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EXHIBIT 10.21
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
STRATEGIC ALLIANCE AGREEMENT
BY AND BETWEEN
COMMERCE ONE, INC.
AND
SAP AG
AND
SAPMARKETS, INC.
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<TABLE>
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TABLE OF CONTENTS:
<S> <C>
1 DEFINITIONS.............................................................................6
2 PURPOSE.................................................................................6
3 JOINT OFFERING DESCRIPTION..............................................................7
3.1 DEFINITION...........................................................................7
3.2 GENERAL..............................................................................7
[*]
3.6 PROFESSIONAL SERVICES...............................................................11
3.7 THIRD PARTY SERVICES AND APPLICATIONS...............................................11
4 JOINT DEVELOPMENT......................................................................12
4.1 JOINT DEVELOPMENT TEAM..............................................................12
4.2 BUSINESS PARTNERS...................................................................12
4.3 DEVELOPMENT APPROACH................................................................12
4.4 OWNERSHIP RIGHTS; LICENSING RIGHTS..................................................12
4.5 REVIEW..............................................................................13
5 BRANDING...............................................................................13
5.1 OWNERSHIP OF PRE-EXISTING BRAND NAMES AND TRADEMARKS................................13
5.2 BRAND NAMES AND TRADEMARKS OF THE JOINT OFFERING....................................13
6 SALES AND MARKETING....................................................................13
6.1 GENERAL.............................................................................13
6.2 COST OF SALES.......................................................................13
6.3 TRAINING RESOURCES..................................................................14
6.4 MARKETING...........................................................................14
6.5 TECHNICAL QUESTIONS.................................................................14
[*]
8 ENTERPRISEBUYER SUITE..................................................................17
8.1 GENERAL.............................................................................17
8.2 DEVELOPMENT.........................................................................17
8.3 ACCEPTANCE..........................................................................17
8.4 ENTERPRISEBUYER SUITE...............................................................17
[*]
8.6 C1 AND SAP AFFILIATES AND DISTRIBUTORS..............................................18
9 MARKETBUYER SUITE OPPORTUNITIES OUTSIDE THE SCOPE OF THE JOINT OFFERING................19
10 MARKETSITE OPPORTUNITIES...............................................................19
11 ALLIANCE COMMITTEES....................................................................20
11.1 EXECUTIVE COMMITTEE..............................................................20
11.2 DEVELOPMENT COMMITTEE............................................................20
11.3 MANAGEMENT PROCESS FOR DEVELOPMENT COMMITTEE.....................................20
11.4 SALES AND MARKETING COMMITTEE....................................................21
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11.5 MANAGEMENT PROCESS FOR SALES AND MARKETING.......................................22
11.6 ESCALATION AND DISPUTE RESOLUTION FOR ALLIANCE COMMITTEES........................22
11.7 EXECUTIVE REPRESENTATIVES AND EXECUTIVE MEETING..................................23
12 SUPPORT AND TRAINING...................................................................24
12.1 SUPPORT..........................................................................24
12.2 TRAINING.........................................................................24
[*]
[*]
13.3 PAYMENTS.........................................................................27
13.4 CURRENCY.........................................................................27
13.5 WITHHOLDING TAXES................................................................28
14 CROSS LICENSE FOR DEVELOPMENT PURPOSE..................................................28
14.1 INTERNAL USE.....................................................................28
14.2 ON-GOING LICENSING...............................................................30
14.3 DEVELOPMENT PARTNERS.............................................................30
14.4 CROSS LICENSING AT TERMINATION...................................................31
15 LICENSING RIGHTS.......................................................................30
15.1 LICENSE FROM C1 TO SAP...........................................................30
15.2 LICENSE FROM SAP TO C1...........................................................31
15.3 NO RESTRICTIONS..................................................................32
15.4 GENERAL TERMS....................................................................32
15.5 ENFORCEMENT OF DISTRIBUTORS AGREEMENTS...........................................33
15.6 REVERSE ENGINEERING AND MODIFICATION PROHIBITION.................................33
16 EXISTING PARTNERS......................................................................34
17 INTERFACES LICENSING...................................................................34
17.1 C1 LICENSE OF INTERFACES TO SAP..................................................34
17.2 SAP LICENSE OF INTERFACES TO C1..................................................35
18 INTELLECTUAL PROPERTY RIGHTS...........................................................35
18.1 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS IN AND TO THE JOINT OFFERING...........35
18.2 PREEXISTING SOFTWARE.............................................................35
18.3 NETMARKET MAKER SOLUTION.........................................................36
18.4 OWNERSHIP OF DEVELOPED SOFTWARE..................................................36
18.5 OWNERSHIP OF OTHER JOINTLY DEVELOPED SOFTWARE OTHER THAN AS PER SECTION 18.3.....37
18.6 RESIDUAL KNOWLEDGE...............................................................38
18.7 DEVELOPED SOFTWARE MATERIALS.....................................................38
18.8 THIRD-PARTY SOFTWARE.............................................................38
18.9 PROPRIETARY NOTICES..............................................................38
19 WARRANTIES.............................................................................39
19.1 WARRANTIES.......................................................................39
19.2 DISCLAIMER OF WARRANTIES.........................................................40
20 REPRESENTATIONS & COVENANTS............................................................40
20.1 C1...............................................................................40
20.2 SAP..............................................................................41
21 INDEMNIFICATION........................................................................41
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21.1 INTELLECTUAL PROPERTY INDEMNITY FROM C1..........................................41
21.2 INTELLECTUAL PROPERTY INDEMNITY FROM SAP.........................................42
21.3 CUSTOMER INDEMNITY...............................................................42
21.4 GENERAL INDEMNITY................................................................43
[*]
...............................................................................................
22 LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES..........................................45
22.1 LIMITATION OF LIABILITY..........................................................45
22.2 EXCLUSION OF DAMAGES.............................................................45
22.3 EXCEPTIONS.......................................................................45
23 CONFIDENTIALITY........................................................................46
23.1 CONFIDENTIAL INFORMATION.........................................................46
23.2 CONFIDENTIALITY OBLIGATIONS......................................................46
24 AUDIT RIGHTS...........................................................................47
25 TERM & TERMINATION.....................................................................47
25.1 TERM.............................................................................47
[*]
25.3 TERMINATION FOR MATERIAL BREACH..................................................48
25.4 TERMINATION AS A RESULT OF BANKRUPTCY............................................48
25.5 TERMINATION FOR UNRESOLVED DISPUTES..............................................48
25.6 TERMINATION FOR A CHANGE OF CONTROL..............................................48
25.7 SURVIVAL.........................................................................49
25.8 LIMITATION ON RIGHT TO TERMINATE LICENSES........................................49
26 POST-TERMINATION RIGHTS................................................................50
26.1 C1 POST TERMINATION LICENSE RIGHTS...............................................50
26.2 SAP POST TERMINATION LICENSE RIGHTS..............................................50
27 SOURCE CODE ESCROW.....................................................................50
28 GLOBAL TRADING WEB (GTW)...............................................................51
29 STATUS.................................................................................51
29.1 C1 STATUS........................................................................51
29.2 SAP STATUS.......................................................................51
30 MISCELLANEOUS..........................................................................52
30.1 OTHER REMEDIES CUMULATIVE........................................................52
30.2 PUBLIC COMMUNICATIONS............................................................52
30.3 SECTION 365(N) OF BANKRUPTCY CODE................................................52
30.4 CONSTRUCTION.....................................................................52
30.5 ASSIGNMENT.......................................................................53
30.6 NO IMPLIED WAIVERS...............................................................53
30.7 SEVERABILITY.....................................................................53
30.8 FORCE MAJEURE....................................................................53
30.9 HEADINGS.........................................................................53
30.10 NOTICE...........................................................................54
30.11 GOVERNING LAW....................................................................54
30.12 EXCLUSIVE JURISDICTION...........................................................54
30.13 ENTIRE AGREEMENT.................................................................54
30.14 CONFLICTING TERMS................................................................54
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30.15 AMENDMENT BY WRITTEN AGREEMENT ONLY..............................................54
30.16 STANDARD TERMS OF A PARTY........................................................55
30.17 EXPORT OF SOFTWARE...............................................................55
30.18 EXPORT CONTROL...................................................................55
30.19 GOVERNMENTAL APPROVALS...........................................................55
30.20 COUNTERPARTS.....................................................................56
30.21 NON-SOLICITATION.................................................................56
30.22 FCPA.............................................................................56
30.23 LANGUAGE.........................................................................56
EXHIBIT A: DEFINITIONS......................................................................58
[*]
EXHIBIT F: SUPPORT AGREEMENT.................................................................74
[*]
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STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement is entered into on this 18th day of
September, 2000 by and between Commerce One, Inc. ("C1"), a Delaware corporation
with principal offices at 4440 Rosewood Drive, Bldg. 1, Pleasanton, CA 94588,
SAP AG ("SAP AG"), a German corporation with principal offices at Neurottstrasse
16, Walldorf 69190, Germany, and SAPMarkets, Inc. ("SAPMarkets"), a Delaware
corporation with principal offices at 3377 Deer Creek Road, Palo Alto, CA 94304.
SAP AG and SAPMarkets shall be collectively referred to as "SAP."
RECITALS
Whereas, SAP and C1 intend to cooperate in the development of a joint and
premium marketplace solution related to exchange-based business-to-business
electronic marketplace portals; and
Whereas, such joint and premium marketplace solution shall combine
technologies from C1 and technologies from SAP; and
Whereas, C1 wishes to grant to SAP rights to use and distribute, within the
context of the joint and premium marketplace solution, certain technologies
owned or licensed by C1; and
Whereas, SAP wishes to grant C1 the rights to use and distribute within the
context of the joint and premium marketplace solution, certain technologies
owned or licensed by SAP; and
Whereas, C1 and SAP each agree to certain distribution commitments in
consideration for the rights and obligations set forth herein.
In consideration of the mutual covenants contained herein, the Parties
agree to the following terms and conditions, which set forth the rights, duties,
and obligations of the Parties.
1 DEFINITIONS.
All capitalized terms shall have the meaning set forth in Exhibit A
(Definitions.) Any obligations, rights and liabilities imposed on, or granted
to, "SAP" pursuant to this Agreement shall apply jointly to SAP AG and
SAPMarkets. Use of the term "SAP" (whether in a singular or plural form) shall
always be construed to create a joint obligation, a joint right or a joint
liability for both SAP AG and SAPMarkets. An obligation or right shall be
construed to be limited to either SAP AG or SAPMarkets only if the term "SAP AG"
or "SAPMarkets" is specifically used in lieu and place of SAP.
2 PURPOSE.
SAP and C1 intend to establish a Joint Offering for Marketplace Portals
combining (i) the marketplace infrastructure, other technologies, and related
value-added business services to be provided by C1 as further described in
Section 3 of this Agreement and the Joint Development
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Agreement, (ii) the application components and related technology to be provided
by SAP AG or SAPMarkets as further described in Section 3 of this Agreement and
the Joint Development Agreement, (iii) other technology to be jointly developed
by the Parties, and (iv) technology and/or services to be provided by third
parties. Alternative Technology may be offered as part of the Joint Offering.
The Parties shall agree upon a set of joint marketing messages for the continued
publication and marketing of this arrangement, which shall include appropriate
positioning for each element of the Joint Offering provided by C1 or SAP, as
applicable.
Within thirty (30) days from the Effective Date, the Parties agree to enter
into the Joint Development Agreement pursuant to which the Parties will further
develop the Joint Offering.
3 JOINT OFFERING DESCRIPTION.
3.1 DEFINITION.
For purposes of this Agreement, a Joint Offering shall mean the
technical solution that is offered jointly by the Parties to their
customers as described in this Section 3 and in Exhibit C-1, as such
Exhibit C-1 may be modified from time to time pursuant to the procedure set
forth in Section 3.2.
3.2 GENERAL.
The technical description of the Joint Offering is attached hereto as
Exhibit C-1 and shall be the basis of the detailed Statements of Work to be
incorporated into the Joint Development Agreement. Such technical
description incorporates a detailed explanation of the material functions
of each technical component. The Joint Offering, and its technical
components may be modified by the Development Committee to respond to
technical demand and market needs in order to maintain the competitiveness
of the Joint Offering provided that all modifications adopted by the
Development Committee are approved in writing by the Executive
Representatives. Only the components described in Exhibit C-1, as modified
from time to time by the Development Committee upon the written approval of
both of the Executive Representatives, shall be considered part of the
Joint Offering and subject to, without limitation, the provisions of
Sections 5, 7 or 13. In addition to the Joint Offering, the Parties may
cooperate to offer jointly to their customers additional components and/or
services provided that such offer shall under no circumstances modify the
definition of the Joint Offering (and therefore the rights and obligations
of each Party under this Agreement) unless such components and/or services
are made part of the Joint Offering in accordance with the procedure
described above. [*]
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[*]
3.6 PROFESSIONAL SERVICES.
Within sixty (60) days from the Effective Date the Parties shall enter
into a professional services agreement which shall set forth the terms and
conditions of the Parties' collaboration in providing professional services
for the implementation of the Joint Offering with their customers.
3.7 THIRD PARTY SERVICES AND APPLICATIONS.
Except as specifically provided in this Agreement in Sections 3 and 7,
the Parties agree that each Party shall be free to offer as part of, or
integrate with, the Joint Offering any services or applications whether
developed or provided by third parties. Each Party shall keep the other
Parties informed of the third party services and applications it offers
with the Joint Offering. A Party offering third party application or
services as part of the Joint Offering shall agree to review, without any
obligation to select, similar applications and services offered by any of
the Parties upon the request of such Party.
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4 JOINT DEVELOPMENT.
4.1 JOINT DEVELOPMENT TEAM.
The Parties shall jointly develop technology to integrate the SAP
Applications and C1 Technology as part of the Joint Offering. The Parties
shall form one or more joint development teams for such efforts, and, in
each case, one Party shall be specifically designated to lead the related
development effort under the guidance and review of the Development
Committee. The costs of such development efforts shall be borne by the
Party incurring such costs, unless otherwise agreed.
4.2 BUSINESS PARTNERS.
The development may incorporate business partners that are mutually
acceptable to the Parties. [*] In each case, the roles and responsibilities
of each business partner shall be mutually agreed to by the Parties. Unless
otherwise agreed in writing, each Party is responsible for any fees or
obligations owed to its own business partners.
4.3 DEVELOPMENT APPROACH.
During the term of this Agreement, development shall proceed by way of
a phased approach, consisting of several defined implementation phases [*].
To the extent feasible, joint development activities shall occur at the
Parties' offices in the San Francisco Bay area. However, the Parties
acknowledge that some development activities for which SAP is primarily
responsible may occur in Walldorf, Germany or in any office maintained by
SAPMarkets. Each Party shall keep the other Party closely informed through
regular reports to the Development Committee of any development activities
relating to Marketplace Portals, including the location of such activity.
The Development Committee shall create a document retention policy related
to each Party's development efforts.
4.4 OWNERSHIP RIGHTS; LICENSING RIGHTS.
Any developments that result from the joint development arrangements shall
be subject to the intellectual property ownership and licensing provisions of
this Agreement.
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4.5 REVIEW.
Every six (6) months, the Executive Committee shall endeavor to
revisit and review the SAP Applications and C1 Technology and all
technology jointly developed by the Parties, included or to be included in
the Joint Offering, for the purposes of evaluating the market position of
the Joint Offering.
5 BRANDING.
5.1 OWNERSHIP OF PRE-EXISTING BRAND NAMES AND TRADEMARKS.
Each Party shall retain all rights, title and other interest to its
brand names, service marks, trademarks and other proprietary markings
except as expressly provided otherwise in this Agreement.
5.2 BRAND NAMES AND TRADEMARKS OF THE JOINT OFFERING.
The Joint Offering and the Electronic Procurement Applications shall
be branded with a newly created product name which shall be adopted by the
Executive Committee. Each Party shall be free to utilize the newly created
product name in conjunction with its own trademarks to identify the Joint
Offering and the Electronic Procurement Applications. This branding shall
appear prominently in any Marketplace Portals using the Joint Offering and
the Electronic Procurement Applications as licensed by any of the Parties
provided that the customer permits display of branding on its Marketplace
Portal. The new product name shall be jointly owned by the Parties. The
Parties shall mutually agree on the necessary steps to protect the
ownership in and to, and use of, the new product names as an identifier of
the Joint Offering and the Electronic Procurement Applications. The
principles set forth herein shall apply to any joint brand developed by the
Parties during the term of this Agreement for any product or class of
products.
6 SALES AND MARKETING.
6.1 GENERAL.
In accordance with Exhibit D (Sales and Marketing Summary), SAPMarkets
and C1 will work together to market actively the Joint Offering, the
Electronic Procurement Applications and other related services and
applications. The Sales and Marketing Summary sets forth a description of
the method by which each Party's sales force will cooperate, including
product positioning and methods of sales engagement. Within sixty (60) days
from the Effective Date, the Parties shall mutually agree on a more
detailed Sales and Marketing Summary addressing in a comprehensive way each
of the points identified in the Sales and Marketing Summary including
action plans and time lines.
6.2 COST OF SALES.
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The Parties shall each bear their own costs for those sales and
pre-sales personnel committed to the joint sales effort for licensing of
the Joint Offering and the Electronic Procurement Applications. Each Party
shall provide reasonable assistance to the other, as reasonably requested
from time to time, in connection with the Joint Offering and the Electronic
Procurement Applications.
6.3 TRAINING RESOURCES.
The Sales and Marketing Committee shall establish detailed training
programs for the other Parties' sales forces and relevant consulting and
support organizations on the licensing, implementation and customer support
of the Joint Offering, the Electronic Procurement Applications and of the
SAP Applications and C1 Technology. Such training programs shall include
the provision of all necessary materials and documentation at no cost to
the recipient Party.
6.4 MARKETING.
The Parties shall engage in certain marketing activity with respect to
the Joint Offering and the Electronic Procurement Applications, including
(i) bilateral presence at sales and marketing events (e.g. SAPPHIRE,
TechEd, C1 E-link events, etc.), (ii) [*] (iii) joint marketing collateral,
and (iv) joint advertising.
6.5 TECHNICAL QUESTIONS.
A Party engaged in a sales cycle with a customer already using the
other Party's applications (either the SAP Applications or the C1
Technology) shall invite such other Party to discuss with the customer the
general aspects (technical and financial) of the use of the Joint Offering
with the applications already licensed by such customer.
[*]
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8 ENTERPRISEBUYER SUITE.
8.1 GENERAL.
8.1.1 PHASE I.
[*] The licensing of the bundled EnterpriseBuyer Desktop Edition
and the EnterpriseBuyer Professional Edition shall be referred to as
the EnterpriseBuyer Suite and is only licensed together during
Phase I. [*] Royalties and certain exceptions to the aforementioned
provisions are set forth in Exhibit B.
8.1.2 PHASE II.
During Phase II, each Party shall have the right and choice of
licensing (in accordance with the terms and conditions of Section 15)
either the EnterpriseBuyer Professional Edition (for Professional and
Requisition Users) or the EnterpriseBuyer Desktop Edition (for
Requisition Users) for deployment as an enterprise electronic
procurement application to any customer outside the scope of the Joint
Offering. Royalties shall be as per Exhibit B.
8.2 DEVELOPMENT.
The EnterpriseBuyer Professional Edition and the
EnterpriseBuyer Desktop Edition shall be jointly developed by the
Parties in accordance with Exhibit C-2 and the Joint Development
Agreement. C1 shall be primarily responsible for the development of the
EnterpriseBuyer Desktop Edition and SAP shall be primarily responsible
for the development of the EnterpriseBuyer Professional Edition.
8.3 ACCEPTANCE.
The Joint Development Agreement shall provide for an
acceptance procedure of the EnterpriseBuyer Professional Edition and
the EnterpriseBuyer Desktop Edition by C1 and SAP, respectively.
8.4 ENTERPRISEBUYER SUITE.
[*] Such customers shall be entitled to use the
EnterpriseBuyer Professional
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Edition of the EnterpriseBuyer Suite only upon the payment of the
applicable additional user fees for professional user roles.
[*]
8.6 C1 AND SAP AFFILIATES AND DISTRIBUTORS.
C1's Affiliates shall have the right to distribute the Desktop and
Professional Editions of the Electronic Procurement Applications. Royalties
shall be paid in accordance with Exhibit B.
C1's distributors shall have the right to distribute the Desktop
Editions of the Electronic Procurement Applications, but shall not have the
right to distribute the Professional Editions of the Electronic Procurement
Applications. Royalties shall be paid in accordance with Exhibit B. Such
C1's distributors shall have the option to distribute the Desktop Edition
of the EnterpriseBuyer Suite under the joint branding developed by the
Parties or under C1 branding.
SAP's Affiliates [*] shall have the right to distribute the
Professional and Desktop Editions of the Electronic Procurement
Applications. [*] Royalties shall be paid in accordance with Exhibit B.
SAP's distributors [*] shall have the right to distribute the
Professional Editions of the Electronic Procurement Applications but shall
not have the right to distribute any Desktop Editions unless [*], in
writing by the Parties. Royalties shall be paid in accordance with
Exhibit B. Such [*] shall have the option, to distribute the
Professional Edition of the EnterpriseBuyer Suite under the joint
branding developed by the Parties or under SAP branding.
The Parties agree to pay referral fees as set forth in Exhibit B to
C1's distributors assisting in the sale of the Professional Editions of any
of the Electronic Procurement Applications and to SAP's distributors [*]
assisting in the sale of the Desktop Editions of any of the Electronic
Procurement Applications. Unless otherwise
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agreed in writing in advance by the Parties, each Party shall be
responsible for the payment of any and all referral fees to its own
distributors.
9 MARKETBUYER SUITE OPPORTUNITIES OUTSIDE THE SCOPE OF THE JOINT OFFERING.
Based on market demand and on a case by case basis, the Parties may
license the Desktop or Professional Editions of the MarketBuyer outside the
scope of the Joint Offering. In such a case, the Parties shall agree on (i)
appropriate royalties to be paid by one Party to the other, (ii) licensing
structure, and (iii) other related terms and conditions.
10 MARKETSITE OPPORTUNITIES.
On a case by case basis and upon its written approval, C1 shall use
its best efforts to cooperate with SAP for licensing opportunities of the
MarketSite Software to regional MRO B2B Exchanges [*]. The Parties agree to
negotiate in good faith within the sixty (60) day period following the
Effective Date a viable solution to the extent that SAP may require
enhanced distribution rights. Royalties payable by SAP to C1 shall also be
decided on a case by case basis. The parties agree that all the terms and
conditions applicable to the licensing by SAP of the NetMarket Maker
Solution shall apply to the licensing by SAP of the MarketSite Software as
set forth in this Section. [*]
C1 and SAP shall cooperate in pursuing licensing opportunities for MRO
marketplaces in accordance with the following provisions. For purposes of
this provision, "MRO Marketplaces" shall mean any Marketplace Portal for
business to business exchanges which is limited to MRO purchasing and which
does not license or access supply chain functionality provided as part of
the Joint Offering. The parties shall jointly engage in all sales cycles
for new MRO Marketplace opportunities, whether horizontal or vertical. The
ongoing management of this process will occur through pipeline management,
territory business planning and strategy development. [*] When a
Marketplace Portal is actually limited to MRO activity without any supply
chain capabilities, the parties shall: (i) keep a joint pipeline; (ii)
jointly resolve conflicting territories/verticals; and [*]. Notwithstanding
the foregoing, any customer who licenses the Joint Offering from either
Party as an upsell/migration from a MarketSite platform shall be subject to
the upsell provisions of Exhibit B [*]. Exceptions to the royalty
provisions as set forth in Exhibit B shall be determined by the regional
joint steering committee.
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Regional teams shall develop regional strategy and business plans
establishing regional rules of engagement and business models for the GTW for
review by the regional steering committee within thirty (30) days after
execution of this Agreement.
11 ALLIANCE COMMITTEES.
11.1 EXECUTIVE COMMITTEE.
The Parties shall establish an Executive Committee composed of
two (2) Executive Representatives, one appointed by SAP and one
appointed by C1 within thirty (30) days from the Effective Date. The
Executive Committee shall meet on a quarterly basis during the first
year after the effective date and every six months thereafter. The
Executive Committee shall jointly review the current status of the
Joint Offering, the Enterprise Procurement Applications, and engage in
dispute resolution in accordance with the provisions of this Agreement.
11.2 DEVELOPMENT COMMITTEE.
The Development Committee shall be made up of the Leading
Development Executives of each Party for the C1 Technology and the SAP
Applications. The Development Committee shall (i) define the scope and
technology components of the Joint Offering, (ii) monitor the joint
development activities of each Party, (iii) create a forum of
discussion related to such joint development activities, (iv) define
acceptance criteria, (v) identify and resolve intellectual property
issues, including, without limitation, ownership, in accordance with
the principles of this Agreement and the Joint Development Agreement,
and (vi) resolve any dispute that may arise between the Parties
pursuant to this Agreement or the Joint Development Agreement.
Disputes with respect to the Development Effort which cannot be
resolved in the Development Committee, shall be resolved as set forth
in Section 11.6 of this Agreement.
11.3 MANAGEMENT PROCESS FOR DEVELOPMENT COMMITTEE.
11.3.1 LEAD DEVELOPMENT EXECUTIVES.
The initial Lead Development Executives for each phase of the
Development Effort shall be appointed (two by C1 and two by SAP)
within thirty (30) days from the Effective Date. The Lead Development
Executives must be replaced by a person of executive rank unless the
Parties otherwise agree.
11.3.2 POWERS OF LEAD DEVELOPMENT EXECUTIVES.
The Lead Development Executives shall maintain and revise the
corresponding Statement of Work for each phase in accordance with its
terms and will have the right, after consultation, to designate the
project leader for each major project and to establish teams and team
leaders for various development projects. Each Party shall structure
all employees and resources for each phase under such
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Lead Development Executives for that phase, and the Lead Development
Executives and project leaders shall direct such resources in accordance
with and to achieve the objectives of the Statement of Work.
11.3.3 STATEMENTS OF WORK.
As soon as practicable after the Effective Date, the Lead Development
Executives shall establish and attach to the Joint Development Agreement
the initial Statements of Work for the initial Development Efforts, setting
forth the objectives and principal deliverables, and providing for
priorities in going forward. Changes to the principal deliverables or
priorities sections of the initial Statements of Work shall require the
consent of both Parties not to be unreasonably withheld or delayed, but all
other changes to such Statements of Work may be made by the Lead
Development Executives after consultation.
11.3.4 NON-DISCLOSURE; LIMITATIONS ON WORK ON OTHER DEVELOPMENT.
All individuals engaged in the Development Effort will be prohibited
from using or disclosing any confidential information or trade secrets
learned or developed in the course of such Development Effort other than in
the course of their work on the Development Effort or their work for C1 or
SAP, respectively. C1 and SAP each acknowledges that the Parties may have
to establish procedures and/or enter into supplemental confidentiality
agreements to address issues that may arise in connection with the
Development Effort, such as by way of example, the use of confidential
information of third parties which one Party may not have the right to
disclose to the other Party. In addition, C1 and SAP each agrees that after
it has assigned developers to the Development Effort, it shall use
reasonable efforts to keep such individuals assigned to the Development
Effort.
11.4 SALES AND MARKETING COMMITTEE.
The Sales and Marketing Committee shall be made up of the Leading
Sales and Marketing Executives of each Party for the C1 Technology, the SAP
Applications, and the Electronic Procurement Applications. The Sales and
Marketing Committee shall (i) establish a joint go-to-market strategy for
the Joint Offering which will be reduced to the Sales and Marketing Summary
described in Section 11.5.3 hereof, (ii) form regional joint sales teams
for identified Joint Offering opportunities, (iii) oversee the training of
the sales forces of each Party, (iv) establish sales compensation packages
to ensure channel harmony in the licensing of the Joint Offering by each
Party's sales force, (v) establish channel management programs, and (vi)
establish dispute resolution and arbitration procedures for account
targeting. Disputes with respect to the sales and marketing of the Joint
Offering which cannot be resolved in the Sales and Marketing Committee,
shall be resolved pursuant to Section 11.6 of this Agreement.
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11.5 MANAGEMENT PROCESS FOR SALES AND MARKETING.
11.5.1 LEAD SALES AND MARKETING EXECUTIVES.
The initial Lead Sales and Marketing Executives for C1 shall be
appointed (two by C1 and two by SAP) within thirty (30) days from the
Effective Date. As part of the Sales and Marketing Summary, C1 and SAP
will establish mutually agreeable targets for sales and marketing of
the Joint Offering. Either Party shall have the right, after
consultation with the other Party, to replace the Lead Sales and
Marketing Executives at any time after the Effective Date. The Lead
Sales and Marketing Executives may only be replaced by a person of
similar rank and stature unless the Parties otherwise agree. The Lead
Sales and Marketing Executives must be employees of either C1 or SAP.
11.5.2 POWERS OF LEAD SALES AND MARKETING EXECUTIVES.
The Lead Sales and Marketing Executives, after consultation,
shall have the right to establish projects and teams and project and
team leaders for various major sales efforts. Each Party shall
structure all employees and resources under the Lead Sales and
Marketing Executives, and the Lead Sales and Marketing Executives and
their subordinates shall direct such resources in accordance with and
to achieve the objectives set forth in the Sales and Marketing
Summary.
11.5.3 SALES AND MARKETING SUMMARY.
An initial draft of the Sales and Marketing Summary will be
mutually agreed upon within thirty (30) days after the Effective Date
by the Lead Sales and Marketing Executives, setting forth the
objectives and targets, and principal methods for sales and marketing
of the Joint Offering and components thereof. Major substantive
changes to such initial Sales and Marketing Summary shall require the
consent of both Parties, such consent not to be unreasonably withheld,
but any minor changes may be made by the corresponding Lead Sales and
Marketing Executives after consultation.
11.6 ESCALATION AND DISPUTE RESOLUTION FOR ALLIANCE COMMITTEES.
11.6.1 GENERAL.
The Parties shall attempt to promptly resolve through good faith
negotiation any dispute or disagreement between them directly relating
to design and development priorities and decisions and resource
allocation under this Agreement or the Joint Development Agreement or
any Statement of Work.
11.6.2 ESCALATION TO EXECUTIVE COMMITTEE.
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In the event of a dispute in the Development Committee or Sales and
Marketing Committee, either Party may identify said dispute for escalation.
If the dispute is not resolved within seven (7) calendar days of such
identification, then the dispute shall be escalated to the Executive
Committee. The Executive Committee shall discuss the dispute within five
(5) days of escalation and shall render a decision within ten (10) days of
their initial discussion. If the Executive Committee is unable to resolve
the dispute within ten (10) days of their initial discussion then the
dispute shall be submitted to the Senior Executives as set forth in Section
11.6.3.
11.6.3 ESCALATION TO SENIOR EXECUTIVES.
In the event of a dispute in the Executive Committee, either Party may
identify said dispute for escalation. If the dispute is not resolved within
ten (10) calendar days of such identification, then the dispute shall be
escalated to the most senior executives of C1 and SAP. The most senior
executives shall discuss the dispute within five (5) days of escalation and
shall render a decision within ten (10) days of their initial discussion.
If the most senior executives are unable to resolve the dispute within ten
(10) days of their initial discussion then the dispute shall be submitted
to mediation as set forth in Section 11.6.4.
11.6.4 MEDIATION.
In the event that the most senior executives of C1 and SAP are unable
to resolve a dispute originating in the Executive Committee, Development
Committee or Sales and Marketing Committee, as set forth in Section 11.6.2,
the most senior executives shall meet with a mediator as soon as
practicable, but in no event more than thirty (30) days from the date of
original escalation of the dispute to the most senior executives. The
mediator shall submit a written report to the Parties within five (5) days
of the final meeting between the mediator and the most senior executives.
If the most senior executives remain unable to resolve the dispute after
mediation, either Party may terminate this Agreement as set forth in
Section 25.5. The cost of mediation shall be split equally between C1 and
SAP.
11.7 EXECUTIVE REPRESENTATIVES AND EXECUTIVE MEETING.
11.7.1 EXECUTIVE REPRESENTATIVES.
Each Party shall designate a senior executive reporting to its
chief executive officer, president or chief operating officer as its
Executive Representative to the other for the purpose of this
Agreement within thirty (30) days from the Effective Date. The
Executive Representatives shall collaboratively report monthly in
writing (which may be electronic) to both chief executive officers on
the progress of development and sales and marketing under this
Agreement and shall work to facilitate cooperation between the Parties
to achieve the development and sales and marketing goals of this
Agreement.
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11.7.2 EXECUTIVE MEETING.
In January and July of each year, the chief executive
officers and the relevant members of their management teams
including the Executive Representatives shall meet to review the
development progress and sales and marketing progress under this
Agreement. The January meetings shall be in California hosted by
C1 and the July meetings in California, hosted by SAP. The host
Executive Representative shall be responsible, in consultation
with the participants and the other Executive Representative, for
organizing such meeting and establishing its agenda.
12 SUPPORT AND TRAINING.
12.1 SUPPORT.
The Parties shall agree on detailed support terms and
responsibilities for supporting the Joint Offering, the Electronic
Procurement Applications, and the NetMarket Maker Solution, including
call receipt, call screening, installation assistance, problem
identification and diagnosis, hand-over procedures and development
level support. All support (including escalation procedures) by each
Party shall be provided in accordance with a mutually agreed upon
Support Level Agreement which shall be based on the support summary set
forth in Exhibit F.
12.2 TRAINING.
[*] Such training shall allow each Party to provide the level
of maintenance and support for the other Parties' technology as set
forth in Exhibit F. The scope and duration of such training shall be
defined by the Executive Committee. Thereafter, each Party shall be
free to offer similar training (as provided by the other Parties) to
its distributors.
Travel and lodging expenses related to such training shall be
borne by the Party receiving the training.
[*] The Provider shall grant to the Receiver a non-exclusive
and royalty-free right to copy, use and distribute such training
material as part of the Receiver's branded course. Training materials
shall only be used in relation the Joint Offering and the Electronic
Procurement Applications. The Receiver agrees to include the Provider's
trademarks and copyright notices in its related course material. [*]
The Provider shall update the training material and assist the Receiver
in updating its training courses in the event of any changes,
modifications in and to any of the Provider's technical components
incorporated into the Joint Offering.
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[*]
[*]
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[*]
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[*]
13.2.6 PREPAYMENTS.
Prepayments shall be in accordance with Exhibit B.
13.3 PAYMENTS.
13.3.1 To C1. SAP shall make such payments to C1 within thirty (30)
days of the end of the calendar quarter in which such
royalties or fees accrue in accordance with GAAP. All payments
due to C1 shall be made in United States dollars at C1's
address as indicated in this Agreement or at such other
address as C1 may from time to time indicate by proper notice
hereunder.
13.3.2 To SAP. C1 shall make such payments to SAPMarkets within
thirty (30) days of the end of the calendar quarter in which
such royalties or fees accrue in accordance with GAAP. All
payments due to SAP shall be made in United States dollars at
SAPMarkets' address as indicated in this Agreement or at such
other address as SAPMarkets may from time to time indicate by
proper notice hereunder.
13.4 CURRENCY.
The Parties shall always use the average Noon Buying Rate published by
the Federal Reserve Bank of New York during the month giving rise to
payment for conversion between foreign currencies and United States
Dollars. All costs related to currency conversion shall be borne by the
paying Party.
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13.5 WITHHOLDING TAXES.
All taxes based on income as may be imposed by any federal, state or
local government entity for payments received under this Agreement will be
borne by the recipient of payments (the "Recipient").
If the Party making such payments (the "Payer") is required by law to
withhold tax ("Withholding Tax") from any gross payment to the Recipient
under this Agreement, Payer shall be entitled to withhold or deduct such
tax from the gross amount to be paid. However, Payer shall use all
endeavors to reduce any such withholding tax payable to the lowest possible
rate subject to compliance with all applicable laws and double taxation
treaties. The Payer will in the case of any withholding of tax provide to
the Recipient a receipt from the relevant tax authority to which such
withholding tax has been paid.
All other taxes or charges of any kind (including but not limited to,
customs duties, tariffs, excise, gross receipts, sales and use and value
added tax) except income or corporation taxes will be borne by the Payer.
If any such tax or duty is due under this Agreement, Payer will increase
payment under this Agreement by such amount as shall ensure that after such
payment, Recipient shall have received an amount equal to the payment
otherwise required.
The Payer shall be responsible for and hold the Recipient harmless
from all claims and liability arising from the Payer's failure support or
pay any Withholding Tax, duties, tariffs and other charges.
Each Party shall also be responsible for and hold the other Party
harmless from all taxes and other matters required of self-employed
individuals by any governmental authority, including the withholding and
payment of all such taxes. Such responsibility shall also extend to all
employees and agents, all employees and agents furnished to a Party by any
subcontractor, and all persons furnished by any broker or agency in
connection with the performance of this Agreement. Such taxes shall
include, but not be limited to, all federal, state and local taxes,
including earnings taxes, employment taxes and payroll taxes.
14 CROSS LICENSE FOR DEVELOPMENT PURPOSE.
14.1 INTERNAL USE.
14.1.1 C1.
C1 hereby grants SAP a non-exclusive, worldwide, limited to the term
of this Agreement, non transferable, internal right [*] to use, display,
perform and modify (in accordance with the provisions of the Joint
Development) the C1 Technology and the Desktop Editions of the Electronic
Procurement Applications that may be provided to SAP, if any, for purposes
of the Joint Development Agreement. The exact list of those C1 Technology
and the Desktop Editions of the
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Electronic Procurement Applications licensed to SAP, for purposes of the
Development Effort, if any, pursuant to this Section shall be set forth in
the Joint Development Agreement. The license granted hereunder is in object
and source code form for use only in connection with the Development
Effort.
14.1.2 C1 SOURCE CODE FREEZE.
Commencing on the effective date of termination of the Joint
Development Agreement, SAP's right and license to the Source Code to the C1
Technology and the Desktop Editions of the Electronic Procurement
Applications (used for the Development Effort) under Section 14.1.1 shall
be limited to the commercial release or version of such C1 Technology and
Desktop Editions of the Electronic Procurement Applications (used for the
Development Effort) that is commercially available as of the effective date
of termination of the Joint Development Agreement thereof and such right
and license to the Source Code shall be limited to use only for support and
maintenance, if any. As of the effective date of termination of the Joint
Development Agreement, C1 shall be relieved of its obligations to deliver
any further Source Code for Updates and Updates of the C1 Technology and
the Desktop Editions of the Electronic Procurement Applications which may
become commercially available after the effective date of termination of
the Joint Development Agreement.
14.1.3 SAP.
SAP hereby grants C1 a non-exclusive, worldwide, limited to the term
of this Agreement, non transferable, internal right [*] to use, display,
perform and modify (in accordance with the provisions of the Joint
Development Agreement) the SAP Applications and the Professional Editions
of the Electronic Procurement Applications that may be provided to C1, if
any, for purposes of the Development Effort. The exact list of those SAP
Applications and the Professional Editions of the Electronic Procurement
Applications licensed to C1, for purposes of the Development Effort,
pursuant to this Section, if any, shall be set forth in the Joint
Development Agreement. The license granted hereunder is in object
and source code form for use only in connection with the Developmen Effort.
14.1.4 SAP SOURCE CODE FREEZE.
Commencing on the effective date of termination of the Joint
Development Agreement, C1's right and license to the Source Code to the SAP
Applications and Professional Editions of the Electronic Procurement
Applications (used for the Development Effort) under Section 14.1.3 shall
be limited to the commercial release or version of such SAP Applications
and Professional Editions of the Electronic Procurement Applications (used
for the Development Effort) that is commercially available as of the
effective date of termination of the Joint Development Agreement thereof
and such right and license to the Source Code shall be limited to use only
for
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support and maintenance. As of the effective date of termination of
the Joint Development Agreement, SAP shall be relieved of its
obligations to deliver any further Source Code for Updates and Updates
of the SAP Applications and the Professional Editions of the
Electronic Procurement Applications which may become commercially
available after the effective date of termination of the Joint
Development Agreement.
14.2 ON-GOING LICENSING.
The Parties agree that all interfaces related to the Joint Offering
shall be licensed by the developing Party to the other Party in accordance
with the terms and conditions of Section 14.1 on an on-going basis.
14.3 DEVELOPMENT PARTNERS.
The Parties may agree, on a case by case basis, to grant to some of
their development partners, upon the mutual agreement of the Parties and
provided the execution by such development partners of a customary
development license and confidentiality agreement, the right to use the
technical components in order to allow such development partners to
participate in the Development Effort. [*]
14.4 CROSS LICENSING AT TERMINATION.
In the event of the expiration or termination of this Agreement, the
cross licenses set forth in Section 14.1 and in Section 14.2 shall continue
until termination of the OEM rights set forth in Section 15 below.
15 LICENSING RIGHTS.
15.1 LICENSE FROM C1 TO SAP
15.1.1 C1 TECHNOLOGY.
C1 hereby grants to SAP and its Affiliates, for the term of this
Agreement and the three (3) year period following the termination of this
Agreement, under all of C1's Intellectual Property Rights in C1 Technology
(including Updates and Upgrades), a limited, nonexclusive, worldwide "OEM"
(object code) license to make or have made copies, use, license, offer to
license, import, distribute, reproduce, export and otherwise transfer the
C1 Technology but only when incorporated in the Joint Offering with all of
the SAP Applications or in the Desktop Editions of the Electronic
Procurement Applications. SAP and its Affiliates shall only license the C1
Technology with all the technical components listed as part of the Joint
Offering.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
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In addition, C1 hereby grants to SAP, its Affiliates [*], during the
term of this Agreement and the three (3) year period following the
termination of this Agreement, a limited, nonexclusive, worldwide "OEM"
(object code only) license to make or have made copies, use, license, offer
to license, import, distribute, reproduce, export and otherwise transfer
the Desktop Editions of the Electronic Procurement Applications (and any
subsequent versions released during the term of this Agreement and the
three (3) year period following the termination of this Agreement) outside
the scope of the Joint Offering to any of its customers. SAP, its
Affiliates, [*] shall have no right under C1's Intellectual Property Rights
apart from the foregoing. Such license is non-transferable except as
otherwise provided in this Agreement. Such license shall expire three (3)
years from the effective date of termination of this Agreement.
SAP may terminate the license grant herein by providing C1 with thirty
(30) days notice. Upon the effective date of termination, SAP, its
Affiliates [*] shall not be subject to the exclusivity commitments in
Section 7.1.
[*]
15.2 LICENSE FROM SAP TO C1.
15.2.1 GENERAL.
SAP AG and/or SAPMarkets, as the case may be, hereby grants to C1
and its Subsidiaries and Affiliates, during the term of this Agreement
and the three (3) year
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period following the termination of this Agreement, under all of SAP's
Intellectual Property Rights in SAP Applications (including Updates and
Upgrades), a nonexclusive, worldwide "OEM" (object code only) license to
make or have made copies, use, license, offer to license, import,
distribute (directly or by sublicense, through the C1 distribution
channels), reproduce, export and otherwise transfer the SAP Applications
but only when incorporated in the Joint Offering with all of C1 Technology
or in the Professional Editions of the Electronic Procurement Applications.
C1 and its Affiliates shall only license the SAP Applications with all the
technical components listed as part of the Joint Offering.
In addition, SAP hereby grants C1 a nonexclusive, worldwide "OEM"
(object code) license to make or have made copies, use, license, offer to
license, import, distribute, reproduce, export and otherwise transfer the
Professional Editions (Requisition and Professional Users) of the
Electronic Procurement Applications (and any subsequent versions released
during the term of this Agreement and the three (3) year period following
the termination of this Agreement) outside the scope of the Joint Offering
to any of its customers. C1 shall have no right under SAP's Intellectual
Property Rights apart from the foregoing. Such licenses are
non-transferable except as otherwise provided in this Agreement. Such
licenses shall expire three (3) years from the effective date of
termination of this Agreement.
C1 may terminate the license grant herein by providing SAP with thirty
(30) days notice. Upon the effective date of termination, C1 and it
Affiliates shall not be subject to the exclusivity commitments in Section
7.2.
15.3 NO RESTRICTIONS.
C1 reserves all rights not expressly granted in this Agreement in and to
the C1 Technology. SAP reserves all rights not expressly granted in this
Agreement in and to the SAP Applications.
15.4 GENERAL TERMS.
15.4.1 GENERAL RESTRICTIONS ON DISTRIBUTION.
The Parties agree to comply with, and shall require each of their
distributors to comply with, all applicable laws, rules and regulations to
preclude the acquisition of unlimited rights to technical data, software
and documentation provided with the Joint Offering to a governmental
agency, and ensure the inclusion of the appropriate "Restricted Rights" or
"Limited Rights" notices required by U.S. Government agencies.
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15.4.2 DISTRIBUTOR LICENSE AGREEMENT.
The Parties shall procure from each of their distributors (even
if a Subsidiary), an executed copy of a distribution license agreement
sufficient to ensure that such distributors are required to comply
with the relevant terms of this Agreement.
15.4.3 CUSTOMER LICENSE AGREEMENTS.
The Parties and their distributors shall distribute the Joint
Offering to customers only under the terms of, and shall ensure that
the Joint Offering is subject to, end user license agreements with
terms at least as restrictive as those set forth in the applicable
customer license agreement to be developed by the Parties within
thirty (30) days from the Effective Date.
15.5 ENFORCEMENT OF DISTRIBUTORS AGREEMENTS.
The Parties shall use their best efforts to enforce each distributor
license agreement and customer agreement, whichever may be relevant, with
at least the same degree of diligence used in enforcing similar agreements
governing others, which in any event shall be sufficient to adequately
enforce such agreements. Each Party shall use commercially reasonable
efforts to protect the Intellectual Property Rights of the other Party,
notify such other Party of any breach of a material obligation under a
distributor license agreement or a customer license agreement affecting the
Joint Offering, and cooperate in any legal action to prevent or stop
unauthorized use, reproduction or distribution of the Joint Offering.
15.6 REVERSE ENGINEERING AND MODIFICATION PROHIBITION.
C1 agrees not to reverse engineer, decompile, or disassemble the SAP
Applications or the Professional Editions of the Electronic Procurement
Applications. C1 agrees not to create derivative works based on the SAP
Applications or the Professional Editions of the Electronic Procurement
Applications at any time without written consent from SAP, EXCEPT that C1
may bundle or integrate the SAP Applications and the MarketBuyer
Professional Edition with the C1 Technology as part of the Joint Offering.
C1 shall obtain written commitments from customers not to: (i) reverse
engineer, decompile, disassemble the SAP Applications or the Professional
Editions of the Electronic Procurement Applications; (ii) create derivative
works based on the SAP Applications or the Professional Editions of the
Electronic Procurement Applications; or (iii) modify the SAP Applications
or the Professional Editions of the Electronic Procurement Applications
without written permission from SAP, prior to the release of the SAP
Applications and the Professional Editions of the Electronic Procurement
Applications to such customers, to the extent permitted by applicable laws.
SAP agrees not to reverse engineer, decompile, or disassemble the C1
Technology or the Desktop Editions of the Electronic Procurement
Applications. SAP agrees not to create derivative works based on the C1
Technology or the Desktop Editions of the Electronic Procurement
Applications at any time without written consent from C1, EXCEPT that SAP
may
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bundle or integrate the C1 Technology or the MarketBuyer Desktop Edition
with the SAP Applications as part of the Joint Offering. SAP shall obtain
written commitments from customers not to: (i) reverse engineer, decompile,
disassemble the C1 Technology or the Desktop Editions of the Electronic
Procurement Applications; (ii) create derivative works based on the C1
Technology or the Desktop Editions of the Electronic Procurement
Applications; or (iii) modify the C1 Technology or the Desktop Editions of
the Electronic Procurement Applications without written permission from C1,
prior to the release of the C1 Technology or the Desktop Editions of the
Electronic Procurement Applications to such customers, to the extent
permitted by applicable law.
16 EXISTING PARTNERS.
[*]
The Parties will use their reasonable best efforts to enter into
arrangements with each of C1 and SAP's existing partners [*] (ii) for such GTW
regional and vertical marketplace partners to obtain preferred status as a
provider of business services and/or hosting services related to the Joint
Offering within their respective territories or vertical industries (subject to
resolution of any overlaps), and (iii) to create a joint go-to-market
distribution strategy for the sale of the EnterpriseBuyer Desktop Edition and
the EnterpriseBuyer Professional Edition. The Parties agree to negotiate in good
faith, as part of the initial launch of the Joint Offering, with the GTW such
existing partners to license the MarketSet solution Joint Offering to each
partner. In connection with the licensing of the Joint Offering by C1 or SAP to
each of the partners, or in the alternative in connection with the establishment
of other mutually beneficial distribution arrangements with each of the
partners, the parties agree and to negotiate in good faith with each such
partner to establish agree upon appropriate distribution strategies/referral
relationships that leverage the relative strengths of each of the parties, all
with the goal of supporting each such existing GTW marketplaces partner's
horizontal or vertical marketplace marketplaces and driving mutual business
opportunities (including, without limitation, driving buyer and supplier
participation to such partner's GTW marketplaces).
17 INTERFACES LICENSING.
17.1 C1 LICENSE OF INTERFACES TO SAP.
C1 hereby grants to SAP [*] developed by C1 for the Joint Offering and
owned by C1, subject only to the payment by SAP of the amounts provided in
this Agreement. Such license shall be unrestricted as to field of use,
except for
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those limitations set forth in this Agreement. C1 also hereby grants to SAP
a non-exclusive, [*] fully sublicensable right, under any patents issued
anywhere in the world for which C1 is or becomes the beneficial or legal
owner related to Interfaces which were reduced to practice in the course of
the Development Effort, to make, have made, practice, have practiced, use,
lease, sell and otherwise transfer any and all inventions, methods or
processes which are the subject of any claim of any such patent for such
Interface.
17.2 SAP LICENSE OF INTERFACES TO C1.
SAP hereby grants to C1 [*] developed by SAP for the Joint Offering
and owned by SAP, subject only to the payment by C1 of the amounts provided
in this Agreement. Such license shall be unrestricted as to field of use,
except for those limitations set forth in this Agreement. SAP also hereby
grants to C1 a non-exclusive, [*] fully sublicensable right, under any
patents issued anywhere in the world for which SAP is or becomes the
beneficial or legal owner related to those interfaces which were reduced to
practice in the course of the Development Effort, to make, have made,
practice, have practiced, use, lease, sell and otherwise transfer any and
all inventions, methods or processes which are the subject of any claim of
any such patent for such interface.
18 INTELLECTUAL PROPERTY RIGHTS.
18.1 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS IN AND TO THE JOINT
OFFERING.
Neither SAP nor C1 shall acquire any Intellectual Property Rights into
the Joint Offering as a whole. Each of the Parties hereby covenants that it
shall not register, or attempt to, any Intellectual Property Rights in and
to the Joint Offering as a whole under any jurisdiction in the world,
except as may be agreed upon by the Parties in a written agreement.
18.2 PREEXISTING SOFTWARE.
18.2.1 C1 PROPRIETARY RIGHTS TO ITS PREEXISTING SOFTWARE.
Title to and ownership in and to any of the preexisting C1
Technology and the Desktop Editions of the Electronic Procurement
Applications and associated software whether in machine-readable or
printed form, and including, without limitation, the C1 Technology and
the Desktop Editions of the Electronic Procurement Applications
provided by C1 hereunder, and any derivative works thereof,
compilations, or collective works thereof and all related technical
know-how and all Intellectual Property Rights therein, are and shall
remain the exclusive property of C1 and its suppliers. SAP shall not
take any action to jeopardize, limit or interfere in any manner with
C1's ownership of and rights with respect to the preexisting C1
Technology, the Desktop Editions of the Electronic Procurement
Applications, and the associated software. SAP shall have only those
limited rights to use the preexisting C1 Technology, the Desktop
Editions of the Electronic Procurement
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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Applications, and the associated software expressly granted to it pursuant
to this Agreement.
18.2.2 SAP PROPRIETARY RIGHTS TO ITS PREEXISTING SOFTWARE.
Title to and ownership in and to any of the preexisting SAP
Applications, the Professional Editions of the Electronic Procurement
Applications, and the associated software whether in machine-readable or
printed form, and including, without limitation, the SAP Applications and
the Professional Editions of the Electronic Procurement Applications
provided by SAP AG and/or SAPMarkets hereunder and any derivative works
thereof, compilations, or collective works thereof and all related
technical know-how and all Intellectual Property Rights therein, are and
shall remain the exclusive property of SAP AG and/or SAPMarkets and its
suppliers. C1 shall not take any action to jeopardize, limit or interfere
in any manner with SAP's ownership of and rights with respect to the
preexisting SAP Applications, the Professional Editions of the Electronic
Procurement Applications, and the associated software. C1 shall have only
those limited rights to use the preexisting SAP Applications, the
Professional Editions of the Electronic Procurement Applications, and the
associated software expressly granted to it pursuant to this Agreement.
18.3 NETMARKET MAKER SOLUTION
Title to and ownership in and to the NetMarket Maker Solution and any
related developed software and any associated software whether in
machine-readable or printed form provided by C1 hereunder, and any derivative
works thereof, compilations, or collective works thereof and all related
technical know-how and all Intellectual Property Rights therein, are and shall
remain the exclusive property of C1 and its suppliers. SAP shall not take any
action to jeopardize, limit or interfere in any manner with C1's ownership of
and rights with respect to the NetMarket Maker Solution. SAP shall have only
those limited rights to use the NetMarket Maker Solution and associated software
expressly granted to it pursuant to this Agreement.
18.4 OWNERSHIP OF DEVELOPED SOFTWARE
18.4.1 PROFESSIONAL EDITIONS OF THE ELECTRONIC PROCUREMENT
APPLICATIONS.
SAP shall own all Intellectual Property Rights in and to the
Professional Editions of the Electronic Procurement Applications. C1 shall
assign and transfer to SAP all Intellectual Property Rights it may have in
the Professional Editions of the Electronic Procurement Applications
provided that C1 has received the licensing rights, granted by SAP as set
forth in Section 15.2, in and to the Professional Editions of the
Electronic Procurement Applications (and any subsequent versions released
during the three (3) year period from the termination of this Agreement).
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18.4.2 DESKTOP EDITIONS OF THE ELECTRONIC PROCUREMENT APPLICATIONS.
C1 shall own all Intellectual Property Rights in and to the
Desktop Editions of the Electronic Procurement Applications. SAP shall
assign and transfer to C1 all Intellectual Property Rights it may have
in the Desktop Editions of the Electronic Procurement Applications
provided that SAP has received the licensing rights, granted by C1 as
set forth in Section 15.1, in and to the Desktop Editions of the
Electronic Procurement Applications (and any subsequent versions
released during the three (3) year period from the termination of this
Agreement).
18.4.3 AUCTION SOFTWARE.
C1 shall own all Intellectual Property Rights in and to the
Auction Technology and SAP shall assign and transfer to C1 all
Intellectual Property Rights it may have in the Auction Technology
provided that that SAP has received the licensing rights, granted by
C1 as set forth in Section 15.1, in and to the Auction Technology (and
any subsequent versions released during the three (3) year period from
the termination of this Agreement).
18.4.4 CBL EXTENSIONS.
Ownership of Intellectual Property Rights in and to the CBL
extensions that may be jointly developed shall be in accordance with
the Joint Development Agreement.
18.4.5 USER INTERFACE.
The user interface for the Joint Offering shall be jointly
developed by the Parties utilizing SAP's workplace technology and C1's
Portal Builder technology, provided the Parties reach mutual agreement
on joint branding.
The jointly developed user interface shall be jointly owned by
the Parties provided, however, that the term "user interface," for
purposes of this sentence, shall not include (i) any proprietary
elements of the SAP Workplace technology which shall be licensed to C1
in accordance with the terms set forth in Section 15 of this
Agreement, and (ii) any proprietary elements of the C1 Portal builder
technology which shall be licensed to SAP in accordance with the terms
set forth in Section 15 of this Agreement.
18.5 OWNERSHIP OF OTHER JOINTLY DEVELOPED SOFTWARE OTHER THAN AS PER SECTION
18.3
The Parties agree that all matters related to the ownership of new jointly
developed technology and/or software other than the technology and/or software
described in Section 18.3 shall be decided by the Development Committee.
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The Parties agree that, upon attribution of ownership of a new jointly
developed software to a Party, the other Party shall be granted a de jure
licensing right in and to such new jointly developed software in accordance
with the terms and conditions of this Agreement.
18.6 RESIDUAL KNOWLEDGE.
Except as provided in this Section 18, neither Party transfers,
assigns or grants to the other Party any ownership or exclusive license to
any (i) data processing ideas, (ii) programming techniques, (iii)
e-commerce consulting methodologies, and (iv) systems integration
techniques. Both Parties agree that the other Party shall have the right to
continue to use any residual knowledge for its own benefit in developing
its own business provided that the confidential nature of such residual
knowledge is maintained and provided that both Parties comply with their
obligations set forth in Section 7.
18.7 DEVELOPED SOFTWARE MATERIALS.
Upon attribution of the related Intellectual Property Rights by the
Development Committee, the Parties shall place an appropriate electronic
plaque, emblem and/or decal thereon, including evidence of the designated
Party's ownership of related materials while in the possession of the other
Party.
18.8 THIRD-PARTY SOFTWARE.
Rights to third party software shall be governed by the license
agreements with third party licensors.
18.9 PROPRIETARY NOTICES.
18.9.1 NO ALTERATION OF NOTICES.
The Parties and their employees and agents shall not remove or
alter any trademark, trade name, copyright, or other proprietary
notices, legends, symbols, or labels appearing on or in copies of the
C1 Technology and/or the SAP Applications, the Electronic Procurement
Applications and/or the NetMarket Maker Solution as delivered by one
Party to the other and shall use the same notices, legends, symbols,
or labels in and on copies of the C1 Technology and/or the SAP
Applications and associated software as are contained in and on such
of the C1 Technology and/or the SAP Applications and associated
software.
18.9.2 NOTICE.
Each portion of the of the C1 Technology and/or the SAP
Applications and associated software reproduced by SAP and/or C1 shall
include the intellectual property notice or notices appearing in or on
the corresponding portion of such materials as delivered by C1 and/or
SAP hereunder.
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The Parties shall ensure that all copies of the of the C1
Technology and/or the SAP Applications as used or licensed pursuant to
this Agreement conspicuously display the following notice: Copyright
(2000 (or other appropriate year(s)), [C1/SAP]. All Rights Reserved.
19 WARRANTIES.
19.1 WARRANTIES.
19.1.1 CONFORMITY TO SPECIFICATIONS.
For a period [*] each Party warrants to the other Parties that
its technical components included within the Joint Offering and the
Electronic Procurement Applications shall substantially comply with
the technical specifications set forth in the applicable product
documentation agreed upon by the Development Committee. For a period
of [*] from delivery to the applicable customer, C1 warrants to SAP
that its technical components included within the NetMarket Maker
Solution shall substantially comply with the technical specifications
set forth in the applicable product documentation. If a Party
discovers any defects or non conformities in any such components, the
discovering Party shall notify, in writing within thirty (30) business
days from discovery, the Party that owns and delivers the defective
technical component.
19.1.2 REMEDY.
Should any technical component included within the Joint
Offering, the Electronic Procurement Applications or the NetMarket
Maker Solution fail to meet the warranty standard set out in Section
19.1.1 above, the owning Party's obligation shall be, at its option,
to bring the performance of the technical component into substantial
compliance with the technical specifications or to replace the
defective technical component. In the event such Party fails to do so
within a reasonable period of time, not to exceed ninety (90) days
after receipt of the written notice of such non-compliance, the
notifying Party may terminate this agreement pursuant to Section 23.3
hereof.
19.1.3 COSTS.
[*]
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
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19.1.4 YEAR 2000.
C1 represents and warrants that the C1 Technology, the Desktop
Editions of the Electronic Procurement Applications, and the NetMarket
Maker Solution and SAP represents and warrants that the SAP
Applications and the Professional Editions of the Electronic
Procurement Applications are, and in future releases will be, Year
2000 Compliant. As used in this Agreement, "Year 2000 Compliant" shall
mean the ability of the Party's respective technology to provide the
following functions:
(a) consistently handle date information, including but not
limited to accepting date input, providing date output,
and performing calculations on dates or portions of
dates;
(b) respond to two-digit year-date input in a way that
resolves the ambiguity as to century in a disclosed,
defined, and predetermined manner; and
(c) store and provide output of date information in ways
that are unambiguous as to century.
19.2 DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE FOREGOING, NEITHER C1 NOR SAP MAKES ANY OTHER
WARRANTIES TO THE OTHER WITH RESPECT TO THE OPERATION OR PERFORMANCE OF ANY
OF THE SOFTWARE DEVELOPED OR LICENSED BY EITHER PARTY TO THE OTHER PURSUANT
TO THIS AGREEMENT, AND C1 AND SAP EACH HEREBY DISCLAIMS ALL SUCH OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
20 REPRESENTATIONS & COVENANTS.
20.1 C1.
C1 represents and covenants to SAP that (i) it has full power and
authority to enter into and perform this Agreement; (ii) it owns or has
obtained the necessary rights, title and interest [*] including any third
party technology embedded therein; (iii) there are no pending material
patent, copyright, trademark or other intellectual property infringement
claims against any Intellectual Property Rights of C1 with respect to [*]
and (iv) that its performance of the obligations under this Agreement does
not and shall not violate any applicable law, rule, or regulation; any
contracts with third parties; or any third party rights in any patent,
trademark, copyright, trade secret, or any other proprietary right in the
Intellectual Property Territories.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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20.2 SAP.
SAP represents and covenants to C1 that (i) it has full power and
authority to enter into and perform this Agreement; (ii) it owns or has
obtained the necessary rights, title and [*]; (iii) there are no pending
material patent, copyright, trademark or other intellectual property
infringement claims against any Intellectual Property Rights of SAP with
respect to the [*] and (iv) that its performance of the obligations under
this Agreement does not and shall not violate any applicable law, rule, or
regulation; any contracts with third parties; or any third party rights in
any patent, trademark, copyright, trade secret, or any other proprietary
right in the Intellectual Property Territories.
21 INDEMNIFICATION.
21.1 INTELLECTUAL PROPERTY INDEMNITY FROM C1.
C1 agrees to defend and indemnify SAP against any and all liability,
loss, damage, cost and expense (including cost of defense and reasonable
attorney's fees) which SAP may hereafter suffer itself or pay out to
another by reason of any claim, or actions arising out of such claim, filed
and originating in the Intellectual Property Territories [*].
C1's obligations under this Section 21.1 are subject to the following
conditions and obligations of SAP: (i) SAP agrees to notify promptly C1
upon knowledge of any claim, suit, action, or proceeding for which it may
be entitled to indemnification under this Agreement; (ii) SAP shall permit
C1 to have the sole right to control the defense of any such claim; (iii)
SAP agrees to provide reasonable assistance to C1 at C1's expense, in the
defense of same; and (iv) SAP will not enter into any settlement agreement
or otherwise settle any such claim without C1's express prior consent or
request. SAP may, at its own expense, participate in the defense of any
such claim or action.
In addition to its obligations set forth in this Section 21.1, C1
agrees that in the event SAP is enjoined from using [*] C1 shall, at its
expense, (i) replace or modify the infringing portion [*] so it becomes
non-infringing, yet functionally equivalent or (ii) procure for SAP the
right to continue using the [*]
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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[*]
21.2 INTELLECTUAL PROPERTY INDEMNITY FROM SAP.
SAP agrees to defend and indemnify C1 against any and all liability,
loss, damage, cost and expense (including cost of defense and reasonable
attorney's fees) which C1 may hereafter suffer itself or pay out to another
by reason of any claim, or actions arising out of such claim, filed and
originating in the Intellectual Property Territories [*].
SAP's obligations under this Section 21.2 are subject to the following
conditions and obligations of C1: (i) C1 agrees to notify promptly SAP upon
knowledge of any claim, suit, action, or proceeding for which it may be
entitled to indemnification under this Agreement; (ii) C1 shall permit SAP
to have the sole right to control the defense of any such claim; (iii) C1
agrees to provide reasonable assistance to SAP at SAP's expense, in the
defense of same; and (iv) C1 will not enter into any settlement agreement
or otherwise settle any such claim without SAP's express prior consent or
request. C1 may, at its own expense, participate in the defense of any such
claim or action.
In addition to its obligations set forth in this Section 21.2, SAP
agrees that in the event C1 is enjoined from using [*] the Joint Offering
or licensed to C1 pursuant to this Agreement, SAP shall, at its expense,
(i) replace or modify the infringing portion [*] so it becomes
non-infringing, yet functionally equivalent or (ii) procure for C1 the
right to continue using the [*].
21.3 CUSTOMER INDEMNITY.
21.3.1 FROM SAP.
SAP agrees to indemnify C1 against any and all liability,
loss, damage [*] cost and expense (including cost of defense and
reasonable attorney's fees), as awarded pursuant to a final,
non-appealable judgment obtained from a court of competent
jurisdiction, or pursuant to mutual agreement of the Parties
which C1 may hereafter suffer itself [*] for which SAP is
responsible provided that (i) such warranties do not exceed the
scope of the warranties set forth in Section 19.1, AND (ii) such
incurred
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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liability can not be limited contractually under mandatory law, AND (iii)
C1 used its best efforts to mitigate such liability.
SAP's obligations under this Section 21.3 are subject to the
following conditions and obligations of C1: (i) C1 agrees to notify
promptly SAP upon knowledge of any claim, suit, action, or proceeding
for which it may be entitled to indemnification under this Agreement;
(ii) C1 shall permit SAP to have the sole right to control the defense
of any such claim; (iii) C1 agrees to provide reasonable assistance to
SAP at SAP's expense, in the defense of same; (iv) C1 provides
sufficient evidence of the impossibility of limiting the incurred
liability under applicable laws, and (v) C1 will not enter into any
settlement agreement or otherwise settle any such claim without SAP's
express prior consent or request. C1 may, at its own expense,
participate in the defense of any such claim or action.
[*]
C1's obligations under this Section 21.3 are subject to the
following conditions and obligations of SAP: (i) SAP agrees to notify
promptly C1 upon knowledge of any claim, suit, action, or proceeding
for which it may be entitled to indemnification under this Agreement;
(ii) SAP shall permit C1 to have the sole right to control the defense
of any such claim; (iii) SAP agrees to provide reasonable assistance
to SAP at SAP's expense, in the defense of same; (iv) SAP provides
sufficient evidence of the impossibility of limiting the incurred
liability under applicable laws, and (v) SAP will not enter into any
settlement agreement or otherwise settle any such claim without C1's
express prior consent or request. SAP may, at its own expense,
participate in the defense of any such claim or action.
21.4 GENERAL INDEMNITY.
C1 agrees to defend and indemnify SAP and its directors, officers and
employees against all liability, loss, damage, costs and expenses
(including cost of defense and reasonable attorneys' fees) which any or all
of them may hereafter suffer themselves or pay out to another by reason of
any claim, action, or right of action, at law or in equity because of
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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any injury, including death, to persons or damage to tangible property
(excluding data or any similar concept) which arises out of or is in
connection with the performance of this Agreement to the extent caused by
the negligence or willful misconduct of C1, its employees or agents.
SAP agrees to defend and indemnify C1 and its directors, officers and
employees against all liability, loss, damage, costs and expenses
(including cost of defense and reasonable attorneys' fees) which any or all
of them may hereafter suffer themselves or pay out to another by reason of
any claim, action, or right of action, at law or in equity because of any
injury, including death, to persons or damage to tangible property
(excluding data or any similar concept) which arises out of or is in
connection with the performance of this Agreement to the extent caused by
the negligence or willful misconduct of SAP, its employees, or agents.
[*]
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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[*]
22 LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES.
22.1 LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY'S TOTAL LIABILITY OF
ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF
THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED IN
CONTRACT, TORT NEGLIGENCE OR OTHERWISE, EXCEED [*]
22.2 EXCLUSION OF DAMAGES.
NEITHER PARTY HERETO SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE
TO THE OTHER FOR INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, SPECIAL
OR EXEMPLARY DAMAGES, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH
DAMAGES OCCURRING, EXCEPT FOR DAMAGES RESULTING FROM BREACH OF SECTION
23 HEREOF.
22.3 NETMARKET MAKER SOLUTION INDEMNIFICATION.
Notwithstanding anything to the contrary, C1's limited
indemnification obligations (as set forth in Section 21) related to the
NetMarket Maker Solution [*]
22.4 EXCEPTIONS.
THE EXCLUSIONS OF DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH
IN SECTIONS 22.1 AND 22.2 SHALL NOT OPERATE TO LIMIT
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
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(a) AMOUNTS ACTUALLY DUE AND PAYABLE PURSUANT TO THE EXPRESS TERMS OF THIS
AGREEMENT, OR (b) AMOUNTS DUE AND PAYABLE PURSUANT TO SECTIONS 21.1, 21.2,
21.3, 21.4 (FOR PERSONAL INJURY OR DEATH ONLY), 21.5 AND 23 OF THIS
AGREEMENT.
23 CONFIDENTIALITY.
23.1 CONFIDENTIAL INFORMATION.
As used herein, "Confidential Information" shall mean, without
limitation, any non-public communications, written or oral, involving a
Party's non-public business information, technical information or data,
however embodied, marketing plans, financial information and strategic
plans or any other information identified in writing as confidential or
proprietary.
23.2 CONFIDENTIALITY OBLIGATIONS.
The Parties hereby covenant and agree that, except as required by law
and as provided in this Section, they shall not disclose the terms and
conditions of this Agreement (including, but not limited to, the names of
the Parties and the payment terms) to any other person or entity (other
than their counsel and auditors) without obtaining the prior written
consent of the other Party, except to the extent necessary to effect the
transactions and actions contemplated herein.
Each Party may furnish to the other Party in connection with this
Agreement certain Confidential Information. The Party disclosing such
Confidential Information is referred to as the "Discloser", and the Party
receiving such Confidential Information is referred to as the "Recipient."
Each Party agrees that it shall keep in confidence and prevent the
acquisition, disclosure, use or misappropriation by any person or persons
of Confidential Information which is received from the other under this
Agreement, provided, however, that neither Party shall be liable for
disclosure of any such information if the same is disclosed with the prior
written approval of the other Party. Each Party agrees that if it breaches
the provisions of this section, the Discloser of the Confidential
Information may suffer irreparable injury and shall be entitled to seek a
temporary and permanent injunction, in addition to the other remedies for
breach of the Agreement.
Recipient shall use the same care and discretion to avoid disclosure,
publication or dissemination of Confidential Information as it uses with
its own similar confidential information that it does not wish to disclose,
publish or disseminate provided that Recipient shall use at least
reasonable care. The Confidential Information is not to be disclosed to any
persons other than the employees of the Recipient who have a need to know.
Except as expressly provided by this Agreement, Recipient shall not use
Confidential Information in any manner, nor use it for the benefit of
anyone but Discloser.
The obligations of Recipient with respect to any particular portion of
Confidential Information shall terminate or shall not attach, as the case
may be, when any of the following occurs: (i) it was in the public domain
at the time of Discloser's communication thereof to
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Recipient; (ii) it entered the public domain through no fault of
Recipient subsequent to the time of Discloser's communication thereof
to Recipient; (iii) it was in Recipient's possession free of any
obligation of confidence at the time of Discloser's communication
thereof to Recipient; (iv) it was independently developed by
Recipient; or (v) its disclosure is required pursuant to applicable
law (including securities laws) or by a court or government order and
Discloser has been given reasonable notice of such order and a
reasonable opportunity to seek a protective order.
All such Confidential Information shall remain the exclusive
property of Discloser. The confidentiality obligations shall survive
any termination of this Agreement and shall continue for so long as the
Confidential Information is the property of Discloser or for as long as
otherwise permitted by law.
24 AUDIT RIGHTS.
C1 and SAP agree to allow mutually acceptable independent CPA auditors,
which auditors shall not be compensated on a contingency basis and shall be
bound to keep all information confidential except as necessary to disclose
discrepancies to the other Party, to audit and analyze relevant accounting
records of each other to ensure compliance with all terms of this Agreement. Any
such audit shall be permitted within thirty (30) days of one Party's receipt
from the other of a written request to audit, during normal business hours, at a
time mutually agreed upon. The cost of such an audit shall be borne by the
requesting Party unless a material discrepancy is found, in which case the cost
of the audit shall be borne by the other Party. [*] Audits shall occur no more
frequently than once per calendar year and shall not interfere unreasonably with
the audited Party's business activities and shall be conducted in the audited
Party's facilities during normal business hours on reasonable notice. An audit
may cover any period; provided that: (i) the period has not been previously
audited; and (ii) the period under audit is within [*] immediately preceding the
commencement of the audit. A Party shall promptly reimburse the other for the
amount of any discrepancy arising out of such audit which indicates that such
Party is owed amounts hereunder as well as the costs of the audit, if
applicable, as provided above. Any dispute pursuant to this provision is subject
to the provisions of Section 30.12 hereof.
For a period of at least [*] following the date of termination or
expiration of this Agreement, C1 and SAP shall keep available for inspection by
SAP or C1 (as applicable) and its representatives for any reasonable purpose
all records, files, documents and correspondence relating to the Joint Offering.
25 TERM & TERMINATION.
25.1 TERM.
This Agreement shall remain in full force and effect [*] following
the Effective Date unless earlier terminated in accordance with this
Section. This Agreement may be renewed upon the mutual agreement of the
Parties.
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[*]
25.3 TERMINATION FOR MATERIAL BREACH.
Either Party may terminate this Agreement by giving thirty (30) days'
prior written notice to the other Party upon the occurrence of a material
breach by such other Party of the terms of this Agreement unless such
breach is cured within such thirty (30) day period.
25.4 TERMINATION AS A RESULT OF BANKRUPTCY.
This Agreement may be terminated by either Party effective immediately
and without any requirement of notice, in the event that (i) the other
Party files a petition, in bankruptcy, seeking any reorganization,
arrangement, composition, or similar relief under any law regarding
insolvency or relief for debtors, or makes an assignment for the benefit of
creditors; (ii) a receiver, trustee, or similar officer is appointed for
the business or property of such Party; (iii) any involuntary petition or
proceeding, under bankruptcy or insolvency laws, is instituted against such
Party and not stayed, enjoined, or discharged within sixty (60) days; or
(iv) the other Party adopts a resolution for discontinuance of its business
or for dissolution.
25.5 TERMINATION FOR UNRESOLVED DISPUTES.
Either Party may terminate this Agreement upon a ninety (90) day prior
written notice to the other Party if a dispute brought through the
Executive Committee, Development Committee, or Sales and Marketing
Committee remains unresolved after completion of the dispute resolution
procedures identified in Section 11.6.
25.6 TERMINATION FOR A CHANGE OF CONTROL.
SAP may terminate this Agreement within three months of the occurrence
of any of the following transactions by C1 with a Competitor of SAP: (i) a
merger, consolidation or other business combination or transaction to which
C1 is a party if the stockholders of C1 immediately prior to the effective
date of such merger, consolidation or other business combination or
transaction, as a result of such share ownership, have beneficial ownership
of voting securities representing less than 50% of the Total Current Voting
Power of the surviving entity following such merger, consolidation or other
business combination or transaction; (ii) an acquisition by any person,
entity or 13D Group of direct or indirect beneficial ownership of voting
stock of C1 representing 50% or more of the Total Current Voting Power of
C1; (iii) an acquisition of direct or indirect beneficial ownership of
voting stock of C1 representing 25% or more of the Total Current Voting
Power of C1; or (iv) a sale of all or substantially all of the assets of
C1. If C1 enters into one the transactions described in (i), (ii), (iii) or
(iv) with a Competitor of SAP and SAP elects to terminate the Agreement
pursuant to this Section, all the licensing rights provided by SAP to C1
and by C1 to SAP
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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pursuant to this Agreement shall immediately terminate upon the receipt of
notice by C1 or its successor.
C1 may terminate this Agreement within three months of the occurrence
of any of the following transactions by SAP with a Competitor of C1: (i) a
merger, consolidation or other business combination or transaction to which
SAPMarkets is a party if the stockholders of SAPMarkets immediately prior
to the effective date of such merger, consolidation or other business
combination or transaction, as a result of such share ownership, have
beneficial ownership of voting securities representing less than 50% of the
Total Current Voting Power of the surviving entity following such merger,
consolidation or other business combination or transaction; (ii) an
acquisition by any person, entity or 13D Group of direct or indirect
beneficial ownership of voting stock of SAPMarkets representing 50% or more
of the Total Current Voting Power of SAPMarkets; (iii) an acquisition of
direct or indirect beneficial ownership of voting stock of SAPMarkets
representing 25% or more of the Total Current Voting Power of SAPMarkets;
or (iv) a sale of all or substantially all of the assets of SAP AG or
SAPMarkets. If SAPMarkets enters into one the transactions described in
(i), (ii), (iii) or (iv) with a Competitor of C1 and C1 elects to terminate
the Agreement pursuant to this Section, all the licensing rights provided
by SAP to C1 and by C1 to SAP pursuant to this Agreement shall immediately
terminate upon the receipt of notice by C1 or its successor.
25.7 SURVIVAL.
Sections 1, 5.1, 5.2, 7.1.1, 7.2.1, 12.1, 13, 14, 15, 17, 18, 19, 21,
22, 23, 24, 25.7, 25.8, 26, 27, and 30 shall survive any termination of
this Agreement and remain in full force and effect.
25.8 LIMITATION ON RIGHT TO TERMINATE LICENSES.
Except in the event that a Party fails to pay the fees payable under
Section 13 and except as provided in Section 15.1.2, a Party shall have no
right whatsoever to terminate or reduce the other Party's license rights
set forth in Sections 15 (except as provided in Section 15.1.2), 17 and 26
on the basis of any alleged breach by a Party of any of its obligations
pursuant to this Agreement or for any other reasons (other than expiration
pursuant to the terms hereof), except to the extent permitted pursuant to a
final, non-appealable judgment obtained from a court of competent
jurisdiction (as set forth in Section 30.12) in litigation between SAP and
C1. Notwithstanding anything to the contrary set forth in this Agreement,
in the event one Party ("the injured Party") believes that the other Party
("the breaching Party") has breached any obligations under this Agreement,
other than the payment obligations, [*]. The breaching Party shall be
entitled to
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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seek injunctive relief to prevent the injured Party from terminating or
limiting such licenses in any way other than as expressly allowed in this
Section.
26 POST-TERMINATION RIGHTS.
26.1 C1 POST TERMINATION LICENSE RIGHTS.
Following any expiration or termination of this Agreement (except for
a termination pursuant to Section 25.6), SAP shall grant to C1 a
non-exclusive, limited term object code license (not to exceed three (3)
years) to resell the SAP Applications and the MarketBuyer Professional
Edition as part of the Joint Offering and the Professional Editions of the
Electronic Procurement Application outside the scope of the Joint Offering,
together with any jointly owned technology, subject to payment by C1 of any
fee structure in place at the effective date of the termination of this
Agreement. C1 shall be free to further develop and enhance the jointly
owned technology for its own account in all respects, shall be entitled to
full ownership of any C1 separately developed code based on or derived from
the jointly owned technology, including without limitation any C1
separately developed modifications and enhancements to the jointly owned
technology, shall have no duty to account to or pay SAP with respect to any
use or exploitation of the jointly owned technology, and shall not be
subject to any limitations on field of use with respect to the jointly
owned technology. Following any expiration or termination of this
Agreement, C1 shall have no rights of any kind to any software developed by
SAP which does not constitute the Joint Offering, the Professional Editions
of the Electronic Procurement Application, or jointly owned technology.
26.2 SAP POST TERMINATION LICENSE RIGHTS.
Following any expiration or termination of this Agreement (except for
a termination pursuant to Section 25.6), C1 shall grant to SAP a
non-exclusive, limited term object code license (not to exceed three (3)
years) to resell the C1 Technology and the Desktop Editions of the
Electronic Procurement Application as part of the Joint Offering and the
MarketBuyer Desktop Edition outside the scope of the Joint Offering,
together with any jointly owned technology, subject to payment by SAP of
any fee structure in place at the effective date of the termination of this
Agreement. SAP shall be free to further develop and enhance the jointly
owned technology for its own account in all respects, shall be entitled to
full ownership of any SAP separately developed code based on or derived
from the jointly owned technology, including without limitation any SAP
separately developed modifications and enhancements to the jointly owned
technology, shall have no duty to account to or pay C1 with respect to any
use or exploitation of the jointly owned technology, and shall not be
subject to any limitations on field of use with respect to the jointly
owned technology. Following any expiration or termination of this
Agreement, SAP shall have no rights of any kind to any software developed
by C1 which does not constitute the Joint Offering, the Desktop Editions of
the Electronic Procurement Application, and including, without limitation
the NetMarket Maker Solution, or jointly owned technology.
27 SOURCE CODE ESCROW.
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Within sixty (60) days after the Effective Date, the Parties shall
enter into a source code escrow agreement with an escrow agent acceptable
to both Parties. Each Party shall deposit with the agent its technical
components and shall name the other Party as beneficiary. Each Party shall
be responsible for updating the materials in the escrow. The escrow
agreement shall provide for specific "Release Events" and each Party shall
be solely responsible for all costs and expenses associated with the escrow
and the escrow agreement.
28 GLOBAL TRADING WEB (GTW).
The mySAP.com Marketplace shall become a member of the Global Trading
Web ("GTW") and SAP shall promote the GTW as the integrated global trading
network for marketplaces licensing the Joint Offering, in each case
provided that SAP and C1 reach mutual agreement on acceptable branding.
[*]
29 STATUS.
29.1 C1 STATUS.
In connection with this Agreement, C1 is an independent
contractor and as such will not have any authority to bind or commit
SAP. Nothing herein shall be deemed or construed to create a joint
venture, partnership, fiduciary or agency relationship between the
Parties for any purpose. C1 shall provide all personnel required to
perform its obligations hereunder, which personnel may in some
instances be employees of C1 and in other instances may be independent
contractors hired by C1 for the purpose of performing specific
obligations pursuant to this Agreement. In either such event, however,
C1 shall be responsible to SAP for the completion of the obligations to
be performed pursuant to this Agreement and the persons performing such
obligations as representatives of C1 shall perform such obligations
under the direct control and supervision of C1 rather than SAP. Neither
C1 nor any of the personnel utilized by C1 in performing its
obligations under this Agreement shall be entitled to any rights or
benefits made available to SAP's employees, nor shall such personnel be
entitled to any direct or indirect compensation or remuneration of any
kind from SAP as a result of the performance of this Agreement, except
for C1's obligations to pay fees to SAP as per Section 13, and C1 shall
be responsible for the compensation of such personnel.
29.2 SAP STATUS.
In connection with this Agreement, SAP is an independent
contractor and as such will not have any authority to bind or commit
C1. Nothing herein shall be deemed or construed to create a joint
venture, partnership, fiduciary or agency relationship between the
Parties for any purpose. SAP shall provide all personnel required to
perform its obligations hereunder, which personnel may in some
instances be employees of SAP and in other instances may be independent
contractors hired by SAP for the purpose of performing specific
obligations pursuant to this Agreement. In either such event, however,
SAP shall be responsible to C1 for the completion of the obligations to
be performed pursuant to this Agreement and the
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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persons performing such obligations as representatives of SAP shall perform
such obligations under the direct control and supervision of SAP rather
than C1. Neither SAP nor any of the personnel utilized by SAP in performing
its obligations under this Agreement shall be entitled to any rights or
benefits made available to C1's employees, nor shall such personnel be
entitled to any direct or indirect compensation or remuneration of any kind
from C1 as a result of the performance of this Agreement, except for SAP's
obligations to pay fees to C1 as per Section 13, and SAP shall be
responsible for the compensation of such personnel.
30 MISCELLANEOUS.
30.1 OTHER REMEDIES CUMULATIVE.
Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative and in addition to, and not in
lieu of, any other rights or remedies which the Party may possess at law or
in equity, including, without limitation, rights or remedies under
applicable patent, copyright, trade secret or proprietary rights laws,
rules or regulations.
30.2 PUBLIC COMMUNICATIONS.
No public announcements or public disclosure regarding this
relationship shall be made without the prior written agreement of the
Parties. The Parties will agree upon a joint press release upon the
conclusion of this Agreement or at such other time as the Parties may
mutually determine and agree.
30.3 SECTION 365(N) OF BANKRUPTCY CODE.
All rights and licenses granted under or pursuant to this Agreement by
C1 to SAP or by SAP to C1 are, and shall otherwise be deemed to be, for
purposes of Section 365(n) of the United States Bankruptcy Code, 11 U.S.C.
Section 101, et seq. (the "Bankruptcy Code"), licenses of rights to
"intellectual property" as defined under Section 101(56) of the Bankruptcy
Code. The Parties agree that C1 and SAP, as licensees of such rights and
licenses, shall retain and may fully exercise all of their respective
rights and elections under the Bankruptcy Code; provided such Party abides
by the terms of this Agreement.
30.4 CONSTRUCTION.
All references in this Agreement to "Articles," "Article,"
"Attachments," "Section" and "Sections" refer to the articles, sections and
exhibits of this Agreement. As used in this Agreement, neutral pronouns and
any variations thereof shall be deemed to include the feminine and
masculine and all terms used in the singular shall be deemed to include the
plural, and vice versa, as the context may require. The words "hereof,"
"herein" and "hereunder" and other words of similar import refer to this
Agreement as a whole, as the same may from time to time be amended or
supplemented, and not to any subdivision contained in this Agreement. The
word "including" when used herein is not intended to be exclusive and means
"including, without limitation." The words "sell" or "sold" when used
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herein is not intended as a sale of goods pursuant to the terms of the U.N.
Convention on Contracts for the International Sale of Goods and when used
with respect to software shall be considered a license and no transfer of
title to software shall be implied thereby.
30.5 ASSIGNMENT.
Except as set forth in this Section, neither Party shall transfer or
assign its rights or obligations under this Agreement without the prior
written consent of the other Party and any purported assignment in
violation of the foregoing shall be null and void provided that SAP AG and
SAPMarkets shall be free, without C1's consent, to allocate between them
any ownership interests they may have in and to any technology developed by
SAP pursuant to this Agreement. Either Party shall have the right to assign
this Agreement, as a whole, to any successor in interest to all or
substantially all of such Party's business or assets, whether by merger,
reorganization, asset sale or otherwise, subject to the provisions of
Section 25.6. Subject to the foregoing, this Agreement will be binding upon
and inure to the benefit of the Parties hereto, their successors and
assigns.
30.6 NO IMPLIED WAIVERS.
The delay or failure by either Party to exercise or enforce any of its
rights under this Agreement shall not constitute or be deemed a waiver of
that Party's right thereafter to enforce those rights, nor shall any single
or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right.
30.7 SEVERABILITY.
If any term or provision of this Agreement is found by a court of
competent jurisdiction to be invalid, illegal or otherwise unenforceable,
the same shall not affect the other terms or provisions hereof or the whole
of this Agreement, but such term or provision shall be deemed modified to
the extent necessary in the court's opinion to render such term or
provision enforceable, and the rights and obligations of the Parties shall
be construed and enforced accordingly, preserving to the fullest
permissible extent the intent and agreements of the Parties herein set
forth.
30.8 FORCE MAJEURE.
Except for payment of monies, neither Party shall be liable for
failure to fulfill its obligations under this Agreement or any statement of
work or amendment hereunder for delays in delivery due to causes beyond its
reasonable control, including, but not limited to, acts of God, man-made or
natural disasters, earthquakes, fire, riots, flood, strikes or acts of war.
The time for performance of any such obligation shall be extended for the
time period lost by reason of the delay.
30.9 HEADINGS.
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Headings of Sections and Sub-Sections herein are inserted for
convenience of reference only and shall not affect the construction or
interpretations of this Agreement.
30.10 NOTICE.
Any notice or other communication given pursuant to this Agreement
shall be in writing and shall be effective either when delivered personally
to the Party for whom intended, or five (5) days following deposit of the
same into the United States mail (certified mail, return receipt requested,
or first class postage prepaid), facsimile (with confirmation of delivery)
or overnight delivery services ( with confirmation of delivery), addressed
to such Party at the address set forth on the initial Page of this
Agreement. Either Party may designate a different address by notice to the
other given in accordance herewith.
30.11 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of New York, without giving effect to conflict of laws rules. The
Parties expressly agree to exclude the application of the U.N. Convention
on Contracts for the International Sale of Goods (1980) to this Agreement
and the performance of the Parties contemplated herein, to the extent that
such convention might otherwise be applicable.
30.12 EXCLUSIVE JURISDICTION.
Any dispute or claim arising out of or in relation to this Agreement,
or the interpretation, making, performance, breach or termination thereof,
shall be subject to the exclusive jurisdiction of a federal or state court
located in New York City, NY. The Parties may apply to any court of
competent jurisdiction for temporary or preliminary injunctive relief,
without breach of this Section 30.12.
30.13 ENTIRE AGREEMENT.
This Agreement sets forth the entire understanding between the Parties
hereto and supersedes all prior agreements, arrangements and
communications, whether oral or written, with respect to the subject matter
hereof.
30.14 CONFLICTING TERMS.
The Parties agree that the terms and conditions of this Agreement
shall prevail, notwithstanding contrary or additional terms, in any
purchase order, sales acknowledgment, confirmation or any other document
issued by either Party effecting the purchase and/or sale of the Joint
Offering.
30.15 AMENDMENT BY WRITTEN AGREEMENT ONLY.
Neither this Agreement nor any statement of work may be modified or
amended except by the mutual written agreement of the Parties. No waiver of
any provision of this
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Agreement shall be effective unless it is in writing and signed by the
Party against which it is sought to be enforced.
30.16 STANDARD TERMS OF A PARTY.
No terms, provisions or conditions of any purchase order,
acknowledgment or other business form that a Party may use in connection
with the acquisition or licensing of the software will have any effect on
the rights, duties or obligations of the Parties under, or otherwise
modify, this Agreement, regardless of any failure of a Party to object to
such terms, provisions or conditions.
30.17 EXPORT OF SOFTWARE.
A Party may not export or re-export the Software without the prior
written consent of the other Party and without the appropriate United
States, German and other foreign government licenses, as applicable.
30.18 EXPORT CONTROL.
Each Party understands and acknowledges that the other Party is
subject to regulation by various applicable jurisdictions, including, the
Federal Republic of Germany and agencies of the United States Government,
including, but not limited to, the U.S. Department of Commerce, which
prohibit export or diversion of certain products and technology to certain
countries. Any and all obligations of C1 to C1 Technology, as well as any
other technical information or assistance of SAP to provide the Joint
Offering as well as any other technical information or assistance shall be
subject in all respects to such laws and regulations as shall from time to
time govern the license and delivery of technology and products abroad by
persons subject to the jurisdiction of the United States, including without
limitation the U.S. Export Administration Act of 1979, as amended, any
successor legislation, and the Export Administration Regulations issued by
the U.S. Department of Commerce, Bureau of Export Administration and all
other applicable jurisdictions. Each Party agrees to cooperate with the
other including without limitation, providing required documentation, in
order to obtain export licenses or exemptions therefrom. Each Party
warrants that it will comply with the U.S. Export Administration
Regulations and any other applicable laws and regulations governing exports
in effect from time to time.
30.19 GOVERNMENTAL APPROVALS.
Each Party represents and warrants that it has obtained or will obtain
all required approvals of the applicable government worldwide in connection
with this Agreement and that the provisions of this Agreement and the
rights and obligations of the Parties hereunder, are enforceable under the
applicable laws. If a Party deems that, in order to ensure compliance with
antitrust laws, it is necessary to effect a notification of this Agreement
to any competent antitrust authority (including, without limitation, a
notification to the European Commission under Regulation 17/62), then the
Parties shall cooperate to effect such notification provided nothing herein
shall be construed to create any obligation for a
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Party to effect such notification if such Party believes, or has reason to
believe, that such notification is or may be contrary to its legal
interests.
30.20 COUNTERPARTS.
This Agreement may be executed in counterparts, each of which so
executed will be deemed to be an original and such counterparts together
will constitute one and the same agreement.
30.21 NON-SOLICITATION.
The Parties acknowledge and agree that the employees and consultants
of a Party who perform the development services or other services are a
valuable asset to such Party and are difficult to replace. Accordingly, the
Parties agrees that, for a period of twelve (12) months after termination
of this Agreement, neither C1 nor SAP will solicit for employment as an
employee, independent contractor, or consultant to any of the other Party
employees or consultants who perform any of the development services or
other material services pursuant to this Agreement.
30.22 FCPA.
In conformity with the United States Foreign Corrupt Practices Act and
with their established corporate policies regarding foreign business
practices, the Parties and their employees and agents shall not directly or
indirectly make an offer, payment, promise to pay, or authorize payment, or
offer a gift, promise to give, or authorize the giving of anything of value
for the purpose of influencing an act or decision of an official of any
foreign or the United States Government (including a decision not to act)
or inducing such a person to use his influence to affect any such
governmental act or decision in order to assist a Party in obtaining,
retaining or directing any such business.
30.23 LANGUAGE.
This Agreement has been executed in the English language only, which
language shall be controlling in all respects, and all versions hereof in
any other language shall not be binding on the Parties hereto. All
communications and notices to be made or given pursuant to this Agreement
shall be made in the English language.
[SIGNATURE Page FOLLOWS]
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IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to enter into this Agreement effective on the Effective Date.
Commerce One, Inc. SAPMarkets, Inc.
By: Mark Hoffman By: Mayur Shah
------------------------------------ -----------------------------------
Signature: /s/ Mark Hoffman Signature: /s/ Mayur Shah
----------------------------- ----------------------------
Title: Chief Executive Officer Title: President
--------------------------------- --------------------------------
SAP AG SAP AG
By: Henning Kagermann By: Michael Juuge
------------------------------------ -----------------------------------
Signature: /s/ Henning Kagermann Signature: /s/ Michael Juuge
----------------------------- ----------------------------
Title: Co-Chairman and CEO Title: Head of Legal Dept.
--------------------------------- --------------------------------
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EXHIBIT A: DEFINITIONS.
When used in this Agreement, the following terms have the indicated meanings:
"AGREEMENT" refers to this Strategic Alliance Agreement.
"AFFILIATE" means a company or division thereof in which a Party has an equity
interest of at least fifty percent (50%), SAP Turkey, and the entities listed in
Exhibit G provided that under no circumstances rights granted pursuant to this
Agreement to an Affiliate of a Party to this Agreement shall extend to the other
shareholders of such Affiliate (if such extension is mandatory pursuant to local
laws, then such Affiliate shall not be granted any rights, including, without
limitation, licensing rights and shall be considered for purposes of this
Agreement a simple distributor).
"ALTERNATIVE TECHNOLOGIES" means technology being developed by C1 and/or SAP
which may be offered as alternative solutions as part of the Joint Offering,
provided such alternative solutions are identified and mutually agreed by the
Parties in advance in accordance with a mutually agreed procedure.
"AUCTION TECHNOLOGY" means the technology developed and provided by C1 set forth
in Exhibit C-1 which facilitates the sale of goods or services through a forward
or reverse auction marketplace. Each Party acknowledges that the definition of
Auction Technology shall not include further functionality which may be
developed by either C1 or SAP.
"BENEFICIALLY OWNED" shall have the meaning set forth in Rule 13d-3 of the rules
and regulations promulgated under the Exchange Act.
"B2B PROCUREMENT" means the hosted and enterprise version of SAP B2B procurement
product.
"BUSINESS DAY" means a day (excluding Saturdays) on which banks are generally
open for business in the U.S.A and Germany.
"BUYSITE SOFTWARE" means the hosted and enterprise version of C1 BuySite
Software.
"C1 EXCLUSIVE TERRITORIES" means the territories and Industry Verticals listed
in the Exhibit E.
"C1 TECHNOLOGY" means the technology and any related technical components,
including auction technology, provided by C1 as part of the Joint Offering
pursuant to Section 3 (Joint Offering Description) and as described and
identified in Exhibit C-1, Exhibit C-2 and the Joint Development Agreement.
"CODE" means computer programming code.
"COMMON BUSINESS LANGUAGE (CBL) XML SCHEMA TECHNOLOGY" means a set of XML
building blocks and a document framework that allows the creation of
schema-based XML documents for electronic commerce.
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"COMPETITOR" means (a) [*] any person in which any of the persons set forth in
clause (a) own more than twenty percent (20%) of the Total Current Voting Power
of such person or (c) any person with which any of the persons set forth in
clause (a) have a strategic alliance or similar agreement that provides for the
joint offering of a solution that substantially competes with the Joint
Offering.
"CONFIDENTIAL INFORMATION" shall have the meaning assigned to it in Section
23.1.
"DEVELOPMENT EFFORT" means the development work to be performed pursuant to the
Joint Development Agreement.
"DOCUMENTATION" means any on-line help files and/or written instruction manuals
regarding the use of product or technology.
"EFFECTIVE DATE" means the date this Agreement is executed by all Parties.
"ENTERPRISEBUYER DESKTOP EDITION" means the electronic procurement application
set forth and described in Exhibit C-2.
"ENTERPRISEBUYER PROFESSIONAL EDITION" means the electronic procurement
application set forth and described in Exhibit C-2.
"ENTERPRISEBUYER SUITE" means the licensing by the Parties of the
EnterpriseBuyer Desktop Edition and EnterpriseBuyer Professional Edition
together during Phase I only and as set forth in Exhibit C-2.
"ELECTRONIC PROCUREMENT APPLICATIONS" means the EnterpriseBuyer Desktop Edition,
EnterpriseBuyer Professional Edition, MarketBuyer Desktop Edition and the
MarketBuyer Professional Edition. The EnterpriseBuyer Desktop Edition and the
MarketBuyer Desktop Edition are referred to herein as the Desktop Editions of
the Electronic Procurement Applications and the EnterpriseBuyer Professional
Edition and the MarketBuyer Professional Edition are referred to herein as the
Professional Editions of the Electronic Procurement Applications.
"ESTABLISHED MARKETPLACES" shall mean in the case of C1, those Marketplaces
identified in Exhibit E-2, and in the case of SAP, those Marketplaces identified
in Exhibit E-2.
"EXISTING COMMITMENTS" means any executed contract, letter of intent, memorandum
of understanding, or other similar agreement, whether binding or not, provided
that such agreement has been announced prior to the Effective Date of this
Agreement.
"GLOBAL TRADING WEB (GTW)" means the world-wide business to business trading
community comprised of open e-marketplaces running on the Commerce One
MarketSite Portal solution.
[*]=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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"INDUSTRY VERTICAL" means a large scale trade exchange Marketplace Portal,
including, but not limited to, GM TradeExchange and Energy.
"INTELLECTUAL PROPERTY RIGHTS" means any patent rights, copyrights, trade
secrets, trade names, service marks and any other similar rights or intangible
assets recognized under any laws, or international conventions and in any
country or any jurisdiction in the world, as intellectual creations to which
rights of ownership accrue, and all registrations, applications, disclosures,
renewals, extensions, continuations or reissues of the foregoing now or
hereafter in force.
"INTELLECTUAL PROPERTY TERRITORIES" means all the Territories that are (i)
members of the Berne Convention, (ii) members of the Paris Convention, or (iii)
members of TRIPS.
"JOINT DEVELOPMENT AGREEMENT" means that the Joint Development Agreement to be
executed by the Parties within thirty (30) days from the Effective Date.
"JOINT DEVELOPMENT TEAM" means one or more resources of the Parties or a
Development Partner which are tasked to complete some element or elements of the
Development Effort.
"JOINT OFFERING" shall have the meaning set forth in Section 3.1.
"LEADING DEVELOPMENT EXECUTIVES" means the two persons at C1 or SAP responsible
for the management or oversight of the C1 Technology, SAP Applications or Joint
Offering.
"LEADING SALES AND MARKETING EXECUTIVES" means the two persons at C1 or SAP
responsible for the management or oversight of the respective sales and
marketing teams.
"LICENSE FEES" means [*] The Parties agree that certain third party products
which are not part of the C1 Technology and the SAP Applications and which are
licensed to the customer at fair market value are excluded from the definition
of License Fees. The Parties agree to discuss the subtraction of any third
party royalties or referral fees payable on a case-by-case basis from the
aggregate License Fees payable to the other Party upon the license of the Joint
Offering, the EnterpriseBuyer Desktop Edition or the EnterpriseBuyer
Professional Edition. [*]
"MARKETBUYER DESKTOP EDITION" means the electronic procurement application set
forth and described in Exhibit C-2.
"MARKETBUYER PROFESSIONAL EDITION" means the electronic procurement application
set forth and described in Exhibit C-2.
"MARKETPLACE PORTAL" means exchange-based business-to-business electronic
marketplace portals, whether or not such exchanges are external
revenue-generating businesses or private non-revenue generating portals. The
term Marketplace Portals shall exclude (i) the term "Net Market Maker"
[*]=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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which shall be defined as C1's hosted buying service that is not integrated with
C1's MarketSite software, and (ii) enterprise intranet environments in which the
business partners of an SAP customer are allowed to interact with such SAP
customer by accessing the enterprise version of my SAP.com software.
"MARKETSITE SOFTWARE" means version 3.2 of the MarketSite software (and
subsequent versions released during the term of this Agreement) as described in
the documentation generally provided with such software.
"MRO" means maintenance, repair and operating goods or services.
"NETMARKET MAKER SOLUTION" means the version [1.0] of the NetMarket Maker
software (and subsequent versions released during the term of this Agreement) as
described in the documentation generally provided with such software.
"NET MARKET MAKER" means the entity licensing the NetMarket Maker Solution.
"OBJECT CODE" means the binary machine-executable form of Code, including object
files, libraries, executable program, scripts and HTML Page s.
"PARTIES" refers to SAP AG, SAPMarkets, and C1 while "Party" refers to anyone of
them or in the case of SAP AG and SAPMarkets to both of them.
"PHASE I" means the period starting on the Effective Date and ending on the
later of 01/01/01 or the date the Joint Offering is commercially available..
"PHASE II" means the period starting on the later of 01/01/01 or the date the
Joint Offering is commercially available and ending three (3) years from the
date of termination of this Agreement.
"PRIVATE ENTERPRISE PORTALS" means a portal for a specific customer (and its
direct distributors, franchisees and similar business partners) which is not
used to generate revenues independently.
"PROFESSIONAL USER" means those individuals authorized to access the
Professional Editions of the Electronic Procurement Applications to execute
purchases associated with direct goods, vendor and contract maintenance,
strategic sourcing, material planning, and material, repair and overhaul (MRO).
"REQUISITE CATALOG ENGINE SOFTWARE" means the catalog described in Exhibit C-1.
"REQUISITION USER(S)" means those individuals authorized to access any of the
Electronic Procurement Applications solely to submit requisitions, bid
invitations and/or request for proposals transactions.
"REVENUE SHARE" means [*]
[*]=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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"RMP" refers to Regional Marketplace Provider or Global Marketplace Partners.
"SAP" refers to SAP AG and SAPMarkets, Inc.
"SAP APPLICATIONS" means the applications and any related technical components
provided by SAP as part of the Joint Offering pursuant to Section 3 (Joint
Offering Description) and as described and identified in Exhibit C-1, Exhibit
C-2 and the Joint Development Agreement.
"SOURCE CODE" means the human-readable form of Code.
"SOURCE CODE ESCROW" shall have the meaning assigned to it in Section 27.
"EXECUTIVE COMMITTEE" shall have the meaning attributed to it in Section 9.
"SUBSIDIARY" means a company or division thereof whose equity is one hundred
percent (100%) owned by a Party.
"TOTAL CURRENT VOTING POWER" means, with respect to any entity, at the time of
determination of Total Current Voting Power, the total number of votes which may
be cast in the election of members of the board of directors of the corporation
if all securities entitled to vote in the election of such directors are present
and voted (or, in the event the entity is not a corporation, the governing
members, board or other similar body of such entity).
"UPDATE" means a version of the software consisting of corrections and minor
functional enhancements to the prior version of the software. Updates are
registered by means of a change of the number to the right of the decimal point,
e.g. 3.0 >> 3.1.
"UPGRADE" means a version of the software in which substantial new functionality
or other substantial changes to the prior version of the software. Upgrades are
registered by means of a change of the number to the left of the decimal point,
e.g. 3.0 >> 4.0.
"USER INTERFACE" means the interface used by end-users in accessing the Joint
Offering.
"VOTING STOCK" means shares of the C1's common stock and any other securities of
C1 having the ordinary power to vote in the election of members of the Board of
Directors of C1.
"13D GROUP" means any group of persons formed for the purpose of acquiring,
holding, voting or disposing of Voting Stock which would be required under
Section 13(d) of the Exchange Act, and the rules and regulations promulgated
thereunder, to file a statement on Schedule 13D pursuant to Rule 13d-1(a) of the
rules and regulations promulgated under the Exchange Act or a Schedule 13G of
the rules and regulations promulgated under the Exchange Act pursuant to Rule
13d-1(c) of the rules and regulations promulgated under the Exchange Act with
the SEC as a "person" within the meaning of Section 13(d)(3) of the Exchange Act
if such group Beneficially Owned Voting Stock representing more than 5% of any
class of Voting Stock then outstanding.
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EXHIBIT F: SUPPORT AGREEMENT.
----------------------------
SCOPE
SAP and C1 will cooperate together to provide support solutions for the
joint marketplace solution.
GEOGRAPHIC SCOPE
The geographic scope of this agreement extends to all countries in which
the SAP/C1 joint marketplace software is installed.
PRINCIPLE COMMITMENTS
The support of the joint marketplace solution will be organized as follows:
Level 1 is done by the customer, level 2 and level 3 see section `Support
Level and Support Responsibilities'.
TERMS
The parties named herewith agree to abide by the framework of cooperation
outlined in this document. The parties agree to engage best effort in their
endeavors to provide satisfactory services to the end-user on the joint
marketplaces.
Regular reviews will be held on a monthly basis among the Global Support
Managers of C1 and SAP to evaluate and improve upon the service performance
of the undersigned. The parties agree to review the terms and conditions of
their respective support obligations within sixty (60) days from the
Effective Date of the Agreement.
AVAILABILITY
The interface to the marketplace support is made available to the end-users
via the support button, hotline or e-mail address on the marketplace.
Support operation is available 7x24 hours for priority level one (very
high). For all other priority levels the support operation is available
5x12 hours.
LANGUAGES OF SUPPORT
Level 2 provides support in local language if the local language is
supported by the joint solution. All cases that are transferred between SAP
and C1 are in English. Translation into English will be done by the party
who transfers the call.
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CASE PRIORITIES
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------
PRIORITY PRIORITY NAME PRIORITY DEFINITION
LEVEL
---------------------------------------------------------------------------------------------------------
<S> <C> <C>
1 Very High Vital business processes (e.g. Server/critical workflow down).
A case is to be set as "Very High" when there is a breakdown of
vital business processes on the Marketplace. The case requires
immediate processing as the breakdown can result in significant
financial losses.
---------------------------------------------------------------------------------------------------------
2 High Major functional issue (e.g. workflows down, login). A case is
to be set as "high" when there is a major disruption of normal
business processes.
---------------------------------------------------------------------------------------------------------
3 Medium Minor functional issue (e.g. content, bad links). A case is to
be set as "medium" when there is a minor disruption of normal
business processes.
---------------------------------------------------------------------------------------------------------
4 Low General information or request
---------------------------------------------------------------------------------------------------------
</TABLE>
SUPPORT LEVELS
The Support for the joint solution is organized within three levels.
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------
SUPPORT LEVELS SUPPORT TASKS
---------------------------------------------------------------------------------------------------------
<S> <C>
Level 1 o Solve `how to' questions
o Solve system questions
o Search notes
o Clarify the problem
o Reproduce the problem
o Provide solution if possible
o Forward unsolved cases to level 2
---------------------------------------------------------------------------------------------------------
Level 2 o Analyse problem
o Determine component(s)
o Propose workaround
o Determine impact on the business
o Translate case into English, if it is passed to SAP or C1
o Provide solution if possible
o Forward unsolved cases to appropriate group in level 3
---------------------------------------------------------------------------------------------------------
Level 3 o Fix bugs and create notes
o Deliver final resolution
o Translate case into English, if it is passed to SAP or C1
---------------------------------------------------------------------------------------------------------
</TABLE>
SUPPORT RESPONSIBILITIES
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<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------
SUPPORT LEVEL RESPONSIBILITY
------------------------------------------------------------------------------------------------
<S> <C>
Level 1 Customer
------------------------------------------------------------------------------------------------
Level 2 See appendix A
------------------------------------------------------------------------------------------------
Level 3 See appendix A
------------------------------------------------------------------------------------------------
</TABLE>
The standard support interface to the customer is support level 2, if
necessary level 3 will contact the customer directly. The case distribution
between SAP and C1 depends on the component owner which is listed in
Appendix B.
RESPONSE TIMES
a) Response times to the customer
<TABLE>
<CAPTION>
------------------------------------------------------------------------
PRIORITY LEVEL RESPONSE TIME FROM JOINT SUPPORT (IN HOURS)
<S> <C>
------------------------------------------------------------------------
1 [*]
------------------------------------------------------------------------
2 [*]
------------------------------------------------------------------------
3 [*]
------------------------------------------------------------------------
4 [*]
------------------------------------------------------------------------
</TABLE>
The response times are calculated during availability hours only.
b) Response times between SAP and C1
SAP and C1 make best efforts to achieve the response times (see section
response times a)). If it is necessary to transfer the case between SAP and
C1 this happens as soon as possible, so that the other party has sufficient
time for a resolution or an action plan. Both parties shall use reasonable
efforts to assist the other party in resolving the customer cases.
ESCALATION PROCEDURES
Escalation criteria The escalation procedure ("ESCALATION") will be
followed if either party believes a Customer situation requires additional
attention by the other party to resolve the problem. Escalation is
triggered by the Customer or either party when:
a. the Customer is not satisfied with the progress of an issue; and
b. there is a significant impact to business operations or project
implementation; and
c. high levels of Customer anxiety exist.
Escalation processes
Either party's Escalation contact (see appendix D) or support consultant
may call the other party's Escalation contact. The parties agree that
escalation contacts (see appendix D) shall be available on a 24 hours, 7
days a week basis to handle emergency situations. Once a party requests
Escalation a
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MUTUAL ACTION PLAN will be developed which defines the steps to resolve the
customer's problem. The steps are at minimum:
a. address resources or increase them if already addressed,
b. define responsibilities for each action,
c. expected completion date of each action,
d. Contingency/next steps if desired results are not achieved.
This action plan will be modified by mutual agreement among the designated
contacts as required by the situation.
The parties agree that on each party's reasonable request the other party shall
send support personnel to customer's site [*] to resolve escalated customer
cases. Such personnel shall be skilled in the minimum set of training described
in appendix C. [*]
When the customer states the problem is resolved or the situation no longer
requires Escalation, the Escalation is closed. Each party will exchange with the
other party the final reports summarizing the actions taken and results of these
actions, likelihood of problem recurrence and recommended future actions.
CALL TRACKING SYSTEM
SAP and C1 will respectively provide access to their call tracking systems
with the task that cases may be exchanged worldwide.
TECHNICAL SUPPORT INFORMATION DATABASE
SAP and C1 will respectively provide access to their Technical Support
Information Database. Each party posts any information about available
patches and /or fixes into the table definitions. Each party shall grant
the other party free of charge the right to those portions of its
technical/support information database that are required for the
fulfillment of the support duties. Neither party may license, transfer,
sell, loan, distribute or otherwise provide the other party's
technical/support information database or any portion thereof, to any third
party, unless expressly agreed to in writing in advance by the parties.
PROACTIVE SERVICES/MONITORING/REMOTE CONNECTIVITY
SAP and C1 analyze rules and architecture for the integration of the
existing proactive service tools, methods and technologies. The parties
work together on the development of an integrated solution which has to be
available no later than one year from the date of this agreement.
TRAINING
SAP and C1 agree that there is a minimum set of training described in
appendix C. Each party provides one desk space in each major support
center.
REQUIRED SUPPORT-SPECIFIC INFORMATION
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When a case is transferred between the parties, the following information
is provided
GENERAL CUSTOMER INFORMATION:
o Name of the customer company
o Name of the person reporting the problem.
o Phone/Fax number of this contact person
PROBLEM-SPECIFIC INFORMATION:
o Software Release
o Database type and release
o System type (production, test system)
o Description of impact to customer
o Problem description
o Description of initial problem analysis
o Attachments
| | trace information, dumps
| | console information, system to system case analysis
| | notes sent to customer
o name and phone number of support consultant transferring the call
SUPPORT CONTACTS
SAP and C1 have defined support contacts for general information
exchange and escalations. The contacts are listed in appendix D.
TERM
This agreement is valid unless SAP and C1 mutually agree to change
this Exhibit. Changes to this Exhibit shall be mutually agreed upon in
writing by the parties.
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DEFINITIONS
<TABLE>
<CAPTION>
-------------------------------------------------------------------------
TERM DEFINITION
-------------------------------------------------------------------------
<S> <C>
Case A case is a valid request for technical support
raised via the hotline, e-mail or support
request form on the portal. This is an incident
starting with the complete or partial
malfunction of an element of the joint
solution.
-------------------------------------------------------------------------
Action plan An action plan contains the steps to be
taken towards a solution. An action plan always
includes timeframes.
-------------------------------------------------------------------------
Response time This is the period of time in which an action
plan or resolution is provided.
-------------------------------------------------------------------------
</TABLE>
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APPENDIX A: SUPPORT RESPONSIBILITIES
<TABLE>
<CAPTION>
-------------------------- ------------------------ ------------------------ ------------------------
PRODUCT LEVEL 1 LEVEL 2 LEVEL 3
-------------------------- ------------------------ ------------------------ ------------------------
<S> <C> <C> <C>
[*]
-------------------------- ------------------------ ------------------------ ------------------------
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APPENDIX C: MINIMUM SET OF TRAINING
<TABLE>
<CAPTION>
----------------------------------- -------------------------------- --------------------------------
TRAINING PROVIDED BY SAPMARKETS PROVIDED BY C1
<S> <C> <C>
----------------------------------- -------------------------------- --------------------------------
EnterpriseBuyer Desktop Edition X
----------------------------------- -------------------------------- --------------------------------
Content X
----------------------------------- -------------------------------- --------------------------------
Marketsite X
----------------------------------- -------------------------------- --------------------------------
EnterpriseBuyer X
Professional Edition
----------------------------------- -------------------------------- --------------------------------
Internet Sales X
----------------------------------- -------------------------------- --------------------------------
CRM X
----------------------------------- -------------------------------- --------------------------------
Call Tracking System X X
----------------------------------- -------------------------------- --------------------------------
Dynamic Pricing X
----------------------------------- -------------------------------- --------------------------------
Business Connector X
----------------------------------- -------------------------------- --------------------------------
</TABLE>
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APPENDIX D: SUPPORT CONTACTS
SAP
Global Support Contact: [*] +49 6227 7-40363
Regional Support Contact Europe: [*] +49 6227 7-46766
Regional Support Contact U.S. : [*] +1 650-849-4307
Escalation Contact: [*] +49 6227 7-64742
C1
Global Support Contact: [*] +1 925 8192028
Regional Support Contact Europe: [*] +33 492292875
Regional Support Contact U.S. : [*] +1 9255206001
Regional Support Contact Asia Pacific: [*] +61 392255009
Escalation Contact: [*] +1 9255205949
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