EXHIBIT 10.32
Vitria Contract Number: 8913
MARKETING AGREEMENT
This Marketing Agreement (this "Agreement") is entered into between
QILINSOFT, LLC VITRIA TECHNOLOGY, INC.,
A CALIFORNIA LIMITED LIABILITY COMPANY AND A DELAWARE CORPORATION
("COMPANY") ("VITRIA")
for the purpose of setting forth the terms and conditions of a mutually
beneficial joint marketing and sales relationship between the parties.
NOW, THEREFORE, in exchange for the mutual promises contained herein, Vitria and
Company hereby agree as follows:
1. COMMUNICATIONS AND SALES ASSISTANCE FEE.
1.1 Designated Contact. Each party shall designate a single point of contact to
manage the relationship contemplated by this Agreement. For Vitria, the contact
shall be: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. For Qilinsoft, the contact shall be: ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Unless otherwise agreed by the parties, correspondence between the parties
related to performance under this Agreement shall include a copy to these
contacts.
1.2 Sales Assistance. At its discretion, each party may (i) provide limited
sales assistance to the other party in helping to close sales opportunities with
prospective clients, and (ii) make available to the other party sales and
marketing information that it deems appropriate to help close sales
opportunities. The parties agree that in certain circumstances set forth in
Exhibit A, one party shall pay the other party a sales assistance fee in
consideration of the assisting party's efforts in closing a sales opportunity.
In addition, the party requesting sales assistance shall pay the out-of-pocket
expenses of the party providing such assistance.
2. MARKETING
2.1 Reputation and Goodwill. Each party agrees to use commercially reasonable
efforts to properly use the other party's correct product names and trademarks
in all external or public forums and shall not knowingly make false or
misleading representations with regard to the other party or its products.
2.2 Publicity. Except as may be otherwise set forth in this Agreement, either
party may disclose the general existence and nature of this Agreement, but may
not disclose the specific terms of this Agreement without the prior consent of
the other party. Neither party may issue a press release describing the
relationship contemplated under this Agreement without the prior written consent
of the other party.
3. CONFIDENTIALITY.
3.1 Confidential Information. Under this Agreement, the parties may have access
to information that is confidential in nature ("Confidential Information").
Confidential Information shall include, but is not limited to: (i) all
information designated as confidential by either party; (ii) software and
products, including all source and object code and documentation related to such
software; (iii) information relating to the disclosing party's software or
hardware products, data files, specifications, data bases, networks, system
design, file layouts, tool combinations and development methods as well as
information relating to the disclosing party's business or financial affairs,
which may include business methods, marketing strategies, pricing, competitor
information, product development strategies and methods, customer lists and
financial results; and, (iv) all tangible material which contains Confidential
Information, whether written or printed documents, computer disks or tapes,
whether user or machine readable. A party's Confidential Information shall not
include any information which: (a) becomes part of the public domain through no
act or omission of the other party; (b) is lawfully acquired by the other party
from a third party without any breach of confidentiality; (c) is disclosed by a
party to a third party without any obligation of confidentiality; (e) is
independently developed by the receiving party; or (f) is approved for release
by prior written authorization of the disclosing party.
Marketing Agreement
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EXHIBIT 10.32
Vitria Contract Number: 8913
3.2 Protection. The parties agree to maintain the confidentiality of the
Confidential Information and to protect as a trade secret all portions of the
other party's Confidential Information by preventing any unauthorized copying,
use, distribution, installation or transfer of possession of such information.
Dissemination of Confidential Information by each party shall be limited to
those employees with the need to such access for the advancement of the goals
anticipated under this Agreement. Each party agrees to maintain at least the
same procedures regarding Confidential Information that it maintains with
respect to its own Confidential Information. Without limiting the generality of
the foregoing, neither party shall permit any of its personnel to remove any
proprietary or other restrictive notice contained or included in any material
provided by the other party and both parties shall not permit its personnel to
reproduce or copy any such material except as expressly authorized hereunder.
3.3 Injunctive Relief. Both parties acknowledge that any use or disclosure of
the other party's Confidential Information in a manner inconsistent with the
provisions of this Agreement will cause the disclosing party irreparable damage
for which injunctive relief may be inadequate. Both parties agree that the
disclosing party shall be entitled to receive from a court of competent
jurisdiction equitable relief in addition to other available remedies.
4. TERM AND TERMINATION.
4.1 Term. The term of this Agreement shall be two (2) years. The Agreement shall
automatically terminate after two (2) years.
4.2 Termination by Notification. Either party shall have the right to terminate
this Agreement by notifying the other party with 30 days prior written notice.
Upon termination: (i) both parties shall immediately cease all joint marketing
and sales activities and (ii) all Confidential Information provided to either
party pursuant to this Agreement shall be returned to the disclosing party
within 10 business days after the termination of this Agreement, including all
documentation, hardware and software (whether or not merged into other
materials) or, at a minimum certified by the other party that all copies (in any
form or media) have been destroyed; and (iii) both parties shall mutually agree
as to how to address any outstanding sales and support efforts, such as sales
leads, which were directly caused by the sales efforts from the sales activities
prior to termination of this Agreement.
5. NO WARRANTY.
UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR
SPECIAL, INDIRECT, EXEMPLARY, INCIDENTIAL AND/OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. MISCELLANEOUS.
6.1 Independent Contractors. The parties are independent contractors and neither
party is an employee, agent, partner or joint venture of the other party.
Neither party shall have the right to bind the other party in any Agreement with
a third party or to incur any obligations or liability on behalf of the other
party.
6.2 Non-exclusivity. This Agreement is non-exclusive and nothing in this
Agreement will be construed to prevent either party from entering into a similar
Agreement with any other party or to restrict such party from directly engaging
in related activities.
6.3 Non-solicitation. Company and Vitria jointly agree not to actively recruit
each other's employees during the term of this Agreement and for six (6) months
thereafter; unless mutually agreed to by the parties hereto.
6.4 Notice. Any notice or other communication required by or permitted in this
Agreement shall be in writing and shall be deemed to have been duly given on the
day of service if served personally or by facsimile transmission with
confirmation, or 5 days after mailing if mailed by First Class mail, registered
or certified, postage prepaid, and addressed to the respective parties at the
addresses set forth in the signature block below, or at such addresses as may be
specified by either party pursuant to the terms and provisions of this Section.
If Company's principal place of business is outside the United States and Canada
any notice or other communication shall be deemed duly given on the day of
service if personally served or by facsimile transmission with confirmation, or
three (3) days after mailing if sent by overnight courier service, such as
Federal Express. International correspondence shall only be delivered by
overnight courier.
Marketing Agreement
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EXHIBIT 10.32
Vitria Contract Number: 8913
6.5 Severability. The provisions of this Agreement are severable and in the
event of a court of competent jurisdiction determines any one or more of the
provisions contained in this Agreement are, for any reason, invalid, illegal or
unenforceable in any respect, the remaining provisions of this Agreement shall
remain in full force and effect.
6.6 Jurisdiction and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the United States and the State of California,
without giving effect to the principles governing conflicts of laws. It shall
not be governed by the United Nations Convention of the International Sale of
Goods, the application of which is expressly excluded. All legal suits, claims
or proceedings shall be brought in the Federal courts in San Francisco or in the
state courts in Santa ▇▇▇▇▇ County and each party hereby irrevocably submits to
jurisdiction in those courts.
6.7 Entire Agreement. This Agreement (together with all attachments and exhibits
hereto) constitutes the entire agreement between the parties related to joint
marketing and joint sales activities and supersedes any and all prior agreements
between them, whether written or oral, with respect to the subject matter
hereof, and may not be amended or modified except in a writing signed by the
parties hereto. Nothing in this Agreement is intended to modify the License and
Services Agreement or the Development and Services Agreement executed between
the parties and effective as of December 31, 2003. No waiver by either party,
whether express or implied, of any provision of this Agreement, or of any breach
thereof, shall constitute a continuing waiver of such provision or a breach or
waiver of any other provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by their duly authorized representatives, as of the Effective Date.
COMPANY: VITRIA:
QiLinSoft, LLC Vitria Technology, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Main Phone ▇▇▇ ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------- ------------------------------------
Signature Signature
▇▇▇▇▇ ▇▇▇▇▇, President and CEO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. VP and CEO
-------------------------------------- ------------------------------------
Printed Name/Title Printed Name/Title
November 3, 2004 November 4, 2004
-------------------------------------- -------------------------------------
Date Effective Date
Vitria-Contracts/Legal
approval:
Marketing Agreement
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EXHIBIT 10.32
Vitria Contract Number: 8913
EXHIBIT A
SALES ASSISTANCE FEE PROGRAM
This Exhibit sets forth the terms and conditions under which the parties shall
pay one another a sales assistance fee.
In the event that:
(1) one party ("Requesting Party") to this Agreement requests sales
assistance from the other party ("Assisting Party") to this
agreement in the sale of software licenses to a client or potential
client (the "Client") of the Requesting Party; and
(2) the Requesting Party and the Assisting Party complete and sign a
Sales Opportunity Registration Form (attached as Annex 1); and
(3) the Assisting Party assists the Requesting Party in selling to
Client as described in the Sales Opportunity Registration Form and
(a) assistance exceeds eight (8) man-hours or (b) the Assisting
Party is providing the introduction to the Client and otherwise
facilitating the relationship; and
(4) the Requesting Party receives payment from the Client for the sale
of software licenses related to the Sales Opportunity Registration
Form within 12 months of the effective date of the Sales Opportunity
Registration Form; then
within 30 days of receipt of payment from the Client, the Requesting Party shall
pay to the Assisting Party a mutually-agreed upon percentage of the license fees
paid to the Requesting Party by the Client for the sales opportunity registered
in the Sales Opportunity Registration Form. Unless otherwise agreed, Annex 1
shall be completed only in the event that the criteria in item (3) above are
met.
Marketing Agreement
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EXHIBIT 10.32
Vitria Contract Number: 8913
ANNEX 1
Sales Opportunity Registration Form
REQUESTING PARTY:__________________
ASSISTING PARTY:___________________
EFFECTIVE DATE:____________________
Client's Information
Name of Client:
Address:
Contact Name:
Title:
Phone Number:
Fax Number:
Brief description of license sales opportunity:
Brief description of role of Assisting Party:
The Sales Assistance Fee percentage shall be:
Approval signatures:
_____________________________________________
Vitria Technology, Inc. Date
_____________________________________________
QiLinSoft, LLC Date
Marketing Agreement
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