<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1999
REGISTRATION NO. 333-76987
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
COMMERCE ONE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7372 68-0322810
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) Number)
</TABLE>
----------------
1600 RIVIERA AVENUE
WALNUT CREEK, CALIFORNIA 94596
(925) 941-6000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
----------------
MARK B. HOFFMAN
CHIEF EXECUTIVE OFFICER
1600 RIVIERA AVENUE
WALNUT CREEK, CALIFORNIA 94596
(925) 941-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
COPIES TO:
DAVID J. SEGRE STEVEN M. SPURLOCK
N. ANTHONY JEFFRIES ANTHONY J. MCCUSKER
LINDA M. CUNY JOHN F. DIETZ
ELIZABETH C. HEWITT Gunderson Dettmer Stough
Wilson Sonsini Goodrich & Rosati Villeneuve Franklin & Hachigian, LLP
Professional Corporation 155 Constitution Drive
650 Page Mill Road Menlo Park, California 94025
Palo Alto, California 94304 (650) 321-2400
(650) 493-9300
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
----------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a),
MAY DETERMINE.
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<PAGE>
EXPLANATORY NOTE
The purpose of this Amendment No. 1 is solely to file certain exhibits to
the Registration Statement as set forth below as in Item 16(a) of Part II.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------
<C> <S>
1.1* Form of Underwriting Agreement.
2.1** Agreement and Plan of Reorganization by and among the
Registrant, Blackhawk Acquisition Corporation, VEO Systems,
Inc., the Shareholders named therein, and U.S. Bank Trust,
N.A., dated November 25, 1998.
3.1** Restated Certificate of Incorporation of the Registrant to be
in effect after the closing of the offering made under this
Registration Statement.
3.2** Bylaws of the Registrant to be in effect after the closing of
the offering made under this Registration Statement.
4.1** Specimen Common Stock Certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between the Registrant and
each of its directors and officers.
10.2** Form of 1997 Incentive Stock Option Plan and form of
agreements thereunder.
10.3** Form of 1999 Employee Stock Purchase Plan and form of
agreements thereunder.
10.4** Amended and Restated 1995 Stock Option Plan and form of
agreement thereunder.
10.5 Form of 1999 Director Option Plan and form of agreements
thereunder.
10.6** VEO Systems, Inc. Option Plan and form of agreement
thereunder.
10.7+ Master Software License and Services Agreement between the
Registrant and Nippon Telegraph and Telephone Corporation
dated April 16, 1999.
10.8+ Governance Agreement between the Registrant and British
Telecommunications, plc., dated March 26, 1999.
10.9+ Marketing Agreement between the Registrant and British
Telecommunications, plc., dated March 26, 1999.
10.10+ MarketSite License Agreement between the Registrant and
British Telecommunications, plc., dated March 25, 1999.
10.11+ Amended and Restated Trading Agreement between the Registrant
and British Telecommunications, plc., dated March 25, 1999.
10.12+ Marketing Agreement between the Registrant and MCI Systemhouse
Corporation dated August 4, 1998.
10.13+ Agreement between the Registrant and PricewaterhouseCoopers
LLP dated September 2, 1998.
23.1** Consent of Ernst & Young LLP, Independent Auditors.
23.2** Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.3* Consent of Wilson Sonsini Goodrich & Rosati (see Exhibit 5.1).
24.1** Power of Attorney (see page II-5).
27.1** Financial Data Schedule.
</TABLE>
- --------------
+ Certain portions of this exhibit have been granted confidential treatment by
the Commission. The omitted portions have been separately filed with the
Commission.
* To be filed by amendment.
** Previously filed.
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 1 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Walnut Creek, State of California, on the 20th day of May, 1999.
<TABLE>
<S> <C> <C>
COMMERCE ONE, INC.
By: /s/ MARK B. HOFFMAN
-----------------------------------------
MARK B. HOFFMAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
President, Chief Executive
/s/ MARK B. HOFFMAN Officer and Chairman of
- ------------------------------ the Board (Principal May 20, 1999
MARK B. HOFFMAN Executive Officer)
Vice President and Chief
* Financial Officer
- ------------------------------ (Principal Financial May 20, 1999
PETER F. PERVERE Officer)
*
- ------------------------------ Director May 20, 1999
ASIM ABDULLAH
*
- ------------------------------ Director May 20, 1999
JOHN V. BALEN
*
- ------------------------------ Director May 20, 1999
WILLIAM B. ELMORE
*
- ------------------------------ Director May 20, 1999
KENNETH C. GARDNER
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
- ------------------------------ Director
THOMAS GONZALES
*
- ------------------------------ Director May 20, 1999
WILLIAM J. HARDING
- ------------------------------ Director
JOHN SWINGEWOOD
*
- ------------------------------ Director May 20, 1999
JAY M. TENENBAUM
*
- ------------------------------ Director May 20, 1999
JEFFREY T. WEBBER
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ MARK B. HOFFMAN
-------------------------
MARK B. HOFFMAN
ATTORNEY-IN-FACT
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------
<C> <S>
1.1* Form of Underwriting Agreement.
2.1** Agreement and Plan of Reorganization by and among the
Registrant, Blackhawk Acquisition Corporation, VEO Systems,
Inc., the Shareholders named therein, and U.S. Bank Trust,
N.A., dated November 25, 1998.
3.1** Restated Certificate of Incorporation of the Registrant to be
in effect after the closing of the offering made under this
Registration Statement.
3.2** Bylaws of the Registrant to be in effect after the closing of
the offering made under this Registration Statement.
4.1** Specimen Common Stock Certificate.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between the Registrant and
each of its directors and officers.
10.2** Form of 1997 Incentive Stock Option Plan and form of
agreements thereunder.
10.3** Form of 1999 Employee Stock Purchase Plan and form of
agreements thereunder.
10.4** Amended and Restated 1995 Stock Option Plan and form of
agreement thereunder.
10.5 Form of 1999 Director Option Plan and form of agreements
thereunder.
10.6** VEO Systems, Inc. Option Plan and form of agreement
thereunder.
10.7+ Master Software License and Services Agreement between the
Registrant and Nippon Telegraph and Telephone Corporation
dated April 16, 1999.
10.8+ Governance Agreement between the Registrant and British
Telecommunications, plc., dated March 26, 1999.
10.9+ Marketing Agreement between the Registrant and British
Telecommunications, plc., dated March 26, 1999.
10.10+ MarketSite License Agreement between the Registrant and
British Telecommunications, plc., dated March 25, 1999.
10.11+ Amended and Restated Trading Agreement between the Registrant
and British Telecommunications, plc., dated March 25, 1999.
10.12+ Marketing Agreement between the Registrant and MCI Systemhouse
Corporation dated August 4, 1998.
10.13+ Agreement between the Registrant and PricewaterhouseCoopers
LLP dated September 2, 1998.
23.1** Consent of Ernst & Young LLP, Independent Auditors.
23.2** Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.3* Consent of Wilson Sonsini Goodrich & Rosati (see Exhibit 5.1).
24.1** Power of Attorney (see page II-5).
27.1** Financial Data Schedule.
</TABLE>
- --------------
+ Certain portions of this exhibit have been granted confidential treatment by
the Commission. The omitted portions have been separately filed with the
Commission.
* To be filed by amendment.
** Previously filed.
<PAGE>
COMMERCE ONE, INC
1999 DIRECTOR OPTION PLAN
1. PURPOSES OF THE PLAN. The purposes of this 1999 Director Option
Plan are to attract and retain the best available personnel for service as
Outside Directors (as defined herein) of the Company, to provide additional
incentive to the Outside Directors of the Company to serve as Directors, and
to encourage their continued service on the Board.
All options granted hereunder shall be nonstatutory stock options.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "BOARD" means the Board of Directors of the Company.
(b) "CODE" means the Internal Revenue Code of 1986, as amended.
(c) "COMMON STOCK" means the common stock of the Company.
(d) "COMPANY" means Commerce One, Inc., a Delaware corporation.
(e) "DIRECTOR" means a member of the Board.
(f) "DISABILITY" means total and permanent disability as defined in
section 22(e)(3) of the Code.
(g) "EMPLOYEE" means any person, including officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. The payment
of a Director's fee by the Company shall not be sufficient in and of itself to
constitute "employment" by the Company.
(h) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(i) "FAIR MARKET VALUE" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination as reported in
THE WALL STREET JOURNAL or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock for the last market
<PAGE>
trading day prior to the time of determination, as reported in THE WALL
STREET JOURNAL or such other source as the Board deems reliable; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Board.
(j) "INSIDE DIRECTOR" means a Director who is an Employee.
(k) "OPTION" means a stock option granted pursuant to the Plan.
(l) "OPTIONED STOCK" means the Common Stock subject to an Option.
(m) "OPTIONEE" means a Director who holds an Option.
(n) "OUTSIDE DIRECTOR" means a Director who is not an Employee and
who is not the "beneficial owner" (as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended), directly or indirectly, of securities of the
Company representing 1% or more of the total voting power represented by the
Company's outstanding voting securities on the date of any grant hereunder.
(o) "PARENT" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(p) "PLAN" means this 1999 Director Option Plan.
(q) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 10 of the Plan.
(r) "SUBSIDIARY" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Internal Revenue Code of
1986.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 10 of
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 150,000 Shares (the "Pool"). The Shares may be authorized,
but unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, the unpurchased Shares which were subject thereto shall
become available for future grant or sale under the Plan (unless the Plan has
terminated). Shares that have actually been issued under the Plan shall not be
returned to the Plan and shall not become available for future distribution
under the Plan.
4. ADMINISTRATION AND GRANTS OF OPTIONS UNDER THE PLAN.
(a) PROCEDURE FOR GRANTS. All grants of Options to Outside Directors
under this Plan shall be automatic and nondiscretionary and shall be made
strictly in accordance with the following provisions:
-2-
<PAGE>
(i) No person shall have any discretion to select which
Outside Directors shall be granted Options or to determine the number of Shares
to be covered by Options.
(ii) Each Outside Director shall be automatically granted an
Option to purchase 15,000 Shares (the "First Option") on the date on which such
person first becomes an Outside Director, whether through election by the
shareholders of the Company or appointment by the Board to fill a vacancy;
provided, however, that an Inside Director who ceases to be an Inside Director
but who remains a Director shall not receive a First Option.
(iii) Each Outside Director shall be automatically granted an
Option to purchase 7,500 Shares (a "Subsequent Option") on the date of the
annual meeting of the stockholders of each year provided he or she is then an
Outside Director and if as of such date, he or she shall have served on the
Board for at least the preceding six (6) months.
(iv) Notwithstanding the provisions of subsections (ii) and
(iii) hereof, any exercise of an Option granted before the Company has obtained
shareholder approval of the Plan in accordance with Section 16 hereof shall be
conditioned upon obtaining such shareholder approval of the Plan in accordance
with Section 16 hereof.
(v) The terms of a First Option granted hereunder shall be
as follows:
(A) the term of the First Option shall be ten (10) years.
(B) the First Option shall be exercisable only while the
Outside Director remains a Director of the Company, except as set forth in
Sections 8 and 10 hereof.
(C) the exercise price per Share shall be 100% of the Fair
Market Value per Share on the date of grant of the First Option.
(D) subject to Section 10 hereof, the First Option shall
vest and become exercisable as to 100% of the Shares subject to the First Option
on the date of grant.
(vi) The terms of a Subsequent Option granted hereunder
shall be as follows:
(A) the term of the Subsequent Option shall be ten (10)
years.
(B) the Subsequent Option shall be exercisable only while
the Outside Director remains a Director of the Company, except as set forth in
Sections 8 and 10 hereof.
(C) the exercise price per Share shall be 100% of the Fair
Market Value per Share on the date of grant of the Subsequent Option.
(D) subject to Section 10 hereof, the Subsequent Option
shall become exercisable as to 100% of the Shares subject to the Subsequent
Option on the date of grant.
-3-
<PAGE>
(vii) In the event that any Option granted under the Plan
would cause the number of Shares subject to outstanding Options plus the number
of Shares previously purchased under Options to exceed the Pool, then the
remaining Shares available for Option grant shall be granted under Options to
the Outside Directors on a pro rata basis. No further grants shall be made
until such time, if any, as additional Shares become available for grant under
the Plan through action of the Board or the shareholders to increase the number
of Shares which may be issued under the Plan or through cancellation or
expiration of Options previously granted hereunder.
5. ELIGIBILITY. Options may be granted only to Outside Directors. All
Options shall be automatically granted in accordance with the terms set forth in
Section 4 hereof.
The Plan shall not confer upon any Optionee any right with respect to
continuation of service as a Director or nomination to serve as a Director, nor
shall it interfere in any way with any rights which the Director or the Company
may have to terminate the Director's relationship with the Company at any time.
6. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board or its approval by the shareholders of the
Company as described in Section 16 of the Plan. It shall continue in effect for
a term of ten (10) years unless sooner terminated under Section 11 of the Plan.
7. FORM OF CONSIDERATION. The consideration to be paid for the Shares to
be issued upon exercise of an Option, including the method of payment, shall
consist of (i) cash, (ii) check, (iii) other shares which (x) in the case of
Shares acquired upon exercise of an option, have been owned by the Optionee for
more than six (6) months on the date of surrender, and (y) have a Fair Market
Value on the date of surrender equal to the aggregate exercise price of the
Shares as to which said Option shall be exercised, (iv) consideration received
by the Company under a cashless exercise program implemented by the Company in
connection with the Plan, or (v) any combination of the foregoing methods of
payment.
8. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option
granted hereunder shall be exercisable at such times as are set forth in
Section 4 hereof; provided, however, that no Options shall be exercisable until
shareholder approval of the Plan in accordance with Section 16 hereof has been
obtained.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may consist of any consideration and method of payment
allowable under Section 7 of the Plan. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such Shares, no right
to vote or receive dividends or any other rights as a
-4-
<PAGE>
shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. A share certificate for the number of Shares so
acquired shall be issued to the Optionee as soon as practicable after
exercise of the Option. No adjustment shall be made for a dividend or other
right for which the record date is prior to the date the stock certificate is
issued, except as provided in Section 10 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) TERMINATION OF CONTINUOUS STATUS AS A DIRECTOR. Subject to
Section 10 hereof, in the event an Optionee's status as a Director terminates
(other than upon the Optionee's death or Disability), the Optionee may exercise
his or her Option, but only within three (3) months following the date of such
termination, and only to the extent that the Optionee was entitled to exercise
it on the date of such termination (but in no event later than the expiration of
its ten (10) year term). To the extent that the Optionee was not entitled to
exercise an Option on the date of such termination, and to the extent that the
Optionee does not exercise such Option (to the extent otherwise so entitled)
within the time specified herein, the Option shall terminate.
(c) DISABILITY OF OPTIONEE. In the event Optionee's status as a
Director terminates as a result of Disability, the Optionee may exercise his or
her Option, but only within twelve (12) months following the date of such
termination, and only to the extent that the Optionee was entitled to exercise
it on the date of such termination (but in no event later than the expiration of
its ten (10) year term). To the extent that the Optionee was not entitled to
exercise an Option on the date of termination, or if he or she does not exercise
such Option (to the extent otherwise so entitled) within the time specified
herein, the Option shall terminate.
(d) DEATH OF OPTIONEE. In the event of an Optionee's death, the
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance may exercise the Option, but only within twelve (12)
months following the date of death, and only to the extent that the Optionee was
entitled to exercise it on the date of death (but in no event later than the
expiration of its ten (10) year term). To the extent that the Optionee was not
entitled to exercise an Option on the date of death, and to the extent that the
Optionee's estate or a person who acquired the right to exercise such Option
does not exercise such Option (to the extent otherwise so entitled) within the
time specified herein, the Option shall terminate.
9. NON-TRANSFERABILITY OF OPTIONS. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR
ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of Shares covered by each outstanding
Option, the number of Shares which have been authorized for issuance under the
Plan but as to which no Options have yet been granted or which have been
returned to the Plan upon cancellation or expiration of an Option, as well
-5-
<PAGE>
as the price per Share covered by each such outstanding Option, and the
number of Shares issuable pursuant to the automatic grant provisions of
Section 4 hereof shall be proportionately adjusted for any increase or
decrease in the number of issued Shares resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the Common
Stock, or any other increase or decrease in the number of issued Shares
effected without receipt of consideration by the Company after the closing of
the Company's first firmly underwritten public offering of its Common Stock;
provided, however, that conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration." Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of Shares subject
to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option has not
been previously exercised, it shall terminate immediately prior to the
consummation of such proposed action.
(c) MERGER OR ASSET SALE. In the event of a merger of the Company
with or into another corporation or the sale of substantially all of the assets
of the Company, outstanding Options may be assumed or equivalent options may be
substituted by the successor corporation or a Parent or Subsidiary thereof (the
"Successor Corporation"). If an Option is assumed or substituted for, the
Option or equivalent option shall continue to be exercisable as provided in
Section 4 hereof for so long as the Optionee serves as a Director or a director
of the Successor Corporation. Following such assumption or substitution, if the
Optionee's status as a Director or director of the Successor Corporation, as
applicable, is terminated other than upon a voluntary resignation by the
Optionee, the Option or option shall become fully exercisable, including as to
Shares for which it would not otherwise be exercisable. Thereafter, the Option
or option shall remain exercisable in accordance with Sections 8(b) through (d)
above.
If the Successor Corporation does not assume an outstanding Option or
substitute for it an equivalent option, the Option shall become fully vested
and exercisable, including as to Shares for which it would not otherwise be
exercisable. In such event the Board shall notify the Optionee that the
Option shall be fully exercisable for a period of thirty (30) days from the
date of such notice, and upon the expiration of such period the Option shall
terminate.
For the purposes of this Section 10(c), an Option shall be considered
assumed if, following the merger or sale of assets, the Option confers the
right to purchase or receive, for each Share of Optioned Stock subject to the
Option immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger
or sale of assets by holders of Common Stock for each Share held on the
effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority
of the outstanding Shares). If such consideration received in the merger or
sale of assets is not solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of the Option,
for each Share of Optioned Stock subject to the Option, to be solely common
stock of the successor corporation or its Parent equal in fair market value
to the per share consideration received by holders of Common Stock in the
merger or sale of assets.
-6-
<PAGE>
11. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may at any time amend,
alter, suspend, or discontinue the Plan, but no amendment, alteration,
suspension, or discontinuation shall be made which would impair the rights of
any Optionee under any grant theretofore made, without his or her consent. In
addition, to the extent necessary and desirable to comply with any applicable
law, regulation or stock exchange rule, the Company shall obtain shareholder
approval of any Plan amendment in such a manner and to such a degree as
required.
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated.
12. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for
all purposes, be the date determined in accordance with Section 4 hereof.
13. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, state securities laws, and the requirements of any stock exchange
upon which the Shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares, if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
Inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
14. RESERVATION OF SHARES. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
15. OPTION AGREEMENT. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
16. SHAREHOLDER APPROVAL. The Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months after the date the Plan is
adopted. Such shareholder approval shall be obtained in the degree and manner
required under applicable state and federal law and any stock exchange rules.
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<PAGE>
COMMERCE ONE, INC.
DIRECTOR OPTION AGREEMENT
Commerce One, Inc., (the "Company"), has granted to ______________________ (the
"Optionee"), an option to purchase a total of _____________________ ( )
shares of the Company's Common Stock (the "Optioned Stock"), at the price
determined as provided herein, and in all respects subject to the terms,
definitions and provisions of the Company's 1999 Director Option Plan (the
"Plan") adopted by the Company which is incorporated herein by reference. The
terms defined in the Plan shall have the same defined meanings herein.
1. NATURE OF THE OPTION. This Option is a nonstatutory option and is not
intended to qualify for any special tax benefits to the Optionee.
2. EXERCISE PRICE. The exercise price is $_______ for each share of
Common Stock.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term
in accordance with the provisions of Section 8 of the Plan as follows:
(a) RIGHT TO EXERCISE.
(i) This Option shall become exercisable as to one hundred
per cent (100%) of the Optioned Stock on the date of grant; provided, however,
that in no event shall any Option be exercisable prior to the date the
stockholders of the Company approve the Plan.
(ii) This Option may not be exercised for a fraction of a
share.
(iii) In the event of Optionee's death, disability or other
termination of service as a Director, the exercisability of the Option is
governed by Section 8 of the Plan.
(b) METHOD OF EXERCISE. This Option shall be exercisable by written
notice which shall state the election to exercise the Option and the number of
Shares in respect of which the Option is being exercised. Such written notice,
in the form attached hereto as Exhibit A, shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Secretary of the
Company. The written notice shall be accompanied by payment of the exercise
price.
4. METHOD OF PAYMENT. Payment of the exercise price shall be by any of
the following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) check; or
(c) surrender of other shares which (x) in the case of Shares
acquired upon exercise of an Option, have been owned by the Optionee for more
than six (6) months on the date of
<PAGE>
surrender, and (y) have a Fair Market Value on the date of surrender equal to
the aggregate exercise price of the Shares as to which said Option shall be
exercised; or
(d) delivery of a properly executed exercise notice together with
such other documentation as the Company and the broker, if applicable, shall
require to effect an exercise of the Option and delivery to the Company of the
sale or loan proceeds required to pay the exercise price.
5. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any applicable
federal or state securities or other law or regulations, or if such issuance
would not comply with the requirements of any stock exchange upon which the
Shares may then be listed. As a condition to the exercise of this Option, the
Company may require Optionee to make any representation and warranty to the
Company as may be required by any applicable law or regulation.
6. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by the Optionee. The
terms of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
7. TERM OF OPTION. This Option may not be exercised more than ten (10)
years from the date of grant of this Option, and may be exercised during such
period only in accordance with the Plan and the terms of this Option.
8. TAXATION UPON EXERCISE OF OPTION. Optionee understands that, upon
exercise of this Option, he or she will recognize income for tax purposes in an
amount equal to the excess of the then Fair Market Value of the Shares purchased
over the exercise price paid for such Shares. Since the Optionee is subject to
Section 16(b) of the Securities Exchange Act of 1934, as amended, under certain
limited circumstances the measurement and timing of such income (and the
commencement of any capital gain holding period) may be deferred, and the
Optionee is advised to contact a tax advisor concerning the application of
Section 83 in general and the availability a Section 83(b) election in
particular in connection with the exercise of the Option. Upon a resale of such
Shares by the Optionee, any difference between the sale price and the Fair
Market Value of the Shares on the date of exercise of the Option, to the extent
not included in income as described above, will be treated as capital gain or
loss.
DATE OF GRANT: ______________
COMMERCE ONE, INC.,
a Delaware corporation
By:
______________________________
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<PAGE>
Optionee acknowledges receipt of a copy of the Plan, a copy of which is attached
hereto, and represents that he or she is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all of the terms and
provisions thereof. Optionee hereby agrees to accept as binding, conclusive and
final all decisions or interpretations of the Board upon any questions arising
under the Plan.
Dated: _________________
__________________________________
Optionee
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<PAGE>
EXHIBIT A
DIRECTOR OPTION EXERCISE NOTICE
COMMERCE ONE, INC.
1600 Riviera Avenue
Walnut Creek, CA 94596
Attention: Corporate Secretary
1. EXERCISE OF OPTION. The undersigned ("Optionee") hereby elects to
exercise Optionee's option to purchase ______ shares of the Common Stock (the
"Shares") of Commerce One, Inc. (the "Company") under and pursuant to the
Company's 1999 Director Option Plan and the Director Option Agreement dated
_______________ (the "Agreement").
2. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that Optionee has
received, read and understood the Agreement.
3. FEDERAL RESTRICTIONS ON TRANSFER. Optionee understands that the
Shares must be held indefinitely unless they are registered under the Securities
Act of 1933, as amended (the "1933 Act"), or unless an exemption from such
registration is available, and that the certificate(s) representing the Shares
may bear a legend to that effect. Optionee understands that the Company is
under no obligation to register the Shares and that an exemption may not be
available or may not permit Optionee to transfer Shares in the amounts or at the
times proposed by Optionee.
4. TAX CONSEQUENCES. Optionee understands that Optionee may suffer
adverse tax consequences as a result of Optionee's purchase or disposition of
the Shares. Optionee represents that Optionee has consulted with any tax
consultant(s) Optionee deems advisable in connection with the purchase or
disposition of the Shares and that Optionee is not relying on the Company for
any tax advice.
5. DELIVERY OF PAYMENT. Optionee herewith delivers to the Company the
aggregate purchase price for the Shares that Optionee has elected to purchase
and has made provision for the payment of any federal or state withholding taxes
required to be paid or withheld by the Company.
6. ENTIRE AGREEMENT. The Agreement is incorporated herein by reference.
This Exercise Notice and the Agreement constitute the entire agreement of the
parties and supersede in their entirety all prior undertakings and agreements of
the Company and Optionee with respect to the subject matter hereof. This
Exercise Notice and the Agreement are governed by California law except for that
body of law pertaining to conflict of laws.
<PAGE>
Submitted by: Accepted by:
OPTIONEE: COMMERCE ONE, INC.
________________________________ By:_____________________________
Its:____________________________
Address:
Dated:__________________________ Dated:___________________________
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<PAGE>
Exhibit 10.7
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
This Master Software License and Services Agreement (the "Agreement") is
entered into as of this 16th day of April, 1999 (the "Effective Date"), by and
between Commerce One, Inc. a California corporation with offices located at 1600
Riviera Avenue, Walnut Creek, California 94596 ("Commerce One") and Nippon
Telegraph and Telephone Corporation, a Japanese corporation with offices located
at 3-19-2, Nishi-Shinjuku, Shinjuku, Tokyo 163-8019, Japan ("NTT").
BACKGROUND
WHEREAS, Commerce One is developing or has the rights to the software and
documentation described in Section 1 below and desires to license NTT to use
such software on the terms and conditions stated herein; and
WHEREAS, NTT is interested in receiving a license from Commerce One to such
software and documentation on the terms and conditions stated herein, and
further desires to retain Commerce One to perform certain services specific to
Commerce One's software products as set forth herein; and
WHEREAS, Commerce One desires to perform such services for NTT; and
WHEREAS, NTT is interested in establishing an electronic commerce service
in Japan enabling businesses to buy and sell products over the Internet; and
WHEREAS, NTT and Commerce One intend to enter into an initial agreement
covering a pilot project and subsequently enter into a partnership agreement
with the intent to bring to market an internet based open trading community
connecting trading partners across Japan; and
WHEREAS, Commerce One and NTT wish to discuss the possibility of the
marketing of a localized version of the Software in Japan and the provision of
certain electronic commerce services using the localized Software in Japan.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions stated herein, the parties agree as follows:
1. DEFINITIONS.
1.1 "COMMERCE ONE TECHNOLOGY" shall mean (i) the Deliverables and any
and all technology, information, data, know-how, ideas, designs, software,
inventions, documentation, resources and all other tangible and intangible items
made, conceived or reduced to practice by Commerce One alone or jointly with
others hereunder, and (ii) all Intellectual Property rights in (i).
<PAGE>
1.2 "DELIVERABLE" shall mean an item identified as a deliverable in
the Statement of Work.
1.3 "DOCUMENTATION" shall mean any instructions, manuals or other
materials provided to NTT by Commerce One in connection with the Software.
1.4 "INTELLECTUAL PROPERTY" means any and all (by whatever name or
term known or designated) tangible and intangible and now known or hereafter
existing: copyrights (including derivative works, as defined by the United
States Copyright Act, thereof), trademarks, trade names, trade secrets, mask
work rights, know-how, patents and any other intellectual and industrial
property and proprietary rights, of every kind and nature throughout the
universe and however designated, and including all registrations, applications,
renewals and extensions thereof.
1.5 "PHASE II" shall have the meaning set forth in the Statement of
Work.
1.6 "SOFTWARE" shall mean the computer program(s) set forth in
EXHIBIT A in machine executable object code format and the Documentation,
together with Updates thereto and Deliverables provided to NTT in accordance
with the terms and conditions hereof.
1.7 "Specifications" means the technical specifications for the
Deliverables which will be developed in conjunction with the Statement of Work
in accordance with Section 4.5.
1.8 "STATEMENT OF WORK" shall mean a document setting forth in detail
the services and Deliverables to be performed and delivered by Commerce One
under this Agreement and an estimated schedule therefor. A preliminary version
of the Statement of Work is attached as EXHIBIT B. The Statement of Work may be
amended by the parties from time to time in accordance with this Agreement. Each
separate Statement of Work shall be sequentially numbered as EXHIBIT B
(e.g., EXHIBIT B-1, B-2, etc.).
1.9 "UPDATES" shall mean new versions of the Software that Commerce
One makes available generally to customers of the Software as part of the
support described in Section 3 below.
2. SCOPE.
2.1 RIGHT TO USE. Subject to the terms and conditions of this
Agreement, Commerce One grants NTT [*], without right of sublicense, to
install the Software at the Designated Sites (as defined below) and to use
the Software for internal business purposes only. Additionally, NTT can
provide access to MarketSite services to up to five (5) external business
partners during Phase II of this project. Further, it is understood and
agreed that beta versions of the Software provided hereunder to NTT are still
under development and are provided for
___________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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<PAGE>
experimental, evaluation purposes only. Accordingly beta versions of the
Software shall not be used in a production or commercial environment. Unless
otherwise specified herein, NTT shall install the double byte enabled version
of the Software, if any, solely at the locations in Japan set forth in
EXHIBIT D (collectively, the "Designated Sites"). Commerce One will use
reasonable efforts to timely complete the development of the double byte
enabled version of the Software. NTT agrees that it will not itself, or
through any third party, modify the Software or reverse engineer,
disassemble, decompile or otherwise attempt to derive source code from the
Software; use the Software to provide services to third parties, whether in
commercial timesharing, rental or sharing arrangements, or otherwise use the
Software on a "service bureau" basis.
2.2 COPIES. NTT shall not copy the Software, in whole or in part,
except for one (1) copy as necessary to archive such Software.
2.3 INSTALLATION. NTT shall install or, where applicable, shall allow
Commerce One to install, the Software at the Designated Sites for use in
accordance with Section 2.1 above.
2.4 INFORMATION. NTT shall provide information, including NTT
Confidential Information, as reasonably requested by Commerce One to ensure
compliance by NTT with the terms of this Agreement. In addition, and as a
condition of the grant of the license set forth in Section 2.1 above, NTT shall
permit Commerce One to operate "polling software" which monitors transactions
associated with the Software, and NTT shall at all times cooperate with Commerce
One to ensure that Commerce One has remote access to NTT's computers for such
purpose and that Commerce One's polling software operates correctly on NTT's
computers.
2.5 EVALUATION. NTT will participate in a pilot program for the
Software in accordance with the criteria set forth in EXHIBIT D ("Pilot
Program"). NTT shall designate a test coordinator (the "Coordinator" as the
primary contact for Commerce One during the term of this Agreement with respect
to the Pilot Program). NTT will cooperate and consult with Commerce One in the
evaluation of the Software based on NTT's operation, use, and testing of the
Software pursuant to the Pilot Program Criteria set forth in EXHIBIT D. During
the term of the Pilot Program, if NTT discovers errors or bugs in the Software,
the Coordinator will promptly call Commerce One to report such problems.
Commerce One shall, at any time and in its sole discretion replace, modify,
alter, improve, enhance or change the Software and in such event the replaced
version shall be deemed part of the Software. If Commerce One provides NTT with
a corrected or updated Software, NTT shall promptly install such Software solely
as a version replacement and erase from memory any and all copies of the
previous Software. It is understood that any corrected or updated versions of
the Software shall be used solely as version replacements and shall not expand
the number or scope of licenses granted herein.
2.6 EXCLUSIVITY. [*] "Indirect Materials" means materials used in
the day-to-day operation of a buyer entity's business and which are more
commonly referred to as maintenance, repair and operations materials or "MRO"
(e.g., desks, paper, pencils, chairs) and specifically excluding materials
that are directly incorporated into the ultimate product or service
____________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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<PAGE>
sold by such buyer entity to its customers. For the avoidance of doubt, it is
further understood and agreed that nothing in this Agreement or any of the
attachments hereto shall restrict Commerce One's ability to license the
Software to third parties for their own internal use in procuring goods or
services electronically on their own behalf for fulfillment of their own
internal business needs. [*] If the parties do not reach an agreement within
ten (10) business days of notice of such transaction by Commerce One, [*].
Upon the expiration of the Exclusivity Period, Commerce One shall have the
right to negotiate with any third parties regarding licensing the Software,
provided that Commerce One grants NTT the first right of negotiation. Such
first right of negotiation shall not preclude Commerce One from negotiating
with other third parties. This first right of negotiation period shall expire
three months from the date of the expiration of the Exclusivity Period.
3. SUPPORT. During Phase II, Commerce One will make available to NTT, [*]
such Software support including on-site and off-site support as Commerce One
makes available generally to its customers of the Software located in Japan.
4. CONSULTING SERVICES.
4.1 SERVICES. Commerce One shall use reasonable best efforts to
provide those services and/or deliver any Deliverables to NTT as set forth in
the applicable Statement of Work and NTT shall use reasonable efforts to
provide, or make available to Commerce One, free of charge, any information,
hardware or software resources or other materials of NTT, and assistance
reasonably required for the performance of such services and reasonable access
to NTT's facilities. Without limiting the foregoing, NTT shall use reasonable
efforts to perform those tasks and assume those responsibilities set forth in
the Statement of Work. The Statement of Work may also set forth certain
assumptions related to the services, and to the extent such assumptions are not
met or are inaccurate, the cost and schedule of the services may be affected.
NTT acknowledges and agrees that Commerce One's performance is dependent on
NTT's timely and effective satisfaction of all of NTT's responsibilities
hereunder and timely decisions and approvals by NTT. Commerce One is entitled to
rely on all decisions and approvals of NTT in connection with the services
provided hereunder. The information NTT has provided to Commerce One is true,
accurate and complete.
4.2 PERFORMANCE. Commerce One warrants that the Services shall be
performed in a professional and workmanlike manner using persons with skills and
experience appropriate to their function.
4.3 DELAYS. If NTT, or any third party acting on NTT's behalf, does
not provide any required item or service to Commerce One on a timely basis in
accordance with the applicable Statement of Work, then the dates set forth in
such Statement of Work which have been directly or indirectly affected by such
delay, shall be extended as reasonably necessary to account for such delay.
_________________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
-4-
<PAGE>
4.4 PROGRESS REPORTS; REVIEW MEETINGS. Commerce One will provide
to NTT progress reports regarding its work progress during development as set
forth in a Statement of Work or otherwise by mutual agreement. In addition,
the Project Managers (as defined below) shall participate in project review
meetings as set forth in a Statement of Work or otherwise by mutual
agreement. Any agreement reached among the parties at such meeting to modify
a Statement of Work shall be prepared in writing and duly signed by the
Project Manager of each party, and such revised Statement of Work shall be
binding upon the parties with respect to the subject matter thereof.
4.5 SPECIFICATIONS. The parties will work in good faith to
complete the Specifications for each Deliverable within thirty (30) days
prior to the delivery date for such Deliverable specified in the Statement of
Work. Upon written approval of both parties to the final version of the
Specifications for a Deliverable, such final version shall be deemed the
"Specifications" for such Deliverable for purposes of this Agreement. If
after such good faith discussions, the parties do not agree upon the
Specifications for a Deliverable within such thirty (30) day period, either
may terminate this Agreement with respect to such Deliverable by forty-five
(45) days prior written notice to the other party within thirty (30) days
after the expiration of such time period.
4.6 PROJECT MANAGERS. NTT and Commerce One shall each designate a
project manager who will be responsible for, and authorized to: (i) make
decisions regarding the Statement of Work; (ii) give any necessary approvals
in conjunction with the Statement of Work; and (iii) provide Commerce One
personnel with information and support for performance of the Statement of
Work.
4.7 MODIFICATIONS TO STATEMENT OF WORK. Should NTT desire to
change the services specified in the Statement of Work, or request additional
services not included in the Statement of Work, NTT shall submit the proposed
modification in writing to Commerce One. Commerce One may, as determined by
Commerce One, elect to perform such modification or additional services, and
if Commerce One elects to perform such modifications or additional services,
Commerce One will provide NTT with a cost estimate and schedule impact for
performing the modifications and/or additional services in a revised
Statement of Work. Upon NTT's written acceptance of the revised Statement of
Work, Commerce One will proceed to perform the modifications mutually agreed
to by the parties.
4.8 COMMENCEMENT CONDITION OF PHASE II: It is hereby understood
and agreed that Phase II shall be (i) commenced on or after NTT shall enter
into a certain letter of intent with its potential customer who desires to
receive an electronic procurement services from NTT by utilizing the
localized Japanese language version of the Software, and (ii) pursued by
taking the needs and requirements of the potential customer into due
consideration. [*]
4.9 PREFERRED STATUS. NTT will have the right to participate in
Commerce One's program for third party participation in periodic design
review meetings with Commerce
__________________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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<PAGE>
One's collaboration partners for the Software. In addition, Commerce One will
provide a dedicated Commerce One liaison to be located in Japan during Phase
II.
4.10 All members of Commerce One Resource (as set forth on EXHIBIT
F) shall, while working at the Designated Sites, observe and abide by the
laws and regulations of the country having jurisdiction over such location,
and all rules and regulations applicable at the Designated Sites, as well as
any and all instructions given by NTT, provided that such instructions are
reasonable. Commerce One shall at its sole discretion provide all members of
Commerce One Resource with appropriate guidance and otherwise cause them to
observe the provisions of this Agreement including the preceding paragraph.
NTT shall not be liable to Commerce One for any act or
omission of any member of Commerce One or for any accident while they are
staying at the Designated Sites or on the way to and from the Designated
Sites or to such personnel's home country. Commerce One, at its own cost,
shall subscribe to and maintain an insurance policy or policies covering any
accident referred to above, and any other appropriate property and liability
insurance for all members of Commerce One during their stay in the Designated
Sites.
Nothing contained herein shall be construed as creating or
requiring any employment or labor relationship between NTT and any member of
Commerce One .
When the services in each week are furnished, Commerce One
shall present a compiled weekly work sheet to NTT specifying works and dates
worked by each member of Commerce One Resource. Within seven (7) days after
receipt of the weekly work sheet, NTT shall verify the work sheet and issue
the accepted weekly work sheet to Commerce One. Should NTT fail to verify a
weekly work sheet, the services provided by Commerce One during the week in
question shall be deemed to have been accepted by NTT on the passage of said
seven (7) days. Should any defect or incorrectness be found in the work sheet
presented and so is pointed out by NTT, and agreed to as a defect or
incorrectness by Commerce One, Commerce One shall revise such defect or
incorrectness immediately and NTT shall verify and accept the revised work
sheet in the same way. It is hereby understood and agreed that NTT will not
accept any time stated in the work sheet as spent by a particular member of
Commerce One, if such work is not performed in accordance with this Agreement.
5. DELIVERY AND ACCEPTANCE.
5.1 DELIVERABLES. Upon completion of each Deliverable, Commerce
One shall deliver such Deliverable to NTT.
5.2 ACCEPTANCE PROCEDURE. Within twenty (20) days after receipt of
each Deliverable, NTT shall review, test and evaluate the Deliverable for
conformity with the Specifications and shall provide Commerce One with a
written acceptance of the Deliverable, or a written statement of defects to
be corrected. Commerce One shall promptly correct such defects, if any, and
return the Deliverable to NTT for retesting, review and reevaluation, and NTT
shall, within twenty (20) days of such redelivery, again provide Commerce One
with a list of defects which need to be corrected, if any. Failure of NTT to
provide Commerce One with a statement of acceptance or defects within the
applicable acceptance period shall be deemed
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<PAGE>
acceptance by NTT of the Deliverable. The foregoing procedure shall be
repeated until acceptance of each Deliverable by NTT; provided that if a
Deliverable is rejected five or more times by NTT and Commerce One has used
all reasonable efforts to correct the rejected Deliverable to bring it into
conformity with the Specifications, NTT will accept the Deliverables.
Notwithstanding the foregoing, Commerce One agrees to discuss with NTT the
possibility of redefining the specifications for the Deliverable.
5.3 FINAL ACCEPTANCE. Upon NTT's acceptance of each Deliverable,
Commerce One shall promptly provide NTT with one (1) master copy of the
Deliverable for use in accordance with the terms of this Agreement. NTT shall
not remove any copyright, trademark or other Intellectual Property rights notice
placed by Commerce One on the master copies.
6. MARKETING. The parties agree to negotiate in good faith a definitive
agreement describing the commercial relationship between the parties for
establishment of an electronic procurement service utilizing the Software for
use within the Field of Use (as defined above) on pricing terms as favorable as
those pricing terms offered by Commerce One to any similarly situated third
party under a Comparable Marketing Agreement. For purposes of this Section,
"Comparable Marketing Agreement" means a marketing agreement that (i) exists as
of the effective date of the definitive agreement between NTT and Commerce One,
(ii) is for the same products and services and (iii) has substantially the same
scope, terms and conditions as the definitive agreement entered into between NTT
and Commerce One. It is understood that such definitive agreement will contain
an exclusivity provision as broad as that set forth in Section 2.6 above,
subject to the parties' agreement on the scope of NTT's performance obligations,
as well as other terms and conditions to be negotiated in good faith by the
parties. [*]
7. OWNERSHIP OF PROPRIETARY RIGHTS.
7.1 SOFTWARE. The Software is protected by both United States
copyright law and international copyright treaty provisions. NTT agrees to
reproduce the Commerce One Intellectual Property rights notices and all other
legal notices, including but not limited to other proprietary notices and
notices mandated by governmental entities, on all complete or partial copies or
transmissions, if any, of the Software. As between Commerce One and NTT,
Commerce One or its licensors, as applicable, retain sole and exclusive
ownership of all right, title and interest in and to the Software and all
Intellectual Property rights relating thereto. In addition, Commerce One shall
own all rights in any copy, translation, modification, adaptation or derivative
work of the Software, and NTT hereby assigns all rights in them to Commerce One.
Without limiting the foregoing, NTT shall own all Intellectual Property rights
directly related to any additional features to the Software that NTT develops
independently and without input from Commerce Once, provided that the software
developed by NTT has a substantial use that does not infringe any Commerce One
patent rights. Without limiting the obligations set forth in Section 2.6 above,
if NTT files any patents or patent applications whose claims read on the
manufacture, sale or use of the Software, then NTT shall promptly give notice to
Commerce One in writing of such application or filing, and negotiate in good
faith a license grant to Commerce
_________________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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<PAGE>
One related to such claims made by NTT, including the right for Commerce One
to grant sublicenses to its customers and distributors, on reasonable and
customary terms and conditions to be negotiated in good faith between NTT and
Commerce One. NTT further agrees to assign all other modifications and
customizations to Commerce One that NTT develops in the exercise of all other
rights granted by Commerce One to NTT under this Agreement. NTT shall
physically identify the Software and any related materials as owned by
Commerce One. All rights not expressly granted hereuner are reserved by
Commerce One and its licensors. NTT shall physically identify the Software
and any related materials as owned by Commerce One. All rights not expressly
granted hereunder are reserved by Commerce One and its licensors.
7.2 COMMERCE ONE TECHNOLOGY. As between NTT and Commerce One,
Commerce One shall own all right, title and interest in and to the Commerce
One Technology. NTT hereby irrevocably assigns, and agrees to assign, to
Commerce One all of its right, title and interest in and to the Commerce One
Technology. NTT agrees to, and to cause its employees, agents and consultants
to, execute such documents and perform such acts, as may be reasonably
necessary to perfect Commerce One's rights as set forth in this Section 7 and
to obtain, enforce and defend Intellectual Property rights in and to the
Commerce One Technology.
7.3 DELIVERABLES INCLUDING NTT CONFIDENTIAL INFORMATION. If NTT
provides Commerce One with any NTT Confidential Information as defined in
Section 11 below, Commerce One and NTT agree to discuss in good faith the
ownership of any Deliverables containing such NTT Confidential Information:
Provided however, NTT shall have no obligation to provide any NTT
Confidential Information if the parties cannot resolve such ownership to the
mutual satisfaction of both parties.
7.4 RIGHT TO DEVELOP INDEPENDENTLY. Without limiting the intent of
Section 2.6 above, NTT understands and acknowledges that Commerce One is in
the business of developing products and providing consulting services similar
to those provided for NTT for other parties based upon the same tools and
knowledge base, and NTT agrees that nothing in this Agreement will impair
Commerce One's right to provide the same services or develop for itself or
others deliverables substantially similar to, or performing the same or
similar functions as, the Deliverables under this Agreement.
7.5 USER GROUP. During the term of this Agreement, NTT will have
the right to participate in any "user group" forums which Commerce One may
establish from time to time for the purpose of exchanging information and
ideas regarding the establishment of similar electronic procurement services.
8. COMPENSATION.
8.1 LICENSE FEE. NTT shall pay Commerce One the nonrefundable,
noncreditable license fees ("License Fees") set forth in EXHIBIT F.
8.2 SERVICE FEES. In consideration for performing the services
listed in the Statement of Work, NTT shall pay Commerce One the
nonrefundable, noncreditable service fees
-8-
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("Service Fees") set forth on EXHIBIT F. All fees quoted and payments made
shall be in U.S. Dollars. Invoices shall be due and payable within [*] days
of the receipt date of invoice. NTT shall reimburse Commerce One for any
out-of-pocket expenses, if accompanied by the payment evidence, that are
actually incurred by Commerce One in performing under each Statement of Work.
8.3 LATE PAYMENT AND TAXES.
(a) Any amounts due hereunder and not paid within [*] of the
receipt date of invoice shall accrue interest at the rate of one and one-half
percent (1.5%) per month or the maximum rate permitted by applicable law,
whichever is less, determined and compounded on a daily basis from the date due
until the date paid. NTT shall be responsible for all sales taxes, use taxes and
similar taxes and charges of any kind imposed by any federal, state or local
governmental entity for products and/or services provided under this Agreement,
excluding only taxes based solely upon Commerce One's net income.
(b) All payments by NTT specified hereunder are expressed as net
amounts and shall be made free and clear of, and without reduction for, any
withholding taxes. Any such taxes which are otherwise imposed on payments to
Commerce One shall be the sole responsibility of NTT. NTT shall provide Commerce
One with official receipts issued by the appropriate taxing authority or such
other evidence as is reasonably requested by Commerce One to establish that such
taxes have been paid. If Commerce One uses a foreign tax credit received by
Commerce One as a result of the payment of withholding taxes by NTT and thereby
reduces the amount of U.S. income tax that Commerce One otherwise would have
paid, Commerce One shall refund to NTT the amount of such reduction with respect
to such foreign tax credit.
9. INDEMNIFICATION.
9.1 COMMERCE ONE INDEMNIFICATION. If an action is brought against NTT
claiming that the Software infringes any United States patent, or any copyright
or trade secret rights of a third party, Commerce One shall defend NTT and shall
pay the damages and costs finally awarded against NTT, or settlements entered
into by Commerce One on NTT's behalf, in the action, but only if (a) NTT
notifies Commerce One promptly and in writing upon learning that the claim might
be asserted, (b) Commerce One has sole control over the defense of the claim and
any negotiation for its settlement or compromise, and (c) NTT cooperates and
assists in the defense or settlement of the claim, as reasonably requested by
Commerce One. The indemnity set forth herein will not apply if and to the extent
that the infringement claim results from (a) a correction, modification or
unauthorized merged portion of the Software not provided by Commerce One, (b)
the failure to promptly install an update, (c) the combination of the Software
with items not provided by Commerce One, or (d) the performance of services or
development of customizations to the Software by Commerce One pursuant to a
specific design submitted by NTT.
_____________________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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If NTT's use of the Software is enjoined by a court of competent
jurisdiction, or if Commerce One wishes to minimize its liability hereunder,
Commerce One may, at its option and expense, either (a) substitute a
substantially equivalent non-infringing item, (b) modify the infringing item
so that it no longer infringes but remains functionally equivalent, (c)
obtain for NTT the right to continue using such item, or (d) terminate the
licenses set forth herein with respect to the allegedly infringing Software
and refund the portion of the License Fees attributable to such Software.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THE FOREGOING
STATES THE ENTIRE LIABILITY AND OBLIGATION OF COMMERCE ONE AND ITS LICENSORS
WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY PATENT,
COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE,
OR OTHERWISE ARISING OUT OF THIS AGREEMENT.
9.2 NTT INDEMNIFICATION. NTT shall indemnify and hold harmless
Commerce One from and against any damages and costs finally awarded against
Commerce One, or settlements entered into by NTT on Commerce One's behalf, in
connection with any claims, actions, suits or proceedings brought by third
parties arising out of or relating to the use by NTT of the Software, but
only if (a) Commerce One notifies NTT promptly and in writing upon learning
that the claim might be asserted, (b) NTT has sole control over the defense
of the claim and any negotiation for its settlement or compromise, and (c)
Commerce One cooperates and assists in the defense or settlement of the
claim, as reasonably requested by NTT. The indemnity set forth herein will
not apply if and to the extent that: (i) the claim, action, suit or
proceeding results from the negligence or willful misconduct of Commerce One
or any officer, director, employee, affiliate, agent, consultant or
representative of Commerce One, or breach of the Agreement by Commerce One or
any officer, director, employee, affiliate, agent, consultant or
representative of Commerce One; or (ii) it would be inconsistent with
Commerce One's indemnification obligations to NTT under Section 9.1.
10. LIMITATION OF LIABILITY.
If either party shall sustain any damage due to any willful
misconduct or negligence by the other party or breach by the other party of
its obligations under this Agreement, the damage-sustained party shall be
entitled to claim, against the other party, recovery of actually proven
damage but only to the extent of damage which shall arise as direct
consequences thereof and to such limit not exceeding the total amount of fees
set forth in Section 8.1 and 8.2 above.
IN NO EVENT WILL COMMERCE ONE OR ANY OF ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER
(INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE,
BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION
WITH OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR THE USE
OR INABILITY TO USE THE SOFTWARE, OR THE FURNISHING, PERFORMANCE OR USE OF
THE DELIVERABLES OR SERVICES PERFORMED HEREUNDER, WHETHER BASED UPON
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, INCLUDING NEGLIGENCE,
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EVEN IF COMMERCE ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION SHALL APPLY NOT WITHSTANDING ANY FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
IN NO EVENT WILL NTT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION WITH OR ARISING OUT OF
OR RELATED TO THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, INCLUDING NEGLIGENCE, EVEN IF NTT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
11. CONFIDENTIALITY.
"Confidential Information" of Commerce One means the Software, this
Agreement, including the Statements of Work, the Deliverables, any trade
secrets, data, documentation or other information relating to or used in the
Software or Deliverables, or any other information relating to the work
performed under the Statement of Work or Commerce One's business or product
plans, marketing information, finances, or other similar information of a
proprietary or confidential nature. "Confidential Information" of NTT means this
Agreement, including the Statement of Work information of a nontechnical nature
concerning NTT's business plans, finances, marketing information, or other
similar information of a proprietary or confidential nature. NTT will not
provide Commerce One with any NTT Confidential Information, including the
information which will be acquired through the remote access to NTT's computers
pursuant to Section 2.4 without Commerce One's prior written approval. In the
event Commerce One shall require access to technical information considered
confidential to NTT, Commerce One agrees to enter into a mutually acceptable
confidentiality agreement with NTT for the limited purpose of the required
disclosure. Confidential Information that is in written, graphic, machine
readable or other tangible form shall be marked "Confidential," "Proprietary" or
in some other manner to indicate its confidential nature. If Confidential
Information is disclosed orally, it shall be confirmed at the time of disclosure
as confidential and be reduced to written summary and delivered to the receiving
party within forty-five (45) days after disclosure and marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential nature. Each
party shall not use Confidential Information of the other party except as
authorized herein or otherwise authorized in writing, shall implement reasonable
procedures to prohibit the disclosure, unauthorized duplication, misuse or
removal of the other party's Confidential Information, shall not disclose such
Confidential Information to any third party, and shall only disclose the
Confidential Information to those of its directors, employees, subsidiaries and
advisors who need access to such information to exercise the rights and fulfill
the obligations set forth herein. Without limiting the foregoing, each of the
parties shall protect the Confidential Information using at least the same
procedures and degree of care that it uses to prevent the disclosure of its own
confidential information of like importance, but in no event less than
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reasonable care. Should any portion of the Confidential Information be
disclosed or used, the receiving party shall cooperate fully with the
disclosing party to enforce its proprietary rights.
The parties understand, however, that any of the following information is
not subject to this confidentiality requirement:
(1) information which at the time of disclosure was or thereafter becomes
in the public domain through no act or omission of the recipient;
(2) information which prior to disclosure was already in the recipient's
possession either without limitation on disclosure to others or
subsequently becoming free of such limitation;
(3) information obtained by the recipient from a third party having an
independent right to disclose the information;
(4) information which is independently developed by the recipient without
using the Confidential Information; or
(5) information that the receiving party is required to disclose by any
court order or government action; provided that the receiving party
gives the disclosing party at least 30 days' advance written notice to
seek a protective order relating to any such disclosure and, provided,
further, that the receiving party will only furnish the portion of the
Confidential Information that it is required to disclose.
12. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
12.1 LIMITED WARRANTY. Commerce One warrants to NTT that for a
period of [*] from the date of acceptance (the "Warranty Period"), the
Software and/or Deliverable, as applicable, will perform substantially in
accordance with the applicable Specifications when operated on a system which
meets the requirements specified by Commerce One in such Specifications.
In case where the Software and/or Deliverable does not function as
warranted due to any cause not attributable to NTT, Commerce One shall use
commercially reasonable efforts to repair or replace such malfunction without
any charge to NTT, and in case where said repair or replacement is not completed
by Commerce One within a reasonable period of time, the License Fees or Service
Fees set forth in Sections 8.1 and 8.2, respectively, shall be refunded by
Commerce One as applicable. In case of the License Fees, such refund shall be in
full during the first [*] of the Warranty Period. During the final six months of
the Warranty Period, Commerce One will refund the portion of License Fees
attributable to such Software less a reasonable amount for use based on straight
line depreciation over a [*] period. In case of the Service Fees, such refund
shall be as determined by the parties in good faith.
_____________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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<PAGE>
12.2 DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN
THIS SECTION 12, COMMERCE ONE AND ITS LICENSORS MAKE NO WARRANTIES EXCEPT AS
SPECIFICALLY PROVIDED IN THIS SECTION 12, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, THE SERVICES PERFORMED
UNDER THIS AGREEMENT OR THE STATEMENT OF WORK, OR THE DELIVERABLES, AND
COMMERCE ONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
13. TERM AND TERMINATION.
13.1 TERM. This Agreement shall commence on the Effective Date and
shall be terminated on the end of the Pilot Period or the day otherwise
agreed to by both parties hereto, unless earlier terminated as follows: (a)
if NTT fails to make any payment due within [*] after receiving written
notice from Commerce One that such payment is delinquent, Commerce One may
terminate this Agreement on written notice to NTT at any time following the
end of such [*] period; or (b) if either party materially breaches any term
or condition of this Agreement and fails to cure that breach within [*] after
receiving written notice of the breach stating the notifying party's intent
to terminate, the nonbreaching party may terminate this Agreement on written
notice at any time following the end of such [*] day period.
13.2 EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement for any reason NTT shall immediately pay to Commerce One all amounts
due and outstanding as of the date of such termination or expiration, and the
parties shall return or destroy, at the other parties discretion, all originals
and all copies of such Confidential Information, including all copies of the
Software or portions thereof and any related materials, and if destroyed,
provide written certification of destruction. The following sections shall
survive the expiration or termination, for any reason, of this Agreement: 7.1,
7.2, 8, 9, 10, 11, 12, 13.2 and 14.
14. MISCELLANEOUS.
14.1 FORCE MAJEURE. Neither party will incur any liability to the
other party on account of any loss or damage resulting from any delay or failure
to perform all or any part of this Agreement, except for the failure to meet any
financial obligation, if such delay or failure is caused, in whole or in part,
by events, occurrences, or causes beyond the control and without negligence of
the parties; provided that NTT shall be excused from payment for monies due and
owing by NTT to Commerce One for a period not to exceed 10 days during the
period of such impossibility, which period may be extended by mutual agreement.
Such events, occurrences, or causes will include, without limitation, acts of
God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions.
_______________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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14.2 INDEPENDENT CONTRACTORS. The relationship between NTT and
Commerce One hereunder is that of independent contractors and nothing herein
will be deemed to create a joint venture, partnership or agency relationship
between the parties for any purpose.
14.3 SUBCONTRACTORS. Commerce One may use subcontractors in
connection with the performance of services hereunder, subject to NTT's prior
written consent which consent shall not be unreasonably withheld.
14.4 NO SOLICITATION. During the term of this Agreement and for one
(1) year thereafter, NTT agrees not to solicit the employment of any employee
or consultant of Commerce One.
14.5 WAIVER. Any waiver of the provisions of this Agreement or of a
party's rights or remedies under this Agreement must be in writing to be
effective. Failure, neglect, or delay by a party to enforce the provisions of
this Agreement or its rights or remedies at any time will not be construed
and will not be deemed to be a waiver of such party's rights under this
Agreement and will not in any way affect the validity of the whole or any
part of this Agreement or prejudice such party's right to take subsequent
action.
14.6 SEVERABILITY. If any term, condition, or provision in this
Agreement is found to be invalid, unlawful or unenforceable to any extent,
the parties shall endeavor in good faith to agree to such amendments that
will preserve, as far as possible, the intentions expressed in this
Agreement. If the parties fail to agree on such an amendment, such invalid
term, condition or provision will be severed from the remaining terms,
conditions and provisions, which will continue to be valid and enforceable to
the fullest extent permitted by law.
14.7 AMENDMENT. This Agreement may not be amended, except by a
writing signed by both parties.
14.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed to be an original and such counterparts together
will constitute one and the same agreement.
14.9 GOVERNING LAW. This Agreement will be interpreted and
construed in accordance with the laws of the State of California, without
regard to conflict of law principles or the 1980 UN Convention on Contracts
for the International Sale of Goods.
14.10 ARBITRATION.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement, including whether either or both of the parties
have satisfied their obligation to negotiate in good faith under Section 6 or
Section 12 of this Agreement, shall be determined by final and binding
arbitration: (i) in Santa Clara, California, in accordance with the
commercial rules of the American Arbitration Association ("AAA"), in case NTT
requests an arbitration; and (ii) in Tokyo, in accordance with the commercial
arbitration rules of the Japan Commercial Arbitration Association ("JCAA"),
in case Commerce One requests an arbitration. The arbitration
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<PAGE>
shall be conducted in the English language and by three arbitrators appointed
in accordance with said rules. Each party shall bear its own expenses in
connection with such arbitration.
(b) Notification of any claim that a party has not fulfilled its
obligation under Section 6 or Section 12 of this Agreement ("Notice") must be
delivered within thirty (30) calendar days after the expiration of the Marketing
Date or the conclusion of the Warranty Period as applicable. Each party shall
prepare a written report setting forth its position within thirty (30) calendar
days of receipt of the Notice.
14.11 NONASSIGNMENT/BINDING AGREEMENT. Neither this Agreement nor
any rights under this Agreement may be assigned or otherwise transferred by NTT,
in whole or in part, whether voluntary or by operation of law, including by way
of sale of assets, merger or consolidation, without the prior written consent of
Commerce One, which consent will not be unreasonably withheld. Notwithstanding
the foregoing, at the time of NTT's reorganization (the "Reorganization") as
prescribed in the Supplementary Provisions to the Law Concerning Partial
Amendment to the Nippon Telegraph and Telephone Corporation Law (Law No. 98 of
1997 of Japan), NTT may assign this Agreement to one of the entities (the
"Replacing Entity") to be established pursuant to such Reorganization. Upon
prior written notice to Commerce One, the Replacing Entity shall replace NTT as
a party to this Agreement and assume all of NTT's rights and obligations
hereunder in writing, and in such event, Commerce One agrees to release and
discharge NTT from any further obligations under this Agreement. Subject to the
foregoing, this Agreement will be binding upon and will inure to the benefit of
the parties and their respective successors and assigns.
14.12 ENTIRE AGREEMENT. This Agreement (including the Exhibit(s)
and any addenda hereto signed by both parties) contains the entire agreement of
the parties with respect to the subject matter of this Agreement and supersedes
all previous communications, representations, understandings and agreements,
whether oral or written, between the parties with respect to said subject
matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMMERCE ONE, INC. NTT
By:__________________________________ By:_______________________________
Name:________________________________ Name:_____________________________
Title:_______________________________ Title:____________________________
<PAGE>
Exhibit 10.8
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
BT AGREEMENT NO. 658270
DATED 1999
- --------------------------------------------------------------------------------
COMMERCE ONE, INC.
and
BRITISH TELECOMMUNICATIONS PLC
- --------------------------------------------------------------------------------
GOVERNANCE AGREEMENT
- --------------------------------------------------------------------------------
Nabarro Nathanson
50 Stratton Street
London W1X 6NX
Tel: 0171 493 9933
<PAGE>
CONFIDENTIAL
CONTENTS
<TABLE>
<CAPTION>
Clause Subject Matter Page
<S> <C>
DATE............................................................................................1
PARTIES.........................................................................................1
RECITALS........................................................................................1
1. GENERAL.........................................................................................1
2. ADVISORY COMMITTEE..............................................................................2
3. AUDIT...........................................................................................2
4. PRODUCT EVOLUTION...............................................................................3
5. BRANDING........................................................................................3
6. CONTENT MANAGEMENT..............................................................................3
7. OVERARCHING CRITERIA............................................................................3
8. CONTRACT REVIEWS................................................................................4
9. ESCALATION OF DISPUTES..........................................................................4
10. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.................................................4
C1 Representations and Warranties...............................................................4
C1 Indemnification Obligations..................................................................5
BT Representations and Warranties...............................................................5
BT Indemnification Obligations..................................................................5
</TABLE>
i
<PAGE>
CONFIDENTIAL
<TABLE>
<S> <C>
11. TERM AND TERMINATION............................................................................6
Term............................................................................................6
Termination.....................................................................................6
12. GENERAL PROVISIONS..............................................................................6
Notices.........................................................................................6
Entire Agreement................................................................................7
Amendments......................................................................................7
Waivers.........................................................................................7
No Third Party Beneficiaries....................................................................7
Assignment......................................................................................8
Headings........................................................................................8
Severance.......................................................................................8
Severability....................................................................................8
Governing Law...................................................................................8
THE SCHEDULE INFORMATION TO BE SUPPLIED QUARTERLY TO THE ADVISORY
COMMITTEE.......................................................................................9
</TABLE>
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<PAGE>
CONFIDENTIAL
GOVERNANCE AGREEMENT
("THIS AGREEMENT")
DATE 1999 (the "EFFECTIVE TIME")
PARTIES
(1) COMMERCE ONE, INC., a California corporation whose principal place of
business is at 1600 Riviera Avenue, Suite 200, Walnut Creek, California
("C1"); and
(2) BRITISH TELECOMMUNICATIONS plc whose registered office is at 81 Newgate
Street, London EC1A 7AJ and whose registered number is 1800000 ("BT").
RECITALS
(A) Pursuant to the terms and conditions of an Amended and Restated Trading
Agreement dated the same date as this Agreement by and between C1 and BT
(the "TRADING AGREEMENT"), C1 has granted to BT a MarketSite Software
licence and may grant other licences to BT pursuant to that Agreement or
pursuant to reseller arrangements proposed to be put in place between the
parties in relation to C1's BuySite product.
(B) In connection with the various trading arrangements existing and proposed
between C1 and BT, the parties wish to enter into this Agreement,
effective as of the Effective Time, with respect to the governance of
their relationships and certain other matters in relation to the products
covered by their trading arrangements.
IT IS AGREED AS FOLLOWS:
1. GENERAL
The parties agree that this Agreement, and the rights and obligations of
the parties hereunder shall become effective on the Effective Time.
Capitalised terms not defined herein shall have the meanings set forth in
the Trading Agreement.
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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CONFIDENTIAL
2. ADVISORY COMMITTEE
2.1 THE PARTIES SHALL AS FROM THE EFFECTIVE TIME ESTABLISH AN ADVISORY COMMITTEE
(THE "ADVISORY COMMITTEE") CONSISTING OF TWO SENIOR REPRESENTATIVES NOMINATED BY
EACH PARTY, ONE OF WHOM SHALL BE ON THE TECHNICAL SIDE AND THE OTHER ON THE
OPERATIONAL SIDE. THE FIRST MEMBERS SHALL BE ERIC MEIER-RUEGG AND KENTON
SANMOGEN AS THE NOMINEES OF C1 AND [*] AND [*] AS THE NOMINEES OF BT.
2.2 EACH OF C1 AND BT WILL HAVE THE RIGHT TO REPLACE EITHER OR BOTH OF ITS
NOMINEES ON THE ADVISORY COMMITTEE, PROVIDED THAT C1 AND BT AGREE TO CONSULT
WITH EACH OTHER PRIOR TO ANY SUCH REPLACEMENT AND NOT TO APPOINT A PERSON TO
WHOM THE OTHER PARTY REASONABLY OBJECTS.
2.3 THE ADVISORY COMMITTEE SHALL MEET QUARTERLY IN LONDON OR WALNUT CREEK,
CALIFORNIA AT THE MUTUAL AGREEMENT OF THE PARTIES. IT SHALL REGULATE ITS OWN
PROCEEDINGS, PROVIDED THAT WHERE DECISIONS ARE MADE THEY SHALL BE MADE BY
UNANIMOUS VOTE OF ALL FOUR MEMBERS OF THE ADVISORY COMMITTEE. IN THE EVENT THAT
THE ADVISORY COMMITTEE IS UNABLE TO REACH AGREEMENT THE PROVISIONS OF CLAUSE 9
WILL APPLY.
2.4 THE ROLE OF THE ADVISORY COMMITTEE SHALL BE TO RECEIVE AND REVIEW RELEVANT
INFORMATION (AS REFERRED TO IN CLAUSE 2.5), PROVIDE A FORUM FOR THE SHARING OF
VIEWS, WISHES AND CONCERNS AND, WHERE EXPRESSLY STATED BELOW, TO REACH WRITTEN
AGREEMENTS WHICH SHALL BE BINDING ON C1 AND BT.
2.5 THE INFORMATION TO BE PRESENTED TO THE ADVISORY COMMITTEE FOR REVIEW AT ITS
QUARTERLY MEETINGS SHALL COVER THE MATTERS LISTED IN THE SCHEDULE AND SUCH OTHER
MATTERS AS THE ADVISORY COMMITTEE MAY FROM TIME TO TIME DECIDE. THE ADVISORY
COMMITTEE SHALL DETERMINE WHICH STATISTICS ARE REQUIRED IN RESPECT OF EACH
MATTER LISTED AND THE RESPONSIBILITY AS BETWEEN C1 AND BT TO MAKE THEM
AVAILABLE. FOR THE AVOIDANCE OF DOUBT, NO PERSONAL DATA (AS DEFINED FOR THE
PURPOSES OF THE DATA PROTECTION ACT 1998) SHALL BE DISCLOSED TO THE ADVISORY
COMMITTEE.
2.6 EACH PARTY SHALL SUPPLY THE ADVISORY COMMITTEE FOR EACH MEETING WITH ITS
BEST ESTIMATE, BASED ON REASONABLE ASSUMPTIONS, OF ITS FUTURE SUPPLIER ADOPTION
RATES AND A REVIEW OF PAST ACTUAL RATES AGAINST FORECAST IN SO FAR AS THIS IS
NECESSARY TO ASSIST THE OTHER PARTY IN PLANNING ITS OWN OPERATIONS AND
RESOURCES.
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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CONFIDENTIAL
3. AUDIT
Each party shall allow an independent third party reasonably acceptable
to it from time to time access at all reasonable times to inspect its
books and records for the purpose of verifying any sales, costs or other
information supplied by that other to it for the purpose of any agreement
between the parties and to obtain copies of extracts from such books and
records subject to paying reasonable copying charges for them.
4. PRODUCT EVOLUTION
4.1 C1 IS ESTABLISHING A TECHNICAL ADVISORY COUNCIL AND BT SHALL BE ENTITLED TO
DESIGNATE A SENIOR TECHNICAL REPRESENTATIVE TO BE A MEMBER OF THAT COUNCIL WITH
AN EQUAL VOICE ON THAT COUNCIL TO EACH OF THE OTHER FRANCHISE MARKETSITE
OPERATORS OF C1 MARKETSITE.
4.2 BT SHALL HAVE A FIRST OPTION TO TEST NEW SOFTWARE IN THE UK FOR NEW
MARKETSITE VALUE ADDED SERVICES BUT SHALL NOT BE OBLIGED TO CARRY OUT BETA
TESTING.
4.3 WHERE NEW VALUE ADDED SERVICES ARE READY FOR LICENSING IN THE UK, C1 WILL
GIVE BT FIRST OPPORTUNITY TO ACQUIRE A NON-EXCLUSIVE LICENCE FOR THE UK PROVIDED
THAT THIS SHALL NOT PREVENT C1 OFFERING THE SAME RIGHT TO ANY BETA TESTER OF
THAT SERVICE.
5. BRANDING
5.1 THE PARTIES HAVE JOINTLY AGREED THE FOLLOWING BRANDING DESCRIPTION FOR BT'S
SERVICE USING MARKETSITE, NAMELY "BT MARKETSITE POWERED BY COMMERCE ONE" AND
AGREE THAT THIS SHALL BE USED AS THE SOLE BRAND FOR THAT SERVICE. EXCEPT AS
STATED ABOVE, NEITHER PARTY HAS ANY RIGHT TO USE ANY TRADE OR SERVICE MARK OF
THE OTHER EXCEPT WITH THE WRITTEN AGREEMENT OF THE OTHER. THE PROVISIONS OF THIS
CLAUSE 5.1 SHALL SURVIVE AND CONTINUE IN FORCE AFTER ANY TERMINATION OF THIS
AGREEMENT.
5.2 THE BRANDING SHALL BE KEPT UNDER REVIEW BY THE ADVISORY COMMITTEE, BUT ANY
CHANGE TO THE BRANDING DESCRIPTION AS SET OUT IN THE SAID MARKETING AGREEMENT
WHICH IS RECOMMENDED BY IT SHALL REQUIRE THE WRITTEN CONSENT OF BOTH BT AND C1
BEFORE IT IS IMPLEMENTED.
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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CONFIDENTIAL
6. CONTENT MANAGEMENT
BT agrees that it will comply with standards for supplier content on
MarketSite agreed between C1 and BT from time to time.
7. OVERARCHING CRITERIA
In acknowledgement of C1's interest in a successful take up of the
Market Site service, BT will discuss with C1, in the context of the
Advisory Committee, its proposed overarching criteria for its
MarketSite and will take account of these criteria, as amended from
time to time.
8. CONTRACT REVIEWS
8.1 IF EITHER C1 OR BT CONSIDER THAT THE FINANCIAL ARRANGEMENTS BETWEEN THEM CAN
NO LONGER PRODUCE THE RESULTS ANTICIPATED IN THE ORIGINAL FINANCIAL MODEL, THEN
IT SHALL REFER THE MATTER TO THE ADVISORY COMMITTEE AND C1 AND BT SHALL PROCURE
THAT THEIR RESPECTIVE APPOINTEES ON THE ADVISORY COMMITTEE SHALL NEGOTIATE IN
GOOD FAITH TO ENDEAVOUR TO AGREE AN AMENDMENT TO THE FINANCIAL ARRANGEMENTS
WHICH IS FAIR TO BOTH PARTIES.
8.2 IF THEY ARE UNABLE TO REACH AN AGREEMENT, THE MATTER SHALL BE ESCALATED IN
ACCORDANCE WITH CLAUSE 9 AND IF THAT FAILS TO ACHIEVE AN AGREEMENT NO CHANGE
SHALL BE MADE TO THE FINANCIAL ARRANGEMENTS. IF AN AGREEMENT IS REACHED WITHIN
THE ADVISORY COMMITTEE OR IN ACCORDANCE WITH THE ESCALATION PROCEDURE, THE
PARTIES SHALL AGREE THE APPROPRIATE CHANGES TO THE AGREEMENTS BETWEEN THEM.
9. ESCALATION OF DISPUTES
9.1 WHERE ANY MATTER REQUIRES TO BE AGREED OR DETERMINED, BY THE ADVISORY
COMMITTEE UNDER THIS AGREEMENT BUT THE NECESSARY UNANIMOUS AGREEMENT OF THE
MEMBERS CANNOT BE OBTAINED, THE MATTER SHALL BE REFERRED TO THE CHIEF EXECUTIVE
OFFICER OF C1 AND GENERAL MANAGER OF THE BT E-BUSINESS UNIT FOR THEIR AGREEMENT.
IF THEY REACH AGREEMENT, IT SHALL BE DEEMED TO BE THE AGREEMENT OF THE ADVISORY
COMMITTEE FOR THE PURPOSES OF THIS AGREEMENT. IF AGREEMENT CANNOT BE REACHED AND
IN THE REASONABLE OPINION OF EITHER PARTY THE INABILITY TO AGREE MAKES IT
IMPOSSIBLE TO GOVERN THEIR RELATIONSHIP IN THE MANNER REASONABLY ANTICIPATED AT
THE OUTSET THEN EITHER PARTY MAY BY NOTICE TO THE OTHER TERMINATE THIS AGREEMENT
AND THE AMENDED TRADING AGREEMENT BUT, FOR THE AVOIDANCE OF DOUBT, SUCH
TERMINATION SHALL NOT AFFECT ANY ORDER.
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CONFIDENTIAL
9.2 THE PARTIES AGREE THAT ANY DISPUTE ARISING UNDER ANY OF THE AGREEMENTS
BETWEEN THEM SHALL, BEFORE EITHER PARTY RESORTS TO OTHER LEGAL REMEDIES
(INCLUDING THE EXERCISE OF A RIGHT TO TERMINATE), BE REFERRED TO THE ADVISORY
COMMITTEE FOR DISCUSSION AND, IF POSSIBLE, RESOLUTION AND, FAILING THAT, SHALL
BE ESCALATED IN ACCORDANCE WITH CLAUSE 9.1, PROVIDED THAT THIS SHALL NOT APPLY
WHERE ACTION NEEDS TO BE TAKEN URGENTLY BY EITHER PARTY TO PROTECT ITS
LEGITIMATE INTERESTS.
10. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
10.1 C1 REPRESENTATIONS AND WARRANTIES
C1 represents and warrants to BT that:
10.1.1 it has the right, power and authority to enter into this Agreement
and fully to perform its obligations under this Agreement;
10.1.2 the making of this Agreement by it does not violate any agreement
existing between it and any other person or entity;
10.1.3 it complies, and at all times shall comply, with all applicable
laws, rules and regulations in effect at the time services are
performed pursuant to this Agreement pertaining to the subject
matter hereof; and
10.1.4 it shall not exercise any of the rights granted to it under or
pursuant to this Agreement in a manner that shall violate any
applicable law, rule or regulation.
10.2 C1 INDEMNIFICATION OBLIGATIONS
C1 agrees to, and shall, indemnify, defend and hold harmless BT and
its Affiliates and their respective directors, shareholders,
officers, agents, employees, successors and assigns from and against
any and all claims, demands, suits, judgments, damages, costs,
losses, expenses (including reasonable attorneys' fees and expenses)
and other liabilities arising from actions brought by third parties
in connection with or related to, directly or indirectly, any breach
or alleged breach of any of the representations or warranties made by
it under Clause 10.1, provided that BT gives C1 full control over the
defence (including any settlements) of any such claim; and BT
provides C1 with full information and reasonable assistance, at C1's
expense. C1 shall keep BT informed of, and consult with BT in
connection with, the progress of such litigation or settlement and
(i) C1 shall not have any right, without BT's written consent, to
settle any such claim if such settlement arises from or is part of
any criminal action, suit or proceeding or contains a stipulation to
or admission or acknowledgement of any liability or wrongdoing
(whether in contract, tort or otherwise) on
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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CONFIDENTIAL
the part of any BT Affiliate, and (ii) BT shall promptly notify C1 of
any such claim. For the purposes of this Clause "Affiliate" has the
meaning in the Amended and Restated Trading Agreement between the
parties.
10.3 BT REPRESENTATIONS AND WARRANTIES
BT represents and warrants that:
10.3.1 it has the right, power and authority to enter into this Agreement
and fully to perform its obligations under this Agreement;
10.3.2 the making of this Agreement by it does not violate any agreement
existing between it and any other person or entity;
10.3.3 it complies, and at all times shall comply, with all applicable
laws, rules and regulations in effect at the time services are
performed pursuant to this Agreement pertaining to the subject
matter hereof; and
10.3.4 it shall not exercise any of the rights granted to it under or
pursuant to this Agreement in a manner that shall violate any
applicable law, rule or regulation.
10.4 BT INDEMNIFICATION OBLIGATIONS
BT agrees to, and shall, indemnify, defend and hold harmless C1 and
its Affiliates, and its directors, shareholders, officers, agents,
employees, successors and assigns from and against any and all
claims, demands, suits, judgments, damages, costs, losses, expenses
(including reasonable attorneys' fees and expenses) and other
liabilities arising from actions brought by third parties in
connection with or related to, directly or indirectly, any breach or
alleged breach of the representations or warranties made by it under
Clause 10.3. C1 shall promptly notify BT of any such claim; C1 gives
BT full control over the defence (including any settlements) of such
claim; and C1 provides BT with full information and reasonable
assistance, at BT's expense; provided, however, that (i) BT shall
keep C1 informed of and consult with C1 in connection with the
progress of such litigation or settlement; and (ii) BT shall not have
any right, without C1's written consent, to settle any such claim if
such settlement arises from or is part of any criminal action, suit
or proceeding or contains a stipulation to, or admission or
acknowledgement of, any liability or wrongdoing (whether in contract,
tort or otherwise) on the part of C1.
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CONFIDENTIAL
11. TERM AND TERMINATION
11.1 TERM
The term of this Agreement shall commence as of the Effective Time
and shall continue until termination of the Trading Agreement unless
terminated earlier in accordance with Clause 11.2.
11.2 TERMINATION
Without prejudice to any other rights or remedies available to the
parties, BT and C1 shall each have the right, in its sole discretion,
to terminate this Agreement upon written notice to the other in the
event of the occurrence of one or more of the following:
11.2.1 In the event that the other party shall become insolvent or cease
to trade or compound with its creditors, or a receiver or an
administrative receiver is appointed in respect of any of the
other party's assets or a petition for an administration order is
presented or such an order is made in relation to the other party
or a resolution or petition or order to wind up the other party is
passed or presented or made or a liquidator is appointed in
respect of it (otherwise than for reconstruction or amalgamation).
11.2.2 The other party breaches any material term or provision of this
Agreement and fails to cure such breach within sixty (60) days
after the non-breaching party delivers written notice thereof to
the other party stating what actions are required to cure such
breach or indicating that such breach is incapable of being cured;
provided that the alleged breaching party shall use its reasonable
efforts to timely cure such breach.
11.2.3 The management ownership or control of the other is changed to the
detriment of BT or Commerce One as applicable.
12. GENERAL PROVISIONS
12.1 NOTICES
12.1.1 All notices which either party is required or may desire to serve
upon another party shall be in writing and addressed as follows:
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<PAGE>
CONFIDENTIAL
(a) if to BT:
British Telecommunications plc
Stephen Russell
BT Business Services
PPB113
North Star House
North Star Avenue
Swindon SM2 1BS
(b) if to C1:
Commerce One, Inc.
1600 Riviera Avenue, Suite 200
Walnut Creek
California 94596
Attn: Robert M. Tarkoff, Esq.
12.1.2 Any such notice may be served personally or by mail (postage
prepaid), facsimile (provided oral confirmation of receipt is
immediately obtained and a hard copy is concurrently sent by
internationally commercially recognised overnight delivery
service), internationally commercially recognised overnight
delivery service (such as Federal Express or DHL) or courier.
Notice shall be deemed served upon personal delivery or upon
actual receipt. Any party may change the address to which notices
are to be delivered by written notice to the other parties served
as provided in this Clause 12.1.
12.2 ENTIRE AGREEMENT
This Agreement, together with its Schedules constitutes the complete,
final and exclusive understanding and agreement between the parties
with respect to the transactions contemplated, and supersedes any and
all prior or contemporaneous oral or written representations,
understanding, agreement or communication between the parties
concerning the subject matter hereof.
12.3 AMENDMENTS
All amendments or modifications of this Agreement shall be binding
upon the parties so long as the same shall be in writing and executed
by each of the parties hereto.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
-8-
<PAGE>
CONFIDENTIAL
12.4 WAIVERS
No waiver of any provision of this Agreement or any rights or
obligations of any party hereunder shall be effective, except
pursuant to a written instrument signed by the party waiving
compliance, and any such waiver shall be effective only in the
specific instance and for the specific purpose stated in such
writing.
12.5 NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement is intended or shall be construed to give
any person, other than the parties hereto, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
12.6 ASSIGNMENT
No party shall, directly or indirectly, assign this Agreement to any
third party, except that either party may assign this Agreement to
its parent corporation or any entity of which its parent owns at
least 80% of the voting equity.
12.7 HEADINGS
The section and sub-section headings and captions appearing in this
Agreement are inserted only as a matter of convenience and shall not
be given any legal effect.
12.8 SEVERANCE
If any aspect of this Agreement is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Agreement. In such case this Agreement shall be construed and
enforced as if it did not contain such provision. The Parties shall
negotiate in good faith to modify and, or replace such provision with
one that is valid and legally enforceable.
12.9 SEVERABILITY
If any aspect of this Agreement is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Agreement. In such case this Agreement shall be construed and
enforced as if it did not contain such provision. The Parties shall
negotiate in good faith to modify and, or replace such provision with
one that is valid and legally enforceable. If the Parties cannot
reach agreement on a new provision which places the Parties in a
position similar to the commercial position which would have
prevailed prior to
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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<PAGE>
CONFIDENTIAL
the modification or replacement being required, either Party may, in
its sole discretion, withdraw from the Agreement.
12.10 GOVERNING LAW
This Agreement is governed by English law and each party submits to
the non-exclusive jurisdiction of the English Courts.
IN WITNESS WHEREOF the duly authorised representatives of each party have
executed this Agreement as of the day and year first written above.
BRITISH TELECOMMUNICATIONS plc COMMERCE ONE, INC.
By: By:
Name: Name:
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
<PAGE>
Exhibit 10.9
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
BT AGREEMENT NO. 658269
MARKETING AGREEMENT
DATED 1999
BETWEEN:
BRITISH TELECOMMUNICATIONS, PLC, a corporation organized under the laws of
England, having its registered office at 81 Newgate Street, London EC1A 7AJ
(hereinafter "BT"), and
COMMERCE ONE, INC., a corporation organized under the laws of California, having
a place of business at 1600 Riviera Avenue, Walnut Creek, California 94596
(hereinafter "C1")
WHEREAS the parties desire to enhance the marketing of the BT/C1 MarketSite
solution; and
WHEREAS each of C1 and BT desire to define their mutual rights and obligations
in connection with any joint marketing activities;
NOW THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1.0 TERM
This Agreement shall commence on the date of this Agreement ("the
Effective Date") and continue in full force and effect until the expiry
of the Initial Period under the MarketSite Licence granted by Commerce
One to BT of the same date as this Agreement or earlier termination of
Commerce One's undertaking under Clause 1.1.(b) of that Licence.
2.0 RESPONSIBILITIES AND OBLIGATIONS OF BT AND COMMERCE ONE
2.1 ADDITIONAL OBLIGATIONS: In addition to the responsibilities
set forth in this Agreement, the parties agree to the
additional responsibilities set out in the MarketSite Licence,
the Amended and Restated Trading Agreement, and the Governance
Agreement between the parties of even date herewith, including
the agreements contemplated therein.
2.2 MARKETING PACKAGE: BT will supply Marketing Packages for use
in marketing the service to BT customers, provided that C1
shall have the right to review those parts of the materials
supplied by BT in the Marketing Package that relate to
Commerce One other than in relation to prices.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
<PAGE>
CONFIDENTIAL
BT shall give C1 [*] business days prior written notice should
BT elect to change any of the materials in the MarketSite
Marketing Package that relates to C1 and will provide C1 with
a complete copy of the relevant part of the revised Marketing
Package at least ten (10) days prior to the effective date of
any changes. C1 shall have the right to review all changes to
the elements of the Marketing Package that relate to C1, and
to request, at C1's expense, any modifications that are
required.
2.3 Commerce One agrees to prominently display the BT brand when
BuySite customers connect to the BT MarketSite so far as this
is technically feasible and Commerce One agrees to use
reasonable endeavours to achieve such technical feasibility.
3.0 MARKETING AND SALES PROGRAMS
BT will contribute a minimum of [*] and Commerce One will allocate a
minimum of [*] in each case towards the initial marketing launch of the
C1 MarketSite Service for the development and execution of marketing
and sales programs for the financial year commencing 1st April 1999;
provided that if BT elects not to contribute at least [*] for such
purposes, then C1 shall have the option of terminating this Agreement
without penalty upon thirty (30) days prior written notice. Expenditure
of the marketing and sales program funds shall be as set forth in the
Marketing Plan to be agreed by the parties within [*] days of this
Agreement. If this is not agreed the parties will still be obliged to
make the above contributions for the purposes referred to above.
4.0 TERMINATION
4.1 Either party shall be entitled to terminate this Agreement immediately
on written notice to the other if the other party is in breach of any
of the terms of this Agreement and in the event of a breach capable of
being remedied, fails to remedy the breach within thirty (30) days of
receipt of notice of the breach in writing.
4.2 If Commerce One terminates this Agreement in accordance with Clause 3
or Clause 4.1 Commerce One's undertaking in Clause 1.1(b) and the
obligations of BT and Commerce One under Clause 1.1(d) of said
MarketSite Licence shall terminate automatically.
5.0 SEVERANCE
If any aspect of this Agreement is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Agreement. In such case this Agreement shall be construed and enforced
as if it did not contain such provision. The Parties shall negotiate in
good faith to modify and, or replace such provision with one that is
valid and legally enforceable. If the Parties cannot reach agreement on
a new provision which places the Parties in a position similar to the
commercial position which would have prevailed prior
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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to the modification or replacement being required, either Party may,
in its sole discretion, withdraw from the Agreement.
CONFIDENTIAL
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorised representatives as of the Effective Date.
BT . COMMERCE ONE, INC.
By: By:
------------------------- -------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------- -------------------------
Date: Date:
------------------------- -------------------------
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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Exhibit 10.10
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
Official Order Cover Sheet
This Order (which comprises this Official Order Cover Sheet and appended
documents referenced below) is subject to the terms and conditions of the
BT/Commerce One Amended and Restated Trading Agreement dated March 25, 1999.
Should the terms and conditions of this Order conflict with or vary from those
of the Trading Agreement then the Trading Agreement shall take precedence;
however variations that are clearly and explicitly set out in the Variation to
Trading Agreement section of this Order shall take precedence over those terms
set forth in the Trading Agreement. Any definitions used in this Order shall
have the meanings given in the attached BT Commerce One Marketsite Licence - BT
Order 658272
<TABLE>
- ------------------------------------------- -----------------------------------------------------------------
<S> <C>
ORDERING ENTITY: BRITISH TELECOMMUNICATIONS PLC ("BT")
- ------------------------------------------- -----------------------------------------------------------------
POINT OF CONTACT: STEVE RUSSELL
- ------------------------------------------- -----------------------------------------------------------------
ADDRESS: PPB113 NORTH STAR HOUSE
- ------------------------------------------- -----------------------------------------------------------------
NORTH STAR AVENUE
- ------------------------------------------- -----------------------------------------------------------------
SWINDON. UNITED KINGDOM
- ------------------------------------------- -----------------------------------------------------------------
POSTCODE: SN2 1BS
- ------------------------------------------- -----------------------------------------------------------------
- ----------------------------------------------------------------------------------- --------------------------
STATE WHETHER ORDER IS A COMMERCIAL SERVICE LICENCE (REFERRED TO IN CLAUSE 5.2.2 YES
OF THE TRADING AGREEMENT
- ----------------------------------------------------------------------------------- --------------------------
STATE WHETHER ORDER IS A SPECIAL COMMISSIONING ORDER (REFERRED TO IN CLAUSE 5.8 NO
OF THE TRADING AGREEMENT)
- ----------------------------------------------------------------------------------- --------------------------
ORDER NO: 658272
- ------------------------------------------- -----------------------------------------------------------------
QUOTATION NO: BT COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- ------------------------------------------- -----------------------------------------------------------------
PRICE AND CURRENCY: $[*]
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
DELIVERY ADDRESS: TERRY CARLIN
ANZANI HOUSE
TRINITY AVENUE
FELIXSTOWE
- ------------------------------------------- -----------------------------------------------------------------
POST CODE: IP11 8XB
- ------------------------------------------- -----------------------------------------------------------------
INVOICE ADDRESS IF FROM ABOVE: COLLETTE BLACKMORE
- ------------------------------------------- -----------------------------------------------------------------
PP302F, TELECOM HOUSE (TLC-M6), 91 LONDON ROAD
- ------------------------------------------- -----------------------------------------------------------------
MANCHESTER, LANCASHIRE, UNITED KINGDOM.
- ------------------------------------------- -----------------------------------------------------------------
</TABLE>
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BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
<TABLE>
- ------------------------------------------- -----------------------------------------------------------------
<S> <C>
POST CODE: M60 1HQ
- ------------------------------------------- -----------------------------------------------------------------
</TABLE>
WORK REQUIRED AND TIMESCALES (INCLUDING BT COMMERCE ONE MARKETSITE LICENCE -
REFERENCES TO ANY APPENDED DOCUMENTS)* BT ORDER 658131
- ------------------------------------------- ------------------------------------
*WHERE THE QUOTATION AND OR SPECIFICATION ARE NOT ATTACHED TO THIS DOCUMENT THEN
THE WORK REQUIRED AND TIMESCALES SHOULD BE IDENTIFIED.
<TABLE>
- ------------------------------------------------------- -----------------------------------------------------
<S> <C>
VARIATION TO TRADING AGREEMENT THE PROVISIONS OF CLAUSE 1.
- ------------------------------------------------------- -----------------------------------------------------
Authorised Signatures
- ------------------------------------------------------- -----------------------------------------------------
ORDERING ENTITY COMMERCE ONE
- ------------------------------------------------------- -----------------------------------------------------
NAME: NAME:
- ------------------------------------------------------- -----------------------------------------------------
SIGNATURE: SIGNATURE:
- ------------------------------------------------------- -----------------------------------------------------
DATE: DATE:
- ------------------------------------------------------- -----------------------------------------------------
</TABLE>
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BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
BT - Commerce One MarketSite Licence and associated services ("Licence")
THIS LICENCE IS BETWEEN:
1. COMMERCE ONE INC OF 1600 RIVIERA AVENUE, WALNUT CREEK, CALIFORNIA 94596, USA
("COMMERCE ONE"); AND
2. BRITISH TELECOMMUNICATIONS PLC OF 81 Newgate Street, London EC1A 7AJ ("BT").
THESE ARE THE AMENDED AND RESTATED TERMS AND CONDITIONS OF THE LICENCE GRANTED
IN ACCORDANCE WITH BT ORDER 658131 AND THE DATE OF THIS LICENCE IS TO BE TREATED
FOR ALL PURPOSES AS 8 JANUARY 1999.
CONTENTS
1. Commerce One Deliverables
1.1 MarketSite licence
1.2 Software support
1.3 Services
2. Charges and fees
DEFINITIONS
<TABLE>
<S> <C>
"API" means Application Programming Interface
"Business Day" means any day other than Saturday, Sunday, Christmas
Day or Good Friday and other than a bank holiday in
England.
"Governance Agreement" means the agreement of that name of the same date as
this licence between Commerce One and BT.
</TABLE>
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BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
"Initial Period" means the period from the date of this Licence until
[*] (unless terminated earlier in accordance with the
terms of the Licence) comprising a Beta testing
period from [*] to [*] and a launch period from [*]
to [*].
"MarketSite" means a software product and a set of services which
Commerce One has created to enable commerce service
providers to create interactive trading communities
as further described in Appendix 1.
"MarketSite Revenues" mean all revenues (exclusive of VAT) earned by BT
from the operation of MarketSite or the provision of
any service using MarketSite including without
limitation access fees, extranet licence fees,
transaction fees and subscriptions to services
whether payable by buyers or suppliers but not
supplier support fees, content management services
fees and telecommunications network usage charges and
set up fees and excluding any BT services which do
not use MarketSite as a significant vehicle for
conducting transactions.
"MarketSite Services" means the Services which can be provided to
purchasers and suppliers using the MarketSite
Software including the granting of access to
MarketSite operations.
"MarketSite Software" means the Commerce One MarketSite software described
in Appendix 1.
</TABLE>
[*] = CERTAIN INFORMATION ON THIS PAGE HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
<TABLE>
<S> <C>
"Trading Agreement" means the Amended and Restated Trading Agreement
658130 dated January 8 1999 between Commerce One and
BT.
"UK" means the United Kingdom of Great Britain and
Northern Ireland, the Channel Islands and Isle of
Man.
</TABLE>
1. Commerce One Deliverables
In consideration of payment of charges, royalties and fees described in clause
2, Commerce One shall deliver the following licences, services and deliverables.
- --------------------------------------------------------------------------------
1.1 MARKETSITE LICENCE
- --------------------------------------------------------------------------------
(a) For the licence fee and royalties set out in clause 2(a), Commerce One
hereby grants BT a [*]; this limitation shall only apply to the extent
that Commerce One has contractual exclusivity commitments with another
party (Commerce One shall use all reasonable endeavours to ensure that
such commitments will give BT reciprocal rights in respect of passively
acquired sales to those detailed above). For the avoidance of doubt
this Licence is a Commercial Service Licence as referred to in clause
5.2.2 of the Trading Agreement.
(b) [*].
(c) [*], Commerce One may, by notice to BT given within seven (7) Business
Days following the end of that quarter, terminate its undertaking in
clause 1.1 (b) and the obligations under Clause 1.1(d)(i) and (ii).
Provided that (but only if the provisions of this proviso have not been
implemented in both the preceding two quarters) Commerce One's notice
given as above shall cease to be of effect if within the ten (10)
Business Days referred to above either
(i) BT agrees that the minimum number of extranet access licences for
the then current quarter shall be increased by the amount of the
shortfall in the deficit quarter or
(ii) BT undertakes to Commerce One within such ten (10) Business Days
to pay to Commerce One a sum equal to [*] of the average extranet
access licence fees charged by BT in the quarter (if any) which
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COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
preceded the deficit quarter multiplied by the shortfall in number
in the deficit quarter.
The following is the schedule of milestone extranet access licences to
BT's MarketSite Services during the Initial Period:
<TABLE>
<CAPTION>
QUARTER ENDING NUMBER OF LICENCES
-------------- ------------------
<S> <C>
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
</TABLE>
References to extranet access licences and fees for them include for
the above purpose licences or subscriptions howsoever designated and
fees for them.
BT shall notify Commerce One in writing of the relevant sales in each
of the above quarters within three (3) Business Days of the end of that
quarter failing which it shall be conclusively presumed for the
purposes of determining whether Commerce One's right under this (c) is
exercisable that there were no such sales.
(d) (i) BT undertakes that BT e-Business will only promote the
MarketSite Service using MarketSite for business-to-business
electronic procurement of commoditised indirect goods and services
during the Initial Period. Should BT breach this undertaking
Commerce One may by notice in writing to BT terminate its
undertakings in Clause 1.1(b) and the obligations under clauses
1.1.(d)(i) and (ii) provided that this shall not prevent promotion
of single supplier catalogues promoted by [*] retail direct good
trading. For the avoidance of doubt this obligation shall not
apply to BT other than BT's unit or units e-Business unit or its
successor.
(ii) Commerce One undertakes that it will only promote to suppliers or
customers in the UK BT's MarketSite Service for
business-to-business electronic procurement of commoditised
indirect goods and services during the Initial Period.
(e) Commerce One undertakes that before [*] it will publish [*] and provide
MarketSite integration to third party purchasing applications.
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COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
(f) For the avoidance of doubt no licence is granted to Commerce One in
respect of content, pricing and transactional information that may be
derived from BT's use of the MarketSite Software.
- --------------------------------------------------------------------------------
1.2 SOFTWARE SUPPORT MARKETSITE
- --------------------------------------------------------------------------------
Commerce One shall support the MarketSite Software in accordance with the terms
of the Trading Agreement.
The parties agree that all major and minor upgrades and new releases of the
MarketSite product shall be offered to BT at no charge under the current
Maintenance and Support Agreement and will be reflected in the standard
Maintenance and Support arrangements. The parties further agree that additional
value-added services which Commerce One provides to BT which have either (1) an
identifiable incremental revenue stream, (2) are sourced from third parties and
carry a royalty obligation by Commerce One to the outside vendor, or (3) can
reasonably be considered to have new functionality that is bundled and sold by
Commerce One as an add-on product to other customers, shall be considered new
products, and Commerce One shall be authorized to price separately from the
initial MarketSite license fee paid by BT.
- --------------------------------------------------------------------------------
1.3 SERVICES
- --------------------------------------------------------------------------------
(a) Commerce One shall provide up to [*] months at no additional charge to BT
to carry out implementation of the MarketSite Software for BT, including
- - System Infrastructure/Installation
- - Testing in BT hosting infrastructure
- - Knowledge transfer and training for the BT/Commerce One project team
- - On-Site technical support
- - Localisation support substantially in the form and scope as described
in Appendix 1 to this Licence
- - Support for supplier adoption and content management training and
skills transfer
The allocation of these services will be managed through written call-off
from BT. Commerce One shall provide a monthly statement to BT that details
the usage of such services, deliverables achieved and reference to the
relevant call-off document.
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REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
b) Commerce One agrees that any additional services required by
BT shall be billed at Commerce One's Professional Services
Rates from time to time, the current rates being as set forth
in Appendix 2 to this Licence (subject to BT placing an Order
for such services from time to time) provided that increases
in the first 5 years of this Agreement shall not exceed
increases in the US Consumer Price Index after the date of
this Licence and no increase shall take effect before the
expiry of 12 months from the date of this Licence.
c) BT will provide supplier content management as part of the
Market Site service, with the amount and timing of the content
to be adopted to be subject to agreement between BT and its
customers. BT may procure additional services from Commerce
One to deliver service to its customers at charges to be
mutually agreed on a case by case basis.
2. Charges and Fees
(a) BT shall pay Commerce One:
(i) an initial lump sum licence fee of [*] upon delivery,
successful installation and acceptance of the MarketSite
Software and services described within this Licence;
(ii) a royalty at the rate of [*] of all MarketSite Revenues (any
dispute as to what is included in MarketSite Revenues being
referred to resolution under the Governance Agreement); and
(iii) support fees in accordance with scale set out in the Trading
Agreement which for the avoidance of doubt shall be [*] per
annum beginning after the end of the first year of this
Agreement. Such fees shall be payable [*].
(b) As owner of all content and transactions carried on or across the
MarketSite, BT shall charge customers using the MarketSite Services fees
it deems appropriate for usage of such services.
(c) BT shall notify Commerce One of the MarketSite Revenues received in each
quarter ending 31 March, 30 June, 30 September or 31 December and sums
payable under clause (2)(a)(ii) within thirty (30) days of the end of the
quarter and shall pay Commerce One's invoice for the sums due to Commerce
One within 30 days of date of invoice. Commerce One shall be entitled to
audit such statements in accordance with the provisions of the Governance
Agreement.
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COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
(d) Where new services not currently provided are to be provided by BT using
the MarketSite Software as the platform, the revenues from these new
services shall be included in MarketSite Revenues but the parties will
discuss any alteration to the royalty rate applicable to MarketSite
Revenues from these new services in accordance with the procedures in the
Governance Agreement provided that if a different rate is agreed it shall
not be more than [*] nor less than [*]. In addition where such a new
service is sourced from a third party the revenue from such new service
shall be deemed to be the revenue net of the royalties payable to such
third party.
3. Severance
If any aspect of this Licence is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Licence. In such case this Licence shall be construed and enforced as if it
did not contain such provision. The parties shall negotiate in good faith to
modify and, or replace such provision with one that is valid and legally
enforceable.
4. Menu Content
The provisions of Exhibit 4 apply.
5. Global MarketSite
BT shall support Commerce One's objective to secure the availability of each
MarketSite Software licensee's supplier content on all MarketSites once this
is technically achievable and for this purpose shall endeavor (unless in the
reasonable opinion of BT this will be detrimental to BT) to reach agreement
with other licensees of MarketSite Software for the sharing of supplier
content and ensure that the supplier content of BT's MarketSite accords with
the common standards set by Commerce One. Commerce One shall use its
commercially reasonable endeavours to include a similar term in its
agreements with other operators of MarketSite.
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BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
Exhibit 10.11
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
AMENDED AND RESTATED TRADING AGREEMENT 658130 dated March 1999
between
(1) "BT" - British Telecommunications plc whose registered office is at 81
Newgate Street, London, EC1A 7AJ, and whose registered number is 1800000
and
(2) "Commerce One": -of Commerce One, Inc., a Californian corporation whose
principal place of business is at 1600 Riviera Avenue, Walnut Creek, California
94596
The purpose of this Trading Agreement is to enable BT and companies in which it
has a defined economic interest worldwide to order from Commerce One certain
Programs and other related software and services that enable the ordering entity
to subsequently provide electronic procurement and open trading partner network
services or other services which from time to time may be agreed across the
Internet for which the ordering entity will pay to Commerce One certain
remuneration. For a period of [ * ] from the Effective Date, and in
consideration of the sum of one pound payable by BT to Commerce One and of BT's
obligations and other good and valuable consideration (the receipt and
sufficiency of which is hereby acknowledged), This Amended and Restated Trading
Agreement shall supersede in its entirety the Trading Agreement entered into at
an earlier date by the parties. Commerce One shall undertake Work in accordance
with and subject to the provisions of this Trading Agreement, which comprises
this front sheet and the following appended documents:
<TABLE>
<CAPTION>
- ------------------------------- ----------------------------------------------------------------------------------------
Schedule Number Description
- ------------------------------- ----------------------------------------------------------------------------------------
<S> <C>
1 Terms and Conditions
- ------------------------------- ----------------------------------------------------------------------------------------
2 Pricing (to be completed)
- ------------------------------- ----------------------------------------------------------------------------------------
Appendix A Support and Maintenance Agreement
- ------------------------------- ----------------------------------------------------------------------------------------
Appendix B Official Order Cover Sheet
- ------------------------------- ----------------------------------------------------------------------------------------
Appendix C Confidentiality Agreement
- ------------------------------- ----------------------------------------------------------------------------------------
Appendix D BT Code of Practice On the Disclosure of Customer Information
- ------------------------------- ----------------------------------------------------------------------------------------
</TABLE>
SIGNED FOR AND ON SIGNED FOR AND ON
BEHALF OF BT BEHALF OF COMMERCE ONE
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
<PAGE>
- ------------------------------ -------------------------------------
- ------------------------------ -------------------------------------
NAME NAME
- ------------------------------ -------------------------------------
POSITION POSITION
SCHEDULE 1
TERMS AND CONDITIONS
<TABLE>
<CAPTION>
SECTION TITLE
- ------- -----
<S> <C>
1 Definitions
SCOPE
2 General
3 Description of Work
4 Prices and Leadtimes
5 Intellectual Property and Licenses
6 Support
7 Warranty
MANAGEMENT
8 Programme Management
9 Trading Agreement Change Procedure
10 Order Procedure
11 Suspension of Work on Site
12 Default for Late Delivery
</TABLE>
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OMITTED PORTIONS.
<PAGE>
<TABLE>
<S> <C>
13 [Number not used]
14 Interface with other Equipment
15 Performance and Retention
16 Termination
INTELLECTUAL PROPERTY
17 Confidentiality
18 [Number not used]
19 Intellectual Property Indemnity
20 Electronic Data Interchange (EDI)
GENERAL
21 Ordering Entity Items
22 Assignment and Subcontracting
23 Mistakes in Information
24 Protection of Documents and Programs
25 Title and Risk
26 Indemnity-General
27 Limitation of Liability
28 Insurance
39 Recovery of Sums Due
30 Payment
31 Records Inspection
32 Sites
33 Export and Re-Export
</TABLE>
APPENDICES:
Appendix A Support and Maintenance Agreement
Appendix B Official Order Cover Sheet
Appendix C Confidentiality Agreement
Appendix D BT Code of Practice On the Disclosure of Customer Information
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OMITTED PORTIONS.
<PAGE>
1 DEFINITIONS
1.1 "Acceptance" shall mean written acknowledgment by the Ordering
Entity which shall include by electronic mail, that the Work, or
part of it, has been completed in accordance with any Order.
"Accept" and "Accepted" in the context of "Acceptance" shall be
construed accordingly.
1.2 "Acceptance Test" shall mean any formal testing agreed between the
Parties and set out in any Order to determine if the Work
commissioned under such Order satisfies the criteria for
Acceptance for such Work by the Ordering Entity.
1.3 "Agreement" shall mean the Trading Agreement.
1.4 "Alliance" shall mean BT, and any legal entity in which British
Telecommunications plc, from time to time has or will have an
economic interest of [ * ] or more. BT to provide list of such
entities as of date of execution of this agreement and at the
reasonable request of Commerce One.
1.5 "BT" shall mean British Telecommunications plc of 81 Newgate
Street, London, EC1A 7AJ, and whose registered number is 1800000.
1.6 "Foreground Information" shall mean the product of Work, including
related documentation, resulting from a Special Commissioning
Order. This does not include Programs, Program Documentation or
Background Information. The Foreground Information so developed
shall be either owned by Commerce One ("Commerce One Foreground
Information") or by the Ordering Entity ("Ordering Entity
Foreground Information"). The allocation of the Foreground
Information shall be made according to the terms of this Agreement
agreed by the Ordering Entity and Commerce One in the
Commissioning Order. For the avoidance of doubt, work performed by
Commerce One related to the implementation of software sold under
this Trading Agreement shall not be considered Foreground
Information unless specifically agreed to by Commerce One in any
Commissioning Order.
1.7 "Trading Agreement" shall mean this Trading Agreement.
1.8 "Indirect Taxes" shall mean any sales, use, excise, value added
taxes (VAT), goods and services tax (GST) or similar tax, but not
any property tax, imposed by the law of any locality, state,
national, supra-national or equivalent government but, unless
stated specifically otherwise, shall not include any income or
other taxes in lieu of income tax.
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<PAGE>
1.9 "Background Information" shall mean information, whether written
or oral, including but not limited to design information,
documentation, specifications, reports, data, notes, drawings,
models, patterns, samples, computer outputs, designs, circuit
diagrams, inventions and know-how, whether patentable or not
existing as of the Effective Date of each applicable Order. For
the avoidance of doubt, this does not include Programs,
Documentation or Foreground Information. Background Information
shall be the property of either Commerce One ("Commerce One
Background Information") or the Ordering Entity ("Ordering Entity
Background Information"), and shall be supplied by either party to
the other subject to licensing under the terms of this Agreement
and/or any commissioning Order, with such alterations as may be
agreed by the parties in writing.
1.10 "Intellectual Property Right" shall mean any patent, petty patent,
registered design, copyright, design right, semiconductor
topography right, know-how, trade mark, service mark or any
similar right, registered or not, exercisable in any part of the
world and shall include any applications for the registration of
rights in connection therewith in any part of the world.
1.11 "Network" shall mean all exchange equipment, bandwidth,
transmission equipment, network terminating equipment, line plant,
power plant and ancillary equipment, computing and data
communications equipment, owned or operated by the Ordering
Entity.
1.12 "Order" shall mean a written order placed by an Ordering Entity
for Work (including Special Commissioning Orders). Any Order shall
consist of an Official Order Cover Sheet (an example of which is
appended in Appendix B and documents and appendices referred to
therein.
1.13 "Ordering Entity" shall mean the relevant Alliance entity that is
placing or has placed an Order under the Trading Agreement.
1.14 "Ordering Entity Items" shall mean all items provided by the
Ordering Entity to Commerce One in connection with an Order.
1.15 "Order Price" shall mean the total sum of License Fees, Support
and Maintenance and other consulting service Fees and other
remuneration payable to Commerce One by the Ordering Entity for
Work to be performed under any Order as stated in the relevant
Order.
1.16 "Site" shall mean the actual place at which Work shall be
delivered and/or installed by Commerce One.
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<PAGE>
1.17 "Programs" shall mean the object code version of the computer
programs, owned or distributed by Commerce One, for which BT and
or the Ordering Entity is granted a license pursuant to this
Agreement . Programs shall refer solely to those items identified
as such in the Order together with Maintenance Releases as defined
in and provided pursuant to the Support and Maintenance Agreement
together with the Documentation. For the avoidance of doubt,
Programs does not include any Foreground Information or Background
Information.
1.18 "Subcontractor" shall mean any person, partnership or corporation
with whom Commerce One places a contract and/or an order for the
supply of any equipment, item, service or for any Work, and
"subcontract" shall be construed accordingly.
1.19 "Special Commissioning Order" shall mean a written order placed by
an Ordering Entity that commissions Foreground Information.
1.20 "End User" means the party to whom an End User License Agreement
is granted by the Ordering Entity.
1.21 "Program Documentation" means such material, owned or distributed
by Commerce One, furnished by Commerce One in conjunction with the
Programs, including instructions and user guides [, as set out in
Appendix B of this Agreement].
1.22 "Commerce One Licensee" means the Ordering Entity, or any third
party who is licensed by Commerce One or the Ordering Entity under
the terms of the sub-license to use the Programs, Documentation,
Commerce One Foreground Information, Commerce One Background
Information or other Commerce One products.
1.23 License Fees" means sums stated in the Order Price related to
licensing under this Trading Agreement and payable by the Ordering
Entity to Commerce One according to the order between Commerce One
and the Ordering Entity.
1.24 "Opportunities" means opportunities, as identified by Commerce One
and the Alliance (or part thereof) together, to sell Commerce One
products and services including, without limitation, the Programs
and Documentation.
1.25 "Support and Maintenance Agreement" means the Support and
Maintenance Agreement to be executed by Commerce One and the
Ordering Entity and as set out in Appendix C of this Agreement.
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<PAGE>
1.26 "Support and Maintenance Fees" means those fees payable by the
Ordering Entity pursuant to the Support and Maintenance Agreement
and as stated in any Order Price.
1.27 "Work" shall mean all deliverables supplied, and all installation,
Acceptance and support services, including but not limited to
training and development set out in any specific Order.
1.28 References to the plural of any definition shall be deemed to
include the singular and vice-versa.
1.29 "Contract Personnel" shall mean Commerce One's employees,
subcontractors and agents (and their employees, subcontractors and
agents) engaged in the performance of the Contract.
2. GENERAL
2.1 If any aspect of the Trading Agreement is found to be invalid,
illegal or unenforceable this shall not affect the validity of any
part of the Trading Agreement. In such case Trading Agreement
shall be construed and enforced as if it did not contain such
provision. The parties shall negotiate in good faith to modify
and, or replace such provision with one that is valid and legally
enforceable. If the parties cannot reach agreement on a new
provision which places the parties in a position similar to the
commercial position which would have prevailed prior to the
modification or replacement being required, either party may, in
its sole discretion, withdraw from the Agreement.
2.2 The headings to the Trading Agreement provisions are for reference
only and shall not affect their interpretation.
2.3 No delay, neglect or forbearance by either party in enforcing any
provision of the Trading Agreement shall be deemed to be a waiver
of or in any way prejudice any rights of that party.
2.4 No waiver by either party shall be effective unless made in
writing or constitute a waiver of rights in relation to any
subsequent breach of the Trading Agreement.
2.5 The Trading Agreement and those terms explicitly included in any
Order and referenced on the Official Order cover sheet thereto
govern the relationship between the parties in relation to the
subject matter of this Agreement to the exclusion of any other
terms and conditions, unless such other terms are agreed in
writing between BT
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<PAGE>
and Commerce One. Should any conflict exist between the terms of
the Trading Agreement and an Order then the precedence provisions
of Section 3.4 of this Agreement shall apply.
2.6 The Trading Agreement is governed by English law and the parties
hereby submit to the jurisdiction of the English Courts. The
parties hereto agree that the Convention on International Sale of
Goods shall not apply to this Agreement.
2.7 Other than as set out herein, neither party shall, nor in any way
represent itself as, an agent of the other and shall have no
authority to enter into any obligation on behalf of the other or
to bind the other in any way.
2.8.1 Notices required under the Trading Agreement to be given in
writing shall be delivered by hand or by post or by facsimile
transmission. Notices shall be deemed to be given upon receipt
except that notices sent by pre-paid recorded delivery post in a
correctly addressed envelope shall be deemed to be given within 48
hours (excluding Sundays and public holidays) of posting, and
notices sent by facsimile transmission shall be deemed to be given
upon transmission.
2.8.2 Notices are to be given to BT and/or the Ordering Entity (where
appropriate). Where notices are to be given to BT they shall be
sent to the address below. Where notices are to be given to the
Ordering Entity they shall be sent to the contact point outlined
in the Order.
BT Contact Point:
Name: Stephen Russell
Address: ppB113 North Star House, North Star Avenue, Swindon,
Wiltshire
Telephone: 01793 547970
Facsimile: 01793 547158
Internet : [email protected]
Commerce One Contact Point:
Name: Robert M. Tarkoff, Esq.
Address: 1600 Riviera Ave., Walnut Creek, CA 94596
Telephone: (925) 941-2000
Facsimile: (925) 941-4555
Internet: [email protected]
2.8.3 Notices to Commerce One shall be given at the address set out above.
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OMITTED PORTIONS.
<PAGE>
2.9 Without prejudice to any prior obligations of confidentiality it
may have, either party shall ensure that no publicity relating to
the Trading Agreement or any Order shall take place without the
prior written agreement of either BT or C1 (for the Agreement) or
the appropriate Ordering Entity (for any Order), which consent
shall not be unreasonably withheld.[this change makes the
agreement consistent with the Confidentiality Section - otherwise
these provisions are in conflict].
2.10 The provisions of the following Sections of the Trading Agreement
set out below and any Sections relating thereto set out in any
Order shall survive the termination or expiry of the Trading
Agreement and/or any Order:
Section 5 - Intellectual Property and Licenses
Section 7.3 - Year 2000 Warranty
Section 17 - Confidentiality
Section 19 - Intellectual Property Indemnity
Section 26 - Indemnity - General
Section 27 - Limitation of Liability
2.11 Neither party shall be liable to the other for its failure or
delay in the performance of a required obligation if such failure
or delay is caused by strike, riot, fire, flood, natural disaster
or other similar cause beyond either party's control provided,
however, that either party gives prompt written notice of such
condition and resumes the performance of its obligations as soon
as possible.
3. DESCRIPTION OF WORK
3.1 Commerce One shall accept and fulfill all Orders placed in
accordance with the Trading Agreement where such Orders are for
the supply of Programs, products and services listed in Schedule 2
(Pricing), provided that Commerce One agrees and that it is
commercially reasonable for Commerce One to do so.
3.2 Commerce One shall accept Special Commissioning Orders (as
provided for under Section 5) where Commerce One has submitted a
valid quotation approved by an authorized signatory of Commerce
One.
3.3 The Work shall accord with any specifications agreed by both
parties and referred to in the Order accepted by Commerce One from
the Ordering Entity. Commerce One shall
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<PAGE>
provide reasonable assistance necessary to carry out the
installation, commissioning and testing.
3.4 The Work shall be performed in accordance with the Trading
Agreement and with the provisions of such Order(s) that an
Ordering Entity in its sole discretion may place in accordance
with the Condition headed "Order Procedure" of this Schedule 1.
Should the terms and conditions of any Order conflict with or vary
from those of the Trading Agreement then the Trading Agreement
shall take precedence; however variations that are clearly and
explicitly set out or referenced in the Variation to Trading
Agreement section of the Official Order Cover Sheet shall take
overall precedence over the terms set forth in this Trading
Agreement.
3.5 The Trading Agreement is not in itself an order for Work and no
Ordering Entity shall be under any obligation to order Work. It is
a framework agreement against which the Ordering Entity may order
Work. Notwithstanding the foregoing, any Ordering Entity shall
cooperate with Commerce One in the provision of information,
hardware, software or other materials or resources, at no charge
to Commerce One, as more fully set out in each Order.
3.6 Neither BT nor any other member of the Alliance shall be liable
for, or in relation to, any Order not placed by it. Further,
neither BT, nor any other Ordering Entity shall be liable for any
act or omission of any other Ordering Entity whether in relation
to the Trading Agreement, any Order or otherwise. Any Ordering
Entities placing orders under the Trading Agreement are separately
and individually liable for anything pertaining to any such Order.
Notwithstanding the foregoing, Commerce One's performance (as
described in Section 15) shall be dependent upon the timely and
accurate receipt of such cooperation by the Ordering Entity.
3.7 No breach by any Ordering Entity other than BT in relation to any
Order shall affect the validity or continuation of this Trading
Agreement.
4. PRICES AND LEADTIMES
4.1 Commerce One agrees that the prices of Work payable by any Ordering
Entity:
(a) [ * ]
(b) [ * ]
[ * ]
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<PAGE>
4.2 Commerce One shall if requested by the Ordering Entity determine
whether lead times can be improved to meet specific project
timescales and advise the Ordering Entity if this can be achieved
and whether there are any additional costs which would require a
change order to be implemented to achieve such improved lead time.
4.3 Commerce One shall acknowledge receipt of an Order in writing
within one business day from receipt.
5. INTELLECTUAL PROPERTY AND LICENSES
5.1 Intellectual Property Rights in the Programs and Documentation
belong to Commerce One or its licensors. The Ordering Entity shall
ensure that all copyright notices and trade marks of Commerce One
and/or its licensors are retained in all copies of the Programs,
Documentation possessed by the Ordering Entity and shall be
included on any Programs and Documentation sub-licensed to End
Users.
5.2 Upon delivery of Work by Commerce One under an Order from an
Ordering Entity, Commerce One hereby grants the Ordering Entity a
worldwide (subject to such Variations to Trading Agreement as are
prominently set forth on the Official Order Cover Sheet of the
Order), perpetual, transferable (provided that such transferee is
a member of the Alliance) licence, subject to payment of the
licence fees set out in any Order, to:
5.2.1 Use the Programs and Documentation for the Ordering
Entity's own internal business purposes. The Ordering
Entity may make a reasonable number of copies of the
Programs and/or Documentation to the extent required
for internal training and processes, and
5.2.2 Where the Official Order Cover Sheet specifies a
Commercial Service License to use the Programs and
Documentation in order to offer commercial service to
End Users pursuant to this Agreement. The Ordering
Entity may make copies of the Programs and/or
Documentation to the extent required for internal
training and processes and as far as is necessary in
order to exercise its right to sub-license the Programs
and Documentation to End Users under Section 5.2.3.,
and
5.2.3 Sub-license those elements of the Programs listed in
the Order as sublicensable and relevant Program
Documentation as listed in the Order to End Users.
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<PAGE>
5.3 The Ordering Entity shall not use the Programs or Documentation
for any purpose other than as specified in this Section 5 and
shall not sell or otherwise make available the Programs or
Documentation nor any information relating thereto to third
parties who are not End Users.
5.4 The Ordering Entity shall not undertake or permit the
modification, reverse engineering, disassembly or decompilation of
the Programs except to the extent permitted at law.
Notwithstanding the foregoing, the Ordering Entity shall notify
Commerce One prior to undertaking any reverse engineering so as to
give Commerce One the opportunity to provide the required
information to the Ordering Entity.
5.5 The Ordering Entity agrees that it shall make each End User aware
that the Documentation and Programs, are Confidential Information
of Commerce One and/or its licensors, and may not be disclosed to
any third party unless so required by law or with the prior
written consent of Commerce One.
5.6 All Ordering Entity Background Information and any copies thereof
and all Intellectual Property Rights therein shall remain the
property of the Ordering Entity. Commerce One shall return the
Ordering Entity Background Information to the relevant Ordering
Entity upon expiry or termination of the Trading Agreement or
relevant Order, or earlier upon request by the Ordering Entity.
5.7 Except as expressly set out in the Trading Agreement or any Order
no assignment of or license under any Intellectual Property Right
owned or controlled by the Ordering Entity is granted by the
Trading Agreement or by any Order.
5.8 From time to time an Ordering Entity may commission Foreground
Information from Commerce One via a Special Commisssioning Order.
Commerce One hereby grants to the Ordering Entity a perpetual
(subject to such limitations as are expressly set out in the
Variation to Trading Agreement section on the Official Order Cover
Sheet), transferable (only to members of the Alliance) licence to
use copy and sublicense the Foreground information for its
business purposes. This licence may be subject to the payment of
license fees and or royalties to Commerce One as expressly set out
in the Special Commissioning Order. For the avoidance of doubt,
Commerce One shall own all Foreground information unless otherwise
set forth in any Special Commissioning Order.
In addition Commerce One undertakes that for a period of one year
from the date of Acceptance of the relevant Foreground Information
(or such other period as to be stated in the Special Commissioning
Order) save for a non exclusive license to BT as set out in
Section 5.9 Commerce One will not whether by itself or on its
behalf sell
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lease hire distribute disclose or license (nor offer to sell lease
hire distribute disclose or license):
(a) any of the Foreground Information; or
(b) any equipment or software incorporating any of the
Foreground Information; or
(c) Any equipment or software incorporating any of the features
or functionality specified in the Special Commissioning
Order or any equivalent features or functionality.
5.9 Commerce One undertakes to grant to BT on request a non-exclusive
license on the same terms as the Programs licensed in this Trading
Agreement in respect of any Foreground Information developed by
Commerce One under any Special Commissioning Order for any
Ordering Entity () on the terms and conditions as set out in the
Special Commissioning Order or the applicable Order.
6 SUPPORT
6.1 The obligations of Commerce One to provide support for the
Programs are set out in Appendix A, the Support and Maintenance
Agreement. As part of any Order, the Ordering Entity may execute a
Support and Maintenance Agreement with Commerce One in the form
set out in Appendix A to this Agreement. Commerce One may not
refuse to enter into such an Agreement if requested subject to
agreement of the price on reasonable terms to be negotiated by the
parties.
6.2 Commerce One shall provide bug fixing services for Foreground
Information commissioned under a Special Commissioning Order under
similar terms and for the Support and Maintenance Fees set out in
the relevant Order.
7 WARRANTY
7.1 Commerce One warrants that for a period of [*] following
Acceptance of any particular Work under the terms of any relevant
Order that (i) the Programs, Documentation and Foreground
Information, if applicable, will conform with their published
specifications as may be set out in any relevant Order, and (ii)
the physical media on which the Programs, Documentation and
Foreground Information is furnished will be free of defect under
normal use.
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7.2 Commerce One warrants that it has the right and power to grant the
Ordering Entity the licenses granted to it under the Trading
Agreement and under any Order.
7.3 Commerce One warrants that those parts of the Programs and
Documentation created by Commerce One (not including third party
software licensed to Commerce One and identified in writing on any
Order cover sheet) and Foreground Information under this Agreement
are fully compatible (without modification, loss of performance,
loss of use, or work or expense on the part of the licensee
Ordering Entity) with changes to inputs, outputs, data or other
information in relation to dates arising in the year 2000 and
beyond (not including loss of performance due to other software,
hardware, software operating systems or firmware owned by BT or
licensed to BT by parties other than Commerce One and (b) on the
date of delivery free from:(i) all "viruses" that could have been
detected (at the date of dispatch, or if appropriate, immediately
before installation by Commerce One) by using the latest
commercially available virus detection software and (ii) all forms
of "electronic repossession" except where required by the Ordering
Entity or as specified in its defined functionality and "logic
bombs" (which expressions shall have meanings as they are
generally understood within the computing industry).
7.4 Any remedy for breach of the warranties set forth in this Section
7 shall be limited to commercially reasonable efforts to repair or
replace by Commerce One within the timescales detailed in the
Support and Maintenance agreement appended in Appendix A.
8. TRADING AGREEMENT REVIEW - PROGRAMME MANAGEMENT
8.1 Commerce One Programme Management:
Commerce One (and BT) shall provide a (full-time dedicated)
programme manager to act as prime interface with BT, for the
management of the Trading Agreement. The programme manager shall
receive all queries/correspondences from the Ordering Entity or BT
and shall be responsible for initiating work activities,
co-ordinating all such activity, controlling, monitoring and
progressing the Work to an acceptable conclusion including the
arrangement of review meetings. The programme manager shall be
responsible for providing BT and Ordering Entity with such reports
as may be required from time to time.
8.2 The scope and frequency of programme and Trading Agreement review
meetings shall be as required by BT from time to time.
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8.3 Commerce One shall provide monthly (or with such other periodicity
as BT shall from time to time require) reports detailing all
Orders placed to date, including cumulative sums, and a review of
Trading Agreement Performance Requirements. If required by BT,
Commerce One shall provide documentary evidence to validate and
support the information provided in such reports.
8.4 Commerce One shall meet with BT quarterly to discuss and review
Commerce One's current and future product development plans with
the aim of providing the Ordering Entity with early access to
technological developments and an opportunity to influence those
plans, provided, that Commerce One shall not be required to
disclose certain proprietary information at its sole reasonable
discretion. BT to be invited to Commerce One Commerce Council.
8.5 Commerce One's programme manager shall, if requested by an
Ordering Entity, hold Order review meetings and/or provide
progress reports in relation to the Ordering Entity Orders. The
scope and frequency of such Order reviews and progress reports
shall be as determined by the Ordering Entity.
9. TRADING AGREEMENT CHANGE PROCEDURE
9.1 Any change, including timescales to the Trading Agreement or any
Order thereunder shall not be effective unless agreed by Commerce
One and BT ( for the Trading Agreement) and the Ordering Entity
(for any Order) in writing. Any change, including timescales, to
an Order shall not be effective unless agreed by the Ordering
Entity and Commerce One in writing. Any agreed changes in costs
arising from such variation shall be added to, or deducted from,
the relevant Trading Agreement/Order Price or the prices for the
relevant portion of the Work.
10. ORDER PROCEDURE
10.1 All Work to be performed by Commerce One in relation to Trading
Agreement shall be undertaken on the basis of a properly
authorized Order.
10.2 All Orders shall be sent to Commerce One at Commerce One's
location as set our in this Agreement and as amended from time to
time.
10.3 Without limitation, the Order shall include and clearly state the
following:
(i) name of the Ordering Entity;
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(ii) Trading Agreement number (where possible);
order number;
(iii) Quotation reference Number
(iv) Work requested
(v) Site or delivery address;
(vi) timescales;
(vii) Ordering Entity's point of contact;
(viii) billing address;
(ix) price, invoicing procedure and currency.
(x) Authorized Signature of Ordering Entity
(xi) Variations to the Trading Agreement
Any variations to the Trading Agreement as mentioned in Section
10.3 (xi) shall be governed by the precedence terms detailed in
Section 3.4.
11. SUSPENSION OF WORK ON SITE
11.1 The Ordering Entity shall have the right to suspend the Work at
any time for a maximum period of 30 days (or for such other period
as may be agreed in writing by the parties) and will pay to
Commerce One all reasonable, unavoidable, resulting expenses
incurred by Commerce One (other than those arising from Commerce
One's own default) provided that:
11.1.1 no payment shall be made for any period of suspension,
prevention or delay less than ten consecutive working
days; and
11.1.2 Commerce One has within 10 working days after the event
giving rise to the claim, given notice in writing to
the Ordering Entity of its intention to make such a
claim;
11.1.3 Commerce One makes such claim giving details of each
item claimed and the reason for such cost within 30
days after performance of the Work is resumed; and
11.1.4 the Ordering Entity shall not suspend Work under the
terms of this Section more than once in relation to any
particular Order.
12. DEFAULT FOR LATE DELIVERY
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12.1 Subject to Section 2.11, if Commerce One does not deliver,
install, or complete any Work by the date specified in the Order,
or such other date mutually agreed in writing. Commerce One shall
be in breach of the Trading Agreement and shall pay to the
Ordering Entity if requested an amount of liquidated damages in
respect of such delay at 1.5% for each week of delay, up to 10% of
the price of the Work in delay. Payment of these liquidated
damages shall be in lieu of all liability for any and all extra
costs, losses or expenses, claims, penalties and any other damages
whether special or consequential and of whatsoever nature incurred
by the Ordering Entity which are occasioned by such delay in
delivery. These liquidated damages do not constitute a penalty and
the parties, having bargained in good faith for such specific
damages, are estopped from contesting the validity or
enforceability of such damages. Notwithstanding the foregoing,
Commerce One shall not be considered in breach of this Trading
Agreement if the failure to complete the Work shall be the result
of the failure of BT or any other Alliance member to fulfill their
obligations set forth in this Trading Agreement or in any
applicable Order.
12.2 The Ordering Entity may, at its option, at any time deduct any
amount of liquidated damages then due from Commerce One to the
Ordering Entity from any sums then due from the Ordering Entity to
Commerce One and any not so deducted may be recovered by the
Ordering Entity from Commerce One as a debt.
12.3 Payment of, or the Ordering Entity's right to, liquidated damages
under this Condition shall not affect any of the Ordering Entity's
or BT's rights under the Condition headed "Termination" provided
Commerce One has received notification in writing within 7 days of
such claim.
13. [NUMBER NOT USED]
14. INTERFACE WITH OTHER EQUIPMENT
14.1 Commerce One shall be responsible for the successful inter working
of Work in or with the Ordering Entity Network specified by the
Ordering Entity, existing at the time of Acceptance of the Work.
14.2 Commerce One shall supply such information, as the Ordering Entity
may reasonably require, to enable the Ordering Entity to interface
the Work with such other equipment and systems as may form part of
the Ordering Entity Network or the network of any other public or
private telecommunications operator.
14.3 Such information as required under Sections 14.1 and 14.2 shall be
supplied at no charge to the Ordering Entity, provided that
Commerce One have been provided with
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all the necessary information at the time of commissioning Order
and Commerce One have accepted such Order without identifying and
requesting additional costs for such work
15. PERFORMANCE AND RETENTION
15.1 Performance
15.1.1 Commerce One's performance of the Work shall be
measured by comparing Commerce One's actual achieved
performance against any standard specified and agreed
by Commerce One and the Ordering Entity in any Order
(an "Order Standard").
15.1.2 BT reserves the right to negotiate and include
additional Order Standards as and when required
pursuant to the Trading Agreement Change Procedure,
provided BT provides Commerce One with reasonable
notice of such additional Order Standards and Commerce
One agrees to such standards.
15.2 Payment Retention
15.2.1 If Commerce One's actual achieved performance shall
fail to meet any relevant Order Standard in any month
then BT shall have the right to retain [*] for each
Order Standard not met;
15.2.2 Any sums to be retained under Condition 16.2.1 shall be
deducted from the most recent invoice then due or to
become due for payment by the Ordering Entity to
Commerce One under the Trading Agreement.
15.2.3 All sums retained in respect of Commerce One's failure
to achieve any Order Standard shall be released, in
addition to all other amounts owed to Commerce One
under the Order, to Commerce One following the first
month there after in which Commerce One's achieved
performance has subsequently met or exceeds that Order
Standard.
15.2.4 In any event the Ordering Entity shall not pay any
invoice unless the Order Standard statistics have been
submitted by Commerce One within 7 days of the relevant
invoice date.
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15.3 The rights of the Ordering Entity or BT under this Condition are
without prejudice to any other rights or remedies under the
Trading Agreement.
15.4 Delivery and Acceptance. Upon delivery of Work performed by
Commerce One to the Ordering Entity by Commerce One, the Order
Entity shall evaluate the Work for conformity with the
specifications set forth in the Order. Within thirty (30) working
days after delivery of the Work, the Ordering Entity shall provide
Commerce One with written acceptance thereof ("Acceptance"), or a
statement of defects to be corrected. If not accepted, Commerce
One shall have thirty (30) working days to correct such defects
and return the Work to the Ordering Entity for retesting, review
and reevaluation. The foregoing process shall be continued until
the Work is accepted by the Ordering Entity, until the parties
agree to terminate their Order under Section 17, or until the
parties agree on another method to resolve the failure.
16. TERMINATION
16.1 Notwithstanding the provisions of Section 16.2 if either Commerce
One or BT commits a material or persistent breach of this
Agreement or an Order placed by BT and in the case of such a
breach which is capable of remedy, fails to remedy the breach
within thirty (30) working days (or such longer period as BT or
Commerce One may agree in writing) of written notice from BT or
Commerce One, as applicable, then, without prejudice to any other
rights or remedies Commerce One or BT may have, the non-breaching
party shall have the right at any time after such 30 day notice
period to terminate the Agreement forthwith as a whole and/or
performed under an Order placed by BT, and BT or Commerce One, as
applicable, to terminate Orders placed by BT forthwith as a whole
or (at BT's or Commerce One's option, as applicable) in respect of
any part of the Work, performed or to be performed under the Order
placed by BT, and to claim for all resulting losses and expenses
(including, without limitation, the cost of completing the Work,
or having the Work completed by another Contractor, to a similar
standard).
16.2 Without prejudice to other rights or remedies it may have, either
Commerce One or BT shall have the right at any time to terminate
the Agreement forthwith, and to cancel Orders placed by BT
forthwith, and to claim for all resulting losses and expenses
(including, without limitation, the cost of completing the Work or
having the Work completed by another Contractor to a similar
standard) if:
16.2.1 Commerce One or BT shall become insolvent or cease to
trade or compound with its creditors; or
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16.2.2 a bankruptcy petition or order is presented or made
against Commerce One or BT; -; or if a trustee in
sequestration is appointed in respect of the assets of
Commerce One
16.2.3 a receiver or an administrator receiver is appointed in
respect of any of Commerce One's or BT's assets, as
applicable; or
16.2.4 a petition for an administration order is presented or
such an order is made in relation to Commerce One or
BT, as applicable; or
16.2.5 a resolution or petition or order to wind up Commerce
One or BT is passed or presented or made or a
liquidator is appointed in respect of Commerce One or
BT (otherwise than for reconstruction or amalgamation);
or.
16.2.6 The management, ownership or control of Commerce One is
materially changed to the detriment of BT as may
determine upon the exercise of its reasonable judgment.
16.3 Notwithstanding the provisions of Section 16.4 if either Commerce
One or an Ordering Entity commits a material or persistent breach
of an Order and in the case of such a breach which is capable of
remedy, fails to remedy the breach within thirty (30) working days
(or such longer period as the Ordering Entity or Commerce One may
agree in writing) of written notice from the Ordering Entity or
Commerce One, as applicable, then, without prejudice to any other
rights or remedies Commerce One or the Ordering Entity may have,
the non-breaching party shall have the right at any time after
such 30 day notice period to terminate the Order forthwith as a
whole or (at the non-breaching parties' option) in respect of any
part of the Work, performed or to be performed under the Order,
and to claim for all resulting losses and expenses (including,
without limitation, the cost of completing the Work, or having the
Work completed by another Contractor, to a similar standard).
16.4 Without prejudice to other rights or remedies it may have, either
Commerce One or an Ordering Entity shall have the right to cancel
Orders forthwith, and to claim for all resulting losses and
expenses (including, without limitation, the cost of completing
the Work or having the Work completed by another Contractor to a
similar standard) if:
16.4.1 Commerce One or the Ordering Entity shall become
insolvent or cease to trade or compound with its
creditors; or
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16.4.2 a bankruptcy petition or order is presented or made
against Commerce One or the Ordering Entity; - or if a
trustee in sequestration is appointed in respect of the
assets of Commerce One
16.4.3 a receiver or an administrator receiver is appointed in
respect of any of Commerce One's or the Ordering
Entity's assets, as applicable; or
16.4.4 a petition for an administration order is presented or
such an order is made in relation to Commerce One or
the Ordering Entity, as applicable; or
16.4.5 a resolution or petition or order to wind up Commerce
One or the Ordering Entity is passed or presented or
made or a liquidator is appointed in respect of
Commerce One or the Ordering Entity (otherwise than for
reconstruction or amalgamation);
16.5 The Ordering Entity may at any time, without prejudice to any
other rights and remedies it may have, terminate Orders forthwith
on forty five (45) days written notice. Where the Ordering Entity
terminates Orders under this Condition and does not have any other
right to terminate as set forth above, the Ordering Entity shall
pay Commerce One such amounts as may be necessary to cover its
reasonable costs and outstanding and unavoidable commitments
necessarily incurred solely in performing the Orders in relation
to the Work ordered by the Ordering Entity before the date of
termination and for which payment has not at that date become due
from the Ordering Entity ("the Applicable Work"). However, the
Ordering Entity shall not pay for any such costs or commitments
that the Commerce One is able to mitigate and shall only pay costs
and commitments that the Ordering Entity has validated to its
satisfaction. For the avoidance of doubt, resource commitments
made by Commerce One to fulfill Orders shall count as compensable
expenses provided that Commerce One can document to the reasonable
satisfaction of the Ordering Entity such resource commitment
expenses.
Notwithstanding the above, the Ordering Entity's total liability
under this Section 16.5 shall not in any circumstances exceed the
price that would have been payable by the Ordering Entity for the
Applicable Work if the Order had not been terminated (which price
shall include the costs of such resource commitments referenced
above). Apart from any payments to be made as set out in this
Section 16.5, and subject to Section 16.6, the Ordering Entity
shall have no liability to make any payments to Commerce One in
relation to the Order following its termination by the Ordering
Entity in accordance with its rights referred to above.
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16.6 In the event that the Agreement or an Order is terminated for any
reason whatsoever, any rights and obligations of any party hereto
which may have accrued prior to the date of such termination shall
not be affected. Furthermore, Commerce One shall complete all
other Orders existing at the time of termination of the Agreement,
including all support obligations as if the Agreement had not been
terminated.
16.7 Termination of the Agreement or Order shall be without prejudice
to any provision intended to operate thereafter.
17. CONFIDENTIALITY
17.1 Subject to the Condition headed `Intellectual Property", either
party receiving Information ("the Recipient") from the other shall
not without the other's prior written consent use such Information
except for Contract purposes or disclose such Information to any
person other than BT people or Contract Personnel who have a need
to know. The Recipient shall return documentation containing such
Information to the other party when no longer required for such
purposes.
17.2. Section 17.1 shall not apply to Information that is:
a) published except by a breach of the Contract; or
b) lawfully known to the Recipient at the time of disclosure
and is not subject to any obligations of confidentiality;
or
c) lawfully disclosed to the Recipient by a third party
without any obligations of confidentiality; or
d) replicated by development independently carried out by or
for the Recipient by an employee or other person without
access to or knowledge of the Information.
17.3. Neither Commerce One or BT shall publicise the Agreement or any
Order without the other's prior written consent and shall ensure
that any subcontractor is bound by similar confidentiality terms
to those in this Condition.
17.4. Without prejudice to any prior obligations of confidentiality it
may have, where Commerce One or Contract Personnel have access to
BT's computer systems or to Information relating to BT's customers
or subject to the Data Protection Acts 1984/1998 ("DPA"), Commerce
One shall:
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a) comply (and ensure that all relevant Contract Personnel
comply) with all relevant provisions of any BT Codes of
Practice (mutatis mutandis) appended to the Contract or
notified to Commerce One from time to time, the Computer
Misuse Act 1990 and the DPA; and
b) ensure all such Contract Personnel first sign and deliver
to BT a confidentiality agreement in the form appended to
the Agreement in Appendix D, or in such form as BT shall
reasonably require; and
c) ensure such Information is not disclosed to or accessed by
Contract Personnel not directly employed by Commerce One
without BT's prior written consent; and
d) keep (and ensure all relevant Contract Personnel keep) such
Information secure, act only on BT's instructions with
respect to it, and comply with such further reasonable
requirements from time to time of BT for the security of
it; and
e) not export such Information outside the European Union
without BT's prior written consent; and
f) allow (and ensure that all relevant Contract Personnel
allow) BT or its authorised representatives such access to
premises, systems and records containing such Information
as is reasonably necessary to assess Commerce One's
compliance with this Condition.
[18. NUMBER NOT USED]
19. INTELLECTUAL PROPERTY INDEMNITY
19.1 Commerce One shall fully indemnify the Ordering Entity against all
actions, claims, proceedings, damages, costs, and expenses arising
from any infringement or alleged infringement of any patent,
copyright or trade secret arising from the use by the Ordering
Entity of the Programs, the Program Documentation or other
Information supplied by Commerce One pursuant to this Agreement.
Notwithstanding the foregoing, Commerce One shall have no
obligation to indemnify under this Section 19 if such infringement
claim results from corrections/modifications not provided by
Commerce One, failure to install updates, combinations of the
Programs software with any software not provided by Commerce One,
or specific customization of the Program software at the request
of BT (which shall be defined as the addition or inclusion of any
specific functionality requested by BT) or any Alliance members.
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19.2 BT and/or the Ordering Entity shall notify Commerce One, and
Commerce One shall notify BT, promptly in writing of any
infringement or alleged infringement referred to in Section 19.1.
19.3 In the event of any such infringement or alleged infringement as
set out in Section 19.1, Commerce One shall at its own expense
and, provided Commerce One exercises reasonable judgement, its own
option:
19.3.1 Substitute a substantially equivalent non-infringing
product allowing the Ordering Entity unrestricted use
of the infringing Programs or Documentation, and to
exercise its other rights granted it under the trading
Agreement and relevant Order in respect of such
Programs or Documentation; or
19.3.2 Modify or replace the Programs or Documentation , so as
to meet the existing functional specification and avoid
the claim of infringement and any injunction or court
order; or
19.3.3 Negotiate for settlement of or defend the claim, and
hold the Ordering Entity harmless from any judgement,
order or settlement. Commerce One shall endeavour to
conduct such negotiations and litigation in a timely
manner, provided that Commerce One shall have sole
central of the defense, including settlement.
Unless otherwise agreed in writing Commerce One shall conduct all
negotiations and litigation in relation to any such infringement
or alleged infringement and be responsible for all costs and
expenses incurred. The Ordering Entity shall afford all reasonable
assistance in contesting such allegations but if Commerce One
fails to conduct such negotiations or litigation within a
reasonable time, the Ordering Entity may request to conduct of the
same and in such instance Commerce One shall fully reimburse the
Ordering Entity for all resultant costs.
20. ELECTRONIC DATA INTERCHANGE (EDI)
BT or the Ordering Entity may wish to introduce EDI during the continuance
of the Trading Agreement. Commerce One shall fully co-operate with BT or
the Ordering Entity in any such initiative the costs of introducing EDI to
be paid by the Ordering Entity
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21. ORDERING ENTITY ITEMS
21.1 All Ordering Entity Items shall remain the property of the
Ordering Entity. Commerce One shall return them to the Ordering
Entity upon completion or termination of the Trading Agreement or
relevant Order, or earlier reasonable request by the Ordering
Entity. Commerce One shall keep the Ordering Entity Items, and
(before their delivery to Ordering Entity) any items or things
that are or have become the Ordering Entity's property ("Ordering
Entity property"), in safe custody and good condition, set aside
and clearly marked as Ordering Entity property. Commerce One shall
be fully liable for any loss of or damage to Ordering Entity Items
or Ordering Entity property.
21.2 Upon receipt of the Ordering Entity Items, Commerce One shall
satisfy itself that they are not defective or deficient for the
purpose for which they are being provided, and within 14 days of
receipt shall notify the Ordering Entity of any defects or
deficiencies.
21.3 Commerce One shall not, without the prior written consent of the
Ordering Entity, use Ordering Entity Items for any purpose other
than is necessary for the performance of the Trading Agreement, or
allow any other party to use, take possession of, or have any
rights or lien over Ordering Entity Items or Ordering Entity
property.
21.4 Without limiting the generality of Commerce One's obligations,
Commerce One shall not have, and shall ensure that third parties
shall not have, a lien on the Ordering Entity Items or Ordering
Entity property for any sum due. Commerce One shall take all
reasonable steps to ensure the title of the Ordering Entity and
the exclusion of such lien are brought to the notice of all
personnel dealing with any Ordering Entity Items or Ordering
Entity property.
21.5 In the event of any threatened seizure of any Ordering Entity
Items or Ordering Entity property or in the event of Commerce One
(or any personnel or Subsidiaries of Commerce One in possession of
such Ordering Entity Items or property) going into receivership,
administration or liquidation (or the equivalent of any of these)
Commerce One shall:
a) Notify BT and the Ordering Entity immediately; and,
b) Draw to the attention of the relevant official that
Ordering Entity Items and Ordering Entity property are the
property of the Ordering Entity and do not form part of
Commerce One's assets; and,
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c) Allow BT and the Ordering Entity to enter Commerce One's
premises or those of any Subcontractor where Ordering
Entity Items or Ordering Entity property are stored and
take possession of them.
22. ASSIGNMENT AND SUBCONTRACTING
22.1 Commerce One shall be wholly responsible for the performance of
the Work and the actions and omissions of all Subcontractors for
which Commerce One is responsible
22.2 BT, Commerce One and any Ordering Entity shall not without the
permission in writing of the other
22.2.1 Assign or sub-contract the whole of the Trading
Agreement; or
22.2.2 Assign or sub-contract part of the Trading Agreement
except as is customary in the trade; or
22.2.3 Assign or sub-contract any Order in whole or in part
without the others permission in writing, provided,
however that, notwithstanding the foregoing, Commerce
One shall be able to assign this Trading Agreement to
an entity acquiring all, or substantially all, of its
assets or capital stock, provided that such entity is
not a competitor of BT or any of its majority owned
subsidiaries, in which case Commerce One shall be
required to receive BT's consent to such assignment. In
addition, Commerce One shall be able to use
subcontractors to complete any Work under this
Agreement or any Order.
23. MISTAKES IN INFORMATION
Both parties shall inform each other in writing of any mistakes in the
Information, within a reasonable time of receipt.
24. PROTECTION OF DOCUMENTS AND PROGRAMS
24.1 Both parties shall take suitable precautions to protect
documentation and Programs [and Foreground Information] generated
or required for the Trading Agreement or Order against loss of any
kind. Upon the release of any Programs or Documentation
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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update a set of the latest Programs and documentation shall be
stored by Commerce One in a safe location remote from Commerce
One's normal work premises.
24.2 Commerce One shall, if required by the Ordering Entity, enter an
agreement with a neutral third party, acceptable to the Ordering
Entity, to lodge with the third party copies of such Programs
including source code and update them as necessary for release to
the Ordering Entity in the event that Commerce One becomes
unwilling or unable to support such Programs. Each party shall be
responsible for its respective costs. Should the parties be unable
to agree a mutually acceptable third party the services of Escrow
International, UK shall be employed as a default option.
24.3 In the event of either party being required to dispose of any
Programs media during the course of any Work to be carried out
under this Agreement he shall ensure that all such disposals are
effected so as to give absolute protection to any of the other
parties Information contained therein and to prevent any data
falling into the hands of any third party.
25. TITLE AND RISK
25.1 Without prejudice to the Ordering Entity's right to reject under
the Agreement or Order, the title in the Work shall pass to the
Ordering Entity upon the earlier of delivery or Acceptance or the
passing of risk or payment (including any part payment).
25.2 Without prejudice to the Ordering Entity's right to reject under
the Agreement or Order, risk shall pass from Commerce One to the
Ordering Entity upon the later of, Acceptance, delivery or
payment.
26. INDEMNITY-GENERAL
26.1 Without prejudice to any other rights or remedies available to
either party, each party shall indemnify the other against all
claims and proceedings, damages, costs and expenses arising or
incurred in respect of:
26.1.1 Death or personal injury of any other person to the
extent arising as a result of the negligent acts or
omissions of the other or the other's personnel or
subcontractors in relation to the performance of the
Trading Agreement or any Order thereunder; or
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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26.1.2 Loss of or damage to any physical property to the
extent arising as a result of negligent acts or
omissions of the other or the other's personnel or
subcontractors in relation to the performance of the
Order; provided that this does not apply to any
liability arising from defects in the Programs,
Documentation, Foreground Information or Background
Information.
26.1.2 Any other direct loss or damage arising under or in
connection with this Agreement.
27. LIMITATION OF LIABILITY
27.1 Neither BT, Commerce One or any Ordering Entity, in connection
with this Agreement and any Order executed thereunder, shall be
liable to the other in respect of any misrepresentation or in
contract or in tort including, without limitation, negligence for:
27.1.1 [*]; and
27.1.2 [*]
27.2 The limitations under Section 27.1 shall not apply in respect of:
27.2.1 Death or personal injury, fraud or fraudulent
misrepresentation; or
27.2.2 [*]
27.2.3 Any liability of BT or Ordering Entity to pay any Order
Price, charges and any other sums due to Commerce One
under this Agreement.
28. INSURANCE
28.1 Commerce One shall provide satisfactory evidence of such
insurances, at the customary coverage levels and conditions
germane to the types of products and services being purchased, as
BT or Ordering Entity may request before and during the
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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term of the Trading Agreement, to include where appropriate, but
not necessarily limited to:
28.1.2 Employer's Liability Insurance;
28.1.3 Third party liability insurance;
28.1.4 Comprehensive general (third party) liability
insurance;
28.1.5 Professional liability insurance;
This Condition shall not be deemed to limit in any way Commerce One's
liability under the Trading Agreement.
If Commerce One cannot provide evidence of insurances to BT or Ordering
Entity, BT or Ordering Entity may arrange such insurances and recover the
cost from Commerce One, subject to Commerce One's approval of the terms of
such insurances.
29. RECOVERY OF SUMS DUE
Whenever a sum of money due to the Ordering Entity from Commerce One in
relation to any Order or otherwise is not paid on the due date, it may be
deducted from any sum then due, or which at any time thereafter may become
due to Commerce One under the Order or any other contract with the
Ordering Entity.
30. PAYMENT
30.1 In consideration of the licenses, products and services supplied
by Commerce One pursuant to this Agreement, the Ordering Entity
will pay to Commerce One the fees detailed in Schedule 2 or as
agreed in any Order for Foreground Information.
All fees are stated exclusive of value added tax but which shall
be payable in addition by the Ordering Entity.
30.2 All sums under this Agreement shall be payable by the Ordering
Entity within 30 (thirty) working days of submission of a valid
invoice (such invoice to be issued according to the terms of the
relevant Order), whether such sums become due on the date of the
relevant invoice from Commerce One or on the grant of any
applicable license or sub-license.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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31. RECORDS INSPECTION
The Ordering Entity shall maintain records of, and provide Commerce One
within [30] days of the end of each month a list of all End Users to
whom a sub-license (does this include resell) of the Programs or
Program Documentation is granted by the Ordering Entity.
32. SITES
32.1 Commerce One shall at his own expense comply with all Site
regulations applicable to the performance of the Order and take
and comply with such other measures as may be reasonably necessary
in respect of precautions for safeguarding all persons and
property as may be affected by the performance of the Order.
32.2 Where the Work is to be carried out on Site, the Ordering Entity
shall provide such reasonable facilities as Commerce One may
require to undertake the Work.
32.3 The Ordering Entity and Commerce One shall agree such reasonable
working hours as may be applicable to each Site.
32.4 Commerce One shall agree and advise the Ordering Entity in writing
of the dates and times on which it proposes to deliver any work to
the Site, together with any specific requirements related to the
work for each Site.
32.5 Commerce One's personnel and SubContractor's personnel shall
conform to all security, safety and Site regulations and such
other local instructions, as may be notified by the Ordering
Entity or where applicable, its End User, whilst on any Site.
32.6 Commerce One shall be deemed to have examined the Sites. No claims
from Commerce One for additional payment will be allowed on the
grounds of misinterpretation of any matter relating to the Site,
on which Commerce One could reasonably have satisfied itself, by a
visit to the premises, reference to the Ordering Entity or such
other means as may be appropriate.
32.7 Commerce One shall give at least 10 working days notice in writing
to the Ordering Entity of the proposed dates and times on which it
proposes to deliver any Supplies or Commerce Ones Supplies to the
Site.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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32.8 Commerce One shall upon dispatch of the Supplies or Commerce Ones
Supplies to Site notify the Ordering Entity of details of the
Supplies or Commerce Ones Supplies by means of a copy of the
dispatch note or otherwise in writing.
32.9 Commerce One shall deliver the Supplies to the Site and shall
provide all equipment and labour for the conveyance and unloading
of the Supplies on to the Site.
32.10 No part of the Supplies or Commerce Ones Supplies shall be removed
from the Site without the consent of the Ordering Entity.
32.11 Other than any defective Work and Supplies Commerce One shall not
remove Commerce One's Supplies before submitting Work for
Acceptance, and, shall leave the Site clean and in good condition.
33. EXPORT AND RE-EXPORT
33.1 Commerce One will be responsible for compliance with all
applicable national export control laws and regulations and agrees
not to export, directly or indirectly, any Programs or
Documentation where such export would cause a breach of either any
such laws or regulations applicable to Commerce One or the
Ordering Entity or of any export licence granted or applicable to
Commerce One or the Ordering Entity.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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Exhibit 10.12
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
MARKETING AGREEMENT
THIS AGREEMENT entered into effective as at the ____ day of July, 1998
BETWEEN:
MCI SYSTEMHOUSE CORP.
a corporation incorporated under the laws of Delaware,
having its principal place of business at 3 Ravinia Drive,
Atlanta, Georgia, 30346-2102
(hereinafter, "MCIS")
AND:
COMMERCE ONE, INC.
a corporation incorporated under the laws of California,
having a place of business at 1600 Riviera Avenue, Walnut Creek,
California 94596
(hereinafter, "C1")
WHEREAS the parties each desire to enhance the marketability of their respective
products and services;
AND WHEREAS the parties have complementary capabilities, products, and services,
and it is to their mutual benefit to cooperate and work together for the
purposes of providing Services as defined herein to Customers;
AND WHEREAS the parties intend to submit Proposals to Customers in an effort to
secure Contracts with Customers;
AND WHEREAS MCIS and C1 each desire to define their mutual rights and
obligations in connection with any joint marketing efforts, the preparation and
submission of Proposals and in connection with certain matters which may arise
if the Customer enters into a Contract;
NOW THEREFORE, in consideration of the mutual premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
<PAGE>
1.0 INTERPRETATION
1.1 In this Agreement the following expressions shall, unless the subject
matter or context is inconsistent therewith, have the respective
following meanings:
"ACT OF INSOLVENCY" means that a party:
(i) institutes proceedings for its winding-up (except for
reorganization), liquidation, or dissolution or consents to the
filing of any petition with respect thereto or files a petition
seeking reorganization, readjustment, arrangement, composition or
similar relief under applicable law, or consents to the filing of
any such petition or to the appointment of a receiver, liquidator,
trustee or similar officer of itself or any part of its property
or makes an assignment for the benefit of creditors; or
(ii) if a court having jurisdiction enters a decree or order for its
winding up, liquidation or dissolution or adjudges it to be
insolvent or enters a decree or order which remains in force,
undischarged or unstayed, for a period of 20 Business Days or more
approving, as properly filed, a petition seeking reorganization,
readjustment, arrangement, composition or similar relief for any
such party under applicable law, or the appointment of any
receiver, liquidator, trustee or similar officer of any such party
or all or any part of its property; or
(iii) if any application is made with respect to it under chapter 7 or
chapter 11 of Title 11 of the U. S. Code or similar or replacement
legislation or if a proceeding is instituted for its winding up or
a petition in bankruptcy is presented against it under a
bankruptcy or similar act and such application, proceeding or
petition is not dismissed, stayed or withdrawn within 20 Business
Days after such party has notice or knowledge of the institution
thereof.
"AFFILIATE" of a party or other entity shall mean a corporation,
partnership, joint venture or other entity directly or indirectly,
through one or more intermediaries, controlling, controlled by or under
common control with such party or other entity.
"AGREEMENT" means this agreement, any Schedule or Exhibit hereto, and all
amendments or modifications thereto.
"BUSINESS DAY" means any day between the hours of 8:00 a.m. and 5:00
p.m., Pacific time, other than a Saturday, Sunday or United States
federal holiday.
"C1 SOFTWARE" means the C1 software products as defined by the term
"Software" in the License Agreement.
"CONFIDENTIAL INFORMATION" means confidential or proprietary information
disclosed by a party pursuant to this Agreement, as defined in the Non-
Disclosure Agreement between the parties attached hereto as Schedule "B".
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"CONTRACT" means a contract entered into by either or both parties with a
Customer resulting from a Proposal.
"CUSTOMER" means an existing or potential customer or end-user of either
party, for whom Services may be performed.
"CUSTOMER OPPORTUNITY(IES)" means those opportunities to provide Services
to a Customer pursuant to this Agreement, as further defined in Schedule
"A" - Co-Marketing Obligations.
"EXHIBIT(S)" means the attachments to this Agreement listed in Section
1.6.
"EFFECTIVE DATE" means July __, 1998.
"INCLUDING" means "including without limitation" and is not to be
construed to limit any general statement which it follows to the specific
or similar items or matters immediately following it.
"LICENSE AGREEMENT" means the license agreement between the parties of
even date herewith.
"SUPPORT AGREEMENT" means the maintenance and support agreement between
the parties of even date herewith.
"PERSON" means an individual, partnership, corporation (including
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity or a government or any agency, department
or instrumentality thereof or vice versa howsoever designated or
constituted.
"PROPOSAL" means a proposal for the provision of Services made by either
or both parties to a Customer.
"SCHEDULE(S)" means the attachments to this Agreement listed in Section
1.6.
"SERVICES" means the products (including the C1 Software) and services to
be provided through the cooperation of the parties as described herein.
"TERRITORY" means anywhere in the world.
"WORK PRODUCT" means all original literary, artistic, technical, or other
material made, prepared, developed or produced by either party in the
performance of its obligations pursuant to this Agreement including
documentation, reports, manuals, and flow charts, but excluding ideas,
concepts, know-how or techniques.
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1.2 HEADINGS. The division of this Agreement into Sections and the
insertion of recitals and headings are for convenience of reference only
and shall not affect the construction or interpretation hereof.
1.3 SINGULAR, PLURAL, GENDER. Wherever in this Agreement the context so
requires, the singular number shall include the plural number and vice
versa and any gender herein used shall be deemed to include the feminine,
masculine or neuter gender.
1.4 AGREEMENT. The terms "hereof", "hereto", "herein", "hereunder" and
similar expressions refer to this Agreement and not to any particular
Section or other portion hereof and include any agreement supplemental
hereto.
1.5 ENTIRE AGREEMENT. This Agreement, together with the License Agreement
and the Support Agreement both of even date herewith, completely and
exclusively state the agreement of the parties regarding the subject
matter hereof and thereof. In the event of any conflict between the
terms of this Agreement and the License Agreement or the Support
Agreement, the terms of such other agreement shall control with respect
to the subject matter of such agreement. This Agreement supersedes, and
its terms govern, all prior proposals, agreements or other communications
between the parties, oral or written, regarding the subject matter of
this Agreement. This Agreement shall not be modified except by a
subsequently dated written amendment signed on behalf of C1 and MCIS by
their duly authorized representatives, and any purchase order purporting
to supplement or modify the provisions hereof shall be void.
1.6 SCHEDULES. The following are the Schedules attached to and forming
part of this Agreement:
Schedule "A" - Co-Marketing Obligations
Schedule "B" - Non-Disclosure Agreement
Exhibit "1" - C1 Standard Cancellation Policy - Training
The terms and conditions of any Schedule or Exhibit are in addition to
the terms and conditions set forth in this Agreement, except where such
terms and conditions of any Schedule conflict or are inconsistent with
the terms and conditions of the main body of this Agreement, in which
case the terms and conditions of the main body of this Agreement shall
prevail in all respects, and those of the Schedules shall prevail over
those of the Exhibits.
1.7 SEVERABILITY. In the event that any provision of this Agreement shall be
unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not
render this Agreement unenforceable or invalid as a whole and, in such
event, any such provision shall be changed and interpreted so as to best
accomplish the objectives of such unenforceable or intended provision
within the limits of applicable law or applicable court decisions.
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1.8 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the United States of America and the State of New York as
such laws are applied to agreements entered into and to be performed
entirely within New York between New York residents. The parties agree
that the United Nations Convention on Contracts for the International
Sale of Goods is specifically excluded from application to this
Agreement.
1.9 DATE FOR ACTION. In the event that any date on which any action is
required to be taken hereunder by any of the parties is not a Business
Day, such action shall be required to be taken on the next succeeding day
which is a Business Day unless otherwise provided in this Agreement.
1.10 CURRENCY. All references to currency are deemed to mean United States
dollars unless expressed to be in some other currency.
2.0 TERM
2.1 This Agreement shall be deemed effective as of the Effective Date and
shall continue in full force and effect for an initial term of three (3)
years unless earlier terminated in accordance with the terms of this
Agreement. For those Customer Opportunities for which a Proposal has been
submitted to the Customer prior to the termination of this Agreement, the
terms of this Agreement will survive and apply to Proposals accepted by a
Customer or contracts entered into with such Customer for the provision
of Services within nine (9) months from the date of termination of this
Agreement unless the parties otherwise mutually agree to extend such
period.
3.0 RELATIONSHIP OF THE PARTIES
3.1 The parties hereby agree to collaborate in order to mutually identify and
develop, subject to the terms and conditions of this Agreement, suitable
Customer Opportunities. Customer Opportunities will be pursued pursuant
to the requirements set forth in Schedule "A" attached hereto and
incorporated herein by reference.
3.2 The parties hereto shall be deemed to be independent contractors, and the
employees of one shall not be deemed to be employees of the other.
Neither party shall act as the agent of the other, and neither party
shall have any authority to, or shall attempt to, bind or commit the
other party for any purposes. This Agreement is not intended by the
parties, and shall not be deemed, to constitute or create a joint
venture, joint enterprise, partnership, or formal business organization
of any kind whatsoever.
3.3 Subject to any limitations set forth in Schedule A, "Co-Marketing
Obligations", each party expressly understands and agrees that the other
party may sell its respective
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products and services in the ordinary course of its business to third
parties who may individually submit a proposal to a Customer.
3.4 Nothing in this Agreement shall be construed as providing for the sharing
of profits or losses arising out of the efforts of the parties, except as
expressly provided in Section 5.0.
3.5 Neither party shall make any warranties, express or implied, concerning
the performance of the Services of the other party, including without
limitation fitness for a particular purpose.
4.0 RESPONSIBILITIES OF THE PARTIES
4.1 In addition to the responsibilities set forth in this Agreement, the
parties agree to the additional responsibilities set out in the
Schedules.
4.2 MCIS and C1 shall each use commercially reasonable efforts to formulate
Proposals and do all things reasonably appropriate and necessary to
secure the award of a Contract in accordance with the responsibilities
outlined herein.
4.3 Each party will provide to the other for such party's use to assist, as
reasonably necessary, in preparing a Proposal or in responding to
subsequent inquiries from the Customer, the following:
(i) such business information as a Customer, acting in a commercially
reasonable manner, deems necessary for selecting C1 as a software
supplier or MCIS as a services provider provided that this
information must be requested in writing by the Customer, with a
copy to both parties, and subject to Customer's execution of a
non-disclosure agreement reasonably acceptable to the party
providing such information;
(ii) technical data and information related to the Proposal;
(iii) drafts of relevant portions of a Proposal, if applicable;
(iv) prototypes and working demonstrations of its products;
(v) reasonable cost and pricing data for its portion of the Proposal
as requested by Customer, if applicable; and
(vi) commercially reasonable access to key personnel.
4.4 The parties agree to use reasonably commercial efforts to work with each
other in all applicable areas, including but not limited to Proposal
preparation, demonstration, submission and presentations to Customer, if
applicable.
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4.5 The parties each will designate one or more individuals within their
organizations as their representative(s) responsible to direct
performance of the parties' obligations under this Agreement
(respectively, the "PROPOSAL CONTACTS"). The following Proposal Contacts,
who may be replaced or changed upon written notice to the other party
from time to time, are named for the purposes herein:
For MCIS: ________________
________________
MCI Systemhouse Corp.
________________
________________
_______________, California ______
Fax #: ______________
For C1: Melissa Lynch
Jeff Smith
Commerce One, Inc.
1600 Riviera Avenue
Walnut Creek, California 94596
Fax #: 510-941-6060
4.6 Each party will advise the other party in a timely manner of any changes
in a Customer Opportunity which may affect the other party's areas of
responsibility for Services. In the event of such changes, the parties
will enter into good faith negotiations to revise a Proposal to increase
or decrease the Services to be performed by each party hereunder and the
associated impacts on pricing; provided that in no event shall either
party have the right to modify the other party's obligations under a
Proposal without such party's prior written consent to such
modifications.
5.0 SALES COMMISSIONS
5.1 C1 shall pay MCIS [*] of each MCI-based ECN transaction fee paid by any
C1 Customer during the term of this Agreement where such Customer has not
engaged MCIS to provide systems integration services. C1 shall pay MCIS
[*] of each MCI-based ECN transaction fee paid by any C1 Customer during
the term of the Agreement where such Customer has engaged MCIS to provide
systems integration services and MCIS performs such integration services.
For purposes of this Section 5.1, "MCI-based ECN transaction fee" shall
mean fees, to the extent received in cash by C1, from Customers whose C1
proprietary electronic commerce networks ("ECN") are hosted by an MCIS
Affiliate with respect to transactions executed over such networks. It
is understood and agreed that "MCI-based ECN transaction fees" shall not
include license fees, maintenance and
____________________________
[*] =CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
[*] =CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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support fees, professional service or consulting fees or any other amount
not expressly included within the definition of "MCI-based ECN
transaction fees" above.
5.2 With respect to any C1 licenses entered into during the term of the
Agreement for which MCIS provides systems integration services (whether
such services are provided as a subcontractor to C1, directly to the
Customer by MCIS or by MCIS through a third party subcontractor) to the
Customer, C1 shall pay MCIS (i) [*] of all such license fees payable by
Customers or distributors to C1 for SAP-based accounts (i.e., accounts
where the Customer has implemented, contracted to implement, or has
otherwise identified that it intends to implement SAP America, Inc.'s
and/or its affiliate's proprietary enterprise resource planning software
solution), and (ii) [*] of all such license fees payable by Customers or
distributors to C1 for all accounts that are not SAP-based accounts as
defined above. For purposes of this Section 5.2, "license fees revenue"
shall mean license fees payable to C1 for C1 software. It is understood
and agreed that "license fees revenue" shall not include any amounts
received by C1 for transaction fees, maintenance and support fees,
professional service or consulting fees or any other amount not expressly
included within the definition of "license fees revenue" above.
5.3 With respect to any C1 licenses entered into during the term of the
Agreement which do not fall within the scope of Section 5.2 hereof, but
for which MCIS or it Affiliates provided real sales and marketing
support - such support including but not limited to participation in
Customer presentations, sales calls, direct Customer mailings, seminars,
trade shows or user group activities, - C1 shall pay MCIS (i) [*] of all
such license fees payable by Customers to C1 where C1 has a contractual
obligation to provide a sales agency fee or other comparable fee to
another Preferred Systems Integrator, or to Ernst & Young Technology,
Inc. or Cambridge Technology Partners, Inc. under either party's Sales
Agency Agreement in effect as of the Effective Date; and (ii) [*] of all
such license fees payable by Customers to C1 where C1 has no obligation
to provide a sales agency fee or other comparable fee to another
Preferred Systems Integrator or the entities identified under subsection
(i) above.
5.4 C1 shall provide quarterly reports of commissions due pursuant to
Sections 5.1, 5.2 and 5.3 hereof and shall pay MCIS any such commissions
within thirty (30) days of the close of a calendar quarter.
5.5 The rates set forth in Sections 5.1, 5.2 and 5.3 hereof are determined
based on C1's current business model for delivering its products and
services to the marketplace. In the event of any material change to the
C1 business model or pricing during the term of this Agreement, the
parties agree to equitably adjust such rates in such a manner as to yield
a comparable compensation to MCIS. Any such adjustment shall be
effective for all transactions impacted by such change in business model
or pricing.
5.6 In the event C1, pursuant to generally accepted accounting principles,
writes-off as a bad debt any license fees payable by a Customer for which
C1 paid a commission to MCIS pursuant to Section 5.2 or Section 5.3, then
MCIS shall refund to C1 within thirty (30)
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days of receipt of evidence of such bad debt write-off, a PRO RATA
portion of any commissions paid to MCIS pursuant to Section 5.2 or
Section 5.3, in either case, calculated based on the ratio of the
total license fees charged to the applicable Customer to the total
amount of license fees to be written-off.
6.0 DISPUTE RESOLUTION
6.1 The parties hereto agree to attempt to settle any dispute, controversy or
difference which may arise between or among them in connection with this
Agreement or any Schedule or Exhibit attached hereto (except as otherwise
expressly contemplated by this Agreement or any such Schedule or Exhibit)
by good faith discussions between or among representatives designated by
the parties to the dispute. During the course of the discussions between
or among such representatives, the parties will comply with all
reasonable requests for access to relevant information. The specific
format for such discussions will be left to the discretion of the
designated representatives but may include the preparation of agreed upon
statements of fact or written statements of position furnished to the
other party. If resolution cannot be achieved by such representatives
within five (5) Business Days of referral, the dispute will be referred
to the senior management of both parties. During the course of the
discussions between or among the senior management, the parties will
comply with all reasonable requests for access to relevant information.
The specific format for such discussions will be left to the discretion
of the senior management but may include the preparation of agreed upon
statements of fact or written statements of position furnished to the
other party.
6.2 If resolution cannot be achieved by senior management of both parties
within five (5) Business Days of referral, then arbitration may be
conducted upon written notice to the other party demanding arbitration in
accordance with Section 6.3 below.
6.3 Without prejudice to any party's right to seek equitable relief
(including, but not limited to, injunction) from a court of competent
jurisdiction, any dispute or disagreement arising between the parties in
connection with this Agreement, which is not settled to the mutual
satisfaction of the parties in accordance with the procedures identified
under Sections 6.1 and 6.2 hereof, shall be settled by arbitration, to be
conducted in San Francisco, California, in accordance with the
J.A.M.S./ENDISPUTE Arbitration Rules and Procedures, as amended by this
Agreement. The cost of the arbitration, including the fees and expenses
of the arbitrator(s), will be shared equally by the parties unless the
award otherwise provides. Each party shall bear the cost of preparing
and presenting its case. The parties agree that this provisions and the
arbitrator's authority to grant relief shall be subject to the United
States Arbitration Act, 9 U.S.C. 1-16 et seq. ("USAA"), the provisions of
this Agreement, and the ABA-AAA Code of Ethics for Arbitrators in
Commercial Disputes. The parties agree that the arbitrator(s)) shall
have no power or authority to make awards or issue orders of any kind
except as expressly permitted by this Agreement, and in no event shall
the arbitrator(s) have the authority to make any award that provides for
punitive or exemplary damages. The decision of the arbitrator(s) shall
follow the plain meaning of the relevant documents, and shall be final
and binding upon
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the parties. The award may be confirmed and enforced in any court of
competent jurisdiction. All post-award proceedings shall be governed
by the USAA. This Agreement and the rights and obligations of the
parties shall remain in full force and effect pending the award in any
arbitration proceeding hereunder. Except where clearly prevented by
the nature of the dispute, the parties shall continue performing their
respective duties, obligations and responsibilities under this
Agreement while the dispute is being resolved in accordance with this
Section, unless and until such obligations are lawfully terminated or
expire in accordance with the provisions hereof.
6.4 No action, claim or proceeding arising out of this Agreement, regardless
of the form thereof, may be brought by either party more than two (2)
years following the later of either the termination of this Agreement,
or the date upon which the cause of action became known to the party
initiating such action.
7.0 REPRESENTATIONS AND WARRANTIES
7.1 MCIS represents, warrants and covenants to C1 that:
(i) the entering into and performance of this Agreement is not
restricted or limited by, and will not result in a breach by MCIS
of, any other obligations, duties, agreement or covenant to any
Person;
(ii) MCIS has the authority, unencumbered right, and full corporate
power, to enter into and perform this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by
MCIS and constitutes a valid, binding and legally enforceable
agreement of MCIS; and
(iv) it shall discharge all of its obligations hereunder in a proper,
efficient and business-like manner using persons with skills and
experience appropriate to their function.
7.2 THE OBLIGATIONS OF MCIS EXPRESSLY STATED IN THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. WITHOUT
LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS EXCLUSION OF ALL
OTHER WARRANTIES AND CONDITIONS EXTENDS TO IMPLIED WARRANTIES OR
CONDITIONS OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABLE
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY
STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF
TRADE.
7.3 C1 represents, warrants and covenants to MCIS that:
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(i) the entering into and performance of this Agreement is not
restricted or limited by, and will not result in a breach by C1
of, any other obligations, duties, agreement or covenant to any
Person;
(ii) C1 has the authority, unencumbered right, and full corporate
power, to enter into and perform this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by
C1 and constitutes a valid, binding and legally enforceable
agreement of C1; and
(iv) it shall discharge all of its obligations hereunder in a proper,
efficient and business-like manner using persons with skills and
experience appropriate to their function.
7.4 THE OBLIGATIONS OF C1 EXPRESSLY STATED IN THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. WITHOUT
LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS EXCLUSION OF ALL
OTHER WARRANTIES AND CONDITIONS EXTENDS TO IMPLIED WARRANTIES OR
CONDITIONS OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABLE
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY
STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF
TRADE.
8.0 AUDITS AND REPORTS
8.1 Each party (for the purposes of this Section 8.0, the "auditing party")
shall have the right upon reasonable notice to audit the records of the
other party (for the purposes of this Section 8.0, the "audited party")
to ensure that the audited party is in compliance with this Agreement.
Any such audit shall be conducted during regular business hours at the
audited party's offices, in such a manner as not to interfere with the
audited party's normal business activities and only by a third party
independent auditor who is a nationally recognized certified public
accounting firm other than Pricewaterhouse Coopers LLP. Such independent
auditor shall hold all information obtained from the audited party in
confidence and shall report to the auditing party only on the compliance
of the audited party with the terms of the Agreement. In no event shall
audits be conducted more frequently than annually. If any such audit
reveals that any amount is owed to the auditing party, the audited party
shall promptly pay such amount together with any interest due. If the
amount is within ten percent (10%) of the amount previously reported by
the audited party, the auditing party shall pay for such audit and if the
number is greater than ten percent (10%), then the audited party shall
pay the reasonable costs of such audit.
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8.2 Each party shall maintain complete, true and accurate accounting and
business books and records regarding its activities under this Agreement
in accordance with U.S. generally accepted accounting principles and such
party's business practices. Each party shall retain such books and
records for not less than two (2) years following the date of final
payment hereunder.
9.0 INTELLECTUAL PROPERTY RIGHTS
9.1 BRANDING. MCIS agrees to display on a bundled C1
Software / MCIS Service offering, or in connection with its marketing,
promotion and sale of a bundled C1 Software / MCIS Service offering,
one or more brands or logos provided by C1 that indicate that such
offering contains technology and/or software provided by C1 (the
"C1 Logos"). The parties acknowledge and agree that, as between MCIS
and C1, C1 shall own all right, title and interest in and to the C1
Logos. The C1 Logos shall be used by MCIS in accordance with C1's
guidelines for use of the C1 Logos issued in writing from time to time.
C1 shall have the right to change the C1 Logos or the guidelines for use
of the C1 Logos upon reasonable notice to MCIS; however, MCIS shall be
entitled to phase out its previous use of the C1 Logos over a reasonable
period of time not to exceed six (6) months (or such earlier time as may
be requested by C1 at C1's expense). Upon C1's reasonable request,
samples of all materials that may be distributed by MCIS displaying the
C1 Logos shall be submitted to C1 to verify compliance with C1's
guidelines for use of the C1 Logos. Subject to the foregoing, MCIS
shall be permitted to brand a bundled C1 Software / MCIS Service offering
using its own trademarks, service marks, trade names, logos, trade dress
or other similar designations (collectively, the " MCIS Marks"). As
between MCIS and C1, MCIS shall own and retain any and all rights in
the MCIS Marks. C1 shall not have the right to use any MCIS Marks or
other intellectual property without MCIS' express prior written consent.
Except as expressly provided above with respect to the C1 Logos, MCIS
shall not have the right under this Agreement to use any other C1 owned
or controlled trademarks, service marks, trade names, logos, trade dress
or other similar designations without C1's prior written consent.
9.2 OWNERSHIP. Except as expressly provided herein (including in Schedule A
attached hereto), ownership of any Work Product or other intellectual
property developed or otherwise arising pursuant to this Agreement shall
be treated as prescribed by the License Agreement.
9.3 COMPETING PRODUCTS AND SERVICES. Subject to Schedule A "Co-Marketing
Obligations", this Agreement shall not preclude the parties from
developing materials or providing services which are competitive to the
Work Product irrespective of their similarity to computer programming
code, documentation or other materials or services which might be
delivered pursuant to this Agreement, except to the extent any of same
may infringe or misappropriate any of the other party's or its
subcontractor's or supplier's patent, copyright or other proprietary
rights or Confidential Information.
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10.0 PUBLICITY
10.1 Except as may be required by law or by the rules, regulations or by-laws
of any stock exchange or securities regulator, neither party will make
any news release, public announcement, advertisement, or publicity
concerning the existence or contents of this Agreement, a Proposal, any
resulting Contract, or any subcontract, without the prior written
approval of the other party and Customer as may be required. Any such
publicity shall give due credit to the contributions of each party.
10.2 Each party will:
(i) conduct business in a manner that reflects favorably at all times
on the good name, goodwill and reputation of the other party;
(ii) not engage or cooperate in deceptive, misleading or unethical
practices or representations that are or might be detrimental to
the other party or reflect adversely on the other party's products
or services;
(iii) not make any representations to anyone with respect to the
specifications, features or capabilities of the other party's
products or services that are inconsistent with the literature
distributed by the other party, including all disclaimers
contained in such literature, this Agreement or any Schedule or
Exhibit hereunder;
(iv) not make any warranty or representation in respect of the subject
matter of this Agreement to anyone that would give the recipient
any claim or right of action against the other party;
(v) not infringe any patent, copyright, trade secret, trade mark or
other proprietary right in connection with any published
advertising or promotional materials produced by such party and
provided to the other party pursuant to this Agreement; and
(vi) indemnify and hold the other party harmless from any cost,
liability and expense, including legal fees, arising out of any
breach by such party of the terms of this Section 10.0.
11.0 NON-SOLICITATION
11.1 During the term of this Agreement, and for a period of one year after the
termination hereof, each party agrees not to directly solicit any
employee of the other who has participated in the performance of this
Agreement without the prior written consent of such other party.
However, if an employee of either party in an unsolicited manner
approaches the other for potential employment, and such person was
subsequently hired by the other party, such actions shall not constitute
a breach.
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12.0 TERMINATION
12.1 This Agreement shall automatically expire and be deemed terminated
effective upon the date of the occurrence of any one of the following
events, whichever shall first occur:
(i) mutual agreement of the parties to terminate the Agreement;
(ii) any Act of Insolvency by or in respect of any party;
(iii) material breach of this Agreement by any party with such breach
remaining unremedied within thirty (30) days after written notice
to the breaching party specifying the nature of the breach; or
(iv) termination of the License Agreement pursuant to Section 4(c)
thereof.
12.2 In the event [*] enters into a license agreement for the license of the
C1 Software and establishes a project plan (including a target "go live"
date) for the implementation of such C1 Software as such business unit's
electronic procurement solution during the term of the Agreement, then C1
shall have the option by giving [*] prior written notice, to terminate
the Agreement at the end of the first contract year. Upon election of
this option, all joint marketing funds for the applicable year (as
provided in Schedule A) which are paid and which are not expended, shall
be returned to the parties. In the event C1 does not elect such
termination on or before the thirtieth day prior to the close of the
first contract year, then C1 shall be deemed to have waived its
termination option and the contract shall remain in effect for the
remainder of the term. In the event of early termination under this
Section 12.2, C1 shall pay any commissions payable pursuant to Section
5.0 hereof for any license of the C1 Software or ECN transaction fees
falling within the scope Section 5.0; provided such license is entered
into or such ECN transaction fee is incurred within one (1) year of the
effective date of such early termination.
12.3 In the event of MCIS' divestiture from the MCI family of companies,
(including, upon successful completion of the pending merger, WorldCom),
and the failure or inability of the successor to perform the services
which are contemplated as part of this Agreement (whether directly or
through an alliance or subcontractor) at least in substantially the same
manner and with the same degree of competency as MCIS and its Affiliates
prior to such divestiture during the first six (6) months after such
divestiture, C1 shall have the option to terminate this Agreement;
provided C1 refund any and all marketing dollars paid by MCIS or its
successor for the year during which such termination takes place.
_______________________________
[*] =CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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12.4 The parties' rights and obligations under Section 1.0 "Interpretation",
Section 2.0 "Term", Section 3.0 "Relationship of the Parties", Section
6.0 "Dispute Resolution", Section 7.2, Section 7.4, Section 8.0 "Audits
and Reports", Section 9.0 "Intellectual Property Rights", Section 10.1,
Section 11.0 "Non-Solicitation", Section 12.0 "Termination", Section 13.0
"Liability", Section 14.0 "Indemnity" and Section 15.0 "General" and
those provisions of the Non-Disclosure Agreement, Schedule B, that
survive in accordance with the terms thereof, shall survive termination
or expiration of this Agreement for any reason.
13.0 LIABILITY
13.1 NEITHER PARTY NOR ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR ANY LOSS
OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT
LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN THIS SECTION
13.0 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS
AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14.0 INDEMNITY
14.1 C1 Indemnity.
14.1.1 GENERAL INDEMNITY. C1 at C1's own expense, shall defend, hold
harmless and indemnify MCIS, its Affiliates, and its and their
respective directors, officers, employees and agents, from and
against any and all claims, costs, liabilities, damages, losses or
expenses (including without limitation reasonable attorneys' fees)
arising from: (a) third party claims that the C1 Software or any
other Services performed or delivered by C1 to MCIS, its
Affiliates, or its Customers (i) infringes a copyright or other
intellectual property right or misappropriates a third party's
trade secret under the law of any country that is a member of the
Berne Convention or (ii) infringes any valid patent issued in any
country that is a party to the Paris Convention; (b) third party
claims of injury to or death of any person or loss of or damage to
any tangible property to the extent caused by the intentional or
negligent acts or omissions of C1, its Affiliates or their
respective personnel in the performance or delivery of any
Services hereunder; or (c) any C1 personnel being declared to have
"employee" status with respect to MCIS. MCIS
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or the applicable MCIS Affiliate shall: (x) promptly notify C1
in writing of the claim; (y) grant C1 sole control of the
defense and all related settlement negotiations; and (z)
provide C1 with the assistance, information and authority
necessary to perform C1's obligations under this Section 14.1.
C1 will reimburse MCIS' and its Affiliates' reasonable
out-of-pocket expenses incurred in providing such assistance.
To the extent any failure by MCIS or its Affiliate to perform
any of the foregoing directly has an adverse impact on C1's
liability to the applicable third party, C1 shall be entitled
to reduce the amount of its indemnification exposure hereunder
by the amount of such adverse impact. MCIS or its Affiliate
may, at its own expense, be represented in such defense.
14.1.2 EXCLUSIONS. C1 shall have no liability for any claim of
infringement or misappropriation to the extent based on (i) use of
other than the latest release of the C1 Software during the period
of time when the infringement would have been avoided by use of
the latest release; (ii) modification of the C1 Software by MCIS
if the infringement would have been avoided without such
modification; or (iii) the combination or use of the C1 Software
furnished hereunder with materials not furnished or specified by
C1 if such infringement would have been avoided by use of the C1
furnished or specified materials alone.
14.1.3 ALTERNATIVES. In the event the C1 Software is held to, or C1
believes is likely to be held to, infringe any intellectual
property right, C1 shall have the right at its sole option and
expense to (i) substitute or modify the C1 Software in a manner
that is functionally and operationally equivalent and
noninfringing; or (ii) obtain for MCIS a license to continue using
the C1 Software as provided in this Agreement; or (iii) if (i) and
(ii) are not reasonably practicable, terminate this Agreement.
14.1.4 EXCLUSIVE REMEDY. THE FOREGOING STATES THE SOLE AND EXCLUSIVE
REMEDY OF MCIS AND THE ENTIRE LIABILITY AND OBLIGATION OF C1 WITH
RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY ARISING HEREUNDER.
14.2 MCIS Indemnity.
14.2.1 MCIS at MCIS' own expense, shall defend, hold harmless and
indemnify C1, its Affiliates, and its and their respective
directors, officers, employees and agents, from and against any
and all claims, costs, liabilities, damages, losses or expenses
(including without limitation reasonable attorneys' fees) arising
from (a) third party claims that the Services performed or
delivered by MCIS to C1, its Affiliates, or its Customers (i)
infringes a copyright or other intellectual property right or
misappropriates a third party's trade secret under the law of any
country that is a member of the Berne Convention or (ii) infringes
any valid patent issued in any country that is a party to the
Paris Convention; or (b) third party claims of injury to or death
of any person or loss of or damage to any tangible property to
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the extent caused by the intentional or negligent acts or
omissions of MCIS, its Affiliates or their respective personnel
in the performance of any Services hereunder. C1 or the applicable
C1 Affiliate shall: (x) promptly notify MCIS in writing of the
claim; (y) grant MCIS sole control of the defense and all related
settlement negotiations; and (z) provide MCIS with the
assistance, information and authority necessary to perform MCIS'
obligations under this sub-Section 14.2. MCIS will reimburse C1's
and its Affiliates' reasonable out-of-pocket expenses incurred in
providing such assistance. To the extent any failure by C1 or its
Affiliate to perform any of the foregoing directly has an adverse
impact on MCIS' liability to the applicable third party, MCIS
shall be entitled to reduce the amount of its indemnification
exposure hereunder by the amount of such adverse impact. C1 or
its Affiliate may, at its own expense, be represented in such
defense.
14.2.2 EXCLUSIVE REMEDY. THE FOREGOING STATES THE SOLE AND EXCLUSIVE
REMEDY OF C1 AND THE ENTIRE LIABILITY AND OBLIGATION OF MCIS WITH
RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT ARISING HEREUNDER
15.0 GENERAL
15.1 NOTICES. All notices or reports permitted or required under this
Agreement shall be in writing and shall be by personal delivery,
telegram, telex, telecopier, facsimile transmission, or by certified or
registered mail, return receipt requested, and shall be deemed given upon
personal delivery, five (5) days after deposit in the mail, or upon
acknowledgment of receipt of electronic transmission. Notices shall be
sent to the addresses set forth below, or such other address as either
party may specify in writing.
For MCIS: Colin Dalzell
MCI Systemhouse Corp.
777 108th Ave., NE, Suite 550
Bellevue, Washington 98004
Fax #: ______________
For C1: Jeff Smith
Commerce One, Inc.
1600 Riviera Avenue
Walnut Creek, California 94596
Fax #: 510-941-6060
15.2 FORCE MAJEURE. Neither party shall be liable hereunder by reason of any
failure or delay in the performance of its obligations hereunder on
account of strikes, riots, insurrection, fires, flood, storm, explosions,
acts of God, war, governmental action, labor conditions,
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earthquakes, material shortages or any other cause which is beyond the
reasonable control of such party.
15.3 ASSIGNMENT. This Agreement shall not be assigned by C1 or MCIS in whole
or in part without the prior written approval of the other party,
provided either party shall have the right to assign this Agreement in
connection with the merger or acquisition of such party or the sale of
all or substantially all of its assets related to this Agreement without
such consent. Any assignment in violation of this sub-Section shall be
void and of no effect. Nothing in this Section 15.3 is intended to
prevent either party from subcontracting certain obligations under this
Agreement to third parties for purposes of delivering Services.
15.4 WAIVER. The failure of either party to require performance by the other
party of any provision hereof shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by either
party of a breach of any provision hereof be taken or held to be a waiver
of the provision itself. No failure on the part of any party hereto to
exercise and no delay in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or remedy by any party preclude any other or
further exercise thereof or the exercise of any other right, power or
remedy. No express waiver or consent by any party hereto to any breach
of or default in any term or condition of this Agreement shall constitute
a waiver or an assent to any succeeding breach of or default in the same
or any other term or condition hereof.
15.5 WARRANTY. Each party acknowledges that it has read this Agreement,
understands it and agrees to be bound by it.
15.6 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which will be considered an original, but all
of which together will constitute one and the same instrument.
15.7 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties and their respective successors and
permitted assigns.
15.8 FURTHER ASSURANCES. Each party agrees that upon the written
request of the other party, it shall do all such acts and execute all
such further documents, conveyances, deeds, assignments, transfers and
the like, and shall cause the doing of all such acts and shall cause the
execution of such further documents as are within its powers to cause the
doing and execution of, as the other Party hereto may from time to time
reasonably request be done and/or executed as may be reasonably necessary
to give effect to this Agreement.
15.9 COMPLIANCE WITH LAWS. Each party shall strictly comply with, and
abide by, all consents, licenses, and permits that may exist concerning
its activities and/or performance obligations under this Agreement, and
each party shall perform its obligations under this
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Agreement and otherwise conduct its affairs and business in any
connection with this Agreement in strict compliance with all laws,
by-laws, regulations, orders, judgments and governmental rulings and
decrees. Without limiting the foregoing, neither party shall attempt,
or otherwise undertake, to influence the award of a Contract through
any unethical, illegal, fraudulent, deceptive or misrepresentative
means whatsoever.
15.10 DUE DILIGENCE. Each party hereto acknowledges (i) the risks of its
undertakings hereunder; (ii) the uncertainty of the benefits and
obligations hereunder; and (iii) its assumption of such risks and
uncertainty. Each party has conducted its own due diligence and
requested and reviewed any contracts, business plans, financial
documents, and other written material as in such party's opinion shall be
the basis of the party's decision to enter into this Agreement.
15.11 NON-COMPETITION. The Parties agree and confirm that the restrictions
set out in this Agreement, including the [*] conferred herein: (i) are
fair and reasonable in the commercial circumstances of this Agreement;
(ii) reasonably protect the legitimate business interests of the parties
and do not constitute any undue restraint of trade; (iii) are fair and
reasonably in the interests of the parties because (a) the consideration
provided to each party under this Agreement adequately and fairly
compensates such party in connection with such restrictions, and (b)
neither party would have entered into this Agreement but for the other
party's agreement with such restrictions and that such restrictions have
been an inducement to enter into this Agreement.
15.12 NO MERGER. The parties agree and acknowledge that none of the
warranties, representations and covenants contained in this Agreement
shall merge upon either the execution and delivery of this Agreement by
both parties, or upon the full payment (or any partial payments) of any
monies that are due and payable hereunder and that all such warranties,
representations, and covenants shall continue in full force and effect
throughout the term.
_______________________________
[*] =CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the
Effective Date.
MCI SYSTEMHOUSE CORP. COMMERCE ONE, INC.
By: ______________________________ By: ______________________________
Name: _________________________ Name: _________________________
Title: _________________________ Title: _________________________
Date: _________________________ Date: _________________________
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Exhibit 10.13
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
AGREEMENT
This Agreement (the "Agreement") is entered as of the _____ day of
September, 1998, by and between Commerce One, Inc. ("C1"), a California
corporation with a principal place of business at 1600 Riviera Avenue, Walnut
Creek, California 94596 and PricewaterhouseCoopers LLP ("PwC"), a registered
Delaware limited liability partnership with offices located at 1177 Avenue of
the Americas, New York, NY 10036 (each, a "Party" and together the "Parties").
C1, among other things, develops, markets, sells and supports
enterprise-level software applications and services that enable businesses and
their suppliers to engage in electronic procurement and supplier management over
the Internet and other communications media (the "C1 Software").
PwC, among other things, assists companies like C1 in the development,
marketing, and sale of such software systems and services and implements and
supports these systems for customers who have purchased them.
Because of the complementary knowledge and expertise of the Parties,
the Parties desire to enter into an alliance under which they will work together
to develop, market, sell, implement and support the C1 Software.
Now, therefore, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the Parties agree as
follows:
1. DEFINITIONS
As used herein, the following terms shall have the following meanings:
(a) "Agreement" shall mean this Agreement by and among
the Parties.
(b) "C1 Software" shall mean all software products of C1,
including without limitation, those relating to electronic procurement and
supplier management, (including their constituent elements and code in whatever
form, whether proprietary to C1 or others) as they now exist or as they are
further developed and shall include all software, related databases, design
elements, custom applications, preexisting code or applications, code
frameworks, methods and standards, including without limitation, all
documentation (in whatever form or medium), end user manuals, user's guides and
technical manuals proprietary to C1.
(c) "Confidential Information" means any information in
whatever form, and however delivered or communicated, including, without
limitation, all code, documentation,
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
CONFIDENTIAL
product plans, Trade Secrets, business plans, customer lists, know-how, and all
other information of whatever nature related to or incorporated into C1 Software
or the business of C1 or PwC or any subsidiary or other business entity which is
an affiliate of C1 or PwC (such subsidiary or business entity referred to
collectively as "C1" or "PwC", as the case may be) and which is reasonably
understood to be of a confidential nature. Confidential Information includes
information of others that C1 or PwC has agreed to keep confidential.
Confidential Information of PwC specifically includes information relating to
any bids or proposals made by PwC in relation to the implementation of or the
provision of consulting services relating to the C1 Software. Confidential
Information of a Party shall not include information or materials that is
disclosed to the other party (the "Receiving Party") that is:
(i) otherwise rightfully known to the Receiving
Party;
(ii) in the public domain through no fault of the
Receiving Party;
(iii) lawfully obtained by the Receiving Party from a
third party without breach of such third party's obligations of confidentiality;
or
(iv) that a Receiving Party is required to disclose
by legal process; provided, however, that voluntary disclosure beyond that which
is required by law shall constitute a violation of this Agreement.
(e) "Trade Secrets" shall mean technical or other
information, designs, processes, procedures, algorithms, formulas, improvements,
or modifications disclosed to PwC by C1 or to C1 by PwC, that are commercially
valuable and secret. Trade Secrets are unique assets of C1 or PwC that give C1
or PwC a competitive advantage over competitors that do not possess such
information. Trade Secrets include, but are not limited to, system designs and
specifications, programming sequences, algorithms, flow charts, and formulas,
developed in whole or in part by C1 or PwC.
(f) "Upgrades" shall mean a new version of a proprietary
product to which additional or incremental functionality has been added.
2. COOPERATION IN C1 SOFTWARE DEVELOPMENT AND IMPLEMENTATION
2.1 ESTABLISHMENT OF THE TRC. To enhance the performance, development
and implementation of C1 Software, the Parties will establish a Technical Review
Committee ("TRC"). The intended objective of the TRC is to provide advice to C1
regarding functionality, priorities, release schedules, and use of development
resources.
-2- [*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
CONFIDENTIAL
2.2 SCOPE OF THE TRC'S REVIEW. The TRC shall be charged with reviewing
the performance of the C1 Software, all developments or potential developments
to the C1 Software and the implementation of the C1 Software.
2.3 MEMBERSHIP OF THE TRC. The TRC shall be composed of three C1
employees selected by C1 who are involved in and knowledgeable about the
performance and development of C1 Software and three PwC employees selected by
PwC who are involved in and knowledgeable about the implementation of C1
Software. C1 and PwC may at any time with notice to the other Party change their
employees designated to serve as members of the TRC. Each Party represents that
its designated members of the TRC are authorized to act on that Party's behalf
on all matters that come before the TRC.
2.4 MEETINGS AND REPORTS. The TRC shall meet at least quarterly to
review and assess the performance of the C1 Software, all developments or
potential developments to that software and the implementation of that software.
At least once every six months, the TRC shall issue a report to C1 and PwC
reviewing and assessing in detail the above. In the event that the members of
the TRC do not concur in their review and assessment, the report shall so state
and shall set forth separately the review and assessment of all members.
2.5 OBLIGATION TO PROVIDE INFORMATION TO THE TRC. C1 and PwC shall each
promptly provide to the TRC all material information known or available to each
of them relating to the performance of the C1 Software, all material
developments or potential developments to the C1 Software, and the
implementation of the C1 Software. This obligation includes but is not limited
to providing the TRC with all Beta releases, with all information relating to C1
Software Upgrades, and with all information relating to problems with C1
Software performance or implementation.
3. OPERATION IN C1 SOFTWARE MARKETING
3.1 ESTABLISHMENT OF MDC. To enhance the marketing of C1 Software, the
Parties will establish a Marketing Development Committee ("MDC").
3.2 SCOPE OF THE MDC'S REVIEW. The MDC shall be charged with developing
and overseeing the joint marketing of C1 Software based upon the initial
marketing plan and budget to be agreed upon and entered into by the Parties
within 30 days of the date hereof (the "Marketing Plan"). The MDC shall agree
upon not less than five customers to serve as beta integration sites with
respect to the C1 Software. The MDC shall also identify each party's commitments
and obligations, including joint activities. The MDC shall consider using
marketing tools such as, among other things, magazine inserts in publications
such as Forbes, methodology books (for pre-sale), PwC sponsored conferences, and
training forums.
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3.3 COMMITMENT OF THE PARTIES. The specific monetary and in-kind
commitments of the Parties shall be determined by the MDC in accordance with the
Marketing Plan; provided, however, PwC agrees that it shall spend a minimum of
$250,000 the first year this Agreement is in effect pursuant to jointly approved
plans for the marketing of the C1 Software. Thereafter, the Parties shall
determine in good faith the amount per year that each Party shall commit to the
marketing of the C1 Software; provided that in the event that the parties are
unable to agree upon the minimum amount to be spent by PwC for marketing in any
subsequent year, the minimum amount shall be $250,000.
3.4 MEMBERSHIP OF THE MDC. The MDC shall be composed of two C1
employees selected by C1 and two PwC employees selected by PwC, all of whom are
involved in the marketing of C1 Software. C1 and PwC may at any time with notice
to the other Party change their employees designated to serve as members of the
MDC. Each Party represents that its designated members of the MDC are authorized
to act on that Party's behalf on all matters that come before the MDC; provided
that in no event shall the MDC have the authority to modify the terms of this
Agreement
3.5 MEETINGS. The MDC shall meet at least quarterly to develop and
oversee C1 Software marketing.
3.6 PUBLICITY. The MDC shall establish guidelines governing all news
releases, public announcements, or any other mass publicity, including without
limitation, mass-produced marketing materials, which makes reference to PwC or
includes a Mark (as defined below) of PwC or New Mark (as defined below)
(collectively, "Publicity") to be released by either Party relating to C1
Software. Notwithstanding the foregoing, C1 shall not release any Publicity
relating to PwC unless such Publicity is approved by PwC. The MDC shall
establish guidelines governing all news releases, public announcements, or any
other publicity which makes reference to C1 or includes a Mark (as defined
below) of C1 (collectively, "C1 Publicity") to be released by either Party
relating to C1 Software. Notwithstanding the foregoing, PwC shall not release
any C1 Publicity relating to C1 unless such C1 Publicity is approved by C1.
3.7 TRADEMARKS, LOGOS, TRADE NAMES AND SERVICE MARKS. The MDC shall
establish written guidelines governing the use by a Party of trademarks, logos,
trade names and service marks (together "Marks") of the other Party or any
successor entity to either of the Parties; provided, however, C1 shall not use
PwC's Marks unless the use is approved by PwC and PwC shall not use C1's Marks
unless the use is approved by C1. Notwithstanding any other provision contained
herein or in any guidelines established by MDC, in the event that PwC gives C1
notice that it is terminating this Agreement pursuant to Section 11.3.2, C1
shall immediately cease, and in the event the Agreement is terminated for any
other reason, upon termination C1 shall cease, the use of the names "Price
Waterhouse," "PricewaterhouseCoopers", the mark "PW," "PwC," any derivations
thereof or any other mark proprietary to PwC, including without limitation any
other new or successor trade
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name, logo, trademark or service mark which evolves as a result of the recent
merger between Price Waterhouse LLP and Coopers & Lybrand LLP (together, the
"New Marks"), in connection with the marketing, promotion, Publicity and sale of
the C1 Software. Notwithstanding any other provision contained herein or in any
guidelines established by MDC, in the event that C1 gives PwC notice that it is
terminating this Agreement pursuant to Section 11.3.2, PwC shall immediately
cease, and in the event the Agreement is terminated for any other reason, upon
termination PwC shall cease, the use of the name "Commerce One," the mark "C1",
any derivations thereof or any other mark proprietary to C1.
3.8 MARKETING MATERIALS. In addition to any other guidelines set forth
by the MDC, (i) all C1 created brochures and marketing materials relating to the
C1 Software shall contain a statement that C1 and PwC are strategically aligned
and that PwC is a preferred systems integration and consulting partner, and (ii)
all references to third party integration and consulting partners shall be made
in such a manner as to preserve the preferred implementor status of PwC. MCI
Systemshouse shall be the only other entity designated or allowed to hold itself
out as a preferred systems integrator and consulting partner of C1.
4. BETA PRODUCTS; BETA INTEGRATION SITES
4.1 BETA PRODUCTS. C1 shall provide to PwC advance copies and beta
releases of all C1 Software as soon as reasonably possible.
4.2 BETA INTEGRATION SITES. The MDC will agree upon not less than five
customers to serve as beta integration sites with respect to the C1 Software.
PwC shall perform the implementation functions relative to such C1 Software at
such beta integration sites. [*]. C1 will use reasonable commercial efforts to
license the C1 Software at a price necessary to attract the agreed upon
customers to participate in such integration and will supply necessary technical
expertise and support with respect to the beta integration site implementations
under a mutually agreed upon timetable.
5. C1 SOFTWARE SALES
5.1 C1 SOFTWARE SALES. C1 may, at its option, sell C1 Software either
directly to clients or sell it to PwC who will resell it to clients; provided
that, direct sales to clients will comply with the provisions set forth in
Section 5.1.1 below and sales to PwC for resale will comply with the
provisions set forth in Section 5.1.2 below.
5.1.1 DIRECT SALES TO CLIENTS. When C1 sells C1 Software directly
to a client and PwC is to be the implementor of the C1 Software, the client, C1
and PwC will enter into a client contract. The client contract will provide
that:
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(a) C1 will provide to the client the C1 Software and
related license.
(b) PwC will provide to the client:
(i) assistance and/or management in the installation,
implementation and operation of C1 Software, including without limitation,
requirements definition, change integration, process analysis and design;
(ii) assistance in integrating C1 Software into the
client's existing systems; and
(iii) training for client personnel in the use or
maintenance of C1 Software ((i), (ii) and (iii) together are "C1 Installation
and Related Services").
(c) In exchange for the consideration set forth in
sections (a) and (b) above, the client will pay C1 and PwC such fees as may be
agreed upon from time to time.
(d) C1 will supply to the client any Upgrades to C1
Software under C1's standard maintenance and support terms.
5.1.2 SALES TO PwC FOR RESALE TO CLIENT. The sale of C1
Software to PwC and PwC's resale of C1 Software shall occur as follows:
(a) C1 will provide to PwC the C1 Software and related
license. PwC will provide said software and related license to the client.
(b) PwC will provide to the client C1 Software
Installation and Related Services.
(c) In exchange for the C1 Software and related license,
PwC will pay to C1 an amount equal to C1's standard list price for such C1
Software, less an agreed upon discount which shall not be less than any other
reseller's discount, [*]. PwC may charge the client such amounts as PwC may
determine in its sole discretion in exchange for the C1 Software and related
license and the C1 Software Installation and Related Services.
(d) C1 will supply to PwC any Upgrades to C1 Software
under the terms and conditions for its so doing set forth in the definitive
reseller agreement described in section (e) below. PwC will supply these
Upgrades to the client under the terms and conditions for its so doing set forth
in the PwC's agreement with its customer.
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(e) Within a reasonable time following the conclusion of
the beta integration projects, PwC and C1 shall enter into a more detailed Value
Added Reseller Agreement consistent with the terms hereof and containing other
mutually acceptable terms customary for the software industry. Such agreement
shall not diminish C1's ability to communicate with and survey the licensees of
the C1 Software. Such agreement will also provide that C1 will always execute a
license agreement with the end-user for C1 Software.
6. PREFERRED IMPLEMENTOR STATUS
6.1 PwC AND MCI SYSTEMSHOUSE. PwC shall be designated as a preferred
implementor or preferred systems integration and consulting affiliate with
respect to the C1 Software. C1 shall neither name nor allow any other entity to
promote itself as a preferred implementor or preferred systems integration and
consulting partner of C1, except for MCI Systemshouse; provided, however, in the
event that MCI Systemshouse terminates its status as a preferred implementor or
preferred systems integration and consulting partner of C1, C1 shall have the
right to designate another entity to replace MCI Systemshouse as a preferred
implementor or preferred systems integration and consulting partner provided,
further, however, the Parties agree that any such replacement entity shall not
be [*] and any such replacement entity shall be required to make an investment
in C1 equal to or greater than the cumulative total investment in C1 made by PwC
up to such time pursuant to this Agreement. In the event C1 designates such a
replacement entity as provided in this Section 6.1 any provisions herein which
specifically reference MCI Systemshouse shall apply to such replacement entity.
6.2 PROMOTION OF PARTIES. In furtherance of the Parties' joint efforts
with respect to the C1 Software:
(a) C1 shall publicly designate PwC as a C1 preferred
systems integration and consulting affiliate;
(b) C1 shall notify PwC of all potential implementation
opportunities with respect to the C1 Software of which C1 becomes aware, except
for those opportunities which are brought to the attention of C1 by another
systems implementor;
(c) C1 shall provide to PwC, on a timely, periodic and
confidential basis, advance information collected by C1 regarding potential
customer prospects with respect to the C1 Software;
(d) C1 shall not engage in any active pattern of
promotion with respect to any third party, other than MCI Systemshouse, as an
implementor of the C1 Software;
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(e) For one year following the execution of this
Agreement, C1 shall not enter into any joint development agreement or any
similar business arrangement related to the development of the C1 Software with
any other systems implementor other than MCI Systemshouse with respect to
MarketSite, Electronic Commerce Network, the Commerce One extranet application
that provides the interoperability, functionality and transactive content that
enables an on-line trading community;
(f) [*];
(g) [*];
(h) PwC shall notify C1 of all MRO (indirect) electronic
procurement solution opportunities of which PwC's EPS Practice becomes aware,
except for those opportunities which are brought to the attention of PwC by
another MRO (indirect) electronic procurement solutions provider;
(i) PwC shall provide to C1, on a timely, periodic and
confidential basis, advance information collected by PwC's EPS Practice
regarding potential customer prospects with respect to an MRO (indirect)
electronic procurement solution;
(j) PwC's EPS Practice shall not engage in any active
pattern of promotion with respect to any third party as an MRO (indirect)
electronic procurement solution provider; and
(k) Within 120 days following the execution of this
Agreement, C1 shall be included in PwC's solution center network.
6.3 RIGHT OF FIRST REFUSAL. PwC shall have a right of first refusal
with respect to other consulting and systems implementation firms with respect
to any consulting project of total value greater than $500,000 (i.e. the total
billable work for such project exceeds $500,000) performed for C1 in relation to
the C1 Software; provided that this section 6.3 shall not apply to any joint
development agreement entered into by C1 that otherwise complies with the terms
of this Agreement. This right of first refusal is not intended to apply to
consulting work to be performed for clients of C1. Within 20 days following a
determination by C1 that C1 requires consulting services, C1 shall notify PwC of
such determination and C1 and PwC shall negotiate in good faith regarding the
terms of PwC's involvement in the consulting project (the "Project"). If C1 and
PwC cannot agree upon the terms of PwC's involvement within 30 days of PwC's
receipt of such notice, C1 shall be entitled to enter into an agreement with a
third party to perform the Project on terms and conditions not less favorable to
C1 than those last offered by PwC with respect thereto.
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6.4 ATTENDANCE AT BOARD MEETINGS. Throughout the term of this
Agreement, PwC shall be entitled to observe meetings called or held by the Board
of Directors of C1 and to receive materials provided or distributed to the Board
of Directors of C1 as provided in the Observers Rights Agreement attached hereto
as Exhibit B.
6.5 Requirements FOR OTHER SYSTEMS IMPLEMENTORS. C1 shall require each
third party systems implementor, other than MCI Systemshouse, to pass a
certification qualification test within six (6) months of beginning
implementation of C1 Software products. The requirements of such certification
tests shall be jointly agreed upon by C1 and PwC and shall be administered by
C1; provided that in the event the Parties are unable to agree on such
requirements after a period of twenty (20) days, C1 shall develop commercially
reasonable requirements.
6.6 MOST FAVORED IMPLEMENTOR STATUS. Except for SAP but subject to
Section 5.1.2(c), the price of the C1 Software sold by C1 to PwC for resale or
for use by PwC shall be equal to or lower than the lowest price charged by C1 to
any other systems implementor reseller, including MCI Systemshouse with regard
to the prices and other material terms and conditions provided to such other
implementor, when considered collectively.
6.7 OPTIONAL EQUITY INVESTMENT. For 120 days following the execution of
this Agreement, PwC shall have the option, but not the obligation, to purchase
shares of Series D Preferred Stock at a price equal to 125% of the lowest price
paid by the Series D Preferred Stock investors in the Series D Preferred Stock
financing. Such purchase shall be on the terms and conditions as set forth in
the Series D Preferred Stock financing agreements. Notwithstanding the
foregoing, in no event shall PwC's investment be less than $2,500,000 or more
than $5,000,000 upon exercise of the rights granted in this Section.
7. PERSONNEL AND TRAINING
7.1 PwC PERSONNEL. For the first year after the Effective Date of this
Agreement and pursuant to and subject to the terms and conditions set forth in
the Human Resources Agreement to be agreed upon and entered into by the Parties
within 30 days of the date hereof (the "Human Resources Agreement"), PwC shall
provide C1 with a total of [*] man-hours to be performed by various PwC
personnel and/or consultants of PwC (the "PwC Staff") and one partially
dedicated PwC partner (the "PwC Partner") plus certain ancillary support
associated with the employment of these people, including, without limitation,
items such as payment of salaries (including without limitation, employee
benefits and applicable withholding taxes, such as FICA, worker's compensation,
unemployment and other like items) and provision of laptop computers and
computer software (the "Support"). In the event that C1 does not utilize all [*]
hours during such year and this Agreement is still in effect, C1 shall be
entitled to carry over up to [*] unused hours to the next year
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for no additional cost. PwC and C1 shall determine in good faith the amount of
resources required from time to time based upon the needs of C1 and the
availability of the PwC Staff; provided, however, no PwC Human Resources (as
defined below) shall be provided to C1 until such time as the Human Resources
Agreement has been executed by the Parties. The PwC Partner shall devote a
sufficient amount of his/her professional time in order for him/her to carry out
his/her responsibilities under this Agreement. The PwC Staff and the PwC Partner
shall be responsible for assisting C1 with product enhancement, quality
assurance, testing procurement consulting and sales support and implementation
activities. Subject to the terms of the Human Resources Agreement, PwC shall
have the right to rotate various people between the C1 headquarters in Walnut
Creek, California (the "C1 Headquarters") and various client sites.
Notwithstanding the foregoing, PwC's obligation to provide the [*] hours, the
PwC Partner and the Support (collectively, the "PwC Human Resources") shall
cease (i) immediately in the event (a) C1 is dissolved or liquidated, (b) PwC
gives C1 notice of its intention to terminate the Agreement pursuant to Section
11.3.2, or (c)the Human Resources Agreement is terminated, or (ii) upon
termination, in the event PwC gives C1 75 days' written notice (the "Termination
Notice") of PwC's decision to terminate this Agreement pursuant to Section
11.3.1; provided, however, in the event that PwC gives C1 the Termination
Notice, PwC shall continue to provide the PwC Human Resources during the 75 day
notice period as is necessary in order to complete, to the extent possible, any
current projects on which the PwC Staff and/or the PwC Partner are working.
7.2 TRAINING. During the first 12 months of the Agreement, PwC shall
commit to train a minimum of 25 PwC personnel to perform PwC's obligations
hereunder (including both sales-related, and Services-related obligations). Such
training shall be provided by C1 as part of the complimentary training provided
in accordance with details below, or at PwC's discretion, by a PwC trainer.
On a schedule reasonably acceptable to both parties, C1 will provide up
to three training days per trainee per calendar year during each year of the
term of the Agreement for no more than 100 trainees in the marketing, sale,
support, use, implementation and operation of the C1 Software. For purposes of
this calculation, a "training day" shall refer to one calendar day of
instruction provided by a C1 instructor for one PwC trainee. A training day
could take place as either structured classroom training or on-site at a client
location. The parties intend to execute a training strategy whereby C1 is
"training the trainers" at PwC. At PwC's option, PwC may purchase additional
training days from C1, in advance, for a reduced fee as follows: (i) for
purchases of 1-299 training days, a discount of 33% off of the then current list
price will apply, (ii) for purchases of greater the 300 training days, a
discount of 40% off of the then current list price will apply. Training priced
under this discount must be purchased at least thirty (30) days in advance. Any
training days purchased but not utilized or any free training days (i.e., the 3
days provided at no charge to PwC for 100 trainees) remaining unused at the end
of the each year will expire. C1 will send to PwC a
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quarterly report on the status/balance of such unused training days. PwC when
ordering training to be applied against the purchased training credit amount
shall quote a reference number from the applicable purchase order to ensure
credit against the prepaid training day balance. The Parties shall agree on a
mutually acceptable cancellation policy for scheduled training classes. It is
understood that all C1 technical training shall be provided at C1's Walnut
Creek, California facilities, at no cost to PwC, and sales training will be
provided at PwC regional offices or other similar facilities which will be made
available by PwC and PwC shall pay the out-of-pocket cost of travel plus lodging
of the C1 representative performing the training.
C1 shall provide to PwC sufficient copies of C1 Software and related
materials as shall be reasonably required for the training of the PwC personnel;
provided that such copies shall be used by PwC solely for internal training
purposes. C1 shall be entitled to receive adequate training by PwC on PwC's full
value procurement system for up to 20 training days per calendar year, at no
cost to C1 if such training takes place at one of PwC's offices as designated by
PwC, or for the out-of-pocket cost of travel plus lodging of the PwC
representative performing the training, if such training is performed at a C1
office or another location designated by C1.
7.3 PWC SERVICES FEE. In consideration of PwC supplying the PwC Human
Resources, after the parties have entered into the Human Resources Agreement,
PwC shall be entitled to receive a fee equal to [*]. In the event the
relationship between license fees, revenues and other revenues received by C1
from its licensees (i.e., consulting fees, maintenance fees and support fees)
differs materially from C1's business plan as it exists on the date hereof and
as disclosed to PwC, the parties shall negotiate the fees due under this Section
7.3 in good faith. For purposes of this Section 7.3, "license fee revenues"
shall mean license fees, to the extent received in cash by C1, net of
withholding taxes and other deductions, from customers; provided that it is
understood and agreed that "license fee revenues" shall not include any amounts
received by C1 for maintenance and support services, consulting or professional
service fees, any transaction fees or any other amount or payment for goods or
services not expressly included within the definition of "license fee revenues"
set forth above. Such fee shall be paid quarterly in arrears; provided, however,
in the event that this Agreement is terminated by C1 or by PwC pursuant to
section 11.3.2 below, or there is a Change of Control of C1, prior to PwC being
paid the full [*] under this Section 7.3, PwC shall be entitled to be paid [*].
In the event that there is a Change in Control of C1, all remaining
amounts due to PwC under this Section 7.3 shall become immediately due and
payable to PwC regardless of the amount of C1's license fee revenues on that
date.
For purposes of this Agreement, a Change in Control shall mean the
occurrence of one or more of the following events:
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(a) the direct or indirect sale, lease, exchange or other
transfer of all or substantially all of the assets of an entity to any person or
entity or group of persons or entities acting in concert as a partnership or
other group (a "Group of Persons");
(b) the consummation of any consolidation or merger of an
entity with or into another corporation with the effect that the stockholders of
such entity immediately prior to the date of the consolidation or merger hold
immediately after such merger or consolidation less than 51% of the combined
voting power of the outstanding voting securities of the surviving entity of
such merger, or the corporation resulting from such consolidation, ordinarily
having the right to vote in the election of directors (apart from rights
accruing under special circumstances) immediately after such merger or
consolidation;
(c) the stockholders of an entity shall approve any plan or
proposal for the liquidation or dissolution of such entity;
(d) a person or entity or Group of Persons acting in concert
as a partnership, limited partnership, syndicate or other group shall, as a
result of a tender or exchange offer, open market purchases, privately
negotiated purchases or otherwise, have become the direct or indirect beneficial
owner (within the meaning of Rule 13d-3 under the Exchange Act of 1934, as
amended) of securities of an entity representing 30% or more of the combined
voting power of the then outstanding securities of such entity ordinarily (and
apart from rights accruing under special circumstances) having the right to vote
in the election of the directors; and
(e) a person or entity or Group of Persons, together with any
affiliates thereof, shall succeed in having a sufficient number of its nominees
elected to the Board of Directors of an entity such that such nominees, when
added to any existing directors remaining on the Board of Directors of such
entity after such election who are affiliates of such person, entity or Group of
Persons, will constitute a majority of the Board of Directors of such entity.
8. CONFIDENTIALITY; INTELLECTUAL PROPERTY
8.1 CONFIDENTIALITY GENERALLY. During the term of this Agreement and
for a period of three (3) years from the termination of this Agreement (and for
a period of ten (10) years from the termination of this Agreement in the case of
source code), each Party hereto shall take all reasonable steps which are
necessary or reasonable to safeguard the secrecy and confidentiality of, and
proprietary rights to, the Confidential Information disclosed or provided by the
other Party, and shall not disclose the foregoing to any third party (other than
any employee, agent, director, officer, consultant or contractor and on a "need
to know" basis under suitable agreements of confidentiality with such parties)
or use the same for purposes other than those set forth herein.
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8.1.1 Each Party shall make no use whatsoever, directly or indirectly,
of any Confidential Information of the other Party, except as required in
connection with the performance of its obligations under this Agreement and in
accordance with its terms.
8.1.2 Upon either Party's request at any time and for any reason, the
other Party shall immediately deliver to the Party so requesting all materials
(including all copies) in its possession which contain Confidential Information
of that Party.
8.2 CONFIDENTIALITY WITH RESPECT TO THE TRC AND THE MDC. Confidential
Information of a Party may be (and in certain circumstances must be) disclosed
by the Party to the TRC or the MDC. The employees designated as members of the
TRC and the MDC may share with their employers any and all information,
including Confidential Information, disclosed to the TRC or the MDC; provided,
however, that the requirements regarding Confidential Information set forth in
Section 8.1 above will be observed by the members of the TRC and the MDC, the
Parties and their employees with respect to Confidential Information disclosed
by either Party to the TRC or the MDC.
8.3 INTELLECTUAL PROPERTY. All inventions, development, improvements,
patents, patent applications, trade secrets, processes, concepts, uses, know
how, software applications, designs, works of authorship, algorithms, lists,
marketing and business plans and other work product and intellectual property
(collectively, "Intellectual Property") relating to C1 Software shall be the
sole property of C1. . At any time or from time to time on and after the date of
this Agreement, PwC shall at the request of C1 (i) deliver to C1 such records,
data or other documents consistent with the provisions of this Agreement, and
(ii) execute, and deliver or cause to be delivered, all such assignments,
consents, documents or further instruments of transfer or license, and (iii)
take or cause to be taken all such other actions, as C1 may reasonably deem
necessary or desirable in order for C1 to obtain the full benefits of this
Agreement and the transactions contemplated hereby. C1 shall, for any
Intellectual Property relating to C1 Software owned by it and not by PwC provide
to PwC a temporary, limited, non-exclusive, non-transferable license
co-extensive with the term of this Agreement to use any and all such
Intellectual Property solely for the purposes set forth in this Agreement (i.e.,
demonstration, internal training and support purposes).
8.4 DATA COLLECTION. C1 and PwC may each compile for its own use and
purposes, and shall have exclusive use and ownership of, any captured cost data
or other information. Any such statistical data or information compiled by
either C1 or PwC shall be its sole property, and it may use, sell or distribute
such data or information for any purposes not prohibited by this Agreement or
any other agreement.
8.5 LICENSE. Following the execution of this Agreement, PwC, on behalf
of PwC's Business Process Outsourcing service line and C1 shall negotiate in
good faith regarding a license to
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the C1 Software for the purpose of allowing PwC to provide Business Process
Outsourcing services. PwC's Business Process Outsourcing service line is not
bound to choose Commerce One as its preferred solution by virtue of the
preceding language.
9. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION BY PwC
9.1 PwC REPRESENTATIONS AND WARRANTIES. PwC hereby represents and
warrants to C1 as follows:
(a) any C1 Software Installation and Related Services
performed by PwC shall be performed in a workmanlike and competent manner.
(b) PwC has full right, power, and authority to enter into
this Agreement and to carry out its obligations hereunder.
9.2 INDEMNIFICATION. Subject to the provisions of Section 9.3 below,
PwC shall indemnify C1, its employees, agents, officers, shareholders, directors
and affiliates for, defend and hold C1 harmless from and against, any costs
(including attorneys' fees) or damages finally awarded against C1 and payable to
a third party that are attributable to
(a) any breach of the warranties set forth in 9.1; and
(b) any claims by third parties for death, personal injury or
damages resulting from the wrongful acts or negligence of PwC or its employees,
agents, officers or directors.
(c) C1 shall give PwC prompt written notice of any such claim
or liability, and allow PwC to control the defense of such claim and all related
settlement negotiations and fully cooperate with PwC in such defense and
negotiations at PwC's expense. In the event that C1 wishes to participate in the
defense of any such claim, C1 shall be entitled to participate at C1's own
expense.
10. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION BY C1
10.1 C1 REPRESENTATIONS AND WARRANTIES. C1 hereby represents and
warrants to PwC as follows:
C1 has full right, power and authority to enter into this Agreement and
to carry out its obligations hereunder, and the execution of the terms hereof do
not violate any other agreement to which C1 is a party.
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10.2 INDEMNIFICATION BY C1. Subject to the provisions of Section 10.3
below, C1 shall indemnify PwC and the PwC Affiliates for, defend and hold each
of them harmless from and against, any costs (including attorneys' fees) or
damages finally awarded against PwC and/or the PwC Affiliates and payable to a
third party that are attributable to
(a) any breach of the warranties set forth in Section 10.1
above; and
(b) arising out of claims by third parties for death, personal
injury or damages resulting from the wrongful acts or negligence of C1 or its
employees, agents, officers or directors.
PwC and/or the PwC Affiliates, as applicable, shall give C1 prompt
written notice of any such claim or liability, and allow C1 to control the
defense of such claim and all related settlement negotiations and fully
cooperate with C1 in such defense and negotiations. In the event that PwC and/or
the PwC Affiliates wish to participate in the defense of any cash claim, C1 may
allow PwC and/or the PwC Affiliates to participate at PwC's and/or the PwC
Affiliates' own expense.
10.3 THIRD PARTY INFRINGEMENT.
(a) INDEMNITY. C1 shall indemnify PwC and PwC Affiliates for,
defend and hold each of them harmless from and against, any costs (including
attorney's fees) or damages arising from any claim that the C1 Software
infringes a copyright, United States patent or Trade Secret and shall pay any
settlements entered into or damages awarded against PwC and the PwC Affiliates
to the extent based on such a claim, provided that (i) PwC and/or the PwC
Affiliates, as applicable, notifies C1 promptly in writing of the claim; (ii) C1
has sole control of the defense and all related settlement negotiations; and
(iii) PwC and/or the PwC Affiliates, as applicable, provides C1 with all
necessary assistance, information, and authority to perform the above, at C1's
sole cost and expense.
(b) EXCLUSIONS. C1 shall have no liability for any claim of
infringement based on (i) PwC's use of other than the latest release of the C1
Software if the infringement would have been avoided by use of the latest
release; (ii) PwC's modification of the C1 Software if the infringement would
have been avoided without such modification; or (iii) the combination or use of
the C1 Software furnished hereunder by PwC with materials not furnished by C1 if
such infringement would have been avoided by use of the C1 materials alone.
(c) ALTERNATIVES. In the event the C1 Software licensed to PwC
hereunder is held to, or C1 believes is likely to be held to, infringe a
copyright, trade secret or patent C1 shall have the right at its sole option and
expense to (i) substitute or modify the C1 Software license to PwC hereunder so
that it is noninfringing; or (ii) obtain for PwC a license to continue using the
C1
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Software as provided in this Agreement; or (iii) if (i) and (ii) are not
reasonably practicable, terminate the license granted to PwC pursuant to the
last sentence of Section 8.3 hereof.
(d) The foregoing states the sole obligation and exclusive
liability of C1 (express, implied, statutory or otherwise) for any infringement
on claims or claims of infringement of any patent, copyright or trade secret by
reason of PwC's use of the C1 Software pursuant to the last sentence of Section
8.3 hereof.
10.4 INSURANCE. C1 shall maintain in full force and effect at all times
the insurance specified in Exhibit A in the minimum amounts set forth and shall
name PwC as an additional named insured. PwC represents and warrants that it is
self insured in amounts satisfactory to PwC to cover its contractual obligations
hereunder.
11. EFFECTIVE DATE, TERM AND TERMINATION
11.1 EFFECTIVE DATE. This Agreement shall become effective (the
"Effective Date") as of the date hereof.
11.2 TERM. Unless terminated earlier as provided in this Agreement,
this Agreement shall be for an initial term of (i) three years if PwC does
not make an equity investment in C1, or (ii) five years if PwC makes an
equity investment in C1 as provided in Section 6.6, and thereafter will
continue until either party gives at least 90 days' written notice of
termination.
11.3 TERMINATION.
11.3.1 WITHOUT CAUSE. PwC may terminate this Agreement upon 75 days'
written notice to C1.
11.3.2 WITH CAUSE.
(a) C1 may terminate this Agreement for material breach by PwC
upon 30 days' written notice to PwC if said breach is not cured by PwC within
such period. PwC may terminate this Agreement for material breach by C1 upon 30
days' written notice to C1 if said breach is not cured by C1 within such period.
(b) Either party may terminate this Agreement effective
immediately if the Parties are not able to negotiate in good faith and execute
the Human Resources Agreement and the Marketing Plan within 30 days following
the execution of this Agreement, unless otherwise agreed by the Parties.
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(c) Finally, either Party may terminate this Agreement
effective immediately upon written notice to the other, if at any time the other
Party:
(i) files a voluntary petition for bankruptcy;
(ii) is adjudged a bankrupt;
(iii) has a trustee or receiver is appointed by a
court for all or a substantial portion of its respective assets;
(iv) has a court assume jurisdiction of its assets
under a reorganization act;
(v) suspends business;
(vi) makes an assignment of its assets for the
benefit of creditors; or
(vii) enters into a composition for the benefit of
creditors.
11.4 EFFECT OF TERMINATION.
11.4.1 Unless the Parties agree to the contrary, the termination of
this Agreement for any reason shall not relieve a Party of its obligations:
(a) to make payments hereunder which have accrued prior to
termination; and
(b) to complete its obligations to clients or relating to
obligations for clients existing at the termination date pursuant to Sections
5.1 and 5.2.
11.4.2 SURVIVAL. In addition, the following Sections shall survive
termination or expiration of this Agreement: 1, 8.1, 8.2, 8.3,
8.4, 9, 10, 11.4, 12 and 13.
11.4.3 TERMINATION OF HUMAN RESOURCES AGREEMENT. In the event that
PwC provides notice to C1 that it is terminating this Agreement pursuant to
Section 11.3.1, PwC shall be entitled to terminate the Human Resources Agreement
upon 75 days' written notice to C1. In the event that PwC provides notice to C1
that it is terminating this Agreement pursuant to Section 11.3.2, PwC shall be
entitled to terminate the Human Resources Agreement and cease its provision of
the Human Resources immediately.
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GENERAL PROVISIONS
12.1 HEADINGS. The headings in this Agreement and Exhibits are provided
for reference only and shall not be used as a guide to interpretation.
12.2 SEVERABILITY. If any provision of this Agreement shall be
adjudicated to be invalid or unenforceable, the Agreement shall be amended to
delete such provision and the Agreement shall otherwise remain in full force and
effect as amended unless such amended Agreement does not reflect the purposes of
the Parties in entering into the Agreement.
12.3 AUTHORITY OF PARTIES. Neither Party shall have any authority,
express or implied, to assume or create any obligation on behalf of the other
Party..
12.4 PARTIES INDEPENDENT. In making and performing this Agreement the
parties act and shall act at all times as independent contractors and nothing
contained in this Agreement shall be construed or implied to create an agency,
partnership or employee/employer relationship between C1 and PwC or between any
Party hereto and any officer or employee of the other Party. Each Party shall be
responsible for the acts, negligence and omissions of its employees, agents
servants and subcontractors. Each Party accepts full and exclusive liability
with respect to its own employees for the payment of any and all contributions
and taxes imposed by local, state or federal law, including but not limited to
taxes or contributions for social security, unemployment insurance, worker's
compensation, old age retirement benefits, pensions and annuities, and agrees to
provide indemnity for any such payment made by the other Party.
12.5 ASSIGNMENT. This Agreement shall be binding on and inure to the
benefit of the Parties and their respective successors and assigns, PROVIDED
THAT neither PwC nor C1 may assign its rights or obligations hereunder to any
party which is not controlled by or under common control with the assigning
party without the prior written consent of the other Party.
12.6 ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement may be submitted to arbitration by either party hereto in
accordance with the rules of the American Arbitration Association for Commercial
Arbitration, and judgment upon the award rendered by the arbitrators may be
entered in any court having proper jurisdiction. The Parties to any such
arbitration shall share equally the cost of the arbitrators, but shall each bear
its own legal, accounting and similar fees and expenses; provided, however, that
the arbitrators shall require the Party or Parties, if any, not prevailing in
such arbitration to pay all costs of the arbitrators and to reimburse the
prevailing Party or Parties, if any, for their legal, accounting and other
similar fees and expenses in connection with the arbitration. Such arbitration
and determination shall be final and binding on the parties. Such arbitration
shall be held in San Francisco, California or such other location as the parties
may agree.
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12.7 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Exhibits
attached hereto contain the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements or
understandings between the parties hereto with respect thereto. This Agreement
may be amended only by an agreement in writing signed by the parties hereto.
12.8 NOTICES. Any notice required or permitted to be given pursuant to
this Agreement shall be in writing and shall be personally delivered, delivered
by next-day air courier, or mailed (by registered or certified mail, return
receipt requested and postage prepaid) or delivered by facsimile as follows:
IF TO C1:
Chuck Donchess
V.P. Marketing
Commerce One
1600 Riviera Ave.
Suite 200
Walnut Creek CA
Phone: 925-941-6030
Fax: 925-941-6060
IF TO PRICE WATERHOUSE
Robert Glatz
PricewaterhouseCoopers LLP
800 Market Street, 18th Floor
St. Louis, MO 63101
Fax: (314) 206-8615
WITH A COPY TO
Office of the General Counsel
PricewaterhouseCoopers LLP
1251 Avenue of the Americas
New York, New York 10020
Fax: 212-790-6630
or to such other addresses as the Party to whom notice is given may have
furnished to the other Party in writing, in accordance herewith. Any
communication shall be deemed to have been given, in the case of personal
delivery or confirmed facsimile, on the date of delivery; in the case of
delivery of air
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courier, on the business day after delivery to the applicable air-courier
service; and in the case of mailing, on the third business day following the day
on which the piece of mail containing such communication is posted.
12.9 WAIVER. No terms or provisions hereof shall be deemed waived and
no breach consented to or excused, unless such waiver, excuse or consent shall
be in writing and signed by the Party claimed to have waived or consented. The
consent, waiver or excuse by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other Party.
12.10 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with the laws of the State of New York, excluding its
conflicts of laws rules.
12.11 FORCE MAJEURE. Neither Party shall be liable or deemed to be in
default for any delay or failure to perform under this Agreement or for
interruption in the functions of the proprietary products or services resulting,
directly or indirectly, from any cause beyond such Party's reasonable control.
13. LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH ABOVE, NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY WITH RESPECT TO ANY SERVICES OR
MATERIALS PROVIDED UNDER THIS AGREEMENT, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR
NONINFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE WITH RESPECT TO SUCH ITEMS. EXCEPT FOR (A) INFRINGEMENT OF
THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, (B) A MATERIAL BREACH OF SECTION
8, OR (C) A BREACH OF SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF
SUCH DAMAGES. IN THE EVENT OF A BREACH BY C1 OF ITS OBLIGATIONS UNDER SECTION 6,
C1'S LIABILITY TO PwC BY REASON OF SUCH BREACH SHALL IN NO EVENT EXCEED $3.5
MILLION.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
authorized officers of the respective parties as of the day and year first above
written.
COMMERCE ONE, INC. PRICEWATERHOUSECOOPERS LLP
By: By:
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Title: Title:
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Date: Date:
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