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OneSoft Corporation has omitted from this Exhibit 10.23 portions of this
Agreement for which OneSoft Corporation has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment have been requested have been filed separately with
the Securities and Exchange Commission. Such omitted portions have been marked
with an asterisk.
EXHIBIT 10.23
MASTER ALLIANCE AND LICENSE AGREEMENT
This Master Alliance and License Agreement (this "Agreement") is made and
entered into as of November 17, 1999, between USWeb Corporation ("USWeb/CKS")
and OneSoft Corporation ("OneSoft"). Together USWeb/CKS and OneSoft may be
referred to herein as the Parties.
In consideration of the mutual covenants and conditions contained in this
Agreement, the parties agree as stated herein. Each schedule ("Schedule")
referred to in this Agreement is hereby incorporated by reference into and made
part of this Agreement as if fully set forth herein.
In the event of a conflict between this Agreement and a Schedule, this Agreement
shall govern.
1. MARKETING, RELATIONSHIP, AND PUBLIC RELATIONS PROGRAM
(a) Statement of Alliance Efforts. Each of USWeb/CKS and OneSoft agrees to use
all commercially reasonable efforts and provide reasonable cooperation to the
other to complete the tasks and activities as set forth in this Section 1 and in
Section 1 of the Statement of Alliance Efforts, attached as Schedule 1 (the
"Statement of Alliance Efforts"), including without limitation ******** of the
****** and *****. Each party shall obtain the pre-approval of the other party
before releasing marketing collateral and press material related to this
Agreement, except those specified in the Statement of Alliance Efforts Section
1.
(b) Alliance Managers. Each of USWeb/CKS and OneSoft agrees to assign a
dedicated alliance manager who will perform the alliance manager duties set
forth in Section 1 of the Statement of Alliance Efforts.
(c) Marketing Material. Each Party agrees to use commercially reasonable efforts
to provide a prominent display of the other Party's logo on all marketing
materials for USWeb/CKS iAMcommerce solutions that include any of OneSoft's
products and on other additional marketing materials as may be agreed upon by
the Parties, subject to logo guidelines set forth in Section 1 of the Statement
of Alliance Efforts. Each Party will provide links on its website to the other
Party's website in accordance with Section 1 of the Statement of Alliance
Efforts. Each Party hereby disclaims any and all responsibility or liability in
connection with the other Party's web site, and each Party agrees to indemnify
for the other for third party claims that may arise in connection with the
other Party's web site and/or material contained thereon. Each Party may
reference by name as a customer of such Party the customers of USWeb/CKS
iAMcommerce Solutions Powered by OneSoft (except for those customers that have
not consented to be so referenced by USWeb/CKS). Each Party may reference the
other (including the logo) as an "ally" or other similar mutually agreed term
in connection with marketing activities approved in advance by the other Party.
(d) Endorsement and Relationship Scope. Each Party shall formally and publicly
endorse the USWeb/CKS iAMcommerce Solutions Powered by OneSoft and provide
reasonable levels of executive support in the form of telephone reference calls,
analyst tours, press tours, signature of proposal commitment letters and other
similar activities; USWeb/CKS shall formally and publicly endorse OneSoft as an
enterprise iAMsystem partner with cooperative focus in E-commerce and other
iAMsystem solutions as agreed upon by both parties and provide
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reasonable executive support in the form of telephone reference calls, analyst
tours, press tours, signature of proposal commitment letters and other similar
activities. USWeb/CKS agrees that OneSoft may terminate this Agreement upon
30 days' notice if USWeb/CKS's managed services business offers an E-commerce
managed service to its customers that includes any products listed on Schedule
1(d) (as Schedule 1(d) may be amended from time to time by OneSoft with consent
of USWeb/CKS); provided, however, that USWeb/CKS shall have the right to
withdraw such offering within such notice period in which event such notice
shall be deemed withdrawn.
(e) Marketing Funding. OneSoft will allocate co-marketing funds focused on
USWeb/CKS iAMcommerce Solutions Powered by OneSoft to be used as agreed upon by
both parties in the Marketing and PR Plan, as follows: 1999 - $***, 2000 - $***,
2001 - $***; USWeb/CKS will allocate marketing funds focused on USWeb/CKS
iAMcommerce Solutions Powered by OneSoft, to be used as agreed upon by both
parties in the Marketing and PR Plan, as follows: 1999 - $***, 2000 - $***, 2001
- $***. OneSoft and USWeb/CKS agree to give reasonable consideration to
proposals for providing additional joint marketing funds for events or
activities sponsored by OneSoft or USWeb/CKS beyond the foregoing minimum
commitments; contribution ratios for these additional funds will be as mutually
agreed on a case-by-case basis. The parties will expend funds for approved
marketing activities in accordance with the Marketing and PR Plan and will
exchange annual expenditure reports. Amounts remaining in a given year will be
carried over to the next year (and will be settled as payment in kind or cash at
the end of the initial term of the Agreement) or upon termination of this
Agreement if earlier.
(f) OCP Status. USWeb/CKS may refer to itself as a member of OneSoft's OCP
Program. OneSoft will provide USWeb/CKS access to training, sales and deployment
tools (those currently in existence as well as those that may be developed in
the future), to the ***** and **** the ****** to any ****(subject to any
licensing restrictions of such sales and deployment tools). OneSoft will offer
access to USWeb/CKS to all OneSoft events and activities for OCP Program
members, at a *** that is ***** the *** for the event or activity for ********.
(g) Internet Commerce Solutions Portal. USWeb/CKS will have access to the
Internet Commerce Solutions Portal, created by OneSoft to facilitate
communication between the Parties. A single user identification and password
will be available to USWeb/CKS, and will be delivered to its alliance manager
for use within USWeb/CKS, promptly following execution of this Agreement.
2. SALES AND BUSINESS DEVELOPMENT COOPERATION
(a) Statement of Alliance Efforts. Each of USWeb/CKS and OneSoft agrees to use
all commercially reasonable efforts (and to provide all reasonable cooperation
to the other Party) to complete the tasks and activities as set forth in Section
2 of the Statement of Alliance Efforts.
(b) Business Development Executives. OneSoft will provide, at no cost to
USWeb/CKS, a dedicated business development executive who will perform the
OneSoft business development executive duties set forth in Section 2 of the
Statement of Alliance Efforts. USWeb/CKS will provide, at no cost to OneSoft, a
dedicated business development executive to perform the USWeb/CKS business
development executive duties set forth in Section 2 of the Statement of Alliance
Efforts.
(c) Sales Efforts. USWeb/CKS will be responsible to sell the USWeb/CKS
iAMcommerce Solutions Powered by OneSoft and OneSoft will be responsible to
support USWeb/CKS in selling the iAMcommerce Solutions Powered by OneSoft, all
as set forth in Section 2 of the Statement of Alliance Efforts.
(d) Facilities. Each Party shall make its respective facilities (OneSoft
Executive Briefing Center and USWeb/CKS Executive Briefing Center(s)) available
to the other Party's personnel, according to an agreed upon process, to use
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for, among other purposes, mock-ups, staging, prototyping, demonstrations and
related activities. Access to such personnel shall be allowed during normal
business hours (8am-5pm local time). Either Party's personnel's use of such
facilities shall be subject to availability and prior notice by the requesting
Party and approval by the other Party. Each Party shall make all mutually
agreed-upon equipment, supplies, and utilities available to the other Party's
personnel, so long as such use does not conflict with ongoing projects. ****of
****** shall be at ***** to the *******; provided, however, that the ***** shall
be responsible for ***** of the ****** and ******** by such Party while *****
******.
3. PROGRAM MANAGEMENT
(a) Statement of Alliance Efforts. The Parties agree to promptly establish
escalation processes, reporting processes, planning processes (including without
limitation a process to develop annual business plans) and management processes,
and to otherwise conduct program management, in accordance with Section 3 of the
Statement of Alliance Efforts. The Parties agree to use all commercially
reasonable efforts to prepare a mutually agreeable first annual business plan
within 30 days after the date first set forth above.
(b) Within 30 days from execution of this Agreement, the Parties will mutually
agree to defined initial joint integration projects necessary to launch the
USWeb/CKS iAMcommerce Solutions Powered by OneSoft. To that end, the parties
will agree to the specific scope of these joint integration projects based upon
the Lab Addendum set forth in Schedule 3(b). Projects that obtain the desired
operating leverage from the technology platform such as multiple customers
sharing common database servers and application servers and combining core
databases into a smaller set will be among the initial projects defined.
(c) Alliance Executive Steering Committee. The Parties agree to promptly
establish an Alliance Executive Steering Committee, to operate in accordance
with Section 3 of the Statement of Alliance Efforts.
(d) Executive Sponsors. Each party shall appoint an Executive Sponsor who shall
have overall responsibility for the Parties' relationship and the execution of
mutually agreed upon programs and the escalation of issues and opportunities as
appropriate.
4. LICENSES
(a) Demo Software License. OneSoft hereby grants to USWeb/CKS a non-exclusive
and nontransferable license (the "Demo License"), subject to the terms and
conditions of this Agreement, to use the components shipped to OneSoft's
customers generally of the software identified in Schedule 4(a) (the "Demo
Software") on the Demo Servers (as defined) during the term of this Agreement,
solely for purposes of sales demonstrations, internal testing, internal training
and marketing; provided, however, that: the Demo License may not in any event be
used in connection with any activity for which USWeb/CKS receives compensation
or processes commercial transactions. Under the Demo License, USWeb/CKS may not:
(1) rent, lease, or loan the Demo Software; (2) electronically transmit the Demo
Software over a network except as incidental to USWeb/CKS's licensed use of the
Demo Software; (3) use run-time versions of any third-party products embedded in
the Demo Software, if any, for any use other than the intended use of the Demo
Software, (4) modify, disassemble, translate, decompile, or reverse engineer the
Demo Software, except that in connection with a mutually agreed lab project and
then only to the extent expressly agreed to in writing by an authorized
representative of OneSoft the Demo Software may be modified by OneSoft; (5)
transfer possession of any copy of the Demo Software to any third party; or (6)
use the Demo Software in any way not expressly provided for in this Agreement.
There are no implied licenses granted to
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the Demo Software under this Agreement and USWeb/CKS agrees not to exceed the
scope of the Demo License. The "Demo Servers" means a total of up to 20 servers
located in the USWeb/CKS Technology Lab and a total of up to seven servers
located in USWeb/CKS regional professional services offices. "Demo Software"
means OneSoft's OneCommerce Enterprise Edition and OneWorkstation products.
(b) Commercial Service. Subject to the provisions of this Agreement, OneSoft
hereby grants to USWeb/CKS the nontransferable (except with OneSoft's consent,
to which consent Section 15(i) will not apply) nonexclusive right to:
i) purchase and install, for purposes of providing Commercial
Service, Licensed Copies (as defined) of the components shipped to
OneSoft's customers generally of the software identified on Schedule
[4(a)] (the "Software") including installing Licensed Copies of the
Software on a Server (as defined);
ii) use Licensed Copies of the Software installed on Servers to
provide Commercial Service (as defined) to each third party that has
agreed in writing to the conditions of use set forth in Schedule [4(b)]
(each a "Third Party Customer"); and
iii) permit each Third Party Customer access to Licensed Copies of the
Software installed on Servers as necessary to provide to such Third
Party Customer Commercial Service.
USWeb/CKS shall have the right, at no charge, to make a reasonable number of
copies of the Software solely for backup and archival purposes. OneSoft
acknowledges and agrees that the Third Party Customers shall have no obligation
to obtain any further license or other permission from OneSoft for their access
to or use of Software if as part of the Commercial Service provided by
USWeb/CKS. There are no implied licenses granted to the Software under this
Agreement and USWeb/CKS agrees not to exceed the scope of express licenses to
the Software. "Commercial Service" shall mean a combined service, including one
or more USWeb/CKS Servers together with deployment services and internet
connectivity services and access to the Software (subject to the provisions of
Schedule 4(a)), all provided to a Third Party such that the Third Party is able
to use the Software on a USWeb/CKS Server by remote access, but does not
maintain or operate a copy of the Software other than on USWeb/CKS Servers.
"Server" shall mean a server operated by USWeb/CKS (or, with OneSoft's consent,
operated by another co-location services provider that is not a developer of
products in competition with OneSoft) that meets the requirements set forth in
technical documentation for the Software and that is installed at a location
within the United States or at a ******** ******* the ******* that: (i) ******
with ******; and (ii) is not included in the ************, as amended from time
to time; (iii) is not included in a ***** of ****** or ******* provided in a
notice from OneSoft to USWeb/CKS from time to time subject to its consent.
OneSoft may amend Schedule [4(a)] (but not with respect to license terms then in
effect and not with respect to initial terms under any *********from time to
time upon ********* ("******"), in which event such Schedule as so amended shall
govern all rights under this Agreement; provided however, that if such change
****** in an ****** in the ********of the licensees ******* that USWeb/CKS would
be ***** to **** for ******** or the ***** of the license ******* that USWeb/CKS
would be ***** to *** for *******, then USWeb/CKS may ****** to OneSoft within
such ****** in which event the Parties shall ****** for **** using ******* to
***** an ******* of the *****. In the event such *********** during such
*******, either Party may ****** the ******* and if the ****** is not so *****
the amendment to Schedule 4(a) shall immediately become effective. ****** shall
mean, with respect to an ********, a ****** (i) delivered before such ********
is given if the ****** is accepted by the ******* within **** after such ******
is given; or (ii) that OneSoft agrees to exempt from the ******.
(c) Licensed Copies. A copy of the Software shall be considered a "Licensed
Copy" during a calendar month under this Agreement if **************.
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(d) No Benchmark. USWeb/CKS shall not release the results of any benchmark of
the Software or the Demo Software, or of any third party products embedded in
the Software or Demo Software, without OneSoft's prior written approval, which
OneSoft may give or withhold in its sole and absolute discretion.
(e) Software Delivery. Demo Software and Software will be shipped to USWeb/CKS's
facility in Virginia, U.S.A. POB at OneSoft's facility in Virginia, U.S.A., by
commercial surface transportation reasonably selected by OneSoft. Transportation
charges in excess of rates for such transportation will be billed to USWeb/CKS
in the event that USWeb/CKS requests alternative transportation arrangements.
Software shall be deemed accepted upon delivery.
(f) Notices and No Title. USWeb/CKS shall include OneSoft's copyright or
proprietary rights notice on any copies of the Demo Software or Software or
application interfaces (or associated documentation for any of them), including
any copyright or proprietary rights notices of third parties that are included
on media or in documentation provided by OneSoft. USWeb/CKS acknowledges that
the Software and the Demo Software is the property of OneSoft or its suppliers
and that title thereto is not transferred under this Agreement.
(g) The Parties agree to negotiate in good faith (i) to determine within 60 days
a process and license similar to the OCP process and license to facilitate sale
and delivery of perpetual licenses of OneSoft products outside the context of
the Commercial Service but with the same discount structure; and (ii) to
determine a pricing structure and process for converting existing OneSoft
perpetual licensees who desire to use the Commercial Service; and (iii) the
Parties may agree on the terms of and may enter into purchase orders or purchase
agreements, on a case-by-case basis, for OneSoft products, in advance of the
completion of such determinations and for such purchase orders or purchase
agreements the discount structure under this Agreement shall apply.
5. PAYMENT AND TAXES
(a) USWeb/CKS shall pay monthly fees to OneSoft as such fees accrue with respect
to each Third Party Customer, in accordance with the provisions of Schedule
4(a). (There will be no charge accrued with respect to a new Third Party
Customer before the earlier of the first use under Section 4(c)(i) or 30
calendar days after the first use under Section 4(c)(ii). The initial partial
month, if any, shall be subject to prorated charges.) Within 15 calendar days
after the end of each calendar month, USWeb/CKS shall provide to OneSoft a
report detailing licensing and use of the Software under this Agreement, in
accordance with the provisions of Schedule 5. USWeb/CKS shall also provide other
reports in accordance with the provisions of Schedule 5.
(b) Not later than ** calendar days after the end of a calendar month, USWeb/CKS
shall pay the amount of fees due to OneSoft as accrued during such calendar
month under the provisions of Section 5(a). OneSoft shall not be required to
invoice such fees.
(c) Except as set forth in this Agreement or otherwise agreed by the Parties,
invoices shall be issued upon or after delivery of the products or services to
which they relate. Invoices shall be due and payable in United States currency
upon receipt by USWeb/CKS. Payment shall be past due ***** days after the
delivery of the invoice to USWeb/CKS.
(d) Overdue amounts shall be subject to a finance charge of **** percent (**%)
for each month or fraction thereof that the invoice is overdue, or the highest
interest rate permitted by applicable law, whichever is less. OneSoft shall be
entitled to reimbursement for its reasonable collection costs in the event of
late payment or nonpayment, including reasonable attorneys' fees.
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(e) All fees, prices and other charges under this Agreement are exclusive of any
federal, state, municipal, value-added, foreign withholding or other
governmental taxes, duties, fees, excises, or tariffs now or hereafter imported
on the production, storage, licensing, sale, transportation, import, expect or
use of the Software or any improvements, alterations, or amendments to the
Software. USWeb/CKS shall be responsible for, and if necessary reimburse,
OneSoft for all such taxes, duties, fees, excises, or tariffs, except for taxes
imposed on OneSoft's corporate net income.
6. AUDIT RIGHTS.
OneSoft shall have the right at all times to electronically audit use of the
Software and Demo Software through a disclosed documented IP interface (the
nature of such interface shall be subject to USWeb/CKS's consent) to the servers
on which such software is installed. At OneSoft's request USWeb/CKS shall
provide OneSoft with a report detailing use of the the Demo Software under this
Agreement. OneSoft may, upon fifteen (15) days prior written notice, not more
often than quarterly, audit USWeb/CKS's records to ensure that license and other
fees have been properly paid in compliance with this Agreement. Any such audit
will be conducted with the full cooperation of USWeb/CKS during regular business
hours at USWeb/CKS's offices but shall not interfere unreasonably with
USWeb/CKS's business activities. If an audit reveals that USWeb/CKS has
underpaid its total fees for the audited period by more than three percent (3%),
then USWeb/CKS shall pay OneSoft's reasonable costs of conducting the audit.
USWeb/CKS shall promptly pay to OneSoft the amount of any underpayment
(including without limitation the amount of interest applicable thereto under
Section 5) and OneSoft shall promptly pay to USWeb/CKS the amount of any
overpayment.
7. iFRAME TECHNOLOGY COORDINATION.
(a) Role of USWeb/CKS. USWeb/CKS, at its expense will: (1) operate, own and
manage a technology integration facility ("OneSoft USWeb/CKS Technology Lab")
that will focus on specialized technical work involving the integration of
OneSoft's product(s) into the USWeb/CKS iFrame; (2) provide integration tools,
hardware and office space for the OneSoft USWeb/CKS Technology Lab, located in
Northern Virginia; (3) provide necessary staff, management and resources for the
OneSoft USWeb/CKS Technology Lab; (4) provide, through the dedicated team,
quality assurance (QA) of the integrated iFrame/OneSoft product; (5) provide a
dedicated architecture and integration manager to manage technical issues
related to the alliance, in accordance with Section 4 of the Statement of
Alliance Efforts. At USWeb/CKS's request and expense, USWeb/CKS may provide a
staff person for one full-time product advisory position in the OneSoft
integration lab to provide feedback on current and future enhancements to
OneSoft products, in accordance with Section 4 of the Statement of Alliance
Efforts.
(b) Role of OneSoft. OneSoft, at its expense, will: (1) provide staff to the
USWeb/CKS Technology Lab who will be responsible for specialized technical work
involving the integration of OneSoft's products into USWeb/CKS iFrame, in
accordance with Section 4 of the Statement of Alliance Efforts; (2) provide
commercially reasonable assistance with QA (including for new releases of the
Software) for the integrated OneSoft iFrame/iamSystem product; (3) provide a
dedicated architecture and integration manager to manage technical issues, in
accordance with Section 4 of the Statement of Alliance Efforts.
8. TRAINING PROGRAM.
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(a) Training Program Development. OneSoft will provide to USWeb/CKS a reasonable
number of copies of OneSoft training material related to selling and deploying
OneCommerce Enterprise Edition and USWeb/CKS will have the right and license to
use such material to prepare custom training courseware for use in training
employees and customers; provided, however, that (i) USWeb/CKS shall charge
commercially reasonable rates for and pay a royalty to OneSoft for any use
thereof in non-employee training at the rate of **% of non-employee training
revenue; and (ii) USWeb/CKS shall have the right to prepare from such courseware
derivative works ("Derivative Courseware") in which USWeb/CKS shall have all
right, title and interest if the Derivative Courseware does not contain any
material that is derivative of such OneSoft training material. USWeb/CKS and
OneSoftwill prepare a plan for training activities (the "Training Plan") to be
included as part of the Parties' annual business plan.The parties will expend
funds for approved training activities in accordance with the Training Plan and
will exchange annual expenditure reports. Amounts remaining in a given year will
be carried over to the next year (and will be settled as payment in kind or cash
at the end of the initial term of the Agreement) or upon termination of this
Agreement if earlier, all based upon actual costs for out of pocket costs and in
all other cases as measured by the Parties' most favorable rates offered to
customers. USWeb/CKS's planned minimum commitment for activities in the Training
Plan is as follows (to be defined in the Training Plan): 2000 - $***; 2001 -
$***. OneSoft's planned minimum commitment for such activities is as follows (to
be defined in the Training Plan): 2000 - $***; 2001 - $***.
(b) Training Activities. The Parties agree to perform the ongoing training
activities and responsibilities set forth in Section [5] of the Statement of
Alliance Efforts. Each Party will exercise commercially reasonable efforts to
ensure that the other Party's personnel are notified reasonably in advance of
key training event opportunities. OneSoft will provide free of charge, training
for *** USWeb/CKS employees (in OneSoft's sales or deployment course) over the
period from the date first set forth above through June 30, 2000, if during such
period USWeb/CKS is in compliance with the train the trainer provision
commitment in the next sentence. USWeb/CKS agrees to train Trainers (trainers
are dedicated resources to the function of training USWeb/CKS employees) on the
OneSoft product, and assume the responsibility of training USWeb/CKS employees
on the OneSoft products and services after June 30, 2000. USWeb/CKS agrees to
train *** of its employees on OneSoft products and services over the initial
term of this Agreement.
(c) Training Facilities. OneSoft agrees to provide, at its expense, reasonable
training facilities for conducting USWeb/CKS employee training, on the USWeb/CKS
iAMcommerce Solutions Powered by OneSoft, until *****. Thereafter, training
facilities for USWeb/CKS employees will be provided at a charge to USWeb/CKS of
$**** per room, per day. Reasonable training facilities will also be provided
for conducting end-user training, on the USWeb/CKS iAMcommerce Solutions Powered
by OneSoft, at **% of the total cost charged by USWeb/CKS to the customer for
such training, subject to a minimum charge of $****/day per room. Facilities
shall include required machines and software for a minimum class size of *** and
are limited to then-current OneSoft training locations. OneSoft-furnished
materials for USWeb/CKS employee training will be provided at OneSoft's expense
until June 30, 2000. Thereafter, OneSoft-furnished materials for employee
training will be charged at OneSoft's cost (as defined in the Training Plan).
OneSoft-furnished materials for end-user training will be charged at OneSoft's
cost (as defined in the Training Plan) plus **** percent (**%).. USWeb/CKS
agrees to provide OneSoft 30 days notice for the use of such facilities and
shall not exceed agreed to capacity projections as set forth in the Training
Plan.
9. SOFTWARE MAINTENANCE AND TECHNICAL SUPPORT
(a) OneSoft Product Support. USWeb/CKS will, through its Global Network
Operations Center provide necessary Tier 1 and Tier 2 support for OneSoft
products and related service to all customers. USWeb/CKS also agrees to fund
100% of the development cost of software agents ("Software Agents") to
proactively monitor the health of
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USWeb/CKS iAMcommerce Solutions Powered by OneSoft. Software Agents will not
interface directly with OneCommerce Enterprise Edition but instead will obtain
necessary data from operating system logs (including without limitation NT Event
Viewer and Performance Monitor) written to by OneCommerce Enterprise Edition.
All right title and interest in any Software Agent created that is not
derivative of OneSoft intellectual property and for which development is paid
for in full by USWeb/CKS pursuant to such funding shall be vested in USWeb/CKS.
OneSoft agrees to develop at its expense extensions (the "Extensions") to
OneCommerce Enterprise Edition to write reasonable types and amounts of data to
such logs to reasonably support proactive monitoring of the health of
OneCommerce Enterprise Edition. All right title and interest in the Extensions
shall be vested in OneSoft.OneSoft will also provide necessary Tier 3 level
support to USWeb/CKS for the Software, to assist USWeb/CKS in its support of its
USWeb/CKS iAMcommerce Solutions Powered by OneSoft customers. OneSoft will
provide advance notice to USWeb/CKS with planned version support and maintenance
discontinuation plans. OneSoft will provide Tier 3 support for all current
releases of software, and for the previous release for 6 months (for example
with v3 released on November 1, 1999 support would continue for release 2.1
until April 30, 2000, thereafter level 3 support for v2.1 would no longer be
covered by OneSoft). OneSoft shall provide USWeb/CKS, any and all enhancements,
bug fixes, modifications, revisions, updates, new releases and new versions, of
or to the Software, as and when provided to OneSoft's customers generally under
OneSoft's standard maintenance agreement, for Software. The support process and
other related responsibilities of the Parties shall be as set forth in Section
[6] of the Statement of Alliance Efforts.
(b) OneSoft Maintenance and Support Fee. USWeb/CKS will pay OneSoft maintenance
and support fees in accordance with the provision of Schedule 4(a). Monthly
maintenance must be contracted and paid for all of a Third Party Customer's
licensed Software (based on applicable pricing units) during the entire term of
a Third Party Customer's USWeb/CKS Commercial Service agreement.
(c) Technical Support. USWeb/CKS will provide, at its expense, a dedicated
Technical Account Manager to serve as a contact and liaison between the Parties
in supporting the USWeb/CKS iAMcommerce Solutions Powered by OneSoft, as well as
to facilitate joint resolution of software and solution defects. OneSoft will
provide, at its expense, an identified and USWeb/CKS focused technical support
manager to serve as a contact and liaison between the Parties in supporting the
USWeb/CKS iAMcommerce Solutions Powered by OneSoft, as well as to facilitate
joint resolution of software and solution defects. This individual (or his or
her designate(s)) will be available during normal business hours (8:30AM-5:30PM
Eastern time Monday through Friday) and will assign responsibility to a named
support specialist during non-business hours and vacations.
10. PROFESSIONAL SERVICES AND TECHNICAL SUPPORT
Professional Services. USWeb/CKS will provide OneSoft with adequate advance
notice (of no less than 4 weeks), of a request for OneSoft professional
services. Upon such request, OneSoft will make available professional services
resources of an aggregate of up to three professionals for initial
OneSoft-USWeb/CKS deployments of the USWeb/CKS iAMcommerce Solutions Powered by
OneSoft. These resources will be made available at OneSoft's expense until the
earlier of completion of the first five customer engagements or April 30, 2000.
Thereafter professional services resources necessary to deploy E-commerce sites
built on USWeb/CKS iAMcommerce Solutions Powered by OneSoft, will be charged to
USWeb/CKS on a time and materials basis, at OneSoft's prevailing hourly rates.
11. REPRESENTATIONS AND WARRANTIES
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(a)EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED AND EXCEPT AS EXPRESSLY SET
FORTH IN THIS SECTION 11 EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS
OR IMPLIED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR USE OR OF MERCHATABILITY OR OF NON-INFRINGEMENT.
(b) USWeb/CKS warrants and represents: (i) that it has all power and authority
to enter into this Agreement and (ii) that the execution, delivery and
performance of this Agreement (including without limitation any amendment or
modification pursuant to Section 15(j)), and all transactions contemplated
thereby, have been duly authorized by USWeb/CKS and (iii) this Agreement
(including without limitation any amendment or modification pursuant to Section
15(j)) is enforceable against USWeb/CKS in accordance with its terms, subject to
bankruptcy laws and other law applicable to creditors' rights generally.
(c) OneSoft warrants and represents: (i) that it has all power and authority to
enter into this Agreement and (ii) that the execution, delivery and performance
of this Agreement (including without limitation any amendment or modification
pursuant to Section 15(j)), and all transactions contemplated thereby, have been
duly authorized by OneSoft and (iii) this Agreement (including without
limitation any amendment or modification pursuant to Section 15(j)) is
enforceable against OneSoft in accordance with its terms, subject to bankruptcy
laws and other law applicable to creditors' rights generally.
(d) Each Party warrants and represents that any licenses to such Party's
products provided to the other Party under this Agreement do not infringe any
third party's (i) duly issued patent existing or issued prior to the initial
delivery date of the applicable license, or (ii) copyright, or (iii) trademark,
or (iv) trade secret; provided, however, that as the sole remedy of a
non-breaching Party for breach of this Section 11(d) the breaching Party shall
either: (i) procure for the other Party the right to continue use of the license
as furnished; or (ii) replace the licensed item; or (iii) modify the licensed
item to make it non-infringing, provided that it still substantially conforms to
the applicable specifications; (at *********) or if *********** then (iv)
************ . Breaching Party shall have no obligation under this Section 11(d)
if the alleged infringement arises from: (i) the use of other than a currently
supported, unaltered release of the item, if software; (ii) the use of an item
that has been modified or merged with other product by anyone other than the
breaching Party; or (iii) the use of the licensed item in combination with
software or hardware not provided under this Agreement..
(e) (1) OneSoft warrants only that the Software, when used in conjunction with
hardware and software recommended by OneSoft, is capable of performing
substantially in accordance with its specifications as set forth in the
OneCommerce Enterprise Edition API Reference and that the Software is designed
to be used in connection with dates in the range of **** through **** (referring
to the 20th and 21st centuries) and that the Software will operate without an
Error arising solely from use of date data within such range; provided, however,
that (i) the warranty in this Section 11(e)(1) does not apply to Software used
in combination with software, or other products, not supplied by OneSoft; and
(ii) except as set forth in this Section 11(e)(1) the Software is otherwise
accepted by USWeb/CKS "as is" and (iii) OneSoft does not warrant that the
operation of the Software will be uninterrupted or error free or interoperable
with non-OneSoft products. (2) As USWeb/CKS's sole remedy for nonconformance of
the Software to the warranty set forth in Section 11(e)(1) OneSoft, will, upon
notification in writing of a failure of the Software to conform to the warranty
set forth in Section 11(e)(1), ********* in compliance with the provisions
therefor forth in Schedule 11(e) and in the event OneSoft fails to *******, such
failure shall constitute a material breach of this Agreement.
12. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY.
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(a) Each Party agrees that (1) the other Party shall have all right, title and
interest in and to all intellectual property ("Owned IP") created solely by such
other Party that is (i) derivative of such other Party's existing intellectual
property; or (ii) a new work and not derivative of any existing intellectual
property; and (2) there shall be no implied licenses granted to a Party with
respect to the other Party's Owned IP whether by reason of this Agreement or
otherwise. Rights to other intellectual property created as part of a joint
project under this Agreement including without limitation intellectual property
created pursuant to joint projects under this Agreement shall be as agreed in
writing on a case-by-case basis with respect to each such project.
(b) Except as expressly provided otherwise, nothing in this Agreement shall be
deemed to authorize a Party to use any copyright, name, trademark, service ▇▇▇▇,
or patent or other intellectual property right of the Other Party. Each Party
acknowledges that any underlying technology, know-how, or process used in the
design, development, programming, or coding of the other Party's software
products, tools, or objects, is exclusively the intellectual property of the
other Party, and certain of the same are or may be protected by patents or
patents pending. Each Party agrees that it may not (nor shall it permit any
third party to) make unauthorized copies, reverse engineer, decompile,
disassemble, inspect, or modify software intellectual property of the other
Party, or separate such software into components or its component files, or
recreate, or attempt to determine the makeup of such software.
(c) Each Party ("Indemnitor") will defend any action by a third party against
the other Party claiming that a license to Indemnitor's product infringes such
third party's (i) duly issued patent existing or issued prior to the initial
delivery date of the applicable license, or (ii) copyright, or (iii) trademark,
or (iv) trade secret; and the Indemnitor will pay the amount of any final award
under such action. Indemnitor's obligations under this section are conditioned
upon it having sole control of any such action, and upon the other Party
notifying Indemnitor immediately in writing of the claim and giving all
authority, information, and assistance necessary to settle or defend such claim.
If the use of the license infringes or is enjoined, or Indemnitor believes it is
likely to infringe or be enjoined, Indemnitor may, at its sole option, (i)
procure for the other Party the right to continue use of the license as
furnished; (ii) replace the licensed item; (iii) modify the licensed item to
make it non-infringing, provided that it still substantially conforms to the
applicable specifications; or if (i), (ii) and (iii) are not commercially
reasonable for Indemnitor then (iv) terminate the applicable License and refund
the License fee therefor, as amortized on a 5 year straight line basis for the
time since the affected item was delivered to the other Party.Indemnitor shall
have no obligation under this Section 12(c) if the alleged infringement arises
from: (i) the use of other than a currently supported, unaltered release of the
item, if software; (ii) the use of an item that has been modified or merged with
other product by anyone other than Indemnitor; or (iii) the use of the licensed
item in combination with software or hardware not provided under this Agreement.
The foregoing states Indemnitor's sole and exclusive obligation and liability
for patent, copyright, or other intellectual property or proprietary rights
infringement.
(d) The Parties agree to comply with the provisions of the Mutual Non-disclosure
Agreement set forth in Schedule 12(d).
13. LIMITATION OF LIABILITY
A PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT OR
FOR ANY OTHER REASON RELATING TO THE PRODUCTS AND SERVICES PROVIDED UNDER THIS
AGREEMENT, INCLUDING CLAIMS FOR CONTRIBUTION OR INDEMNITY, SHALL BE LIMITED TO
THE TOTAL AMOUNT PAID TO ONESOFT DURING THE PRECEDING ***** CALENDAR MONTHS,
EXCEPT THAT: (1) THERE SHALL BE ****** ON A PARTY'S LIABILITY TO THE OTHER PARTY
WITH RESPECT A BREACH OF SECTION 12(D) OR WITH RESPECT TO EXPRESS OBLIGATIONS
FOR PAYMENT OF MONEY UNDER THE AGREEMENT; AND (2) A PARTY'S TOTAL AGGREGATE
LIABILITY TO THE OTHER PARTY UNDER SECTION 12(C) OF THE AGREEMENT SHALL BE
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$******(BUT NOT TO EXCEED A TOTAL AGGREGATE LIABILITY FOR INTERNATIONAL CLAIMS
THEREUNDER OF $******).
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR ANY REMEDY UNDER THIS
AGREEMENT, BUT WITHOUT LIMITING LIABILITY FOR EXPRESS OBLIGATIONS FOR PAYMENT OF
MONEY UNDER THIS AGREEMENT OR FOR OTHER DIRECT DAMAGES, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES, IRRESPECTIVE OF WHETHER THE OTHER PARTY HAS BEEN INFORMED OF,
KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES.
14. TERM AND TERMINATION
This Agreement shall become effective on the date first set forth above. Unless
earlier terminated in accordance with the provisions of this Agreement or by
agreement of the Parties this Agreement shall continue in effect for an initial
term ending on December 31, 2001 and thereafter may be renewed by agreement of
the Parties. In the event this Agreement so terminates or terminates as a result
of OneSoft's exercise of termination rights under Section 1(d), any Third Party
Customer of USWeb/CKS iAMcommerce Solutions Powered by OneSoft having a
then-current term of service that will not expire before such termination may
elect to continue as a customer of USWeb/CKS iAMcommerce Solutions Powered by
OneSoft in which event such customer's license(s) to Software shall continue in
effect until the end of their then-current term ("Continuation Licenses") and
the provisions of Sections 4, 5 and 9 of this Agreement (in addition to the
provisions that survive any expiration or termination of this Agreement) shall
continue in effect with respect to such customer until the end of such term
except that provisions with respect to renewal shall not apply. USWeb/CKS may
terminate this Agreement by notice to OneSoft upon any material breach of this
Agreement by OneSoft that is not cured within 10 business days following written
notice of such breach. OneSoft may terminate this Agreement by notice to
USWeb/CKS upon: (a) any material breach of this Agreement by USWeb/CKS that is
not cured within 10 business days following written notice of such breach; or
(b) failure by USWeb/CKS timely to pay license fees for Software under the
payment terms specified in this Agreement. Upon termination of this Agreement,
all licenses granted by OneSoft under this Agreement, except for Continuation
Licenses if any, shall immediately terminate and USWeb/CKS shall immediately
return or destroy and certify the destruction of the Software and the Demo
Software, and all copies of either in any form, except with respect to Converted
Licenses. All unsatisfied payment obligations, and all rights and obligations
under Sections 6, 11, 12, 13, 14 and 15, shall survive any termination or
expiration of this Agreement.
15. GENERAL
(a) Waiver. No waiver of any provision of this Agreement shall be effective
unless in writing and signed by the party against whom such waiver is sought to
be enforced. No failure or delay by either party in exercising any right, power
or remedy under this Agreement, except as specifically provided herein, shall be
deemed as a waiver of any such right, power, or remedy.
(b) Assignment. Either party may assign this Agreement to an entity acquiring
substantially all of its assets or merging with it, provided that such assignee
agrees in writing to assume all obligations under this Agreement. Except as set
forth in this paragraph, neither party may assign any of its rights or delegate
any of its obligations under this Agreement to any third party without the
express written consent of the other. Any attempted assignment in violation of
this Agreement shall be void and of no effect. Each of a Party's subsidiaries,
as of the date hereof or named in Schedule 15(b) (as amended from time to time
by a Party with the consent of the other Party) shall be
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treated as a Party hereto; and each Party hereby guarantees the performance of
obligations under this Agreement of each of its such subsidiaries. Subject to
this paragraph, this Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the parties hereto.
(c) Disputes. The rights of the parties hereunder shall be governed by the laws
of the State of New York without giving effect to principles of conflicts of
laws. The parties expressly exclude the application of the 1980 United Nations
Convention on Contracts for the international Sale of Goods to the extent
otherwise applicable. In the event of a dispute between the Parties for which
the amount at issue is less than $500,000, the Parties agree that the dispute
shall be resolved pursuant to the rules applicable to commercial dispute
arbitration of the American Arbitration Association.
(d) Severability. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect.
(e) Export Limitations. USWeb/CKS acknowledges that the laws and regulations of
the United States and other nations restrict the export of the Software and
agrees to comply with such laws and regulations. USWeb/CKS agrees that it will
not export or re-export or import the Software in any form without first
obtaining the appropriate United States and foreign government approvals.
(f) Notice. Any notice, consent, or other communication hereunder shall be in
writing, and shall be given personally, by confirmed fax or express delivery to
either party at their respective addresses:
(i) to OneSoft at: Legal Department, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(ii) to USWeb/CKS at: : Legal Department, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇
or such other address as may be designated by written notice of either party.
Notice shall be deemed given when delivered, or when transmitted by facsimile
with confirmation, or seven days after deposit in the U.S. mail postage prepaid.
(g) Independent Contractor Relationship and No-hire. The Parties' relationship
shall be solely that of independent contractor and nothing contained in this
Agreement shall be construed to make either party an agent, partner, joint
venturer, or representative of the other for any purpose. Each Party agrees that
while this Agreement is in effect and for a period of one (2) years thereafter,
such Party shall not hire or solicit to hire or directly or indirectly engage
the services of the other Party's employees without the other Party's consent,
which may be withheld or delayed in the other Party's sole and absolute
discretion. General advertising not directed at a Party's employees shall not
constitute solicitation for purposes of this Paragraph 15(g).
(h) Force Majeure. If the performance of this Agreement, or any obligation
hereunder, except the making of payments (but such exception shall not apply in
the event of extraordinary National Bank closings), is prevented, restricted, or
interfered with by reason of any act or condition beyond the reasonable control
of the affected party, the party so affected will be excused from performance to
the extent of such prevention, restriction, or interference.
(i) Cooperation. Wherever in this Agreement a provision calls for the "consent"
or "approval" of a Party such consent or approval shall not be unreasonably
withheld or delayed, except as otherwise provided in this Agreement.
(j) Entire Agreement and Amendment. Except as provided in this paragraph, this
Agreement, including all Schedules and Attachments hereto, constitutes the
complete and exclusive agreement between the parties with
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respect to the subject matter hereof and supersedes all proposals, oral, or
written, all previous negotiations, and all other communications between the
parties with respect to the subject matter hereof. The terms of this Agreement
shall prevail notwithstanding any different, conflicting, or additional terms
that may appear in any purchase order or other document; provided, however, that
this Agreement, including all Schedules and Attachments hereto , may be (and
only may be) amended or modified by a writing signed by an Authorized
Representative (as defined) of each Party in which writing each Authorized
Representative states that the writing has been approved by its respective
Party's legal department. All products and services delivered by OneSoft to
USWeb/CKS are subject to the terms of this Agreement, unless specifically
addressed in a separate agreement. executed by an Authorized Representative of
each Party. "Authorized Representative" shall include (without limitation): (i)
in the case of USWeb/CKS, each person named in Schedule 15(j) Part 1 (as amended
from time to time by notice from USWeb/CKS to OneSoft) and (ii) in the case of
OneSoft, each person named in Schedule 15(j) Part 2 (as amended from time to
time by notice from OneSoft to USWeb).
(k) The Parties agree that the OneSoft Training and Product Evaluation Agreement
between the Parties dated October 12, 1999 is hereby terminated.
OneSoft Corporation USWeb Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------- ------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman and CEO Title: Senior V.P., Managed Services
-----------------------------
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SCHEDULE 1
STATEMENT OF ALLIANCE EFFORTS
Section 1: Marketing and Public Relations Program
Alliance Manager Duties Include: Primary point of contact between the two
organizations for all matters related to the alliance. Coordinator of all
resources brought to bear within each organization dedicated or focused on the
alliance. The champion within each of their respective organizations for the
Alliance. Responsible for creation of the annual business plan, as well as
ensuring that all annual functional plans are crafted. Ensure that all elements
of the agreement are being adhered to by the respective organizations. Motivated
on the financial success of the Alliance.
Reciprocal website listing: Each party will place the respective parties logo on
their corporate website, with a link to the respective parties website.
Location, formatting and link text are at the sole discretion of each party. In
addition, each website will list a brief description of the nature of the
alliance. An appropriate digital logo will be provided by each organization, and
the description of the alliance will be mutually agreed to.
Approved marketing activities: The following represent approved marketing
activities that each party may reference the other (including the logo) as an
"Ally" or other similar mutually agreed term without advanced approval by the
other party: Any document that references a list of partners, any document for
general marketing purposes that references information about the alliance that
is in the public domain and is not specific to the OneSoft-USWeb/CKS alliance.
Document can be a press release, printed collateral, giveaways, signage,
advertisement, and presentations.
Marketing and PR Plan: Plan shall be part of the annual business plan and shall
be completed within 30 days of Definitive Agreement execution. Plan will include
a format and procedure for funds expenditure reporting. Plan will define when
the parties will create mutually agreed positioning regarding suitability of
each party's technologies (collectively or as separate products) to address the
requirements of the targeted markets, as well as how the parties with develop
and evangelize integrated solution initiatives such as USWeb/CKS' iAMcommerce
solutions powered by OneSoft products and other iAMsystems. The plan will
identify opportunities to solicit matching co-marketing funds from other
companies based on the joint marketing and PR plan, and for additional
activities sponsored by either party.
Early Adopter/Rapid Deployment Programs. OneSoft agrees to include USWeb/CKS in
appropriate Early Adopter and Rapid Deployment Programs.
Technology Briefings. On at least a quarterly basis (under NDA), OneSoft will
brief USWeb/CKS on future OneSoft product directions and USWeb/CKS will brief
OneSoft on future iFrame and iAMsystem directions.
OneSoft Beta Products. OneSoft will exercise commercially reasonable effort to
provide beta release software to USWeb/CKS before general release and in any
event no later than general release to OCPs.
SECTION 2: SALES AND BUSINESS DEVELOPMENT COOPERATION
Role of the dedicated OneSoft Business Development Executive: Support USWeb/CKS
in there iAMcommerce powered by OneSoft sales activities, act as the Primary
Point of Contact for all USWeb/CKS iAMcommerce
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powered by OneSoft sales activities that draw on OneSoft resources, assist in
the specific sales process, access other OneSoft resources (as they deem
necessary) to support the sales activities.
Role of the dedicated USWeb/CKS Business Development Executive: act as the
Primary Point of Contact for all USWeb/CKS iAMcommerce powered by OneSoft sales
activities that draw on OneSoft resources, assist OneSoft in drawing on the
appropriate USWeb/CKS resources to jointly pursue OneSoft prospects.
USWeb/CKS is responsible for selling the USWeb/CKS iAMcommerce powered by
OneSoft solution, and OneSoft is responsible for supporting USWeb/CKS selling
the solution, including sales, marketing and technical support.
Sales and Business Development Scope: OneSoft and USWeb/CKS will initially
pursue U.S. opportunities, and anticipate pursuing international opportunities.
This agreement is designed to be global in scope, in addition, this agreement
applies to USWeb/CKS corporate wide, including all current and future divisions.
SECTION 3: PROGRAM MANAGEMENT
iFrame Executive Steering Committee: Create a USWeb/CKS and OneSoft Alliance
Executive Steering Committee: *************** for *******of the *********,
********** of *********** and **********of ******and ********.
Escalation process:
Establish escalation processes that will:
- Offer both parties a process to formally engage the other party in
the event issues appear to prevent solution deployment using the
combined technology.
- Facilitate resolution of critical account situations in a timely
manner.
Define mutually defined and measurable objectives, metrics and
management process.
On an annual basis, create a business plan, the business plan will be completed
by the Alliance managers, and will cover annual goals and objectives, resource
commitments, revenue plan and commitments, go to market strategy, joint
marketing plan, joint development plan, joint management activities, and other
investments.
On a semi-annual basis, participate planning meetings business review and
report, these planning meetings will review the actual results versus the
planned results in the business plan, as well as update the annual business plan
with the latest most accurate business information.
On a minimum of a quarterly basis, USWeb/CKS will make best efforts to share
accurate internal pertinent forecast and pipeline information, which include
forecasts for a rolling 12 months.
SECTION 4: IFRAME TECHNOLOGY COORDINATION.
The USWeb/CKS Architecture and Development Manager that is dedicated to OneSoft
will manage technical issues related to the alliance. In addition, this
individual will act as both liaison for OneSoft resources located in the
USWeb/CKS development lab as well as technical liaison for OneSoft professional
services and sales resources. In addition, this individual will act as
Point-of-Contact (POC) for OneSoft technical resources requested in support of
iAMcommerce powered by OneSoft sales and deployment efforts.
The OneSoft Architecture and Development Manager that is dedicated to USWeb/CKS
will manage technical issues related to alliance, as the annual business plan
dictates. In addition, this individual will act as both manager of
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OneSoft resources located in the USWeb/CKS development lab as well as technical
liaison and leader for dedicated professional services and sales resources.
OneSoft will staff employees in the USWeb/CKS Technology Lab who will complete
specialized technical work of mutual benefit. Refer to OneSoft-USWeb/CKS lab
addendum on the agreed to process for engaging one another in joint projects, as
well as outlining specific projects that we agree to staff.
A USWeb/CKS ************* with OneSoft ************* to ********* on ********
and ********** to OneSoft ********. USWeb/CKS ********** may ******* at ********
in the OneSoft ******** to ***********and *******.
SECTION 5: TRAINING PROGRAM.
OneSoft *********** USWeb/CKS Trainers ************** on OneSoft ******* for the
******** of ************, for the duration of the agreement.
************* of ************* will be a *********** OneSoft and USWeb/CKS
******* and *********** of ********* as ********** in the OneSoft USWeb/CKS
Training Plan.
SECTION 6: SOFTWARE MAINTENANCE AND TECHNICAL SUPPORT
End-client support process: USWeb/CKS is responsible for taking all calls from
source customers, and for handling level 1 and level 2 inquiries. Where a
customer inquiry is a level 3 inquiry, the designated USWeb/CKS Technical
Support manager (or client services team) will contact the designated OneSoft
Technical Support Account Manager (or the OneSoft support team) for resolution.
The OneSoft support team will assist the USWeb/CKS client services team, though
resolution, in a manner that will not require direct contact between the OneSoft
support team and the end client, unless specifically needed or requested.
USWeb/CKS Support Process: USWeb/CKS team will have access to a designated
Technical Support manager at OneSoft. As appropriate projects will have
regularly scheduled calls with the Technical Support manager, to ensure that all
issues are being addressed in a timely manner. As well, this dedicated resource
will be available for non-customer related technical support. OneSoft also will
have available additional support resources, on an as required basis, which are
available on a time and material basis.
Each organization will designate Points of Contact within each organization for
support, and the USWeb/CKS Points of Contact will be certified on OneCommerce.
Software Product Maintenance includes the delivery of documented workarounds,
and version, patch, and point releases to the Software Product(s).
Support Levels:
Level 1: USWeb/CKS will take customer call and open incident report. USWeb/CKS
will use available materials to resolve issue and/or provided requested
information. USWeb/CKS will process orders for software upgrades. Level 2:
USWeb/CKS will perform diagnostic analysis of errors including remote electronic
monitoring of application. If issue is with OneSoft Software products, USWeb/CKS
will attempt to identify a workaround and escalate issue to Level 3 support for
code change resolution is necessary.
Level 3: USWeb/CKS will contact OneSoft to assist its Level 2 support in
recreating and isolating documented issues and identifying workarounds. OneSoft
will provide code fixes for software defects. OneSoft is responsible for
creating and delivering maintenance releases.
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All USWeb/CKS clients with active maintenance and support agreements are
entitled to a USWeb/CKS Level 1 support representative contact within ********of
call during contracted support hours to create incident report. Level 1
USWeb/CKS Support representatives will qualify the severity level of incident
with customer and escalate for resolution as defined by severity level related
escalation procedure below, contacting OneSoft for Level 3 assistance when
necessary.
Severity types:
--------------------- ------------------------------------- ---------------------------------------------------
Issue Severity Definition Escalation Procedure
--------------------- ------------------------------------- ---------------------------------------------------
Critical Customer's live system is at a halt During **************, work will begin
and unable to process data through immediately upon classification of the error as
the software as a result of a critical and work will continue during contracted
catastrophic event in the system support hours until resolution or workaround is
database or software, or a major provided.
application failure in a critical
processing period. *********** efforts will be made to provide
resolution/workaround ********. A resolution may
include without limitation a software patch.
Include in next maintenance release.
--------------------- ------------------------------------- ---------------------------------------------------
High Serious disruption of a business All commercially reasonable efforts will be made
function that limits the customer's to provide resolution/workaround ********.
ability to conduct some portion of
production business. May downgrade to medium once resolution or
workaround is provided.
Attempt fix or attempt to prevent in next
maintenance release.
--------------------- ------------------------------------- ---------------------------------------------------
Medium A non-critical problem in the Respond to requests for information *******.
software resulting where the
customer is able to continue to run Attempt fix or attempt to prevent in next
the application without serious maintenance release.
impact on production business.
--------------------- ------------------------------------- ---------------------------------------------------
Low Minor application issue, all Respond to requests for information *******.
questions and requests for
information on use or Attempt fix or attempt to prevent in future
implementation of software. maintenance release.
--------------------- ------------------------------------- ---------------------------------------------------
USWeb/CKS will make all commercially reasonable efforts to comply with the above
escalation procedure and response time for the corresponding Issue Severity.
OneSoft will make all commercially reasonable effort to comply with the above
escalation procedure is support of USWeb/CKS (for Level 3 support).
USWeb/CKS agrees to provide OneSoft with timely written notification containing
all details of software problems necessary for OneSoft to diagnose such
problems. USWeb/CKS agrees to cooperate fully in providing OneSoft with all
materials necessary to reproduce a reported software problem. USWeb/CKS agrees
to provide OneSoft reasonable direct or remote access and test time, for the
purpose of diagnosing reported software problems. If OneSoft provides on-site
services at USWeb/CKS's request in connection with software maintenance,
USWeb/CKS shall reimburse OneSoft for all ************* incurred with respect to
such services.
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OneSoft shall not be responsible for maintaining Software that fails to comply
with its published specifications if such noncompliance is the result of
modification of the Software by USWeb/CKS or third parties. If OneSoft expends
its time on a noncompliance found to be the result of any of the foregoing,
USWeb/CKS shall pay OneSoft for such time at OneSoft's *********.
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Schedule 1(d)
▇▇▇▇▇▇▇ Spectra 19
Broadvision One-To-One Enterprise
Intershop Effinity
Intershop Enterprise
Intershop ePages
Intershop Hosting
Intershop Merchant
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SCHEDULE 3(b)
OneSoft-USWeb/CKS lab addendum
PROJECT STRUCTURE
The IL will be project focused with clear success metrics and goals. All
projects will be driven by direct and indirect client requirements as qualified
by USWeb/CKS. Each initiative will be managed with strict timelines and interim
deliverables in accordance with USWeb/CKS' methodology. Project teams will
consist of USWeb/CKS and OneSoft personnel as well as any applicable ISV
employees. Each project will include a project proposal and thorough project
plan including
**************
Each project will produce documented outputs in the form of benchmark metrics,
platform schematics, case studies, or white papers. USWeb/CKS will provide
targeted feedback to applicable product teams at OneSoft for every initiative in
the lab.
SERVICE READY PROJECTS
Demo Site
Business Case/Objectives
USWeb/CKS Business Development must have a fully branded site to begin
selling the OneSoft based E-Commerce solution. The current OneSoft Demo
site (▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) will be redesigned to provide the look and
feel of a USWeb/CKS site. This will be the starting point of MSD's
E-Commerce SDK.
Resources
USWeb/CKS
***********
OneSoft
********
Primary Location
USWeb/CKS
Deliverables
. Fully USWeb/CKS branded ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ site
including list of all pages and their description.
Start Date and Due Date
Start: Soon after agreement is signed, End: **********
COMMERCE CONNECTORS
Payment Processor Connector
Business Case/Objectives
USWeb/CKS must possess an understanding of what it takes to create
backend connectors to third party vendors. To facilitate this process
USWeb/CKS will leverage
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it's strategic partnership with ************* to develop a OneCommerce
payment connector to ********** payment gateway.
Resources
The following breakdown of expected resources are a preliminary
projection based on expected workloads.
USWeb/CKS
***********
OneSoft
********
*********
. *********
Primary Location
OneSoft
Deliverables
. ************
Start and Due Date
Start: By Mid-November End:**********
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BUSINESS LAYER (BUSINESS LOGIC AND DATABASE TIER)
************* and ************ of ************** a *************** and ********.
Business Case/Objectives
USWeb/CKS will be ***************, in **************** on
*************. This ************* on the *********** and ************ ,
to ********* and ***************.
Resources
The ************** of ************ are a ************ on **********.
USWeb/CKS
******
OneSoft
******
Deliverables
. ************ the ********** of ********* the *******
In addition, **********
for ********* may ********.
Start Date
******
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********** Into ***********
Business Case/Objectives
For ************** and *********** to ******** the ********* into
********* of ********* . For example, the *********** (possibly more)
********. By doing this:
. *********
Resources
The **********of ********* are a ******** on ********* .
USWeb/CKS
*******
OneSoft
*******
Location:
*******
Deliverables
. ********* the ********* that ******** to ***** the
******* a ******* of ****** . Start Date and Due Date
Start Mid-December End *******
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PLATFORM AND ARCHITECTURAL INTEGRATION
iFrame and MS DNA 2000 Integration
Business Case/Objectives
As new technologies are released it will be imperative for USWeb/CKS
and OneSoft to work together to integrate these technologies into the
E-Commerce offering. Two foreseeable technologies that must be
integrated into OneSoft's OneCommerce product are MSD's iFrame and
Microsoft's DNA 2000. The ***** of ***** of ****** , which ********* ,
is the **********. OneCommerce's components will be modified to
leverage iFrame in order to ******** for ********** .
Resources
The following breakdown of expected resources are a preliminary
projection based on expected workloads.
USWeb/CKS
******
OneSoft
*******
Primary Location:
********
Deliverables
********
Timeline
********
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SCHEDULE 4(a)
ONESOFT PRODUCTS AND PRICING
*************
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SCHEDULE 4(b)
CONDITIONS OF USE
1. OneSoft is an intended thirty-party beneficiary of these conditions of use.
2. Third Party Customer has no right to duplicate the Software.
3. Third Party Customer may not make the Software available as an application
service provider or on a service bureau basis or through timesharing or other
arrangements similar to any of the foregoing.
4. Third Party Customer may not transfer any rights with respect to the
Software.
5. Third Party Customer may not (nor shall it permit anyone else to) make
unauthorized copies, reverse engineer, decompile, disassemble, inspect, or
modify the Software, or separate the Software into components or its component
files, or recreate, or attempt to determine the makeup of the Software.
6. Third Party Customer may not remove any proprietary, trademark, copyright,
confidentiality, patent or other intellectual property notice or marking from an
original or any copy of the Software, documentation, display, media or other
materials or confidential information of OneSoft. Third Party Customer may not
use any tradename or trademark of OneSoft.
7. Third Party Customer acknowledges that any underlying technology, know-how,
or process used in the design, development, programming, or coding of the
Software is exclusively the intellectual property of OneSoft, and certain of the
same are protected by patents or patents pending.
8. Title to Software will not pass to Third Party Customer.
9. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND
ALL WARRANTIES WITH RESPECT TO THE SOFTWARE ARE DISCLAIMED, WHETHER EXPRESS OR
IMPLIED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE OR OF NON-INFRINGEMENT. THE ENTIRE RISK OF USE OF THE
SOFTWARE IS WITH THE THIRD PARTY CUSTOMER.
10. UNDER NO CIRCUMSTANCES SHALL ONESOFT BE LIABLE FOR ANY DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, , STATUTORY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES,
OF ANY KIND WHATSOEVER, OR FOR ANY LOST PROFITS, BUSINESS OR REVENUE, LOSS OF
USE OR GOODWILL, OR OTHER LOST ECONOMIC ADVANTAGE, ARISING OUT OF OR RELATED TO
THE SOFTWARE, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF CONTRACT, STRICT
LIABILITY, TORT, ANY FEDERAL OR STATE STATUTORY CLAIM, OR ANY OTHER LEGAL
THEORY, EVEN IF ONESOFT KNEW, SHOULD HAVE KNOWN, OR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL SURVIVE AND APPLY
EVEN IF ANY LIMITED REMEDY IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE.
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11. Third Party Customer shall not publish any result of benchmark tests run on
the Software.
12. Third Party Customer shall comply fully with all applicable export and
import laws, rules and regulations applicable to the Software.
13. Third Party Customer (i) agrees to permit OneSoft to reference it as a
customer and to list Third Party Customer as a OneSoft customer in OneSoft's
marketing materials and (ii) and agrees that USWeb/CKS may provide Third Party
Customer contact, project and site information to OneSoft.
14. Third Party Customer will contact USWeb/CKS with all support questions and
issues.
15. If any provision of the agreement with Third Party Customer is held to be
unenforceable, the remaining provisions shall remain in full force and effect.
16. Third Party Customer acknowledges that monetary damages will not be an
adequate remedy if it breaches its obligations with respect to OneSoft's
intellectual property under the agreement and such breach will result in
irreparable harm. Third Party Customer therefore agrees that, in the event of
any such breach, OneSoft shall be entitled to appropriate mandatory or
prohibitory injunctive relief against Third Party Customer, in addition to any
other remedies at law, in equity. If OneSoft substantially prevails in an action
for injunctive relief under this paragraph it shall be entitled to recover its
costs and expenses for obtaining such relief (including without limitation
reasonable attorneys' fees and court costs) from Third Party Customer.
17. Third Party Customer agrees that OneSoft may conduct remote monitoring of
Third Party Customer's web site to verify compliance with the terms of the
agreement.
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SCHEDULE 5
Reports
The following templates identify the types of information that USWeb/CKS will
provide to OneSoft.
Each report represents a format that is initially acceptable to OneSoft, but
OneSoft may request reasonable additions to or revisions of or deletions of the
information fields in each report, and may request that the report be sent in a
Microsoft Excel spreadsheet in a database format (where each row represents a
unique record).
1. *******************. ****************** after each new site sign date
(the date a customer signs for a USWeb/CKS service that includes
OneSoft licenses), USWeb/CKS will furnish the information contained
within the "*************". In addition, USWeb/CKS will notify OneSoft
within ********** after development with OneSoft licenses for the site
begins (the notification will include the Site URL and the date that
development began).
*************:
---------------------------------------------------
Site URL (a)
Customer Name: (b)
Corporate Address: (c)
Site Sign Date (d)
---------------------------------------------------
3 year committed purchase:
--------------------------------------------------------------------------------
Monthly *****
Software Pricing Unit Quantity: Price Maintenance ******** ********
--------------------------------------------------------------------------------
(e) (f) (g) (h) (i) (j) (k)
--------------------------------------------------------------------------------
Total (l) (m)
--------------------------------------------------------------------------------
----------------------------------------------------------------------
Notes: (n)
----------------------------------------------------------------------
(a) The site URL for which USWeb/CKS was contracted to deliver iAMcommerce
Powered by OneSoft
(b) Customer name that corresponds to the URL
(c) The corporate address for the customer
(d) The date that a customer signs for service that includes OneSoft's
licenses for a the corresponding Site URL.
(e) The product name (from schedule 4a)
(f) The pricing unit (from schedule 4a)
(g) The quantity committed to in the initial purchase
(h) The current net price to oneSoft for the application component
(i) The maintenance fee - for a single unit
(j) The number of calendar days remaining in the month (inclusive of the
day of the contract) mulitipled by the quantity and multipled by
the price
(k) The number of calendar days remaining in the month (includive of the
day of the contract) multiplied by the quantity and multiplied by the
Monthly Maintenance
(l) The sum of the *********. This is payable within ****** of the end of
the month
(m) The sum of the *********. This is payable within ****** of the end of
the month
(n) Notes
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2. *******************. *********** after each month, USWeb/CKS will
furnish the information contained within the "****************",
including the license usage based on Server processors for each Third
Party Customer (and each of their unique Brand URLs).
---------------------------------------------------
Month: (a)
---------------------------------------------------
---------------------------------------------------
Site URL (b)
Customer Name (c)
Customer since (d)
---------------------------------------------------
--------------------------------------------------------------------------------
Month Monthly
Service Maintenance Total
Software Pricing Unit Quantity: Began Price Amount Fees Notes
--------------------------------------------------------------------------------
(e) (f) (g) (h) (i) (j) (k) (l)
--------------------------------------------------------------------------------
Total
--------------------------------------------------------------------------------
(a) **********
(b) The Site URL that the usage applies to
(c) Customer that corresponds to the URL
(d) Date the customer signed up for service for the site
(e) The product name (from schedule 4a)
(f) The pricing unit (from schedule 4a)
(g) The quantity that was consumed in period (h)
(h) The period the associates quantity (g) was first initiated
(i) The net price to OneSoft of the Software in the period (h)
(j) The maintenance fee
(k) (g) times (i) plus (g) times (j)
(l) Notes
3. Customer Data Request Report. Upon OneSoft's request, USWeb/CKS will
provide within a reasonable time frame the information contained within
the "Customer Data Request Report" for the customers that OneSoft
requests it for (except for customers as to which OneSoft has waived
Section 13(ii) of the Conditions of Use).
Customer Data Request Report
-------------------------------------------------------
Name Title Phone Email Address
End Client:
--------------------------------------------------------------------------------
Executive (a) (b) (c) (d) (e)
Project Manager
Technical
USWeb/CKS:
--------------------------------------------------------------------------------
Lead Partner:
Project Manager:
Technical Lead:
--------------------------------------------------------------------------------
(a) The name of the corresponding contract
(b) The title of the corresponding contact
(c) The phone number of the corresponding contact
(d) The email address of the corresponding contact
(e) The address of the corresponding contact
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SCHEDULE 11(e)
Warranty Service Obligations
OneSoft will be responsible to provide the following warranty service
obligations in accordance with severity type and subject to the other provisions
of this Schedule 11(e) and the Agreement.
Severity types:
---------------------------------------------------------------------------------------------------------------
Issue Severity Definition Escalation Procedure
---------------------------------------------------------------------------------------------------------------
Critical Third Party Customer's live system During business hours, work will begin
is at a halt and unable to process immediately upon classification of the error as
data through the software as a critical and work will continue during business
result of a catastrophic event in hours until resolution or workaround is
the system database or software, or provided.
a major application failure in a
critical processing period. Best commercially reasonable efforts will be
made to provide ********within **********. A
resolution may include without limitation a
software patch.
---------------------------------------------------------------------------------------------------------------
High Serious disruption of a business All commercially reasonable efforts will be made
function that limits the Third to provide *********within *******.
Party Customer's ability to conduct
some portion of production business. May downgrade to medium once resolution or
workaround is provided.
---------------------------------------------------------------------------------------------------------------
Medium A non-critical problem in the Respond to requests for information within
software resulting where the Third *******.
Party Customer is able to continue
to run the application without Attempt fix or attempt to prevent in next
serious impact on production maintenance release.
business.
---------------------------------------------------------------------------------------------------------------
Low Minor application issue, all Respond to requests for information within
questions and requests for *******.
information on use or
implementation of software. Attempt fix or attempt to prevent in future
maintenance release.
---------------------------------------------------------------------------------------------------------------
USWeb/CKS agrees to provide OneSoft with timely written notification containing
all details of Software problems necessary for OneSoft to diagnose such
problems. USWeb/CKS agrees to cooperate fully in providing OneSoft with all
materials necessary to reproduce a reported Software problem. USWeb/CKS agrees
to provide OneSoft reasonable direct or remote access and test time, for the
purpose of diagnosing reported Software problems. If OneSoft provides on-site
services at USWeb/CKS's request in connection with the Software warranty,
USWeb/CKS shall reimburse OneSoft for ************ incurred with respect to such
services.
OneSoft shall not be responsible for maintaining Software that fails to comply
with its published specifications if such noncompliance is the result of
modification of the Software by USWeb/CKS or third parties. If OneSoft expends
its time on a noncompliance found to be the result of any of the foregoing,
USWeb/CKS shall pay OneSoft for such time at OneSoft's *********.
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Schedule 12(d)
MUTUAL NON-DISCLOSURE AGREEMENT
--------------------------------------------------------------------------------
THIS MUTUAL NON-DISCLOSURE AGREEMENT is entered into as of the ___ day
of _________________________, 199__, by and between OneSoft Corporation and the
undersigned _________________________________.
Each party hereto (individually a "Party" and together, the "Parties") has
requested and/or will learn (including, without limitation, learning through an
audit) from the other party hereto, its subsidiaries or affiliates
(collectively, the "Disclosing Party"), from or through the Disclosing Party's
employees, officers, directors, independent contractors, agents or
representatives, information, both orally and in writing, concerning the
intellectual property and/or business of the Disclosing Party and/or current or
potential customers of the Disclosing Party, including, without limitation,
discoveries, ideas, concepts, know-how, techniques, designs, specifications,
drawings, blueprints, tracings, diagrams, models, samples, flow charts, data,
computer programs, source code, software, disks, diskettes, tapes, customer
lists, customer addresses, products and services provided to specific customers,
sales volumes, customer pricing, equipment specifications, locations and use,
network configurations, capacities and capabilities, current or prospective
relationship with vendors and independent contractors (including, without
limitation, information regarding the types of products and services contracted
for and the cost of such products and services to the Disclosing Party),
implementation of technology, data and programs, finance, sales, marketing, and
development of internet, telecommunication and related technology and services.
Such information, in whole or in part, together with analyses, compilations,
programs, reports, proposals, studies, or any other documentation, prepared by
the Disclosing Party or the other Party (the "Receiving Party"), as the case may
be, which contain or otherwise reflect or make reference to such information,
whether or not specifically marked as confidential by the Disclosing Party, are
hereinafter referred to as "Confidential Information."
All Confidential Information is deemed proprietary to the Disclosing Party.
Accordingly, as a condition precedent to entering into discussions, and in
connection with any business relationship, whether formal or informal, which is
or may be established between the Parties, the Receiving Party hereby agrees, as
set forth below, to hold Confidential Information of the Disclosing Party,
whether furnished before, on or after the date of this agreement, in the
strictest confidence and not to disclose such information to anyone except as
otherwise provided for in this agreement.
1. NON-EXHAUSTIVE DEFINITION OF CONFIDENTIAL INFORMATION; NON-MARKING The
Receiving Party hereby agrees that Confidential Information will also
include information that is not specifically encompassed in the
definition thereof above, but that would reasonably be expected to be
considered confidential by the Disclosing Party. Any issue as to the
confidentiality expectations of the Disclosing Party regarding
particular information shall be submitted to the Disclosing Party for
determination. In addition, the Parties hereby agree that although
Confidential Information is not required to be marked as such under
this agreement, some Confidential Information which is delivered to the
Receiving Party hereunder may indeed be so marked.
2. USE OF CONFIDENTIAL INFORMATION The Receiving Party agrees that the
Confidential Information will be used solely for the purpose of
evaluating a potential transaction between the Parties and in
connection with a business relationship, whether formal or informal,
which is or may be established between the Parties, and not for any
other purpose, except as otherwise agreed by the Parties in writing.
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3. OWNERSHIP OF CONFIDENTIAL INFORMATION The Receiving Party acknowledges
that the Disclosing Party claims the Confidential Information as its
sole and exclusive property (or that the Disclosing Party is a valid
licensee of such information) and that the Receiving Party shall not
have any right, title, or interest in or to such Confidential
Information except as expressly provided in this agreement.
4. DISCLOSURE OF CONFIDENTIAL INFORMATION The Receiving Party agrees to
hold in the strictest confidence and not to disclose to anyone for any
reason Confidential Information of the Disclosing Party; provided,
however, that:
(a) such Confidential Information may be disclosed to the
officers, directors, employees, agents, or representatives
(collectively, "Representatives") of the Receiving Party on a
"need to know" basis for the purpose of evaluating a potential
transaction between the Parties or in connection with a
business relationship, whether formal or informal, which is or
may be established between the Parties, on the condition that
(i) each such Representative will be informed of the
confidential nature of such Confidential Information and will
agree to be bound by the terms of this agreement and not to
disclose such Confidential Information to any other person and
(ii) each Party agrees to accept full responsibility for any
breach of this agreement by that Party's Representatives; and
(b) Confidential Information of the Disclosing Party may be
disclosed by the Receiving Party upon the prior written
consent of the Disclosing Party.
5. DISCLOSURE OF DISCUSSIONS Each Party agrees not to disclose, and will
direct its Representatives not to disclose, to any person that
discussions or negotiations are taking place between the Parties unless
otherwise required by law or upon the prior written consent of the
other Party. This paragraph applies, without limitation, to any use,
other than strictly internal use, by a Party of the other Party's name
and marks.
6. RETURN OF CONFIDENTIAL INFORMATION The Receiving Party agrees, upon the
request of the Disclosing Party, to promptly deliver to the Disclosing
Party (or, with the Disclosing Party's consent, destroy) the originals
and all copies of the Disclosing Party's Confidential Information then
in the Receiving Party's possession or control, including, without
limitation, the portion of the Confidential Information that consists
of analyses, compilations, programs, reports, proposals, studies, or
other documentation prepared by a Receiving Party or its
Representatives.
7. LIMITATIONS ON CONFIDENTIAL INFORMATION The term "Confidential
Information" does not include any information which:
(a) Is or becomes generally available to or known by the
public (other than as a result of a disclosure directly or
indirectly by the Receiving Party);
(b) Is independently developed by the Receiving Party without
breach of this agreement;
(c) Is lawfully received by the Receiving Party without
restriction from a third party who obtained the Confidential
Information other than as a result of a breach of any
confidentiality obligation; or
(d) Is disclosed by the Receiving Party pursuant to judicial
action or governmental regulations, provided that the
Receiving Party notifies the Disclosing Party prior to such
disclosure and the Receiving Party cooperates with the
Disclosing Party in the event that the Disclosing Party elects
legally to contest and avoid such disclosure.
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8. TERM The terms and conditions of this agreement shall continue for a
period of three years from the date hereof; provided, however, that the
Parties agree that the obligations of confidentiality hereunder shall
survive such term.
9. SPECIFIC PERFORMANCE The Parties acknowledge and agree that the rights
being protected by the terms of this agreement are of a special,
unique, unusual and extraordinary character, which gives them a
particular value, and that the breach of any provision of this
agreement shall cause irreparable injury and damage to the nonbreaching
Party. In such event, the nonbreaching Party shall be entitled to
require specific performance of all of the acts and the undertakings
required of the breaching Party hereunder and to obtain injunctive and
other equitable relief in any court of competent jurisdiction to
prevent the violation or threatened violation of any of the provisions
of this agreement. Neither this paragraph 9 nor any exercise by the
nonbreaching Party of its right to equitable relief or specific
performance herein granted shall constitute a waiver by the
nonbreaching Party of any other rights which it may have to damages or
other relief.
10. ENFORCEABILITY If any of the provisions contained in this agreement is
held to be unenforceable, in whole or in part, by a court of competent
jurisdiction, the Parties agree to be bound by all other provisions of
this agreement.
11. SUCCESSORS The Parties agree that this agreement shall be binding upon
the successors and assigns of such Party and shall inure to the benefit
of, and be enforceable by, such successors and assigns, and any
officers or directors thereof.
12. WAIVER The Parties agree that a Party's failure at any time to require
performance of any provision of this agreement shall in no way affect
such Party's right at a later time to enforce the same. No waiver by a
Party of a breach of a term contained in this agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to
be or construed as a further or continuing waiver of such breach of any
other term of this agreement.
13. APPLICABLE LAW This agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to
its conflicts of laws provisions. Any proceeding related to this
agreement shall be brought only in a court of competent jurisdiction
located in the Commonwealth of Virginia.
...
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above:
OneSoft Corporation USWeb Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- ----------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇ Print Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------- -----------------------
Title: CEO, President Title: EVP, Managed Services
---------------------------- ----------------------------
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Schedule 15(b)
PARTICIPATING SUBSIDIARIES
USWeb/CKS
(none)
OneSoft
(none)
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Schedule 15(j)
AUTHORIZED PERSONS
PART 1
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
PART 2
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
35