<PAGE>
EXHIBIT 10.16
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
OEM LICENSE & DISTRIBUTION AGREEMENT
This OEM License and Distribution Agreement (the "Agreement") is entered into as
of AUGUST 31, 1999 ("Effective Date") by and between Autonomy, Inc., a New
Jersey corporation, with offices located at 301 Howard Street, San Francisco,
California 94105 ("Autonomy") and CORECHANGE INC. a Delaware corporation, with
its principal place of business at 260 FRANKLIN ST, SUITE 1890, BOSTON MA 02110
("Licensee").
[LOGO]
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the following terms
shall mean:
a. "APPLICATION" means the software application program(s) specified in
ATTACHMENT A which are created by Licensee using the Development
Software, and which contain portions of the Runtime Software as well as
additional content and data developed or licensed by Licensee for use
by Licensee's end users and customers on the Licensed Platform(s).
Applications shall not provide end users with any access to any portion
of the Development Software (E.G., development tools or libraries).
b. "DEVELOPMENT SOFTWARE" means the development tool components or
application programming interfaces ("API's") of the Software used to
develop Applications.
c. "LICENSED PLATFORM" means the computer platform(s), computer
language(s), operating systems or versions thereof specified in
ATTACHMENT A on which Licensee is licensed to use the Software and to
create and distribute Applications.
d. "RUNTIME SOFTWARE" means the portion of the Software, embedded in an
Application, which enables end users to run the Application on the
Licensed Platform(s).
e. "SOFTWARE" means the Development Software, the Runtime Software and any
other computer programs (including API's and user interfaces) set forth
in ATTACHMENT A, in object code form only, and any applicable
documentation, along with any updates, modifications or new releases of
such programs and any portions thereof (including embedded or runtime
versions), which may be provided by Autonomy to Licensee from time to
time in accordance with the terms and conditions of this Agreement.
f. "TERRITORY" means worldwide.
2. LICENSE GRANT; RESTRICTIONS; OWNERSHIP; ACCEPTANCE.
a. LICENSE GRANT. Subject to all the terms and conditions of this
Agreement, Autonomy grants to Licensee a nonexclusive, nontransferable,
royalty bearing license:
(i) to use the Development Software and related Runtime Software to
create or compile Applications for use on the Licensed Platforms only
in accordance with the applicable documentation provided by Autonomy.
Except as provided in Sections 2(a)(ii) and 2(b) below, Licensee shall
have no right to make or use multiple copies of the Development
Software or use the Development Software on more than one (1) computer
unless it has paid the applicable development fees for each such copy
or use as specified in Attachment A; and
(ii) to copy the Runtime Software, for marketing and distribution of an
Application (a) in object code form, only as part of or embedded in an
Application, (b) directly or indirectly to end-users for their internal
purposes only, without the right of such end-users to develop
additional Applications, (c) for use on the Licensed Platforms and (d)
pursuant to a written license agreement (which may be a
click-and-accept or "shrink-wrap" agreement) that disclaims all
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Autonomy, Inc. OEM Agreement; page 2
warranties and liabilities on behalf of Autonomy and contains software
and proprietary right protection and restrictions, government use,
export restriction, confidentiality and terms and conditions
substantially similar or at least as restrictive as those set forth in
Autonomy's End User License Agreement, a copy of which is attached
hereto as ATTACHMENT C.
b. RESTRICTIONS. Except as expressly provided in Section 2(a), and, except
for one copy solely for back-up purposes, Licensee shall not copy the
Software or any portion thereof. Licensee must reproduce and include
all copyright and any other notices that appear on the original
Software, any copies of the Software, any Application and any media
therefor. Licensee shall not, and shall not allow any third party to:
(i) decompile, disassemble, or otherwise reverse engineer any source
code or underlying ideas or algorithms or file formats or
programming or interoperability interfaces of the Software or of
any files contained in or generated using the Software by any
means whatsoever;
(ii) remove any product identification, copyright or other proprietary
notices or disclaimers for the Software;
(iii)provide, lease, lend or use the Software for timesharing or
service bureau purposes;
(iv) use the Software to develop computer programs that are designed to
enable application developers to create additional applications or
application development tools; or
(v) take any action contrary to Autonomy's end-user license agreement
except as expressly and unambiguously allowed under this
Agreement.
c. NONEXCLUSIVE. The license granted in Section 2(a) is nonexclusive.
Accordingly, nothing in this Agreement shall be construed as limiting
in any manner Autonomy's marketing or distribution activities or its
appointment of other OEMs, dealers, distributors, licensees or agents
either within or outside of the Territory.
d. OWNERSHIP. Notwithstanding anything else, Autonomy and its licensors
retain (i) all title to, and, except as expressly and unambiguously
licensed herein, all rights to the Software, all copies and derivative
works thereof (by whomever produced) and all related documentation and
materials, (ii) all of their service marks, trademarks, trade names or
any other designations, and (iii) all copyrights, patent rights, trade
secret rights and other proprietary rights in the Software.
e. DELIVERY AND ENHANCEMENTS. Autonomy shall deliver the initial
reproducible copy of the Software in a mutually agreeable format within
seven business days after the Effective Date. All subsequent release
versions, updates or enhancements, if any, shall be delivered to
Licensee as soon as is commercially practicable after their general
commercial release, but in no event later than delivery to any other
comparable customer of Autonomy entitled to the same release versions,
updates or enhancements.
3. PAYMENT TERMS; RIGHT OF AUDIT.
a. Licensee agrees to pay the fees and royalties for the Software and
Applications as specified in Attachment B hereto. Licensee shall be
responsible for and pay all taxes (except Autonomy's U.S. income
taxes), duties and other governmental assessments relating to its use
of the Software and the marketing and distribution of Applications. All
late payments shall be assessed a service fee of one and one-half
percent (1.5%) per month, to the extent allowed by law.
b. Licensee shall provide to Autonomy, within fifteen (15) days after the
end of each calendar quarter, written reports of the total number of
copies, the city and state (or country) to which they are distributed,
and the applicable royalty payments therefor, of each Application
containing any portion of the Software distributed by or for Licensee
or its sub-distributors or Licensees. Such reports shall accompany the
royalty payments specified in Attachment B.
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Autonomy, Inc. OEM Agreement; page 3
c. Upon notice from Autonomy, Licensee shall provide Autonomy with access
to Licensee's books of account for the purpose of performing an audit
of the fees and royalties associated with Licensee's use and
distribution of the Software pursuant to this Agreement at Licensee's
location where such books are ordinarily kept. If, as a result of such
audit, Autonomy determines that Licensee has underpaid Autonomy,
Autonomy shall notify Licensee of the amount of such underpayment and
Licensee shall promptly pay to Autonomy the amount of the underpayment,
plus interest in the amount of one and one-half percent of such amount
(or the highest rate of interest allowable by law, whichever is
higher), calculated from the date of receipt by Licensee of the
underpaid amount until the date of payment to Autonomy. In the event
any such audit reveals an underpayment to Autonomy of five percent (5%)
or more of the fees and royalties associated with Licensee's use and
distribution of the Software pursuant to this Agreement, Licensee shall
reimburse Autonomy for the reasonable out-of-pocket costs of such
audit. Licensee shall retain records and supporting documentation, for
such period of time as may be reasonably necessary, sufficient to
document the fees and royalties associated with Licensee's use and
distribution of the Software pursuant to this Agreement. Autonomy may
only conduct such an audit once very calendar year.
4. LICENSEE COVENANTS AND REPRESENTATIONS. Except as provided herein, Licensee
represents, warrants and agrees that:
a. Licensee shall comply with good business practices and all laws and
regulations relevant to this Agreement or the subject matter hereof and
further that all advertising and marketing materials relating to the
Software, Applications and/or Autonomy shall, be accurate in all
respects. Upon the request of Autonomy, Licensee shall cooperate with
Autonomy to devise and issue a joint press release concerning
Licensee's selection and use of Autonomy's products. In its
distribution efforts, Licensee shall use the then current names, marks
and designations used by Autonomy for the Software ("Marks") but shall
not represent or imply that it is Autonomy or is a part of Autonomy;
provided that all advertisements and promotional materials, packaging
and anything else bearing a Mark shall identify Autonomy as the Mark
owner and Software manufacturer and shall be subject to prior written
approval of Autonomy, which approval shall not be unreasonably withheld
or delayed, and, provided further, that no other right to use any name
or designation is granted by this Agreement. Licensee also agrees not
to use or contest, during or after the term of this Agreement, any
name, mark or designation used by Autonomy anywhere in the world (or
any name, mark or designation similar thereto). Licensee acknowledges
and agrees that all use of the Marks by Licensee shall inure to the
benefit of Autonomy;
b. Licensee shall keep Autonomy informed as to any problems encountered
with the Software and any resolutions arrived at for those problems,
and may provide any communicate feedback, modifications, design changes
or improvements relating to the Software suggested by any distributor,
Licensee, Autonomy, employee or agent. Licensee further agrees that
Autonomy shall have any and all right, title and interest in and to any
such suggested feedback, modifications, design changes or improvements
of the Software, without the payment of any additional consideration
therefor either to Licensee, or its distributors, Licensees, employees,
agents or vendors;
c. Licensee shall keep for three (3) years after termination of this
Agreement records of all distribution of Applications and customers
sufficient to adequately administer a recall of any Software and to
fully cooperate in any decision by Autonomy to recall, retrieve and/or
replace any Software;
d. Licensee shall promptly notify Autonomy of any infringement by any
third party of any Marks or any patent rights, copyrights, trade secret
rights or other proprietary rights relating to the Software. Autonomy
may, in its sole discretion, take or not take whatever action it
believes is appropriate in connection with any such infringement. If
Autonomy elects to take action, Licensee agrees to reasonably cooperate
in connection therewith at Autonomy's expense. If Autonomy initiates
and prosecutes any action under this Section 4(g), all legal expenses
(including court costs and attorneys' fees) shall be for Autonomy's
account and Autonomy shall be entitled to all amounts awarded by way of
judgment, settlement or compromise;
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Autonomy, Inc. OEM Agreement; page 4
e. Licensee shall comply with the U.S. Foreign Corrupt Practices Act
(regarding among other things, payments to government officials) and
all export laws, restrictions, national security controls and
regulations of the United States or other applicable foreign agency or
authority, and not to export or re-export, or allow the export or
re-export of the Software or any copy or direct product thereof in
violation of any such restrictions, laws or regulations, or to any
Group D:1 or E:2 country (or any national of such country) specified in
the then current Supplement No. 1 to Part 740, or, in violation of the
embargo provisions in Part 746, of the U.S. Export Administration
Regulations (or any successor regulations or supplement), except in
compliance with and with all licenses and approvals required under
applicable export laws and regulations, including without limitation,
those of the U.S. Department of Commerce.
5. SUPPORT AND MAINTENANCE. Licensee shall be responsible for all technical
support of its customers; Autonomy shall provide technical support and
assistance to Licensee for the Software on the Licensed Platforms pursuant to
Autonomy's standard support and maintenance terms and conditions, as set forth
in Attachment D hereto. During the term of this Agreement, Licensee shall pay
the applicable fees for such support as provided in Attachment D.
6. WARRANTY; DISCLAIMER; INDEMNITY.
a. [1] Autonomy warrants that for a period of sixty (60) days from the
Effective Date that the Software shall perform substantially in
accordance with the accompanying documentation. This warranty covers
only problems reported to Autonomy during the warranty period. Licensee
shall handle and be responsible for all warranty returns from its
direct and indirect customers. Software which does not comply with the
foregoing warranty and is returned (by Licensee only) to Autonomy
during the warranty period (as shown by appropriate documentation)
shall be promptly repaired or replaced at Autonomy's option. The
performance of the Software may vary with various manufacturers'
equipment with which it is used and Licensee understands that Autonomy
is not responsible for and shall have no liability for hardware,
software, or other items or any services provided by any persons other
than Autonomy. This warranty does not extend to any Software that is
modified or altered other than by Autonomy or at Autonomy's direction,
is not maintained to Autonomy's maintenance recommendations or is
operated in a manner other than that specified by Autonomy. Licensee's
sole remedy with respect to any warranty or defect is as stated in this
subsection.
[2] Autonomy further warrants that (a) the entering into and
performance of this Agreement by Autonomy does not and will not
violate, conflict with or result in a material default under any other
contract, agreement, indenture, decree, judgment, undertaking,
conveyance, lien or encumbrance to which Automony or any of its
affiliates is a party; (b) Automony has and shall have all requisite
rights to grant to licenses with respect to the Software as granted
hereunder; (c) the Software as delivered will contain no computer
viruses, booby traps, time bombs or other programming designed to
interfere with the normal functioning of the Software, or Licensee's or
an end-user's equipment, programs or data; and (d) the Software will
recognize and process all date fields, and perform all date-dependent
calculations and operations (including sorting, comparing and
reporting), without software ending and/or invalid and/or incorrect
results as a result of the change of century or the occurrence of any
particular date (all without human intervention, other than original
data entry of valid dates), provided, however, that thw warranty set
forth in subsection (d) of this Section shall not apply to data or
programs of third parties, other than the Licensed Platforms.
b. EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
FURTHER, AUTONOMY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY
REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE
SOFTWARE OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY,
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Autonomy, Inc. OEM Agreement; page 5
RELIABILITY, OR OTHERWISE OR THAT THE SOFTWARE SHALL MEET LICENSEE'S
REQUIREMENTS. LICENSEE BEARS ALL RISK RELATING TO QUALITY AND
PERFORMANCE OF THE SOFTWARE.
c. Autonomy shall hold Licensee and its officers, directors, agents and
employees harmless from liability resulting from infringement by the
Software of any United States or Canadian patent, copyright, trade
secret, or other third party intellectual property right, provided (i)
Autonomy is promptly notified of any and all threats, claims and
proceedings related thereto, (ii) Autonomy shall have sole control of
the defense and/or settlement thereof, (iii) Licensee furnishes to
Autonomy, upon reasonable request, information available to Licensee
relevant to such defense, and (iv) Licensee provides Autonomy with
reasonable assistance. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF
NONINFRINGEMENT, WHICH ARE HEREBY DISCLAIMED.
d. The foregoing obligation of Autonomy does not apply with respect to the
extent that the software or portions or components thereof (i) not
supplied by Autonomy, (ii) made in whole or in part in accordance to
Licensee specifications, (iii) that are modified other than by or at
the direction of Autonomy after delivery from Autonomy, if the alleged
infringement relates to such modification, (iv) combined with other
products, processes or materials (other than a Licensed Platform) where
the alleged infringement relates to such combination, (v) where
Licensee continues allegedly infringing activity after being notified
thereof or (vi) where Licensee's use of the Software is not
substantially in accordance with this Agreement. Licensee shall
indemnify Autonomy and its officers, directors, agents and employees
from all damages, settlements, attorneys' fees and expenses related to
a claim of infringement or misappropriation excluded from Autonomy's
indemnity obligation by subsection (ii), (v), or (vi) of the
immediately preceding sentence provided (i) Licensee is promptly
notified of any and all threats, claims and proceedings related
thereto, (ii) Licensee shall have sole control of the defense and/or
settlement thereof, (iii) Autonomy furnishes to Licensee, upon
reasonable request, information available to Autonomy that is relevant
to such defense, and (iv) Autonomy provides Licensee with reasonable
assistance.
7. LIMITATION ON LIABILITY.
a. NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY BUT
EXCEPT FOR ITS OBLIGATION UNDER SECTION 6(c), AUTONOMY SHALL NOT BE
LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS
PAID TO AUTONOMY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO
THE DATE THAT THE CAUSE OF ACTION AROSE, OR (II) COST OF PROCUREMENT OF
SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
b. NEITHER PARTY SHALL BE LIABILE TO THE OTHER FOR ANY FAILURE OR DELAY
DUE TO MATTERS BEYOND ITS REASONABLE CONTROL, OR FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST OR INACCURATE DATA.
8. RELATIONSHIP OF THE PARTIES. The parties hereto expressly understand and
agree that Licensee is an independent contractor in the performance of each and
every part of this Agreement, is solely responsible for all of its employees and
agents and its labor costs and expenses arising in connection therewith and is
responsible for and shall indemnify Autonomy from any and all claims,
liabilities, damages, debts, settlements, costs, attorneys' fees, expenses and
liabilities of any type whatsoever that may arise on account of Licensee's
activities, or those of, its employees or agents (including, without limitation,
sub-distributors), including without limitation, providing unauthorized
representations or warranties (or failing to disclose all warranties and
liabilities on behalf of Autonomy) to its customers or breaching any term,
representation or warranty of this Agreement. Autonomy is in no manner
associated with or otherwise connected with the actual performance of this
Agreement on the part of
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Autonomy, Inc. OEM Agreement; page 6
Licensee, nor with Licensee's employment of other persons or incurring of other
expenses. Except as expressly provided herein, Autonomy shall have no right to
exercise any control whatsoever over the activities or operations of Licensee.
9. TERM AND TERMINATION.
a. Unless terminated earlier as provided herein, this Agreement shall have
a term commencing with the Effective Date of this Agreement and
continuing for an initial term of three (3) years, unless terminated by
written notice from either party at least sixty (60) days prior to the
end of the initial term, except that the parties agree that Licensee
shall have the right to renegotiate the royalty and payment terms
hereof in the first quarter of Year 2000, and if no agreement is
reached as a result of such renegotiation by March 31, 2000, Licensee
may terminate without cause and such termination shall be deemed an
expiration. Licensee understands that at the end of the term or upon
earlier termination by Autonomy for cause, the license in Section 2(a)
shall terminate and neither Licensee nor any sub-distributor shall have
any right whatsoever to continue developing or distributing
Applications or any other use of the Software, regardless of any
undocumented continuation of the relationship with Autonomy.
b. This Agreement may be terminated for cause immediately by written
notice upon the occurrence of any of the following events:
i. immediately, if a party ceases to do business, or otherwise
terminates its business operations;
ii. by Autonomy, subject to subsection (b)(iii) of this Section if
Licensee fails to pay the minimum royalties for the Software as
specified in Attachment B;
iii. if a party materially breaches this Agreement and fails to cure
such breach within 15 days (ten days in the case of a failure to
pay and immediately in the case of a breach of Section 2 or
Section 10) of written notice describing such breach; or
iv. without notice by a party if the other party becomes insolvent or
seeks protection under any bankruptcy, receivership, trust deed,
creditors arrangement, composition or comparable proceeding, or if
any such proceeding is instituted against the other (and not
dismissed within 90 days).
c. Each party understands that the rights of termination hereunder are
absolute. Neither party shall incur any liability whatsoever for any
damage, loss or expenses of any kind suffered or incurred by the other
(or for any compensation to the other) arising from or incident to any
termination of this Agreement by such party which complies with the
terms of the Agreement whether or not such party is aware of any such
damage, loss or expenses. Termination is not the sole remedy under this
Agreement and, whether or not termination is effected, all other
remedies shall remain available.
d. Upon termination, if Licensee has any right, title or interest in any
Mark or any registration related thereto, Licensee shall immediately
assign all such right, title and interest to Autonomy and take all
necessary action to ensure that Autonomy obtains the full benefit
thereof or, if Autonomy so requests in writing with respect to any such
item, take any necessary action to surrender and cancel such item and
the related rights, title and interest.
e. Upon expiration or termination by Autonomy for cause of this Agreement,
Licensee shall immediately return to Autonomy or destroy all master
disks and any and all copies of the Software or portions thereof that
it has in its possession or control.
f. On termination or expiration of this Agreement, Autonomy shall provide
support to Licensee and to end users for which it has already been
paid. On expiration or termination other than due to breach by
Licensee, Autonomy will continue to offer to Licensee support at its
then existing rates on its then existing standard terms so long as
Autonomy provides such support to other OEMs or end users.
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Autonomy, Inc. OEM Agreement; page 7
10. CONFIDENTIALITY.
a. Licensee agrees that to the extent Autonomy discloses to Licensee
information (i) identified in writing as "Confidential" or
"Proprietary," or (ii) identified as confidential during an oral
disclosure and confirmed in writing in thirty (30) days, relating to
the Software, the properties, composition or structure thereof, or
Autonomy's business (including, without limitation, computer programs,
algorithms, names and expertise of employees and consultants, know-how,
formulas, processes, ideas, inventions (whether patentable or not),
schematics and other technical, business, financial, Autonomy and
product development plans, forecasts, strategies and information), such
information is the confidential property of Autonomy ("Proprietary
Information"). Licensee recognizes and acknowledges that Autonomy's
Proprietary Information (and the confidential nature thereof) is
critical to the business of Autonomy and that Autonomy would not enter
into this Agreement without assurance that its Proprietary Information
and the value thereof shall be protected as provided in this Section 11
and elsewhere in this Agreement.
b. Licensee agrees (i) to hold Autonomy's Proprietary Information in
confidence as a fiduciary and to take all reasonable precautions to
protect such Proprietary Information (including, without limitation,
all precautions Licensee employs with respect to its confidential
materials), (ii) not to divulge any such Proprietary Information or any
information derived therefrom to any third person and (iii) not to make
any use whatsoever at any time of such Proprietary Information except
as expressly authorized in this Agreement. Any employee or agent given
access to any such Proprietary Information must have a legitimate "need
to know" and shall be similarly bound in writing to confidentiality
terms. Without granting any right or license, Autonomy agrees that the
foregoing clauses (i), (ii) and (iii) shall not apply with respect to
information Licensee can document is in or (through no improper action
or inaction by Licensee or any agent or employee) enters the public
domain (and is readily available without substantial effort). Licensee
must promptly notify Autonomy of any information it believes comes
within the circumstance set forth in the immediately preceding sentence
and shall bear the burden of proving the existence of any such
circumstance by clear and convincing evidence. Licensee's obligations
under this Section 11(b) shall terminate five (5) years after the date
of this Agreement. Immediately upon termination of this Agreement or
upon Autonomy's request, Licensee shall turn over to Autonomy all
Proprietary Information of Autonomy and all documents or media
containing any such Proprietary Information and any and all copies or
extracts thereof.
c. Licensee acknowledges and agrees that due to the unique nature of
Autonomy's Proprietary Information, there can be no adequate remedy at
law for any breach of its obligations hereunder, that any such breach
may allow Licensee or third parties to unfairly compete with Autonomy
resulting in irreparable harm to Autonomy and, therefore, that upon any
such breach or any threat thereof, Autonomy shall be entitled to seek
appropriate equitable relief in addition to whatever remedies it might
have at law and to be indemnified by Licensee from any loss or harm,
including, without limitation, lost profits and attorneys' fees, in
connection with any breach or enforcement of Licensee's obligations
hereunder or the unauthorized use or release of any such Proprietary
Information. Licensee shall notify Autonomy in writing immediately upon
the occurrence of any such unauthorized release or other breach. Any
breach of this Section 11 shall constitute a material breach of this
Agreement.
11. MISCELLANEOUS.
a. ASSIGNMENT. Neither party shall, without the consent of the other,
assign this Agreement or any amounts payable pursuant to this
Agreement, except to a purchaser of all or substantially all of the
assets of such party. Consent to any assignment of this Agreement shall
not constitute a party's consent to further assignment. This Agreement
shall be binding on the parties and their respective successors and
permitted assigns. Any assignment in contravention of this subsection
shall be void.
b. NOTICES. All notices, requests, consents, approvals, agreements,
authorizations, acknowledgements, waivers and other communications
required or permitted under this Agreement shall be in writing and
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Autonomy, Inc. OEM Agreement; page 8
shall be deemed given when delivered to a party by registered or
certified mail or equivalent means of delivery (E.G., by hand,
overnight service or express courier), or when sent by telecopy to the
telecopy number specified below:
In the case of Autonomy: 415-243-9985
In the case of Licensee:
Either party may change its address or telecopy number for notification
purposes by giving the other party 30 days' notice of the new address
or telecopy number and the date upon which it shall become effective.
c. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one single agreement between the
parties.
d. SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, then the remaining
provisions of this Agreement, if capable of substantial performance,
shall remain in full force and effect.
e. WAIVERS. No delay or omission by either party to exercise any right or
power it has under this Agreement shall impair or be construed as a
waiver of such right or power. A waiver by any party of any breach or
covenant shall not be construed to be a waiver of any succeeding breach
or any other covenant. All waivers must be signed by the party waiving
its rights.
f. ENTIRE AGREEMENT. This Agreement and the Exhibits to this Agreement
represent the entire agreement between the parties with respect to its
subject matter, and there are no other representations, understandings
or agreements between the parties relative to such subject matter.
g. AMENDMENTS. No amendment to, or change, waiver or discharge of, any
provision of this Agreement shall be valid unless in writing and signed
by an authorized representative of each of the parties.
h. SURVIVAL. The following sections of this Agreement shall survive any
termination or expiration of this Agreement in full force and effect:
SECTION 2, SECTION 3, SECTION 4(b), SECTION 4(e), SECTION 4(f), SECTION
5, SECTION 6, SECTION 7, SECTION 8, SECTION 9(c), SECTION 9(d), SECTION
9(e), SECTION 10, SECTION 11(f), this Section, SECTION 11(j) and
SECTION 11(k).
i. THIRD PARTY BENEFICIARIES. Except as specified in this Agreement with
respect to a Designee, each party intends that this Agreement shall not
benefit, or create any right or cause of action in or on behalf of, any
Person other than the parties.
j. GOVERNING LAW. This Agreement and the rights and obligations of the
parties under this Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving
effect to the principles thereof relating to the conflicts of laws.
k. SOLE AND EXCLUSIVE VENUE. Each party irrevocably agrees that any legal
action, suit or proceeding brought by it in any way arising out of this
Agreement must be brought solely and exclusively in the United States
District Court for the Northern District of California or in the state
courts of the State of California and irrevocably accepts and submits
to the sole and exclusive jurisdiction of each of the aforesaid courts
in personam, generally and unconditionally with respect to any action,
suit or proceeding brought by it or against it by the other party. Each
party hereto further irrevocably consents to the service of process
from any of the aforesaid courts by mailing copies thereof by
registered or certified mail, postage prepaid, to such party at its
address designated pursuant to this Agreement, with such service of
process to become effective 30 days after such mailing.
l. COVENANT OF FURTHER ASSURANCES. Autonomy and Licensee covenant and
agree that, subsequent to the execution and delivery of this Agreement
and, without any additional consideration, each of Autonomy and
Licensee shall execute and deliver any further legal instruments and
perform any acts that are or may become necessary to effectuate the
purposes of this Agreement.
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Autonomy, Inc. OEM Agreement; page 9
m. FORCE MAJEURE. If and to the extent a party's performance of any of its
obligations pursuant to this Agreement is prevented, hindered or
delayed by fire, flood, earthquake, elements of nature or acts of God,
acts of war, terrorism, riots, civil disorders, rebellions or
revolutions, or any other similar cause beyond the reasonable control
of such party (each, a "Force Majeure Event"), and such
non-performance, hindrance or delay could not have been prevented by
reasonable precautions, then the non-performing, hindered or delayed
party shall be excused for such non-performance, hindrance or delay, as
applicable, of those obligations affected by the Force Majeure Event
for as long as such Force Majeure Event continues and such party
continues to use its best efforts to recommence performance whenever
and to whatever extent possible without delay, including through the
use of alternate sources, workaround plans or other means. The party
whose performance is prevented, hindered or delayed by a Force Majeure
Event shall immediately notify the other party of the occurrence of the
Force Majeure Event and describe in reasonable detail the nature of the
Force Majeure Event. If any Force Majeure Event prevents, hinders or
delays Licensee's performance of its obligations pursuant to this
Agreement for more than 30 days, Autonomy may terminate this Agreement
as of a date specified by Autonomy in a termination notice to Licensee,
without regard to Section 10(b).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the Effective Date.
AUTONOMY, INC CORECHANGE, INC.
By: By: /s/ ULF ARNETZ
-------------------------- ----------------------------------
Name: Name: ULF ARNETZ
------------------------ --------------------------------
Title: Title: PRESIDENT/CEO
----------------------- -------------------------------
Date: Date: SEPTEMBER 1, 1999
------------------------ --------------------------------
<PAGE>
Autonomy, Inc. OEM Agreement; page 10
ATTACHMENT A
SOFTWARE; APPLICATIONS; LICENSED PLATFORMS
AUTONOMY SOFTWARE:
Knowledge Builder toolkit with unlimited internal developer
licenses for multiple platforms
LICENSED PLATFORMS:
Sun Solaris and Microsoft NT, and all others for which
Autonomy provides commercial releases of its software to its
customers generally.
LICENSEE APPLICATIONS:
Coreport
AUTONOMY MODULES:
<TABLE>
<CAPTION>
------------------------------------------- ----------------------------------------- -----------------------------------------
CATEGORY A MODULES CATEGORY B MODULES CATEGORY C MODULES
------------------------------------------- ----------------------------------------- -----------------------------------------
<S> <C> <C>
Query/index User Profiling Web Spider
User Agent Agent Query Lotus Notes Fetch
Auto-suggest Microsoft Exchange Fetch
Categorizer ODBC Fetch
Import
------------------------------------------- ----------------------------------------- -----------------------------------------
</TABLE>
<PAGE>
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
Autonomy, Inc. OEM Agreement; page 11
Attachment B
PAYMENT/FEE SCHEDULE
ORDER
Purchase order is due by: September 10th, 1999
PAYMENT SCHEDULE
<TABLE>
<CAPTION>
----------------------------------- -------------- -------------------------------------------------
DESCRIPTION AMOUNT PAYMENT SCHEDULE
----------------------------------- -------------- -------------------------------------------------
<S> <C> <C>
Prepaid Royalty [**] December 15, 1999
Knowledge Builder API [**] Due September 22, 1999
Annual Developer Support: 8/16/99 [**] Due September 22, 1999 and annually thereafter,
- 8/16/00 on August 15th of subsequent years
(to include initial developer
training)
TOTAL [**]
----------------------------------- -------------- -------------------------------------------------
</TABLE>
CATEGORY A MODULES ROYALTY PRICING SCHEDULE:
Query/Index, Auto-suggest, Categorizer, and User Agent - (total of) [**] of Net
Revenue of the Licensed Application
Import - [**] of Net Revenue of the Licensed Application
Embedded pricing referenced herein is modifiable as mutually agreed to by the
parties through an amendment to this document.
"Net Revenue" for a product means [**].
CATEGORY B AND C MODULES PRICING SCHEDULE:
Corechange may sell any Category B or C Autonomy Module as an add-on component,
and will pay to Autonomy [**] of Net Revenue of the Add-on Module, with a floor
price of [**] per server for each Module listed under Category B and a floor
price of [**] per server for each Module listed under Category C above.
SECOND LINE SUPPORT FOR END USERS:
For end users of Licensee who purchase second line support from Licensee,
Licensee will make an annual payment of [**] of the royalties paid by
Licensee to Autonomy for such end users for modules (embedded or add-on
modules), with the payments payable quarterly with the quarterly royalty
payments and reports.
<PAGE>
Autonomy, Inc. OEM Agreement; page 12
ATTACHMENT C
FORM OF END USER LICENSE AGREEMENT
SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT ("AGREEMENT") is entered into as of
______________, 1999, between Autonomy, Inc., with offices located at 301 Howard
Street, San Francisco, California 94105 ("AUTONOMY"), and
__________________________, having its principal place of business at
_____________________________________ ("LICENSEE").
[LOGO]
1. LICENSE GRANT. Subject to the terms of this Agreement, Autonomy grants to
Licensee a personal, non-transferable, non-sublicensable, non-exclusive
license to use the software specified in ATTACHMENT A ("SOFTWARE"), in
accordance with the documentation and accompanying materials
("DOCUMENTATION") supplied to Licensee by Autonomy. The Software shall only
be used on the platforms specified in ATTACHMENT A ("AUTHORIZED
PLATFORMS").
2. OWNERSHIP. The Software, Documentation and any copies thereof are licensed
and not sold and are protected by United States and international
copyright, trademark, trade secret laws, as well as certain international
treaty provisions.
3. RESTRICTIONS. Licensee may not (a) copy the Software or the Documentation
(other than as may be specified in ATTACHMENT A or for backup purposes);
(b) permit individuals other than Authorized Users to use the Software or
the Documentation; (c) rent, lease, sublicense or use the Software or the
Documentation for service bureau purposes; or (d) reverse engineer,
decompile or disassemble the Software.
4. FEES; PAYMENT. The license and maintenance fees for the Software specified
in ATTACHMENT A ("FEES") are (a) due upon execution of this Agreement and
(b) exclusive of shipping, taxes, duties and other similar fees, all of
which are the responsibility of and shall be paid by Licensee.
5. UPGRADES; SUPPORT. Autonomy may, in its sole discretion, release new
versions of the Software which contain improvements or enhancements (each
such release an "UPDATE"). If Licensee purchases or otherwise receives an
Update, this Agreement shall be extended to include such Update. All
support for the Software shall be provided pursuant to the terms of a
support agreement executed by Autonomy and Licensee.
6. TERM. This Agreement shall remain in effect unless it is terminated earlier
by Autonomy. Upon termination of this Agreement, Licensee shall immediately
cease all use of the Software. Within five days after termination of this
Agreement, Licensee shall return to Autonomy all copies of the Software and
the Documentation (in any form or media) and shall so certify to Autonomy
in writing.
7. LIMITED WARRANTY. Autonomy warrants that, for a period of sixty (60) days
after receipt by Licensee (a) the Software shall perform substantially in
accordance with the Documentation and (b) the media upon which the Software
is provided shall be free from defects in material and workmanship under
normal use. This warranty covers only problems reported to Autonomy during
the warranty period.
8. LICENSEE REMEDIES. AUTONOMY'S ENTIRE LIABILITY, AND LICENSEE'S SOLE AND
EXCLUSIVE REMEDY, UNDER ANY WARRANTY OR LEGAL THEORY SHALL BE LIMITED TO
REPLACEMENT OF THE SOFT-WARE OR RETURN OF THE PRICE PAID.
9. DISCLAIMER. AUTONOMY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY,
FIT-NESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, WITH RESPECT TO THE
SOFTWARE, AND THE DOCUMENTATION. EXCEPT FOR THE LIMITED WARRANTY PROVIDED
PURSUANT TO SECTION 7, THE SOFTWARE IS PROVIDED "AS IS." Autonomy does not
warrant that the Software or the functions contained in the Software shall
meet Licensee's requirements, operate without interruption or be error
free.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL AUTONOMY BE LIABLE UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR THEORY FOR ANY INDIRECT OR
CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS,
BUSINESS INTERRUPTION, LOSS OR INACCURACY OF INFORMATION), ARISING OUT OF
THE USE OF OR INABILITY TO USE THE SOFTWARE, EVENT IF AUTONOMY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL AUTONOMY'S
LIABILITY EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE.
11. NO ASSIGNMENT. Neither the rights nor the obligations arising under this
Agreement are assignable or transferable by Licensee, and any such
attempted assignment or transfer shall be void and without effect.
12. GOVERNMENT USE. If Licensee is a unit or agency of the government, or
acquiring the Software with government funds, the Software and
Documentation are
<PAGE>
Autonomy, Inc. OEM Agreement; page 13
provided subject to Autonomy's standard commercial license; provided,
however, that any contracts with non-defense agencies subject to the FAR,
the Government shall have the rights set forth in subparagraph (c) of FAR
52.227-19, "Commercial Computer Software-Restricted Rights," as applicable.
13. MISCELLANEOUS. This Agreement is the complete and exclusive statement of
the mutual understanding of the parties and supersedes any other Agreement
relating to the Software. This Agreement shall be governed pursuant to the
laws of the State of California and the United States without regard to the
conflict of laws provisions thereof. The waiver by either party of a breach
of this Agreement or any right hereunder shall not constitute a waiver of
any subsequent breach of this Agreement; nor shall any delay by either
party to exercise any right under this Agreement operate as a waiver of any
such right. Any notice, report, approval or consent required or permitted
hereunder shall be in writing and shall be deemed to have been effectively
given: (a) immediately upon personal delivery or facsimile transmission to
the parties to be notified, (b) one day after deposit with a commercial
overnight courier with tracking capabilities, or (c) three days after
deposit with the United States Postal Service, by registered or certified
mail, postage prepaid to the respective addresses of the parties as set
forth above. If any provision of this Agreement shall be adjudged by any
court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable. The parties agree that a material breach of this Agreement
adversely affecting Autonomy's proprietary rights in the Software would
cause irreparable injury to Autonomy for which monetary damages would not
be an adequate remedy and that Autonomy shall be entitled to equitable
relief in addition to any remedies it may have hereunder or at law. SECTION
2, SECTION 3, SECTION 4, SECTION 6, SECTION 7, SECTION 8, SECTION 9,
SECTION 10 and this Section shall survive any termination or expiration of
this Agreement.
IN WITNESS WHEREOF, Autonomy and Licensee have executed this Agreement as of the
day and year first written above.
AUTONOMY, INC. [LICENSEE]
By: ________________________________ By: ______________________________
Name:_______________________________ Name:_____________________________
Title:______________________________ Title:____________________________
Date:_______________________________ Date:_____________________________
<PAGE>
Autonomy, Inc. OEM Agreement; page 14
ATTACHMENT A TO FORM OF SOFTWARE LICENSE AGREEMENT
1. AUTHORIZED PLATFORMS
2. SOFTWARE
3. FEES
<PAGE>
Autonomy, Inc. OEM Agreement; page 15
ATTACHMENT D
SUPPORT PROGRAM TERMS AND CONDITIONS
SUPPORT AND MAINTENANCE TERMS.
Support Services consist of error correction and telephone and e-mail support,
provided during Autonomy's normal business hours (6 a.m. to 3 p.m. PST, Monday
through Friday) and a pager number will be provided for emergency access on
weekends, to Licensee's technical support contact concerning the installation
and use of the then current release of the Software and, for a period of 12
months following general availability of the current release, the previous
sequential release. Autonomy shall make corrections in a time commensurate with
the problem, but Autonomy will use best efforts to provide at least a fix or
workaround if the problem prevents use of the Software and/or the Licensed
Application. Licensee shall designate up to two (2) individual employees of
Licensee as a technical support contact in connection with this Agreement.
Support shall include at no additional charge to Licensee improvements and
updates to the Software that Autonomy in its discretion regularly provides to
its other customers and are not designated by Autonomy as products for which it
charges a separate fee.
Autonomy shall have no obligation to support (a) altered, damaged or modified
Software or any portion of the Software incorporated into other software, (b)
Software that is not the then current or immediately previous sequential
release, (c) problems caused by Licensee's negligence, abuse, or misapplication,
or use of the Software other than as specified in Autonomy's user documentation
or other causes beyond the control of Autonomy, or (d) Software installed on a
system that is not supported by Autonomy. Autonomy shall have no liability for
any changes in Licensee's hardware which may be necessary to use the Software
due to a workaround or maintenance release.
Support Services will be charged for annually at the amount specified in
Attachment B.
Additional consulting services are available at Autonomy's then current rates
and Licensee shall pay all travel, living and other out of pocket expenses
incurred by Autonomy in the course of performing such consulting services. Upon
Licensee's request for additional consulting services, Autonomy will provide an
estimate of the costs to complete the consulting services.
