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Exhibit 10.3
MASTER AGREEMENT
BY AND AMONG
CORIO, INC. AND BROADVISION, INC.
NOVEMBER 8, 1999
This MASTER AGREEMENT (the "Master Agreement") is made by and among
Corio, Inc., a Delaware corporation, with offices at with offices at 700 Bay
Road, Suite 210, Redwood City, California 94063 (hereinafter referred to as
"Corio" or "Reseller"), and BroadVision, Inc., a Delaware corporation, with
offices at 585 Broadway, Redwood City, California (hereinafter referred to as
"BroadVision" or "BV") and is dated as of November 8, 1999.
RECITALS
1. BV is the market leader in the field of Net-based applications solutions
for personalized marketing, selling, and support for customers,
partners, and employees. BV provides a suite of intelligent one-to-one
extended enterprise relationship management ("XRM") products known as
BroadVision One-To-One Enterprise, BroadVision One-To-One Commerce
Retail, and BroadVision One-To-One Commerce Business. In addition,
BroadVision provides certain tools software commonly known as
BroadVision One-To-One Command Center, BroadVision One-To-One Publishing
Center, BroadVision One-To-One Instant Publisher, and BroadVision
One-To-One Design Center (collectively, the "Tools").
2. BV would like to expand its sales opportunities for XRM by expanding the
development activities for current and planned products, by having its
products incorporated into various Corio products and service offerings,
and by leveraging Corio's technical, field consulting, marketing, and
sales resources. Specifically, BV desires to enter the small and medium
business market through its relationship with Corio.
3. Corio is the leading application service provider for high-growth
companies. Corio provides a total solution including application
recommendation, quick implementation, secure hosting and network
infrastructure, 24x7 application support and ongoing application
management. Solutions are targeted for emerging and mid-market companies
needing to implement key applications that support their complex,
dynamic operation requirements.
4. Corio would like to expand its offering by including the Software in its
portfolio of solutions that it offers to the emerging and middle
markets.
5. Corio and BV intend to form a non-exclusive alliance under which Corio
will develop, market, license, install, integrate, host and manage
one-to-one extended enterprise relationship management solutions to ASP
Customers and to End-Users that combine the Software with the services
and technologies of Corio.
6. Corio and BV are executing a Reseller Agreement concurrently with the
execution of this Master Agreement. A copy of the Reseller Agreement is
attached to this Master Agreement
* 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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and incorporated herein by this reference. All terms not otherwise
defined in this Master Agreement shall have the respective meanings
ascribed to them in the Reseller Agreement.
7. Additional Definitions: The following terminology is defined for use
throughout this Agreement:
"ASP Customer" is an entity which either (a) uses the Software
under a rental or other access only arrangement with Corio and
where Corio is the owner of the Software license or (b) acquires
sublicenses to the Development System Software for one or more
of the Software programs but uses the Deployment System for such
Software programs under a rental or other access only
arrangement with Corio where Corio owns the Deployment System
license. Any rental or other access only arrangement will
provide for payments to Corio by the ASP Customer on a monthly
basis.
"Consolidated Revenue" means the actual revenue recognized by a
Customer on a consolidated basis in accordance with generally
accepted accounting principles for the 12 months prior to the
date of Corio's initial transaction with the Customer for which
a fee will become payable to BroadVision in accordance with
Section 4 below. A Customer's Consolidated Revenue for purposes
of this Agreement shall not change by virtue of the Customer
being acquired by a third party; provided, however, that the
parties will negotiate in good faith the manner in which the
third party acquiring company will be sold Software licenses if
the third party acquiring company's actual revenue recognized by
it on a consolidated basis in accordance with GAAP for the 12
months prior to the acquisition is $750,000,00 or more.
"Customer" means any ASP Customer or End-User.
"Development System" means a Development System license to use
the specified Software product.
"Development Pool" means the SDKs that may be used by Corio in
accordance with the Licensing Practices defined in Section 2
below.
"Deployment System" means a Deployment System license to operate
a production system of the specified Software product.
"Corio Revenue" means the gross revenue payable to Corio by a
Customer for the right to access the Software, for support and
maintenance of the Software and for basic infrastructure support
(e.g., hardware, database software, and operating system
software) related to the Software included in Application minus
sales, use or similar taxes attributable of Customer's use or
access to the Software, freight, insurance, refunds or credits
arising from Customer's termination of its rights with respect
to the Software or other similar charges to the Customer so long
as they are related to the Software. Corio Revenue will not
include any fees charged by Corio for consulting, design,
network and network management or for third party applications
that are managed independently of the Software. Except for the
items specified in the previous sentence, all other fees of
Corio related to operational support of the Software will be
included within Corio
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Revenue. It is the intent of Corio that the amount it charges
ASP Customers will reflect a reasonable margin for the Software
and its maintenance. As part of the parties' quarterly Executive
Reviews, the parties may review the level of Revenue Fees paid
under this Agreement.
"SDK" means a software development kit comprised initially of
one copy of each of the products that comprise the Software.
NOW, THEREFORE, the parties agree as follows:
1. SCOPE OF AGREEMENT. Corio will design, develop, market, host and
manage Internet-based solutions incorporating the Software. The Corio hosted
solution is also known as the Application. BroadVision and Corio will work
together to identify leads appropriate for the Application. Notwithstanding the
use of the term "End-User", BroadVision and Corio agree that Corio shall have
the right to use the Software acquired hereunder and under the Reseller
Agreement to provide the Application to ASP Customers.
2. LICENSE PRACTICES. BroadVision's Licensing Terms as described in
Attachment B to the Reseller Agreement will apply to Software license as used by
Corio for its Customers or as sublicensed to Customers with the following
exceptions:
(a) Any Development System that is part of the Development Pool may be
used by multiple individuals provided no more than one individual is using any
Development System License at any given time for any ASP Customer. This
modification also includes the stipulation that at no time may the total number
of current developer individuals assigned to Customers using Development
Licenses exceed the total number of Development System Licenses purchased by
Corio, its Customers, and its professional services partners.
(b) Corio may allow ASP Customers to rent or have other access to the
Deployment System Software for that ASP Customer's use of the Application on a
periodic basis as described in Section 4 below.
If Corio transfers Software licenses to an ASP Customer so the Customer
becomes an End-User, the Licensing Terms as described in Attachment B shall
apply to the licenses being transferred. The parties agree to amend this
Agreement to define the terms under which such an ASP Customer is transitioned
to an End-User, including without limitation fixing at the date of transfer the
number of profiles for Deployment System licenses transferred to the Customer.
3. DEVELOPMENT LICENSES AND FEES.
(a) Initial Development Pool Purchases. Corio agrees to purchase ten
SDKs for a total license fee of [*]. These SDKs will be the initial SDKs in the
Development Pool. The license fee represents a [*] from BroadVision's current
list price for those products. The license fee does not include applicable taxes
or annual maintenance fees. The initial annual maintenance fee for these ten
SDKs will be [*].
[*] 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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The charges (including the license and maintenance fees) for these ten SDKs is
payable "net thirty days" from time of signing.
(b) Subsequent Purchases of Development System Licenses. During the term
of this Agreement, Corio may purchase additional copies of Development System
licenses whether for use in connection with the Application for an ASP Customer
or for sublicense to an End-User (or to an ASP Customer as contemplated in
Section 4(a)(ii)(B) below). The amount Corio will pay BroadVision for each such
additional license purchased will be a percentage of BroadVision's local list
price for the particular Software product at the time the Software is shipped by
BroadVision. The percentage is determined as follows and depends on the
cumulative license fees that have been paid by Corio to BroadVision at the time
BroadVision ships the additional Software license:
<TABLE>
<CAPTION>
Cumulative Percent
License Fees of List
------------ -------
<S> <C> <C>
[*] [*]
</TABLE>
provided, that with respect to the sublicense of Development System licenses to
a BroadVision lead pursuant to Section 4(b), the percent of list will be [*].
(c) BroadVision will also provide Corio [*] additional SDKs at no
additional charge for use by Corio solely for purposes of demonstrating the
Software to prospective Customers. Corio will immediately notify BroadVision if
Corio uses any such SDK for any other purpose and Corio will be deemed to have
purchased such SDK for development purposes and will pay BroadVision the license
and annual maintenance fees determined in accordance with Sections 3(b) and 4 of
this Agreement.
4. DEPLOYMENT LICENSES AND FEES. With respect to transactions between Corio
and Customers, Corio will pay BroadVision fees as follows:
(a) Deployment Licenses (Corio Developed Leads): For leads that Corio
develops resulting in an Application sale to an ASP Customer, Corio will pay
BroadVision fees based on the Consolidated Revenue of the ASP Customer:
(i) ASP Customer with less than $750,000,000 of Consolidated Revenue: If
the ASP Customer has Consolidated Revenue less than US$750,000,000, then Corio
will use any available SDKs from the Development Pool to develop the resultant
Application for that Customer. Corio will pay BroadVision [*] of the Corio
Revenue due from the ASP Customer (the "Revenue Fee"). Fees relating to the use
of Deployment System licenses used in connection with the Application (including
the use of the Tools) to that ASP Customer and for maintenance relating to the
Deployment
[*] 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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System licenses will be included in the Revenue Fee.
(ii) ASP Customer with $750,000,000 or more of Consolidated Revenue: If
the ASP Customer has Consolidated Revenue of US$750,000,000 or more, then.
(A) ASP Customer for whom Corio Retains Ownership of
Development System License. If the ASP Customer does not
initially wish to purchase a Development System license,
Corio shall purchase at least [*] additional Development
System licenses from BroadVision for use solely in
developing the Application for that ASP Customer. Corio
will pay BroadVision the Revenue Fee. Fees relating to
the use of Deployment System licenses used in connection
with the Application (including the use of the Tools) to
that ASP Customer and for maintenance relating to the
Deployment System licenses will be included in the
Revenue Fee.
(B) ASP Customer which Sublicenses Development System
License from Corio. If the ASP Customer wishes to
purchase Development System licenses, Corio shall
purchase at least [*] additional Development System
licenses from BroadVision and sublicense them to the ASP
Customer. Corio will pay BroadVision the Revenue Fee.
Fees relating to the use of Deployment System licenses
used in connection with the Application (including the
use of the Tools) for that ASP Customer and for
maintenance relating to the Deployment System licenses
will be included in the Revenue Fee.
(b) BroadVision Developed Leads: For customer leads that BroadVision
develops, BroadVision, at its sole discretion, may offer that lead to Corio.
BroadVision will provide Corio with a list of the Software licenses proposed to
be sold to the lead and the price at which BroadVision proposed to license the
Software. If BroadVision and Reseller agree to the Software to be licensed
(including the number of Development System licenses to be obtained for the
lead) and any other special provisions applicable to the lead, Reseller will
provide the Software to the lead either as an ASP Customer or as an End-User
pursuant to an agreement to be entered into between the lead and Corio. Corio
will purchase the number of Development System licenses so agreed to for use by
or for the lead at a price equal to [*] of the BroadVision's then current local
list price for the Software being ordered.
(i) In addition, if the Lead becomes an ASP Customer, then Corio
will pay BroadVision the Revenue Fee. Fees relating to the use
of Deployment System licenses used in connection with the
Application (including the use of the Tools) to that ASP
Customer and for maintenance relating to the Deployment System
licenses will be included in the Revenue Fee.
(ii) If the Lead becomes an End-User, the amount to be paid by
Reseller to BroadVision for the sublicense will be determined in
accordance with Section 3(b).
[*] 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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(c) Sublicenses of Deployment Systems Licenses to other End-Users. If
Corio sublicenses Deployment System licenses to any other End-User, Corio will
pay BroadVision a license fee determined in accordance with Section 3(b) above.
(d) Any exception or waiver to the foregoing will be can be made in any
of the above cases provided it is given in writing and signed by Vice-Presidents
of both Corio and BroadVision.
4A. MAINTENANCE FEES. Maintenance fees for Software licensed and sublicensed
under the Master Agreement will be determined as follows:
(a) Software in the Development Pool: The annual maintenance fee for the
first year for the ten SDK's that comprise the initial Development Pool will be
[*]. After the first year, the annual maintenance fee for any renewal
maintenance period for each Software product in the Development Pool will be an
amount equal to the applicable percentage set forth in Section 3(b) at the time
of such renewal times [*] of BroadVision's then current local list price for
such Software product.
(b) Development System License Purchased by Corio for use for ASP
Customers: Corio will pay BroadVision an annual maintenance fee for each
Development System license that Corio purchases for use for an ASP Customer that
is not part of the Development Pool. The amount of such annual fee will be an
amount equal to the applicable percentage set forth in Section 3(b) at the time
of such renewal times [*] of BroadVision's then current local list price for
such Development System license.
(c) Development System Software Sublicensed. Corio will pay BroadVision
an annual maintenance fee for each Development System license that Corio
sublicenses for use by an ASP Customer or an End-User. The amount of such annual
fee will be an amount equal to [*] of BroadVision's then current local list
price for such Development System license.
(d) Deployment System Licenses used for an ASP Customer. Maintenance
fees for Deployment System licenses used by an ASP Customer will be paid through
the payment of the Revenue Fee.
(e) Additional Deployment System Licenses Purchased by Corio. Corio will
pay BroadVision an annual maintenance fee for each additional Deployment System
license that Corio purchases other than for sublicensing. The amount of such
annual fee will be an amount equal to the applicable percentage set forth in
Section 3(b) at the time of such renewal times [*] of BroadVision's then current
local list price for such Deployment System license.
(f) Deployment System Software Sublicensed. Corio will pay BroadVision
an annual
[*] 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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maintenance fee for each Deployment System license that Corio sublicenses for
use by an End-User. The amount of such annual fee will be an amount equal to
[*] of BroadVision's then current local list price for such Deployment System
license.
5. APPLICATION FEES. Corio may charge ASP Customers or End-Users any price
for the Application.
6. REPORTING. Corio will submit a report within fifteen (15) days after
each calendar quarter with respect to Corio's Customer-related activities during
that quarter. The report will be in such form as the parties will agree to
promptly after execution of this Agreement. The report will include, without
limitation, a list of all Corio's Customers, the month the Customer signed an
agreement with Corio, the amount of Software each Customer has licensed, the
amount of Corio Revenue charged to the Customer, a status of the implementation
of the Application for the Customer (including the anticipated or actual date on
which the Customer began accessing the Software for production purposes), the
date Corio first charged Customer for Corio Revenue purposes, the inventory and
project assignment of the Development Pool, and the amount due to BroadVision.
Revenue Fees will begin accruing with respect to an ASP Customer when the ASP
Customer begins accessing the Software for production purposes. Within thirty
(30) days after each quarter, Corio will pay any Revenue Fees due for the
calendar quarter being reported. All other amounts will be due and payable, and
will be overdue if not paid within, thirty (30) days after BroadVision issues an
invoice therefor.
7. MARKETING ACTIVITIES. During the term of this Agreement, Corio and
BroadVision will participate in a number of joint marketing activities. These
are expected to include but are not limited to:
* Distributing each other's marketing collateral.
* Joint press release upon signing of this agreement.
* Development of joint data sheet
* Co-branding of BroadVision collateral and listing of Corio in
BroadVision corporate materials.
* Joint participation in selected marketing events such as trade shows,
targeted customer briefings, seminars and annual user group meetings.
* Feature on each other's respective Web sites.
* Leverage existing BroadVision 'partner' field marketing account
managers.
In addition, BroadVision will provide sales and marketing presentations, as well
as demonstration copies that are available. These copies may be tailored to
Corio's use. BroadVision will provide electronic source of marketing materials
directly to Corio.
8. MARKETING DEVELOPMENT FUND. BroadVision will create a Marketing
Development Fund to support the efforts described in Section 8 above. The amount
to be contributed by BroadVision into this Fund will be an amount equal to the
sums spent by Corio in marketing the Application and Software but will not
exceed on a cumulative basis five percent (5%) of the license fees paid by Corio
to BroadVision. Determination of the specific co-marketing fund amounts and
their
[*] 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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usage will be determined by the partnership managers of Corio and BroadVision
who will co-manage, budget and report on a quarterly basis.
9. TRAINING. Corio may purchase training from BroadVision's training
catalog at a [*] of the then current local list price. BroadVision Channel Sales
agrees to support Corio with reasonable sales training as needed.
10. EXECUTIVE REVIEWS. Corio and BroadVision agree to hold executive reviews
on a quarterly basis. These quarterly meetings will review overall sales
pipeline and success, the state of the relationship and suggested improvements,
and opportunities to expand into new markets and geographies.
11. RULES OF ENGAGEMENT. Corio and BroadVision agree to assign relationship
owners within each company, and to document rules of engagement for both sales
forces. Initially, the respective relationship owners are Scott Albro for Corio
and Jon Peppler for BroadVision.
12. TERM AND TERMINATION. The initial term of this Agreement and the
Reseller Agreement will be forty-eight (48) months from the date hereof (unless
terminated earlier as provided in the Reseller Agreement).
13. CONFIDENTIAL INFORMATION. During the term of this Agreement, either
party may receive or have access to technical information, as well as
information about product plans and strategies, promotions, customers and
related non-technical business information which the disclosing party considers
to be confidential ("Confidential Information"). In the event such information
is disclosed, the parties shall first agree to disclose and receive such
information in confidence. If then disclosed, the information shall (i) be
marked as confidential at the time of disclosure, or (ii) if disclosed orally
but stated to be confidential, be designated as confidential in a writing by the
disclosing party summarizing the Confidential Information disclosed and sent to
the receiving party within a reasonable period of time after such oral
disclosure.
Nondisclosure. Confidential Information may be used by the receiving party only
with respect to performance of its obligations under this Agreement, and only by
those employees of the receiving party who have a need to know such information
for purposes related to this Agreement. The receiving party shall protect the
Confidential Information of the disclosing party by using the same degree of
care (but no less than a reasonable degree of care) to prevent the unauthorized
use, dissemination or publication of such Confidential Information, as the
receiving party uses to protect its own confidential information of like nature.
The foregoing obligation shall not apply to any information which is: (i)
already known by the receiving party prior to disclosure; (ii) publicly
available through no fault of the receiving party; (iii) rightfully received
from a third party without a duty of confidentiality; (iv) disclosed by the
disclosing party to a third party without a duty of confidentiality on such
third party; (v) independently developed by the receiving party prior to or
independent of the disclosure; (vi) disclosed under operation of law; or (vii)
disclosed by the receiving party with the disclosing party's prior written
approval.
[*] 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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The receiving party's obligation under this Section shall be for a period of
five (5) years from the date this agreement is terminated or expires.
14. COUNTERPARTS; FACSIMILES. This Agreement may be executed in two or more
counterparts, all of which shall constitute one and the same Agreement and
become effective when one or more counterparts have been signed by each party
and delivered to each other party. The execution and delivery of this Agreement
by any party by facsimile shall constitute effective execution thereof.
CONFLICT OF PROVISIONS. This Master Agreement is intended to set forth certain
business terms that are specific to Corio's application service provider
business. In the event of a conflict between the provisions of this Master
Agreement and the Reseller Agreement and the Attachments thereto (other than the
provisions of the Master Preferred Escrow Agreement) with respect to a
particular matter covered by this Master Agreement, the applicable provision of
this Master Agreement will control. This Master Agreement, including the
Reseller Agreement and all Attachments hereto and thereto, constitute a single
agreement and are the complete and exclusive agreement between the parties with
respect to the subject matter hereof and supersedes all proposals, oral or
written, all previous negotiations, and all other communications between the
parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have caused this Master Agreement to be executed
as of the day and date first set forth above.
CORIO, INC. BROADVISION, INC.
/s/ Signature Illegible /s/ Signature Illegible
Signed Signed
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Name: Laurent Pacalin Name: Randall Bolten
Title: VP Business Development Title: Chief Financial Officer
Date: 11/8/99 Date: 11/8/99
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