outside the United States; at which point
title to the carrier media and risk of loss or damage to the materials shall be
transferred from Siebel to Partner. Nothing in this Section shall be deemed to
transfer title to, or provide Partner with any rights in, the Programs,
Deliverables or Documentation, except as specifically provided in this
Agreement.
12.10 ORDER OF PRECEDENCE. In the event of conflict between this Agreement and
any addendum hereto, the terms and conditions of the applicable addendum shall
prevail with respect to the subject matter of such addendum.
12.11 ENTIRE AGREEMENT. This Agreement together with all exhibits and addenda,
each of which is hereby incorporated by reference, constitutes the complete
agreement between the parties and supersedes all prior or contemporaneous
agreements or representations, written or oral, concerning the subject matter of
this Agreement, its exhibits and addenda. This Agreement may not be modified or
amended except in writing signed by a duly authorized representative of each
party. No other act, document, usage or custom shall be deemed to amend or
modify this Agreement.
12.12 COUNTERPARTS AND EXCHANGES BY FAX. This Agreement, and any addenda hereto,
may be executed simultaneously in two (2) or more counterparts, each of which
will be considered an original, but all of which together will constitute one
and the same instrument. The exchange of a fully executed Agreement (in
counterparts or otherwise) by fax shall be sufficient to bind the parties to the
terms and conditions of this Agreement.
The Effective Date of this Agreement shall be __________________________________
EXECUTED BY: IMS HEALTH STRATEGIC TECHNOLOGIES, INC.
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ALLIANCE PARTNER
ADDRESS: _____________________________________________________________________
_______________________________________________________________________________
Signed: _______________________________________________________________________
Name: _______________________________________________________________________
Title: _______________________________________________________________________
Date: _______________________________________________________________________
EXECUTED BY: SIEBEL SYSTEMS, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Signed: _______________________________________________________________________
Name: _______________________________________________________________________
Title: _______________________________________________________________________
Date: _______________________________________________________________________
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