<PAGE>
Exhibit 10.12
ISV LICENSE AND MARKETING AGREEMENT
-----------------------------------
This License and Marketing Agreement ("Agreement"), is entered into as of [March
-----
3lst], 1999 ("Effective Date"), by and between [Blue Martini Software, Inc.]
---- ---------------------------
("ISV"), located at [2600 Campus Drive, Suite 175, San Mateo, California,
---------------------------------------------------
94403], and Neuron Data, Inc. ("ND"), located at 13 I0 Villa Street, Mountain
View, California, 94041 (each, a "Party"; collectively, the "Parties"), includes
the terms hereof as well as those of the Exhibits attached hereto.
WHEREAS, ND seeks to have certain of its software embedded in specified
application programs and marketed and distributed as part of a complete package
to third parties; and
WHEREAS, ND shall not provide any support or maintenance services to end users,
but shall only provide direct support and maintenance services to ISV:
NOW, THEREFORE, in consideration of the foregoing and covenants below, it is
agreed:
1. Certain Definitions.
-------------------
"Application" means that computer software code, programs and/or
applications created, enhanced, or modified by Developers and into which
Licensed Software shall be embedded.
"Application License Agreement" means a legally binding, executed, written
agreement between each ISV Licensee and ISV, pursuant to which such ISV Licensee
is granted certain rights to specified Application(s), and which contains each
of the provisions required by ND as set forth in Exhibit B.
"Confidential Information" means proprietary and other valuable
information, regardless of form, communicated by one Party ("Disclosing Party")
to the other Party ("Receiving Party), including, without limitation, technical
information, trade secrets, know how, specifications, financial and pricing
information, market research, and computer code. When marked as such or recorded
as such within [...***...] of the initial disclosure.
"Developer" means a professional computer application developer designated
and engaged by ISV and authorized, pursuant to this Agreement, to develop
Applications using the Licensed Software. If applicable, the total number of
Developers is specified in Exhibit A.
"Documentation" means the standard materials (regardless of format or
medium), made available by ND in conjunction with Licensed Software.
Documentation will be delivered in a FrameMaker format.
"ISV Licensee" means an authorized Application end user to whom rights to
Application(s) are granted pursuant to an Application License Agreement and this
Agreement:
"Export Laws" means applicable export laws and regulations (whether U.S.
and foreign),
[...***...]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
1.
<PAGE>
prohibiting or restricting export of any item hereunder, including, without
limitation, as to Group D! and E! countries (and/or nationals thereof) as
defined by U.S. Export Administration Regulations, Part 746 (as updated or
amended) as well as exemptions thereto such as U.S. Department of Commerce
licenses, authorizations or otherwise.
"License Fees" means fees paid to ND in consideration of rights granted to
ISV with respect to Licensed Product as set forth in Exhibit A.
"Licensed Products" means a software product developed by ND and licensed
to ISV subject to this Agreement and is intended by the Parties to be embedded
in the Applications listed in Exhibit A.
"ND Trademarks" means such trademarks, service marks, trade names and/or
logos adopted by ND in conjunction with the Licensed Products as listed in
Exhibit D.
"Solution" means a technology combination designed to meet the needs of ISV
Licensees, which includes one or more Applications (into which Licensed Product
is embedded), all designed by ISV subject to this Agreement.
"Support and Maintenance Fee" means any fees paid by ISV in consideration
for services provided by ND for Licensed Software and with respect to specified
Supported Platforms, all in accordance with the Support and Maintenance Program.
"Support and Maintenance Program" means the binding understanding between
ND and ISV, pursuant to which ND is to provide certain services to ISV relative
to Licensed Products for the Supported Platforms substantially in the form of
Exhibit C.
"Target Market(s)" means the category of potential ISV Licensees and/or
Applications on which ISV shall focus its efforts hereunder, as described in
Exhibit A.
"Version" means the most recent, complete Version of a software product
including the relevant softcopy Documentation appropriate to integration in
ISV's own documentation [typically denoted: 1.0, 2.0, 3.0, etc.] as of the
Effective Date.
"Version Update" means any Version of any Licensed Product (including
editions designed for new/revised Supported Platforms) released subsequent to
the Effective Date.
2. Appointment; License.
--------------------
2.1 ISV Appointment. Subject to this Agreement, ND appoints ISV the
---------------
nonexclusive, value-added reseller of Licensed Products to be embedded in
Applications developed for and promoted to the Target Market(s).
2.
<PAGE>
2.2 License Grant. Subject to this Agreement, ND hereby grants to ISV a
-------------
non exclusive, non-transferable, non-sublicensable license to use, copy and
distribute Licensed Products (including softcopy documentation) to be used on
all Supported Platform(s) and according to the Documentation, and subject to
payment of all current License Fees and Support and Maintenance Fees set forth
in Exhibit A, and only for the following purposes: (a) to develop, market and
---------
distribute Applications for the Target Market(s), and (b) to allow ISV to
provide support services to ISV Licensees with respect to Applications
(particularly, as to embedded Licensed Product). Other than as expressly provide
in this Section 2, no grant of any right or license to any Licensed Product, ND
Trademark, Confidential Information or other ND property is made or implied.
2.3 Trade Secret Protection. Recognizing that protection of ND trade
-----------------------
secrets is in its best interests, ISV agrees not to utilize any Licensed Product
or Confidential Information or any other material licensed, disclosed, or
otherwise made available hereunder for any purpose not expressly permitted in
this Agreement. In particular, ISV shall not, and shall not allow any third
party, to: (a) reverse engineer, disassemble, de-compile or attempt to derive
any source code or trade secrets contained in Licensed Product; (b) timeshare or
lease rights to Licensed Product; or (c) copy, manufacture, adapt, create
derivative works of, translate, localize, port, or otherwise improperly modify
Licensed Product.
2.4 ND Trademarks. During the term of this Agreement, ND hereby grants
-------------
to ISV, a non-exclusive, non-transferable, non-sublicensable, royalty-free
license to use the ND Trademarks for the purpose of promoting and supporting
Licensed Products and Applications (including with respect to any ISV website);
provided that all use shall comply with the trademark requirements set forth in
--------
Exhibit D.
---------
2.5 Ownership. As between the Parties, ND and its suppliers retain all
---------
rights, title and interest in and to the Licensed Products and to any and all
modifications and improvements thereto by whomever made, as well as to all
copies and portions thereof, whether or not incorporated or embedded with other
products. This Agreement does not constitute a sale of any Licensed Product, nor
of any portion or copy thereof. As between the Parties, except for portions of
Licensed Products which may be directly modified or otherwise incorporated into
an Application (which belong to ND), ISV retains ownership of the Applications
and all related documents, copies and portions thereof.
3. ISV Covenants.
-------------
3.1 ISV shall not distribute Licensed Product to an ISV Licensee on a
stand alone basis; rather only embedded in an Application. Further, ISV shall
not distribute Licensed Product, except pursuant to an Application License
Agreement
3.2 At any point in time, over the life of this contract and consistent
with Exhibit C, ND shall support and maintain software released in the past
twelve months.
3.
<PAGE>
3.3 ISV shall promptly report suspected defects in Licensed Product as
well as customer complaints, demands and suggestions. ISV shall not make
misleading or untrue statements with respect to Licensed Product.
3.4 On or before the thirtieth (30th) calendar day following the end of
each quarter, ISV shall present a report (each, a "Quarterly Report") to ND
containing, at a minimum a list of licenses of Applications granted by ISV in
which Licensed Product is embedded. ISV and ND shall conduct regular technical
meetings (at least twice annually) to review technical matters, develop
technology, and continuously improve the Parties' working relationship.
3.5 The Parties, as mutually agreed, may engage in joint marketing efforts
including, without limitation, joint press releases, joint materials and joint
marketing campaigns, and as suggested in Exhibit F.
----------
4. Confidentiality.
---------------
4.1 "Confidential Information" means the Software and all other non-public
information which is marked as confidential or which should reasonably be
expected to be treated as confidential, including without limitation,
development plans, and non-public financial, customer and market information.
Confidential Information does not include information (a) already lawfully known
to the recipient prior to disclosure by the other party or developed by or for
the recipient independently of and without access to the Confidential
Information, (b) generally known to the public or (c) lawfully obtained by the
recipient from any third party without breach of any confidentiality
obligations.
4.2 Each party will safeguard Confidential Information with reasonable
security means at least equivalent to measures that it uses to safeguard its own
proprietary information. Each party will use the Confidential Information only
as needed to fulfill its obligations hereunder.
4.3 If either party is required to disclose the other's Confidential
Information by law, regulation or court order, the party will notify the owner
promptly of the requirement, and will work with the owner to attempt to minimize
the scope of required disclosure.
5. Discount; Payments.
------------------
Payment terms are specified in Exhibit I.
4.
<PAGE>
6. Support and Maintenance.
-----------------------
Support and Maintenance terms are specified in Exhibit C.
7. Limitation of Liability; Indemnification.
----------------------------------------
7.1 NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, EXCEPT FOR PAYMENTS
UNDER SECTION 7.2, ND SHALL NOT BE LIABLE WITH RESPECT TO ANY CONTRACT, TORT, OR
OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ANY AMOUNTS IN EXCESS OF THE PRICE
ACTUALLY PAD BY ISV WITH RESPECT TO ANY ALLEGEDLY DEFECTIVE LICENSED PRODUCT,
(B) FOR ANY INCIDENTAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST DATA OR
LOST PROFITS, OR (C) FOR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR
SERVICES. In particular, ND shall have no liability for damage to any
Application or as to any damage or harm suffered by any ISV Licensee or third
party caused directly or indirectly by Licensed Product, including personal
injury and/or property damage.
7.2 Subject to the terms and conditions of this Agreement, ND shall hold
ISV, its officers, directors, agents and employees harmless from liability
resulting from: (i) infringement of any United States patent or copyright by any
Licensed Product; provided that ND is promptly notified of any and all threats,
--------
claims and actions, (ii) is given all reasonable assistance requested, and (iii)
ND controls the defense and all settlement or compromise; ND shall not be
responsible for any settlement it does not approve in writing. THE FOREGOING IS
IN LIEU OF ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, WHICH ARE
HEREBY FULLY DISCLAIMED.
8. Warranty Disclaimers and Limitations.
------------------------------------
8.1 Subject to the following ND warrants for a period of [...***...]
from delivery of the first copy of each Licensed Product (the "Warranty
Period") that the media containing such Licensed Product shall be free from
material defect. This warranty covers only problems reported to ND during the
Warranty Period EXCEPT AS EXPRESSLY PROVIDED BELOW, ANY LIABILITY OF ND WITH
RESPECT TO ANY LICENSED PRODUCT OR PERFORMANCE THEREOF SHALL BE LIMITED
EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF IN THE SOLE OPINION OF ND, PRODUCT
REPLACEMENT IS AN INADEQUATE OR IMPRACTICAL REMEDY, TO REFUND ALL OR A PORTION
OF THE LICENSE FEES ACTUALLY PAD TO ND IN ANY GIVEN ANNUAL PERIOD DIRECTLY
RELATED THERETO. EXCEPT FOR THE FOREGOING, LICENSED PRODUCTS ARE PROVIDED ON
AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION,
AS TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FURTHER, ND DOES NOT WARRANT,
GUARANTEE, OR
[...***...]= 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.
5.
<PAGE>
MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF ANY
LICENSED PRODUCT OR MATERIALS SUPPLIED HEREUNDER AS TO CORRECTNESS, ACCURACY
RELIABILITY, OR OTHERWISE. ND is not responsible for and shall assume no
liability for hardware, software, or other items not directly sold or licensed
by ND hereunder nor for services provided other than by ND.
8.2 Year 2000 Compliance Warranty. Year 2000 compliance is defined as
-----------------------------
operating prior to, during, and after the calendar year 2000 AD without error
relating to date data, specifically including but not limited to any error
relating to calculations, sorting, interpretation, processing or acceptance of
date data which represents or references different centuries or more than one
century. Neuron Data represents and warrants that the Software listed in Exhibit
G hereto when used with year 2000 compliant hardware, operating systems,
compilers, interfaces and other related components, is year 2000 compliant. This
representation and warranty is with respect to the Software listed in Exhibit G
only and is not a representation or warranty that software applications using
the Software are or will be year 2000 compliant. This Year 2000 Compliance
Warranty shall begin as of the date of the License Agreement and end on the date
after January I, 2000 subsequent to which the Software has operated without a
breach of this Year 2000 Compliance Warranty for a consecutive six month period.
Neuron Data recognizes the criticality of Year 2000 Compliance. In the event of
any defect in the Software relating to Year 2000 compliance, Neuron Data, when
notified of such defect through normal Technical Support procedures, will assign
such defect the highest priority and will assign all necessary resources to
correct the problem.
9. Term and Termination.
--------------------
9.1 Term; Renewal. This Agreement shall remain in force for five (5)
-------------
years from the Effective Date, and be automatically renewed for a subsequent two
(2) year term unless a Party notifies the other of its contrary intention at
--
least sixty (60) days prior to the date this Agreement would otherwise expire.
----------------
9.2 Termination. The Agreement may be terminated: (a) By either Party:
-----------
(i) in the event the other Party breaches any material obligation and such
breach remains uncured thirty (30) days following receipt of appropriate written
notice, or (ii) in the event that a Party declares bankruptcy, becomes
insolvent, or the equivalent.
6.
<PAGE>
9.3 Effects of Termination. Upon termination for any reason of this
----------------------
Agreement: (a) ISV shall immediately return all materials provided to it by ND
hereunder, including, without limitation, Golden Master CDs, Confidential
Information, Licensed Products, manuals, customer lists, license agreements, and
marketing materials; (b) Licenses granted to ISV shall terminate immediately and
ISV shall immediately cease use of all such rights; (c) ISV Licensee rights
properly granted shall be unaffected; and (d) ISV has no expectation that the
relationship with ND will continue beyond expiration or termination of this
Agreement nor as to anticipated revenues or profits.
9.4 Survival. The following provisions shall survive termination of this
--------
Agreement: Sections 2.3, 2.5, 4, 7, 8, 9.3, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10
arid this Section 9.4.
10. General Provisions.
------------------
10.1 The Parties are independent entities; nothing in this Agreement
creates or implies any employment, agency or other legal relationship. Neither
Party has the right or authority to bind the other. This Agreement is entered
into by the Parties on a non-exclusive basis; nothing restricts either Party
from entering into any business relationship with any third party.
10.2 This Agreement constitutes the entire agreement between the Parties
as to the subject matter hereof and supersedes all prior and contemporaneous
communications and agreements, written or oral, relating to such subject.
Amendments shall be in writing and executed by each Party. Waiver of performance
required by this Agreement shall not constitute a subsequent waiver, unless so
waived in writing. Neither Party may assign any portion of this Agreement
without prior written consent of the non-assigning Party, except, in connection
------
with a merger or sale of substantially all of its assets.
10.3 Neither Party shall be responsible for any failure to perform
obligations to the extent such failure is cause by natural disasters, wars,
labor unrest, or other causes beyond its reasonable control. Obligations
hereunder shall not be excused, but shall be suspended until the cessation of
such cause. Should such cause persist for longer than thirty (30) days, the
Parties shall meet to determine whether this Agreement should be modified.
10.4 Neither Party shall make any public disclosure of the terms of this
Agreement without the prior approval of the other Party. Notwithstanding, the
Parties shall cooperate to issue a joint press release and/or complementary
press releases as soon as practicable after the Effective Date. Each Party
mutually grants the other the right to use their respective trademarks,
corporate names and logos (as necessary) in conjunction with the Parties'
respective website(s). The Parties also agree to establish mutual links between
their respective websites as soon as practicable and in a mutually acceptable
form.
10.5 Should a provision be declared illegal or unenforceable, it shall be
eliminated or replaced to preserve, wherever possible, the Parties' intent; all
other provisions remain in force.
7.
<PAGE>
occur, according to the procedure described in the Escrow Deposit Agreement of
Vendor: a, ceases doing business, or b, discontinues offering technical support
for the Software and does not offer comparable support through a third, party
under substantially similar terms.
10.6 Notices or other communications required or made hereunder shall be
in writing and sent via express courier service (with tracking capabilities) or
certified mail (return receipt requested) to the above address or as
subsequently notified.
10.7 Both Parties shall, at all times, comply with all applicable laws,
regulations and similar rules. Further, ISV shall obtain and maintain any and
all permits, licenses, authorizations, and/or certificates which may be required
in connection with the import, export, sale, or use of the Licensed Products as
may be required by any legitimate government authority, agency or subdivision
thereof including, without limitation all applicable Export Laws.
10.8 This Agreement shall be governed by California and U.S. federal law,
without regard to conflicts of law principles. Except with respect to any
injunctive action which may be brought by ND, any dispute arising hereunder
shall be submitted to arbitration which shall take place in Mountain View,
California, according to the Rules of the American Arbitration Association by a
single arbitrator appointed in accordance with such rules. Such arbitration
decision shall be final and may be enforced in any court of competent
jurisdiction. The prevailing party may, in addition to its other remedies,
recover its costs, including attorneys' and other professional fees, incurred to
enforce this Agreement.
10.9 EACH PARTY AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY
LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES HEREOF AND HAVE
BEEN TAKEN INTO ACCOUNT BY EACH PARTY IN DECIDING WHETHER AND ON WHAT TERMS TO
ENTER INTO THIS AGREEMENT.
10.10 The Parties agree that any substantial threat to the legal and/or
practical protection of those trade secrets and other proprietary material
underlying the Licensed Products (particularly with regard to source or object
code and sensitive Confidential Information disclosed hereunder) would cause
irreparable injury to ND for which monetary damages would be inadequate. In
such event, ND shall be entitled to seek equitable relief (e.g., injunctive
relief) in addition to its other remedies at law or in equity.
11. Source Code Escrow.
------------------
11.1 ND maintains and will continue to maintain during the term of this
Agreement a source code escrow deposit for its Software, as described in the
Escrow Deposit Agreement attached as Exhibit H and incorporated herein. Within
---------
30 days after the execution of this Agreement, Vendor will add ISV as a
beneficiary of the Escrow Deposit Agreement. ISV will pay the escrow agents
fees to be added and maintained as a beneficiary.
11.2 If ISV discontinues paying for product support for a Software
product, ISV will immediately be removed as a beneficiary of the Escrow Deposit
Agreement for such Software. The source code will be released from escrow if any
of the following events
8.
<PAGE>
occur, according to the procedure described in the Escrow Deposit Agreement of
Vendor:
a. ceases doing business, or
b. discontinues offering technical support for the Software and does not
offer comparable support through a third party under substantially
similar terms.
IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed by
its authorized representative as of the Effective Date.
Neuron Data, Inc. [ Blue Martini Software]
(as "ND") ------------------------------------
(As "ISV")
By: /s/ Gary Shroyer By: /s/ William Evans
--------------------------------- ----------------------------------
(Signature) (Signature)
Name: Gary Shroyer Name: William Evans
------------------------------- --------------------------------
(Printed or Typed) (Printed or Typed)
Title: CFO Title: VP, Marketing
------------------------------ -------------------------------
Date: 3-31-99 Date: March 31, 1999
------------------------------- --------------------------------
9.
<PAGE>
Exhibit A
---------
AGREEMENT PARTICULARS INCLUDING:
ND Product, ISV Application(s) and
Target Market(s),
ISV License Fees, ISV Support Fees
Neuron Data Product(s)
----------------------
--------------------------------------------------------------------------------
Name of Application Description/Functionality
--------------------------------------------------------------------------------
Neuron Data Elements Advisor Builder Rules Development Environment
--------------------------------------------------------------------------------
Neuron Data Elements Advisor Run-Time Rules Run-Time Environment
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Neuron Data commits to supporting these products for the Sun Microsystems
delivered Java Virtual Machine (JVM) on the Windows NT 4.0 and later, Solaris
2.6 and later, HP/UX 10.0 and later, IBM RS/6000, and SGI Irix platforms, if Sun
provides commercial support for a JVM on these platforms.
ISV Application(s)
<TABLE>
--------------------------------------------------------------------------------------------
Name of Application Description/Functionality
--------------------------------------------------------------------------------------------
<S> <C>
Blue Martini Merchandising Management Module Manages merchandise: products and services
--------------------------------------------------------------------------------------------
Blue Martini Customer Management Module Manager customers and customer relationships
--------------------------------------------------------------------------------------------
Blue Martini Micro Marketing Module Manages data analysis
--------------------------------------------------------------------------------------------
Blue Martini WebStore Operations Module Manages commerce store
--------------------------------------------------------------------------------------------
Blue Martini Tools Module Provides tools to support other modules
--------------------------------------------------------------------------------------------
</TABLE>
Blue Martini may introduce new modules from time-to-time and, at the time that
the new modules are introduced, may elect to append these new modules to the
list of covered ISV applications of this appendix.
Target Markets
--------------
-----------------------------------------------------
Target Markets
-----------------------------------------------------
E-Commerce
-----------------------------------------------------
-----------------------------------------------------
ISV License & Support Fees
--------------------------
See Exhibit I.
----------
10.
<PAGE>
Exhibit B
---------
Required Provision to be included in each
End User License Agreement
(this exact wording is not required)
. Government Matters
------------------
Licensee shall comply with all export laws, restrictions and regulations of
the U.S. Department of Commerce or other U.S. or foreign agency or
authority, and shall not export, or allow the export or re-export of any
material licensed hereunder or any portion thereof, in violation of any
such restrictions, laws or regulations, or to any D: 1 or E:2 country (or
any national thereof) specified in the then current Supplement No. I to
Part 740, or in violation of the then current Part 740 or 746 of the U.S.
Export Administration Regulations (or any successor regulations or
supplement), except in compliance with all licenses and approvals required
under applicable export laws and regulations. End User shall hold harmless
and indemnify Neuron Data, Inc. for any damages from breach of this
provision.
. Restricted Use
--------------
The Neuron Data, Inc. software licensed hereunder ("ND Software") shall be
used by the Licensee(s) for internal purposes only and is not intended for
resale. With respect to ND Software, Licensee agrees not to do any of the
following, directly or through any third party: (i) decompile, disassemble,
or otherwise reverse engineer or attempt to reconstruct or discover any
source code, algorithm or programming or other interfaces by any means, or
(iii) load or use it on any machine or system other than the specifically
authorized platform(s).,
. Limitation of Remedies and Damages
----------------------------------
Neuron Data, Inc. shall not be responsible or liable under any contract,
tort, or other legal or equitable theory for: (a) loss or inaccuracy of
data, (b) cost of procurement of substitute goods or services, (c) any
indirect, incidental, or consequential damages, including, without
limitation, loss of profits, (d) for any matter beyond its reasonable
control, or (e) for any software or other product or services not provided
directly by Neuron Data, Inc. Any liability of Neuron Data. Inc. shall be
limited exclusively to replacement of ND Software.
. Limitation of Warranties
------------------------
Neuron Data Software is provided on an "AS IS" basis and all warranties,
express or implied, are hereby disclaimed, including, without limitation,
any and all warranties of merchantability, fitness for particular purposes,
and non-infringement of third party intellectual property rights. Further,
Neuron Data. Inc. does not warrant, guarantee, or make any representations
regarding the use, or the results of the use, of the-licensed material or
written materials provided in terms of correctness. accuracy, reliability
or otherwise.
11.
<PAGE>
Exhibit C
---------
Support Services
This Exhibit defines Level 3 Support and provides the statement of work
required for this support level.
1. DEFINITIONS
1.1 Level 1 Support Services.
Level I Support Services include call receipt and entitlement
verification, call screening, product identification.
1.2 Level 2 Support Services.
For incidents escalated beyond Level 1, Level 2 Support Services will
include efforts to create a repeatable demonstration of the defect or error and
to resolve all problem for which source code modification is not required.
1.3 Level 3 Support Services.
Incidents not resolved through Level I and Level 2 will be escalated
to Level 3 Support Services. These services will include efforts to identify the
source code which is defective and provide correction, work-arounds and/or
patches to correct the defect or errors. Blue Martini will use its commercially
reasonable efforts to identify and resolve all errors and defect through Level I
and Level 2 Support Services.
2. LEVEL 1, LEVEL 2 SUPPORT
Level 1 and/or Level 2 support will be provided by Blue Martini and/or its
Authorized Service Providers ("ASP"). ND shall not be obligated to provided
Level I and Level 2 support services unless otherwise agreed to by the Parties.
3. LEVEL 3 SUPPORT
3.1 Priority Levels.
Defects which are reported by Blue Martini to ND shall be classified,
for the purposes of this agreement, in accordance with the following
definitions:
(a) Critical. (Priority 1) major System Impact (System down).
This classification corresponds to "Severity I Defect", which is a reported
defect in the ND product which cannot be reasonably circumvented, and which is
an emergency condition that significantly restricts the use of the ND product by
the customer to perform necessary business functions. Additionally, an
escalation may be designated a meltdown if 1) Blue Martini may lose a
significant amount of business if the problem is not resolved in a timely
manner, 2) there
12.
<PAGE>
is a potential for a public relations disaster if the problem is not resolved in
a timely manner, 3) or the problem is seriously impacting the customer's
business.
(b) High (Priority 2), Moderate System Impact (System
crashing/hanging). This classification corresponds to "Severity 2 Defect", which
is a reported defect in the ND product which restricts the use of one or more
portions of features of the ND product by the customer to perform necessary
business functions but does not completely restrict use of the ND product.
(c) Medium (Priority 3) Minor System Impact
(Performance/Operational Impact). This classification corresponds to "Severity 3
Defect" and/or "Severity 4 Defect". A Severity Level 3 Defect is reported defect
in the ND product which restricts the use of one or more portions or features of
the ND product by the customer to perform necessary business functions, but the
defect can be reasonably circumvented; and Severity Level 4 Defect is reported
defect in the ND product which does not substantially restrict the use of one or
more portions or feature of the ND product by the customer to perform necessary
business functions.
(d) Low (Priority 4), Minor problem, observation, or `how to'
inquiry.
Blue Martini will establish, if possible, the priority level of each
escalation based on their perception of the needs of each customer. As part of
its initial action plan, ND will (i) respond as to whether it agrees with Blue
Martini's defect classification, or (ii) classify the defect in accordance with
the definitions set forth above.
3.2 Defect Reporting by Blue Martini ("Escalations").
ND will respond to all defects reported by Blue Martini.
Escalations from Blue Martini Engineering will be communicated to ND
via the following process:
Escalations are reported to Blue Martini Engineering through the Blue
Martini escalation tracking system. These escalations are submitted form the
various Blue Martini Answer Centers and Authorized Support Providers (ASP's) and
Blue Martini records them in a Blue Martini database ("Scopus" or equivalent,
hereinafter referred to as "Scopus") and assigns each one a unique Scopus
reference number (ID). Problems which Engineering is unable to resolve are given
to the Blue Martini Designated Support Contact who reviews and communicates
them, if appropriate, to ND for resolution. In all cases the Designated Support
Contact (or alternate Designated Support contact) will initiate the Level 3
Support process by notifying ND that a problem is being escalated.
In all cases the person notified by Blue Martini will be the ND
designated Support Contact for Blue Martini (or Alternate Designated Support
Contact). Notification may be by e-
13.
<PAGE>
mail or phone. The initial notification will include the Scopus reference
number and a description of the problem being escalated.
3.3 Acknowledgement by ND.
ND will acknowledge escalations by contacting the Blue Martini
Designated Support Contact(s) via e-mail or phone. All incoming escalations
shall be logged for tracking purposes by ND and the time of acknowledgement of
each escalation will be logged by the Blue Martini Designated Support
Contact(s).
3.4 Acceptance by ND.
After acknowledging receipt of each escalation, ND will examine the
contents of the Scopus escalation provided by Blue Martini Engineering to
determine whether the information provided is sufficient for ND to begin work
toward providing Blue Martini Engineering with a resolution. The Scopus
escalation shall contain:
(a) a reasonably detailed description of the problem, together
with any supporting information which Blue Martini Engineering believes may
assist ND in its diagnostic process;
(b) ND product and version (including patch updates) against
which of the escalation is being raised;
(c) the operating system version (including patch updates)
against which the escalation is being raised;
(d) the hardware configuration required to reproduce the
problem;
(e) a test case or instructions necessary to demonstrate the
problem;
(f) the current priority and status proposed by Blue Martini;
(g) an indication as to whether additional information such as
dumps, logs, etc. are, or can be made, available; and
(h) the date and time of assignment to ND.
If ND determines that there is insufficient information to begin work on
resolving the escalation, the Scopus escalation will be promptly assigned back
to Blue Martini Engineering via notification to the Blue Martini Designated
Support Contact(s).
When a problem escalated to ND is found to consist of more than one
customer problem or the Scopus escalation describes more than one customer
problem, ND will report the situation to Blue Martini. If Blue Martini agrees
with ND analysis, Blue Martini will determine which is
14.
<PAGE>
the primary problem to be worked by ND and Blue Martini may, at its option,
report the second problem(s) to ND as a new escalation(s).
ND will [...***...] establish an automatic acknowledgement of escalations
for which Blue Martini is notified via phone, e-mail or access to NDDN.
In the event that ND assesses the escalated call to be non vendor defect or
failure, ND will contact Blue Martini Engineering with a detailed explanation so
the escalation can properly be redirected within Blue Martini.
3.5 Response Times. ND will respond to Blue Martini with a corrective
action and implementation in accordance with the following, which represent the
response goals ND will strive to achieve using all cost-effective, reasonable
standard practices:
Priority Initial Action Plan Implementation of Fix
Critical 4 business hours 2 business days
Note: Within 2 hours of escalated call, from Blue Martini, ND will
acknowledge receipt of call. ND will provide initial assessment of
the call within two (2) hours of escalation from Blue Martini. The
initial Action Plan is due (4) hours after its current assessment.
ND will work on a continuous effort (7 x 24 hours basis, 52 weeks a
year) based on the agreed to current Action Plan.
If the Customer's system is still down after 2 business days from the
initial escalated call, ND will arrange to provide their resources on site at
Blue Martini's request if no apparent progress is being made.
Should Blue Martini decide that on-site resources are required, then Blue
Martini will be billed at [...***...] or ND's then current consulting rate,
whichever is greater, for travel within North America. Travel outside North
America may take 2 days to arrange and will be charged at then current
consulting rates.
Priority Initial Action Plan Implementation of Fix
High 8 business hours 5 business days
Note: Within 2 hours of escalated call from Blue Martini, ND will
acknowledge receipt of call. ND will provide initial assessment of
the call within two (2) hours of escalation from Blue Martini. The
initial Action Plan is due eight (8) hours after
[...***...]= 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.
15.
<PAGE>
its current assessment. ND will work on a continuous effort based on
the agreed to current Action Plan.
If the Customer's system is still down after 5 business days from the
initial escalated call, ND will arrange to provide their resource on site at
Blue Martini's request if no apparent progress is being made.
Should Blue Martini decide that on-site resources are required, then Blue
Martini will be billed at [...***...] or ND's then current consulting rate,
whichever is greater, for travel within North America. Travel outside North
America may take two days to arrange and will be charged at then current
consulting rates.
Priority Initial Action Plan Implementation of Fix
Medium and Low 16 business hours 15 business days
Note: Within 2 hours of escalated call from Blue Martini, ND will
acknowledge receipt of call. ND will provide initial assessment of
the call within 92 hours of escalation from Blue Martini. The
initial Action Plan is due sixteen (16) hours after its current
assessment. ND will work on a continuous effort based on the agreed
to current Action Plan.
Any on-site attendance by ND support personnel to resolve escalation must
be requested by Blue Martini and will be managed by Blue Martini. ND must be
able to provide on-site support both domestically and internationally and have
at least two people who can visit customer sites outside the U.S. on reasonable
notice.
In the vent where problem resolution cannot comply with the above time
frames, ND will contact Blue Martini and both parties will use reasonable
efforts to assist each other in resolving these escalations to the satisfaction
of Blue Martini's customers.
The times for response on individual escalations are defined in terms of ND
normal business hours, as follows:
8:00 AM - 5:00 PM U.S. Pacific Standard Time
Monday through Friday, excluding Blue Martini holidays which shall be
published in advance at least annually and which in 1999 are:
New Year's Day
President's Day
[...***...]= 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.
16.
<PAGE>
Memorial Day
Independence Day
Labor Day
Thanksgiving
Christmas
New Year's Eve
3.6 Action Plan.
If ND determines that sufficient information has been provided and has
notified Blue Martini that the escalation has been accepted, work on resolving
the escalation that begins in accordance to ND standard business practices and
an action plan ("action Plan") will be provided by ND to Blue Martini within the
response times which have been set forth in the Agreement. Each Action Plan
should include the following information.
(a) problem statement, including early evaluation;
(b) confirmation, when possible, that ND has reproduced the
problem;
(c) problem status;
(d) action required;
(e) who needs to perform the actions (where "how" may refer to
ND Engineering, Blue Martini, etc. i.e. it does not necessarily require the
identification of a specific engineer);
(f) when the actions should occur and when they are expected to
be completed; and
(g) Projected date for resolution and confidence level, if
possible, for such date (stated in percent form).
ND will promptly notify Blue Martini of significant exceptions to each
Action Plan, and will provide updates to specific Action Plans as reasonably
requested by Blue Martini.
In the event that an escalation must be returned to Blue Martini for
more information, a revised Action Plan will be provided by ND when the
escalation is re-assigned to ND with the requested information.
3.7 Escalation Status.
The current status of each escalation will be tracked by ND in accordance
with its standard business practices. Blue Martini will assign an escalation
status category for its internal tracking purposes. Blue Martini's initial
escalation status categories are as follows:
17.
<PAGE>
(a) OPEN AWAITING ENGINEERING: Acknowledged by Support
Engineering, escalated to Development Engineering and waiting for a response.
(b) OPEN - AWAITING FIELD INFO: ND has requested additional
information from the field to continue working the problem.
(c) OPEN - ON SITE SUPPORT: An engineer from ND is working on
site to resolve the customer problem.
(d) OPEN - UNDER INVESTIGATION: Accepted and being worked by a
ND Engineer.
(e) PENDING - FIELD ACTION: A proposed resolution has been
supplied by ND, which must be related to the customer in order to close the
escalation. Any such changes will be given to Blue Martini Engineering for
passing on to the relevant site. Blue Martini Engineering is also responsible
for conveying the test results back to ND.
(f) PENDING FIX VERIFICATION: ND has provided a resolution to
the escalations and is awaiting feedback. Any such fixes will be given to Blue
Martini Engineering for passing on to the relevant site. Blue Martini
Engineering is also responsible for conveying the test results back to ND.
(g) CLOSED: Blue Martini Engineering has confirmed that the
solution provided by ND resolves the customer's problem.
3.8 Resolution
Within the specified response times, ND will [...***...] to resolve
each reported defect, by providing either (i) a reasonable work around, which
may consist of specific administrative steps or alternative programming calls,
(ii) an object code patch to the ND products, or (iii) a specific Action Plan
for how it will address the defect and an estimate on how long it will take to
rectify the defect.
Blue Martini Designated Support contact(s) will [...***...] to
assist ND Designated Support Contact(s) to resolve escalation where problem
determination is unclear and impacts the resolution time frames noted above.
3.9 Resolution Categories
Blue Martini will assign a resolution category for its internal
tracking purposes. Blue Martini's initial escalation resolution categories are
as follows:
(a) CODE CHANGE: revised Source Code is require and a patch kit
will be made available to Blue Martini Engineering.
[...***...]= 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.
18.
<PAGE>
(b) DUPLICATE: the escalation is a duplicate of an existing one.
(c) DOCUMENTATION: the relevant documentation is in error and no
Source Code change is needed. On-line documentation changes would be handled as
source code changes.
(d) USE: the problem was caused by incorrect usage. Blue Martini
may request that a code change be made to resolve such escalation.
(e) PERMANENT RESTRICTION: the escalation can be traced to a
problem in the ND products which cannot be corrected in this version.
(f) SUGGESTION: the software is operating to specification and
the reported escalation is really an enhancement or a (non-compliant) suggest
change.
(g) NOT SUPPORTED: the problem has been determined to be caused
by a defect in a portion of the ND products which is not supported by ND.
(h) CONFIGURATION: the problem has been caused by the use of the
ND products on an unsupported or invalid configuration.
3.10 Permanent Restrictions, Enhancements and Suggestions.
ND may advise Blue Martini that for a particular escalation the
resolution is likely to cause regression, break a standard, cause some other
part of the ND products to fail, or for any
other reason is ill advised. Blue Martini may either accept ND's recommendation
or request that ND provide the resolution, and ND will consider such requests in
good faith. Should Blue Martini require such a resolution it will be completed
for [...***...].
Similarly, ND may advise Blue Martini that the resolution to a
particular escalation would involve redesigning and/or rewriting a portion of
the ND products. If ND determines not to carry out the resolution, Blue Martini
shall have an option to require ND to carry out the resolution for [...***...].
3.11 Resolution Testing
Defect resolutions will be tested according to ND standard business
practices, which includes unit testing on the release level of the ND products
against which the escalation was reported and regression testing at the time the
defect is resolved for all currently supported releases of the ND products. If a
problem or regression is found to be caused by a patch previously created by ND
such problem or regression will be corrected by ND and reported to Blue Martini.
[...***...]= 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.
19.
<PAGE>
For each release of the licensed product, ND will provide to the Blue
Martini Designated Support Contact(s) a list of the platforms and configurations
on which ND tests defects and resolutions.
3.12 Patch Delivery
ND shall provide all Patches to Blue Martini as soon as they are
available, but in any event within the specified time frames set forth in
Section 3.5. In all cases where possible, ND shall provide Patches on-line. ND
shall conduct bug fix validation test (on standard base level system) and
regression testing for Patch compatibility prior to sending the same to Blue
Martini; unless such testing would cause ND to not comply with the relevant time
frames require under Section 3.2 in which case ND shall inform Blue Martini and
Blue Martini shall have the option to either waive the testing requirement,
waive the time requirement or require that ND proceed under its obligations and
pursue its available remedies should ND not meet its obligations. Whenever
possible, ND shall send a test case or test procedure used to verify all
Patches.
Defect resolutions which are provided via patches shall be provided by
ND to Blue Martini Engineering in a mutually agreement format for duplication
and distribution.
Each patch will consist of:
(a) a README file describing the escalation and solution, and
giving instructions for installing the correction;
(b) a shell script to apply the correction or other appropriate
instructions; and
(c) the corrected object/binary file/libraries/scripts.
3.13 Documentation of Closed Escalations
When an escalation is resolved and closed, ND will update its internal
records in accordance with its standard business practices in order to provide a
long-term audit trail. ND will provide Blue Martini with a reasonably detailed
explanation of the resolution and any differences in hardware or software
configuration which are relevant to the resolution.
3.14 Project Management
Blue Martini will measure responsiveness and quality with respect to
ND provision of Level 3 Support services by recording and monitoring a three-
month rolling average of ND performance against the following criteria:
(a) Responsiveness: acknowledges will be made, Action Plans will
be provided, regular updates will be submitted and resolutions will be completed
within the
20.
<PAGE>
response times set forth in Paragraph 3.5 of this Exhibit for at least
[...***...] of the escalations in each Priority category.
(b) Quality; at least [...***...] of resolutions will work
first time.
3.14.1 Quality Objectives
ND will [...***...] to supply Blue Martini with resolutions of
escalations that work first time. Working first time is defined as:
(a) Correcting the reported problem as described in the Scopus
escalation;
(b) Not introducing any regression following ND periodic
regression testing; and
(c) Not causing any performance degradation.
Patches that fail to work first time will be reworked by ND. Any
additional Services requested by Blue Martini will be processed by ND in all
respects as new escalations.
3.14.2 Corrective Action Plan
In the event that ND consistently fails to meet the response
time, quality or consultation goals defined above, Blue Martini may request
that ND provide a plan to address the causes of such failure (a "Corrective
Action Plan"). Upon receipt of written notice of Blue Martini, wherein Blue
Martini shall describe such failure in reasonable detail, ND shall have
[...***...] to provide a Corrective Action Plan to Blue Martini and
[...***...] to correct the failure. During the [...***...], progress in
implementing the Corrective Action Plan shall be monitored on a weekly basis
by senior management at Blue Martini and ND. If ND fails to achieve the
performance, quality or consultation goals set forth in the Corrective Action
Plan, Blue Martini may invoke the termination procedures set forth in Section
9 of the ISV License and Marketing Agreement.
3.14.3 Reports
ND will use [...***...] to provide Blue Martini with the
following status report:
(a) Weekly Escalation Status: a detailed listing showing the
current status and action plan for all open escalations and all escalations
resolved for the week; and
(b) Monthly Escalation Statistics: a summary report of all
Escalations resolved by ND for the preceding months, by Release level and
Component.
[...***...]= 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.
21.
<PAGE>
(c) Daily Escalation Status: for Meltdown Escalations, a daily
status report will be required in order to keep the customer up to date on
progress of resolution. (Weekly escalation status required for Hot and Warm)
3.14.4 Meetings
Blue Martini requires the following regular meetings or
teleconferences as a guideline:
(a) Daily Meltdown Escalation (Priority 1) status meetings, if
specified in the escalation Action Plan inclusive of conference calls with the
customer if necessary.
(b) Weekly Escalation Status: teleconference held with ND
Designated Support Contact and the Blue Martini Designated Support Contact to
report on and discuss progress on all currently open escalations.
3.14.5 Late Resolutions
When a resolution is more than [...***...] late, i.e., the
normal resolution delivery goal for the priority of the escalation in question
has been exceeded by more than [...***...], Blue Martini has the following
options:
(a) escalate the defect to the next higher Priority (e.g. High
to Critical), and track progress daily and work the issue with ND senior
management;
(b) convene a meeting with ND to establish a Corrective Action
Plan; and
(c) if neither (a) or (b) resolves the escalation, then Blue
Martini shall have the options set forth in Section 7.2(a) of the Agreement.
3.15 End of Life Support (EOL)
ND will provide Blue Martini with product support for the duration of
the Software Products' service life. This is defined as product support provided
by ND to Blue Martini from commencement of the Software Product's warranty
period through a period of not less than [...***...]. ND shall notify Blue
Martini of a planned EOL announcement of its Software Products [...***...]
before the published date or assignment of backline support of Software Products
is planned to be transitioned to a third party company. In the latter event, ND
will select a recognized company with a proven track record of success in
providing EOL software support & maintenance. Vendor will provide Blue Martini
with backline support from the commencement of the published EOL date of the
Software Products as follows:
[...***...]: Full support (respond to all escalated calls from Blue
Martini, provide fixes and error corrections.
[...***...]= 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.
22.
<PAGE>
[...***...]: Support (respond to Priority I and 2 escalated calls from
Blue Martini provide fixes and error corrections; work-arounds may be used.
[...***...]: Time and Material Support, [...***...].
3.16 Software in Escrow
In the event of (i) ND bankruptcy as provided in Section 11 of the ISV
License and Marketing Agreement or (ii) ND inability to perform its support
obligations after [...***...] prior written notice and an opportunity to
correct such deficient support services, the deposited Escrow Material will be
delivered to Blue Martini by the escrow agent, stating grounds upon which the
request is made.
On receipt of the request form from Blue Martini, the escrow agent
shall mail a copy of the request to ND and shall then deliver the Escrowed
Materials to Blue Martini [...***...] after the copy of the request is mailed
to ND.
Blue Martini may at its option use, copy and modify the Escrowed
Material only to provide backline support to Customers. Blue Martini
acknowledges and agrees that all Escrowed Material are confidential and
proprietary to ND. Source Code may not be transferred to a third party under any
circumstances. ND will own the sole, exclusive rights to any and all changes
made by Blue Martini. The source code may be accessed only for providing Blue
Martini customers with fixes to bugs which have been acknowledged as such in
writing by ND. Blue Martini may make no enhancement or feature changes.
Should ND elect to EOL the product(s) it has licensed to Blue Martini,
Blue Martini will be give the opportunity to purchase the source code to these
product(s) under terms no more or less favorable than those ND offers to it's
best customers of the same product(s).
3.17 Distribution Binaries
ND will deliver to Blue Martini two (2) copies of the Software (as
defined in Exhibit A of the Agreement) and updates and upgrades thereto in
binary form so that Blue Martini can make them available for its customers on
distribution servers maintained by Blue Martini.
3.18 Vendor Documentation
ND will provide, free of charge, an electronic version of the
Documentation (such as, but not limited to, installation, programmer/developer,
and support manuals) that is readable on Blue Martini workstations, which Blue
Martini may copy and distribute to Blue Martini's service providers. This
material will not, however, include training manuals and documentation, which
will be made available as specified in Section 5.1.
[...***...]= 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.
23.
<PAGE>
4. MISCELLANEOUS
4.1 Shipment of Supported Updates and Upgrades
ND shall promptly deliver Upgrades to Blue Martini as soon as
commercial available, but in no event later than first customer shipment of
Upgrades to the Software Product. ND shall supply Beta Versions Upgrades to Blue
Martini prior to commercial shipment to permit Blue Martini to prepare to
integrate the Upgrade into its products. Blue Martini shall have the right, but
not the obligation, to provide input to ND regarding the content and
characteristics of future versions and releases of the products; provided that
ND shall have no obligation to incorporate any such suggestion.
ND shall provide Upgrades to Blue Martini in separate shippable
packages as follows:
(a) Right to Use (RTU) licenses
(b) Media (CDs)
(c) Upgrade documentation
4.2 Secure Communications Link
ND will be required to set up a secure communications link between ND
and Blue Martini for the purposes of sending all non-disclosure information,
patches, files, documentation as well as e-mail correspondence.
5. TRAINING AND CONSULTATION
5.1 Transfer of Information (TOI)
This Section 5.1 shall not apply to Maintenance Releases. For each
'new Enhancement Release, ND shall ensure Blue Martini receives Transfer of
Information (TOI) [...***...] prior to product release. The initial TOI
will be completed by FCS Code Freeze. ND shall offer to train-the-trainer
session at a central Blue Martini designated facility and agrees to allow Blue
Martini to videotape the session for Blue Martini internal duplication and
distribution. Blue Martini will be billed [...***...]. The initial TOI will be
ready within [...***...] following FCS Code Freeze. Content of the final TOI
must include the following to a sufficient level of detail:
Product Overview
Features
Limitations
[...***...]= 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.
24.
<PAGE>
File Descriptions
External Specification (Functional Spec)
Theory of Operation - detail of installation, configuration
Walk through of product install, config, deinstall
Troubleshooting/Diagnostics Known Bugs & Work
Arounds Common User Errors Troubleshooting
Tools and Diagnostic Techniques
Recommended Support Strategy
5.2 Customer Training Upon Blue Martini specific request with ND
agreement, ND shall be available to participate in training of Blue Martini's
distributors and resellers in providing support services for the Supported
Products. Such training may include both creating and conducting training
programs. Blue Martini will be billed at [...***...].
5.3 E-mail and Phone Technical Support
ND shall answer any related technical questions on the Supported
Products from Blue Martini "support" alias, or other such restricted access
aliases for support purposes. Until Blue Martini is provided access to such
aliases Blue Martini shall monitor such aliases and provide ND the questions
that require answers. ND agrees to use [...***...] to meet
such response time guidelines that might exist for such aliases. On-line access
to NDDN, [email protected] and any access to ND's Customer Support Staff is
-----------------------
specifically limited to Blue Martini Tier Three support personnel.
ND will maintain and make available to Blue Martini, telephone
support accessible through a toll free line. ND support service center will be
staffed by properly trained ND personnel between 8:00 a.m. and 5:00 p.m.,
Pacific Standard/Daylight Savings Time, Monday through Friday (excluding
holidays). ND will use [...***...] to arrange for a qualified support engineer
or support manager to return calls to Blue Martini within [...***...] of Blue
Martini's first call to ND. ND shall provide a list of designated contacts,
phone numbers, and pager numbers to Blue Martini.
5.4 Vendor Bug Reports
ND shall permit Blue Martini to have access to ND's bug reports,
[...***...] relevant to the Licensed Products. Access to the bug reports shall
be limited by Blue Martini to its employees with a need to know and the
information in the bug reports shall be considered and treated by Blue Martini
as Proprietary Information in accordance with the provisions of Section 4
[...***...]= 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.
25.
<PAGE>
(Confidential Information). ND grants Blue Martini the right to use, copy and
distribute such data internally for purposes of resolving Customer Support
requests with respect to the Supported Products.
5.5 Vendor Development Process Audit
Blue Martini will provide at its option, rating feedback quarterly to
which ND will take all reasonable actions to improve where deficiencies have
been noted. A follow up audit will be scheduled for a later date to determine if
the deficiencies have been corrected.
26.
<PAGE>
Attachment A
------------
Supported Software: Neuron Data Elements Advisor Builder & Run-Time
Supported Platforms: All
Application(s): See Exhibit A
Support and Maintenance Fees: [...***...]
Number of Authorized Named Contacts (Development Licenses):
3
Telephone Support Authorized: (Y/N) Yes.
[...***...]= 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.
27.
<PAGE>
Exhibit D
---------
ND Trademarks
(C) 1998 Neuron Data, Inc. All rights reserved. Elements, Elements Enterprise,
Elements Messenger, Elements Converter, Elements Accessor, Elements Tester,
Elements Presenter, Elements Advisor, Elements Expert and OOScript
28.
<PAGE>
Exhibit E
---------
Has been omitted.
29.
<PAGE>
Exhibit F
---------
Marketing Efforts
(Check appropriate boxes)
Public Relations & Advertising
------------------------------
[_] . Press Releases
[_] . Speaking Engagements
[_] . Mutual Press/Analyst Reference
[_] . Joint Advertising Programs
Events (Mutual Participation)
-------------------------------
[_] . Trade shows
[_] . User Group Meetings
[_] . Sales Meetings
[_] . Seminars
Other
-------------------------------
[_] . Exchange of Sales Account Manager Contacts
[_] . Exchange of Collateral
[_] . Development of Joint Collateral
[_] . Mutual Web site Presence and Links
[_] . Mutual Partner Catalog listing
[_] . Integrated Demo(s) of parties products
30.
<PAGE>
EXHIBIT G
---------
YEAR 2000 COMPLIANT SOFTWARE
------------------------------------------------------------------------------
Product Previous Y2K- Release
Name Name Compliant Date
Release
Level
------------------------------------------------------------------------------
Elements Accessor/C & C++ Data Access Element 2.1 & later 06/1997
------------------------------------------------------------------------------
Elements Advisor Jewels 1.0 & later 05/1997
------------------------------------------------------------------------------
Elements Enterprise/C & C++ Elements Environment 2.1 & later 06/1997
------------------------------------------------------------------------------
Elements Expert/C & C++ Intelligent Rules Element 4.1 & later 06/1997
------------------------------------------------------------------------------
Distributed Messaging
* Elements Messenger/C & Element 3.1 & later 06/1997
------------------------------------------------------------------------------
Elements Presenter/C & C++ en Interface Element 4.1 & later 06/1997
------------------------------------------------------------------------------
Elements Presenter/J Joy 1.0 & later 05/1997
------------------------------------------------------------------------------
Microline MCT, MVT & MWL None 3.0 & later 02/1997
------------------------------------------------------------------------------
Note: Information on Elements Messenger is provided for the convenience of
customers using older releases. Neuron Data no longer markets or supports this
product. For assistance with Messenger, please contact Modulus Technologies.
31.
<PAGE>
EXHIBIT H
---------
Escrow Agreement
----------------
As of the effective date of this Agreement, Neuron Data has an escrow deposit
agreement for the Source Code in place with Data Securities International, Inc.,
("DSF') dated October 29, 1996 (the "Escrow Agreement"). Within 30 days after
the execution of this Agreement, Neuron Data will add Blue Martini Software as a
---------------------
beneficiary to the Escrow Agreement. Neuron Data will provide a copy of the
Escrow Agreement to Blue Martini Software, with confidential information
removed, upon written request.
Neuron Data will maintain Blue Martini Software as a beneficiary of the Escrow
---------------------
Agreement (or of a substantially similar successor escrow deposit agreement with
a commercial source code escrow agent) at Blue Martini Software's expense, at
-----------------------
all times for as long as source code escrow is required by Section 1 of the
-
Agreement.
32.
<PAGE>
EXHIBIT I
---------
Pricing and Additional Terms
----------------------------
1. The following terms are incorporated into the Agreement:
1.1. A five-year term from date of execution.
1.2. An unlimited license (as set forth in the Agreement} for internal use
of Advisor Builder (a.k.a. the development environment) by your
development and consulting organizations.
1.3. A limited license (as set forth in the Agreement) for external
deployment of Advisor Engine (a.k.a. the run-time environment} in the
named application.
1.4. A limited license (as set forth in the Agreement) for external
deployment of Advisor Builder for the sole purpose of adding or
modifying the rules that are an integral part of your application
software.
1.5. A limited license (as set forth in the Agreement} for external
deployment of Advisor Technical and Training material for the sole
purpose of facilitating the use of the above licensed material within
your application software.
2. Blue Martini will pay ND an initial, nonrefundable, license fee (the
"Initial License Fee") of [...***...] due in two equal payments Net
[...***...] and [...***...] from execution of this contract.
3. Blue Martini will calculate and pay royalties as a percentage of
[...***...] for products containing the Licensed Product per the
schedule outlined below:
<TABLE>
<S> <C> <C> <C> <C> <C>
Contract year [...***...] [...***...] [...***...] [...***...] [...***...]
% of [...***...] [...***...] [...***...] [...***...] [...***...] [...***...]
</TABLE>
No royalties shall be due on licenses used for purposes of demonstration,
evaluation, development, testing, or quality assurance.
4. ND understands that Blue Martini may require up to eight 1/2 day sessions
with an ND architect to review various issues concerning the integration of
ND's Advisor with the Blue Martini product suite. These sessions will be
billed under separate PO's and scheduled at mutually convenient times as
required. Consulting Services are available at ND's then current consulting
rates.
5. Blue Martini will begin quarterly royalty payments to ND once the aggregate
royalty & support, fees due ND under this agreement exceed the initial
license & support fees. Royalty & Support fees are due ND as a result of
Blue Martini' s revenue recognition of an application that embeds the
software product(s} licensed from ND.
6. Royalty payments will be calculated and paid quarterly with an annual
audited reconciliation. ND will pay the expense of these audits unless a
discrepancy of [...***...] or more is found, in which case Blue Martini
will bear the audit costs. The audit shall be conducted by an independent,
nationally-recognized accounting firm and shall be limited to those records
required for the auditor to determine the correctness of payments to ND
hereunder. The auditor shall be required to sign a confidentiality
agreement acceptable to Blue Martini.
[...***...]= 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.
33.
<PAGE>
7. ND will provide an Annual Support & Maintenance Agreement that will cover
the current Advisor Builder (development environment) and Run-Time. This
agreement will provide phone & web-based technical support, patches,
maintenance (point) releases as well as upgrade (version) releases.
8. Support & Maintenance services for one year are calculated at [...***...]
of the royalty fee paid to ND. Only licenses with an active Blue Martini
Support & Maintenance agreement will be included in the calculation of
Support & Maintenance renewals. Support & Maintenance renewal fees will be
calculated and paid quarterly with an annual audited reconciliation, under
the same procedures as set forth in paragraph 7.
9. Blue Martini will limit its support contacts to no more than three
authorized Blue Martini employees. These names will be provided to ND and
stored in ND's support database. Blue Martini will have the right to update
and change these authorized contacts as necessary.
10. ND will be given mutually agreeable co-marketing and attribution within the
Blue Martini product suite, consistent with what Blue Martini provides
others technology providers.
11. Blue Martini will advise its customers of ND's offer to sell ND developer's
licenses to Blue Martini customers for a reduced fee. It is acceptable that
this be accomplished via a url to ND's website that will be placed in the
`About' box of Blue Martini's applications.
12. With respect to press and public exposure the parties agree: 12.1. Blue
Martini will provide quotes or select and acknowledge statements from ND's
prepared copy for a joint press release announcing ND as a technology
provider (due within 30 days of contract signing). Blue Martini shall have
approval rights over the contents of the statement.
12.2. Blue Martini grants ND the right to publish a customer profile
outlining the application in which ND's tools are employed (due when
the product enters beta shipment, please see the examples on our Web
site).
12.3. Blue Martini will [...***...] to participate in the development
and placement of trade journal articles discussing the business
benefits of ND's technology in your application.
13. This information represents a confidential disclosure between ND and Blue
Martini Software and is not to be disclosed by either party outside their
company without the other party's prior written consent.
[...***...]= 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.
34.
<PAGE>
Amendment to ISV License and Marketing Agreement
This Amendment, effective June 30, 2000, amends the ISV License and Marketing
Agreement dated March 31, 1999 (the "Agreement") between Blue Martini Software,
Inc. ("ISV") and Blaze Software Inc., previously known as Neuron Data, Inc. All
references in the Agreement to Neuron Data or ND will mean Blaze Software.
The parties agree to amend the Agreement as follows:
1. Provided that ISV pays Blaze Software a non-refundable deployment royalty
fee of [...***...] by September 30, 2000, the term of the Agreement shall be
extended to June 30, 2007 and ISV shall have the right until June 30, 2007
to distribute the Licensed Products only as part of the named ISV
Applications listed in Exhibit A to the Agreement.
2. Blaze Software's software covered by the contract includes all products in
the Blaze rule-based personalization product line, including Blaze Advisor
Builder, Blaze Advisor Rule Engine, Blaze Advisor Rule Server, Blaze Advisor
Innovator Workbench and Blaze Advisor Innovator Runtime.
3. Additionally, ISV will pay Blaze Software [...***...] of the non-refundable
deployment royalty fee as royalty maintenance and support fee during the
term, as determined by the payment schedule, Exhibit J, of this agreement.
Such maintenance will be calculated and paid on a quarterly basis, and based
upon customer deployment amounts noted in the attached Exhibit J. The
support and maintenance payments determined by this Addendum shall cover all
existing Blue Martini customers licensed under the original contract.
4. Blaze Software maintains and will continue to maintain during the term of
this Agreement a source code escrow deposit ("Escrow Deposit Agreement") for
its Software with a commercial software escrow company. As of the effective
date of this Amendment, the Escrow Deposit Agreement is with Data
Securities, International ("DSI"). Blaze Software will add ISV as a
beneficiary of the Escrow Deposit Agreement within [...***...] after ISV's
request and ISV's payment of the escrow agent's fees to be added and
maintained as a beneficiary. Blaze Software will provide a copy of the
Escrow Deposit Agreement to ISV, with confidential information removed, upon
ISV's written request. Any successor or replacement Escrow Deposit Agreement
shall be substantially similar to the current agreement with DSI.
If ISV discontinues paying for product support for a Software product, or
fails to pay the annual fee to the escrow agent to be maintained as an
escrow beneficiary, after 30 days notice of such failure, ISV will
immediately be removed as a beneficiary of the Escrow Deposit Agreement for
such Software. The source code shall be provided to ISV by Blaze Software,
or will be released from escrow to ISV according to the terms and procedures
described in the escrow deposit agreement if:
a. Blaze Software ceases doing business, and there is no successor in
interest to the Blaze Software business (such as through a merger or
acquisition); or
1 June 30, 2000
<PAGE>
b. Blaze Software discontinues offering technical support or product
updates (e.g. new "major releases" at the X.0 level or "minor releases"
at the 0.X level) for the Software and does not offer comparable support
through a third party or is unable to provide such support under
substantially similar terms. If Blaze Software is still doing business
and this is provision is in effect, Blaze Software shall provide the
source code directly to ISV or shall execute a legally binding notice to
the escrow agent to release the Software to ISV.
c. Blaze Software fails to provide ISV with one minor release and one major
release (e.g. new "major releases" at the X.0 or 0.5 level or "minor
releases" at the 0.X level ), which the parties mutually and reasonably
agree constitute substantially new or improved functionality in the
Software, during any [...***...] period.
d. ISV notifies Blaze Software of errors or issues with the Software which
reasonably require access to the source code, and Blaze Software fails
to take steps to address such errors or issues within [...***...] from
ISV first providing Blaze Software with notice of such error or issue to
the approval of ISV, which approval will not be unreasonably withheld or
delayed.
Blaze Software hereby grants to ISV, in the event that the source code is
released to ISV pursuant to (a), (b), (c) or (d) above, a non-exclusive,
irrevocable, fully-paid right and license to use, modify and enhance the
source code for the purposes of using, maintaining or enhancing the
Software.
5. Exhibit J is hereby added to the Agreement and is incorporate herein by this
reference.
Except as expressly amended or contradicted by this Amendment, the terms of the
Agreement remain in force.
Agreed:
Blue Martini Software, Inc. ("ISV") Blaze Software, Inc. ("Blaze Software")
By: /s/ William Evans By: /s/ S. Schraeon
------------------------ -------------------------------------
Printed Printed S. Schraeon For G. Shroyer
Name: WILLIAM EVANS Name: Gary Shroyer (Director of Finance)
----------------------
Title: VP, MARKETING Title: Senior VP/CFO
---------------------
2 June 30, 2000
<PAGE>
Exhibit J
Non-Refundable Royalty Fee: [...***...]
Term (Quarters) of Agreement: [...***...]
Non-Refundable Royalty Support & Maintenance Fee Rate: [...***...]
<TABLE>
<CAPTION>
Deployment Rate that Support is Based Upon Q1 Q2 Q3 Q4
<S> <C> <C> <C> <C>
Minimum Qtrly Deployment Rate - Year 1 [...***...] [...***...] [...***...] [...***...]
Minimum Qtrly Deployment Rate - Year 2 [...***...] [...***...] [...***...] [...***...]
Minimum Qtrly Deployment Rate - Year 3 [...***...] [...***...] [...***...] [...***...]
Minimum Qtrly Deployment Rate - Year 4 [...***...] [...***...] [...***...] [...***...]
Minimum Qtrly Deployment Rate - Year 5 [...***...] [...***...] [...***...] [...***...]
Minimum Qtrly Deployment Rate - Year 6 [...***...] [...***...] [...***...] [...***...]
Minimum Qtrly Deployment Rate - Year 7 [...***...] [...***...] [...***...] [...***...]
</TABLE>
<TABLE>
<CAPTION>
Support Payments Based Upon Deployment Rate Q1 Q2 Q3 Q4 Total
<S> <C> <C> <C> <C> <C>
Year 1 Quarterly Support Payments [...***...] [...***...] [...***...] [...***...] [...***...]
Year 2 Quarterly Support Payments [...***...] [...***...] [...***...] [...***...] [...***...]
Year 3 Quarterly Support Payments [...***...] [...***...] [...***...] [...***...] [...***...]
Year 4 Quarterly Support Payments [...***...] [...***...] [...***...] [...***...] [...***...]
Year 5 Quarterly Support Payments [...***...] [...***...] [...***...] [...***...] [...***...]
Year 6 Quarterly Support Payments [...***...] [...***...] [...***...] [...***...] [...***...]
Year 7 Quarterly Support Payments [...***...] [...***...] [...***...] [...***...] [...***...]
</TABLE>
3 June 30, 2000
