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EXHIBIT 10.34
Proprietary Notice
Restrictions on Use and Disclosure of Service Level Agreement Information Data.
The information contained in all sheets of this Service Level Agreement
constitutes trade secrets and/or information that are commercial or financial
and confidential or privileged. It is furnished to viaLink in confidence with
the understanding that it will not, without permission of the offeror, be used
or disclosed for other than evaluation purposes. However, in the event a
contract is awarded on the basis of this Service Level Agreement, viaLink shall
have the right to use and disclose this information to the extent provided in
that contract. The restriction does not limit viaLink's right to use or disclose
this information if obtained from another source without restriction.
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TABLE OF CONTENTS
1. Terms and Conditions of Sale........................................................................3
Confidential Disclosure Agreement
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Terms and Conditions of Sale
This Service Level Agreement ("Agreement") is made between HEWLETT-PACKARD
COMPANY, a Delaware corporation, ("HP") and The viaLink Company, an
Oklahoma corporation, ("viaLink") as of May 28, 1999 ("Effective Date").
1. DEFINITIONS
Definitions set forth below or elsewhere in this Agreement shall apply anywhere
else in the Agreement where such defined terms are used unless a specific
definition is expressly provided for use only within a given section or
sections.
1.1 "Agreement" means this Service Level Agreement for Operations Services
including all exhibits and any amendments hereafter made a part of this
Agreement.
1.2 "viaLink's Confidential Information" means proprietary business
information, viaLink Information (as hereinafter defined), Trade Secrets,
Intellectual Property Rights, viaLink's Security Policies and Procedures,
Assessments performed pursuant to Section 5.8 of Exhibit A, and viaLink's
Customer data or information processed or stored by the Computer Environment
Resources and/or other information regarding viaLink or any of its
subsidiaries and/or any of viaLink's Customers, regardless of whether any of
such information is specifically marked as confidential. viaLink's
Confidential Information shall not include information which was otherwise
confidential but which (i) has become public knowledge, (ii) was already
known by HP from independent and unrestricted sources prior to disclosure by
viaLink, (iii) has been disclosed by viaLink to others without restriction
on further disclosure, (iv) was rightfully received from a third party
without a duty of confidentiality, (v) was independently developed by the
receiving party prior to or independent of the disclosure, (vi) was
disclosed under requirement of law (provided that if such disclosure is
required by law, HP shall have given viaLink prior notice and an opportunity
to contest or appeal the order requiring such disclosure), and (vii) was
disclosed by the receiving party with the disclosing party's prior written
approval.
1.3 "HP Confidential Information" means proprietary business information,
Trade Secrets, Intellectual Property Rights and/or other information, which
is marked as confidential, regarding HP or any of its subsidiaries. HP's
Confidential Information shall not include information which was otherwise
confidential but which (i) has become public knowledge, (ii) was already
known by viaLink from independent and unrestricted sources prior to
disclosure by HP, (iii) has been disclosed by HP to others without
restriction on further disclosure, (iv) was rightfully received from a third
party without a duty of confidentiality, (v) was independently developed by
the receiving party prior to or independent of the disclosure, (vi) was
disclosed under requirement of law (provided that if such disclosure is
required by law, viaLink shall have given HP prior notice and an opportunity
to contest or appeal the order requiring such disclosure), and (vii) was
disclosed by the receiving party with the disclosing party's prior written
approval.
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1.4 "Trade Secrets" means any proprietary information not generally known in
the industry in which viaLink or HP, as the case may be, is engaged,
including information relating to such party's business affairs, finances,
properties, methods of operation, developed software, sources of and
arrangements for hardware supplied to clients, submission and proposal
procedures, customer or contact lists, commercial information, and/or price
or product information supplied by customers or either HP or viaLink, as the
case may be.
1.5 "Transition Services" shall be defined as set forth in Section 14 below.
1.6 "viaLink's Customer(s)" means any person or entity who enters into a
license agreement or otherwise contracts with viaLink for the use of or
access to the viaLink Software.
1.7 "viaLink Hardware" means the computer systems, peripherals, terminals,
firmware, communications equipment and all related hardware products owned
or leased by viaLink which will be used by HP in performing Operations
Services under this Agreement.
1.8 "viaLink Software" means the computer programs including documentation
relating thereto, all updates and new releases thereof, licensed from HP or
third parties, or owned by viaLink as listed in Exhibit A, which will be
used by HP subject to this Agreement in performing Operations Services
hereunder.
1.9 "viaLink Information" means viaLink's and/or viaLink's Customers'
Confidential Information and data provided either physically or by access to
HP for performance of Operations Services under the requirements of this
Agreement, regardless of whether the same is marked as confidential.
1.10 "HP Hardware" means the computer systems, peripherals, terminals,
firmware and all related hardware products owned or leased by HP, which will
be used by HP in performing Operations Services under this Agreement.
1.11 "HP Software" means the computer programs including documentation
relating thereto, all updates and new releases thereof, which HP licenses or
owns as listed in Exhibit A which will be used by HP in performing
Operations Services hereunder and does not include software licensed by
viaLink from HP.
1.12 "Intellectual Property Rights" includes copyrights, patents, trade
marks, service marks, design rights (whether registered or unregistered),
semiconductor topography rights, Trade Secrets and all other similar
proprietary rights.
1.13 "Materials" means all tangible materials developed in the course of
this Agreement including documents, records, and other copies including
materials which embody computer software programs.
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1.14 "Operations Services" means the services to be performed by HP as
described in this Agreement.
1.15 "Change Management Process" means the process as defined in this
Agreement to implement Service Change Orders and Service Change Requests.
1.16 "Service Change Order" means a request to change the scope of the
current Agreement to be covered by Operations Service as detailed in this
Agreement.
1.17 "Service Change Request" means a request for an in scope change or
modification to the service deliverables as detailed in this Agreement.
1.18 "Service Fees" means the fees payable by viaLink as specified in
Exhibit C, Service Fee Schedule.
1.19 "Service Level Objectives" means the predetermined, objective
performance criteria for delivery of Operations Services as described in
Exhibit B, Service Level Objectives.
1.20 "Stable Environment" means an environment which meets the stability
criteria set forth in Exhibit A.
2. HP OBLIGATIONS
2.1 HP will perform Operations Services in full compliance with the terms
and conditions of this Agreement.
2.2 HP will provide viaLink with periodic reports described in Exhibit A,
which reports, without limiting the generality of the foregoing, shall
compare HP's performance to the Service Level Objectives specified in
Exhibit B.
2.3 HP may select qualified and reputable subcontractors to fulfill any of
HP's obligations, provided, however, and notwithstanding anything to the
contrary elsewhere in this Agreement, that HP will advise viaLink upon the
selection of such subcontractors which will fill key positions; and further
provided, and notwithstanding anything to the contrary in this Agreement,
any subcontracting of its obligations under this Agreement shall not reduce
the liability of HP to viaLink and HP shall remain liable to viaLink for all
of its obligations under this Agreement, whether Operations Services are
provided by HP or by subcontractors of HP as allowed by this Agreement.
Moreover, HP shall require each such Subcontractor and its employees to
execute an agreement to be bound by HP's obligations under this Agreement
regarding viaLink Confidential Information.
2.4 HP shall appoint a representative to supervise and coordinate HP's
performance of obligations. HP may change its representative at any time
upon written notice.
2.5 HP will make viaLink aware of, as soon as reasonably feasible, any
software viruses discovered by HP which may impact Operations Services. In
addition HP will provide
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notification to a viaLink contact upon receipt of an SNMP Trap or a log file
error message generated by the viaLink provided virus scanning software. HP
shall have no other obligations with regard to viruses.
2.6 HP will be responsible for all its own costs and expenses except for
those costs and expenses for which viaLink is specifically responsible as
set out in this Agreement.
3. viaLink OBLIGATIONS
3.1 viaLink will comply with its obligations set forth in this Agreement in
full compliance with the terms and conditions of this Agreement.
3.2 LBI
3.3 Subject to the terms and conditions of this Agreement, viaLink will
provide HP with access to and use of such viaLink data, viaLink Software and
internal resources as reasonably determined by viaLink and HP to be
necessary to deliver Operation Services required by the terms of this
Agreement.
3.4 HP will not be liable for failure to meet Service Level Objectives due
to delayed, false or inaccurate information provided by viaLink, unless such
delay or inaccuracy is attributable to any failure on HP's part to meet its
obligations under this Agreement.
3.5 viaLink will be responsible for all its own costs and expenses except
for those costs and related expenses for which HP is specifically
responsible as set out in this Agreement.
3.6 Except as expressly provided in this Section 3.6, viaLink has sole
responsibility to ensure that viaLink's Computing Environment Resources, as
defined in Exhibit A, is Year 2000 compliant. HP is not providing Year 2000
services (for example, Year 2000 assessment, conversion or testing) under
this Agreement. viaLink acknowledges that HP shall not be responsible for
failure to perform Operations Services under this Agreement, if such failure
is the result, directly or indirectly, of the inability of any products (for
example, hardware, software or firmware), other than HP Hardware and/or HP
Software, to correctly process, provide or receive data (i.e.,
representations for month, day and year) and to properly exchange date data
with the HP Software or deliverables provided by HP under this Agreement.
Notwithstanding anything to the contrary in this Agreement or in any other
agreement between the parties prior to the effective date of this Agreement,
HP represents that HP Hardware and HP Software used to deliver Services
hereunder shall comply with the following Year 2000 requirements:
a. Consistently and accurately handle and process date information
before, during and after January 1, 2000, including but not limited to
accepting date input, providing date output, and performing
calculations on dates or portions of dates;
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b. Function accurately without interruption (or disruption of other
software, hardware or systems) before, during and after January 1,
2000 without any change in operations; and
c. Store and provide output of date information in ways that are
unambiguous as to century.
For third party products that HP sells or supplies under the requirements of
this Agreement, HP will coordinate and help certify such products as Year 2000
compliant; however, except as otherwise provided in this Agreement, HP cannot be
held liable for Year 2000 compliance of these third party products.
4. HARDWARE
4.1 Except as otherwise provided in this Agreement, HP will perform
Operations Services using viaLink Hardware. Subject to viaLink's prior
written consent, which consent shall not be unreasonably withheld, HP may
use HP Hardware instead of, or in addition to, viaLink Hardware.
4.2 Title to HP Hardware is retained by HP and viaLink has no rights thereto
except as specifically permitted under this Agreement. When HP Hardware is
installed at viaLink sites, viaLink is responsible for all physical loss and
damage of such HP Hardware other than that caused directly and solely by HP.
HP may upgrade and replace HP Hardware as HP, in its sole discretion deems
appropriate so long as it does not adversely impact the viaLink Software
and/or viaLink Hardware, reduce the Service Level Objectives or make any
change to the Operations Services. HP will advise viaLink of any upgrades
and replacement to HP Hardware that may have an impact on viaLink's
Computing Environment Resources.
4.3 Title to viaLink Hardware is retained by viaLink and HP has no rights
thereto except as specifically permitted under this Agreement. When viaLink
Hardware is installed at HP sites, HP is responsible for all physical loss
and damage of such viaLink Hardware other than that caused directly and
solely by viaLink.
4.4 HP will not change the location where HP provides viaLink the services
set forth in this Agreement without the prior written consent of viaLink,
which consent will not be unreasonably withheld.
5. SOFTWARE
5.1 HP will perform Operations Services using said viaLink Software and HP
Software.
5.2 viaLink grants HP a non-exclusive license at no charge to use viaLink
Software during the term of this Agreement and, if applicable during any
holdover period after expiration or termination of the Agreement, solely for
the purpose of delivering Operations Services. viaLink Software will be
supported as described in Exhibit A.
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5.3 Subject to the limitations set forth in Section 12.6.1, in the event any
claim is brought against HP, its employees, agents or subcontractors
alleging the disclosure to HP or use by HP of viaLink Software developed
solely by viaLink for purposes of this Agreement (except software licensed
from HP) which resulted in infringement of third party Intellectual Property
Rights viaLink hereby agrees to indemnify, and defend HP for all damages,
costs, demands, liabilities, expenses and losses incurred by HP in
connection with such claim including reasonable attorneys' fees and court
costs, provided:
5.3.1 HP promptly notifies viaLink in writing of the claim;
5.3.2 HP cooperates with viaLink in such defense and settlement; and,
5.3.3 HP grants viaLink sole authority to control the defense and any
related settlement;
5.3.4 viaLink shall pay any damages and costs finally awarded by a court
in any Infringement Action against viaLink;
5.3.5 viaLink has no obligation for any claim of infringement arising
from:
5.3.5.1 Any Infringement Action arising by reason of the authorized
use by viaLink at any time of HP Software received by
viaLink from HP; and
5.3.5.2 Any Infringement Action arising solely by reason of
viaLink's compliance with any instructions of HP.
5.3.6 This Section 5.3 states viaLink's entire liability for
indemnification claims regarding third party intellectual property
infringement
5.4 Subject to the limitations set forth in Section 12.2.3, in the event any
claim is brought against viaLink, its employees, agents or subcontractors
alleging the disclosure to viaLink or use by viaLink of HP Software
developed solely by HP and used by HP to deliver Operations Services under
this Agreement (except software licensed from viaLink) which resulted in
infringement of third party Intellectual Property Rights, HP hereby agrees
to indemnify, and defend viaLink for all damages, costs, demands,
liabilities, expenses and losses incurred by viaLink in connection with such
claim including reasonable attorneys' fees and court costs, provided:
5.4.1 viaLink promptly notifies HP in writing of the claim;
5.4.2 viaLink cooperates with HP in such defense and settlement; and,
5.4.3 viaLink grants HP sole authority to control the defense and any
related settlement;
5.4.4 HP shall pay any damages and costs finally awarded by a court in
any Infringement Action against viaLink;
5.4.5 HP has no obligation for any claim of infringement arising from:
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5.4.5.1 Any Infringement Action arising by reason of the authorized
use by HP at any time of viaLink Software received by HP
from viaLink; and
5.4.5.2 Any Infringement Action arising solely by reason of HP's
compliance with any instructions of viaLink.
5.4.6 This Section 5.4 states HP's entire indemnification liability to
viaLink for any third party claims against viaLink of third party
intellectual property infringement
5.5 To the extent that any of the viaLink Software listed in Exhibit A is
proprietary HP software licensed by viaLink from HP, it shall be used by HP
and continue to be licensed to viaLink under the terms of the applicable HP
software license terms which shall remain in full force and effect;
provided, however, that in the event of any conflict between the terms of
such software license and the terms of this Agreement, the terms of this
Agreement shall control and supercede any conflicting portions of the
software license terms.
6. PRICE AND PAYMENT
6.1 In consideration of HP's delivery of Operations Services described in
this Agreement, viaLink, subject to the terms and conditions of this
Agreement, will pay HP the Service Fees as set out in Exhibit C.
6.2 HP may adjust Service Fees on an annual basis in an amount not to exceed
any cost of living increases reflected in the Employment Cost Index (ECI)
ECU21222A.
6.3 Payment is due 30 days from HP's invoice date. Service Fees as stated in
Exhibit C will be invoiced not more than ten (10) days prior to the
beginning of each month of the Term of this Agreement. HP may change payment
terms to require viaLink to make payment within 60 days in advance of
services to be performed if viaLink, for three(3) consecutive months, fails
to pay any Service Fees due pursuant to this Section 6 within the time set
forth herein.
6.4 L.B.I.
6.5 Taxes, such as sales, use, service, value added or like taxes, are not
included in the Service Fees and will be invoiced, if applicable, as
separate items. Taxes on income are specifically excluded from the taxes
described in this Section. Both parties will work together to segregate the
amounts paid to HP under this Agreement into (a) those for taxable services
to viaLink, and (b) those for nontaxable services to viaLink.
6.6 HP's charges to viaLink in respect of the Operation Services shall not
exceed HP's lowest charges to any other person or entity for whom it
provides similar Operations Services under the same or similar terms and
conditions to those set forth in this Agreement.
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7. CHANGE MANAGEMENT
7.1 Service Change Orders and Service Change Requests can be submitted by
viaLink or HP as described in this Agreement.
7.2 Service Change Request viaLink or HP may submit a Service Change Request
provided the change will not result in a change in price to viaLink. If HP
reasonably determines that the Service Change Request will result in a
change in any fees under this Agreement, it will be treated as a Service
Change Order. Service Change Requests will be implemented in accordance with
the Change Management Process as set forth in Exhibit F.
7.3 Service Change Order viaLink or HP may submit to the other a written
Service Change Order to request a change to the Operations Services that are
not within the scope of the Agreement. The Service Change Order shall be
managed in accordance with the process described in Exhibit F.
7.3.1 The Service Change Order must include:
7.3.1.1 A description of the requested change;
7.3.1.2 The purpose for the change;
7.3.1.3 The priority;
7.3.1.4 Date of requested implementation;
7.3.1.5 Signature of authorized requester.
7.3.2 As set forth in Exhibit F, HP will advise viaLink of the resultant
impact of the Service Change Order on price, schedule and potential
impact on the performance and availability of the Computing Environment
Resources. Notwithstanding anything to the contrary in this Agreement,
prior to implementation, the parties must mutually agree upon all
Service Change Orders and any resulting change in the fees due under
this Agreement or in the Operations Services to be performed and the
Service Level Objectives to be met under this Agreement. Prior to such
agreement, HP shall continue to perform and to be paid as if such
Service Change Order had not been requested or recommended. In the event
that if either party proposes a Service Change Order which represents a
material change in the Operations Services in the other party's
judgement, and the parties do not agree upon all of the terms of, and
impact of, such Service Change Order within sixty (60) days after its
submittal, unless the party submitting the Service Change Order
withdraws the Service Change Order within fifty (50) days after its
submission, either party shall have the right to terminate this
Agreement provided the dispute resolution process set out in Section
15.12.1 only shall have first been completed and have failed to resolve
this issue. If either HP or viaLink terminates per this Section 7.3.2,
HP's sole obligation to viaLink shall be limited to providing Operations
Services to viaLink pursuant to Section 13.5.1.2 (ii) for up to one
hundred and eighty (180) days and to provide Transition Services
pursuant to Section 13.5.1.2 (iii) as amended by this Section 7.3.2; and
viaLink's sole obligation to HP will be to pay for said Transition
Services and to continue to pay for any Operations Services while
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rendered by HP. Pursuant to Section 13.5.1.2 (iii), HP will perform
Transitions Services on a Time and Material basis at HP's standard
service rates. When HP commences Transition Services, HP and viaLink
will agree, on a weekly basis, what activities will be performed in the
upcoming week. HP will then provide viaLink with an estimate of the
number of hours and the materials that will be required to meet the
agreed upon tasks for the upcoming week. This estimate will be within
plus or minus ten percent of the actual number. At the end of each week
after Transition Services have been performed, HP will provide viaLink,
in writing, details of the activities performed including the actual
number of hours utilized and any materials consumed. The right of the
parties to terminate pursuant to this Section is in lieu of and not in
addition to the rights of termination granted elsewhere in this
Agreement.
7.3.3 Once a Service Change Order is implemented, HP will adjust
viaLink's invoice as agreed by the parties.
7.4 The Change Management Process does not apply to HP substitution, of
alternative products for HP Hardware or HP Software which meets or exceeds
the original performance levels of the Computing Environment Resources or
which is based on a different specification of products so long as such
substitution does not in any way adversely impact the viaLink Hardware
and/or viaLink Software or reduce the Service Level Objectives or make any
change to the Operations Services.
8. WARRANTIES
8.1 HP warrants and represents that, subject to the terms of Exhibit B to
this Agreement, it will meet the Service Level Objectives for both the
Functional Environment and for Non-redundant Servers as set forth in this
Agreement as calculated pursuant to Exhibit B hereto. HP shall not be held
liable for its failure to meet the Service Level Objectives if such failure
is the direct result of viaLink's material failure to meet its obligations
related hereto under the terms of this Agreement.
8.2 HP warrants and represents that Operations Services provided by HP will
be performed in a professional, competent and timely manner and in full
compliance with this Agreement. HP shall not be held liable for its failure
to provide Operations Services if such failure is the direct result of
viaLink's material failure to meet its obligations related thereto under the
terms of this Agreement.
8.3 Except as expressly provided elsewhere in this Agreement (and except for
any implied warranties relating to title), all conditions and warranties
(express or implied, statutory or otherwise) are hereby excluded and HP
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
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9. INTELLECTUAL PROPERTY RIGHTS/CONFIDENTIAL INFORMATION
9.1 All Intellectual Property Rights and Confidential Information existing
prior to the Effective Date shall belong to the party that owned such rights
immediately prior to the Effective Date.
9.2 Neither party shall gain by virtue of this Agreement any rights of
ownership of copyrights, patents, Trade Secrets, trademarks or Intellectual
Property Rights or Confidential Information owned by the other.
9.3 Except as hereinafter stated, HP shall own all its Intellectual Property
Rights, title and interest pertaining to the Materials developed by HP for
the purposes of this Agreement; provided however and notwithstanding the
foregoing, to the extent that such Materials contain any viaLink
Confidential Information, (i) viaLink shall own all Intellectual Property
Rights, title and interest pertaining to any such viaLink Confidential
Information; (ii) HP shall not use any such viaLink Confidential Information
except to perform the Operations Services for viaLink pursuant to this
Agreement; and (iii) upon termination or expiration of this Agreement, HP
shall remove any such viaLink Confidential Information from the Materials
and destroy such viaLink Confidential Information.
9.4 viaLink acknowledges that information, software, and documentation
created by HP in the course of delivering Operations Services which relate
to HP's internal processes and procedures for delivery of Operations
Services in general may be used by HP and its affiliated companies to
facilitate delivery of similar services to other customers, provided such
use does not contain or relate to viaLink Confidential Information or
infringe on any of viaLink's Intellectual Property Rights or otherwise use
or disclose any of viaLink's Confidential Information.
9.5 Nothing herein shall be construed so as to prevent either party or its
affiliated companies from using data processing techniques, ideas, and other
know-how gained during the performance of this Agreement in the furtherance
of its business, to the extent that this does not result in disclosure or
use of the other party's Confidential Information or constitute infringement
or violation of any Intellectual Property Right of the other party.
9.6 All of HP's Confidential Information shall be kept confidential and not
used by viaLink except as expressly authorized by this Agreement and shall
not be disclosed to anyone except employees, agents, and contractors of
viaLink who have a "need to know" the same in order to further or facilitate
the performance of viaLink under this Agreement and who are legally bound to
respect the confidentiality thereof as required by this Agreement. All such
HP Confidential Information shall be and remain the exclusive property of
HP. Promptly after the termination or expiration of this Agreement, viaLink
will, at its expense, at HP's option either destroy or return to HP, except
as viaLink may be otherwise authorized to use said HP Confidential
Information or any portion thereof after the expiration or termination of
this Agreement. During the Term of this Agreement, viaLink will take the
necessary steps to protect HP's Confidential Information with the same
degree of care (but not less than a reasonable
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degree of care) to prevent the unauthorized use, dissemination or
publication of such Confidential Information, as viaLink uses to protect its
own Confidential Information.
9.7 All of viaLink's Confidential Information shall be kept confidential and
not used by HP except as expressly authorized by this Agreement and shall
not be disclosed to anyone except employees, agents, and contractors of HP
who have a "need to know" the same in order to further or facilitate the
performance of the Operations Services and who are legally bound to respect
the confidentiality thereof as required by this Agreement. All such viaLink
Confidential Information shall be and remain the exclusive property of
viaLink and/or viaLink's Customers, as the case may be. Promptly after the
termination or expiration of this Agreement, HP will, at its expense, at
viaLink's option either destroy or return to viaLink, all of viaLink's
Confidential Information in the format and media as the same was maintained
during the Term of this Agreement. During the Term of this Agreement, HP
will take necessary steps to secure such viaLink Confidential Information
and shall maintain such physical data integrity safeguards against the
deletion, wrongful removal, theft or alteration of such viaLink Confidential
Information and to protect the same with the same degree of care (but not
less than a reasonable degree of care) which HP uses to prevent the
unauthorized use, dissemination or publication of HP's Confidential
Information.
9.8 Notwithstanding anything to the contrary herein, upon termination or
expiration of this Agreement, viaLink and its contractors may continue to
use any Materials developed specifically for viaLink and paid for
specifically by viaLink during this Agreement so long as viaLink continues
to use all or any portion of the viaLink Hardware or Software or any
replacement thereto to carry on the same or similar business as that carried
on by viaLink during the Term of this Agreement.
9.9 Subject to the limitations set forth in Section 12.2.4, if, as a result
of any act or omission by HP and/or its employees, agents or subcontractors
that constitutes a breach of HP's obligations under this Section 9, and/or
under Sections 4.12, 5.8 or 9.1.1 of Exhibit A to this Agreement, any of
viaLink's Confidential Information that is resident on viaLink systems as
defined in Exhibit A, Section 10.2 and which is located behind the PIX
firewall, and managed and hosted by HP within HP's Operations Services
Center (OSC), is lost, stolen or destroyed, HP hereby agrees to indemnify,
defend and hold viaLink harmless for all damages, costs, demands,
liabilities, expenses and losses incurred by viaLink in connection with such
claim, including, without limitation, reasonable attorney's fees and court
costs. Additionally, HP will reapply such physical data, as soon as
feasible, pursuant to Exhibit A, Section 4.10.
9.10 Subject to the limitations set forth in Section 12.6.1, in the event
viaLink violates any of HP's Intellectual Property Rights or breaches any of
the terms, conditions or restrictions of this Section 9, viaLink hereby
agrees to indemnify, defend and hold HP harmless for all damages, costs,
demands, liabilities, expenses and losses incurred by HP in connection with
such claim, including, without limitation, reasonable attorneys' fees and
court costs.
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10. LBI
11. LBI
12. REMEDIES AND LIABILITIES
12.1 The remedies in this Agreement are viaLink's and HP's sole and
exclusive remedies; provided, however, and notwithstanding anything to the
contrary in this Agreement, nothing in this Agreement shall prevent either
party from seeking in a court of law, at any time and without the need to
pursue any of the Dispute Resolution Process set forth in this Agreement,
injunctive relief for any violation or breach of Sections 5 or 9 of this
Agreement or from seeking injunctive relief to enjoin violation or
infringement of any Intellectual Property Rights of the party seeking such
injunctive relief.
12.2 HP's liability with respect to its obligations as stated in this
Agreement shall be limited as follows:
12.2.1 Damages for bodily injury;
12.2.2 Direct damages to tangible property up to a limit of U.S.
$1,000,000 or the then current replacement or repair cost
thereof, whichever is less, in the aggregate;
12.2.3 Damages arising from a breach of any other of its obligations
under Section 5 of this Agreement up to a limit of U.S.
$1,000,000 in the aggregate.
12.2.4 HP's monetary liability for any and all claims arising out
Section 9.9 of this Agreement shall be limited to $25,000,000 in
the aggregate. Any restrictions or limitations on the nature or
type of damages set forth in Section 12.4 or in Section 12.5.2
below do not apply to this Section 12.2.4.
12.3 In addition to its other rights under this Agreement, viaLink may take
credits against the fees set forth in Exhibit C based upon the availability
achieved by HP in comparison with the Service Level Objectives for the
Functional Environment and/or for the Non-Redundant Servers as determined
pursuant to Exhibit B. To the extent not taken on a monthly basis, these
credits will be settled on an annual basis on the contract anniversary. The
schedule is as follows:
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Availability Percentage as Availability Percentage as Amount of credits which viaLink
determined by Exhibit B to the determined by Exhibit B to the may take against future amounts
Agreement during a given Reporting Agreement during a given due pursuant to Exhibit C
Period of the Agreement for a Reporting Period of the
Non-Redundant Server Agreement for the Functional
Environment
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98% or greater 99.5% or greater None
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Greater than or equal to 97% but Greater than or equal to 98.5% Ten percent (10%) of amount
less than 98% but less than 99.5% payable by viaLink to HP for
each month in which the
availability achieved was in
this range.
------------------------------------- ---------------------------------- ----------------------------------
Greater than or equal to 96% but Greater than or equal to 97.5% Fifteen percent (15%) of amount
less than 97% but less than 98.5% payable by viaLink to HP for
each month in which the
availability achieved was in
this range.
------------------------------------- ---------------------------------- ----------------------------------
Greater than or equal to 95% but Greater than or equal to 96.5% Twenty percent (20%) of amount
less than 96% but less than 97.5% payable by viaLink to HP for
each month in which the
availability achieved was in
this range.
------------------------------------- ---------------------------------- ----------------------------------
Greater than or equal to 94% but Greater than or equal to 95.5% Twenty-five percent (25%) of
less than 95% but less than 96.5% amount payable by viaLink to HP
for each month in which the
availability achieved was in
this range.
------------------------------------- ---------------------------------- ----------------------------------
Less than 94% Less than 95.5% Thirty percent (30%) of amount
payable by viaLink to HP for
each month in which the
availability achieved was in
this range.
------------------------------------- ---------------------------------- ----------------------------------
12.4 Except as set forth in Section 12.2.4 above and in Section 12.6.1
below, neither party shall be liable for any incidental, special, punitive,
exemplary or consequential damages (including down time cost or loss
profits).
12.5 Except as provided in Section 12.2 above, in no event will HP or its
affiliates, subcontractors or suppliers be liable for any of the following:
12.5.1 Damages relating to viaLink's procurement of substitute products
or services (i.e., "cost of cover").
12.5.2 Damages for loss of data or software restoration except to the
extent covered under Section 12.2.4 above.
12.6 Except as provided in Section 12.6.1, viaLink's liability to HP for any
claim whether arising in tort, contract or otherwise shall be limited to the
amounts payable by viaLink to HP pursuant to Exhibit C, as determined by and
subject to the terms and conditions of this Agreement, for Operations
Services performed by HP.
12.6.1 viaLink's obligation to HP arising out of any breach by viaLink
of its obligations under Section 9.10 shall be limited to $25,000,000 in
the aggregate.
13. TERM AND TERMINATION
13.1 Term This Agreement shall commence on the Effective Date and continue
for three (3) years ("Term"). At the end of the initial term, this Agreement
shall automatically
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renew for additional one (1) year terms unless and until otherwise
terminated by the parties on at least 180 days written notice prior to the
end of the initial term or on at least 180 days written notice prior to the
end of the then-current renewal term.. Except to the extent covered by
Transition Services as set forth in this Agreement, any continued
performance of Operations Services during a holdover period after expiration
or termination of this Agreement will be undertaken in accordance with a
Service Change Order.
13.2 Termination for Cause by viaLink
13.2.1 viaLink may terminate this Agreement "for cause" if HP (i) fails
to achieve any of the Service Level Objectives for either the
Functional Environment and/or for any Non-Redundant Servers for
any three (3) months (whether consecutive or not) of any
consecutive six (6) month period during the Term of this
Agreement, including any renewal term or (ii) fails in any month
during the Term of this Agreement to maintain SLO availability of
either the Functional Environment and/or for any Non-Redundant
Servers as calculated pursuant to Exhibit B of this Agreement, of
at least seventy-five percent (75%). viaLink must notify HP, in
writing, of its intent to terminate the Agreement within 30 days
of HP's failure to meet any such requirement. If viaLink desires
to terminate this Agreement, then viaLink is not required to
resort to the Dispute Resolution Process set forth in Section
15.12 of this Agreement.
13.2.2 viaLink may terminate this Agreement for cause if HP fails to
perform any of its obligations under this Agreement relating to
preventing security breaches and/or fails to timely notify
viaLink, in accordance with Exhibit A, Section 11.4, about any
security breaches or failures affecting the Computer Environment
Resources and/or if HP fails to correct any security breach
within the timeframe stated in Exhibit A, Section 11.4, viaLink
is required to resort to the Dispute Resolution Process set forth
in Section 15.12.1 of this Agreement before it exercises its
rights under this Subsection.
13.2.3 viaLink may terminate this Agreement for cause, if HP fails to
perform any of its other obligations excluding Exhibit B under
this Agreement and fails to cure the same within 15 days after
receipt of written notice from viaLink setting forth the nature
of the alleged failure of HP to meet any such other obligations
under this Agreement, viaLink may in its sole discretion elect to
extend the cure period for an additional 15 days. If viaLink
desires to terminate this Agreement as a result of HP's failure
to perform any of its obligations as stated in this subsection,
viaLink is required to resort to the Dispute Resolution Process
set forth in Section 15.12 of this Agreement and each of its
Subsections before it can exercise its right to terminate
pursuant to this subsection. Until the Dispute
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Resolution Process is completed, viaLink shall continue to pay
any sums due to HP pursuant to the terms and conditions of the
Agreement and HP will continue to perform its obligations under
this Agreement.
13.2.4 If viaLink terminates pursuant to Section 13.2.1, 13.2 or 13.3,
HP will:
13.2.4.1 pay viaLink the early termination fees as set out in
Exhibit E ("Early Termination Fees");
13.2.4.2 perform the Transition Services, as defined in Section 14
hereunder for 90 days at no charge to viaLink;
13.2.4.3 notwithstanding anything to the contrary in this Agreement,
reimburse viaLink in full for any costs, losses, expenses
or damages viaLink incurs as a result of the termination.
13.3 Termination for Cause by HP
13.3.1 If viaLink fails to pay any sums due by the date set forth in
Section 6.3 and fails to cure any such failure to pay within thirty (30)
days after receipt of written notice from HP detailing the nature and
amount of fees which HP alleges viaLink has not paid, HP may terminate
this Agreement for cause. HP is not required to resort to the Dispute
Resolution Process set forth in Section 15.12 of this Agreement.
13.3.2 HP may terminate this Agreement for cause, if viaLink fails to
meet any of its other obligations under this Agreement and fails to cure
the same within 15 days after receipt of written notice from HP setting
forth the nature of the alleged failure of viaLink to meet its
obligations under this Agreement; provided however, HP is required to
resort to the Dispute Resolution Process set forth in Section 15.12 of
this Agreement and each of its Subsections before it can exercise its
right to terminate pursuant to this Section 13.3.2. Until the Dispute
Resolution Process is completed, HP shall continue to perform the
Operations Services.
13.3.3 If HP terminates pursuant to Section 13.3.1 or 13.3.2, viaLink
will:
13.3.3.1 pay HP the early termination fees set out in Exhibit E
("Early Termination Fees");
13.3.3.2 pay HP in full for all Operations Services performed by HP
up to the date of termination;
13.3.3.3 except to the extent covered by Transition Services as set
forth in this Agreement, reimburse HP in full for any
costs, losses, expenses or damages HP incurs as a result
of the termination.
13.3.4 If HP terminates due to viaLink's breach, HP will, upon viaLink's
request, perform Transition Services on a time and materials basis at
HP's service rates for the same.
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13.4 If either party becomes insolvent, is unable to pay its debts when
due, ceases to operate in the normal course of business, or has a
receiver appointed, or becomes subject to a petition in bankruptcy
(whether voluntary or involuntary), and such event is not cured or
remedied, or such petition is not dismissed, within sixty days
thereafter, the other party may terminate upon written notice.
13.5 Termination without Cause
13.5.1 Subject to the following, either party may terminate this
Agreement without cause upon 180 days written notice to the other
party.
13.5.1.1 If viaLink terminates without cause, viaLink will (i)
continue to pay HP for all Operations Services performed by HP
up to and including the date of termination, and (ii) pay HP the
Early Termination Fees set out in Exhibit E of this Agreement at
the time it notifies HP that it is terminating the Agreement
hereto.
13.5.1.2 If HP terminates without cause, HP will (i) pay viaLink
the Early Termination Fee set out in Exhibit E of this Agreement
at the time it notifies viaLink that it is terminating the
Agreement pursuant hereto; (ii) continue to provide Operation
Services through the effective termination date and viaLink will
pay HP the Service Fees as set out in Exhibit C for such
Services; and (iii) as requested by viaLink and at no cost to
viaLink, perform the Transition Services for not more than 120
days following the receipt of the Notice of Termination.
14. TRANSITION SERVICES
14.1 "Transition Services" shall mean services provided by HP upon and/or in
anticipation of the termination or expiration of this Agreement to work with
viaLink to ensure an orderly transfer of Operations Services, viaLink
Hardware, viaLink Software and viaLink Confidential Information to viaLink
or to an alternative third party service provider nominated by viaLink.
Transition Services shall consist of, but not be limited to:
14.1.1 Facilitating relocation of viaLink Hardware and viaLink Software
to a new viaLink or vendor location and the return of viaLink's data and
Confidential Information.
14.1.2 Providing viaLink with backup media pertinent to viaLink's
computing environments.
14.1.3 Providing full system backups of all viaLink's computing
environments managed by HP.
14.1.4 Listing of all events being monitored and the monitoring
frequency.
14.1.5 Listing and copies of all third party contracts.
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14.1.6 Providing viaLink access to the Operations Service Center to
remove viaLink Hardware and viaLink Software.
14.1.7 HP and viaLink shall jointly prepare in collaboration with each
other a transition plan setting forth the respective tasks to be
accomplished by each party in connection with the orderly transition and
a schedule pursuant to which the tasks are to be completed.
14.1.8 Upon the reasonable request of viaLink during the Transition
period, HP shall provide viaLink with reasonably detailed specifications
for the HP Hardware and the Computing Environment Resources which
viaLink will need to perform the services and procedures previously
performed by HP hereunder.
14.1.9 HP shall provide viaLink with such other information which
viaLink reasonably requires to ensure an orderly transfer of Operations
Services, viaLink Hardware and viaLink Software to viaLink or to an
alternative third party service provider nominated by viaLink, except
that such other information shall not include HP Confidential
Information except as previously agreed to elsewhere in this Agreement.
14.2 If viaLink terminates for cause or if HP terminates without cause, HP
shall, at no cost to viaLink, provide Transition Services to viaLink for a
period of one hundred and twenty days after the effective date of such
termination. During the time that Transition Services are being provided, HP
shall continue to also provide the Operations Services.
14.3 If HP terminates with cause or if viaLink terminates without cause, HP
will provide viaLink with Transition Services for a period of one hundred
and twenty days after the effective date of such termination; provided
however, HP's performance of Transition Services is subject to (i) viaLink's
payment of all amounts then due and owing to HP as of the date of
termination or expiration of this Agreement, and (ii) viaLink's return to
HP, at viaLink's expense, of any HP Hardware or HP Software then in
viaLink's possession except to the extent which viaLink is authorized to
continue to use the same as allowed by this Agreement. During the time that
Transition Services are being provided, HP shall continue to also provide
the Operations Services.
15. GENERAL
15.1 Standard Products and System Support Service. Purchase of standard HP
hardware and software products sold or licensed to viaLink prior to the
effective date of this Agreement shall be governed by the terms of viaLink's
HP purchase agreement, or, in the absence of a signed purchase agreement, HP
Terms and Conditions of Sale and Service; provided however, in the event
that any of the terms or conditions of any such agreements conflict with the
terms and conditions of this Agreement, the terms and conditions of this
Agreement shall prevail.
15.2 Time is of the essence to this Agreement.
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15.3 L.B.I.
15.4 Non-Restrictive Relationship. Subject to the terms and conditions of
this Agreement, this Agreement does not prevent either party from entering
into similar agreements with others, whether or not in the same industry.
15.5 Publicity. The execution of this Agreement by the parties is deemed to
constitute their permission for the parties to use the other party's name as
a reference provided that such use is otherwise in accordance with this
Agreement. In no event will either party publicize or disclose to any third
party, without the consent of the other party, which consent shall not be
unreasonably withheld, or except as may be required by law, rule, or
regulation, either the price or other terms of this Agreement.
15.6 No Joint Venture. Nothing contained in this Agreement shall be
construed as creating a joint venture, partnership or employment
relationship between the parties, nor shall either party have the right,
power or authority to create any obligation or duty, express or implied, on
behalf of the other.
15.7 No Assignment. Neither party may assign any rights or obligations under
this Agreement without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed, except that viaLink
shall have the right, upon written notice to HP, to transfer or assign this
Agreement at no charge or penalty; provided, however, that such assignee
assumes viaLink's obligations and viaLink remains liable hereunder.
15.8 Force Majeure. HP will not be liable for delays or errors in its
performance or for non-performance due to acts of God, war or terrorism
("Force Majeure Event") except to the extent that HP has made contingency
plans to be able to continue to provide Operations Services in the event of
any such Force Majeure Event. To the extent that any such Force Majeure
Event occurs and the Operations Services cannot be substantially restored
within two weeks, then and in such event viaLink may immediately terminate
this Contract without resorting to the Dispute Resolution Process and
discontinue paying any further sums for Operations Services to HP under this
Agreement. Furthermore, in such event, HP will provide Transition Services
to viaLink under the terms and conditions of Section 14.2 on a Time and
Materials basis at HP's standard rates. Notwithstanding the occurrence of
any Force Majeure Event, viaLink shall remain liable to pay HP such portion
of the Service Fees as is reasonably allocable to the portion of the
Operations Services HP continues to perform for the duration of such Force
Majeure Event.
15.9 Intentionally Omitted
15.10 Intentionally Omitted
15.11 Notices
15.11.1 All notices that are required to be given under this Agreement
shall be in writing and shall be sent to the address of the HP and
viaLink recipient set out in Section 15.11.2 below, or such other
address as the representative of each party may designate by notice
given in accordance with this Section 15.11. Any such notice may be
delivered by hand, by overnight courier, by certified or
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restricted first class pre-paid letter, by email or by facsimile
transmission, and shall be deemed to have been received:
15.11.1.1 By hand delivery - at the time of delivery;
15.11.1.2 By overnight courier - 24 hours after the date of delivery
to courier;
15.11.1.3 By first class mail - 48 hours after the date of mailing;
15.11.1.4 By facsimile - immediately upon confirmation of
transmission provided a confirmatory copy is sent by first class
pre-paid, by overnight courier or by hand by the end of the next
business day.
15.11.1.5 By email - the earlier of the time of actual receipt as
evidenced by a confirmation or reply or one hour after being sent,
provided that the message is not returned by an automated mail
server to the sender as undeliverable within twenty-four hours of
being sent.
15.11.2 For the purposes of this Section the address of each party shall
be:
viaLink:
Attention: ββββ βββββββ
Address: βββββ ββββββ ββββ
ββββββ, ββββββββ βββββ-ββββ
Telephone: βββ-βββ-ββββ
Facsimile: βββ-βββ-ββββ
In addition to the above, and for the purpose of notification
of breach of contract, notice will be given to:
βββββ β. βββββββββ
βββββ ββββββ ββββ
ββββββ, ββββββββ βββββ-ββββ
Telephone: βββ-βββ-ββββ
Facsimile: βββ-βββ-ββββ
HP:
Attention: βββββ βββββ
Address: Hewlett-Packard Company
ββββ βββββ ββββ
ββββββ, ββ βββββ
Telephone: 972/βββ-ββββ
Facsimile: 972/830-8728
15.12 Dispute Resolution. Except as otherwise provided in this Agreement,
prior to either party terminating this Agreement pursuant to Section 13, the
party seeking to exercise such termination rights shall first complete the
dispute resolution and management escalation process set forth in this
Section 15.12 and its subsections.
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While the Dispute Resolution Process is proceeding, each party shall
continue to perform its obligations under this Agreement subject to the
terms and conditions thereof.
15.12.1 The first step in the Dispute Resolution Process shall be for
the party seeking to exercise such termination rights set forth in
Section 15.12 to notify the other party of such intent in writing. Such
written notice shall include an explanation of the basis upon which such
party believes it has a right to terminate this Agreement and shall
provide all such documents in its possession which support the claims
made in such notice. HP and viaLink shall each then appoint an account
manager of suitable experience to be its primary contact to be
responsible for resolution of the dispute. The parties, including the
account managers, will meet at mutually agreed times and locations to
discuss issues arising in connection with the described dispute. In the
event either party determines there is a dispute which cannot be
resolved at these review meetings, either party may request in writing
that their service account managers meet separately within ten (10) days
of such notice to attempt to resolve the dispute. If the dispute has not
been resolved to the mutual satisfaction of both parties within thirty
(30) days of the meeting, then the dispute shall be referred to the HP
country operations manager and the viaLink Manager who have authority to
settle the dispute. If the dispute has not been resolved by the
representatives within twenty (20) days of the referral or if the
parties fail to meet within the ten (10) days provided above, HP and
viaLink will each designate a corporate executive who will meet to
resolve the dispute. If the parties fail to resolve the dispute, the
final step in the dispute resolution process shall be as defined in
15.12.2 below.
15.12.2 If the parties are unsuccessful in their attempt to resolve the
dispute, the dispute shall be submitted to non-binding arbitration. If
the parties cannot agree on an arbitrator, they shall use the Judicial
Arbitration and Mediation Services, Inc. (JAMS) to pick a single
arbitrator, who shall be a person generally knowledgeable of information
technology and computer industry matters. The matter shall be set down
for hearing before the arbitrator within thirty (30) days after a party
requests such non-binding arbitration. No discovery shall be allowed.
Each party shall have not more than two hours to present its case to the
arbitrator. The arbitrator shall render a non-binding decision within
forty-eight hours of the hearing. All costs for the arbitrator will be
split equally between the parties unless they agree otherwise. Each
party shall bear its own costs incurred in the non-binding arbitration
process. The parties recognize and agree that the non-binding
arbitration process constitutes settlement negotiations and that
settlement negotiations are inadmissible in any litigation of their
dispute, to the extent allowed by law. If the party against whom the
arbitrator renders the non-binding decision complies with such decision
within thirty (30) days after the rendering of such decision, then the
alleged default which brought about such Dispute Resolution policy shall
be deemed cured. If the party against whom the arbitrator renders the
non-binding decision does not comply with such decision within thirty
(30) days after the rendering of such decision, then the party who
alleged that a default had occurred may, subject to
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the terms and conditions of this Agreement; (I) exercise its right to
terminate this Agreement, (ii) enter into binding arbitration subject to
the process stated under Section 15.25 hereunder or (iii) if applicable,
choose the judicial system to seek injunctive relief.
15.13 Insurance. During the term of this Agreement, both HP and viaLink will
maintain in full force and effect, at their own expense, insurance coverage,
in an amount not less than one million dollars combined single limit, to
include Workers' Compensation, Employer's Liability, Commercial General
Liability (including contractual liability), Automobile Liability and
Property insurance. Certificates of Insurance evidencing the required
coverages shall be furnished to HP and viaLink respectively before any work
is commenced hereunder and shall provide: (1) that there will be no
cancellation without 30 days prior written notice and (2) each shall be
named as an Additional Insured as their interests may appear.
15.14 Waiver. A waiver by either of the parties of any of the covenants,
conditions or agreements to be performed by the other or any breach thereof
shall not be construed to be a waiver of any succeeding breach or of any
other covenant, conditions, or agreement contained in this Agreement.
15.15 Severability. If any term or provision of this Agreement is held to be
illegal or unenforceable, the validity or enforceability of the remainder of
this Agreement shall not be affected, and the remaining provisions shall be
enforceable to the full extent permitted by law.
15.16 Exhibits. The Exhibit(s) attached and listed below are part of this
Agreement:
Exhibit A Statement or Work
Exhibit B Service Level Objectives
Exhibit C Service Fee Schedule
Exhibit D Left Blank Intentionally
Exhibit E Early Termination Fees
Exhibit F Change Management
Exhibit G Job Descriptions
15.17 Survival. The following provisions survive termination of this
Agreement: Sections 5 Intellectual Property Indemnity, 6 (Payment), 8
(Warranties), 9 (Intellectual
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Property Rights/Confidential Information), 12 (Remedies and Liabilities), 14
(Transition Services), 15.11 (Notices), 15.17 (Survival) and 15.25
(Arbitration).
15.18 Headings. The headings in this Agreement are for the convenience of
the parties only, and are in no way intended to define or limit the scope or
interpretation of the Agreement or any provision hereof.
15.19 Relationship. HP is an independent contractor and nothing in this
Agreement shall render either party an employee, agent or partner of the
other, except for any specific viaLink appointment(s) of HP as its agent
under a viaLink maintenance or software license agreement with a third party
as set forth in attachments to Exhibit A. Neither party shall be liable for
the acts or omissions of the other.
15.20 Entire Agreement. This Agreement and its exhibits constitute the
entire agreement between HP and viaLink for the Operations Services as
stated herein, and supersede any prior or contemporaneous communications,
representations or agreements between the parties, whether oral or written,
regarding the subject matter of this Agreement. The terms and conditions of
this Agreement may not be changed except by an amendment signed by an
authorized representative of each party.
15.21 Order of Precedence. In the event of any conflict between the terms,
covenants or condition of the Agreement Terms and Conditions of Sale and the
terms, covenants or conditions of any Exhibits to the Agreement, the terms,
covenants and conditions of the Exhibit shall prevail; provided however, to
the extent that any sentence or clause of the Agreement Terms and Conditions
are preceded with the words "Notwithstanding anything to the contrary in
this Agreement", then the terms, covenants and conditions of such sentence
or clause shall prevail.
15.22 Non-Hiring of Employees. During the term of this Agreement and for a
period of twelve (12) months thereafter, neither party will, without the
prior written consent of the other and which consent shall not be
unreasonably withheld, directly offer employment to any key person employed
by the other party, if the person was directly involved in providing or
receiving services under this Agreement.
15.23 Applicable Law. This Agreement is made under and shall be construed in
accordance with the law of Oklahoma without giving effect to that
jurisdiction's choice of law rules.
15.24 Audit Rights. For a period of three (3) years following the
termination or expiration of this Agreement, HP will maintain complete and
accurate records and accounts (i) as necessary to support invoices issued
for payment of Operations Services performed or provided on a time and
material basis pursuant to this Agreement and in accordance with generally
accepted accounting principals and (ii) relating to the Operations Services
performed pursuant to this Agreement and relating to the Service Level
Objectives set forth in this Agreement. For a period of up to three (3)
years following the calendar year in which any time and material services
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were provided by HP hereunder, viaLink's auditors, accounting staff, other
viaLink employees or representatives designated by viaLink, and any
independent accountants or auditors selected by viaLink shall be entitled,
following 30 days prior written notice to HP to audit such records and
accounts. Any such audit shall be conducted during regular business hours at
HP's offices and at mutually agreeable times. Such audits shall be limited
to no more often than one time per each calendar year of the Term of the
Agreement; provided however, as part of any Assessment identified in Section
5.8 of Exhibit A to this Agreement, an audit may also be conducted by
viaLink. During any such audit and/or Assessment the HP Security Policies
and Procedures may be reviewed by viaLink and/or its auditors. viaLink may
submit a written request for an additional audit for other circumstances,
subject to HP's written approval, which approval shall not be unreasonably
withheld. Such audits shall be conducted at viaLink's expense; provided
however, viaLink shall not be obligated to reimburse any costs incurred by
HP in the course of such audit. HP will not be required to provide employees
to assist viaLink during the audit process. ViaLink shall require its
auditors and subcontractors to execute an agreement to be bound by viaLink's
obligations under this Agreement pertaining to such audits and Assessments
regarding viaLink Confidential Information and HP Confidential Information.
15.25 Arbitration. Subject to the other Dispute Resolution provisions of
this Agreement to the extent applicable, any claim or controversy arising
out of or relating to this Agreement, its validity, interpretation or
breach, except claims for injunctive relief or involving third parties who
do not consent to arbitration, shall be settled by binding arbitration in
accordance with the procedures hereinafter set forth in this Section 15.25
and its subsections and the Judicial Arbitration and Mediation Services,
Inc. (JAMS). Notwithstanding the foregoing, no such arbitration proceeding
may be brought unless and until a party has complied with Sections 13 and
15.12 of this Agreement to the extent applicable.
15.25.1 Such arbitration shall be heard and determined by a panel of
three (3) arbitrators, who shall have at least five (5) years experience
in information technology and computer industry matters, to be selected
by the Contract Arbitration Administrator of JAMS. All arbitrators shall
be selected pursuant to the then current rules and regulations of JAMS.
15.25.2 The arbitrators shall allow reasonable discovery in the forms
permitted by the Federal Rules of Civil Procedure, to the extent
consistent with the purpose of the binding arbitration. Upon completion
of discovery, the arbitration hearing shall be commenced promptly and
conducted expeditiously with each of HP and viaLink being allocated
one-half of the time for the presentation of its case. The arbitration
proceedings shall take place at a neutral location as determined by the
arbitrators.
15.25.3 The arbitrators shall render their decision within
fifteen (15) days following the conclusion of the hearing.
15.25.4 The arbitrators shall be instructed that time is of the essence
in the binding arbitration proceeding.
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15.25.5 The hearing on the arbitration shall be heard not later than six
(6) months after the demand for arbitration has been made by a party.
15.25.6 They shall have no power to award (i) damages inconsistent with
the Agreement or (ii) punitive damages or (iii) any other damages not
measured by the prevailing party's actual damages except to the extent
allowed by this Agreement. The parties expressly waive their right to
obtain such damages in arbitration or in any other forum. In no event,
even if any other portion of these provisions is held to be invalid or
unenforceable, shall the arbitrators have the power to make an award or
impose a remedy that could not be made or imposed by a court deciding
the matter in the same jurisdiction.
15.25.7 All aspects of the arbitration shall be treated as confidential.
Neither party nor the arbitrators may disclose the existence, content or
results of the arbitration, except as necessary to comply with legal or
regulatory requirements. Before making any such disclosure, a party
shall give written notice to all other parties and shall afford such
parties a reasonable opportunity to protect their interests.
15.25.8 The arbitration award shall be binding on the parties and
judgment on the arbitrators' award may be entered in any court having
jurisdiction.
15.25.9 Each party shall bear its own costs incurred in the arbitration
proceedings including its own attorney fees, provided, however, the
parties will split the cost of the arbitrators' fees.
16. The undersigned parties agree that viaLink's Confidential Information as
defined herein is also covered by the Nondisclosure Agreement executed by and
between the parties hereto dated @________.
17. This Agreement may be signed in any number of counterparts with the same
effect as if the signature on each such counterpart were on the same instrument.
This Agreement and any counterpart(s) may be executed by facsimile with the same
effect as if the party's signature was on the original.
IN WITNESS WHEREOF, HP and viaLink, each acting with proper authority, have
caused this Agreement to be executed as of the date set forth below.
Signed for and on Behalf of Signed for and on behalf of
The viaLink Company HEWLETT-PACKARD COMPANY
By: By:
----------------------------- -----------------------------
Name: Name:
--------------------------- ---------------------------
Title: Title:
-------------------------- --------------------------
Date: Date:
--------------------------- ---------------------------
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