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EXHIBIT 10.2
HOSTING LICENSE AGREEMENT
This Hosting License Agreement ("Agreement") is entered into as of June 30, 1999
(the "Effective Date"), by and between Active Software, Inc., a California
corporation with its principal place of business at 3333 Octavius Drive, Santa
Clara, California 95054 ("Active"), and Corio, Inc., a Delaware corporation with
its principal place of business at 700 Bay Road, Redwood City, California 94063
("Partner").
RECITALS
1. Active develops and distributes software (the "Active Materials," as
defined below) which enables the integration of certain third party software
with other third party software.
2. Partner hosts certain third party software (the "Third Party
Software," as defined below) for its customers.
3. Active wishes Partner to integrate certain Active Materials into the
Third Party Software and host the Integrated Hosting Services (as defined
below), and Partner wishes to obtain the right to integrate the Active Materials
and host the Integrated Hosting Services.
AGREEMENT
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE
PARTIES AGREE AS FOLLOWS:
1. Definitions.
"Active Materials" means the Licensed Materials.
"Adapter" means the adapter and/or agent software described under the heading
"Adapters" in Exhibit A, in Object Code format only, which Active distributes or
develops and which interfaces between the Integration Kit and the Third Party
Software.
"Confidential Information" of a party means any information disclosed by that
party to the other party pursuant to this Agreement which is in written,
graphic, machine readable or other tangible form and is marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential nature.
Confidential Information may also include oral information disclosed by one
party to the other pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure or is so designated in
writing by the disclosing party within thirty (30) days after its oral
disclosure. Notwithstanding the foregoing, all information Active provides to
Partner that relates to the Active Materials shall be deemed Active's
Confidential Information.
"Developer Kit" means the software described under the heading "Developer Kit"
in Exhibit A, in Object Code format only, which Active distributes to software
developers to enable such developers to build or modify Adapters and/or to build
or modify events, rules, transformations and other integration process
components used for specific applications.
* 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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"Documentation" means all documentation provided by Active to Partner, as
further described or enumerated in Exhibit A.
"End User" means any party that accesses the Integrated Hosting Services through
Partner's servers.
"End User License" means the license agreement (i) pursuant to which Partner
will grant the End User access to the Integrated Hosting Services, and (ii)
which shall contain at least the restrictions set forth on Exhibit C.
"Integrated Hosting Services" means Partner's hosting services which enable End
Users to access the integrated Licensed Materials and the Third Party Software
hosted on Partner's servers.
"Integration Kit" means the software described under the heading "Integration
Kit" in Exhibit A, in Object Code format only.
"Licensed Materials" means the Integration Kit, the Adapters, the Developer Kit
and the Documentation, including any modifications Active provides under Section
10.2, which Partner may host for its End Users in accordance with Section 2.1
below and the terms of this Agreement.
"Object Code" and "Object Code format" means binary computer codes in executable
format and relocatable binary code libraries that can be linked into executable
programs.
All references in this Agreement to the "purchase" or "sale" of software means
the acquiring or granting, respectively, of a license to use such software, and
to exercise any other rights pertaining to such software which are expressly set
forth herein.
"Third Party Software" means any software not developed by Active that Partner
hosts for its End Users as listed in Exhibit A.
2. Licenses and Restrictions.
2.1 Hosting License. Subject to the terms and conditions of this
Agreement, Active hereby grants Partner a non-exclusive license,
without rights to sublicense, to host the Licensed Materials on
Partner's servers solely for the purposes of providing the
Integrated Hosting Services to End Users. Partner is allowed to
grant End Users the right to access the Licensed Materials
hosted on Partner's servers pursuant to the terms of this
Agreement and under the terms specified in the End User License.
2.1.1 Access to Technology: Active shall provide Corio with
any pre-release "Beta" versions of relevant Updates or
Upgrades of the Software. Active shall make these
versions available to Corio to preview at the earliest
possible date, but in no event later than the date
Active first publicly releases such products. Active
shall provide all such Updates and Upgrades to Corio
free of additional charge and Corio shall, in its sole
discretion determine when, and if, to offer any such
Updates and/or Upgrades to its Customers.
2.2 Use Licenses. Subject to the terms and conditions of this
Agreement, Active hereby grants Partner a nonexclusive license,
without rights to sublicense, to use the Active Materials solely
for the purposes of: (a) integrating the Licensed Materials into
the Third Party Software; (b) providing
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customization services with respect to the Adapters on behalf of End Users upon
request; (c) demonstrating the Integrated Hosting Services to potential End
Users; (d) providing training in the use of the Integrated Hosting Services and
the Active Materials to Partner's employees and contractors; and (e) providing
support and training to End Users in connection with the Integrated Hosting
Services.
2.3 Trademark License. Subject to the terms and conditions of this
Agreement, Active hereby grants Partner a nonexclusive license to use the Active
trademarks, trade names and logos set forth in Exhibit B (as amended from time
to time by Active) solely in connection with the marketing of the Integrated
Hosting Services. Partner shall comply with any usage guidelines which may be
provided to Partner by Active from time to time, and upon request by Active,
shall furnish Active with samples of Partner's usage of such trademarks, trade
names and logos. Partner shall not challenge Active's ownership of such
trademarks, trade names and logos or use or adopt any trademarks which might be
confusingly similar to such marks.
2.5 Restrictions. Active reserves all rights in the Active Materials
which are not expressly granted to Partner in this Agreement. Partner shall not
decompile, disassemble, reverse engineer or otherwise attempt to derive, obtain
or modify the source code of the Active Materials. Partner shall not remove any
Active copyright or other proprietary rights notices from any software or
documentation materials provided by Active to Partner. Partner further agrees to
permit Active to enter any of Partner's premises during regular business hours,
upon five (5) days prior written notice, to inspect Partner's use of the Active
Materials.
3. Obligations of Partner.
3.1 Promotion of the Integrated Hosting Services. Partner shall use its
best efforts to integrate the Licensed Materials into the Third Party Software
and to promote the sale of and use of, and to stimulate interest in, the
Integrated Hosting Services. All marketing efforts and development efforts by
Partner shall be at Partner's expense.
3.2 Partner Support. Partner shall provide its personnel involved in the
development of the Integrated Hosting Services with training, technical support,
information and other appropriate assistance.
3.3 Partner Contact. Partner shall designate one person who shall act as
a focal point to coordinate with Active the marketing activities and the
integration of the Active Materials, and who shall be authorized to act on
behalf of Partner within the scope of this Agreement.
3.4 Records and Reporting.
3.5.1 Within thirty (30) days following the end of each calendar
quarter, Partner will provide to Active written reports showing, for such
calendar quarter: (a) the number of copies of the Licensed Materials accessed
and used by each End User through the Integrated Hosting Services, and (b) the
End User contact information, location and any customer usage information with
respect to each copy of the Active Materials accessed through the Integrated
Hosting Services.
3.5.2 Partner will notify Active, in writing, of any claim or
proceeding, actual or threatened, involving the Active Materials within ten (10)
days after Partner learns of such claim or proceeding. Partner will also notify
Active in writing immediately of all claimed or suspected defects in
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the Active Materials. All such claims, proceedings, and suspected defects shall
be deemed Active's Confidential Information.
3.5.3 Partner shall maintain full and complete records of the use
of Licensed Materials through the Integrated Hosting Services, including without
limitation copies of the reports described in Section 3.5.1, for at least three
(3) years after such use or sales. Active shall, at any time during the period
when Partner is obliged to maintain such records, be entitled to audit such
records upon thirty (30) days written notice, in order to confirm the accuracy
of the reports described in Section 3.5.1, provided, that Active may conduct no
more than one such audit in any six (6) month period. Any such audit shall be
performed at Active's expense during normal business hours; provided, that the
cost of such audit (in addition to the full amount of any underpayments and
related late charges under Section 6.6) shall be promptly paid by Partner if
such audit reveals an underpayment by Partner of more than five percent (5%) of
the amounts payable by Partner to Active in any six (6) month period.
3.6 Government Approvals. Partner shall be responsible for obtaining all
necessary government approvals, consents, licenses or permits to enable it to
purchase the Licensed Materials, and to provide the Integrated Hosting Services
to End Users. Partner will bear all costs associated with obtaining such
government approvals, consents, licenses or permits. Partner shall comply with
all government regulations.
3.7 End User License. Partner will obtain an executed End User License
from each End User prior to (i) granting such End User access to the Integrated
Hosting Services.
3.8 Further Agreements. Partner agrees: (i) to avoid deceptive,
misleading or unethical practices detrimental to Active or to the Active
Materials, including, without limitation, disparagement of Active or the Active
Materials; and (ii) to make no representations, warranties or guaranties to End
Users with respect to the specifications, features or capabilities of the Active
Materials that are inconsistent with the Documentation supplied by Active.
3.9 Feedback. Partner shall provide Active with prompt written
notification of any problems with the Active Materials or their use that Partner
becomes aware of. Such written notification shall be the property of Active, and
shall be considered Active's Confidential Information hereunder.
3.10 Publicity. Within thirty (30) days after the Effective Date, the
parties will issue a joint press release to announce the relationship of the
parties as set forth under this Agreement.
4. Changes in Active Materials. Active shall have the right to modify the
Active Materials at any time upon written notice to Partner or to discontinue
distribution of any of the Active Materials at any time. Receipt by Partner of a
price schedule or other notification from Active reflecting an addition or a
deletion to the Active Materials or receipt of a facsimile specifically adding
or deleting Active Materials shall constitute notice of such an addition or
deletion and, with respect to additions, of the price for the added product.
5. Title.
Active shall own all right, title and interest in and to the originals
and any copies, in whole or in part, of the Active Materials, and all patents,
trade secrets, copyrights and other intellectual property rights pertaining
thereto. Partner acknowledges that the licenses granted pursuant to this
Agreement do
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not provide Partner with title or ownership of the Active Materials. Partner
shall keep the Active Materials free and clear of all claims, liens and
encumbrances.
6. Payments, Taxes.
6.1 Payments. Partner will pay Active as set forth in Exhibit D.
6.2 Payment Terms. All Payments are net 30, except as set forth in
Exhibit D.
6.3 Price Changes. Active shall have the right to change its list prices
for the Active Materials at any time.
6.4 Taxes. All prices are exclusive of, and Partner shall pay or
reimburse Active for, all taxes, duties and assessments imposed on Partner or
Active in connection with the license or use of Active Materials under this
Agreement or any services provided hereunder, including without limitation all
sales, use, excise and other taxes and duties, excluding only taxes based upon
Active's net income. Partner shall hold Active harmless from all claims and
liability arising from Partner's failure to report or pay any such taxes, duties
and assessments.
6.5 Late Payments. All amounts that are not paid by Partner as required
by this Agreement shall be subject to a late charge equal to one and one-half
percent (1.5%) per month, or, if less, the maximum amount allowed by applicable
law. In the event that any amount due hereunder is overdue, Active reserves the
right to suspend performance until such delinquency is corrected.
7. Confidential Information.
7.1 Confidentiality. Each party shall treat as confidential all
Confidential Information of the other party, shall not use such Confidential
Information except as set forth herein, and shall use reasonable efforts not to
disclose such Confidential Information to any third party. Without limiting the
foregoing, each of the parties shall use at least the same degree of care which
it uses to prevent the disclosure of its own confidential information of like
importance to prevent the disclosure of Confidential Information disclosed to it
by the other party under this Agreement. Each party shall promptly notify the
other party of any actual or suspected misuse or unauthorized disclosure of the
other party's Confidential Information.
7.2 Exceptions. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which: (a) was in the public domain at the time it was disclosed or has entered
the public domain through no fault of the receiving party; (b) was known to the
receiving party, without restriction, at the time of disclosure, as demonstrated
by files in existence at the time of disclosure; (c) is disclosed with the prior
written approval of disclosing party; (d) became known to the receiving party,
without restriction, from a source other than the disclosing party without
breach of this Agreement by the receiving party and otherwise not in violation
of the disclosing party's rights; or (e) is disclosed pursuant to the order or
requirement of a court, administrative agency, or other governmental body;
provided, however, that the receiving party shall use all reasonable efforts to
provide prompt, written, and sufficient advance notice thereof to the disclosing
party to enable the disclosing party to seek a protective order or otherwise
prevent or restrict such disclosure.
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7.3 Return of Confidential Information. Each party shall promptly return
the other party's Confidential Information to the other party (i) after
termination of this Agreement, or (ii) upon receipt of written notice from the
other party requesting return of such Confidential Information.
8. Representations and Warranties of Partner.
Partner warrants to Active that the End Users shall be able to access
the Integrated Hosting Services (i) on a twenty-four-hours-per-day,
seven-days-per-week basis, except during scheduled and unscheduled maintenance
downtime, and (ii) on a ninety-nine percent (99%) availability basis.
9. Representations and Warranties of Active.
9.1 Warranty to the End User. Each End User receives a warranty (if any)
on the Active Materials from Partner only to the extent set forth in the End
User License. Active makes no warranties to the End User in connection with the
Active Materials, and expressly disclaims any implied warranties of
merchantability or fitness for a particular purpose to the End User.
9.2 Warranty to Partner. Active warrants to Partner that for a period of
ninety (90) days after the date of delivery of the Licensed Materials to the
Partner, (i) the Integration Kit, the Adapters and the Developer Kit will
substantially achieve the functionality described in the Documentation, and (ii)
the media containing the Licensed Materials will be free from defects in
materials and workmanship. Active's entire liability and Partner's exclusive
remedy under this limited warranty shall be, at Active's option, (y) repair or
replacement of all or the affected portion of the Licensed Materials, or (z) a
refund of the purchase price paid for such Licensed Materials and termination of
the licenses under Section 2 for such Licensed Materials, provided that Active
receives notice of such defect during the warranty period. Active does not
warrant that (a) the Licensed Materials will meet Partner's requirements, (b)
the operation of the Integration Kit, the Adapters or the Developer Kit will be
uninterrupted or error-free, or (c) the Documentation will be error-free.
9.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, ACTIVE
MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, WITH RESPECT TO ANY ACTIVE MATERIALS, INCLUDING THEIR CONDITION,
THEIR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY
LATENT OR PATENT DEFECTS, AND ACTIVE SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. ACTIVE MAKES, AND
PARTNER RECEIVES, NO REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE ACTIVE SUPPORT REFERRED TO
IN SECTION 10.2.
10. Support.
10.1 Support to End Users. Partner is responsible for providing all
support with respect to the Integrated Hosting Services and the Active Materials
to End Users. Active will not be responsible for providing support to End Users.
10.2 Support to Partner. Partner will receive support from Active with
respect to the Licensed Materials under the terms of the Support Agreement
attached as Exhibit E.
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10.3 Title. All releases and other changes, improvements, bug fixes or
other modifications to the Licensed Materials provided pursuant to Section 10.2
shall be deemed to be included within the Licensed Materials, and will be
subject to the terms and conditions of this Agreement.
11. Indemnity.
11.1 Indemnity by Active.
11.1.1 Indemnity. Active will defend or settle, at its expense,
any action brought against Partner based upon a claim that the Active Materials
used within the scope of the licenses granted hereunder infringe an issued U.S.
patent or registered U.S. copyright, and Active further agrees to pay all
damages and costs finally awarded against Partner attributable to such claim;
provided that Partner (a) notifies Active promptly in writing of any such claim,
(b) gives Active sole control of the defense and/or settlement of such action,
and (c) gives Active all authority, information and assistance reasonably
necessary to settle or defend such claim. Active shall reimburse Partner for
incidental out-of-pocket expenses incurred by Partner in providing such
assistance. Active shall not be liable for any costs or expenses incurred
without its prior written authorization.
11.1.2 Active Options. If the Active Materials become, or in the
opinion of Active may become, the subject of a claim of infringement of any
issued U.S. patent or registered U.S. copyright, Active may, at its option: (i)
procure for Partner the right to use the Active Materials free of any liability;
(ii) replace or modify the Active Materials to make them non-infringing; or
(iii) remove the Active Materials, or part thereof, and refund the license fees
paid hereunder for such Active Materials, as depreciated over a sixty (60) month
period.
11.1.3 Exclusions from Indemnity. Active assumes no liability
hereunder for any compliance with Partner's specifications. Active shall have no
obligation to defend the Partner or to pay costs, damages or attorney's fees for
any claim based upon: (i) use of other than a current unaltered release of the
Active Materials; or (ii) the combination, operation or use of any Active
Materials furnished hereunder with non-Active programs or data if such
infringement would have been avoided but for the combination, operation or use
of the Active Materials with such programs or data.
11.1.4 Sole and Exclusive Liability. THIS SECTION 11 SETS FORTH
THE SOLE AND EXCLUSIVE LIABILITY OF ACTIVE FOR INFRINGEMENT OF THIRD PARTY
INTELLECTUAL PROPERTY RIGHTS.
11.2 Indemnity by the Partner. Partner agrees to indemnify and hold
Active harmless from and against any loss, cost or expense (including attorneys'
fees) resulting from any and all claims by third parties for loss, damage or
injury (including death) allegedly caused by the negligence, misrepresentation,
misconduct, error, omission or other action of Partner, or of Partner's agents
or employees. In addition, Partner agrees to indemnify and hold Active harmless
from and against any loss, cost or expense (including attorneys' fees) resulting
from any and all claims by third parties alleging that the Integrated Hosting
Services infringes any patent, trade secret, or copyright, provided that Partner
shall have sole control of any such action or settlement negotiations.
Notwithstanding the foregoing, Partner shall have no liability under this
Section 11.2 for any claim alleging that the unaltered Licensed Materials,
standing alone, infringe any third party's intellectual property rights.
12. Limitation of Liability.
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Partner agrees that Active's liability hereunder arising from this
Agreement shall in no event exceed the payments received by Active pursuant to
this Agreement. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS,
LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, LOSS OF USE, OR LOSS OF DATA FOR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FOR ANY CLAIM OR DEMAND
AGAINST THE OTHER PARTY BY ANY OTHER PARTY OR FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
UNDER OR ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE
AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART UPON THESE LIMITATIONS, AND THAT
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY.
13. Term and Termination.
13.1 Term. The term of this Agreement and the license granted hereunder
shall commence on the date set forth at the beginning of this Agreement and
shall continue for a term of three (3) years unless earlier terminated in
accordance with this Section 13.
13.2 Termination for Material Breach. Either party may, at its option,
terminate this Agreement upon written notice to the other party if the other
party materially breaches any of the terms and conditions of this Agreement and
if such material breach has not been cured within thirty (30) days after written
notice to the other party.
13.3 Termination for Insolvency. This Agreement may be terminated by
either party, on notice, (i) if the other party becomes insolvent, (ii) upon the
institution by the other party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of its debts, (iii) upon
the institution of such proceedings against the other party, which are not
dismissed or otherwise resolved in such other party's favor within sixty (60)
days thereafter, (iv) upon the other party's making a general assignment for the
benefit of creditors, or (v) upon the other party's dissolution or ceasing to
conduct business in the normal course.
13.4 Surviving Terms. Sections 5, 6, 7, 9, 11, 12, 13 and 14, and all
payment obligations incurred prior to termination of this Agreement, shall
survive termination of this Agreement. Within thirty (30) days after termination
of this Agreement, Partner shall return to Active, at Partner's expense, and
shall make no further use of, any property, materials or other items of Active,
and shall certify in writing to Active, that the originals and all copies, in
whole or in part, in any form, of the Licensed Materials in the possession of
Partner or its affiliates or agents have been destroyed or returned to Active.
13.5 Other Remedies. Nothing contained herein shall limit any other
remedies that Active may have for the default of Partner under this Agreement
nor relieve Partner of any of its obligations incurred prior to termination of
this Agreement.
14. General Provisions.
14.1 Assignment. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and to
their respective heirs, successors, assigns and
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legal representatives. Partner may not assign this Agreement in whole or in part
except with Active's prior written consent, excluding the condition that the
Partner shall have the right to assign this Agreement in connection with the
merger or acquisition of such party or the sale of all or substantially all of
its assets related to this Agreement without such consent. Any assignment by
Partner shall not result in an increase in the scope of the license granted
pursuant to this Agreement. Active shall be entitled to assign this Agreement to
a party which agrees to be bound by the terms and conditions of this Agreement.
14.2 Entire Agreement. This Agreement represents the entire agreement
between the parties, and supersedes all prior agreements and understandings with
respect to the matters covered by this Agreement. Partner agrees that it has not
entered into this Agreement based on any representations other than those
contained herein. This Agreement may only be amended by a written agreement
signed by both parties. The terms and conditions of this Agreement shall prevail
in the event of any variance with any purchase order or invoice produced by
Active or Partner.
14.3 Governing Law. This Agreement shall in all respects be governed by
the laws of the State of California without reference to its principles of
conflicts of laws. The parties hereby agree that all disputes arising out of
this Agreement shall be subject to the exclusive jurisdiction of and venue in
the federal and state courts located in San Francisco, California or within
Santa Clara County, California. Partner hereby consents to the personal and
exclusive jurisdiction and venue of these courts.
14.4 Severability. If any of the provisions of this Agreement are held
to be invalid under any applicable statute or rule of law, they are, to that
extent, deemed omitted.
14.5 Waiver. The waiver of any particular breach or default or any delay
in exercising any rights shall not constitute a waiver of any subsequent breach
or default.
14.6 Notices. All notices permitted or required under this Agreement
shall be in writing and shall be delivered in person or mailed by first class,
registered or certified mail, postage prepaid, to the address of the party
specified in this Agreement or such other address as either party may specify in
writing. Such notice shall be deemed to have been given upon receipt.
14.7 Force Majeure. Neither party will be responsible for any failure to
perform its obligations (other than payment obligations) under this Agreement
due to reasons beyond its reasonable control, including without limitation acts
of God, war, riot, embargoes, acts of civil or military authorities, fire,
floods or accidents.
14.8 Export Laws and Regulations. Any obligation of Active to provide
the Active Materials under this Agreement shall be subject in all respects to
all United States laws and regulations governing the license and delivery of
technology and products abroad by persons subject to the jurisdiction of the
United States. Partner shall not export, directly or indirectly, any Active
Materials or related information without first obtaining all required licenses
and approvals from the appropriate government agencies.
14.9 Independent Contractors. Notwithstanding the use of the word
"partner" in marketing materials, the relationship of Active and Partner is that
of independent contractors, and nothing contained in this Agreement shall be
construed to (i) give either party the power to direct or control the day-to-day
activities of the other, (ii) constitute the parties as partners, joint
venturers, co-owners or otherwise as participants in a joint undertaking, or
(iii) allow the Partner to create or assume any obligation on behalf of Active
for any purpose whatsoever.
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14.10 Headings. The headings of the several sections of this Agreement
are intended for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
14.11 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one instrument.
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AGREED AND ACCEPTED:
ACTIVE SOFTWARE, INC. CORIO, INC./s/ Signature
Illegible>
By: /s/ Signature Illegible By: HASAN G. RIZVI
----------------------------- ----------------------------
Title: CFO Title: DIRECTOR OF ENGG.
-------------------------- -------------------------
7/1/99
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EXHIBIT A
LICENSED MATERIALS
1. Active Software.
1.1 Integration Kit.
Information Broker
Integration Logic Agent
7/1/99
PeopleSoft Application Adapter
Siebel Application Adapter
Oracle Database Adapter
Java Language Adapter
1.2 Developer Kit.
Includes 6 Non Production Instances of the following products to
be used for prototyping, development and testing integration
systems.
Active Works Information Broker and its Associated Options
<TABLE>
<S> <C>
Secure Sockets Layer
Multi-Broker Option
Active Works Information Broker Agents: All
ActiveWorks Integration Tools: All
ActiveWorks Adapters:
Language Adapters All
Middleware Adapters All
Database Adapters All
Application Adapters All
</TABLE>
2. Documentation.
All associated product documentation shipped with the Active Software
listed above.
3. Third Party Software-
PeopleSoft
Octane 99
Siebel 99
and any other apps that coris may include.
Hasan G. Rizvi 6/30/99
<PAGE> 13
EXHIBIT B
LICENSED TRADEMARKS, TRADE NAMES AND LOGOS
Active Software, ActiveWorks, Activesw, and
Active Database Adapter are registered
trademarks of Active Software, Inc.
<PAGE> 14
EXHIBIT C
END USER LICENSE AGREEMENT REQUIREMENTS
All End User licenses of the Active Materials shall be in writing and
executed and include at least the following provisions:
(1) the End User is granted only a personal, nontransferable, and
nonexclusive right to use the Active Materials only for its internal business
purposes;
(2) Active or its licensors retain all of their intellectual property
rights in the Active Materials, and no title to such intellectual property is
transferred to the End User;
(3) the End User agrees not to reverse assemble, decompile, or otherwise
attempt to derive source code form the Active Materials;
(4) the Active Materials are the confidential information of Active and
the End User shall keep such Active Materials in confidence and shall not use or
disclose such Active Materials, except as permitted by the license, without
Active's prior written consent;
(5) the End User agrees to comply with all export and re-export
restrictions and regulations of the Department of Commerce or other United
States agency or authority, and not to transfer, or authorize the transfer, of
the Active Materials to a prohibited country or otherwise in violation of any
such restrictions or regulations;
(6) the End User receives a warranty on the Active Materials from
Partner, and Active makes no warranties to the End User in connection with the
Active Materials, and expressly disclaims any implied warranties of
merchantability or fitness for a particular purpose;
(7) Active shall not be liable to the End User for any indirect,
consequential, incidental or special damages arising out of the use or license
of the Active Materials, regardless of the theory of liability (including
negligence and strict liability);
(8) Active may terminate the licensed use of Active's Licensed Products
upon written notice of failure by the End User to comply with the terms of such
license;
(9) within five (5) days after termination of the license, the End User
shall destroy the Active Materials or return them to Active or to Partner at the
End User's expense; and
(10) Active is a third-party beneficiary of the license agreement.
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EXHIBIT D
PAYMENTS
1. Integrated Hosting Services.
Corio shall pay the following monthly fees for each of their customers
accessing the Integration Kit through the Integrated Hosting Services as
per the table below.
<TABLE>
<CAPTION>
Customer # Of Customers Initial Sign Up Fee Annual Service Fee
Definition
<S> <C> <C> <C>
Tier 1 1st 150 Customers [*] [*]
Up to $375MM
Tier 1 All Other Tier 1 [*] [*]
Up to $375MM
Tier 2 All [*] [*]
Above $375MM
Up to $1 Billion
Tier 3 All [*] [*]
Above $1 Billion
</TABLE>
2. Corio Agrees to pay Active Software [*] for the licensed materials on
Exhibit A including prepayments of the fees for the first 23 Tier 1
customers. Payment will be in two increments: [*] Payable Net 30 Days,
[*] Payable Net 60 Days.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
<PAGE> 16
EXHIBIT E
ACTIVE SOFTWARE, INC.
ACTIVESERVICE PLAN
This Plan sets forth the terms and conditions under which Active Software, Inc.
("Active"), provides the following Support and Maintenance program known as
("ActiveService") to Corio for the programs (the "Software") and documentation
specified in Exhibit A.
This Plan sets forth the terms and conditions under which Active Software, Inc.
("Active"), provides the following Support and Maintenance program known as
("ActiveService") to the licensee ("Customer") for the programs (the "Software")
and documentation specified in Exhibit A hereto.
1. Definitions.
a. Documentation. "Documentation" shall mean the
documentation that Active provides to its customers for
the Software.
b. Error. "Error" shall mean any verifiable and
reproducible failure of the Software to substantially
conform to the Specifications for such Software.
Notwithstanding the foregoing, "Error" shall not include
any such failure that is caused by: (i) the use or
operation of the Software with any other software or
programming languages or in an environment other than
that intended or recommended by Active, (ii)
modifications to the Software not made by Active, or
(iii) any bug, defect or error in software used with the
Software or any other failure of such software to
conform to its published specifications.
c. "Error Correction(s)" shall mean either a modification
or addition to or deletion from the Software that
substantially conforms such Software to the then-current
Specifications or a procedure or routine that, when
observed in the regular operation of the Software
eliminates any material adverse effect on Customer of
such Error.
d. License Agreement. "License Agreement" shall mean the
license agreement under which the Software was licensed
to Customer.
e. Specifications. "Specifications" shall mean the
published description of the Software, as set forth in
the Documentation for the Software.
f. Update. "Update" means additional or replacement code or
Documentation for the Software that is provided by
Active to remedy an Error.
g. Upgrade. "Upgrade" means any additional or replacement
code or Documentation for the Software provided by
Active Software that adds incremental capabilities or
functionality and that is designated by Active, in its
sole discretion, as a new version of the Software.
h. Major Release. "Major Release" means any additional or
replacement code or Documentation for the Software
provided by Active Software that adds major new
capabilities or functionality and that is designated by
Active, in its sole discretion, as a new Major Release
of the Software. Major Release does not include new
Options that are added to the Software to provide
optional capabilities or functionality.
i. Option. "Option" means any additional or replacement
code that can be added to an existing product to provide
optional capability or functionality to that product.
Optional capabilities are those that some customers may
require and other customers may not.
<PAGE> 17
J Authorized Contact. "Authorized Contact" means the
individual designated by Customer to be responsible for
contacting Active's Support organization. Customer may
assign two named Authorized Contacts in Exhibit A per
ActiveService plan. Additional Authorized Contacts may
made available for an additional fee.
2. Maintenance Services.
a. New Software Releases. During the term of this Plan,
Active will provide software updates to the Customer as
they become generally available. An update is a new
release of the licensed software product that is made
available to the general public. This includes both
minor and major release numbers. In general this
software may contain both bug fixes and enhancements to
the product. Maintenance does not cover new products
being added to a product line or new functionally that
is sold as a separate option and price. Active Software
will provide a single copy of media for each update to
the Customer. If additional copies are require they will
be made available for a fee.
b. Current Release. Active's obligations under this Plan
shall apply only to those releases of the applicable
Software that are then currently being shipped by
Active. Active shall have the right, at any time after a
particular release has been superseded by another
release, to terminate support with respect to the
superseded release upon giving not less than ninety (90)
days notice. Notwithstanding the foregoing, Active will
support a superseded release for no less than one year
after a new release is shipped.
c. Error Correction. During the term of this Plan, Active
shall use commercially reasonable efforts to provide
Error Corrections for Errors in the Software reported by
Customer to Active.
d. Limitations. Active shall have no obligation under this
Plan to correct Errors which result from the breach by
Customer of this Plan or the License Agreement, or which
cannot be remedied due to any modifications of the
Software made by Customer or any third party. If Active
agrees to remedy any errors or problems not covered by
the terms of this Plan, Customer shall pay Active for
all such work performed at Active's then-current
standard rates. Customer acknowledges that Active is
under no obligation to perform services with respect to
any hardware or any software which is not Software.
3. Support Services.
a. Telephone Support. During the term of this Plan, Active
will provide telephone consultation and advice to
Authorized Contacts regarding technical support of the
Licensed Software between the hours of 6:00 a.m. and
6:00 p.m., Pacific Time, Monday through Friday,
excluding holidays. Response times are based upon
severity of the problem. Optional 24x7 telephone
consultation and advice for emergency situations of
Severity 1 problems may be purchased for an additional
fee.
b. Email and Fax Support. During the term of this Plan,
Active will respond to email and fax messages sent to
Support by Authorized Contacts between the hours of 6:00
a.m. and 6:00 p.m., Pacific Time, Monday through Friday,
excluding holidays within 6 business hours and whenever
possible within the same business day.
c. Limitations. Customer acknowledges that Active is under
no obligation to perform services with respect to any
hardware or any software which is not Active Software's
Licensed product.
d. Supported Releases. Active Software will provide
technical support for the current shipping release of
software and the one previous release for up to one year
after the release stopped shipping. In order to correct
or trouble shoot certain problems the Customer may be
required to update said software to the then current
release.
<PAGE> 18
4. Service Expectations.
a. Problem Classification. The following Problem
Classification Table definitions are used for
classifying customer issues. These classifications
insure consistent treatment of problems handled by
support. Severity 3 (Degraded Operations) is the default
severity level that all cases are initially set to
unless otherwise specified by the customer or the
support engineer. The support engineer handling the case
will work with the customer to establish what severity
should be assigned. The following are the four levels
used by Active Software to prioritize a customer's
problem.
Problem Classification Table
<TABLE>
<CAPTION>
Error Classification Criteria
<S> <C>
The problem is affecting time-critical applications with
production work at a standstill. The system is completely
Severity 1 (Critical) unusable and no work around is currently known. The
affected system must be for production purposes.
The system is significantly impaired such that key business
Severity 2 (Serious) processes can not be conducted and no known work around is
currently available.
Severity 3 (Degraded) The system can not function as designed however key business
processes are not interrupted.
Severity 4 (Minimal) Problems are low-impact. Little or no impact to daily
business process.
</TABLE>
b. Response Expectations. In the event that an error is
discovered in the Licensed Software which causes the
software not to operate in conformance with the
published specifications or applicable documentation,
Customer shall notify Active Software in writing (email
or fax) of the error (including a reasonable description
and the severity level based on the Problem
Classification Table). Active shall respond to such
notice and will make reasonable efforts to assign
engineers to resolve problems at the level of effort
indicated by the Response Expectation table. If
unspecified most new cases will be set to a severity
level of 3 until a clearer determination can be made.
The following Response Expectation table specifies
the level of response that will be given to a
customer issue at each step of the process based
upon the assigned severity of the problem. The
table specifies the maximum amount of time elapsed
to complete each step.
Step 1 represents the acknowledgment of a
customer's problem and the beginning of
information gathering process.
Step 2 represents the time frame by which the
problem is being actively addressed and a
temporary patch, correction, or workaround
is provided. The goal will be to provide a
fix or a work-around for a problem as soon
as possible. Critical issues will be worked
on continually during the business day until
a satisfactory problem resolution can be
reached. To have work continue on problems
during non-business hours requires the
purchase of a 24x7 coverage plan and the
commitment by the customer to make their
resources available on an after hours basis
as well.
Step 3 represents when a permanent solution will
be available. This may be in the form of a
tested permanent patch or a completely new
release depending upon what the problem
requires and time allows. When possible
permanent fixes will be provided in the next
scheduled release.
<PAGE> 19
RESPONSE EXPECTATION TABLE
<TABLE>
<CAPTION>
SEVERITY STEP 1 STEP 2 STEP 3
<S> <C> <C> <C>
1 (Critical) 2 business Immediate and Within 60
hours continuing calendar
effort during days.
the business
day.
2 (Serious) 4 business 1 to 5 business Within 90
hours days calendar
days.
3 (Degraded) 8 business Within 10 Next
hours business days scheduled
release of
software.
4 (Minimal) 16 business Worked on a As
hours time available appropriate
basis
</TABLE>
c. Escalation Process. All new cases will initially
be taken and handled by the support
representatives on duty at the time of the call.
All problems with a severity level of 1 to 3
will be escalated if a solution or plan of
resolution cannot be achieved within the
designated amount of time as described below. To
ensure that progress can continue, Customers
with Severity 1 (Critical) issues must provide
Active with a highly available contact during
this period who will assist the Support and
Development organizations with data gathering,
testing, and applying all fixes to their
environment. If Active cannot duplicate the
problem in-house, then Support may request
access to the Company's computing environment.
Support management will be made aware of issues
according to the following timeframes. Active
requires that as succeeding levels of Active
management become involved in the resolution
process, the Customer must provide contacts at
similar levels within their organizations, to
ensure that the level of management involvement
matches the decision-making level dictated by
the resolution requirements of the problem.
Elapsed time represents the number of business
hours (not clock hours) that have passed since
the issue was first opened by Active Software
Support.
ESCALATION TABLE
<TABLE>
<CAPTION>
Elapsed Time Severity 1 Severity 2 Severity 3
(Critical) (SERIOUS) (DEGRADED
OPERATIONS)
<S> <C> <C> <C>
Immediately Support Group
Leader
2 hours Support Manager
4 hours Support Director Support Group
Leader
8 hours
16 hours VP of Development Support Manager
24 hours Support Group Leader
32 hours Support Director
40 hours CEO Support Manager
80 hours VP of Development Support Director
</TABLE>
5 Fees.
a. Plan Fees. No additional Fees are ascribed to service,
Partner will pay Active as set forth in Exhibit D.
6. Term and Termination.
a. Term and Termination. The term of this Service Plan
shall begin on the Effective Date and shall continue
unless earlier terminated pursuant to Section 13 of the
Hosting Agreement.
b. Survival. The following provisions shall survive any
termination, expiration or cancellation of this Plan: 6
and 7.
7. Proprietary Rights.
Any corrections, additions or modifications to the
Software or Documentation effected or delivered under
this Plan and any Updates or Upgrades supplied under
this Plan shall be deemed part of the applicable
Software and subject to all of the provisions of the
License Agreement.
