<PAGE>
As filed with the Securities and Exchange Commission on February 15, 2000
Registration No. 333-96055
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
CROSSWORLDS SOFTWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
----------------
<TABLE>
<S> <C> <C>
Delaware 7372 94-3240149
(State or Other Jurisdiction
of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
577 Airport Boulevard, Suite 800
Burlingame, CA 94010
(650) 685-9000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
----------------
Mark R. Kent
Chief Financial Officer
577 Airport Boulevard, Suite 800
Burlingame, CA 94010
(650) 685-9000
(Name, Address Including Zip Code, and Telephone Number Including Area Code,
of Agent For Service)
----------------
Copies to:
<TABLE>
<S> <C>
Jon E. Gavenman Neil Wolff
C. Howard Korrell John Y. Sasaki
Venture Law Group Jon P. Layman
A Professional Corporation Wilson Sonsini Goodrich & Rosati
2800 Sand Hill Road Professional Corporation
Menlo Park, CA 94025 650 Page Mill Road
(650) 854-4488 Palo Alto, CA 94304
(650) 493-9300
</TABLE>
----------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration
Statement.
----------------
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 (the "Securities Act"), check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Maximum
Title Of Each Class Of Aggregate Amount Of
Securities To Be Registered Offering Price(1) Registration Fee (2)
- ------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, par value $0.001...... $50,000,000 $13,200
- ------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(o) under the Securities Act.
(2) Fee previously paid in connection with original filing on February 3,
2000.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
The purpose of this Amendment No. 1 is solely to file certain exhibits to
the Registration Statement as set forth in Item 16(a) of Part II.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by CrossWorlds in connection
with the sale of common stock being registered. All amounts are estimates
except the SEC registration fee and the NASD filing fee and the Nasdaq
National Market listing fee.
<TABLE>
<CAPTION>
Amount
to be Paid
----------
<S> <C>
SEC registration fee........................................... $ 13,200
NASD filing fee................................................ 5,500
Nasdaq National Market listing fee............................. *
Printing and engraving expenses................................ 200,000
Legal fees and expenses........................................ 400,000
Accounting fees and expenses................................... 200,000
Blue Sky qualification fees and expenses....................... 5,000
Transfer Agent and Registrar fees.............................. *
Miscellaneous fees and expenses................................ *
Total........................................................ *
</TABLE>
--------
* to be filed by amendment
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the
"Securities Act"). Article X of CrossWorlds' Amended and Restated Certificate
of Incorporation (Exhibit 3.1 hereto) and Article VI of CrossWorlds' Bylaws
(Exhibit 3.2 hereto) provide for indemnification of CrossWorlds' directors,
officers, employees and other agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, CrossWorlds has entered into
Indemnification Agreements (Exhibit 10.1 hereto) with its officers and
directors. The Underwriting Agreement (Exhibit 1.1) also provides for cross-
indemnification among CrossWorlds and the Underwriters with respect to certain
matters, including matters arising under the Securities Act.
Item 15. Recent Sales of Unregistered Securities
Since January 1, 1997, CrossWorlds has sold and issued the following
securities:
1. On March 28, 1997, April 8, 1997 and April 15, 1997, CrossWorlds
issued a total of 2,104,144 shares of its Series C preferred stock to
private investors for an aggregate cash consideration of $12,625,000. At
various times between December 23, 1997 and April 6, 1998, CrossWorlds
issued 2,063,307 shares of its Series D preferred stock to private
investors for an aggregate cash consideration of $30,950,000. On January 7,
1999, March 26, 1999, and April 20, 1999, CrossWorlds issued a total of
2,883,326 shares of its Series E preferred stock to private investors for
an aggregate cash consideration of $17,300,000. On October 1, 1999,
CrossWorlds issued 3,671,071 shares of its Series F preferred stock to
private investors for an aggregate cash consideration of $25,000,000.
II-1
<PAGE>
2. Since inception CrossWorlds has issued 6,793,436 options to purchase
common stock of CrossWorlds with a weighted average price of $5.78 to a
number of employees and directors of and consultants to CrossWorlds.
3. On June 26, 1998 CrossWorlds issued warrants to purchase 33,333 shares
of its Series C preferred stock with an exercise price of $1.20 per share
to Bay Park Plaza Associates LP for value received. On January 27, 1999
CrossWorlds issued warrants to purchase a total of 126,666 shares of its
Series E preferred stock with an exercise price of $6.00 per share to
Comdisco, Inc. in consideration for a Subordinated Loan and Security
Agreement and Master Lease Agreement. On August 9, 1999, CrossWorlds issued
warrants to purchase 6,334 shares of its Common Stock with an exercise
price of $6.60 per share to Silicon Valley Bank for the agreed upon value
of $1.00 and for other good and valuable consideration. On October 7, 1999
CrossWorlds issued warrants to purchase a total of 177,098 shares of its
Common Stock with an exercise price of $6.60 per share to Heidrick and
Struggles for value received. On February 2, 2000, CrossWorlds issued
warrants to purchase 199,996 shares of its common stock at an exercise
price of $11.00 per share to private investors.
The issuances of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) or
Regulation D, or other applicable exemption of such Securities Act as
transactions by an issuer not involving any public offering. In addition,
certain issuances described in Item 2 were deemed exempt from registration
under the Securities Act in reliance upon Rule 701 promulgated under the
Securities Act. The recipients of securities in each such transaction
represented their intentions to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the share certificates and warrants issued
in such transactions. All recipients had adequate access, through their
relationships with CrossWorlds, to information about CrossWorlds.
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Amended and Restated Certificate of Incorporation of CrossWorlds.
3.2* Bylaws of CrossWorlds.
4.1* Specimen Stock Certificate.
4.2* Warrant dated January 7, 1999 issued by CrossWorlds to Comdisco, Inc.
4.3* Warrant dated August 9, 1999 issued by CrossWorlds to Silicon Valley
Bank.
4.4* Warrant dated October 11, 1999 issued by CrossWorlds to Heidrick &
Struggles, Inc.
4.5* Form of Warrant dated February 2, 2000 issued by CrossWorlds to certain
private investors.
5.1* Opinion of Venture Law Group regarding the legality of the common stock
being registered.
10.1* Fifth Amended and Restated Investor Rights Agreement dated October 1,
1999 among CrossWorlds and certain investors.
10.2** Form of Indemnification Agreement between CrossWorlds and each of its
officers and directors.
10.3** 1996 Stock Plan, as amended.
10.4** 1997 Stock Plan, as amended.
10.5** 1999 Executive Stock Plan.
10.6** 2000 Employee Stock Purchase Plan.
10.7** 2000 Directors' Stock Option Plan.
10.8* Employment Agreement dated October 5, 1999 with Alfred J. Amoroso.
10.9* Employment Agreement dated January 1, 2000 with Arthur R. Matin.
10.10* Promissory Note issued to CrossWorlds by James G. Rowley.
10.11* Secured Loan Agreement, Promissory Note and Security Agreement dated
November 15, 1999 between CrossWorlds and Barton S. Foster.
10.12* Form of Change of Control Agreement between CrossWorlds and each of its
executive officers.
10.13+ IBM/OEM Distribution Agreement dated July 11, 1997, with exhibits,
including IBM/OEM Program Agreement dated June 3, 1999 and Amendment 01
to OEM Distribution Agreement dated February 9, 2000.
10.14+ Software License and Support Agreement with Delphi Automotive System
LLC dated December 21, 1999.
10.15* Lease Agreement, as amended, dated February 1, 1999 between CrossWorlds
and Bay Park Plaza Associates, L.P.
10.16* Loan Security Agreement dated December 10, 1996 between Silicon Valley
Bank and CrossWorlds.
10.17* First Amendment to Loan and Security Agreement dated September 29, 1997
between Silicon Valley Bank and CrossWorlds.
10.18* Second Amendment to Loan and Security Agreements dated October 28, 1998
between Silicon Valley Bank and CrossWorlds.
10.19* Loan Modificated Agreement dated September 21, 1999 between Silicon
Valley Bank and CrossWorlds.
10.20* Loan Modificated Agreement dated October 18, 1999 between Silicon
Valley Bank and CrossWorlds.
10.21* Loan Modificated Agreement dated October 22, 1999 between Silicon
Valley Bank and CrossWorlds.
10.22* Loan Modification Agreement dated January 26, 2000 between Silicon
Valley Bank and CrossWorlds.
21.1* List of Subsidiaries.
23.1 Consent of KPMG LLP.
23.2* Consent of Venture Law Group (contained in Exhibit 5.1).
24.1** Power of Attorney (see page II-5).
27.1** Financial Data Schedule.
</TABLE>
- --------
* To be supplied by amendment.
** Previously filed
+ Confidential treatment requested.
II-3
<PAGE>
(b) Financial Statement Schedules
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the
financial statements or notes thereto.
Item 17. Undertakings
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreements certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act, and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Burlingame, State of
California on February 15, 2000.
CROSSWORLDS SOFTWARE, INC.
By: /s/ Mark R. Kent
----------------------------------
Mark R. Kent
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<S> <C> <C>
Signature Title
Date
* President, Chief February 15, 2000
- ----------------------------------- Executive Officer and
Alfred J. Amoroso Director (Principal
Executive Officer)
/s/ Mark R. Kent Chief Financial Officer
(Principal Financial and
Accounting Officer)
February 15, 2000
- -----------------------------------
Mark R. Kent
* Chairman of the February 15, 2000
- ----------------------------------- Board
Katrina A. Garnett
* Director February 15, 2000
- -----------------------------------
Terence J. Garnett
* Director February 15, 2000
- -----------------------------------
Frederick W. Gluck
* Director February 15, 2000
- -----------------------------------
Andrew K. Ludwick
* Director February 15, 2000
- -----------------------------------
Albert A. Pimentel
* Director February 15, 2000
- -----------------------------------
Colin F. Raymond
/s/ Mark R. Kent
*By: ___________________________________
Mark R. Kent, attorney-in-fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
1.1* Form of Underwriting Agreement.
3.1* Amended and Restated Certificate of Incorporation of CrossWorlds.
3.2* Bylaws of CrossWorlds.
4.1* Specimen Stock Certificate.
4.2* Warrant dated January 7, 1999 issued by CrossWorlds to Comdisco, Inc.
4.3* Warrant dated August 9, 1999 issued by CrossWorlds to Silicon Valley
Bank.
4.4* Warrant dated October 11, 1999 issued by CrossWorlds to Heidrick &
Struggles, Inc.
4.5* Form of Warrant dated February 2, 2000 issued by CrossWorlds to certain
private investors.
5.1* Opinion of Venture Law Group regarding the legality of the common stock
being registered.
10.1* Fifth Amended and Restated Investor Rights Agreement dated October 1,
1999 among CrossWorlds and certain investors.
10.2** Form of Indemnification Agreement between CrossWorlds and each of its
officers and directors.
10.3** 1996 Stock Plan, as amended.
10.4** 1997 Stock Plan, as amended.
10.5** 1999 Executive Stock Plan.
10.6** 2000 Employee Stock Purchase Plan.
10.7** 2000 Directors' Stock Option Plan.
10.8* Employment Agreement dated October 5, 1999 with Alfred J. Amoroso.
10.9* Employment Agreement dated January 1, 2000 with Arthur R. Matin.
10.10* Promissory Note issued to CrossWorlds by James G. Rowley.
10.11* Secured Loan Agreement, Promissory Note and Security Agreement dated
November 15, 1999 between CrossWorlds and Barton S. Foster.
10.12* Form of Change of Control Agreement between CrossWorlds and each of its
executive officers.
10.13+ IBM/OEM Distribution Agreement dated July 11, 1997, with exhibits,
including IBM/OEM Program Agreement dated June 3, 1999 and Amendment 01
to IBM/OEM Distribution Agreement dated February 9, 2000.
10.14+ Software License and Support Agreement with Delphi Automotive System,
LLC dated December 21, 1999.
10.15* Lease Agreement, as amended, dated February 1, 1999 between CrossWorlds
and Bay Park Plaza Associates, L.P.
10.16* Loan Security Agreement dated December 10, 1996 between Silicon Valley
Bank and CrossWorlds.
10.17* First Amendment to Loan and Security Agreement dated September 29, 1997
between Silicon Valley Bank and CrossWorlds.
10.18* Second Amendment to Loan and Security Agreements dated October 28, 1998
between Silicon Valley Bank and CrossWorlds.
10.19* Loan Modificated Agreement dated September 21, 1999 between Silicon
Valley Bank and CrossWorlds.
10.20* Loan Modificated Agreement dated October 18, 1999 between Silicon
Valley Bank and CrossWorlds.
10.21* Loan Modificated Agreement dated October 22, 1999 between Silicon
Valley Bank and CrossWorlds.
10.22* Loan Modification Agreement dated January 26, 2000 between Silicon
Valley Bank and CrossWorlds.
21.1* List of Subsidiaries.
23.1 Consent of KPMG LLP.
23.2* Consent of Venture Law Group (contained in Exhibit 5.1).
24.1** Power of Attorney (see page II-5).
27.1** Financial Data Schedule.
</TABLE>
- --------
* To be supplied by amendment.
** Previously filed
+ Confidential treatment requested.
<PAGE>
Exhibit 10.13
[LOGO]
PROFILE TO OEM DISTRIBUTION AGREEMENT
- --------------------------------------------------------------------------------
This profile covers the details of your authorization to market IBM Product(s)
with Your Product(s) to your Distributors and End Users. Please let us know if
you have any questions or problems with our IBM Product(s).
By signing below, each of us agrees to the terms of the following (collectively
called the "Agreement"):
1. Profile
2. OEM Distribution Agreement
3. Applicable Attachments and Exhibits referred to in the OEM Distribution
Agreement
This Agreement is the complete agreement regarding this relationship, and
replaces any prior oral or written communications between us. Once this
Agreement is signed, 1) any reproduction of this Agreement made by reliable
means (for example, photocopy or facsimile) is considered an original and 2) all
IBM Product(s) you order and services you perform under this Agreement are
subject to it.
<TABLE>
<S> <C>
Effective Date (last date signed): Duration: Two (2) Years
Agreed to: Agreed to:
Crossroads Software Inc. International Business Machines Corporation
By: /s/ Scott Martin By: /s/ Stephen Jones
--------------------------------------------- -----------------------------------------
(authorized signature) (authorized signature)
Name: Scott A. Martin Name: Stephen E. Jones
-------------------------------------------
(type or print)
Title: Senior VP, Sales, Services, Bus. Dev. Title: Contract Administrator
------------------------------------------
Date: 7/10/97 Date: 7/11/97
------------------------------------------- ---------------------------------------
OEM address: IBM address:
Crossroads Software Inc International Business Machines Corporation
577 Airport Blvd., Ste 800 11400 Burnet Road
Burlingame, CA 94010 Austin TX, 78758
Attn: OEM Software Contracts
Internal Zip 1725
NOTIFICATION ADDRESS:
OEM: IBM:
Crossroads Software Inc IBM Corporation
577 Airport Blvd., Ste 800 11400 Burnet Road
Burlingame, CA 94010 Austin TX, 78758
Attn: Beth Dabagian Attn: Austin Site Counsel
Internal Zip 9425
CUSTOMER NUMBER: AGREEMENT NUMBER: AUS970272
</TABLE>
Page 1
<PAGE>
YOUR PRODUCTS
-------------
Description of Your Product(s)
- ------------------------------
Crossroads Interchange Server and Crossroads Connectors
1. Your Designated Ship to Locations:
Crossroads Software Inc
577 Airport Blvd., Ste 800
Burlingame, CA 94010
Page 2
<PAGE>
[LOGO]
OEM Distribution Agreement (Software Systems)
- --------------------------------------------------------------------------------
1.0 DEFINITIONS
1.1 "Code" is a computer instruction in object code format.
1.2 "Designated Locations" are any of your locations to which we ship
IBM Product(s).
1.3 "Distributors" are any business entities you use to distribute Your
Product(s).
1.4 "End User" is a party unaffiliated with you and who acquires IBM
Product(s) from you for internal use, and not for redistribution.
1.5 "IBM Product(s)" is the IBM Software Product(s) listed in the
attached Exhibits.
1.6 "Level 1 Service" shall mean the service provided in response to the
initial phone call placed by an End User which identifies and
documents an error in the IBM Product(s). This includes problem
source identification assistance, problem analysis, problem
resolution, installation planning information and preventive and
corrective service information.
1.7 "Level 2 Service" shall mean the service provided to analyze or
reproduce the error or to determine that the error is not
reproducible. This includes problem recreation and in-depth
technical analysis.
1.8 "Level 3 Service" is the service provided to the OEM that isolates
the error to a component level of the IBM Product(s). A reasonable
commercial effort is to be made to provide an error correction or
circumvention or notification that no correction or circumvention is
available.
1.9 "Proof of Entitlement" is the confirmation from us to the End User
of the levels of authorized use of the Product by the End User.
1.10 "Restricted License" is a license to you, your Distributors and
End-Users which prohibits the use of the IBM Product(s) except when
used in conjunction with Your Product(s). The Exhibit will specify
the IBM Product(s) for which a Restricted License applies.
1.11 "Your Product(s)" is the software product described in the Profile
which you market and distribute under your trademark(s) or service
mark(s).
2.0 OUR RESPONSIBILITIES
We agree to:
2.1 provide you golden master copies for the IBM Product(s) listed in
the Exhibit. We may make new releases of the IBM Product(s)
available to you. Prices, terms and conditions for such new releases
may vary.
2.2 provide Level 3 Service during the time that such service is
available to all other IBM customers of the IBM Product(s). Upon our
request, you will provide a reasonable quantity of Your Product(s)
to us at no charge in order to provide this service.
3.0 OUR MUTUAL REPRESENTATIONS
3.1 IBM represents and warrants that they have the right to grant the
license rights herein.
Each of us agrees:
3.2 that each of us is an independent contractor and neither of us is a
legal representative or agent of the other.
3.3 that each of us may independently develop or acquire materials which
are competitive with each others product(s) or make similar
arrangements with other parties. Each of us is free to establish our
own prices and to enter into similar agreements with other parties.
3.4 that failure by either of us to insist on strict performance or to
exercise a right when entitled, does not prevent us from doing so at
a later time, either in relation to that default or any subsequent
one.
4.0 YOUR RESPONSIBILITIES
You agree to:
4.1 distribute the IBM Product(s) with an International Program License
Agreement ("IPLA") containing terms legally sufficient to:
i) prohibit further copying and or transfer of the IBM Product(s)
by the End User; and
ii) prohibit reverse assembly, reverse compilation, or other
translation of an IBM Product(s); and
iii) notify the End User that the IBM Product(s) is copyrighted and
licensed (not sold) and that title to the IBM Product(s) is
not transferred; and
iv) notify the End User that the owner of the IBM Product(s),
"DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE USE OF THE IBM
PRODUCT(S) INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;" and
v) notify the End User that the owner of the IBM Product(s)
liability is limited to the
Page 1
<PAGE>
amount paid by the End User for the IBM Product(s); and
vi) when a Restricted License applies, prohibit the use of the IBM
Product(s) except when used in conjunction with Your
Product(s).
4.2 provide Level 1 and Level 2 Service.
4.3 make the greater of 7 or one-percent (1%) of your annual forecast as
no charge copies of the IBM Product(s) to be used solely for
demonstration purposes which must be so labeled. Additionally, we
will specify in the Profile if you are authorized to make any other
no charge copies for any other purposes. You agree not to make any
unauthorized copies.
4.4 return the golden master or copies to us when this Agreement ends.
4.5 (1) have an agreement in place with each Distributor which will
permit you to comply with your obligations under this Agreement, and
(2) ensure that such Agreement is consistent with the terms of this
Agreement.
4.6 integrate IBM Product(s) only with Your Product(s) that are of
comparable or higher value, and upon our written request, make
available to us for our inspection and approval one copy of Your
Product(s) and print materials which use the name of the IBM
Product(s), both in finished form.
4.7 retain records for each of the transactions for three (3) years.
Records must include the number of IBM Product(s) sold, name of IBM
Product(s), and model numbers thereof, sold and/or returned,
including if IBM requests such information, your End Users reference
number. You agree to provide a mutually agreed to representative
with sufficient free and safe access to your facilities at a
mutually convenient time for us to audit these records. We may
conduct surveys of your Distributors with regard to our relationship
under this Agreement. Audits shall be limited to only one per
calendar year at IBM's expense.
4.8 not assign your rights or delegate your obligations under this
Agreement to any third party without our written consent except in
connection with the sale of your business. Any attempt to do so is
void.
4.9 not make representations about the IBM Product(s) except as
authorized by us in writing.
5.0 LICENSES (IBM TO YOU) AND YOUR OBLIGATIONS
5.1 We give you a non-transferable license to replicate and distribute
to End Users or your Distributors copies of the IBM Product(s) on
Your Product(s). You are not authorized to distribute the IBM
Product(s) alone. When a Restricted License applies, End Users may
only use the IBM Product(s) in conjunction with Your Product(s). You
shall not reverse assemble, reverse compile, sublicense, rent, lease
or assign the IBM Product(s), or any copy thereof.
5.2 We do not grant you rights to any derivative work with respect to
IBM Product(s) or any other item we supply to you.
5.3 You may provide one back-up copy of the IBM Product(s) with Your
Product(s). This copy must be identified as the back-up copy allowed
under the applicable license agreement.
6.0 INFORMATION EXCHANGE
6.1 We mutually agree that all information exchanged between us is
non-confidential, if either of us requires the exchange of
confidential information it will be made under a signed
confidentiality agreement.
7.0 CHANGES TO THIS AGREEMENT
7.1 We may change prices for IBM Products by issuing a Revised Exhibit.
We will give you sixty (60) days prior notice of any price increase.
For all other changes to be valid, both of us must sign a written
amendment.
8.0 FINANCIAL TERMS
8.1 We will specify the charges and any minimum order requirements
associated with the IBM Product(s) in the Exhibits and you shall pay
in accordance to the terms and conditions of these attached
Exhibits.
8.2. You shall provide IBM with an initial payment in accordance with the
Exhibit for each IBM Product(s) that you distribute. This payment
must be made before any IBM Product(s) are distributed. When the
quantity associated with the initial order is exhausted, you may
order additional IBM Product(s), subject to the minimum order
quantity specified in the Exhibit, by submitting a purchase order to
the address listed below.
International Business Machines Corporation
Branch Office JWQ
Accounts Receivable
Internal Zip 306
150 Kettletown Road
Southbury, CT 06488
You are responsible to ensure that sufficient quantities of the IBM
Product(s) have been ordered to cover shipments of Your Product(s).
You agree to provide IBM, upon written request, documentation
detailing the quantity of IBM Product(s) distributed externally or
installed internally during the term of this Agreement.
Each such accounting shall include a statement summarizing for each
country in which you or your authorized Distributors are authorized
to sell the
Page 2
<PAGE>
IBM Product(s), the following: (i) the number of copies of the IBM
Product(s) distributed externally or installed internally; (ii)
total revenue for such IBM Product(s) so placed; and (iii) an
explanation of how the payment was calculated.
8.3 If your account becomes delinquent, (more than 45 days past due) we
may revoke your license to copy or distribute IBM Product(s) until
your account is current. You shall pay IBM's attorneys fees (both in
house and outside) incurred in connection with collecting sums past
due.
8.4 You agree to: (1) provide us with valid reseller exemption
documentation for each applicable taxing jurisdiction, otherwise we
will charge you all applicable state and local taxes and duties and
(2) notify, us promptly if this documentation is revoked or
modified. You are liable for any claims or assessments resulting
from any taxing jurisdiction in which your exemption is not
recognized.
9.0 WARRANTY
9.1 THE IBM PRODUCT(S) WE PROVIDE TO YOU PURSUANT TO THIS AGREEMENT ARE
PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.0 LIMITATION OF LIABILITY
10.1 EXCEPT FOR CLAIMS ARISING OUT OF SECTION 11.0, NEITHER PARTY IS
LIABLE FOR ANY LOST REVENUE, LOST PROFITS, OR OTHER CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES
10.2 Except for claims arising out of Section 11.2, our entire liability
for claims in any way related to this Agreement shall be limited to
the greater of the monies paid by you to us under this Agreement
which caused the damage or one hundred thousand dollars ($100,000).
This limitation is cumulative. The sum of multiple claims may not
exceed this limit (excluding obligations under Section 11.0).
10.3 The existence of multiple claims will not enlarge or extend this
limitation. You agree to release us from all obligations, liability,
claims, or demands in excess of the limitation.
11.0 PATENTS, COPYRIGHTS AND INDEMNIFICATIONS
11.1 You agree, at your expense, to defend us against any claim against
us based on your representations, omissions, or actions relating to
this Agreement, Your Product(s) or your Code. You agree to pay all
costs, damages and reasonable attorney's fees that a court finally
awards as a result of such claim. To qualify for such defense and
payment, we agree to 1) give you prompt written notice of any such
claim and 2) allow you to control and fully cooperate with you in
the defense of such claims and all related settlement negotiations.
11.2 If a third party claims that an IBM Product we provide to you
infringes that party's patent or copyright, we will defend you
against that claim at our expense and pay all costs, damages, and
attorney's fees that a court finally awards, provided that you:
1. promptly notify us in writing of the claim; and
2. allow us to control, and cooperate with us in, the defense and
any related settlement negotiations.
If such a claim is made or appears likely to be made, you agree to
permit us to enable you to continue to use the IBM Product, or to
modify it, or replace it with one that is at least functionally
equivalent. If we determine that none of these alternatives is
reasonably available, you agree to return the IBM Product to us on
our written request. We will then give you a credit equal to the
amount you paid us for the product, provided you have followed
generally-accepted accounting principles.
This is our entire obligation to you regarding any claim of
infringement.
Claims for which we are NOT Responsible
We have no obligation regarding any claim based on any of the
following:
1. anything you provide which is incorporated into an IBM
Product;
2. your modification of an IBM Product, or a Program's use in
other than its Specified Operating Environment;
3. the combination, operation, or use of a Product with other
Products not provided by us as a system, or the combination,
operation, or use of an IBM Product with any product, data, or
apparatus that we did not provide; or
4. infringement by a non-IBM Product alone, as opposed to its
combination with an IBM Product(s) we provide to you as a system.
11.3 Title to our copyrights, patents, and any other intellectual
property rights in the Code and IBM Product(s) documentation remain
with us. Title to your copyrights, patents, and any other
intellectual property rights in Your Products and documentation
remain with you.
Page 3
<PAGE>
12.0 TRADEMARKS, TRADE NAMES AND SERVICE MARKS
12.1 This Agreement does not grant you any rights in any of IBM's
trademarks, trade names or service marks. However, you may assert
that Your Product(s) include the IBM Product(s).
13.0 TERMINATION
13.1 Except as otherwise provided herein, either of us may terminate this
Agreement for cause, if the cause has not been cured within thirty
(30) days following written notice to the other party, and either
party may terminate this Agreement without cause upon three months
written notice.
13.2 Upon termination of this Agreement you agree to immediately pay us
all amounts due.
13.3 The rights and obligations of this Agreement, expressively
identified as Section 1,3,6,9,10,11,12,13,14, survive term in this
Agreement and apply to respective successors and assignees.
14.0 GENERAL
14.1 You shall have sole responsibility for the payment of all taxes and
duties imposed by any governmental entity, and shall, at your own
expense, comply with any governmental law, statute, ordinance,
administrative order, rule or regulation relating to your duties
under this Agreement and shall procure all licenses and approvals
and pay all fees and other charges required by law thereby, as they
pertain to your duties, obligations and performance under this
Agreement. You are responsible to bear any personal property taxes
assessable on the Products on or after delivery to the carrier at
our ship-from location.
14.2 You agree to comply with all of the export laws. You shall not, nor
shall you authorize or permit your employees, agents or
subcontractors to export or re-export any IBM information or
materials to any country specified as a prohibited destination in
applicable federal, state and local laws, regulations and
ordinances, including the Regulations of the U.S. Department of
Commerce and/or the U.S. State Department, without first obtaining
any requisite U.S. government approval. For your information,
current prohibited countries include Cuba, Iraq, Iran, Libya, North
Korea, Yugoslavia, (Serbia, Montenegro).
14.3 We may assign our rights or delegate our responsibilities under this
Agreement.
14.4 Any notice required or permitted to be given pursuant to this
Agreement shall be considered given on the date of mailing if sent
to the receiving party by first class mail, postage prepaid or
facsimile, and addressed to the addresses set forth in the Profile.
14.5 The laws of the State of New York and the Copyright and Patent Law
of the United States of America govern this Agreement. Neither of us
will bring a legal action against the other more than two years
after the cause of action arose.
14.6 The parties acknowledge that they have read this Agreement,
understand it, and agree to be bound by its terms and conditions.
Page 4
<PAGE>
EXHIBIT TO
THE OEM DISTRIBUTION AGREEMENT
FOR IBM PRODUCTS
PROFILE
MQSERIES VERSION 5 - RESTRICTED LICENSES
----------------------------------------
SERVICE PROVIDED BY: CrossWorlds Software EFFECTIVE DATE: 3-27-98
- --------------------
This exhibit authorizes you to distribute this Products worldwide, with the
exception of the countries or geographic areas identified in the OEM
Distribution Agreement.
<TABLE>
<CAPTION>
SRP PRICE
PART # DESCRIPTION IN U.S. DOLLARS
- ------ ----------- ---------------
<S> <C> <C>
04L2948 MQSeries V5 Capacity Unit for OS/2 Windows NT, HP UX, AIX [*]
and Sun Solaris
THE FOLLOWING PRODUCTS ARE AVAILABLE FOR USE ONLY IN THE UNITED STATES
- ----------------------------------------------------------------------
04L2949 MQSeries V5 Capacity Unit Upgrade Protection with 5x9 Support [*]
[*]
04L2950 MQSeries V5 Capacity Unit Upgrade Protection with 7x24 Support [*]
[*]
THE FOLLOWING IS AVAILABLE ONLY OUTSIDE THE UNITED STATES
- ---------------------------------------------------------
04L2537 MQSeries V5 Capacity Unit Upgrade Protection [*]
[*]
</TABLE>
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
<PAGE>
EXHIBIT TO
THE OEM DISTRIBUTION AGREEMENT
FOR IBM PRODUCTS
PROFILE
MQSERIES VERSION 5 - RESTRICTED LICENSES
----------------------------------------
SERVICES PROVIDED BY: CrossWorlds Software EFFECTIVE DATE: 3-27-98
- ---------------------
TERMS AND CONDITIONS:
- ---------------------
- - Initial order will be [*] of [*] commitment volume.
- - Minimum subsequent order is [*],
- - Initial charges will be based upon a projection of [*] at a discount of [*]
within the first year of the Agreement.
- - This Exhibit is an update to the 7/11/97 Exhibit for MQSeries V2.0, part
number 30F6764, and upgrade Protection part number 30F6782. Initial order and
minimum charges requirement have been fulfilled.
- - Upon completion of the first year of this agreement, both parties will
promptly reconcile total payments based on the actual 12 month order volume.
Any amount overpaid by you shall be credited to your account and we will
invoice you for any amount underpaid.
- - The license granted to you is a "Restricted License" for the products listed
above which means the products listed above can only be used in conjunction
with your product "CrossWorlds Interchange Server and CrossWorlds
Connectors".
- - The quantity of Capacity Units which must be purchased for each system is as
follows: For Intel, OEM must purchase 2 capacity units for each Intel
license. For Unix, OEM must purchase capacity units for each Unix license.
- - Capacity Unit Upgrade Protection with Support and Capacity Unit Upgrade
Protection for a 2 year period and must be paid in advance for each capacity
unit for each year in effect starting
- - Capacity Unit Upgrade Protection with Support and Capacity Unit Upgrade
Protection must be purchased for all Capacity Units at an end user customer's
enterprise.
- - Price changes do not affect licenses upgraded with Capacity Unit Upgrade
Protection with Support and Capacity Unit Upgrade Protection.
- - Capacity Unit Upgrade Protection with Support and Capacity Unit Upgrade
Protection with Support fees aggregate toward the revenue total of this
exhibit.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
<PAGE>
IBM / OEM Program Agreement: AUS970272
Transaction Document Number 001
- --------------------------------------------------------------------------------
Thank you for doing business with IBM. This is a Transaction Document under the
IBM/OEM Program Agreement No. AUS970272 ("Base Agreement"). This Transaction
Document becomes effective when signed by both parties.
By signing below for our companies, each of us agrees to the terms of this
Transaction Document. Once signed, 1) both parties agree any reproduction of the
Agreement made by reliable means (for example, photocopy or facsimile) is an
original unless prohibited by local law and 2) all Programs within this
Transaction Document are subject to it.
Agreed to: Agreed to:
International Business Machines Corporation CrossWorlds Software, Inc.
By: /s/ Stephen E. Jones By: /s/ Barton Foster
--------------------------------- ----------------------------
Name: Dominic Cavalucci Name: Barton Foster
------------------------------- --------------------------
Title: OEM Software Contracts Title: Senior VP
------------------------------ -------------------------
Date: 6/3/99 Date: 6/3/99
------------------------------- --------------------------
IBM Address: CrossWorlds Software, Inc.
11400 Burnet Road 577 Airport Blvd., Ste. 800
Austin, TX 78758 Burlingame, CA 94010
Attn: Dominic Cavalucci
OEM Software Contracts
Internal Zip 4106
1 of 8
<PAGE>
IBM / OEM Program Agreement: AUS970272
Transaction Document Number 001
- --------------------------------------------------------------------------------
Thank you for doing business with IBM. This is a Transaction Document under the
IBM/OEM Program Agreement No. AUS970272 ("Base Agreement"). This Transaction
Document becomes effective when signed by both parties.
By signing below for our companies, each of us agrees to the terms of this
Transaction Document. Once signed, 1) both parties agree any reproduction of the
Agreement made by reliable means (for example, photocopy or facsimile) is an
original unless prohibited by local law and 2) all Programs within this
Transaction Document are subject to it.
Agreed to: Agreed to:
International Business Machines Corporation CrossWorlds Software, Inc.
By: /s/Stephen E. Jones By:
------------------------------------ ----------------------------------
Name: Dominic Cavalucci Name: Barton Foster
---------------------------------- --------------------------------
Title: OEM Software Contracts Title: Senior VP
--------------------------------- -------------------------------
Date: 6/3/99 Date:
---------------------------------- --------------------------------
IBM Address: CrossWorlds Software, Inc.
11400 Burnet Road 577 Airport Blvd., Ste. 800
Austin, TX 78758 Burlingame, CA 94010
Attn: Dominic Cavalucci
OEM Software Contracts
Internal Zip 4106
1 of 8
<PAGE>
IBM/OEM Software Agreement
Transaction Document Number 001
MQSERIES INTEGRATOR (MQSI) RESTRICTED LICENSES
----------------------------------------------
This exhibit authorizes you to distribute this product on a World Wide basis
with the exception of those geographic areas identified in the OEM Distribution
Agreement,
1. MQSI Restricted License
-----------------------
OEM PRICE IN
PART # DESCRIPTION US DOLLARS
- ------ ----------- ----------
41L187 MQSeries Integrator Product Version 1.x and Section 9 (b)
Version 2,x, UNIX and NT Platforms
2. Value-Add Components which must be Included In Offerings:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
Vendor Application Description
- ----------------------------------------------------------------------------------------
<S> <C>
CrossWorlds Software Inc. (CrossWorlds) The CrossWorlds InterChange Server
- ----------------------------------------------------------------------------------------
</TABLE>
3. Related Licensed Materials which must be included in Offerings: Related
Licensed Materials (standard materials included with the product on golden
master) will be included in your Offering in the appropriate languages and
with the appropriate terms for the geographies in which It Will be
distributed.
4. Territory is World Wide, with the exception of US State Department
specified prohibited countries which include Cuba, Iraq, Iran, Libya, North
Korea, and Yugoslavia (Serbia-Montenegro).
5. Term: The term of this Transaction Document will be two (2) years from
the date signed by the last signatory hereto, and will be automatically
renewed for an additional one (1) year term unless notice of termination is
provided by either party at least thirty (30) days prior to such renewal
date. However, in the event you do not purchase the minimum quantity
specified in Section 9 (b), such renewal is contingent upon your and IBM's
agreement to revised terms for the programs.
6. License Agreement Requirement: You will include in your Offering(s) the
International Program License Agreement in the appropriate languages and
with the appropriate terms for the geographies in which it will be
distributed,
7. Technical Support: You or your Distributors will provide Level 1 Service
and Level 2 Service to Customers. You will include with your Offerings a
conspicuous description of Level 1 and Level 2 Services and the method and
means the Customer shall use to contact your Level 1 and Level 2 Services,
IBM will provide Level 3 Service to you at no additional charge during the
time that such service Is available to all other IBM customers of the IBM
Product.
8. Coordinators: The following contract coordinators are authorized to
receive notices under this Transaction Document and the Base Agreement:
2 of 8
<PAGE>
---------------------------------------------------------------------------
For IBM For you:
---------------------------------------------------------------------------
Name Dominic Cavalucci Director Alliances
---------------------------------------------------------------------------
Company IBM CrossWorlds Software Inc.
---------------------------------------------------------------------------
Address 11400 Burnet Rd. 577 Airport Blvd, Suite 800
---------------------------------------------------------------------------
Internal Zip 4106
---------------------------------------------------------------------------
City, ST Austin, TX 78758 Burlingame CA 94010
---------------------------------------------------------------------------
Telephone: (512)823-8664 (650)685-9077
---------------------------------------------------------------------------
Fax: (512)823-8712 (650)685-1748
---------------------------------------------------------------------------
9. Royalty Calculation and Payment Requirements:
a) CrossWorlds will pay IBM royalty payments on sales of CrossWorlds
products bundled with MQSI as described in Section 2, [*] based on
implementation schedules of Phase (1), (2)a, and (2)b. Definitions of
[*] and Implementation Phases are listed below:
[*]
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
<PAGE>
[*]
(b) The OEM discounts and prices offered in this Transaction Document are
based on total SRP revenue volume commitment of [*] over a (2) year term.
The [*] commitment is calculated on IBM's SRP's for MQSI product and for
upgrade support for MQSI. IBM SRP for MQSI product for alt CrossWorlds
offering regardless of end user customer, processor size or operating
platform environments is [*].
[*]
[*]
Your purchase order will contain the following information: purchase order
number, product pad number, order quantity, a contact name and phone
number. Your orders will be sent to:
IBM Branch Office JWQ
Accounts Receivable - Internal Zip 261
150 Kettletown Road
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
4 of 8
<PAGE>
Southbury, CT 06488
c) You will provide to IBM quarterly sales report-, for quarters ending
3/31, 6/30, 9/30, and 12/31. The sales report and payment for any royalties
owed for the quarter being reported are due to IBM within 30 days of the
quarter end.
10. Miscellaneous Terms/Conditions;
a) IBM wilt deliver to CrossWorlds Golden Master(s) for the MQSI program
product listed above by the 30th day after mutual execution of this
Transaction Document.
b) The license granted to you is a "Restricted License" for the products
listed in Section 2, which means they can only be used in conjunction with
your product "The CrossWorlds InterChange Server",
c) Purchases of MQSI may not be aggregated with purchases of other IBM
products for discount purposes.
d) Both parties will promptly reconcile total payments based on the actual
24 month order volume and the contribution of those payments to the SRP
volume commitment. Any amount overpaid by you shall be credited to your
account and we will invoice you for any amount underpaid.
e) CrossWorlds has the option to inform IBM in writing their wish to
increase the committed revenue volume (per the chart below) to take
advantage of higher discount levels at any point during Phase I!. The new
discount(s) will only take effect on new sales after the Increase in
commitment volumes. No retroactive discounts Will be applied toward sales
prior to the increase in commitment volumes.
MQSI SRP Revenue Volume Commitment and Associated OEM Discount Levels over
a 12-month period:
SRP Commitment: [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*]
f) No product returns are allowed, in the case of customer returns for
warranty/indemnity issues, CrossWorlds may distribute MQSI as part of a
replacement or workaround without charge.
g) CrossWorlds will provide a list of customer situations who should
qualify for classification as Category (1) and (2) customers (reference
Attachment{ of this Transaction Document) at Transaction Document signing.
h) IBM commits to holding quarterly meeting of the joint IBM/CrossWorlds
Design Council and to have the IBM Technical Coordinator for CrossWorlds
present at such meetings. CrossWorlds commits to participating in IBM MQSI
Quarterly Design Council meetings during the term of this Agreement. No
other participants will attend the joint Design Council unless mutually
agreed. Both party's Technical Coordinators shall discuss and review
technical issues relating to (1) MQSI planned changes/enhancements which
may relate to and/or impact the effectiveness and use of CrossWorlds
products with MQSI and (2) CrossWorlds requests for IBM MQSI
changes/enhancements. Both IBM and CrossWorlds will provide the designated
Technical Coordinators for each party prior to the start of the first
council meeting.
i) Press Announcement requirements: IBM and CrossWorlds shall issue a joint
press announcement and host a joint press event announcing this Transaction
Document with the appropriate executives from both companies within 30 days
of mutual execution of this Transaction Document.
j) IBM AIM sales representatives will be compensated for the MQSI OEM Sales
revenues of CrossWorlds Offerings.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
5 of 8
<PAGE>
k) in the event of a conflict between this Transaction Document and the
Base Agreement, this Transaction Document shall prevail.
11. Upgrade Protection:
PRICE IN
<TABLE>
<CAPTION>
PART # DESCRIPTION US DOLLARS
- ------ ----------- ----------
<S> <C> <C>
41L1901 Annual Upgrade Protection Fee [*] of net price per year
for MQSeries Integrator for NT and UNIX platforms
</TABLE>
('net price' refers to IBM OEM price as defined in this Transaction
Document)
- Upgrade Protection, purchased for an individual license over a one year
period, will provide the purchaser with a new version or release when made
generally available by IBM, at no additional cost to CrossWorlds. If the
Upgrade Protection fee has been paid continuously since the original
license was purchased. When Upgrade Protection has been purchased, OEM may
upgrade the end user's license to the new version.
- Upgrade Protection must be paid in advance for each license for each year
in effect, beginning with the first quarterly accounting and payment as
described in Section 5,2 of the Base Agreement. Each quarterly accounting
and payment for new licenses in that quarter must have [*] added for the
Upgrade Protection fees.
12. Amendments to Base Agreement:
The following amends the Base Agreement solely with respect to this Transaction
Document 001, and not with respect to any other Exhibits applicable to the Base
Agreement.
a) The "Duration" on the profile sheet of the Base Agreement is hereby
amended to read: "Duration: Two (2) years from mutual execution of
IBM/OEM Software Agreement Transaction Document Number 001;
automatically renewed for an additional one (1) year term unless notice
of termination is provided by either party at least thirty (30) days
prior to such renewal date".
b) Section 2,1 of the Base Agreement is hereby amended to read: "provide
you with golden master copies for the IBM Product(s) listed in an
Exhibit or Transaction Document. We will make any generally available
new releases and versions (i.e., those new releases and versions not
specified in an Exhibit or Transaction Document) of such IBM Product
available to you. Prices for such new releases and versions may vary.
c) Section 4.3 of the Base Agreement is hereby amended to read' "make 100
number of copies of the IBM Product(s) to be used solely for
demonstration, support and evaluation of, and training on, development
and testing, your Offering. Additionally, we will specify in the
Profile if you are authorized to make any other no charge copies for
any other purposes. You agree not to make any unauthorized copies.
Provided a royalty has been already paid to IBM, there is no charge or
royalty to you for distributions of the IBM Product(s) (i) with
updates, upgrades, enhancements or new versions of Your Product(s) and
(ii) as part of a replacement or workaround of your Offering due to
warranty/indemnity issues."
d) Section 4.8 of the Base Agreement is amended to read as follows: "not
assign your rights or delegate your obligations under this Agreement to
any third party without our written consent except to a successor in
the event of a merger, acquisition or sale of assets, where such
successor assumes in writing or by operation of law your obligations
under this Agreement. Except for the foregoing, you may not assign this
Agreement nor your rights or obligations hereunder to a third party
without IBM's written consent and any attempt to do so is void".
e) Section 5.1 of the Base Agreement is amended by inserting the phrase
"(except as set forth in Section 4.8)" after the word
"non-transferable".
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
6 of 8
<PAGE>
f) Section 7.1 of the Base Agreement is amended by deleting it and
replacing it with the following' "7.1 If IBM increases the SRP for the
IBM, Products, this will not change the SRP or discount level listed in
the Transaction Document 001 during its term."
g) Section 9.1 of the Base Agreement is amended to read as follows; "IBM
warrants that for a period of 90 days following delivery of the golden
master to you containing the IBM Product(s), the IBM Product(s) will
perform in accordance with the functional specifications contained in
the documentation for such IBM Product(s) and the golden master will be
free of defects in materials and workmanship. IBM does not warrant that
the IBM Product(S) will be error-free. Your exclusive remedy for any
breach of the foregoing warranty will be for IBM to promptly either (as
applicable), remedy such non-compliance or replace such golden master
and permit you to distribute such remedy free of charge to your
existing customers, IBM represents that when the IBM Product is used in
the specified operating environment, it will conform to its
specifications. If such specifications state that the IBM Product is
'"Year 2000 Ready," such product when used in accordance with its
associated documentation is capable of correctly processing, providing
and/or receiving date data within and between the 20th and 21st
centuries, provided that all other products (including hardware,
software and firmware) used with the Program(s) properly exchange
accurate date data with it. EXCEPT FOR THE FOREGOING, THE IBM
PRODUCT(S) WE PROVIDE TO YOU PURSUANT TO THIS AGREEMENT ARE PROVIDED
WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE."
h) Section 11.2 of the Base Agreement is amended by (i) replacing the
words "that party's" with "a", (ii) inserting the words "or trademark"
immediately after the word "copyright" and (ii[) inserting the words
"and your customers and other persons to whom you've distributed the
IBM Product(s)" after the words "to enable you".
i) Section 12.1 of the Base Agreement is amended to read as follows: "IBM
hereby grants to you a nonexclusive, nontransferable (except as set
forth in Section 4.8), royalty-free, worldwide right and license to use
any IBM product logos or trademarks for the MQSeries product family in
conjunction with your Offering pursuant to IBM's guidelines for such
use. You will not remove any IBM trademarks or logos embedded in the
IBM products. You may assert that your Offerings include the IBM
products.
j) Section 13.1 of the Base Agreement is amended by deleting the phrase ",
and either party may terminate this Agreement without cause upon three
months written notice, and adding the following "where 'cause' means a
party's breach of a material term of this Agreement."
k) The following is added to Section 14.3 of the Base Agreement' "The
foregoing is subject to the provision that if we assign our rights or
delegate our responsibilities under this Agreement to any entity which
is not directly or indirectly controlling, controlled by or under
common control with us, where 'control' means the ownership of 50% or
more of the voting shares of the subject entity, you may terminate this
Agreement upon written notice to us."
7 of 8
<PAGE>
ATTACHMENT I
[*]
[*]
[*]
[*]
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
8 of 8
<PAGE>
[LETTERHEAD OF IBM]
February 8, 2000
Mr. Scott Takaoka
Cross Worlds Software, Inc.
577 Airport Blvd, Suite 800
Burlingame, CA 94010
SUBJECT: Amendment 01 to OEM DISTRIBUTION AGREEMENT NO. AUS970272
Dear Mr. Scott Takaoka,
As a matter of clarification, the base Agreement in paragraph 7.1 requires
both parties to sign a written amendment to all changes excluding price changes.
Since we both wish to amend the Duration of this Agreement, please sign below
indicating your acceptance. Duration shall be amended to read as follows:
Duration: The duration of this Agreement will be extended to
June 3, 2001, and will be automatically renewed for an
additional one (1) year term unless notice of termination is
provided by either party at least thirty (30) days prior to such
renewal date. However, in the event you do not purchase the
minimum quantity specified in Section 9 (b), such renewal is
contingent upon your and IBM's agreement to revised terms for
the Programs.
All exhibits attached to this Agreement shall remain in effect
until changed or terminated via a sixty day written notice per
paragraph 7.1 of this Agreement.
Once signed and completed, both parties agree any reproduction of this Extension
of OEM Distribution Agreement No. AUS970272 made by reliable means (for example,
photocopy or facsimile) is an original.
Please sign below if you concur to this contract extension and fax back to me.
If you do not concur, please indicate so below and return to me.
Sincerely,
CrossWorlds Software, Inc.
/s/ Dominio Cavalucci 2/8/2000 /s/ Mark Kent 2/9/00
- -------------------------------- ------------------- ------
Signature Date Signature Date
Dominio Cavalucci Mark Kent
-------------------
Contract Administrator Print Name
IBM Software Procurement, US
SVP & CFO
-------------------
Title
<PAGE>
CROSSWORLDS SOFTWARE
SOFTWARE LICENSE AND SUPPORT AGREEMENT
This SOFTWARE LICENSE AND SUPPORT AGREEMENT ("Agreement") is entered into
as of ______________ ("Effective Date") by Delphi Automotive Systems,
LLC, a Delaware limited liability corporation, having a principal place
of business at 5725 Delphi Drive, Troy, Michigan 48098-2615 ("Customer"),
and CrossWorlds Software, Inc., a Delaware corporation, having a
principal place of business at 577 Airport Boulevard, Suite 800,
Burlingame, California 94010 ("CrossWorlds"), and describes the terms and
conditions pursuant to which CrossWorlds shall license to Customer and
support certain Software (as defined below).
In consideration of the mutual promises and upon the terms and conditions
set forth below, the parties agree as follows:
1. Definitions
1.1. "Affiliates" means all current and future business entities that,
directly or indirectly, control, are controlled by, or are under common
control with Customer.
1.2. "Collaborations" means the applications business logic portion of the
Software so designated in Attachment A.
1.3. "Confidential Information" means this Agreement and all its Attachments
and Appendices, any addenda hereto signed by both parties, and (a) with
respect to information of CrossWorlds, all information of CrossWorlds of
a proprietary and confidential nature such as Software listings,
Documentation, data, drawings, benchmark tests, specifications, trade
secrets, source code relating to the Software, and any other proprietary
and confidential information supplied to Customer by CrossWorlds,
including all items defined as "confidential information" of CrossWorlds
in any other agreement between Customer and CrossWorlds whether executed
prior to or after the date of this Agreement ("CrossWorlds Confidential
Information"), and (b) with respect to information of Customer, all
confidential and proprietary business information of Customer supplied or
made available by Customer to CrossWorlds.
1.4. "Connectors" means the portions of the Software that connect
applications, which are so designated on Attachment A.
1.5. "Documentation" means the user manuals distributed by CrossWorlds that
are included with the Software.
1.6. "Environment" means the computer system, including peripheral equipment
and operating system software, specified in Attachment A.
1.7. "Maintenance and Support" means the services described in Section 7.
1.8. "Server" means a computer system that allows Users to access the Software
from local or remote personal computers or terminals.
1.8.5. "Server Software" means the Software specified in Attachment A and
otherwise provided to Customer pursuant to this Agreement for use on
Servers.
1.9. "Site" means each physical location specified in Attachment A of one or
more Servers on which Customer is entitled to Use the Software.
1.10. "Software" means the computer software programs specified in Attachment A
and otherwise provided to Customer pursuant to this Agreement to connect
and collaborate with the versions of the Customer software specified in
Attachment A, and includes without limitation the Third Party Technology
(as defined in the Third Party Technology Appendix).
1.11. "Third Party Technology" means the third party technology stated in the
Third Party Technology Appendix.
1.12. "Use" means utilization of the Software and Documentation by Customer
(and such other entities as are expressly permitted by Section 2) on no
more than the number of Servers set forth on Attachment A, for its own
internal information processing services and computing needs (except as
expressly permitted by Section 2), by copying or transferring the same
into Customer's Environment. "Use" of the Software shall be subject to
the restrictions set forth in Section 2.1.
1.13. "Update" means a release or version of the Software containing functional
enhancements, extensions, error corrections or fixes that is generally
made available free of charge (other than media and handling charges) to
CrossWorlds' customers who have contracted for Maintenance and Support.
1.14. "User" means those Customer employees or Affiliates (pursuant to Section
2.4) authorized by Customer to Use/access the Software through a Server.
2. Grant of License
2.1. Grant. Subject to the terms and conditions of this Agreement, CrossWorlds
hereby grants to Customer a limited, perpetual, nonexclusive and
nontransferable license solely in the Environment located at the Site
(except as provided herein) to:
2.1.1. Allow Use of the Tools set forth on Attachment A (the "Tools") by
the number of users ("Development Users") set forth on Attachment A,
provided that all software produced by or for Customer in the Use of such
Tools shall be subject to the terms and conditions of this Agreement and
such software may be installed and used only for Customer's internal
production at the Site and on the number of Servers set forth in
Attachment A;
2.1.2. Use the Connectors, and to make no more than the number of copies
of the Connectors set forth in Attachment A;
2.1.3. Use the Collaborations and Server Software, and to make copies
solely on the number of Servers set forth in Attachment A;
2.1.4. Use and modify the Documentation in connection with Use of the
Software; and
2.1.5. Modify the Software pursuant to authorized Use of the Tools;
provided that all such modifications shall be subject to the restrictions
of this Agreement that apply to the Software.
2.2. Reservation of Rights. Customer acknowledges and agrees that all right,
title and interest in all copies of the Software and Documentation
whether in machine-readable or printed form, and derivative works thereof
prepared by or for CrossWorlds and all related technical trade secrets
not developed in whole or in part by Customer and all rights therein
(including without limitation intellectual property rights), are and
shall be the exclusive property of CrossWorlds and/or its suppliers, and
Customer shall assign to and reasonably assist CrossWorlds, at
CrossWorlds' expense, in maintaining and securing such ownership.
Customer shall have only those rights in or to the Software and
Documentation granted to it pursuant to this Section 2 of the Agreement.
Customer shall in no event distribute, resell or otherwise provide to any
third party (except to an Affiliate for its internal production purposes)
any software produced by or for Customer in the Use of the Tools.
2.3. Delivery. Upon execution of this Agreement by Customer and CrossWorlds,
CrossWorlds shall issue to Customer a reasonable number of
machine-readable copies of the Software, for Use at the Site(s) only, to
the extent that the number of copies supports the Customer's projects
using the Software at the Site(s), along with a reasonable number of
copies of the appropriate Documentation, to the extent that the number of
copies supports the Customer's projects using the Software at the
Site(s), and to the extent that Customer is not able to download such
additional Documentation from CrossWorlds Internet site. CrossWorlds will
provide Customer with additional copies of the Documentation at
CrossWorlds' then current standard charges. Customer acknowledges that no
copy of the source code of the Software will be provided to Customer
except pursuant to Section 5.
2.4. Use by Affiliates. Affiliates of Customer may Use the Software solely
pursuant to the terms and conditions of this Agreement. Customer
acknowledges and agrees that any breach of this Agreement by Affiliates
shall be deemed a breach of the Agreement by Customer.
2.5. Disaster Recovery. If the specified Environment is inoperable or the
equipment therein is under repair, Customer will be entitled to transfer
the Software to a substitute Environment at the same Site using an
operating system that is supported by CrossWorlds, provided that Customer
shall promptly notify CrossWorlds in writing of the transfer. Customer
will be responsible for any services required if the Software has to be
ported to an operating system that is not supported by CrossWorlds. If
the specified Site is nonfunctional for purposes of this Agreement,
Customer will be entitled to transfer the Software to a substitute
Environment at a new Site using an operating system that
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is supported by CrossWorlds, subject to the number of allowable Servers
as specified in Attachment A, provided that Customer shall promptly
notify CrossWorlds in writing of the transfer. Notwithstanding anything
in this section to the contrary, no restrictions shall be placed on the
transfer of Software licensed under if an Enterprise License is so
specified in Attachment A.
2.6. Backup Copy. Customer will be entitled to make a reasonable number of
machine-readable copies of the Software for backup or archival purposes.
Customer may not copy the Software, except as permitted by this
Agreement. Annually, Customer shall maintain accurate and up-to-date
records of the number and location of all archival copies of the Software
and inform CrossWorlds in writing of such location(s). All copies of the
Software will be subject to all terms and conditions of this Agreement.
Whenever Customer is permitted to copy or reproduce all or any part of
the Software, all titles, trademark symbols, copyright symbols and
legends, and other proprietary markings must be reproduced.
2.7. Third-Party Consultant Use. (a) CrossWorlds acknowledges and agrees that
from time to time Customer or an Affiliate may engage a third party
outsource service provider ("Third Party Provider") to perform, on behalf
of the Customer or the Affiliate, Customer's or the Affiliates' internal
information processing services and computing needs referred to in the
definition of "Use" in Section 1.12 of this Agreement, or to perform
systems integration, facilities management consulting or disaster
recovery services or similar services. The Third Party Provider may Use
the Software solely for the benefit of Customer or an Affiliate subject
to the terms and conditions of this Agreement so long as (i) Customer has
entered into its customary vendor confidentiality agreement with the
Third Party Provider, (ii) Customer shall be responsible for the breach
of such confidentiality agreement by the Third Party Provider to the
extent that such breach also constitutes a breach of confidentiality
obligations hereunder, and (iii) Customer informs the Third Party
Provider of the confidentiality obligations arising under this Agreement.
The parties acknowledge that Customer's confidentiality obligations
hereunder may be breached, and liability incurred to CrossWorlds
hereunder, by Customer as a result of the actions or omissions of a Third
Party Provider. Nothing herein will prevent Customer from seeking
recovery for such breach from such Third Party Provider.
(b) Quarterly, CrossWorlds may submit to Customer a list of entities that
are direct competitors of CrossWorlds (the "Direct Competitors").
Customer will promptly respond to written inquiry from CrossWorlds
regarding the identity of any Third Party Provider and inform CrossWorlds
as to whether such Third Party Provider has or may have access to the
Software in the performance of its obligations to Customer. If such Third
Party Provider has, or may have, access to the Software in the
performance of its obligations to Customer, Customer shall confer with
CrossWorlds and the parties shall cooperate, and Customer shall use its
best efforts, to, where appropriate, do one or more of the following: (i)
implement reasonable procedures for the protection of CrossWorlds' rights
in the Software (which may include, but is not limited to, security and
access logs, monitoring and similar processes or procedures); (ii) obtain
a written confidentiality agreement from the Third Party Provider
containing reasonably acceptable terms and conditions that is enforceable
by CrossWorlds, including without limitation, a covenant against reverse
engineering the Software; and (iii) where necessary to protect
CrossWorlds' rights and interests in the Software and where reasonably
practicable to promote Customer's rights and interests in its project,
Customer will use its best efforts to restrict such Third Party
Provider's access to the Software.
__________________ INITIALS RE SECTION 2.7
3. License Restrictions.
3.1. Customer agrees that it will not itself, or through any parent,
subsidiary, affiliate, agent or other third party:
3.1.1. sell, lease, license or sublicense the Software or the
Documentation;
3.1.2. decompile, disassemble, or reverse engineer the Software, in whole
or in part;
3.1.3. Use the Software on any Server not located at the Site;
3.1.4. write or develop any derivative work or any other software program
based upon the Software or any Confidential Information, except pursuant
to authorized Use of Tools as set forth in Section 2.1.5, if any;
3.1.5. use the Software to provide processing services to third parties,
or otherwise use the Software on a "service bureau" basis.
4. Fees.
4.1. License Fees. In consideration of the license granted pursuant to Section
2.1, Customer agrees to pay CrossWorlds the License Fee specified in
Attachment A. The License Fee is due and payable upon the payment
schedule specified in Attachment A.
4.2. Maintenance Fees. In consideration of the Maintenance and Support that
CrossWorlds shall provide to Customer, Customer agrees to pay CrossWorlds
the Maintenance Fee specified in Attachment A. The Maintenance Fee is due
and payable upon the payment schedule specified in Attachment A. Any
additional Maintenance and Support not set forth in Attachment A will be
subject to good faith negotiations between the parties.
4.3. Additional Licenses. Customer will have the option to expand the license
granted pursuant to Section 2.1 to include Use of the Software at
additional Sites and/or to increase the allowed number of Servers, upon
CrossWorlds' receipt and acceptance of Customer's notice of the
additional Sites and/or Servers and the additional license fees for the
expanded Use as set forth in a mutually agreed Attachment A.
4.4. Taxes. All charges and fees provided for in this Agreement (including the
Maintenance Fees) are exclusive of any taxes, duties or similar charges
imposed by any government (including without limitation withholding
taxes) and all amounts payable hereunder shall be made without deduction
for taxes, duties or charges. Customer agrees to pay or reimburse
CrossWorlds for all federal, state, dominion, provincial, or local sales,
use, personal property, excise or other taxes, fees, or duties arising
out of this Agreement or the transactions contemplated by this Agreement
(other than taxes on the net income of CrossWorlds).
4.5. Payments. All fees shall be paid in U.S. Dollars. All invoices are due
and payable in accordance with Customer's Multilateral Netting System
("MNS-2") on the second month, second day from the date of invoice.
5. Source Code Escrow. At a later date, the parties will enter into a
mutually acceptable Master Source Code Escrow Agreement with respect to
the Software (excluding the Third Party Technology), to which neither
party shall unreasonably withhold its consent.
6. Audit Rights. CrossWorlds retains the right to audit Customer's Use of
the Software at the principal place of business listed above with
reasonable prior notification of such audit given to Customer. Such audit
shall not occur more than once per year and shall be performed during
normal business hours. If the result of such audit reveals that Customer
is out of compliance with this Agreement, Customer shall pay to
CrossWorlds the appropriate fees required to bring Customer back into
compliance. CrossWorlds shall invoice Customer for such fees with the sum
due payable in accordance with Customer's Multilateral Netting System
("MNS-2") by the second month, second day. Customer will, upon request by
CrossWorlds, promptly provide CrossWorlds with a written report,
certified by an officer of Customer, stating the Site(s), number of
Development Users and number of Servers with respect to which Customer is
Using the Software.
7. Maintenance and Support. For so long as Customer is current in the
payment of all Maintenance Fees and is otherwise in substantial
compliance with this Agreement, Customer will be entitled to maintenance
and support of the Software ("Maintenance and Support") as specified in
this Section 7.
7.1. Term and Termination. CrossWorlds' provision of Maintenance and Support
to Customer will commence on the date set forth in Attachment A and will
continue for an initial term of one (1) year, except as set forth in an
Attachment A. Maintenance and Support will automatically renew at the end
of the initial term and any subsequent term for a renewal term of one (1)
year unless Customer has provided CrossWorlds with a written termination
notice of its intention not to renew the Maintenance and Support at least
sixty (60) days prior to the termination of the then-current term, except
as set forth in an Attachment A. Termination of Maintenance and Support
upon failure to renew will not affect the license of the Software.
7.2. Maintenance and Support Services. Maintenance and Support means that
CrossWorlds will provide: (a) Updates, if any, and appropriate
Documentation, and (b) assistance with respect to the Software,
including: (i) clarification of functions and features of the
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Software; (ii) clarification of Documentation pertaining to the Software;
and (iii) error verification, analysis and corrective efforts as further
described in Attachment B. Maintenance and Support will be provided only
with respect to versions of the Software that, in accordance with
CrossWorlds policy, are then being supported by CrossWorlds.
7.3. Eligibility of Software. Maintenance and Support will not include
services requested as a result of, or with respect to, (i) improper
installation by Customer or use of the Software that deviates from any
operating procedures established by CrossWorlds in the applicable
Documentation, (ii) attempted or actual modification, alteration,
additions or extensions to or of the Software by Customer or any third
party (except for modifications, alterations, additions or extensions to
or of the Software permitted in writing by CrossWorlds), (iii) accident,
electrical failure, or failure of air conditioning or humidity control,
(iv) any version of the Software more than one Update prior to the
currently commercially available Update of the Software so long as
CrossWorlds timely provided each of the Updates; (v) failure to
incorporate an Update previously released and provided by CrossWorlds and
(vi) any portion(s) of the Software customized by CrossWorlds, Customer
or a Third Party Consultant for Customer's use.
7.4. Responsibilities of Customer. CrossWorlds' provision of Maintenance and
Support to Customer is subject to (and if Customer employs a Third Party
Consultant as described in Section 2.7, such Third Party Consultant's
compliance with) the following:
7.4.1. Customer shall provide CrossWorlds with access to Customer's
personnel and Environment during normal business hours. This access must
include the ability to dial-in to any part of the Environment on which
the Software is operating necessary to maintain the Software. CrossWorlds
will inform Customer of the specifications of the modem equipment needed,
and Customer will be responsible for the costs and use of said equipment.
7.4.2. Customer shall provide supervision, control and management of the
Use of the Software. In addition, Customer shall implement procedures for
the protection of information and the implementation of backup facilities
in the event of errors or malfunction of the Software or Environment.
7.4.3. Customer shall document and promptly report all errors or
malfunctions of the Software sufficient to enable CrossWorlds to
replicate and verify the error or malfunction. Customer shall take all
steps necessary to carry out procedures for the rectification of errors
or malfunctions within a reasonable time after such procedures have been
received from CrossWorlds.
7.4.4. Customer shall maintain a current backup copy of all programs and
data.
7.4.5. Customer shall properly train its personnel in the Use and
application of the Software and the Environment on which it is used.
8. Covenants, Representations and Warranties.
8.1. Assignment or Enforcement of Warranties. With respect to all Software
licensed by CrossWorlds to Customer as specified on Attachment A,
CrossWorlds shall assign to Customer the rights, including right to
recovery, it obtains under warranties or indemnifications given by third
parties in connection to the foregoing to the extent such rights are
available and assignable. CrossWorlds shall, upon Customer's request, and
with reasonable notice and particular documentation to determine the
nature of the potential breach of warranty, enforce any such warranties
that are not assignable, to the extent any such warranties are available,
and track and notify Customer of each non-assignable warranty applicable
thereto and deliver to Customer any documentation issued by a warrantor
evidencing such non-assignable warranty.
8.2. Illicit Code. CrossWorlds shall use its best efforts to ensure that no
Illicit Code (as defined herein) is coded or introduced into the Software
by CrossWorlds or CrossWorlds' representatives. In the event that any
Illicit Code is found to have been coded or introduced into the Software
by CrossWorlds or CrossWorlds' representatives, CrossWorlds shall use
best efforts, at no additional charge, to assist Customer in reducing the
effects of the Illicit Code, including assisting customer in mitigating
and restoring any damaged or lost data. "Illicit Code" means any program,
routine, device or other undisclosed feature or hidden file, not
referenced in the Documentation, including without limitation, a time
bomb, virus, software lock, trojan horse, drop-dead device, worm,
malicious logic or trap door, that is designed to delete, disable,
deactivate, interfere with or otherwise harm the Software or Customer's
other software, hardware, data, any transmitting or activating computer
program, or any hardware-limiting, software-limiting or services-limiting
function (including, but not limited to, any key, node lock, time-out or
other similar functions), whether implemented by electronic or other
means.
8.3. Insurance. CrossWorlds shall maintain insurance coverage with carriers
acceptable to Customer in the amount of $1,500,000 for general commercial
liability and in the amount of $4,000,000 for professional errors and
omissions liability. Within ten (10) days of Customer's request,
CrossWorlds shall deliver to Customer either a certificate showing
CrossWorlds' compliance with this Section or certified copies of all
insurance policies required herein. Customer shall have the right under
the insurance policies to thirty (30) days' notice prior to the
termination of the coverage. CrossWorlds will provide thirty (30) days'
notice prior to the reduction in the amount or scope of coverage.
CrossWorlds' furnishing of insurance shall not release CrossWorlds of its
obligations or liabilities hereunder.
8.4. Product Warranties. (a) Except as otherwise set forth herein, CrossWorlds
warrants that (i) for so long as Customer is entitled to Maintenance and
Support under Section 7 of this Agreement, from the Effective Date, the
Software will operate in substantial conformity with the Documentation
and CrossWorlds will, at its own expense, upon receipt of written notice
from Customer and as Customer's sole and exclusive remedy repair or
replace the Software under the Maintenance and Support provisions so that
the Software so operates, and (ii) for ninety (90) days after Customer's
receipt of the media on which the Software and Documentation are
distributed, such media will be free from defects in materials and
workmanship under normal use and CrossWorlds shall, upon notice of
Customer's warranty claim and as Customer's sole and exclusive remedy,
replace such media; provided, however, that CrossWorlds shall be relieved
from any obligations under this Section 8.4 if Customer does not give
CrossWorlds reasonably prompt written notice of any defect claimed
hereunder after Customer's first observation of such defect and if such
delay causes additional degradation of the Software. CrossWorlds makes no
warranty that all immaterial errors or malfunctions will be corrected.
(b) All warranties made by CrossWorlds under this Section 8.4 are, and
all obligations of CrossWorlds shall be, contingent upon Customer's Use
of the Software in accordance with this Agreement and the Documentation,
and, to the extent that any of the following cause warranty failure, no
such warranties or obligations shall apply to any portion of the Software
that has been (a) installed or operated by Customer in a manner
materially inconsistent with the provisions of this Agreement and the
instructions for Use, (b) damaged by (i) negligence or misuse other than
by CrossWorlds or a party at the direction of CrossWorlds, without the
written approval of CrossWorlds or (ii) fire, casualty or other external
causes beyond CrossWorlds' reasonable control, (c) modified, altered, or
added to by persons other than CrossWorlds or CrossWorlds' authorized
representative without CrossWorlds' prior written approval (except
pursuant to the authorized Use of the Tools), (d) modified, altered, or
added to at Customer's request that causes the Software to deviate from
the Documentation, and prior to making such request, CrossWorlds gave
Customer notice that such modification, alteration, or addition will
cause the Software to deviate from the Documentation, or (e) customized
by CrossWorlds, Customer or a Third Party Consultant for Customer's use.
In addition, no such warranties or obligations shall apply to any portion
of the Software if Customer has failed to incorporate an Update
previously released and provided by CrossWorlds.
8.5. Representations and Warranties. CrossWorlds represents and warrants that:
(a) to the best of its knowledge it possesses all necessary rights and
authority to license to Customer the Software;
(b) to the best of CrossWorlds' knowledge, information and belief, no
Illicit Code is coded or introduced into the Software;
(c) CrossWorlds is as an organization duly incorporated, validly existing
and in good standing, and has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement;
(d) CrossWorlds is duly licensed, authorized or qualified to do business
and is in good standing in every jurisdiction in which a license,
authorization or qualification is required for the ownership or leasing
of its assets or the transaction of business of the character of this
transaction except where the failure to be so licensed, authorized or
qualified would not have a material adverse effect on CrossWorlds'
ability to fulfill its obligations under this Agreement;
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(e) the execution, delivery and performance of this Agreement have been
duly authorized by CrossWorlds;
(f) CrossWorlds has no, and during the term of this Agreement will not
enter into any, contractual or other obligations to any third party that
interferes with any rights of Customer hereunder;
(g) to the best of CrossWorlds' knowledge, the Software does not and will
not (i) infringe upon the patent, copyright, database right, trademark
rights or other rights of any third party or (ii) misappropriate the
trade secret or other intellectual property rights of any third party,
provided that the warranty stated in this sub-section (g) will not apply
to infringements or misappropriations that result from a misuse or
unauthorized modification of the Software by Customer; and
(h) the Software used by CrossWorlds pursuant to the Agreement is fully
Year 2000 Compliant (Year 2000 Compliant means that the Software, Tools
and Third Party Technology, at all times before, on, and after January 1,
2000, does and will accurately process and handle date and time data
(including, but not limited to, calculating, comparing and sequencing)
from, into, and between the twentieth and twenty-first centuries, and the
years 1999 and 2000, including leap year calculations, provided that all
other products (e.g., hardware, software and firmware) used in
combination with the Software properly exchange date data with it.
Customer's exclusive remedy, and CrossWorlds' sole obligation, for a
breach of the foregoing warranty shall be for CrossWorlds to use all
reasonable efforts to expeditiously achieve Year 2000 Compliance.
9. Limited Warranty, Limitation of Liability and Remedies.
9.1. Limited Warranty. EXCEPT FOR THE EXPRESS WARRANTIES AND UNDERTAKINGS SET
FORTH IN THIS AGREEMENT, CROSSWORLDS DISCLAIMS ALL WARRANTIES REGARDING
THE SOFTWARE INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
9.2. Limitation of Liability. Except as otherwise set forth in Section 10, in
no event shall either party be liable for consequential, incidental or
punitive loss, damage or expenses (including lost data, lost profits or
savings) even if it has been advised of their possible existence;
provided, however, that the foregoing limitations or exculpations of
liability shall not apply to (a) either party's liability (i) for claims,
demands, loss, damage or expense relating to bodily injury or death of
any person or damage to real and/or personal property, or (ii) resulting
from its gross negligence or willful, wanton, or reckless misconduct; or
(b) liability under (i) Section 8.2 (Illicit Code), (ii) Sections 8.5(a)
and 8.5(g) (proprietary rights), and (ii) Section 11 (Confidential
Information). Both parties' liability under this Agreement for damages
will not, in any event, exceed the license fees paid by Customer to
CrossWorlds under this Agreement, except as to gross negligence or
willful, wanton, or reckless misconduct by either party, in which case
the breaching party's liability to the other party under this Agreement
for damages will not, in any event, exceed three (3) times the license
fees paid by Customer to CrossWorlds under this Agreement.
9.3. Remedies. Except as expressly provided herein to the contrary, the rights
and remedies reserved to Customer and CrossWorlds in this Agreement shall
be cumulative with, and additional to, all other or further remedies
provided in law or equity.
10. Intellectual Property Infringement.
10.1. Third Party Claims. CrossWorlds agrees, at its expense, to indemnify,
hold harmless and defend Customer from and against any claim, proceeding
or action asserting that the Software (excluding trademarks of BEA
Systems and/or BEA WebLogic), in the form provided to Customer hereunder,
alone and not in combination with any other software or hardware not
provided by CrossWorlds, directly infringes any United States patent,
copyright, trade secret or other intellectual property right of a third
party ("Affected Software"), and CrossWorlds shall pay the damages
awarded and/or any settlements entered into for such infringement,
subject to the terms and conditions set forth below. Customer may elect,
at its expense, to have its own counsel assist in its defense of any such
action. CrossWorlds' obligations under this Section 10 do not include
payment for any enhanced damages or attorneys' fees arising out of claims
of willful infringement made against Customer, unless based on the
actions or inaction of CrossWorlds. CrossWorlds will not be obligated to
provide such defense or payment unless: (i) Customer provides CrossWorlds
with written notice of any such claim within thirty (30) days of receipt
by Customer of such claim; (ii) Customer allows CrossWorlds to control
the defense and/or settlement of the proceeding or action with counsel of
its choice; (iii) CrossWorlds has agreed in writing prior to any
settlement entered into by Customer to which CrossWorlds shall not
unreasonably withhold its consent; and (iv) Customer provides CrossWorlds
with reasonable assistance in connection with such proceeding or action
at no charge to CrossWorlds for Customer's time. Notwithstanding anything
to the contrary herein, CrossWorlds shall not enter into a settlement
without first obtaining Customer's consent, which shall not be
unreasonably withheld. If Customer's use of the Affected Software is
enjoined, CrossWorlds will, at its sole discretion and at its own
expense:
10.1.1. procure for Customer the right to continue using the Affected
Software;
10.1.2. replace the Affected Software with substantially similar
non-infringing software;
10.1.3. modify the Affected Software so it will become non-infringing
without impairing the performance of the Software. If CrossWorlds is
unable reasonably to do any of the above,
10.1.4 Customer shall be entitled to terminate this Agreement, obtain
return of the Affected Software and credit to Customer a portion, if any,
of the License Fee equal to the amount paid by Customer for the Affected
Software less one-sixtieth (1/60) thereof for each month or portion
thereof that this Agreement has been in effect.
10.2. Exclusions. If a third party brings a claim, action or proceeding for
infringement against CrossWorlds arising out of (i) CrossWorlds'
compliance with Customer's designs, specifications or instructions, (ii)
Customer's use of other than the then-current version of the Software, if
such infringement would have been avoided by Customer's use of the
then-current version; or (iii) any modifications or marking of the
Software not specifically authorized in writing by CrossWorlds or
pursuant to authorized use of the Tools, then CrossWorlds shall have no
liability under this Section 10 and Customer shall defend, indemnify and
hold CrossWorlds harmless from and against such claim, action or
proceeding provided (i) CrossWorlds provides Customer with written notice
of any such claim within thirty (30) days of receipt by CrossWorlds of
such claim; (ii) CrossWorlds allows Customer to control the defense
and/or settlement of the proceeding or action with counsel of its choice;
(iii) Customer has agreed in writing prior to any settlement entered into
by CrossWorlds to which Customer shall not unreasonably withhold its
consent; and (iv) CrossWorlds provides Customer with reasonable
assistance in connection with such proceeding or action at no charge to
CrossWorlds for CrossWorlds' time. Notwithstanding anything to the
contrary herein, Customer shall not enter into a settlement without first
obtaining CrossWorlds' consent, which shall not be unreasonably withheld.
10.2.5.Customer's obligations under Section 10.2 do not include payment for any
enhanced damages or attorneys' fees arising out of claims of willful
infringement made against CrossWorlds, unless based upon the actions or
inactions of Customer. Customer will not be obligated to provide such
defense or payment unless (i) CrossWorlds provides Customer with written
notice of any such claim within thirty (30) days of receipt by
CrossWorlds of such claim; (ii) CrossWorlds allows Customer to control
the defense and/or settlement of the proceeding or action with the
counsel of its choice; (iii) Customer has agreed in writing prior to any
settlement entered into by CrossWorlds, to which Customer will not
unreasonably withhold its consent; and (iv) CrossWorlds provides to
Customer with reasonable assistance in connection with such proceeding or
action at no charge to Customer for CrossWorlds' time.
11. Confidential Information.
11.1. General. Each party acknowledges that the Confidential Information of the
other constitutes valuable trade secrets and each party agrees that it
shall use the other party's Confidential Information solely in accordance
with the provisions of this Agreement and will not disclose, or permit to
be disclosed, the same, directly or indirectly, to any third party
without the disclosing party's prior written consent. Each party agrees
to exercise due care in protecting the Confidential Information of the
other party from unauthorized use and disclosure. However, a party bears
no responsibility for safeguarding the Confidential Information of the
other party that is publicly available, already in such party's
possession and not subject to a confidentiality obligation, obtained by
such party from third parties without restrictions on disclosure,
independently developed by such party
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without reference to the information of the other party, or required to
be disclosed by order of a court or other governmental entity.
11.2. Remedies. In the event of actual or threatened breach of the provisions
of Section 11.1, the non-breaching party will have no adequate remedy at
law and will be entitled to immediate and injunctive and other equitable
relief, without bond and without the necessity of showing actual money
damages.
12. Term and Termination.
12.1. Term. This Agreement will take effect on the Effective Date and
will remain in force until terminated in accordance with this Agreement.
12.2. Termination by Customer. Customer may, by written notice to CrossWorlds,
terminate this Agreement if CrossWorlds is in material breach of any
term, condition or provision of this Agreement, which breach is not
cured within thirty (30) days after Customer gives CrossWorlds written
notice of such breach.
12.3. Termination by CrossWorlds. CrossWorlds may, by written notice to
Customer, terminate this Agreement if any of the following events
("Termination Events") occur:
12.3.1. Customer fails to pay any amount due CrossWorlds within thirty (30) days
after CrossWorlds gives Customer written notice of such nonpayment; or
12.3.2. Customer is in material breach of any non-monetary term, condition or
provision of this Agreement, which breach is not cured within thirty
(30) days after CrossWorlds gives Customer written notice of such
breach; or
12.3.3. Customer: (a) terminates or suspends its business; (b) becomes
insolvent, admits in writing its inability to pay its debts as they
mature, makes an assignment for the benefit of creditors, or becomes
subject to direct control of a trustee, receiver or similar authority;
or (c) becomes subject to any bankruptcy or insolvency proceeding under
any federal or state statutes or other statutes of the country in which
it is organized.
If any Termination Event occurs, termination will become effective
immediately or on the date set forth in the written notice of
termination. Termination of this Agreement will not affect the
provisions regarding Customer's or CrossWorlds' treatment of
Confidential Information, provisions relating to the payment of amounts
due, governing law and dispute resolution procedures or provisions
limiting or disclaiming either party's liability or duty of
indemnification (so long as the event giving rise to the duty of
indemnification occurred during the term of the Agreement), which
provisions will survive termination of this Agreement.
12.4. Effect of Termination. The later of thirty (30) days after the date of
termination or discontinuance of this Agreement for any reason
whatsoever or after the end of any Transition Period (as defined in
Section 12.5), Customer shall return the Software and all copies except
for an archival copy of the Software and Documentation, in whole or in
part, all Documentation relating thereto, and any other Confidential
Information in its possession that is in tangible form and destroy/erase
any Confidential Information in electronic form, and CrossWorlds shall
return all Confidential Information acquired from Customer in its
possession that is in tangible form and destroy/erase any such
Confidential Information in electronic form. Customer and CrossWorlds
shall furnish the other party with a certificate signed by its executive
officer verifying that the same has been done.
12.5. Transition Assistance. CrossWorlds acknowledges and agrees that the
Software provided to Customer and Affiliates hereunder is critical to
the central mission of Customer and Affiliates. In the event of the
expiration or other termination of this Agreement, CrossWorlds shall, if
requested by Customer or an Affiliate, continue the parties' rights and
obligations hereunder pro rata for one (1) period of 30 days (the
"Transition Period") and cooperate in good faith with Customer and
Affiliate and their agents to transition Customer and Affiliates,
including without limitation, providing, to the extent available,
applicable requirements, standards, policies, operating procedures and
other documentation and unwritten information relating to the
environment affected by the transition out of this Agreement and
complying with other reasonable requests of Customer and Affiliates (the
"Transition Assistance Services"). If requested, CrossWorlds shall
assist Customer and Affiliates in developing a plan which shall specify
the tasks to be performed by the parties in connection with the
Transition Assistance Services and a schedule for performance of those
tasks. Following the Transition Period for a period not to exceed 30
days thereafter and to the extent not already complied with, CrossWorlds
shall answer all reasonable and pertinent verbal or written questions
from Customer or Affiliates regarding the Software and the transition on
as "as needed" basis and deliver to Customer or Affiliates any remaining
information and materials of Customer or Affiliates that are in
CrossWorlds' possession, custody or control. CrossWorlds shall transfer
or assign, upon Customer's or the Affiliate's request and where
appropriate, to the extent such rights are available and assignable, any
third party contracts applicable to the performance of CrossWorlds'
obligations under the Agreement. CrossWorlds acknowledges and agrees
that it has an absolute and unconditional obligation to provide Customer
and Affiliates with Transition Assistance Services at the quality and
level of performance during the Transition Period that would be required
during the regular term of the Agreement. In the event that an entity or
unit of Customer or Affiliates, or the business or part thereof, is sold
or otherwise divested (the "Divested Entity"), CrossWorlds shall, upon
request, provide the foregoing Transition Assistance Services to the
Divested Entity and to the extent that such Divested Entity does not
qualify as an Affiliate during the first three (3) years of the term of
this Agreement, CrossWorlds shall not unreasonably withhold CrossWorlds'
consent to the assignment of the rights under this Agreement to the
Divested Entity as set forth in Section 13, and provided that such
Divested Entity shall agree in writing, prior to accessing the Software,
(i) to enter into an agreement with CrossWorlds containing substantially
similar terms and conditions as set forth in this Agreement, and (ii)
CrossWorlds may enforce such written agreement directly against such
Divested Entity.
13. Non-assignment/Binding Agreement. Neither this Agreement nor any rights
under this Agreement may be assigned or otherwise transferred by
Customer or CrossWorlds, in whole or in part, whether voluntary or by
operation of law, including by way of sale of assets, merger or
consolidation, without the prior written consent of the other party,
which consent will not be unreasonably withheld. Subject to the
foregoing, this Agreement will be binding upon and will inure to the
benefit of the parties and their respective successors and assigns.
14. Notices. Any notice required or permitted under the terms of this
Agreement or required by law must be in writing and must be: (a)
delivered in person; (b) sent by first class registered mail, or air
mail, as appropriate; or (c) sent by overnight air courier, in each case
properly posted and fully prepaid to the appropriate address set forth
below. Either party may change its address for notice by notice to the
other party given in accordance with this Section 13. Notices will be
considered to have been given at the time of actual delivery in person,
three (3) business days after deposit in the mail as set forth above, or
one (1) day after delivery to an overnight air courier service.
To Customer at:
Mr. James E. Hackett
Manager--Purchasing
Delphi Automotive Systems, LLC
5725 Delphi Drive
Troy, MI 48098-2615
USA
To CrossWorlds Contract Administrator at:
577 Airport Blvd., Suite 800
Burlingame, CA 94010
USA
15. Miscellaneous.
15.1. Force Majeure. Neither party will incur any liability to the other party
on account of any loss or damage resulting from any delay or failure to
perform all or any part of this Agreement if such delay or failure is
caused, in whole or in part, by events, occurrences, or causes beyond
the control and without negligence of the parties. Such events,
occurrences, or causes will include, without limitation, acts of God,
strikes, lockouts, riots, acts of war, earthquake, fire and explosions,
but the inability to meet financial obligations is expressly excluded.
15.2. Waiver. Any waiver of the provisions of this Agreement or of a party's
rights or remedies under this Agreement must be in writing to be
effective. Failure, neglect, or delay by a party to enforce the
provisions of this Agreement or its rights or remedies at any time, will
not be construed and will not be deemed to be a waiver of such party's
rights under this Agreement and will not in any way affect the validity
of the whole or any part of this Agreement or prejudice such party's
right to take subsequent action.
Page 5
<PAGE>
15.3. Severability. If any term, condition, or provision in this Agreement is
found to be invalid, unlawful or unenforceable to any extent, the parties
shall endeavor in good faith to agree to such amendments that will
preserve, as far as possible, the intentions expressed in this Agreement.
If the parties fail to agree on such an amendment, such invalid term,
condition or provision will be severed from the remaining terms,
conditions and provisions, which will continue to be valid and
enforceable to the fullest extent permitted by law.
15.4. Integration. This Agreement (including the Attachments and Appendices and
any addenda hereto signed by both parties) contains the entire agreement
of the parties with respect to the subject matter of this Agreement and
supersedes all previous communications, representations, understandings
and agreements, either oral or written, between the parties with respect
to said subject matter, except as provided in Section 1.3 with respect to
the definition of "Confidential Information."
15.5. Superseding Terms. No terms, provisions or conditions of any purchase
order, acknowledgment or other business form that Customer or CrossWorlds
may use in connection with the acquisition or licensing of the Software
will have any effect on the rights, duties or obligations of the parties
under, or otherwise modify, this Agreement, regardless of any failure of
CrossWorlds or Customer to object to such terms, provisions or
conditions, unless otherwise agreed in writing by the parties.
15.6. Amendment. This Agreement may not be amended, except by a writing signed
by authorized representatives of both parties.
15.7. Export. Customer may not export or re-export the Software without the
prior written consent of CrossWorlds and without the appropriate United
States and foreign government licenses. Customer shall comply fully with
all then current applicable laws, rules and regulations relating to the
export of technical data, including, but not limited to any regulations
of the United States Office of Export Administration and other applicable
governmental agencies
15.8. Publicity. Customer acknowledges that CrossWorlds may desire to use its
name in press releases, product brochures and financial reports
indicating that Customer is a customer of CrossWorlds, and Customer
agrees that CrossWorlds may use its name in such a manner; provided,
however, that Customer may, where commercially reasonable, in its sole
and absolute discretion, restrict such use in whole or in part.
15.9. Counterparts. This Agreement may be executed in counterparts, each of
which so executed will be deemed to be an original and such counterparts
together will constitute one and the same agreement.
15.10. Governing Law. The rights and obligations of the parties under this
Agreement shall not be governed by the 1980 U.N. Convention on Contracts
for the International Sale of Goods; rather, this Agreement shall be
governed by and construed in accordance with the laws of the State of
Michigan, without reference to its conflict of laws principles.
15.11. Arbitration. Any controversy or claim arising out of this Agreement shall
be settled by arbitration in Detroit, Michigan, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. Arbitration shall be conducted by a
panel of three (3) members, CrossWorlds and Customer each selecting one
member and the third member, who shall be chairman, selected by agreement
between the other two members. The chairman shall be an attorney-at-law,
and the other members shall have a background or training in computer
law, computer science, or marketing of computer products. Notwithstanding
the foregoing, neither party shall be precluded from seeking equitable
relief, and may invoke the jurisdiction of any competent court, to remedy
or prevent violation of any provision relating to payment, refund,
Confidential Information or the intellectual property of CrossWorlds or
its suppliers.
IN WITNESS WHEREOF, duly authorized representatives of the parties
have executed this Agreement.
CrossWorlds Software, Inc. Customer
/s/ Mark R. Kent /s/ James E. Hackett
------------------------------- ---------------------------
Authorized Signature Authorized Signature
Mark R. Kent James E. Hackett
------------------------------- ---------------------------
Name Name
12/10/99 12/21/99
------------------------------- ---------------------------
Date Date
Page 6
<PAGE>
ATTACHMENT B
to
CROSSWORLDS SOFTWARE AND SUPPORT LICENSE AGREEMENT
SUPPORT RESPONSE SCHEDULE
CrossWorlds Customer Support will make commercially reasonable efforts to
respond to error reports according to the following schedule:
- -------------------------------------------------------------------------------
Customer-Assigned Error Response Time Patch/Update
Classification
- -------------------------------------------------------------------------------
Urgent: System down or 1 business hour Continuous effort until
data corruption patch is delivered
- -------------------------------------------------------------------------------
High Impact: Major 4 business hours Continuous effort until
function is disabled patch is delivered.
Prioritized after urgent.
- -------------------------------------------------------------------------------
Medium Impact: 8 business hours Monthly
Non-essential function is
disabled
- -------------------------------------------------------------------------------
Low Impact: All other 7 business days On a selected basis
problem reports
- -------------------------------------------------------------------------------
The Customer must supply a reproducible problem for schedule to apply.
Non-reproducible errors will be addressed by reasonable efforts, but shall not
be bound by the above schedule.
Page 7
<PAGE>
THIRD PARTY TECHNOLOGY APPENDIX
to
CROSSWORLDS SOFTWARE AND SUPPORT LICENSE AGREEMENT
The following terms and conditions of this Third Party Technology Appendix
("Appendix") shall be included in the Agreement:
Visigenics
1) For all Visigenics products embedded within the Software, Customer will not
decompile, disassemble or otherwise reverse engineer the Visigenic product.
2) Customer may use the licensed Visigenic software on a designated
server/processor for each license the Customer acquires. The total number of
server/processors may not exceed the number of licenses acquired.
3) The Visigenic product is not designed or licensed for use in hazardous
environments requiring fail-safe controls, including without limitation
operation of nuclear facilities, aircraft navigation or communication systems,
air traffic control, and life support or weapons systems. Visigenic specifically
disclaims any express or implied warranty of fitness for such purposes.
TSI
1) For all TSI products embedded within the Software, Customer may not (a)
reverse-compile, disassemble or translate the TSI products; or (b) disclose or
use the TSI products outside the scope of the embedded license.
WebLogic Software
For all WebLogic Software bundled with the CrossWorlds Products, Customer may
not decompile, decipher, disassemble, reverse engineer or otherwise decrypt the
WebLogic Software.
IBM MQ Series
For the IBM Products bundled with the CrossWorlds Products described in the
Agreement: (a) the IBM Products cannot be further copied or transferred except
as noted herein; and (b) the Customer may not reverse assembly, reverse compile,
or otherwise translate any of the IBM Products; and (c) the IBM Product is
copyrighted and licensed (not sold) and title to the IBM Products is not
transferred; and (d) the owner of the IBM Products "DISCLAIMS ALL WARRANTIES
WITH RESPECT TO THE USE OF THE IBM PRODUCT(S) INCLUDING (WITHOUT LIMITATION) ANY
WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE"; AND (e) the
owner of the IBM Products liability is limited to the amount paid by the
Customer for the IBM Products.
Licenses for Third-Party Technology
The Software may require third-party technology ("Third-Party Technology") which
may be licensed through CrossWorlds (the "Runtime License") or directly as a
full license from a third-party licensor approved by CrossWorlds ("Full
License") and such licenses shall be specified in Attachment A. Such Full
License shall be restricted to such extent required to implement those
restrictions imposed on Customer directly by such third-party licensor. The
Agreement shall be suspended automatically if, for any reason: (a) Customer
fails to obtain or maintain a Runtime License or Full License; or (b) Customer's
Runtime License or Full License expires or terminates prior to the termination
of the Agreement. Such suspension shall remain in effect until (a) and/or (b) in
the previous sentence has/have been rectified and written notice to that effect
given by Customer to CrossWorlds. CROSSWORLDS MAKES NO REPRESENTATIONS OR
WARRANTIES AS TO THE THIRD-PARTY TECHNOLOGY OR ITS OPERATION. Third Party
Technology licensed through CrossWorlds is subject to all the terms and
conditions of the Agreement that apply to the Software except where specifically
indicated otherwise. In the event of any conflict between this Third Party
Technology Appendix and the Agreement, this Third Party Technology Appendix
shall govern.
CrossWorlds Software, Inc. Customer
/s/ Mark R. Kent /s/ James E. Hackett
- --------------------------------- ---------------------------------
Authorized Signature Authorized Signature
Mark R. Kent James E. Hackett
- --------------------------------- ---------------------------------
Name Name
12/01/99 12/21/99
- --------------------------------- ---------------------------------
Date Date
Page 8
<PAGE>
CROSSWORLDS SOFTWARE AND SUPPORT LICENSE AGREEMENT
ATTACHMENT A
Environment: HP
Type/Model No.:
Operating System - NT or UNIX: NT
Software Version: 2.0.1
Third Party Consultant:
Site(s): The Initial Sites within the Enterprise (as defined below) are the
following: Chassis, Saginaw, Interior, Delphi E, Aftermarket Group,
Delco, Packard, and Thermal.
Customer shall provide thirty (30) days written notice to CrossWorlds before
adding any additional implementations and the Site locations for such
implementations.
All references in the Agreement to the term "Site" shall incorporate the
following definition of "Enterprise" for the purposes of this Attachment A.
"Enterprise" is hereby defined as Customer (including all current divisions and
future successors of those divisions) and all Affiliates for which
implementation of the Software has commenced and the Software has been installed
during the three (3) year period following the Effective Date of this Agreement
(the "Initial Period"). The licensing rights granted under this Agreement are
perpetual, fully paid-up and royalty free (and as such, shall not terminate at
the end of the Initial Period) to all entities comprising the Enterprise so long
as Customer has fully paid the License Fee set forth on this Attachment A (the
"Enterprise License", which includes the right to make a reasonable number of
copies for such implementations of the Software subject to the terms and
conditions of this Agreement). Customer divisions and any affiliates for which
implementation has not commenced or the Software has not been installed during
the Initial Period shall not be included within the scope of the Enterprise
License, and if Customer requests that a license to the Software be granted to
any such entities, the parties shall negotiate the terms of such license in good
faith and expeditiously. Customer shall notify CrossWorlds in writing within
thirty days (30) upon any change to the total number of copies of the Server
Software (as defined below) that are in use by Customer, and Customer shall have
thirty (30) days after receipt of written notice from CrossWorlds to cure its
failure to so timely notify. Sixty (60) days prior to the end of the Initial
Period, the parties shall negotiate in good faith any new terms to or renewal of
the Agreement.
Net License Fees: [*] (the "License Fee")
Maintenance Fees first year: [*]; second year: [*]; third year:
[*].
Customer shall pay fees due hereunder in accordance with its Multilateral
Netting System ("MNS-2"), which provides on average that payment shall be on the
second day of the second month following the shipment of product or receipt of
services.
1. Software licensed to Customer pursuant to the above-referenced Agreement
consists of the following Software which is to be installed on the
Environment at the specified Site(s).
Software Description Total Servers at all Sites
Server Software:
CrossWorlds Interchange Server [*]
(Each Server includes a maximum of one
production and two non-production Servers)
Total Quantities at all Sites
Connectors:
SAP [*]
ODBC Connector [*]
JText [*]
Oracle Database Connector [*]
Collaborations:
Customer Manager [*]
Contact Manager [*]
BOM Manager [*]
Item Manager [*]
Installed Product [*]
Service Contracts [*]
Inventory Level [*]
Inventory Adjustments (Goods Receipt) [*]
Department Manager [*]
Employee Manager [*]
Invoice Generation [*]
Purchase Order Processing [*]
Sales Order Status [*]
Vendor Manager [*]
Price List Manager [*]
AR Invoice [*]
Customer Credit Status [*]
GL Movement [*]
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
<PAGE>
Software Description Number of Development Users
Tools:
CrossWorlds Designer [*]
Third Party Technology:
Third Party Licenses provided by CrossWorlds/1/:
[X] Visigenics Visibroker
[X] IBM MQ Series
[_] IBM MQ Series Integrator
[X] WebLogic JDBC Driver
[_] Mercator ERP Event Server (combines former Execution Engine and ODBC
Connectivity)
[_] Mercator ERP Integration Station (formerly Authoring System)
Third Party Licenses provided by Vendor if applicable/2/:
Oracle Database
Oracle Programmer 2000
Oracle SQL *Plus
2. Maintenance Services shall begin upon the Effective Date of the Agreement.
3. Within thirty (30) days after the Effective Date of the Agreement CrossWorlds
("CW") will demonstrate the utility of its software by completing two initial
interfaces.
______INITIALS
These interfaces are:
1. API (Annual Physical Inventory) Interface
Step 1: CW will use its SAP Connector to retrieve data from a
Delphi-provided custom SAP IDOC into a CW Business Object. CW will
transform the data values in this business object according to
Delphi-provided transformation rules. During this transformation CW
will perform any necessary code conversions by accessing tables in
the CW CrossReference database (code conversion values to be provided
by Delphi). After transformation, CW will send the converted business
object to the CW Jtext Connector. CW will configure the Jtext
connector's Dynamic Formatter to convert the business object into an
ASCII Flat file which meets Delphi-provided file-format
specifications. The resulting flat file will be delivered to a
specified subdirectory on any Delphi-designated MS Windows file
system (appropriate network access and security clearance to be
provided by Delphi).
__________INITIALS
Step 2: The CW Jtext connector will be configured to poll for the presence
of a 'response' file in a designated subdirectory. When an
appropriately named file (containing Annual Physical Inventory count
information) is detected, the Jtext connector will build a CW
Business Object Incorporating the data from the flat file. CW will
transform the data values in this business object according to
Delphi-provided transformation rules. During this transformation
CrossWorlds will perform any necessary code conversions by assessing
code conversion tables in the CW CrossReference database (code
conversion values to be provided by Delphi). After transformation, CW
will send the converted business object to the CW SAP Connector. CW
will configure the SAP Connector to deliver the values in the
business object to a Delphi-developed custom SAP IDOC. The result
will be the update of inventory count values in the Delphi SAP
system.
__________INITIALS
2. Lockbox Interface
The CW Jtext connector will be configured to poll for the presence of a
Cash Receipts flat file in a designated subdirectory. When an appropriately
named file (containing A/R Cash Receipts data) is detected, the Jtext connector
will build a CW Business Object Incorporating the data from the flat file. CW
will transform the data values in this business object according to
Delphi-provided transformation rules. During this transformation CrossWorlds
will perform any necessary code conversions by accessing code conversion tables
in the CW CrossReference database (code conversion values to be provided by
Delphi). After transformation, CW will send the converted business object to the
CW SAP Connector. CW will configure the SAP Connector to deliver the values in
the business object to a standard SAP IDOC. The result will be the posting of
Cash Receipts Information in the Delphi SAP system.
__________INITIALS
[*]
- ---------------------------------
/1/ See Third Party Technology Appendix
PR\301822\1
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
<PAGE>
[*]
4. [*], CW will immediately begin development of the TMS BOM interface. This
interface will involve moving complex manufacturing Bill of Material Information
from Delphi's SAP system to General Motors' Tax Management System.
__________INITIALS
The functional requirements for this interface include:
. Assessment whether the currently provided Delphi-developed custom SAP
function modules populate the custom SAP IDOC efficiently.
. Determination as to whether the assessment warrants either (a) modifications
to the relevant SAP ABAP code or (b) a complete rewrite of this code. If
warranted, CW resources will provide these modifications of rewrites as
required
. Creation of a custom CW collaboration and required custom business objects
. Creation of custom CW maps which will spawn two destination business objects
(each holding all required source information, but configured differently)
1. BusObj1 will be designed as appropriate to meet the file format
specifications required by the EDS Gateway. (EDS Gateway to perform
required Packing and EBCDC conversion)
2. BusObj2 will be designed as appropriate to meet the file format
specifications of the General Motors' Tax Management System
. Delivery of both business objects to instances of the CW Jtext connector
which will build the appropriate flat files
. If necessary (for creation of the flat file capable of being imported
directly by the GM Tax Management System) CW will provide Packing and EBCDC
conversion capabilities through a custom Dynamic Formatter used by the CW
Jtext connector.
__________INITIALS
IN WITNESS WHEREOF, duly authorized representatives of the parties have
executed this Attachment A to the CrossWorlds Software and Support License
Agreement.
CrossWorlds Software, Inc. Customer
/s/ Mark R. Kent /s/ James E. Hackett
- -------------------------- -------------------------
Authorized Signature Authorized Signature
Mark R. Kent James E. Hackett
- -------------------------- -------------------------
Name Name
12/10/99 12/21/99
- -------------------------- -------------------------
Date Date
PR\301822\1
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
<PAGE>
INDEPENDENT AUDITORS' REPORT
ON SCHEDULE AND CONSENT
The Board of Directors
Crossworlds Software, Inc. and Subsidiaries
The audits referred to in our report dated January 24, 2000, included the
related financial statement schedule as of December 31, 1999, and for each of
the years in the three-year period ended December 31, 1999 included in the
registration statement. This financial statement schedule is the responsibility
of the Company's management. Our responsibility is to express an opinion on
this financial statement schedule based on our audits. In our opinion, such
financial statement schedule, when considered in relation to the basic
consolidated financial statements taken as a whole, presents fairly in all
material respects the information set forth therein.
We consent to the use of our reports included herein and to the reference to
our firm under the headings "Selected Consolidated Financial Data" and
"Experts" in the prospectus.
/s/ KPMG LLP
Mountain View, California
February 15, 2000
