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EXHIBIT 10.13
MASTER ALLIANCE AGREEMENT BETWEEN
DOCENT, INC. AND ANDERSEN CONSULTING LLP
THIS MASTER ALLIANCE AGREEMENT (this "Alliance Agreement") is made and entered
into as of March ___, 2000 (the "Effective Date") by and between Docent, Inc. a
_____________ corporation, with a place of business at 2444 Charleston Road,
Mountain View, CA 94043 ("Docent") and Andersen Consulting LLP, an Illinois
partnership, with a place of business at 200 Public Square, Ste. 1900,
Cleveland, OH 44114 ("Andersen Consulting") on behalf of and for the benefit of
all entities throughout the world comprising the Andersen Consulting Worldwide
Organization (as defined below).
WHEREAS, Docent is a software company that develops and markets enterprise
learning software solutions and provides related products and services
(collectively referred to as "Docent Products");
WHEREAS, Andersen Consulting is a consulting services firm that provides
business integration services and other consulting services; and
WHEREAS, the parties desire to create a framework and structure for a strategic
alliance (the "Alliance") under which the parties jointly would pursue
opportunities to market Docent Products and identify opportunities for Andersen
Consulting to provide integration and other consulting services.
NOW, THEREFORE, the parties, in consideration of the mutual promises made
herein, agree as follows:
1. ALLIANCE OVERVIEW AND GOALS
(a) Background. Docent, Inc., is a leader in enterprise learning automation,
delivering software solutions based on innovative learning technology
which enable companies to create, deliver, and administer learning and
assessment material via corporate intranets or the Internet with a single
solution, and integrate the resulting data with other enterprise
applications.
Andersen Consulting is a leading provider of business integration services
delivering integration services, learning content aggregation and delivery
services, business process management services, hosting services, and
consulting services (collectively referred to herein as "Consulting
Services").
(b) Purpose. The parties wish to form a strategic Alliance in order to pursue
opportunities to market Docent Products and identify opportunities for
Andersen Consulting to provide Consulting Services.
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(c) Objectives. The parties anticipate working together in a number of ways
pursuant to this Alliance Agreement with the goal of forming a win/win
relationship to maximize the potential revenues and profitability of each
party. Docent's primary goals in connection with the Alliance are to
expand Docent's sales pipeline and enhance its ability to deliver Docent
Products and to support Andersen Consulting's position as a leader in
eLearning. Andersen Consulting's primary goals in connection with the
Alliance are to generate "pull-through" consulting revenue, direct
revenues from Docent's sale of software licenses and content subscription
fees, and increase the market capitalization value of Docent.
(d) Scope of Business Development Efforts. The scope of the Alliance
relationship will be global and cross industry. The initial focus of
business development will be North America; however, the parties intend
that their efforts will expand geographically as opportunities and mutual
resource plans evolve. In order to implement the Alliance on a global
scale, it is understood that all the rights and benefits of this Alliance
Agreement inure to the benefit of any entity comprising the Andersen
Consulting Worldwide Organization (i.e., any Andersen Consulting entity
having a Member Firm Interfirm Agreement with Andersen Worldwide or any
successor entity to Andersen Worldwide, or any other entity controlling,
controlled by or under common control with such an entity or a partner of
Andersen Worldwide or any successor entity).
(e) Implementation in Other Countries. This Alliance Agreement is the overall
framework for the Alliance between Andersen Consulting and Docent;
however, it is understood that in some cases, specific implementation of
this relationship in countries other than the US will require that local
country addendum be added to this Alliance Agreement from time to time,
executed by the Andersen Consulting entity in the country and an entity
representing Docent; the intent is that such addendum will not modify the
terms of this Alliance Agreement except to the extent necessary to reflect
local business conditions and legal requirements. Docent or its
representatives will not enter into any agreements with third parties in
any country outside the US with respect to implementation of Docent
Products without consideration of the objectives and terms of this
Alliance Agreement. Likewise, Andersen Consulting will not enter into any
agreements without consideration of the objectives and terms of this
Alliance Agreement.
(f) Nature of Relationship. The parties agree to cooperate in implementing
this Alliance Agreement, to conduct the Alliance in a spirit of
collaboration and partnership, and to focus their efforts to build a
significant and profitable relationship beneficial to both parties;
notwithstanding anything herein to the contrary, however, this Alliance
Agreement is non-exclusive in nature, and nothing in this Alliance
Agreement is intended to or shall be deemed to create a corporation,
partnership, joint venture, or other legal entity of any kind or for any
purpose as between the parties. The parties shall be and remain
independent contractors at all times.
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(g) Other Opportunities. Each party shall, at all times remain free to decline
to pursue a specific opportunity in its discretion and may work with
another product or services provider. Neither party shall have any
authority to, or shall attempt to, bind or commit the other party for any
purpose without the express written consent of the other. Subject to its
obligations of confidentiality and intellectual property rights described
in this Alliance Agreement, in no event shall either party be precluded
from developing or providing for itself, or for others, materials which
are competitive with the products and services of the parties,
irrespective of their similarity to the Work Products. In addition, each
party shall be free to use its general knowledge, skills and experience,
and any ideas, concepts, know-how, and techniques within the scope of its
business that are used or developed in the course of sharing information
with the other party.
2. ALLIANCE ACTIVITIES
(a) Key Alliance Activities. The parties have identified three activities as
the key aspects of the Alliance: Joint Marketing; Joint Business
Development; and Joint Solution Delivery and Capability Development. Each
is described below:
(1) Joint Marketing. The parties' objectives for this component are to
increase market share of Docent Products and Andersen Consulting's
consulting services, increase market image and awareness of Docent as
a provider of enterprise learning automation software and solutions,
and position Andersen Consulting as an innovative and technology savvy
eLearning solution provider. In order to achieve these objectives,
Andersen Consulting and Docent will, as part of the overall Alliance
Relationship Plan (described in Paragraph 4 (c) of this Alliance
Agreement), create and execute a joint marketing plan which
articulates the parties' overall collaborative marketing strategies
and associated activities and will guide all market-facing activities
during joint marketing activities. The initial plan will be drafted
within thirty to forty-five days following the Effective Date of this
Alliance Agreement and will then be reviewed quarterly and updated
annually by the parties.
In developing the initial plan, the parties agree to identify, and to
focus their efforts on pursuing, opportunities, which have the highest
probability of closing prior to Docent's initial public offering. On
an ongoing basis, the parties will target companies characterized as
among the Fortune 500 Global 2000, as well as rapidly scaling
companies, as identified by the parties. The parties will share with
each other a list of companies with whom each company has been
pursuing or has established a relationship. Where possible, the
parties will direct their attention to identifying and coordinating
their efforts on those companies with whom one of the parties has a
pre-existing relationship. The parties will develop the plan with a
focus on the priority list of targeted companies. The plan will
include their market
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offerings and establish a framework for enhancing current offerings
and developing and enhancing new "go-to-market" offerings. The plan
will address the following:
. Identify the Target Markets / Segments
. Determine the Joint Solution(s)
. Plan the Route(s) to Market
In developing the joint marketing plan, the parties will create,
collect or assemble materials which support the parties' activities,
such as: executive briefings, success stories, articles, press
releases, joint publications, descriptions of product roll-
outs/launches, descriptions of new market offerings, and technical
documentation and materials, joint collateral, direct marketing
campaigns, business and trade events such as seminars, trade shows,
speaking opportunities, sales team instructions, sales kick-off/sales
meetings and referral programs.
(2) Joint Business Development. The parties' objectives for this component
are to generate new business for both Docent and Andersen Consulting
by increasing business development efficiency in order to: (i)
increase the probability of winning accounts, and (ii) lower overall
business development cost and effort. In order to achieve these
objectives, Andersen Consulting and Docent will, as part of the
overall Alliance Relationship Plan, create a Business Development and
Teaming Guide which: outlines the principles of the parties' working
relationship; articulates account plans (including a list of targeted
clients and market segments); defines the approach to guide client
selection; identifies specific client targets ("Select Clients") and
market segments; establishes a joint opportunity pipeline and, defines
client development and opportunity management processes including the
rules of engagement between Andersen Consulting and Docent. The
initial plan will be drafted within thirty to forty-five days
following the Effective Date of this Alliance Agreement and will then
be updated annually by the parties.
The parties will manage the plan aggressively and review the plan at
least quarterly with each party's executive sponsors.
In connection with the parties' Joint Business Development activities,
the parties will review and consider enhancements to the prototype
they previously developed, and each party will train at least eight
people in advance of demand on each party's products and services.
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Docent will create a pool of options as an incentive for Docent's
sales people, to sell Andersen Consulting's services. These options
will be granted at various sales levels.
(3) Joint Solution Delivery and Capability Development. The parties'
objectives for this component are to generate higher client
satisfaction and increase solution delivery efficiency by: (i)
reducing risk of missed expectations, and (ii) lowering overall cost
and time associated with delivering value to clients. Key activities
will consist of Docent and Andersen Consulting collaborating to create
solution delivery capabilities to support the implementation of
Docent's learning software products at agreed upon clients including
trained personnel, and implementation methods and tools.
(b) Opportunity Development. In order to support the key Alliance Activities
described above and to develop opportunities consistent with purpose of
this Alliance, the parties will meet to discuss staffing of any jointly
targeted engagement prior to meeting with the prospective client. During
those meetings, neither Andersen Consulting nor Docent will recommend or
encourage clients to request specific individuals from the other
organization without written pre-authorization.
Each party shall provide the other with advance notice of opportunities to
offer or provide either Docent Products or Andersen Consulting's
Consulting Services, as the case may be, and each party will provide
commercially reasonable assistance to enable the other to pursue and to
negotiate an agreement to provide such Docent Products or Andersen
Consulting's Consulting Services to those clients.
Andersen Consulting will introduce Docent's products and services to those
Select Clients identified by Andersen Consulting, as well as to other
clients, other internal industry groups and Lines of Business, as it deems
appropriate, and will introduce members of the Docent sales force to the
Selected Clients as well as a mutually agreed list of target clients as
part of the agreed upon marketing program and with a manner consistent
with the guidelines set forth in the mutually agreed upon teaming
arrangements. Similarly, Docent will introduce Andersen Consulting to
those Selected Clients identified by Docent as well as to targeted Docent
clients.
The parties will endeavor to deliver complementary messages when marketing
each other's goods and services.
(c) Right of First Refusal. Consistent with the goals and objectives of this
Alliance Agreement, where, in the course of marketing or selling its
Docent Products, Docent identifies an opportunity for Andersen Consulting
to provide services to a Select Client, as identified by the parties'
Alliance Managers, Docent will advise Andersen
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Consulting, and Andersen Consulting will have the right to pursue the
opportunity on a right of first refusal, right of last refusal basis, or
other similar basis, as the parties may agree. Where the opportunity does
not involve a Select Client, Andersen Consulting will have the same rights
to pursue the opportunity unless Docent obtains the opportunity through a
third party and the third party is seeking to provide similar services as
to Andersen Consulting. The right is intended to enable Andersen
Consulting to provide Consulting Services to Select Clients and other
Docent clients, consistent with the purpose and intent of this Alliance
Agreement.
(d) Teaming Agreement. In the event the parties wish to jointly pursue an
opportunity, for example, in connection with an RFP, they will execute a
teaming agreement substantially in the form of the sample Teaming
Agreement set forth in Attachment A to this Alliance Agreement.
3. OPERATIONAL ASPECTS
(a) Training. Docent will provide free learning and related materials
for Andersen Consulting personnel to support installation of Docent
Products at Andersen Consulting clients and solutions centers, as well as
development of demonstrations and other Alliance related activities.
Andersen Consulting personnel will be given priority enrollment over all
other non-Docent customer participants in Docent learning classes.
Andersen Consulting will develop and train personnel consistent with the
annual marketing and sales process. Docent will provide Andersen
Consulting electronic copies of all Docent Product learning materials and
other documentation relative to Docent Products ("Docent Training
Materials") at no charge for the purposes of business development,
configuration center and project team skills development, and creation of
customer specific learning materials. Docent Training Materials will be
made available for internal use by Andersen Consulting. Access to Docent
Training Materials will be governed by the Software Licensing and Services
Agreement set forth in Attachment B to this Alliance Agreement.
Andersen Consulting personnel will be given enrollment priority over all
other business integration services providers that are not enrolled in
Docent learning as Docent customers and users of Docent's products.
(b) Access to Docent Products. In the course of working together, Andersen
Consulting will need access to Docent Products for sales and marketing,
customer projects, coordination with Docent sales organization. Docent
will license Docent Products to Andersen Consulting at no cost under the
terms of the Software Licensing and Services Agreement, set forth in
Attachment B to this Alliance Agreement. For the purpose of promoting
Docent Products, coordinating sales and marketing efforts with Docent
personnel, conducting learning and demonstrations of Docent Products,
developing
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market offerings, and providing configuration and integration services to
current licensees of Docent Products, Docent will provide, at no charge
application software licenses to Docent Products including but not limited
to current and pre-release software with all modifications, enhancements
and future releases of such software for use by Andersen Consulting
personnel for the term of this Alliance Agreement. In addition, Docent
will keep Andersen Consulting informed on future product releases by
providing Andersen Consulting with schedules and other details relating to
future product releases.
(c) Right to Demonstrate Docent Products. Andersen Consulting shall have the
right to demonstrate Docent capabilities associated with Andersen
Consulting Market Offerings and demonstrate Docent capabilities at
Andersen Consulting demonstration forums such as solution centers, launch
centers, and industry/learning seminars. Andersen Consulting shall have
the right to demonstrate Docent Products both to customer prospects and
internally with and without direct Docent participation.
(d) Use of Docent Products Within Andersen Consulting. Andersen Consulting may
choose to provide Docent Products to its organization in order to
facilitate their use as an integral part of Andersen Consulting's training
applications, and for internal business management. A separate Docent
Product license will be developed for piloting and rolling out Docent
Products for such use and Docent will provide Andersen Consulting with an
irrevocable, world-wide, license in such Docent Products, at no charge,
for Andersen Consulting's internal business purposes, through the end of
calendar year 2000. Under this internal use license, Andersen Consulting
will, no later than May 1, 2000, verify that it is a user of Docent
Products. Any decision to continue using the Docent Products or to license
additional Docent Products will be separately negotiated by the parties.
(e) Access to Docent Product Briefings. Docent also agrees to provide Andersen
Consulting personnel preferred access to Docent product briefings, user
group meetings, learning sessions and materials, and product documentation
at no charge to Andersen Consulting.
(f) Technical Support. At no charge to Andersen Consulting, Docent will
provide: (1) technical support assistance to Andersen Consulting
engagement teams who are assisting clients with the implementation of
Docent Products, (2) technical specialists for assistance during proof of
concepts or other pre-sales tasks for a limited period, and (3) access to
a technical support hotline for all Andersen Consulting business
integration and solution centers where Docent Products have been
implemented. Docent will build a team of people to support this Alliance
with Andersen Consulting. Docent shall maintain a sufficient number of
people to support Andersen Consulting in connection with the Alliance
consistent with the Marketing and Business Development Plan to be
developed by the parties.
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(g) Andersen Consulting Support of Docent Products. Docent will work with
Andersen Consulting to support Docent Products in Andersen Consulting's
Solution Centers and Ideas Exchange Centers and participate in the
operation of the centers by providing on-site technical resources and pre-
sales assistance, all in a manner agreed upon between Docent and Andersen
Consulting. Andersen Consulting may from time to time provide access to
Andersen Consulting developed software products and configuration
templates for Docent's evaluation of possible use in future releases of
Docent Products. Any such use may only be with the execution of a written
agreement granting Docent the rights to use the Andersen Consulting
materials upon terms and conditions (including, if appropriate, a
licensing fee and conditions on term and use) that are mutually acceptable
to Andersen Consulting and Docent.
(h) Responsibility for Products and Services. Each party shall be and remain
fully responsible for its products and services and for all licenses and
other arrangements with users of its products and/or services, including
providing warranties, maintenance and support. Each party shall remain
fully responsible for the activities of its personnel. Each party will
defend, indemnify, and hold harmless the other and its officers, partners,
employees and affiliates from and against any claim by any third party
arising out of, or in any way connected with, that party's products or
services, provided, however, that the indemnified party shall have given
prompt notice of the claim and shall make no settlement of such claim
without the express written consent of the indemnifying party.
(i) Subcontractor Relationships. Generally, Docent will be the licensor of its
product to end users, while Andersen Consulting will contract directly
with end users for Andersen Consulting's Consulting Services. The
foregoing notwithstanding, the parties understand that from time to time
the needs or desires of a prospective licensee of Docent Products may
require one of the parties to act as a prime contractor, with the other
acting as a subcontractor. Any such prime-subcontractor relationship shall
be pursuant to a separate written agreement between the parties for that
purpose. When such an agreement has been developed it will be used as the
basis to further such relationships as appropriate. Andersen Consulting
reserves the right to have Proquire LLC or another of Andersen
Consulting's affiliates, act as prime contractor for licensing of Docent
Product in such a situation.
(k) Payment Obligations. There shall be no payments or obligations to pay
between the parties except as expressly provided in this Alliance
Agreement. Except as expressly provided in this Alliance Agreement,
neither party shall have any right to share in any revenues derived by the
other, nor shall there be any sharing of revenue of any kind as a result
of joint marketing activities hereunder. Each party shall be fully
responsible for its costs or expenses in performing under this Alliance
Agreement except as expressly provided to the contrary in this Alliance
Agreement.
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(l) Pricing Model. Docent will not create pricing models nor discount
structures that position other partners more favorably than the Andersen
Consulting sales channel, assuming comparable relationships and level of
commitment by each party.
(m) Revenue Sharing. In all opportunities which the parties' Alliance Managers
agree qualify for revenue sharing under this Alliance Agreement, including
where Andersen Consulting introduces Docent to one of Andersen
Consulting's established clients, or where Andersen Consulting and Docent
are jointly marketing or selling their products and services pursuant to
this Alliance Agreement, which result in a revenue generating arrangement
with a third party, Andersen Consulting and Docent will share revenue in
accordance with the Revenue Sharing Model described in Attachment C to
this Alliance Agreement. The revenue sharing percentage due to Andersen
Consulting will be based on the Net License Fee. The Net License Fee shall
be the amount of license fees invoiced to the Client (exclusive of sales,
use, VAT, GST and excise taxes) without reduction for applicable
withholding taxes. Docent will not intentionally create disincentives or
penalties for its Docent employees, such as reduced commission,
compensation or any other manner for selling Docent Products or other
software or learning content to the clients targeted by the parties, other
Andersen Consulting clients, or clients within the targeted market
segments.
4. RELATIONSHIP AND INTERNAL MANAGEMENT
(a) Alliance Management Executive. The parties' objectives for this aspect of
the Alliance are to improve client satisfaction, create a win/win
relationship, and to drive the growth of each party's market share. In
order to accomplish these results, Andersen Consulting and Docent shall,
within thirty (30) days following the execution of this Alliance
Agreement, designate an Alliance Executive to be its principal
representative in connection with performance under this Alliance
Agreement. Each Alliance Executives will be responsible for promoting the
products or services of the other party within the Alliance Sponsor's
respective organization.
(b) Alliance Manager. Andersen and Docent shall also within thirty (30) days
following the execution of this Alliance Agreement designate an Alliance
Manager, responsible for the overall on-going and day-to-day management of
the relationship. The Alliance Managers shall meet/speak periodically, but
not less than monthly. The Alliance Manager will be the primary or first
point of contact for all relationship matters.
(c) Alliance Relationship Plan. The parties also shall, within forty-five (
45) days of the Effective Date of this Alliance Agreement, establish an
overall plan for fulfilling the objectives of this Alliance Agreement (the
"Alliance Relationship Plan").
(d) Changes. Either party shall have the right to change participants
described above by providing written notice to the other party, although
in any case a party's
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representatives shall always have sufficient seniority and authority for
the role, and shall be reasonably acceptable to the other party.
5. TERM AND TERMINATION
(a) Initial Term. The initial term of this Alliance Agreement shall be three
(3) years. Unless either party notifies the other at least ninety (90)
days prior to expiration of a term of its intent not to renew, this
Alliance Agreement shall renew for up to three additional two (2) year
terms on the terms set forth in this Alliance Agreement. Modifications to
this Alliance Agreement shall not be made except in writing executed by
both parties.
(b) Termination for Cause. Either party may terminate this Alliance Agreement
at any time for material breach by the other of any term of this Alliance
Agreement, provided it has given the other party prompt notice of the
breach, identifying specifically the breach, and provided further that the
breaching party has not cured the breach within thirty (30) days of its
receipt of the notice.
(c) Termination Without Cause. Either party may terminate this Alliance
Agreement at any time upon sixty (60) days prior written notice to the
other party, provided, however, that if as a result of their joint
marketing efforts, either party has entered into negotiations to provide
Docent Products or Andersen Consulting's Consulting Services, as the case
may be, then the termination shall not be effective until the completion
of such negotiations. Where one of the parties is acquired by, acquires,
or merges with a third party, divests itself of material segments of its
business, or reorganizes or files for relief under the bankruptcy laws,
the other party may terminate this Alliance Agreement immediately upon
notice of such event.
(d) Survival. Those sections of this Alliance Agreement which would by their
nature survive the termination of this Alliance Agreement, shall survive
termination of this Alliance Agreement for any purpose, as shall any
prime-subcontracts or licenses granted hereunder (which shall be governed
by their own terms).
6. TERMS AND CONDITIONS
(a) Intellectual Property Rights.
(1) Definitions.
"Work Products" shall mean all inventions, whether or not patentable,
know-how, original works of authorship, developments, improvements or
trade secrets (including but not limited to, computer software or
related product such as learning materials, product documentation,
presentations, marketing collateral, etc.).
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"Proprietary Rights" shall mean rights in any tangible or intangible
property that is protected by any letters patent, trade secret,
copyright, trademark, service mark, trade name or similar proprietary
rights recognized by common law or statute.
(2) Ownership of Docent Developed Work Products. Docent shall own all
Proprietary Rights in all Work Products developed by Docent. Such
Docent-owned Work Products, means all Work Products to which Docent
has materially contributed to the specification, design, coding,
documentation, quality assurance or support. Andersen Consulting
hereby assigns all Proprietary Rights in such Docent-owned Work
Products to Docent and agrees that such Docent-owned Work Products may
be used by Andersen Consulting only with Docent's prior written
consent. Notwithstanding the foregoing, Docent agrees that if any such
Docent-owned Work Products contain information which is confidential
to Andersen Consulting, it shall be used by Docent only in accordance
with the terms of the confidentiality provision set forth in the
Alliance Agreement. In general, all software and related products
developed by Docent personnel are solely owned and copyrighted by
Docent. In general, any computer software or related product (learning
materials, product documentation, presentations, marketing collateral,
etc.) upon which Docent contributes materially to the specification,
design, coding, documentation, quality assurance or support will be
classified as Docent-owned work product. Such products may be used by
Andersen Consulting only with the permission of Docent.
(3) Ownership of Andersen Consulting Developed Work Products. Andersen
Consulting shall own all Proprietary Rights in any Work Products
developed by Andersen. Such Andersen-owned Work Products means all
Work Products to which Andersen Consulting has materially contributed
to the specification, design, coding, documentation, quality assurance
or support. Docent hereby assigns all Proprietary Rights in such
Andersen-owned Work Products to Andersen Consulting and agrees that
such Andersen-owned Work Products may be used by Docent only with
Andersen's prior written consent. Notwithstanding the foregoing,
Andersen Consulting agrees that if any such Andersen-owned Work
Products contain information which is confidential to Docent, it shall
be used by Andersen Consulting only in accordance with the terms of
the Confidentiality Agreement. The Andersen-owned Work Products shall
include a copyright notice identifying Andersen Consulting as the
owner of the copyright therein. In general, any business integration
knowledge capital (ideas, concepts, packaged knowledge, methodologies
etc.) upon which Andersen Consulting contributes materially to the
specification, design, development or use will be classified as
Andersen Consulting-owned work product. Such products may be used by
Docent only with the permission of Andersen Consulting.
(4) Ownership of Jointly Developed Work Products. The parties' rights in
jointly developed Work Products shall be as provided in specific
written "Joint Development Agreements." The parties acknowledge that
for purposes of this Alliance Agreement, the joint Docent-Andersen
Consulting eLearning Prototype
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jointly developed by the parties under their Letter of Understanding,
dated January 21, 2000, shall be jointly owned by the parties with no
right nor obligation of accounting to the other.
(5) Pre-Existing Andersen Consulting Materials. In the course of the
development effort hereunder, the parties may conclude that pre-
existing Andersen Consulting proprietary materials might be
appropriate for use in connection with Docent Products. In such cases,
agreed by the parties in writing, Andersen Consulting will retain its
ownership in such materials and derivative works thereof and shall be
free to continue to use them without restriction, but may provide a
license to Docent to use or incorporate such materials with Docent
Products.
(b) Confidentiality. During the course of the Alliance, each party may be
given access to information (in hardcopy and/or electronic form) that
relates to the other's past, present, and future research, development,
business activities, products, services, and technical knowledge
(including but not limited to the Docent Products and Andersen
Consulting's Consulting Services). Such information which has been labeled
as confidential information, is identified by the disclosing party as
confidential information in a contemporaneous writing, or is provided
under circumstances in which the parties knew or reasonably should have
known from the circumstances of the disclosure that the information was
confidential, will be considered Confidential Information for purposes of
this Agreement. In connection therewith, the subsections set forth below
shall apply.
(1) The Confidential Information of the disclosing party may be used by
the receiver only in connection with the purposes of this Alliance
Agreement.
(2) Each party agrees to protect the confidentiality of the Confidential
Information of the other in the same manner that it protects the
confidentiality of its own proprietary and confidential information of
like kind, but in no event shall either party exercise less than
reasonable care in protecting such Confidential Information. Access to
the Confidential Information shall be restricted to Andersen
Consulting and Docent personnel engaged in a use permitted hereby.
(3) The Confidential Information may not be copied or reproduced without
the disclosing party's prior written consent.
(4) All Confidential Information made available hereunder, including
copies thereof, shall be returned or destroyed upon the first to occur
of (a) completion of the Services or (b) request by the disclosing
party, unless the receiver is otherwise allowed to retain such
Confidential Information.
(5) Nothing in this Agreement shall prohibit or limit either party's use
of information (including, but not limited to, ideas, concepts, know-
how, techniques, and methodologies) (i) previously known to it without
obligation of confidence,
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(ii) independently developed by or for it, (iii) acquired by it from a
third party which is not, to its knowledge, under an obligation of
confidence with respect to such information, or (iv) which is or
becomes publicly available through no breach of this Agreement.
(6) If either party receives a subpoena or other validly issued
administrative or judicial process requesting Confidential Information
of the other party, it shall provide prompt notice to the other of
such receipt. The party receiving the subpoena shall thereafter be
entitled to comply with such subpoena or other process to that extent
permitted by law. Services provided hereunder in no event include
Andersen Consulting acting as an expert witness or otherwise providing
litigation support services.
(c) Publicity. All press releases, publicity, marketing or sales materials, or
other materials developed by or on behalf of either party to further the
purposes of this Alliance Agreement that refer to this Alliance Agreement
or the relationship between the parties, or otherwise use the name or
trademark of the other party, shall be subject to prior review and written
approval by the Alliance Executive of the other party. Under no
circumstances, without prior written approval, shall either party
reference this relationship, and/or use either party's name, brand, and/or
logo in any external market communications, publications, websites, or in
any other manner. The parties may designate types or classes of materials
that will be previously approved by the parties and therefore do not
require additional approval at the time of use/issuance. Nothing in this
Alliance Agreement conveys any license or right to any trademark, service
mark, trade name or other name of either party. The foregoing
notwithstanding, either party may include factual descriptions of the
relationship between the parties in presentations without consent.
(d) Notices. Any notice or formal communication required or permitted under
this Alliance Agreement shall be in writing and delivered to the parties
at the following addresses:
If intended for Andersen Consulting:
Mr. Robert Lauer, Partner
Andersen Consulting: LLP
200 Public Square, Ste. 1900
Cleveland, OH 44114
#####-CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
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With copies of any notice of breach or other legal action to:
General Counsel
Andersen Consulting LLP
100 South Wacker Drive, Ste. 500
100 South Wacker Drive
Chicago, IL 60606
If intended for Docent:
Mr. Dave Ellett,
President and CEO
Docent, Inc.
2444 Charleston Road
Mountain View, California 94043
(e) Non-solicitation. Neither party shall, during the term of this Alliance
Agreement and a period of one year after termination hereof, solicit to
hire or solicit to retain in any form any personnel of the other to which
such party was exposed during the performance of this Alliance Agreement,
without prior mutual approval. The foregoing restriction shall not apply
to employment in response to general solicitations not directed to a
specific individual or group of individuals within either Docent's or
Andersen Consulting's organizations. Except where a party expressly
authorizes in writing in advance, should the other party solicit, offer
work to, employ, or contract with (whether as a partner, employee or
independent contractor, directly or indirectly) any of the party's
personnel during their participation in this Agreement, or during the
twelve (12) months thereafter, then such party shall pay to the other
party compensation equal to One-Hundred Fifty percent (150%) of the
annualized compensation paid or offered to such Personnel by that party.
Each party acknowledges that: (a) the other party has a valid interest in
maintaining a stable work force; (b) this provision is reasonably tailored
to that purpose; and (c) that the liquidated damages amount is a
reasonable approximation of the costs and damages that a party would incur
as a result of such action by the other party. For purposes of this
Alliance Agreement, "Personnel" includes any individual or company either
party engages as a partner, employee or independent contractor and with
which the other party comes into direct contact in the course of this
Alliance Agreement.
(f) Non-assignment. Neither this Alliance Agreement nor any of the rights or
obligations hereunder shall be assigned by either party without the prior
written consent of the other party, provided that Andersen Consulting may
assign this Alliance Agreement to any other entity within the Andersen
Consulting Worldwide organization via the local country addendum.
#####-CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
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(g) Entire Agreement. This Alliance Agreement, together with the Attachments,
constitutes the entire business agreement between the parties hereto and
supersedes any and all prior agreements, arrangements and/or
understandings between the parties relating to the subject matter hereof.
This Alliance Agreement shall not be deemed or construed to be modified or
amended except by written agreement of the parties. In no event shall
either party to this Alliance Agreement have any liability to the other
for any incidental, consequential, indirect or punitive loss, damage or
expense, even if it has been advised of its possible existence.
(h) No Waiver. The failure of either party at any time to require performance
by the other of any provision hereof shall in no way constitute a waiver
thereof unless waived in writing. Nor shall the waiver of any breach of
any provision hereof be held to be a waiver of any subsequent breach of
such provision or any other provision.
(i) Force Majeure. Neither party shall be liable for any delays or failure in
performance due to causes beyond its reasonable control.
(j) Indemnities.
(1) Docent shall defend, indemnify and hold harmless Andersen Consulting
and its partners and employees from and against any loss, claim,
damage or liabilities (or actions in respect thereof that may be
asserted by any third party) that may result from any third party
claims arising out of or relating to any use by a Docent customer of
any Docent Products and services provided by Docent and will reimburse
Andersen Consulting for all expenses (including counsel fees) as
incurred by Andersen Consulting in connection with any such action or
claim, except to the extent any such claim is covered by the foregoing
indemnity obligations of Andersen Consulting.
(2) Andersen Consulting shall defend, indemnify and hold harmless Docent
and its partners and employees from and against any loss, claim,
damage or liabilities (or actions in respect thereof that may be
asserted by any third party) that may result from any third party
claims arising out of or relating to Andersen Consulting's services to
an Andersen Consulting client and will reimburse Docent for all
expenses (including counsel fees) as incurred by Docent in connection
with any such action or claim, except to the extent any such claim is
covered by the preceding indemnity obligations of Docent.
(3) Upon notice by Andersen Consulting in writing of a third party claim
against Andersen Consulting that any Docent Product infringes any
patent, a copyright, a trade secret, or other intellectual property
right of any third party, Docent will defend such claim at its expense
and will pay any costs or damages that may be finally awarded against
Andersen Consulting. Docent will not indemnify Andersen Consulting,
however, to the extent that the claim of infringement is caused by (1)
Andersen Consulting's misuse or modification of Docent Product; or
#####-CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
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(2) Andersen Consulting's use of Docent Product in combination with
any product or information not owned or developed by Andersen
Consulting.
(4) The limit of each party's liability (whether in contract, tort,
negligence, strict liability in tort or by statute or otherwise) to
other, arising out of or in any manner related to this Alliance
Agreement, for any and all claims, shall not in the aggregate exceed
the sum of One Million Dollars ($1,000,000.00). In no event shall
either party be liable for consequential, incidental or punitive loss,
damage or expenses (including but not limited to business
interruption, lost business, or lost savings) even if it has been
advised of their possible existence. Any action by either party must
be brought within two (2) years after the cause of action arose.
(k) Conflict Resolution. The parties agree that in the event of a dispute or
alleged breach of this Alliance Agreement, they will work together in good
faith first to resolve the matter internally with the participation of the
Alliance Managers by escalating it to higher levels of management (first
to the Alliance Sponsor, then to the Alliance Executives) and then, if
necessary, to use a mutually agreed alternative dispute resolution
technique prior to resorting to litigation. This provision shall not apply
to disputes involving confidentiality or infringement of intellectual
property rights (in which case either party shall be free to seek
available remedies in any forum).
(l) Warranty. Each party agrees that its obligations and responsibilities
under this Alliance Agreement will be performed in a good and workmanlike
manner, and will reperform any work not in compliance with this warranty
brought to its attention within a reasonable time. Neither party makes and
representations or warranties to the other regarding specific results of
the joint or separate marketing activities under this Alliance Agreement
THE PRECEDING IS EACH PARTY'S ONLY WARRANTY MADE IN CONNECTION WITH THIS
ALLIANCE, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND
REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE.
(m) Governing law. This Alliance Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois, without regard to
its conflict of laws rules.
#####-CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
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IN WITNESS WHEREOF, the parties have executed this Alliance Agreement as of the
date set forth above.
Docent, Inc. Andersen Consulting LLP
_______________________________ _________#####_________________
Authorized Signature Authorized Signature
_______________________________ _________#####_________________
Name (Printed or Typed) Name (Printed or Typed)
_______________________________ _________#####_________________
Title (Printed or Typed) Title (Printed or Typed)
_______________________________ _______________________________
Date of Signature Date of Signature
#####-CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
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ATTACHMENT A TO THE
MASTER ALLIANCE AGREEMENT BETWEEN
DOCENT, INC. AND ANDERSEN CONSULTING LLP
_______________________________________________________________________________
SAMPLE TEAMING AGREEMENT
_______________________________________________________________________________
This Teaming agreement is entered into as of , by and between
Andersen Consulting LLP, an Illinois partnership with an office at 1661 Page
Mill Road, Palo Alto, California 94304 ("Andersen Consulting") and Docent, Inc.,
a California corporation with its principal office at ("Docent").
Whereas, (the "Client") has issued a Request for Proposal,
Number , (the "RFP") for (the "Project"); and
Whereas, Andersen Consulting intends to submit a proposal in response to
the RFP (the "Proposal"); and
Whereas, the parties have complementary capabilities not available within
their respective organizations, and it is to their mutual benefit to act as a
team for the purpose of preparing and submitting the Proposal for the Project;
and
Whereas, Andersen Consulting, if it received the contract award, would be
responsible for the Project, including overall project management, and would
contemplate subcontracting portions of the Project to other firms, including
Docent.
Now, therefore, in consideration of the premises and of the promises
exchanged herein, Andersen Consulting and Docent agree as follows:
ARTICLE 1 - PROPOSAL PREPARATION
1.1 The parties shall cooperate to (1) prepare the Proposal for presentation to
the Client in response to the RFP and (2) secure the contract for the Project.
1.2 Docent shall submit to Andersen Consulting all necessary technical and
business data and information concerning its proposed portion of the Project,
including accurate, current, complete and reasonable pricing data, for use in
preparation of the Proposal. Docent shall make available appropriate and high-
quality personnel to provide reasonable assistance to Andersen Consulting in the
preparation of the Proposal as directed by Andersen Consulting. Docent shall
not remove the personnel identified in Exhibit A from the Proposal preparation
effort without Andersen Consulting's consent.
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1.3 Andersen Consulting shall prepare the entire Proposal, integrate the
information provided by Docent and submit the Proposal to the Client. Andersen
Consulting shall include Docent's price for its proposed portion of the Project
in the Proposal. Andersen Consulting shall consult with Docent on all matters
regarding the content of the Proposal which concern the portion of the Project
to be performed by Docent prior to submission of the Proposal to the Client.
1.4 Andersen Consulting shall identify Docent as a proposed subcontractor and
describe Docent's Project responsibilities in the Proposal. As part of the
Proposal, Andersen Consulting shall work to secure Client approval of Docent as
a subcontractor.
1.5 Andersen Consulting shall be responsible for any contract negotiations with
the Client and, subject to Client approval, agrees to give Docent an opportunity
to be present at meetings with the Client which may concern Docent's proposed
portion of the Project.
1.6 Andersen Consulting agrees to consult with and obtain the concurrence of
Docent prior to making any Proposal change which affects Docent's proposed
portion of the Project.
1.7 Andersen Consulting agrees to keep Docent advised of all changes in the
Client's requirements and the probability of its receipt of the contract award.
1.8 Andersen Consulting shall use reasonable and commercial efforts after
submission of the Proposal to the Client to obtain the contract award, including
participation in oral presentations and preparation of best and final offers
mutually acceptable to Andersen Consulting and the Client, and Docent agrees to
assist in such effort as Andersen Consulting may reasonably require.
ARTICLE 2 - RELATIONSHIP OF THE PARTIES
2.1 The parties shall act as independent contractors in the performance of this
Teaming Agreement. Neither party shall act as, or be deemed to be, agent for or
partner of the other party for any purpose whatsoever, and the employees of one
party shall not be deemed the employees of the other party.
2.2 Nothing in this Teaming Agreement shall be construed to grant either
Andersen Consulting or Docent the right to make commitment of any kind for or on
behalf of the other party without prior written consent of the other party.
2.3 It is understood and agreed that, in the event a contract is awarded to
Andersen Consulting by the Client in response to its Proposal, Andersen
Consulting shall be the prime contractor. As a result of any contract award ,
Client shall purchase Docent Software directly from Docent, Inc..
2.4 Andersen Consulting shall not solicit from any other firm the specific
services and deliverables included in Docents' proposed portion of the Project,
unless the Client disapproves
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of Docent, the parties are unable to negotiate a subcontract agreement, this
Teaming Agreement is terminated pursuant to Article 7 below, or Docent agrees
thereto.
2.5 Docent agrees that during the term of this Teaming Agreement it shall not
in its own name, or in a teaming arrangement with a third party, prepare a
proposal in response to an RFP where Docent knows that Andersen Consulting is
preparing a proposal in response to the same RFP. It is understood, however,
that Docent may participate in the Project with another firm in the event such
other firm is awarded the contract.
2.6 All contacts with the Client with respect to the Proposal shall be the
responsibility of Andersen Consulting. Any contacts made by Docent with the
Client shall be only with the full knowledge, prior concurrence and
participation of Andersen Consulting.
2.7 During the term of this Teaming Agreement, and for a period of one year
immediately following the termination of this Teaming Agreement, neither
Andersen Consulting nor Docent shall knowingly make an offer of employment to
any officer, partner or employee of the other who is involved with the efforts
under this Teaming Agreement, without prior written approval of the other party.
ARTICLE 3 - PERFORMANCE
3.1 In the event of contract award to Andersen Consulting, subject to the
Client's approval, and provided Docent has complied with the terms and
conditions of this Teaming Agreement, the parties hereto shall immediately
commence good faith negotiations of a subcontract consistent with the terms of
this Teaming Agreement, encompassing Docent's proposed services and deliverables
for the Project and other appropriate tasks required by the prime contract.
Subject to the requirements of the prime contract with the Client, applicable
laws and regulations and agreement on other terms and conditions, the parties
shall enter into the subcontract. Andersen Consulting agrees to use its best
efforts to secure approval of the subcontract by the Client in the event such
approval is necessary. Andersen Consulting may, in its discretion, authorize
Docent to begin work, at the direction of Andersen Consulting, prior to
execution of the subcontract, subject to the terms hereof.
3.2 The specific work to be performed by Docent shall be defined in the
subcontract and/or in task orders issued thereunder by Andersen Consulting from
time to time. Exhibit A, attached hereto and incorporated herein by reference,
describes basic responsibilities and understandings of the parties under this
Teaming Agreement and to be addressed by the subcontract.
3.3 The subcontract with Docent shall include, among other appropriate
provisions, those provisions of the prime contract between Andersen Consulting
and the Client which, by the nature of the terms, are required to be flowed down
to a subcontractor, including but not limited to, the term of contract,
confidentiality, ownership of intellectual property, non-discrimination,
insurance, warranty, limitation of liability and indemnification. Docent shall
advise Andersen Consulting, prior to submission of the Proposal, of any clauses
or provisions
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of the RFP to which Docent takes exception; any clauses or provisions to which
exception is not taken may be included in the subcontract.
ARTICLE 4 - COSTS
4.1 Any and all costs, expenses, or liabilities of either Andersen Consulting
or Docent arising out of this Teaming Agreement or its implementation shall be
borne by each party separately and individually. Neither party shall be liable
or obligated to the other for any such cost, expense or liability.
ARTICLE 5 - PROPRIETARY INFORMATION
5.1 The parties anticipate that it may be necessary to provide access to
confidential and/or proprietary information to each other pursuant to this
Teaming Agreement in preparation of the Proposal and/or performance of Project
("Proprietary Information"). Proprietary Information shall be clearly
identified or labeled as such by the disclosing party at the time of disclosure.
Where concurrent identification of Proprietary Information is not feasible, the
disclosing party shall provide such identification as promptly thereafter as
possible.
5.2 Each of the parties agrees that it shall protect the confidentiality of
the Proprietary Information in the same manner as it protects its own
proprietary information of like kind. Disclosures of Proprietary Information
shall be restricted to those individuals who are directly participating in
preparation of the Proposal and other work related to the Project. The parties
shall return all Proprietary Information of the other upon the earlier of a
request by the disclosing party or upon termination of this Teaming Agreement,
unless a subcontract is executed by the parties.
5.3 Neither party shall reproduce, disclose or use Proprietary Information
except as follows:
5.3.1 Proprietary Information furnished by Andersen Consulting may be used by
Docent in performing its obligations under this Teaming Agreement.
5.3.2 Proprietary Information furnished by Docent may be used by Andersen
Consulting in performing its obligations under this Teaming Agreement, including
preparation of the Proposal for submission to the Client.
5.3.3 Proprietary Information furnished by Andersen Consulting or Docent may be
used in accordance with written authorization received from the disclosing
party.
5.3.4 If either party receives a subpoena or other validly issued
administrative or judicial process requesting Proprietary Information of the
other party or Proprietary Information of the Client which that party has
received from the other, it shall provide prompt notice to the other of such
subpoena or other process. The party in receipt of process shall thereafter be
entitled to comply with such process to the extent permitted by law.
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5.4 The limitations on reproduction, disclosure, or use of Proprietary
Information shall not apply to, and neither party shall be liable for,
reproduction, disclosure, or use of Proprietary Information of the other where:
a. Prior to the receipt under this Teaming Agreement, the information was
developed independently by the party receiving it, or was lawfully received from
other sources without an obligation of confidence, including the Client; or
b. Subsequent to the receipt under this Teaming Agreement, the information (i)
is published or otherwise disclosed to others by the disclosing party without
restriction, (ii) has been lawfully obtained from other sources by the party
that received the Proprietary Information, (iii) otherwise comes within the
public knowledge or becomes generally known to the public without breach of this
Teaming Agreement, or (iv) is independently developed by the party the received
the Proprietary Information.
5.5 Neither the execution of the Alliance Agreement, nor the furnishing of any
Proprietary Information by either party shall be construed as granting to the
other party expressly, by implication, by estoppel or otherwise, any license
under any invention, patent, trademark, copyright or other proprietary right now
or hereafter owned or controlled by the party furnishing same.
5.6 The provisions of this Article 5 shall survive termination of this Teaming
Agreement.
ARTICLE 6 - RIGHTS IN INVENTIONS
6.1 Inventions conceived pursuant to this Teaming Agreement shall remain the
property of the originating party. In the event of joint inventions, the
parties shall engage in good faith negotiations to establish their respective
rights. Failing agreement, each party shall have equal ownership and rights in
such joint inventions, without further obligation or accounting to the other
party. It is understood and agreed that Docent may be required to and shall
grant licenses or other rights to Andersen Consulting and/or the Client to
inventions, data, and information in accordance with the prime contract unless
exceptions to Rights in Data or similar contract clauses has been taken.
ARTICLE 7 - TERMINATION OF AGREEMENT
7.1 This Teaming Agreement shall expire upon the happening of one of the
following events, whichever occurs first:
a. Notice from the Client that it will not award a contract for the Project
pursuant to the RFP.
b. Notice from the Client of award of a contract for the Project to a firm
other than Andersen Consulting.
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c. Notice from the Client stating its disapproval of the use of Docent as a
subcontractor or direction to select someone other than Docent for the work
identified as Docent's responsibility in the Proposal; provided, however, that
if the Client disapproves the use of Docent for any reason that is curable,
Andersen Consulting will, in good faith, seek from the Client an opportunity to
have Docent cure such situation and thereafter resubmit Docent as a proposed
subcontractor for the Client's approval.
d. Execution of a subcontract by and between Andersen Consulting and Docent
for performance of portions of the Project.
e. The expiration of 12 months from the date of this Teaming Agreement;
provided, however, this Teaming Agreement shall be extended for one additional
year if a Proposal has been submitted and the Client has not provided written
notice as to contract award within the 12-month period.
f. Inability of the parties to execute a subcontract within sixty (60) days of
contract award and either party has given notice of its intent to terminate.
g. The Client so materially modifies the requirements of the Project that the
parties mutually deem it to be in their best business interests to withdraw from
this Teaming Agreement.
h. The insolvency, bankruptcy, reorganization under the bankruptcy laws, or
assignment for the benefit of creditors of either party.
i. Material breach of this Teaming Agreement by either party with such breach
remaining unremedied fifteen (15) days after receipt of notice of the breach.
j. Mutual agreement of the parties to terminate the Alliance Agreement.
ARTICLE 8 - PUBLICITY
8.1 If Andersen Consulting receives the contract award from the Client, either
party may issue a news release, public announcement, advertisement or any other
form of publicity concerning its role in the Project, provided such party
obtains prior written consent to such publication from the other and from the
Client, if required.
8.2 In their publicity the parties agree to give appropriate credit and
recognition to the participation of the other party to this Teaming Agreement in
a form acceptable to the other Party.
ARTICLE 9 - GENERAL
9.1 Any notices, requests, consents and other communications hereunder shall be
in writing and shall be effective either when delivered personally to the party
for whom intended, or five
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(5) days following deposit of the same into the United States mail (certified
mail, return receipt requested, or first class postage prepaid), addressed to
such party at the address set forth below:
a. If to Andersen Consulting to:
Attn:
b. If to Docent to:
Attn:
9.2 This Teaming Agreement may not be assigned or otherwise transferred by
either party, in whole or in part, without the express prior written consent of
the other party, except that Andersen Consulting may assign it to any other
affiliated entity of the Arthur Andersen Consulting Worldwide Organization. No
provision of this Teaming Agreement my be waived except by a writing by the
party to be charged nor may this Teaming Agreement be amended except by a
writing executed by both parties.
9.3 This agreement shall be governed and construed under the laws of the State
of Illinois.
9.4 Neither party shall be liable for delays or failure in performance due to
causes beyond its control.
9.5 The foregoing represents the complete and exclusive statement of the
agreement between the parties and supersedes any and all prior oral or written
agreements, proposals, commitments, understandings, or communications with
respect to the subject matter of this Teaming Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Teaming Agreement to be
executed, each by its duly authorized representative, as of the date first above
written:
DOCENT, INC ANDERSEN CONSULTING LLP
_________________________________ __________________________________
Authorized Signature Authorized Signature
_________________________________ __________________________________
Name (Printed or Typed) Name (Printed or Typed)
_________________________________ __________________________________
Title (Printed or Typed) Title (Printed or Typed)
_________________________________ __________________________________
Date of Signature Date of Signature
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EXHIBIT A
THIS IS ONLY A SAMPLE -- EXHIBIT A SHOULD BE TAILORED TO THE SPECIFIC
PROPOSAL EFFORT AND THE CONTEMPLATED CONTRACT
Additional Responsibilities of the Parties
In support of the proposal effort defined in the Teaming Agreement, and in
order to establish the basis for negotiation of a subcontract in the event
Andersen Consulting is awarded the prime contract for the Project, the following
detailed responsibilities are defined and agreed to by both parties.
1. General
a. Andersen Consulting shall have the overall project management
responsibility and final decision-making authority on all Project matters,
including those areas under responsibility of Docent.
b. Docent personnel shall work as members of the Project team, with assigned
tasks, deliverables and due dates. Assignments shall be made by Andersen
Consulting.
c. In order to facilitate coordination, communications and project control,
all Project work, including subcontracted work, shall be done at the designated
Andersen Consulting Project location. Exceptions will be made for those
activities requiring work to be done at the Client sites and certain activities
which may be done at Docent's site with prior Andersen Consulting approval.
d. Work status reviews, Quality Assurance reviews, and approvals of major
actions in all Project related matters shall be headed by Andersen Consulting,
with the participation of Docent's personnel as required. Final decision-making
authority rests with Andersen Consulting.
e. Quality Assurance procedures, the Change Control process, standards and
procedures, and project planning and reporting procedures for the overall
Project shall be established by Andersen Consulting, in concert with Docent and
approved by the Client.
f. Docent shall deal only with Andersen Consulting in all matters relating to
the work stated in the subcontract. Client communication shall be limited to
those aspects of obtaining or confirming information for the purpose of
performing the work subcontracted.
Decisions related to Project performance, status, system architecture or
any major issue affecting the Project, are to be discussed with Andersen
Consulting prior to joint discussion with the Client.
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g. Andersen Consulting reserves the right to approve assignment of Docent
personnel to the Project and to require replacement of Docent personnel during
the Project.
2. Areas of Responsibility of the Parties
2.1 Andersen Consulting
The following are Andersen Consulting responsibilities:
a. Proposal preparation, submission and further negotiations with the Client.
b. Overall Project Management and Control, including Quality Assurance,
Project Planning and Control, and Change Control functions.
c. Final decision-making authority for all Project matters, including
assignment of Docents.
d. Primary Client interface in all matters which could change the goals and
objectives established in the prime contract.
e. Reviewing, controlling and following up on all Project activities and
milestones, and prescribing corrective measures as required, including Docent
areas of responsibility.
f. Coordination with Docent as required by the Project.
g. Reporting the overall Project status and performance against plans
(including Docent work status) to the Client.
h. Administering the prime contract and subcontracts.
2.2 Docent [EXAMPLE -- FOR ILLUSTRATIVE PURPOSES ONLY]
The following are Docent responsibilities:
a. Assign personnel, as required, to complete approximately 1,600 hours in
tasks 1 and 2 through senior professionals experienced in:
. Alternative ADP hardware and software configurations, approaches and cost-
benefit analyses and documentation
. Support of development of RFPs and selection criteria and performance
criteria
. Support of installation and implementation planning.
b. Perform work tasks assigned and supervised by Andersen Consulting.
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c. Identify primary and secondary Docent personnel to assume responsibility
for work tasks assigned by Andersen Consulting.
d. Participate in Project activities as required by Andersen Consulting.
e. Discrete tasks?
f. In the Proposal effort. (key personnel) , and shall provide such
time as needed to perform Docents' obligations under this Teaming Agreement.
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ATTACHMENT B TO THE
MASTER ALLIANCE AGREEMENT BETWEEN
DOCENT, INC. AND ANDERSEN CONSULTING LLP
_______________________________________________________________________________
MODEL SOFTWARE LICENSING AND SERVICES AGREEMENT
________________________________________________________________________________
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (this "Software Licensing
Agreement") is between Docent, Inc., a California corporation ("Docent"), and
Andersen Consulting LLP, an Illinois limited liability partnership ("Andersen
Consulting").
The terms of this Software Licensing Agreement shall apply to each Program
License granted by Docent under this Software Licensing Agreement. When
completed by the parties, the Order Form(s) to this Software Licensing Agreement
shall evidence the Program Licenses granted and the services to be provided to
Andersen Consulting hereunder.
1. DEFINITIONS
1.1 "Program" or "Programs" shall mean the computer software in object code
form owned or distributed by Docent for which Andersen Consulting is granted a
Program License pursuant to this Software Licensing Agreement; the media upon
which such software is delivered to Andersen Consulting; the guides and manuals
for use of such software ("Documentation"); and Updates.
1.2 "Designated System" or "Designated Systems" shall mean the computer
hardware and operating system(s) designated on the Order Form(s).
1.3 "User System" shall mean the computer hardware and operating systems
operated by Users in the course of their employment with Andersen Consulting,
including notebook and portable computers.
1.4 "Server Programs" shall mean those portions of the Programs that reside and
operate on the Designated System.
1.5 "User Programs" shall mean those portions of the Programs that reside and
operate on User Systems.
1.6 "User" or "Users" shall mean an individual or individuals authorized by
Andersen Consulting to use specified Programs, regardless of whether the
individual is actively using the
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Programs at any given time. The maximum number of Users that may use the User
Programs or access the Server Programs consistent with the terms of Program
Licenses granted herein is specified on the Order Form(s).
1.7 "Limited Production Program" shall mean a Program which is not generally
licensed for commercial use by Docent or which is not listed in Docent's
generally available marketing literature or which is designated as a Limited
Production Program by Docent.
1.8 "Ancillary Program" shall mean third party software delivered with or
embedded in the Programs that is necessary for the operation of the Programs.
2. PROGRAM LICENSE
2.1 Rights Granted.
A. Docent grants to Andersen Consulting a nontransferable, nonexclusive
license to use the Programs which Andersen Consulting obtains under this
Software Licensing Agreement ("Program License") as follows:
i) To use the User Programs and Server Programs on a royalty free basis
solely in connection with Andersen Consulting's consulting activities, including
marketing, training, configuration, internal pilots, and integration of the
Server Programs at Andersen Consulting's client sites, which support marketing
and licensing of the Programs by Docent to other third parties, up to the
applicable maximum number of designated Users as set forth in the Order Form(s);
ii) To use the Documentation provided with the Programs on a royalty free
basis and in support of Andersen Consulting's authorized use of the Programs;
iii) To use the Programs in conjunction with other software products.
B. Andersen Consulting agrees not to cause or permit the reverse
engineering, disassembly or decompilation of the Programs.
C. Andersen Consulting agrees not to use Programs in connection with
Andersen Consulting's internal information management requirements other than
those activities described in 2.1.A.i above.
D. Docent shall retain all title, copyright and other proprietary rights
in and to the Programs. Andersen Consulting does not acquire any rights, express
or implied, in the Programs, other than those specified in this Software
Licensing Agreement. In no event shall Andersen Consulting be precluded from
developing for itself, or for others, materials which are competitive with
Docent Products, irrespective of their similarity thereto. In addition, Andersen
Consulting shall be free to use its general knowledge, skills and experience,
and any ideas, concepts, know-how, and techniques within the scope of its
consulting practice that are used in the course of sharing information with
Docent.
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E. To use a Program, Andersen Consulting may need to use an Ancillary
Program. The Ancillary Program may be used only in combination with Programs for
the purpose of installing or operating Programs as described on the Order
Form(s) or Documentation, and for no other purpose. Andersen Consulting shall
have no right to use Ancillary Programs in connection or combination with any
other software programs.
F. As an accommodation to Andersen Consulting, Docent may supply
Andersen Consulting with pre-production releases of Programs (which may be
labeled "Alpha" or "Beta"). Andersen Consulting acknowledges that these products
may not be suitable for general use.
G. Docent hereby represents and warrants that it has the right to
provide the Programs to Andersen Consulting under this Software Licensing
Agreement.
2.2 Transfer and Assignment. Andersen Consulting may transfer a Program within
its organization from the Designated System to another Designated System,
provided Andersen Consulting maintains a log showing the distribution of
Programs and provide Docent with written notification of such transfer.
2.3 Verification. At Docent's written request, not more frequently than
annually, Andersen Consulting shall furnish Docent with a certificate executed
by an officer of Andersen Consulting (a) verifying that the Programs are being
used pursuant to the provisions of this Software Licensing Agreement, including
any User and other limitations; and (b) listing the locations, types and serial
numbers of the Designated Systems on which the Programs are run.
Docent may, at its expense and upon thirty (30) days prior written notice
to Andersen Consulting, audit Andersen Consulting's use of the Programs. Any
such audit shall be conducted during regular business hours and shall not
unreasonably interfere with Andersen Consulting's business activities. Audits
shall be conducted no more than once annually.
3. TERM AND TERMINATION.
3.1 Term. Each Program License granted under this Software Licensing Agreement
shall remain in effect perpetually unless the Program License or this Software
Licensing Agreement is terminated as provided in Section 3.2 or 3.3.
3.2 Termination by Andersen Consulting. Andersen Consulting may terminate any
Program License at any time by providing written notice to Docent; provided,
however, that termination hereunder shall not relieve Andersen Consulting of its
obligations specified in Section 3.4.
3.3 Termination by Docent. Docent may terminate this Software Licensing
Agreement or any Program License in the event Andersen Consulting breaches any
obligation under this Software Licensing Agreement.
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3.4 Effect of Termination. Termination of this Software Licensing Agreement or
any license shall not limit either party from pursuing other remedies available
to it including injunctive relief. The parties' rights and obligations under
Sections 2.1.B, 2.1.D, and Sections 4 and 5 shall survive termination of this
Software Licensing Agreement.
3.5 Handling of Programs Upon Termination. If a Program License granted under
this Software Licensing Agreement terminates, Andersen Consulting shall: (a)
cease using the Programs, and (b) certify to Docent with ten (10) days after
expiration or termination that Andersen Consulting has destroyed or has returned
to Docent the Programs and all copies. This requirement applies to copies in all
forms, partial and complete, in all types of media and computer memory, and
whether or not modified or merged into other materials.
4. DISCLAIMERS AND LIMITATION OF LIABILITY.
4.1 Disclaimers. Docent makes no warranty or representation whatsoever
regarding the Programs or Documentation including but not limited to any express
or implied warranty, including any implied warranties of merchantability or
fitness for a particular purpose. Docent does not warrant that the Programs will
meet Andersen Consulting's requirements, that the Programs will operate in the
combinations which Andersen Consulting may select for use, that the operation of
the Programs will be uninterrupted or error-free, or that all Program errors
will be corrected.
4.2 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER
PARTY OF ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The provisions of this Software Licensing Agreement allocate the risks between
Docent and Andersen Consulting. Docent's pricing reflects this allocation of
risk and the limitation of liability specified herein.
5. GENERAL TERMS
5.1 Nondisclosure. By virtue of this Software Licensing Agreement, the parties
may have access to information that is confidential to one another
("Confidential Information"). Docent's Confidential Information shall include
but not be limited to the Programs, source code, algorithms, formulas, methods,
know how, processes, designs, new products, developmental work, marketing
requirements, marketing plans, Andersen Consulting names, prospective Andersen
Consulting names, the terms and pricing under this Software Licensing Agreement,
and all information clearly identified in writing at the time of disclosure as
confidential.
A party's Confidential Information shall not include information that: (a)
is or becomes a part of the public domain through no act or omission of the
other party; (b) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party
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either directly or indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by a third party without restriction on disclosure;
or (d) is independently developed by the other party. Andersen Consulting shall
not disclose the results of any performance tests of the Programs to any third
party without Docent's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Software Licensing Agreement and for a period
of five years after termination of this Software Licensing Agreement. The
parties agree, unless required by law, not to make each other's Confidential
Information available in any form to any third party or to use each other's
Confidential Information for any purpose other than the implementation of this
Software Licensing Agreement. Each party agrees to take all reasonable steps to
ensure that Confidential Information is not disclosed or distributed by its
employees or agents in violation of the terms of this Software Licensing
Agreement.
5.2 Governing Law. This agreement and all matters arising out of or relating to
this Software Licensing Agreement, shall be governed by the laws of the State of
California, excluding its conflict of law provisions.
5.3 Notices. All notices, including notices of address change, required to be
sent hereunder shall be in writing and shall be deemed to have been given upon
the date sent by confirmed facsimile or three (3) days following the date such
notice was mailed by first class mail, to the addresses first set forth above.
To expedite order processing, Andersen Consulting agrees that Docent may
treat documents faxed by Andersen Consulting to Docent as original documents;
nevertheless, either party may require the other to exchange original signed
documents.
5.4 Severability. In the event any provision of this Software Licensing
Agreement is held to be invalid or unenforceable, the remaining provisions of
this Software Licensing Agreement will remain in full force.
5.5 Waiver. The waiver by either party of any default or breach of this
Software Licensing Agreement shall not constitute a waiver of any other or
subsequent default or breach. Except for actions for nonpayment or breach of
Docent's proprietary rights in the Programs, no action, regardless of form,
arising out of this Software Licensing Agreement may be brought be either party
more than one year after the cause of action has occurred.
5.6 Export Administration. Andersen Consulting agrees to comply fully with all
relevant export laws and regulations of the United States ("Export Laws") to
assure that neither the Programs nor any direct product thereof are (i)
exported, directly or indirectly, in violation of Export Laws; or (ii) are
intended to be used for any purposes prohibited by the Export Laws, including,
without limitation, nuclear, chemical, or biological weapons proliferation.
5.7 Relationship Between the Parties. Docent is an independent contractor;
nothing in this Software Licensing Agreement shall be construed to create a
partnership, joint venture or agency relationship between the parties.
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5.8 Successors. This Software Licensing Agreement shall inure to the benefit of
the successors and assigns of Docent and, subject to the restrictions transfer
or assignment herein set forth, shall be binding upon the Andersen Consulting
and Andersen Consulting's successors and assigns.
5.9 Entire Agreement. This Software Licensing Agreement, together with the
exhibits, appendices and attachments hereto, constitutes the complete agreement
between the parties and supersedes all prior or contemporaneous agreements or
representations, written or oral, concerning the subject matter of this Software
Licensing Agreement and such exhibits, appendices and attachments. This Software
Licensing Agreement may not be modified or amended except in writing signed by a
duly authorized representative of each party; no other act, document, usage or
custom shall be deemed to amend or modify this Software Licensing Agreement.
The Effective Date of this Software Licensing Agreement shall be ______________,
2000.
Executed by Andersen Consulting LLP Executed by Docent, Inc.
Signature: ________________________ Signature: ___________________
Name: ___________________________ Name: ______________________
Title: ____________________________ Title: _______________________
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Schedule 1
Software License and Services Agreement Order Form
[and Local Country Addendum]
Software licenses and services shall be provided by Docent, Inc. ("Docent")
to Andersen Consulting LLP ("Andersen Consulting") pursuant to this Order Form
and the Software License and Services Agreement dated ________________, 2000
("Software Licensing Agreement").
Designated System (server): Hardware: _________________
Operating System: _________
Number of Authorized Users: ____________________________
User Programs Licensed: ____________________________
[Any terms that are required by local county legal differences should be
inserted here]
[If also serving as a local country addendum include:
By signing, the parties agree to be bound by the terms of the Master Alliance
Agreement as though they we parties thereto.]
Order Accepted and Acknowledged:
Andersen Consulting LLP Docent, Inc.
[or local country AC entity] [or local country Docent entity]
Signature:
Name:
Title:
Date:
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ATTACHMENT C TO THE
MASTER ALLIANCE AGREEMENT BETWEEN
DOCENT, INC. AND ANDERSEN CONSULTING LLP
_______________________________________________________________________________
REVENUE SHARING MODEL
_______________________________________________________________________________
Each of the initial deal types provides sources of revenue to the alliance.
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Deal Type Instant Proga Full-scale
Revenue Source Infrastructure Deployme Implementati
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##### # # #
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* Andersen Consulting will be the primary provider of hosting services and
Docent will provide software maintenance and support.
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
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Scenario 1
. #####
. #####
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Scenario 1 - ##### Revenue Orignation
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Alliance
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Additional Services
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##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
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Scenario 2
. #####
. #####
. #####
. #####
. #####
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Scenario 2 - ##### Revenue Orignation
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##### #####
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Alliance
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Additional Services
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##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
Page 13 of __
