<PAGE>
Exhibit 10.32
-------------
*Note: Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been omitted
from the public filing and have been filed separately with the Securities and
Exchange Commission.
Joint Marketing and
Sales Representation Agreement
This Agreement is entered into as of May 17, 2000, ("Effective Date")
between CONCUR TECHNOLOGIES, INC., a Delaware corporation having its main office
at 6222 - 185th Avenue Northeast, Redmond, Washington 98052 ("Concur"), and ADP,
INC., a Delaware corporation by and through the Major Accounts Division of its
Employer Services Group, with offices at 4 Becker Farm Road, Roseland, New
Jersey 07068 ("ADP") (each a "Party," together the "Parties"). For the avoidance
of doubt, the term "ADP" as used each and every time in this Agreement shall
refer only to the Major Accounts division of ADP, Inc.
RECITALS
WHEREAS, Concur distributes, markets and makes available travel and
expense management software products to third parties licensed to use such
products at certain Internet web sites; and
WHEREAS, ADP wishes to market and sell certain of Concur's software
products and services through a phased pilot marketing and sales program (the
"Pilot") and then roll out a marketing and sales program [ * * * ]; and
WHEREAS, the Parties desire to enter to set forth the terms and
conditions under which ADP will market and sell certain of Concur products and
services under the Pilot and the marketing and sales program; and
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, the Parties agree as follows:
1. DEFINITIONS
1.1 "ADP Clients" include companies receiving ADP's payroll, human
resources, or other ADP products or services.
1.2 "ADP-acquired Client" includes companies that have purchased a
Concur Product in the Territory and for which ADP has forwarded
to Concur a Concur User Agreement and Sales Order form.
1.4 "Concur Marks" means the Trademarks of Concur set forth on
Exhibit A, as such may be periodically revised and supplemented
---------
by Concur upon written notice to ADP.
1.5 "Concur Products" include Concur's web-based expense management
products, including but not limited to Concur
eWorkplace.com(TM)(excluding the procurement,
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PAGE 1
<PAGE>
travel network and employee advantage components thereof), Concur
Expense(TM) and associated administrative and reporting tools
(together with any new expense products or services offered by
Concur) and any additional Concur products mutually agreed to by
the parties in writing.
1.6 "Concur Promotional Materials" means any Concur promotional
literature or other marketing materials furnished by or on behalf
of Concur.
1.7 "Confidential Information" means any information concerning
either Party's Intellectual Property Rights or other proprietary
information concerning its business, technology or products
(including this Agreement) or any other information of either
Party which is reasonably understood to be confidential by the
other Party to whom it has been disclosed.
1.8 "Intellectual Property Rights" means patent rights (including but
not limited to rights in patent applications or disclosures and
rights of priority), copyright rights , trade secret rights,
trademark rights, rights of privacy and publicity, and any other
intellectual property rights that are protected or protectable
under the laws of the United States of America, any states of the
United States of America, any country other than the United
States of America, any political subdivision of any of the
foregoing or any other governmental authority having
jurisdiction.
1.9 "Joint Marketing Materials" means marketing materials developed
jointly by Concur and ADP under this Agreement regarding Concur
Products and service and ADP products and services.
1.10 "Person" means an individual, business organization, partnership,
limited liability company, corporation or other entity.
1.11 "Territory" means the [ * * * ]selected by ADP to market and sell
the Concur Products, as identified in Exhibit B, as such may be
revised and supplemented by ADP upon written notice to Concur.
1.12 "Trademark" means any name, trade name, brand, logo, service
mark, trademark or trade dress.
2. THE MARKETING AND SALES PROGRAM
2.1 The Pilot. ADP will conduct phase one of the Pilot ("Phase One")
---------
to market and sell Concur Products. It is contemplated by the
Parties that the Pilot will be accomplished in two phases, under
which ADP will offer Concur Products to ADP clients using Co-
brand Strategy. For purposes of this Agreement, "Co-brand
Strategy" shall mean that (a) Concur Products will be sold
primarily under the Concur name, brand and Trademarks, but with
the ADP logo displayed on the screen in a presentation mutually
agreed upon by the Parties; (b) certain Concur Promotional
Materials chosen by ADP will be reprinted (at ADP's cost) and
will bear both Concur's and ADP's name and logo (standard Concur
reports will not be changed); and (c) both ADP and Concur agree
to
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PAGE 2
<PAGE>
cooperate with each other in the use of their respective logos;
provided however, that in no event shall either Party use the
other Party's name, Trademark(s) or logo without prior written
consent, except as may be required by Securities and Exchange
Commission regulations.
2.2 Roll Out of Marketing and Sales Program. ADP will launch Phase
---------------------------------------
One in approximately [ * * * ] to be selected by ADP and [ * * *
], if [ * * * ]the Concur Products become available during Phase
One and the parties mutually agree, to market and sell the Concur
Products [ * * * ]. It is anticipated that the Pilot will [ * * *
]. Upon successful completion of the Pilot, as determined by ADP
in its reasonable business judgment, the Parties agree to roll
out marketing and sales of Concur Products to all other ADP Major
Accounts sales [ * * * ], and if [ * * * ]of the Concur Products
are available and the parties mutually agree, [ * * * ].
3. APPOINTMENT AND LICENSES
3.1 Appointment. During the Term and subject to the terms and
-----------
conditions of this Agreement, Concur hereby appoints ADP as a nonexclusive
(subject to Section 3.2 below) sales representative to market and solicit sales
of the Concur Products during the Term from ADP customers or potential customers
located in the Territory, including, without limitation, through any
distribution or marketing strategy chosen by ADP. Subject to the limitations in
Section 3.2, Concur reserves the right to appoint other sales representatives to
solicit sales of Concur Products or resellers of Concur Products from any Person
located in or outside the Territory. The parties agree that ADP may market and
sell the products on a stand-alone basis or as part of a suite of ADP products
and services. If ADP integrates the Concur Products with other ADP products or
services: (a) ADP shall do so at its own expense; (b) ADP shall own all code
developed by ADP in connection with such integration ; and (c) Concur shall
offer reasonable assistance to ADP in connection with such integration.
Notwithstanding the foregoing, Concur shall own all right, title and interest in
the Concur Products and all source code, documentation and proprietary
information related thereto.
3.2 [ * * * ].
3.3 Concur Trademark License. During the Term and subject to the
------------------------
terms and conditions of this Agreement, Concur hereby grants to
ADP a royalty-free, nonexclusive, nontransferable right to
reproduce and display the Concur Marks solely as necessary in
connection with ADP's performance of its obligations under this
Agreement. ADP's use of Concur Marks shall be in accordance with
Concur's trademark usage guidelines, as such are periodically
disclosed to ADP in writing by Concur. All goodwill in the Concur
Marks arising from ADP's use thereof shall inure exclusively to
the benefit of Concur.
3.4 Demonstrations. During the Term and subject to the terms and
--------------
conditions of this Agreement, Concur hereby grants to ADP a
royalty-free, nonexclusive, nontransferable right to perform
demonstrations of Concur Products at a Concur-provided remote
access site for ADP's Clients or potential clients solely for the
purpose of marketing and selling Concur Products to ADP's Clients
or potential clients.
3.5 Use of Trademarks. Each Party agrees not to use any of the
-----------------
other's Trademarks in any advertising materials, labeling
materials, packaging materials or press releases without the
prior written consent of the other Party.
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PAGE 3
<PAGE>
4. INTEGRATION
4.1 Development Plan. No later than thirty (30) days after the
----------------
Effective Date, the Parties will jointly develop a product
integration plan (the "Plan") that incorporates the ADP logo on
screens contained within the Concur Products
5. PROPRIETARY RIGHTS
5.1 Concur reserves all right, title and interest in the Concur
Products, the Concur Marks, the Concur Promotional Materials and
any and all materials furnished to ADP by Concur under this
Agreement and all Intellectual Property Rights in each of the
foregoing. No title to or ownership of any of the foregoing is
transferred to ADP or any other Person under his Agreement.
5.2 Subject to the terms of this Agreement, CONCUR hereby grants to
ADP, at no charge to ADP, an enterprise wide right, limited to
ADP's Major Accounts Division, to access, demonstrate and display
the Concur Products for ADP business purposes, including but not
limited to the marketing, demonstration, sale and support of the
ADP-acquired Clients, training of ADP sales associates and
customer service representatives and integration of the Concur
Products with other ADP products and services.
5.3 ADP shall have the right to provide access to the Concur
Products, and allow access to same by, third party vendors,
contractors and/or consultants of ADP and/or any ADP-acquired
Client for the purpose of performing and/or exercising any
applicable ADP or client's rights with respect to such Concur
Product.
6. ADP'S OBLIGATIONS
6.1 For each ADP client or prospect that has purchased any
Concur Product(s), ADP shall forward to Concur headquarters
a signed Concur User Agreement (substantially in the form
attached hereto, the "Concur User Agreement") and completed
Concur Sales Order (both attached in Exhibit C).
6.2 ADP shall make good faith efforts to keep Concur informed as
to any material problems encountered with the Concur
Products and any resolutions arrived at for such problems.
ADP shall communicate (unless prohibited by confidentiality
obligations) promptly to Concur any modifications, design
changes or improvements of the Concur Products suggested by
any ADP-acquired Client, employee or agent of ADP.
6.3 Concur may perform site visits at ADP's place or places of
business upon reasonable prior written notice and during
normal business hours. Concur, or its accountants, may
periodically examine and make copies of all books and
records of ADP insofar as they relate to this Agreement.
6.4 ADP shall market Concur Products to its existing and
prospective Major Account Division clients through multiple
channels, including for example, the Major Account Direct
salesforce, web-site promotions and banner advertisements,
and payroll inserts.
6.5 ADP shall provide ADP sales representatives with sales
incentives, including roll-call credit, for the ADP portion
of the recurring revenue streams, as well as pay the total
set-up revenues received by ADP as commissions to the ADP
sales representatives.
PAGE 4
<PAGE>
7. CONCUR'S OBLIGATIONS
7.1 Concur shall perform the following activities for ADP-
acquired Clients in relation to the Concur Products. Account
set-up, orientation and training (to the same extent that
Concur offers orientation and training to its non-ADP-
acquired Clients), order entry, customer service and
compliance; Concur Product support, order processing and
delivery, report interpretation and billing and collections,
as well as any other functions normally performed by Concur
in selling (other than the marketing and sales activities
expressly undertaken by ADP pursuant to the terms of this
Agreement) and supporting its products and services. Without
limiting the generality of the foregoing, Concur shall
furnish the following services:
(a) provide all technical support for the ADP-acquired
clients, and make customer service call logs available
to ADP upon request, to the extent such call logs
relate to ADP-acquired Clients;
(b) make customer service available to the ADP-acquired
Clients at least to the same extent that it is
available to other Concur customers, track all Customer
service issues and make available to ADP upon request a
report of Customer service issues;
(c) maintain an appropriate staff (both in size and
qualifications) to support Phase One and pre/post
national rollout activities, and consider in good faith
all Concur Product improvements recommended by ADP;
(d) update and enhance the Concur Products, so that the
Concur Products contain those features and
functionality required to keep the Products competitive
in the marketplace and
(e) run and maintain all data center operations supporting
the Concur Products, including disaster recovery.
7.2 Concur shall process, fulfill orders, bill and collect ADP-
acquired Clients in the same manner and with the same
urgency and degree of care as its non-ADP-acquired Clients.
At ADP's request, Concur agrees to consider ADP's
recommendations regarding Concur's collection efforts with
respect to any specific ADP-acquired Client.
7.3 ADP may perform site visits at Concur's place or places of
business upon reasonable prior written notice and during
normal business hours. ADP, or its accountants, may
periodically examine and make copies of all books and
records of Concur insofar as they relate to this Agreement.
7.4 Use good faith efforts to inform ADP in a timely manner of
(a) any problems encountered with Concur Products or
services and any resolutions arrived at for those problems;
(b) all modifications, additions or changes in Concur
Products or services or Concur's marketing strategy with
respect thereto; and (c) required changes in the marketing,
sales or related documentation.
PAGE 5
<PAGE>
8. PRICE TERMS
8.1 ADP agrees to initially offer Concur Products to ADP clients and
potential clients at Concur's standard pricing as set forth in
the Price Lists attached hereto as Exhibit D. If, in its sole
reasonable discretion, [ * * * ], then [ * * * ]the Concur
Products [ * * * ]to its own products and services. So long as [
* * * ]the Concur Products [ * * * ], [ * * * ]has the right to [
* * * ], and to [ * * * ]for Concur Products which [ * * *
]provided for Concur in the Concur User Agreement. Concur agrees
to provide ADP with written notice of changes in pricing in
Concur Products at least thirty (30) days in advance of the
effective date of such changes. Concur agrees that [ * * *
]Concur Products and related services [ * * * ]unless it is [ * *
* ]. Concur further agrees, from the Effective Date of this
Agreement and excluding existing prior written Concur agreements
with other parties, that at all times during the term of this
Agreement, [ * * * ]joint marketing, reseller or similar [ * * *
]that will be [ * * * ]hereunder.
8.2 [ * * * ] ADP will be [ * * * ]of the [ * * * ]all Concur
Products purchased by ADP-acquired Clients, without regard to[ *
* * ]. Concur will also [ * * * ]attributed to ADP-acquired
Clients to ADP. All [ * * * ]amounts shall be less deductions for
uncollectibles, write-offs, credits and similar amounts. Concur
will make [ * * * ]on the forty-fifth (45th) day after the end of
the calendar month for [ * * * ]ADP-Acquired Clients during such
calendar month to ADP by check, together with the billing summary
report, to the address indicated by ADP from time to time in
writing. Concur's obligation to [ * * * ]shall continue with
respect to each ADP-acquired Client until the date such ADP-
acquired Client stops using the Concur Product sold to such ADP-
acquired Client by ADP, without regard to who obtains the renewal
contract for any such client.
9. LEAD REFERRALS
In those cases where Concur gets a lead referral from one of their
referral partners or from another third party, and if the lead
referral is an existing ADP client in the Territory, then Concur will
pass the lead to the ADP salesforce for closing. If such a lead
closes, Concur remains responsible for any applicable referral fee or
commission payable by it to their reseller or referral partner.
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PAGE 6
<PAGE>
10. TRAINING AND SALES SUPPORT
10.1 Concur agrees (at Concur's expense) to promptly after the
Effective Date to train ADP's salesforce; and (b) to provide
ADP with sales tools, including but not limited to on-line
demo capability and boilerplate sales proposals.
Additionally, Concur agrees to make appropriate personnel
available to the ADP salesforce to answer Concur Product-
related questions and to assign and dedicate an appropriate
number of [ * * * ] sales representatives, as mutually
agreed to by ADP and Concur, to support the ADP salesforce,
at Concur's expense. During Phase One a minimum of [ * * *
]will, so long as ADP provides office space, be physically
located in ADP regions in the Territory, [ * * * ]where
possible, selected by ADP and Concur. Prior to Phase One,
and prior to National roll-out, ADP and Concur shall
mutually agree in writing on the extent to which the Concur
representatives will be dedicated to ADP and on their
physical location.
10.2 Concur will provide ADP with copies of its Concur
Promotional Materials and will assist ADP with the
development of marketing materials, sales training materials
and presentation materials for the ADP salesforce and the
presentation of Concur Products to target mid-sized
businesses.
10.3 ADP and Concur will each designate two executives
(initially, for ADP, Jose Rivero and Russ DeLoach; for
Concur, Bruce Chatterley and Dennis O'Donnell) to serve on
an executive oversight committee to meet as needed to
discuss the status of the Agreement, any challenges in the
relationship (including but not limited to sales channel
conflicts) and any other matters as may come up from time to
time.
11. MARKETING AND PROMOTIONAL ACTIVITIES
11.1 General. Each Party will cooperate to promote the
-------
relationship contemplated by this Agreement. Without
limiting the foregoing, the Parties shall cooperate to
develop Joint Marketing Materials as soon as practicable
following the Effective Date. Marketing and promotional
activities may include, without limitation, promotion in
connection with each Party's marketing, public relations,
and sales efforts (including, where applicable, joint sales
calls). The Parties shall jointly develop guidelines for
such promotional activities prior to beginning any such
promotion.
11.2 Each Party shall submit to the other Party, for its prior
written approval, any advertising, marketing, promotional or
other material which in any way identifies the other Party
or its products, services or Trademarks.
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PAGE 7
<PAGE>
11.3 No Unauthorized Warranties. ADP is not authorized to and
--------------------------
will not make any representation or warranty on behalf of
Concur (including, without limitation, regarding the
performance, functional characteristics or other aspects of
any of the Concur Products), except as Concur may expressly
consent to in writing. If Concur objects to the manner or
means in which ADP advertises, markets or otherwise offers
any Concur Products, to the extent that the foregoing
includesany unauthorized representations or warranties on
behalf of Concur in violation of the terms of this Section
11.3, Concur may notify ADP of the nature and scope of such
objection and ADP will promptly take such action as may be
reasonably required to address and remedy such objection(s)
and to bring ADP into compliance with the terms of this
Section.
11.4 [ * * * ]
11.4.1 During the Term, Concur agrees it will not [ * * *
]in the Territory. For purposes of this Section, [
* * * ]shall mean that such entity [ * * * ]of its
revenue from [ * * * ].
11.4.2 During the Term, ADP agrees that [ * * * ],
without the prior written approval of Concur, [ *
* * ]Concur's Products [ * * * ]. For purposes of
this Section, [ * * * ] shall mean an entity that
[ * * * ]. Notwithstanding the foregoing, ADP may,
upon prior written notice to Concur, [ * * *
]addressed by Concur Products or that [ * * *
]served by Concur Products. Concur shall have five
(5) business days from receipt of such notice to [
* * * ]Concur Product(s) to address the [ * * * ].
If Concur notifies ADP in writing during the five
(5) day period that it will address such [ * * *
]and Concur [ * * * ]Concur Product(s) to [ * * *
] within ninety (90) days, then ADP may not [ * *
* ]with respect to the [ * * * ].
12. TERM AND TERMINATION
12.1 Term. This Agreement will commence on the Effective Date and
----
will continue until [ * * * ]of the Effective Date ("Initial Term"),
and thereafter shall continue automatically unless and until
terminated pursuant to the terms of this Agreement (the "Term").
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PAGE 8
<PAGE>
At the end of the Initial Term, ADP and CONCUR intend to negotiate in good
faith to define a longer term agreement, including but not limited to
relative roles and responsibilities; revenue sharing and product
integration.
12.2 Termination for Convenience. Following any expiration of the
---------------------------
Initial Term, either Party may terminate this Agreement for any
reason by giving the other Party not less than thirty (30) days'
prior written notice of such intent. In addition, either Party
may terminate the Initial Term immediately upon written notice
upon the occurrence of an Event of Default as defined in Section
12.3 below.
12.3 Termination for Default. Either Party may terminate the Term
-----------------------
(including the Initial Term) immediately upon written notice to
the other party if:
(a) the other Party ceases to do business, or otherwise terminates
its business operations or if there is a material Change in
Control of the other Party;
(b) the other Party materially breaches any material provision of
this Agreement and fails to substantially cure such breach within
thirty (30) days of receipt of written notice describing the
breach; or
(c) if the other Party becomes insolvent, generally stops paying
its debts as they become due 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 ninety (90)
days).
Additionally, ADP may terminate this Agreement upon 45 days written
notice to Concur if the retention rates of ADP-acquired Clients is
less than ADP's then current average client retention rate;
provided however, that the parties agree to meet to discuss
potential solutions to the retention issue in good faith during
such 45-day period. If that the parties fail to reach a mutually
acceptable solution during the aforementioned 45-day period, then
the Agreement shall terminate on the date set forth in the original
ADP termination notice.
For purposes of this Section, "Change of Control" shall mean that
any person or entity (a "Person") or group of Persons (other than
Persons holding securities on the date hereof), acting in concert
shall have acquired, after the date hereof, beneficial ownership,
directly or indirectly, of securities of either company (or other
securities convertible into such securities) representing [ * * *]
or more of the combined voting power of all securities of such
company entitled to vote in the election of directors; however, a
"Change of Control" shall not include a registered public offering
of either company's stock pursuant to the Securities Act of 1933.
Concur and ADP further agree that upon the occurrence of an event
constituting a Change of Control, the nondefaulting Party may
immediately terminate either (i) the exclusivity obligations of the
nondefaulting Party; or (ii) this Agreement in its entirety.
12.4 If upon expiration of the Initial Term, this Agreement is
terminated and ADP and Concur do not enter into another joint
marketing, reseller or similar agreement, then, for the two (2)
year period following the Initial Term, (a) ADP agrees not to
actively solicit ADP-
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PAGE 9
<PAGE>
acquired Clients for a product competing with the Concur
Products; and (b) Concur agrees not to actively solicit the ADP-
acquired Clients for a product competing with ADP's payroll or
human resource management software or processing services or
solicit ADP-acquired Clients from the ADP/Concur "co-branded"
product to another Concur branded product.
12.5 Notwithstanding termination or expiration of this Agreement,
Concur's obligation to pay the revenue pass through to ADP shall
continue with respect to ADP-acquired Clients until the date such
ADP-acquired Client stops using the Concur Product sold to such
ADP-acquired Client during the Term.
12.6 During the Term, Concur agrees to honor the pricing set forth in
each ADP-acquired Clients Concur User Agreement. After
termination or expiration of this Agreement, Concur agrees to
honor the pricing set forth in each ADP acquired Clients Concur
User Agreement for [ * * * ]from the date of such agreement,
thereafter, the prices may be changed by Concur upon at least
thirty (30) days' prior written notice to such client.
12.7 Effect of Termination. Within ten (10) days of any termination
---------------------
expiration of this Agreement, (a) each Party shall destroy all
copies of the other Party's products and any other materials
delivered by the other Party under this Agreement; and (b) each
Party shall destroy all copies of and any tangible materials
embodying Confidential Information.
12.8 Survival of Certain Terms. The provisions of Sections 3, 5, 8.2,
-------------------------
12.4, 12.5, 12.6, 12.7, 12.8, 13, 14, 15 and 16 (and any other
obligations which would reasonably survive termination of the
Term), shall survive the termination of this Agreement for any
reason.
13. WARRANTIES; LIMITATION OF LIABILITY
13.1 Power and Authority. Each Party represents and warrants that (a)
-------------------
it has the full right, power and authority to enter into this
Agreement and to discharge its obligations hereunder; and (b) it
has not entered into any agreement inconsistent with this
Agreement or otherwise granted any third party any rights
inconsistent with the rights granted to the other Party under
this Agreement.
13.2 Noninfringement.
---------------
13.2.1 ADP represents and warrants that the ADP Trademarks and
any ADP materials furnished to Concur by ADP under this
Agreement do not and will not infringe or violate the
Intellectual Property Rights of any third party , and
that with respect to such Trademarks and materials,
Concur's exercise of its rights under this Agreement
will not constitute an infringement or violation of the
Intellectual Property Rights of any third party.
13.2.2 Concur represents and warrants that the Concur Marks,
the Concur Products, Concur Promotional Materials do
not and will not infringe or violate the Intellectual
Property Rights of any third party, and that with
respect to the
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PAGE 10
<PAGE>
foregoing, ADP's exercise of its rights under this
Agreement will not constitute an infringement or
violation of the Intellectual Property Rights of any
third party.
13.3 Millennium Compliant. Concur hereby represents and warrants
--------------------
that the Concur Products are and shall be Millennium
Compliant, that is, the Concur Products shall consistently
process date information in accordance with its documentation,
before, during and after January 1, 2000; respond to two-digit
year date input in a way that resolves any ambiguity as to
century in a disclosed, defined and predetermined manner; and
store and provide output of date information in ways that are
unambiguous as to century. In the event that ADP informs
Concur of, or Concur learns of, any failure of the Concur
Products to comply with the warranty in this Section, in
addition to (and not in lieu of) any other remedies available
to ADP under this Agreement, at law, or in equity, Concur
shall immediately remedy the failure dedicating all necessary
resources to effect such remedy, at no charge to ADP.
13.5 DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS
----------
SECTION 13, THE PARTIES MAKE NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
PRODUCTS, SERVICES OR ANY OTHER ITEMS FURNISHED UNDER THIS
AGREEMENT. EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR
A PARTICULAR PURPOSE WITH RESPECT TO EACH OF THE FOREGOING.
13.6 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
-----------------------
LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND UNDER ANY CAUSE OR
ACTION (INCLUDING NEGLIGENCE), WHETHER OR NOT SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. Confidentiality
No Confidential Information communicated to one Party by the other
relating to the subject matter of this Agreement, whether before or
after execution of this Agreement, shall be disclosed by the recipient
Party, its agents or employees, or used for any purpose other than the
performance of the terms of the Agreement without the prior written
consent of the other Party. The foregoing will not prevent either Party
from disclosing information which belongs to such Party or is (a)
already known by the recipient Party without an obligation of
confidentiality; (b) publicly known or becomes publicly known through
no unauthorized act of the recipient Party; (c) rightfully received
from a third party; (d) independently developed by the recipient Party
without use of the confidential information of the other Party; (e)
disclosed without similar restrictions to a third party by the Party
owning the confidential information; (f) approved by the other Party
for disclosure; or (g) required to be disclosed pursuant to a
requirement of a governmental agency or law so long as the disclosing
Party provides the other party with notice (if possible) of such
requirement prior to any such disclosure.
PAGE 11
<PAGE>
15. INDEMNIFICATION
15.1 ADP shall defend, indemnify and hold Concur, its successors,
assigns, officers, directors, employees, associates or agents
harmless from and against any and all claims and causes of
action brought against Concur, including any and all damages,
losses, expenses, attorneys' fees, costs and liabilities
sustained by Concur arising out of the failure of ADP to meet
its obligations to state and federal laws and under this
Agreement. ADP shall also indemnify and hold harmless Concur,
at ADP's own cost and expense, from any claims, actions, suits
or proceedings arising out of any unauthorized representations
or warranties made by ADP relating to the Concur Products and
ADP shall hold Concur harmless from and against any and all
costs (including reasonable attorney's fees), damages,
interest and liabilities assessed against Concur in connection
with any such claim, action, suit or proceeding.
15.2 Concur shall defend, indemnify and hold harmless ADP, its
successors, assigns, officers, directors, employees,
associates or agents harmless from and against any and all
claims and causes of action brought against ADP, including any
and all damages, losses, expenses, attorneys' fees, costs and
liabilities sustained by ADP arising out of the failure of the
Concur to meet its obligations to state and federal laws and
under this agreement . Concur shall also indemnify and hold
harmless ADP, at Concur's own cost and expense, from any
claims, actions, suits or proceedings asserted or brought in
connection with any allegations that the Concur Products
infringe or violate any patent, copyright, trade secret or
other proprietary right of any third party (excluding claims
that the name chosen by ADP to market the Concur Products
infringes a Trademark or service mark of a third party) and
Concur shall hold ADP harmless from and against any and all
costs (including reasonable attorneys' fees), damages,
interest and liabilities assessed against or incurred by ADP
in connection with any such claim, action, suit or proceeding;
provided that ADP has taken all reasonable steps to mitigate
--------
any potential damages which may result, provided that such
steps do not require ADP to incur any out-of-pocket costs or
expenses. ADP agrees to promptly notify Concur of any and all
threats, claims and proceedings arising under this
indemnification.
16. MISCELLANEOUS
16.1 Successors and Assigns. This Agreement may not be assigned by
----------------------
either Party without the written consent of the other Party,
which consent shall not be unreasonably withheld.
16.2 Governing Law. This Agreement shall be governed, construed and
-------------
interpreted in accordance with the laws of the state of New
York , without giving effect to its conflicts of law
principles.
16.3 Notices. Any notice required or permitted by this Agreement
-------
shall be in writing and shall be deemed to have been given
upon receipt, when delivered personally or by courier,
overnight delivery service or confirmed facsimile or
electronic mail transmission, or forty-eight (48) hours after
being deposited in the regular mail as certified or registered
mail (airmail if sent internationally) with postage prepaid,
if such notice is addressed to the Party to be notified at
such Party's address, facsimile number or electronic mail
address as set forth below, or to such other address as the
applicable Party may designate by notice duly given in
accordance with this Section 16
PAGE 12
<PAGE>
To Concur:Concur Technologies, Inc.
---------
6222 185th Avenue Northeast
Redmond, WA 98052
Tel: (425) 702-8808
Fax: (425) 702-8828
Attention: Legal Department
To ADP:Automatic Data Processing, Inc.
------
1 ADP Boulevard
Roseland, NJ 07068
Attention: President, Major Accounts Division
With a copy to: General Counsel
16.5 Severability; Headings. If any provision of this Agreement is
----------------------
held to be unenforceable under applicable law, that provision
shall be deemed by the parties to be limited or eliminated to
the minimum extent necessary so that the Agreement shall
otherwise remain in full force and effect and enforceable.
Headings are for reference purposes only and in no way define,
limit, construe or describe the scope or extent of such
Section, or in any way affect this Agreement.
16.6 Entire Agreement. This Agreement supersedes all proposals,
----------------
written or oral, all negotiations, conversations, or
discussions by and between the Parties relating to the subject
matter of this Agreement. Any term of this Agreement may be
amended or waived only with the written consent of the Parties
or their respective permitted successors and assigns.
16.7 Independent Contractors. The relationship of the Parties is
-----------------------
that of independent contractors, and nothing contained in this
Agreement shall be construed to (a) give one Party the power
to direct or control the day-to-day activities of the other;
(b) constitute the Parties as partners, joint venturers,
co-owners or otherwise as participants in a joint undertaking,
or (c) allow one Party to create or assume any obligation on
behalf of the other Party for any purpose whatsoever. Nothing
in this Agreement shall prohibit either Party, its agents or
representatives from entering into the same or similar
agreements with any other Party.
16.8 Compliance with Laws. At their own expense, Concur and ADP
--------------------
will each comply with all applicable laws, regulations, rules,
ordinances and orders regarding their respective activities
related to this Agreement.
16.9 Counterparts; Electronic Signature. This Agreement may be
----------------------------------
executed in one or more counterparts, each of which will be
deemed an original and all of which will be deemed to be one
instrument. To expedite the process of entering into this
Agreement, the Parties acknowledge that Transmitted Copies of
the Agreement will be equivalent to original documents until
such time as original documents are completely executed and
delivered. "Transmitted Copies" will mean copies that are
reproduced or transmitted via photocopy, facsimile or other
process of complete and accurate reproduction and
transmission.
16.10 Both ADP and Concur are committed to the highest levels of
product quality and customer service and agree to work
together to identify appropriate measures of quality and
service and to put in place processes and procedures aimed at
attaining these levels
PAGE 13
<PAGE>
to the satisfaction of both parties. Additionally, both
parties agree to conduct themselves and perform their
obligations according to the highest ethical and performance
standards.
The Parties have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.
CONCUR TECHNOLOGIES, INC.
By: /s/ Alan A Brown
-----------------------------------------
Name: Alan Brown
----------------------------------------
Title: EVP Marketing
---------------------------------------
Date:May 22, 2000
-----------------------------------------
ADP, INC.
By: /s/ George Stoeckert
-----------------------------------------
Name: George Stoeckert
---------------------------------------
Title: President, Major Accounts Division
----------
Date: May 17, 2000
----------------------------------------
PAGE 14
<PAGE>
EXHIBIT A
CONCUR MARKS
Concur eWorkplace(TM)
Concur eWorkplace ASP(TM)
Concur eWorkplace.com(TM)
Concur Business Advantage (no trademark)
Concur Business Intelligence(TM)
Concur Commerce Network(TM)
Concur Employee Advantage(TM)
Concur eWorkplace Administrator(TM)
Concur eWorkplace Analysis(TM)
Concur eWorkplace Database(TM)
Concur eWorkplace Elements(TM)
Concur eWorkplace Employee Administrator(TM)
Concur eWorkplace Employee Importer(TM)
Concur eWorkplace Extension Services(TM)
Concur eWorkplace Integration(TM)
Concur eWorkplace Interface Setup(TM)
Concur eWorkplace Mobile(TM)
Concur eWorkplace Reports(TM)
Concur eWorkplace Scheduler(TM)
Concur eWorkplace Server(TM)
Concur eWorkplace Server Manager(TM)
Concur eWorkplace Settings(TM)
Concur eWorkplace Tools(TM)
Concur eWorkplace Web Server(TM)
Concur Expense(TM)
Concur Expense Administrator for Windows(TM)
Concur Expense Auditor(TM)
Concur Expense Employee Exporter(TM)
Concur Expense IB/CP Administrator(TM)
Concur Expense Payment Manager(TM)
Concur Expense Policy(TM)
Concur Expense Policy Editor(TM)
Concur Expense Policy Generator(TM)
Concur Expense Processor(TM)
Concur Expense Processor for Windows(TM)
Concur Expense Scanner(TM)
Concur Expense Travel Itinerary(TM)
Concur Human Resources(TM)
Concur Human Resources Applicants Manager(TM)
Concur Human Resources Application Framework(TM)
Concur Human Resources Benefits Enrollment(TM)
Concur Human Resources Compensation Planner(TM)
Concur Human Resources Employee Manager(TM)
Concur Human Resources Payroll Information(TM)
Concur Human Resources PeopleSoft Connection(TM)
Concur Human Resources Personal Information(TM)
Concur Human Resources Skills Planner(TM)
Concur Human Resources Tesseract Connection(TM)
Concur Human Resources Time Tracker(TM)
Concur Human Resources Transaction Server(TM)
Concur Procurement(TM)
Concur Procurement Administrator(TM)
Concur Travel Network(TM)
PAGE 1
<PAGE>
EXHIBIT B
TERRITORY
[ * * * ]
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PAGE 2
<PAGE>
EXHIBIT C
CONCUR USER AGREEMENT AND SALES ORDER FORM
PAGE 3
<PAGE>
CONCUR eWORKPLACE.COM(TM) SERVICES AGREEMENT
TERMS AND CONDITIONS
(CONCUR EXPENSE)
THIS CONCUR eWORKPLACE.COM(TM)SERVICES AGREEMENT (the "Agreement") is made and
entered into as of the ____ day of ______________, 2000 between Concur
Technologies, Inc. ("Concur"), a Delaware corporation and
______________________________________________ ("Customer"), a
__________________________________ corporation.
1. CONCUR eWORKPLACE.COM
1.1 Services. Subject to the terms and conditions of this Agreement,
during the term of this Agreement, Concur will provide United States-based
employees of Customer with the services described in Exhibit A attached hereto
---------
(the "Services").
1.2 License. Concur hereby grants Customer a non-transferable,
non-exclusive license to access and use the Concur proprietary software
application(s) identified on the Exhibit A (the "Software") hosted by Concur
---------
solely for Customer's internal business purposes in connection with Concur's
provision of the Services. Customer shall make no attempt to (a) alter, modify,
improve, reverse engineer, disassemble or decompile the Software; (b) interfere,
in any manner, with the hosting of the Software or the Services associated
therewith; or (c) sublicense or transfer any of Customer's rights under this
Agreement, except as otherwise provided in this Agreement.
1.3 EFT/ACHEFT/ACH Services (Optional). Under this service ("EFT/ACH
Services"), Customer authorizes the bank originating debit/credit instructions
on Concur's behalf (the "Originating Bank") to debit Customer's corporate bank
account to fund all scheduled EFT/ACH payments to be made by the Originating
Bank as set forth below. Debit/credit instructions are issued on Customer's
behalf for payment of Customer's employee expense reports according to the
schedule designated by Customer. EFT/ACH Services are available only for so long
as Customer is considered creditworthy according to the procedure outlined in
Section 3.2, and provided Customer executes an Authorization to Debit form with
the Originating Bank. EFT/ACH payments to Customer's employees effected by the
Originating Bank are contingent upon Concur's timely receipt of confirmation of
funds transferred to the Originating Bank sufficient to effect such payments.
EFT/ACH Services shall be provided to Customer in accordance with the operating
rules of the National Automated Clearing House Association. With respect to
EFT/ACH Services, prior to the first credit to the account of any employee or
other individual (a "Payee"), Customer shall obtain a signed authorization from
such Payee (a "Payee Authorization"), which shall be in a form approved by
Concur and shall authorize the initiation of credits to such Payee's account and
debits of such account to recover funds credited to such account in error.
Customer shall retain a copy of each Payee Authorization during the period such
Payee Authorization is in effect and for two (2) years thereafter and shall
furnish such copy to Concur upon request. Customer also agrees to cooperate with
Concur to recover funds erroneously included in any EFT/ACH payment issued to
any Payee or credited to any Payee's account in error.
2. INSTALLATION AND USE
2.1 Setup. In consideration for the Setup Fee set forth on Exhibit A
hereto, Concur shall initially provide the configuration and database population
services identified in Exhibit A (the "Setup Services") to assist Customer in
---------
configuring the Software and entering the data required for Concur's provision
of the Services.
2.2 Customer Responsibilities. Customer agrees to cooperate with Concur and
to provide Concur with all necessary files and other information and assistance
required for Concur to successfully complete the Setup Services. Customer will
assign a member of its staff as a liaison person to assist and cooperate with
Concur with such Setup Services.
3. FEES
3.1 CONCUR eWORKPLACE.COM Fees. Customer will pay to Concur fees as
set forth in Exhibit A. The parties agree that the rates for these fees shall be
---------
fixed during the entire two-year term of this Agreement. After the initial two-
year term, Concur may change the fees payable hereunder upon thirty (30) days'
prior written notice to Customer, only if such change is part of a general price
change by Concur applicable to its overall client base for such affected items.
3.2 Payment. All payments will be made in U.S. dollars. Customer
agrees to make all payments under this Agreement by debit authorization from
Customer's bank to the Originating Bank. Customer's payment authorization shall
be set forth on Exhibit B. If, at any time, Customer is delinquent in the
payment of any invoice or is otherwise in breach of this Agreement, Concur may,
in its discretion, and without prejudice to its other rights, withhold Services
and access to the Software or may, at its option, require Customer to prepay for
Services. Late payments hereunder will accrue interest at the rate of one and
one half percent per month or the highest rate allowed by applicable law,
whichever is lower.
3.3 Taxes. All payments required by this Agreement are exclusive of all
national, state, municipal or other governmental excise, sales, value-added,
use, taxes and similar taxes now in force or enacted in the future, all of which
Customer will be responsible for and will pay in full, (other than taxes based
on Concur's net income).
4. DATA RETENTION
4.1 Data Retention. Customer agrees that Concur's obligation to
maintain any on-line data or information pertaining to Customer obtained in the
course of performance of the Services shall not extend beyond the later of the
term of this Agreement or thirty-six (36) months from the date on which such
data or information was generated.
5. LIMITED WARRANTY
5.1 Limitation. Although Concur has used its diligent efforts to ensure the
accuracy, completeness, timeliness and correct sequencing of the data and
information accessible through the Software and Services, Customer agrees that
neither Concur nor Concur's third-party software or service providers shall have
any liability whatsoever, for the accuracy, completeness, timeliness or correct
sequencing of the information or data, or for any decision made or action taken
by Customer in reliance upon such information or data, the Software or Services,
or for interruption of any data, information or any aspect of the Software or
Services.
5.2 Limited Warranty. Concur represents and warrants that (a) it will
perform the Services in a professional manner, using personnel having a level of
skill in the area commensurate with the requirements of the Services to be
performed; and (b) the Software will be Year 2000 ready; that is, the Software
will be no more likely to produce logical or arithmetic inconsistencies, will be
no more likely to produce any invalid or incorrect results or experience other
degradations in performance or functionality, when dealing with dates beyond
December 31, 1999 than they are when dealing with dates before December 31,
1999. Notwithstanding the foregoing, Concur makes no representations as to the
interoperability of the Software with any third parties' systems. Customer's
exclusive remedy and Concur's entire liability for any breach of the foregoing
warranties shall be Concur's use of reasonable efforts to reperform such non-
conforming Services so as to conform with the limited warranty set out in this
Section 5.2.
5.3 Service Level. Concur warrants that Customer will experience at least
97% up-time in the Services (not including (a) scheduled Software upgrades by
Concur or (b) any downtime scheduled by Concur's data center hosting partner).
Concur will be in breach of the foregoing warranty if the Services fail to
achieve 97% up-time (as measured over a period of a given month) in three
consecutive months. Customer's sole and exclusive remedy and Concur's entire
liability for the foregoing warranty shall be its right to terminate this
Agreement without any obligation to pay the Disconnection Fee. Concur will use
commercially reasonable care in providing the Services and shall provide all
such Services in a thorough and professional manner consistent with high
industry standards. The parties agree and acknowledge that Concur shall in no
event be held responsible for any problems with the Services attributable to the
public Internet infrastructure or the Company's ability to connect to the
Internet.
5.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN SECTIONS 5.2
AND 5.3 ABOVE, THE SOFTWARE
<PAGE>
AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND CUSTOMER'S USE OF THE SOFTWARE
AND SERVICES IS AT ITS OWN RISK. CONCUR DOES NOT MAKE AND HEREBY DISCLAIMS ANY
AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY
WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CONCUR
DOES NOT WARRANT THAT THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED, ERROR
FREE, OR COMPLETELY SECURE.
6. LIMITATIONS OF LIABILITY
6.1 Waiver. IN NO EVENT WILL CONCUR, CUSTOMER OR CONCUR'S THIRD-PARTY
SOFTWARE AND SERVICE PROVIDERS (INCLUDING, WITHOUT LIMITATION, THE ORIGINATING
BANK) BE LIABLE TO EITHER PARTY TO THIS AGREEMENT OR ANYONE ELSE FOR ANY
CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, INCLUDING BUT
NOT LIMITED TO LOST PROFITS, LOSSES AND DAMAGES THAT RESULT FROM INCONVENIENCE,
DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE SOFTWARE OR SERVICES,
EVEN IF CONCUR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
6.2 Limitation. Customer agrees that Concur's liability arising out of any
kind of legal claim under this Agreement or in any way connected with the
Software or Services will not exceed, in the aggregate, the total amount of fees
Customer paid to Concur under this Agreement during the six (6) months preceding
such claim. Concur shall not be liable for any loss or damage resulting from a
cause over which Concur does not have control, including without limitation,
failure of electronic or mechanical equipment or communication lines, telephone
or other interconnect problems, unauthorized access, theft, operator errors,
severe weather, earthquakes, and strikes or other labor problems.
6.3 Basis of Bargain; Failure of Essential Purpose. Customer
acknowledges that Concur has set its prices and entered into this Agreement in
reliance upon the limitations of liability and the disclaimers of warranties and
damages set forth herein, and that the same form an essential basis of the
bargain between the parties. The parties agree that the limitations and
exclusions of liability and disclaimers specified in this Agreement will survive
and apply even if found to have failed of their essential purpose.
6.4 ACH Payment. Neither Concur nor the Originating Bank shall be
liable for any damages to Customer arising from any decision to refrain from or
delay originating debit/credit entries or effecting scheduled payments to
Customer's employees in connection with Customer's employees' expense reports
(i) after reasonable efforts to verify such debit/credit entries by the required
security procedure have failed; (ii) due to Client's creditworthiness or (iii)
because Concur has not received timely funds from Customer as required by
Section 1.4 or Section 3.2, whichever is applicable. Customer agrees that Concur
will not be liable for any damages to Customer arising from any bank decision to
withhold the release of a Customer payment. Regardless of any such delay by a
bank, Customer will still be obligated to pay Concur for applicable expense
report processing fees as set forth in Exhibit A.
7. FUNDING INDEMNIFICATION
7.1 Funding. Customer shall indemnify and hold harmless Concur from
and against any loss, liability, claim, damage or exposure (each, a "Loss")
arising from or in connection with any action, proceeding or claim made or
brought against Concur by any bank with whom Customer maintains a payment
account or funds for any Concur error, omission or failure incident or pursuant
to Concur providing the Services to Customer that would have been corrected by
Concur except Customer refused or was unable to fund or reimburse the bank.
7.2 Debits. Customer shall be liable for debits initiated by Concur
hereunder. Customer unconditionally promises to pay to Concur the amount of any
unfunded payment file (including any debit which is returned to Concur because
of insufficient or uncollected funds or for any other reason) upon demand and
interest thereon at the rate set forth in Section 3.2. Also, if any debit to a
Payee's account reversing or correcting a previously submitted credit(s) is
returned for any reason, Customer unconditionally promises to pay the amount of
such debit upon demand and interest thereon at the rate set forth in Section
3.2. Customer shall be liable for, and shall indemnify Concur against, any loss,
liability, claim, damage or exposure arising from or in connection with any
fraudulent or criminal acts of Customer's employees.
7.3 Employee Claims. Customer shall indemnify and hold harmless Concur
from and against any loss, liability, claim, damage or exposure (each, a "Loss")
arising from or in connection with any action, proceeding or claim made or
brought against Concur by or on behalf of an employee, agent or other person
under the control of Customer which relates to the subject matter of this
Agreement (except where an error by Concur in performing its obligations under
this Agreement caused the loss to such employee).
8. OWNERSHIP; INTELLECTUAL PROPERTY INDEMNIFICATION
Concur and/or its suppliers own all right, title and interest in and to the
Software and other software, hardware and other technology used in connection
with Concur's provision of the Services, including all worldwide intellectual
property rights therein. Nothing herein shall be construed as granting to
Customer a license or any other right under any patents, trademark, trade
secret, or copyright which Concur may have or obtain relating to the Software
except as expressly provided herein. Concur will indemnify, defend and hold
harmless Customer against any claim, suit, or proceeding brought against
Customer based on a claim that the Software or Services infringe any third
party's copyright or trademark rights, U.S. patent, or misappropriates a third
party's trade secrets (a "Claim"); provided that (i) Concur is notified promptly
in writing of such claim; (ii) Concur is given sole authority and control of the
defense or settlement of such Claim and (iii) Customer provides all reasonable
information and assistance requested by Concur (at Concur's reasonable expense)
to handle the defense or settlement of any such Claim. Concur agrees to pay all
damages and costs (including without limitation reasonable attorneys' fees)
finally awarded by a court of competent jurisdiction against Customer resulting
from any such Claim.
9. PROPRIETARY INFORMATION
The information accessible through the Software and Services is protected by
copyright. Customer agrees not to reproduce, retransmit, disseminate, sell,
distribute, publish, broadcast, circulate or commercially exploit such
information in any manner without Concur's express consent, nor to use such
information for any unlawful purpose or for any purpose contrary to the terms of
this Agreement. Customer agrees to protect the Software and Services with at
least the same degree of care and confidentiality (but, in no event, less than a
reasonable degree) which Customer uses to protect its own confidential
information.
10. PUBLIC ANNOUNCEMENTS
Neither party shall use the name or marks, or refer to the identity of the other
party, in advertising, publicity, promotional marketing material or
correspondence, unless the prior written consent of the other party has been
obtained, provided, however, that Concur may use Customer's name in materials
containing lists of customers which Concur may publish or use for promotional
purposes from time to time so long as (a) Customer's name will not appear with
any greater prominence than the names of the other customers on such lists and
(b) Customer's name will not be used in any manner that implies a special
endorsement of Concur by Customer.
11. CONFIDENTIALITY
Each party agrees to preserve the confidentiality of all the terms and pricing
of this Agreement, the results of any benchmark testing of the Software (or any
component thereof) or the Services, and information it has received from the
other party that identifies or can be used to identify the person or Customer to
whom such information relates.
12. IDENTIFICATION
Customer is responsible for ensuring the confidentiality of its corporate ID,
and the user ID(s) and password(s) of persons Customer authorizes to use the
Services. Customer will be responsible for all transactions entered through and
under its corporate ID, user ID(s) and password(s), and any such transactions
will be deemed to have been completed by Customer. Customer agrees to maintain a
current list of all persons
<PAGE>
authorized to administer the configuration and operation of the Services and to
notify Concur of changes to authorized personnel. In no event will Concur be
liable for the foregoing obligations or the failure by Customer to fulfill such
obligations.
13. TERM; TERMINATION
The term of this Agreement shall be two (2) years. The term of the Agreement
will be automatically extended (a) for an additional one (1) year period unless
terminated in writing by Concur or Customer at least thirty (30) days before the
end of the initial two (2) year period and (b) thereafter, for successive
additional one (1) year periods unless terminated in writing at least thirty
(30) days before the end of the then-current one (1) year period by Concur or
Customer. Concur may terminate this Agreement, following notice by Concur to
Customer and subject to a sixty (60) day cure period, in the event of: (i)
unauthorized use of the Software or Services; (ii) material breach of this
Agreement; (iii) any disruption of Concur's access to the Software caused by
Customer's negligence or misconduct; or (iv) any materially adverse change that
prevents Customer's satisfactory fulfillment of the terms of this Agreement.
Customer may terminate this Agreement, following notice by Customer to Concur
and subject to a sixty (60) day cure period, in the event of a material breach
by Concur of Concur's warranty hereunder or of any of Concur's other material
obligations under this Agreement. In the event of a termination of this
Agreement for any reason, Customer shall be obligated to pay Concur for any fees
accrued through the date of the termination. In the event of a termination of
this Agreement prior to the end of its initial two-year term for any reason,
other than a material breach by Concur, Customer shall be liable to Concur for
payment of the Disconnection Fee set forth in Exhibit A. Upon termination of
---------
this Agreement for any reason, Customer's passwords and/or user ID(s) will be
invalidated.
14. NOTICES
Unless otherwise notified by the other in writing pursuant to this Section 14,
each party will send all notices to the other at the addresses set forth below
to the attention of the Contracts Administration department in the case of
Concur. The parties may deliver notices pursuant to this Agreement by facsimile
or electronic transmission. Each party agrees that the delivery of any notice by
facsimile or electronic transmission shall have the same force and effect as
delivery of an original notice and that each party may use such facsimile or
electronic transmission as evidence of the delivery of the notice to the same
extent that an original notice could be used. Execution and delivery of this
Agreement may be evidenced by facsimile transmission.
15. MISCELLANEOUS
15.1 Governing Law. This agreement will be governed by and construed in
accordance with the laws of the state of Washington, excluding those laws that
direct the application of the laws of another jurisdiction.
15.2 Arbitration; Venue. Any dispute or controversy arising under this
Agreement shall be finally settled by arbitration conducted in accordance with
the then existing Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award may be entered in any court having
jurisdiction thereof; provided that nothing in this Section 15.2 shall prevent a
party from applying to a court of competent jurisdiction to obtain a temporary
relief pending resolution of the dispute through arbitration. The parties agree
that service of any notices in the course of such arbitration shall be valid and
sufficient in the County of King in the State of Washington. Any action or
proceeding to enforce the terms of this Agreement shall be brought in a court of
competent jurisdiction located in the County of King and the parties hereby
consent to the jurisdiction of such courts for purposes of any such action or
proceeding.
15.3 Assignment. This Agreement may not be assigned or transferred by
either party without the prior written permission of the other party, which
permission shall not be unreasonably withheld. Any attempted assignment without
such consent will be void. Notwithstanding the foregoing, either party may
assign this Agreement, without the other party's permission, in connection with
any merger, consolidation, sale of all or substantially all of such assigning
party's assets, or any other similar transaction, provided that such assignee
agrees to be bound by the terms and conditions of this Agreement, including the
obligation to pay a greater aggregate amount of fees due to any greater usage by
such assignee. Customer agrees that Concur may subcontract the hosting and other
services to be performed in connection with this Agreement, provided that any
such subcontracting arrangement will not relieve Concur of any of its
obligations hereunder.
15.4 Waiver and Severability. Failure to enforce any term or condition of
this Agreement shall not be a waiver of the right to later enforce such term or
condition or any other term or condition of this Agreement. If any provision of
this Agreement is found to be void or unenforceable, that provision will be
enforced to the maximum extent possible, and the remaining provisions of this
Agreement will remain in full force and effect.
15.5 Changes to Service. Subject to the terms of Section 3, Concur has the
reasonable right to effect changes to the terms under which the Services are
offered; provided, however, that Concur shall not effect any changes that would
materially reduce the overall level of beneficial service previously being
offered.
15.6 Force Majeure. Except for the obligation to pay money,
neither party will be liable for failure or delay in performance under this
Agreement due to any cause beyond its reasonable control, including act of war,
acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or
dispute, governmental act or failure of the Internet, provided that the delayed
party: (a) gives the other party prompt notice of such cause, and (b) uses its
reasonable commercial efforts to correct promptly such failure or delay in
performance.
15.7 Relationship of Parties. Concur and Customer are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between Concur and
Customer. Neither Concur nor Customer will have the power to bind the other or
incur obligations on the other's behalf without the other's prior written
consent, except as otherwise expressly provided herein.
15.8 Entire Agreement. This Agreement is the entire agreement with respect
to the subject matter hereof and supersedes any previous agreement with respect
to the subject matter hereof.
15.9 Survival. The terms and conditions of this Agreement that by their
sense and context are intended to survive after performance of the obligation
hereunder shall survive termination or expiration of this Agreement, including
but not limited to Sections 6, 8, 9, 10, 11, 14 and 15 of the Agreement.
<PAGE>
Customer, by its duly authorized representative, signifies its
agreement and acceptance of the terms and conditions set forth in this Agreement
by the signature below.
CUSTOMER
By:______________________________
Print Name:______________________
Title:___________________________
Date:____________________________
Address:_________________________
_________________________
_________________________
_________________________
<PAGE>
EXHIBIT A-CONCUR EXPENSE
SERVICES
(a) Setup Services:
--------------
CONCUR eWORKPLACE.COM/Expense Reporting Service Options
. Defined system configuration options
. Import of Employee data (requires Customer supplied ASCII
electronic employee file)
. ASCII financial feed available for download
. Standardized report templates
. Corporate card prepopulation set-up (optional)
. Corporate card remittance file set-up (optional)
. Electronic Funds Transfer (EFT)/ACH payment processing (optional)
(b) Basic Services (included in Monthly Service Charge):
----------------------------------------------------
Application Hosting Service (CONCUR eWORKPLACE.COM)
. Expense Web (travelers and managers) - Provides for input,
submission and initial manager approval of expense reports. Audit
rules can be applied to ensure policy compliance.
. Expense Auditor - Defines rules and policies to be audited during
the expense report creation and approval process. Exceptions are
flagged for review and action.
. Expense Processor - Back office review, approval and auditing of
expense reports.
. Expense Payment Manager - Releases approved reports for payment,
generates payment files according to your reimbursement
preferences, and generates a standard GL interface file.
. Concur Analysis Tools - Provides multiple reports and report
options for analyzing spending by employee, vendor, category,
etc. Most reports include drill-down functionality, displaying
increasing levels of detail.
. Concur eWorkplace Tools
. Administrator - Setup and administer Company News, How Do I,
Tip of the Day and Application Bar (which provides links to
other applications and Web sites)
. Employee Administrator - Set-up and activation of new
employees. Administration of existing employees. Set-up and
administration of credit card information.
. Settings - Define company-level settings for Concur
eWorkplace.com, including workflow, email notification, Web
settings and more.
. First 50 users per month
Application and Associated Services Technical Support
. Support for application and associated services. Browser, email,
Internet connections, company policies and procedures are
Customer's responsibility.
. Second-tier support (End-users are required to call Customer's
help desk for assistance) for two (2) named users.
. Phone support is available 6:00am - 6:00pm PST (877) 879-0204.
. Holidays excluded: New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day, Day after Thanksgiving and
Christmas Day. Concur reserves the right to change
observed/published holidays.
. Product description: http://www.concureworkplace.com
-------------------------------
(c) Optional Training Manuals:
Training QuickStart Guides -- QuickStart guides are a supplemental training aid
to assist end users. They can be ordered for $1.50 per guide (in minimum
increments of 25 guides) plus applicable taxes and shipping charges.
<PAGE>
EXHIBIT A - CONCUR EXPENSE (Continued)
Pricing
(a) Setup Fee: $[ * * * ] due upon execution of this Agreement)
(b) Monthly Service Charge: $[ * * * ]
-
(c) Service Fees: See Table Below
---------------
================================================================================
FEE PER (Optional Service)
NUMBER OF ACTIVE USERS ACTIVE USER EFT/ACH FEE
PER MONTH PER MONTH PER MONTH
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
--------------------------------------------------------------------------------
[ * * * ] [ * * * ] [ * * * ]
================================================================================
================================================================================
MONTHLY SERVICE CHARGE The Monthly Service Charge will be
BILLING waived for the first monthly billing
period after this Agreement is signed.
--------------------------------------------------------------------------------
EFT FEES EFT Fees apply if the Customer chooses
to use Concur eWorkplace.com's EFT/ACH
optional payment services.
--------------------------------------------------------------------------------
SERVICE FEES Service Fees are based on the number of
active users during a given month. For
these purposes, an "active user" is
considered an employee or
consultant/contractor of Customer who
has submitted one or more expense
reports using the Software.
--------------------------------------------------------------------------------
DISCONNECTION FEE Calculated by multiplying the average
monthly billing from commencement of the
Agreement to the date of termination by
the number of months remaining in the
Agreement term.
--------------------------------------------------------------------------------
CONFIGURATION CHANGE FEE Occasionally, Customers may require
updates to their original configuration
to accommodate changes in their
business. Examples include, but are not
limited to, a change to the
reimbursement method, implementation of
a new financial system and a change to
the Chart of Accounts, or the
incorporation of new employees for a
recent company merger. In each case,
these could require setup, testing and
deployment assistance from our Account
Services Team. There will be a fee for
each configuration change after the
client has completed the initial
implementation cycle and the monthly
billing period has been initiated. The
typical fee for changes is $[ * * * ],
but may be more depending on your needs.
Upon request, an estimate will be
provided for your requirements.
================================================================================
(d) Optional Training Manuals:
-------------------------
Training QuickStart Guides -- QuickStart guides can be ordered for
$[ * * * ] per guide (in minimum increments of 25 guides) plus applicable taxes
and shipping charges.
**Note: Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE>
EXHIBIT B - CONCUR EXPENSE
PAYMENT AUTHORIZATION
AUTOMATIC MONTHLY PAYMENT
An email will be sent each month with a URL link to an electronic bill for your
review. The electronic bill will provide a summary invoice that can be printed
for your records and drill-down capability to view a detailed listing of all
active users during the applicable period. The automatic monthly payment will be
initiated on the same day that the invoice is generated.
General Information Please complete the following information:
Company Name: _____________________________________________________
Billing Contact: _____________________________________________________
Contact Email Address: _____________________________________________________
Federal Tax ID: _____________________________________________________
Bank Name: _____________________________________________________
Bank Account Name: _____________________________________________________
(if different than company name)
Account Number: _____________________________________________________
Account Routing Number: _____________________________________________________
(must be 9 digits)
I, the undersigned, on behalf of Customer, do hereby give Concur the
authorization to use the above information to bill and receive payment of all
charges incurred for the Services under this Agreement.
Signature _______________________________ Date__________________________
Name _______________________________ Title_________________________
<PAGE>
EXHIBIT D
PRICE LISTS
See Exhibit A of Exhibit C, Pricing
