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EXHIBIT 10.5
CORIO INC.
LICENSE AND HOSTING AGREEMENT
This License and Hosting Agreement (the "AGREEMENT") is made and entered
into as of October 29, 1999 ("EFFECTIVE DATE") by and between Corio Inc., a
Delaware corporation, having its principal place of business at 700 Bay Road,
Suite 210, Redwood City, CA 94063 ("CORIO") and Commerce One, Inc., a Delaware
corporation having its principal place of business at 1600 Rivera Avenue, Walnut
Creek, CA 94596 ("COMMERCE ONE").
BACKGROUND
A. Commerce One is the owner of certain proprietary software products (the
"SOFTWARE" as further defined below); and
B. Corio wishes to obtain a license to use and host the Software on the
terms and conditions set forth herein in connection with the hosting
services that Corio will provide to its Customers (as defined below) and
Commerce One wishes to grant Corio such a license on such terms;
C. The parties further wish to jointly market and promote the other party's
software and/or services as well as provide support and professional
services to Corio and its Customers in accordance with this Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
1. DEFINITIONS.
The following terms shall have the following meanings:
1.1 "SOFTWARE USER" means a named user of the Corio Services worldwide to
whom a user identification number and password has been assigned, which
permits that user to access and use the Software on a designated Corio
Server. The identification number and password used by a Software User
is reusable and reassignable and may be used and transferred by Corio,
in accordance with the licenses granted below, between Customers as one
Customer discontinues the Corio Services and another Customer
subscribes.
1.2 "ASP" means Application Service Provider.
1.2.5 "APPLICATION MANAGEMENT REVENUE" means net revenue Corio receives from
Customers for Tier One support of the Software and MarketSite Service,
operational support of the Software and MarketSite Service and basic
infrastructure support (hardware, database and operating system) for the
Software and MarketSite Service. Net revenue means all revenue received
by Corio from Customers for the Software and MarketSite Service, less
taxes, freight, insurance, refunds or credits and other non-product
items.
1.3 "CORIO MARKET SEGMENT" means those customers with annual sales revenues
of less than $1,000,000,000. For the purposes of this definition the
sales revenue shall apply to either the
[*] 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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entire corporate entity or any separately reporting division. Corio
shall have the right to continue to support Corio Customers that have
annual sales revenues greater than $1,000,000,000 by way of either sales
growth or merger or acquisition of the Corio Customer. Corio and
Commerce One further agree that should Corio desire to sell Corio
Services to a parent company of a then current Corio Customer that is
above this sales revenue threshold, each such sales opportunity shall be
discussed as it arises.
1.4 "CORIO SERVERS" means the unlimited number of computer servers owned or
operated by or for Corio which will contain the installed Software (as
defined below) for access by Customers in connection with the Corio
Services.
1.5 "CORIO SERVICES" means the hosting services offered by Corio to its
Customers in which Corio allows Customers to access the Corio Servers.
1.6 "CUSTOMER(S)" means one or more customers of the Corio Services having
its principal executive offices in the Territory who obtains a
sublicense from Corio to use the Software or MarketSite.net Service, in
the Corio Market Segment.
1.7 "DEMONSTRATION SOFTWARE" means copies of the Software which are for
demonstration purposes only and which contain sample data and
transactions.
1.8 "DOCUMENTATION" means any on-line help files or written instruction
manuals regarding the use of the Software or MarketSite.net Service.
1.9 "RELATIONSHIP MANAGERS" means the appointed employee of each party, as
set forth on EXHIBIT A attached hereto and made a part hereof, who shall
be the primary contact for implementing and administering the terms and
conditions of this Agreement.
1.10 "SOFTWARE" means Commerce One's proprietary software described in
EXHIBIT A attached hereto and made a part hereof, in object code form
only, and any Updates or Upgrades (as defined below) thereto.
1.11 "TERRITORY" means the area in which the licenses granted herein are
applicable, currently limited to the geographic area of North America.
1.12 "UPDATE(S)" means any error corrections, bug fixes, modifications or
enhancements to the Software, which are indicated by a change in the
numeric identifier to the Software in the digit to the right of the
decimal, or any error corrections, bug fixes, modifications or
enhancements of the Software and MarketSite software used to operate the
MarketSite.net Service.
1.13 "UPGRADE(S)" means a release, function or version of the Software
designated as such by Commerce One which contains new features or
significant functional enhancements to the Software, which are indicated
by a change in the numeric identifier for the Software in the digit to
the left of the decimal, or a new release, function or version of the
MarketSite.net Service, which Upgrade is provided to Commerce One's
installed customer base for the Software and MarketSite software used to
operate the MarketSite.net Service. For the purposes of this Agreement,
"Maintenance and Support" means those services listed in EXHIBIT C and
the provision of Updates and Upgrades as called for by this 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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2. GRANT OF RIGHTS.
2.1 Hosting Software License. Subject to the terms and conditions of this
Agreement, Commerce One hereby grants to Corio a fee-bearing, perpetual
and irrevocable, nonexclusive, nontransferable (except in accordance
with Section 14.1 of this Agreement), right and license in the Territory
to (i) reproduce the Software in machine executable object code format
only for installation on the Corio Servers; (ii) install multiple copies
of the Software on Corio's Servers which will be made remotely
accessible to Corio's Customers for their subsequent use, (iii) permit
limited access to and use of the Software and MarketSite.net Service by
Customers through Corio Servers; (iv) sublicense an unlimited number of
Customers to access and use the Software and MarketSite.net Service only
through the installation on Corio servers; and (v) use Commerce One's
tools and utilities, subject to any restrictions placed on the Commerce
One by third party software providers, to modify and manage the
Software. Except as specifically authorized by this Agreement, no
license is granted under this Agreement to Corio to distribute the
Software to its Customers or for use other than as part of the Corio
Services.
2.2 Internal Use License. Subject to the terms and conditions of this
Agreement, Commerce One grants to Corio a nonexclusive, nontransferable
(except in accordance with Section 14.1 of this Agreement),
royalty-free, fully paid up, perpetual right and license in the
Territory to reproduce, install and use additional copies of the
Software and Software tools and utilities, subject to any restrictions
placed on the Commerce One by third party software providers, in machine
executable object code for (i) Corio's internal business operations and
(ii) production, testing, development, upgrade, reporting and training.
2.3 Demonstration License. Subject to the terms and conditions of this
Agreement, Commerce One hereby grants to Corio a nonexclusive,
nontransferable (except in accordance with Section 14.1 of this
Agreement) royalty-free, fully paid up right and license in the
Territory, on Corio Servers, to make a reasonable number of copies of
the Demonstration Software solely for demonstration purposes to
potential Customers. Demonstration Software shall be made available to
Corio's sales personnel and the parties agree to cooperate to make the
Commerce One demonstration database available to Corio sales personnel
on an ongoing basis.
2.4 Distribution License: Corio shall have the right to resell licenses for
Commerce One software, including Hosted BuySite, to any Corio Customer
in the Territory, [*]. Subject to the terms and conditions of this
Agreement, Commerce One hereby grants to Corio a nonexclusive,
nontransferable (except in accordance with Section 14.1 of this
Agreement), right and license in the Territory to sell and distribute
such software licenses to Customers pursuant to this Section 2.4. Under
no circumstances shall Commerce One contact Corio Customers regarding a
non-ASP license sale, unless requested to do so by Corio. Further, if a
Corio Customer contacts Commerce One to purchase the Software license
independent of the Corio Services, Commerce One shall immediately refer
that Customer to Corio.
2.5 Software User License Agreements. Corio shall make the Software and the
MarketSite.net Service on the Corio Servers remotely accessible to
Customers under the then current terms of its end user license
agreement. As to each Software User who is provided access to the
Software, Corio
[*] 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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shall secure the Software User's consent to an end user agreement, which
provides that the Software User may access and/or use the Software and
MarketSite.net Service only under terms and conditions which include, at
a minimum, those set forth on EXHIBIT E ("END USER LICENSE AGREEMENT")
and made a part hereof.
2.6 Access to MarketSite.net Service. For the fee set forth in Exhibit B
attached hereto and made a part hereof, Corio and its Customers shall
have unlimited access to Commerce One's MarketSite electronic catalogue
service, as available to Commerce One customers at the URL:
Marketsite.net, including without limitation, MarketSite.net Business
Transaction Services, MarketPack of Premium Supplier Catalogs, and
MarketSite Community Services ("MarketSite.net Service") in accordance
with Commerce One's standard access procedures for its customers. In
addition, the parties shall share certain revenues related to purchases
made by Customers utilizing Commerce One's MarketSite.net Service, as
set forth in EXHIBIT B hereto.
2.7 Restrictions. Corio may not copy, distribute, reproduce, use or allow
access to the Software or the MarketSite.net Service except as
explicitly permitted under this Agreement, and Corio shall not, nor will
it permit any third party to, modify, adapt, translate, prepare
derivative works from, decompile, reverse engineer, disassemble or
otherwise attempt to derive source code from the Software or any
internal data files generated by the Software except as required by law.
2.8 Ownership. Commerce One hereby retains all of its right, title, and
interest in and to the Software, including all copyrights, patents,
trade secret rights, trademarks and other intellectual property rights
therein. All rights not expressly granted hereunder are reserved to
Commerce One. The Software and all copies thereof are licensed, not
sold, to Corio.
2.9 New Products. Updates and Upgrades to the Software and the
MarketSite.net Service and software are subject to the terms of this
Agreement and are included in the Maintenance and Support fees payable
by Corio. Commerce One agrees to license Corio to use future products
and solutions offered by Commerce One according to the license fees and
other terms and conditions as the parties may agree. These products and
solutions may include, but are not limited to the following: e-commerce,
and marketing and sales force automation solutions.
2.10 Expansion of Geographical Scope. The parties agree Corio may seek
permission to expand the scope of the licenses granted under this
Section 2 worldwide, at no additional cost to Corio, and maintaining the
revenue sharing provisions contained herein, and Commerce One shall not
unreasonably withhold its permission to expand all such licenses
worldwide at no additional cost to Corio. If and when localized versions
of the Software become available, these versions shall be made available
under the maintenance and support provisions of this Agreement.
3. DELIVERY OF SOFTWARE.
3.1 Delivery and Acceptance. Commerce One shall issue to Corio, via
electronic means of delivery, as soon as practicable, one (1)
machine-readable copy of the Software, along with one (1) copy of the
on-line Documentation. Commerce One will provide Corio with one written
copy of the Documentation at no cost, and any additional written copies
at Commerce One's standard charges. Corio acknowledges that no copy of
the source code of the Software will be provided to
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Corio. Within thirty (30) days of delivery of the Software, but in no
event later than December 1, 1999, Corio shall test the Software for
conformance with the Documentation ("Acceptance Test"). If the Software
performs in substantial accordance with the Documentation, then Corio
shall notify Commerce One in writing of its acceptance of the Software.
In the event Corio finds material errors or defects with the Software,
Corio shall notify Commerce One in writing of such errors or defects and
provide adequate detail to facilitate Commerce One replicating the error
or defect. Upon receipt of written notice, Commerce One shall have
fifteen (15) days to correct the defect, reinstall the Software at the
Corio site and re-perform the Acceptance Test. If Corio does not accept
the Software after the second Acceptance Test, a third Acceptance Test
will be performed. Notwithstanding the foregoing, all Acceptance Testing
shall be complete by December 30, 1999, and Corio shall notify Commerce
One in writing of it's acceptance or rejection of the Software no later
than December 31, 1999. If after the third Acceptance Test Corio does
not accept the Software, Corio may, at its sole option, elect to (i)
repeat the Acceptance Test or (ii) terminate the Agreement and receive a
refund of any fees paid to Commerce One as of such date. Both parties
acknowledge that any professional services provided to Corio subsequent
to the installation and acceptance of the Software are non-essential for
the purpose of the acceptance of the Software.
3.2 New Versions. Commerce One shall provide Corio with any pre-release
versions of relevant Updates or Upgrades of the Software. Commerce One
shall make these versions available to Corio to preview at the earliest
possible date. Commerce One 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.
3.3 Additional Materials. Commerce One shall use all commercially reasonable
efforts to promptly provide Corio with, at a minimum, the following: (i)
release notes; (ii) beta releases; (iii) contacts at beta customers,
when requested by Corio and subject to the approval of the Commerce One;
(iv) proactive bug notification; (v) software patches; (vi) release
documentation including technical reference manuals and user guides; and
(vii) all applicable data objects relevant to the Software. These
materials shall be provided at no cost to Corio.
4 FEES.
4.1 License Fees. In consideration for the licenses granted to Corio
pursuant to Section 2 of this Agreement, Corio shall pay the license
fees specified in EXHIBIT B hereto. Payment terms of such license fees
shall be as set forth in EXHIBIT B hereto.
4.2 Software Support and Maintenance Fees. Corio shall pay to Commerce One
an annual Software Maintenance and Support fee for the support services
to be provided by Commerce One specified in Exhibit C attached hereto
and made a part hereof, and Updates and Upgrades, according to the fees
set forth in Exhibit B hereto. Payment terms of annual Software
Maintenance and Support fees shall be as set forth in Exhibit B hereto.
Maintenance and Support shall automatically continue during the term of
this Agreement and thereafter, provided that Corio continues to pay the
annual Maintenance and Support fees contained in Exhibit B, attached
hereto.
4.3 Taxes. All fees are exclusive of any sales taxes, use taxes and any
other taxes and charges of any kind imposed by any federal, state or
local governmental entity for products and services
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provided under this Agreement, and Corio is responsible for payment of
all taxes concerning the Corio Services, excluding taxes based solely
upon Commerce One's income.
4.4 Audit Rights. Corio shall keep true and accurate books of accounts and
records for determining the amounts payable to Commerce One under this
Agreement. Such books and records shall be kept for at least three (3)
years following the end of the calendar month to which they pertain, and
shall be open for inspection by an independent certified public
accountant reasonably acceptable to Corio for the purpose of verifying
the amounts payable to Commerce One under this Agreement. Such
inspections may be made no more than once each calendar year, at
reasonable times and upon reasonable notice. Commerce One shall bear all
costs and expenses of such inspection. If any such inspection discloses
a shortfall or an overpayment, the appropriate party shall promptly pay
the amount of such shortfall or refund such overpayment. In addition, if
any such inspection reveals an underpayment of more than five percent
(5%) for the period under audit, Corio shall reimburse Commerce One for
the reasonable cost of the examination.
5 INSTALLATION SUPPORT, MAINTENANCE AND TRAINING.
5.1 Installation. Commerce One shall provide Corio with access to one (1)
full-time operations consultant for one (1) week at no charge to Corio
as part of the installation project as described in the Corio Statement
of Work - Hosted BuySite ASP, dated October 28, 1999 ("Statement of
Work") incorporated herein by reference.
5.2 Implementation. Commerce One shall provide Corio with sufficient access
to Commerce One's professional services organization during the first
three (3) implementations of the Software conducted by Corio and its
Customers, in accordance with the Statement of Work incorporated herein
by reference, subject to the payment by Corio of the professional
services fee set forth in Exhibit B hereto ("IMPLEMENTATION FEE").
Additionally, during the term of the Agreement the parties shall meet
periodically to discuss Updates and Upgrades to the Software and
MarketSite.net Service to better support Corio's and its Customers'
specific application requirements, to be provided at no charge to Corio.
5.3 Support and Maintenance. Commerce One shall provide Corio with support
described in EXHIBIT C hereto, and maintenance in the form of Updates
and Upgrades. Corio shall be responsible for providing its Customers
with routine technical support of the Software and MarketSite.net
Service. Corio shall escalate any technical support questions or
problems it is unable to answer or resolve directly to Commerce One for
Commerce One's immediate attention and resolution under the schedule set
forth in EXHIBIT C hereto. The support described in this Section 5.3 and
EXHIBIT C hereto shall be provided to Corio but Commerce One shall have
no obligation to provide any maintenance or support services to other
third parties. Subject to Corio's payment of the annual support and
maintenance fee, Commerce One's support and maintenance obligation of
the Software and MarketSite.net Service shall continue after termination
or expiration of this Agreement with respect to all Software Users
granted access to the Software and MarketSite.net Service prior to
termination or expiration of this Agreement.
5.4 Product Management Meetings. The parties agree to meet either in person
or via teleconference on no less than a quarterly basis to discuss,
without limitation, engineering, feature-functionality and
architecture-related issues as they pertain to the Software and
MarketSite.net Service. The specific topics of the meetings will be
determined on a meeting-by-meeting basis. Each party
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shall appoint a product manager to coordinate these meetings. Commerce
One shall provide Corio with information relevant to future Software and
MarketSite.net Service development efforts, including product and
service roadmap, rollout strategy, and plans for future development
efforts. The product managers shall be those persons set forth on
EXHIBIT A hereto.
5.5 Training. Commerce One shall provide Corio with training as reasonably
requested by Corio to train Corio's technical and support personnel
regarding implementation, use and operation of the Software and
MarketSite.net Service as part of the Implementation Fee. Thereafter,
throughout the term of the Agreement and at Corio's request, Commerce
One shall provide additional training to Corio subject to payment of
Commerce One's standard training fees at a [*]. Corio shall be
responsible for training its Customers regarding proper use of the
Software and MarketSite.net Service. Further, the parties shall work
together and cooperate to train Corio's sales force and product
consultants on the Software and MarketSite.net Service and the alliance
contemplated by this Agreement, including without limitation, how to
position, sell and demonstrate the Software and MarketSite.net Service
to potential customers.
5.6 Other Services. Upon Corio's request, Commerce One shall provide certain
professional services, including without limitation, consulting
services, to Corio or its Customers, subject to the mutual written
agreement on the scope of such services, pricing and other terms and
conditions.
5.7 Sales and Marketing Efforts. The parties shall engage in joint marketing
and sales activities as set forth in EXHIBIT D attached hereto and made
a part hereof.
6 TRADEMARKS.
6.1 Right to Display. During the term of this Agreement, each party
authorizes the other party to display and use the other's trademarks,
trade names and logos (collectively, the TRADEMARKS) in connection with
that party's sale, advertisement, service and promotion of the Corio
Services or the Software and MarketSite.net Service. Each party shall
indicate in all product, service, publicity and printed materials
relating to the Corio Services or the Software and MarketSite.net
Service that such trademarks are the property of the originating party.
Upon termination of this Agreement, each party shall cease all display,
advertising and use of all Trademarks of the other party and shall not
thereafter use, advertise or display any trademark, trade name or logo
which is, or any part of which is, confusingly similar to any such
designation association with Corio or the Corio Services or Commerce One
or any Commerce One product.
6.2 Promotion Materials and Activities. All representations of the other
party's Trademarks that a party intends to use shall be exact copies of
those used by the other party and shall first be submitted to the
originating party for approval of design, color and other details, which
consent shall not be unreasonably withheld or delayed. To ensure
trademark quality, each party shall fully comply with all written
guidelines provided by the other party concerning the use of the
originating party's Trademarks. Each party agrees to change or correct
any material or activity that the originating party determines to be
inaccurate, objectionable, misleading or a misuse of the originating
party's Trademarks.
[*] 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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7 WARRANTIES AND DISCLAIMER.
7.1 No Conflict. Each party represents and warrants to the other party that
it is under no current obligation or restriction, nor will it knowingly
assume any such obligation or restriction that does or would in any way
interfere or conflict with, or that does or would present a conflict of
interest concerning the performance to be rendered hereunder or the
rights and licenses granted herein.
7.2 Intellectual Property Warranty. Commerce One represents and warrants to
Corio that (a) Commerce One is the sole and exclusive owner of the
Software; (b) Commerce One has full and sufficient right, title and
authority to grant the rights and/or licenses granted to Corio under
this Agreement; (c) the Software does not contain any materials
developed by a third party used by Commerce One except pursuant to a
license agreement; and (d) the Software does not infringe any patent,
copyright, trade secret, trademark or other intellectual property rights
of a third party.
7.3 Product Warranty. Commerce One warrants that the Software and
MarketSite.net Service will perform in substantial accordance with the
Documentation, and the media on which the Software is distributed will
be free from defects in materials and workmanship under normal use, for
a period of sixty (60) days from the Effective Date, but in no event not
later than December 31, 1999 (the "Warranty Period"). In addition,
Commerce One warrants that during the Warranty Period the Software and
MarketSite.net Service is free of any willfully introduced computer
virus, or any other similar harmful, malicious or hidden program or
data, which is designed to disable, erase, or alter the Software, or any
other files, data, or software. If during the Warranty Period the
Software and MarketSite.net Service does not perform in substantial
compliance with the Documentation, Commerce One shall take all
commercially reasonable efforts to correct the Software and
MarketSite.net Service, or if correction of the Software and
MarketSite.net Service is reasonably not possible, replace such Software
and MarketSite.net Service free of charge. Commerce One will replace any
defective media returned to Commerce One during the Warranty Period. In
the event any such breach of warranty can not be reasonably corrected at
Commerce One's sole expense, Corio has the right to terminate this
Agreement and receive a refund of all prepaid fees. The foregoing are
Corio's sole and exclusive remedies for breach of product warranty. The
warranty set forth above is made to and for the benefit of Corio only.
The warranty shall not apply only if:
(a) the Software and MarketSite.net Service has been not properly
installed and used at all times and in accordance with the
Documentation; and
(b) Corio has requested modifications, alterations or additions to
the Software and MarketSite.net Service that cause it to deviate
from the Documentation.
7.4 Product Warranty - Year 2000 Compliance. Commerce One warrants that the
Software and MarketSite.net Service, when used in accordance with its
associated documentation, is in all material respects capable upon
installation of accurately processing, providing and/or receiving date
data from, into and between the twentieth and twenty-first centuries,
including the years 1999 and 2000, and leap year calculations; provided
that all licensee and third party equipment, systems, hardware, software
and firmware used in combination with the Software and MarketSite.net
Service properly exchange date data with the Software and MarketSite.net
Service
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OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
8 INDEMNIFICATION.
8.1 By Commerce One. Commerce One shall indemnify, defend and hold harmless
Corio and its Customers from any and all damages, liabilities, costs and
expenses (including reasonable attorneys' fees) incurred by Corio or its
Customers arising out of any claim that the Software infringes any
patent, copyright, trademark or trade right secret of a third party;
provided that Corio or its Customer promptly notifies Commerce One in
writing of any such claim and promptly tenders the control and the
defense and settlement of any such claim to Commerce One at Commerce
One's expense and with Commerce One's choice of counsel. Corio or its
Customer shall cooperate with Commerce One, at Commerce One's expense,
in defending or settling such claim and Corio or its Customer may join
in defense with counsel of its choice at its own expense. If the
Software is, or in the opinion of Commerce One may become, the subject
of any claim of infringement or if it is adjudicatively determined that
the Software infringes, then Commerce One may, at its sole option and
expense, either (i) procure for Corio the right from such third party to
use the Software, (ii) replace or modify the Software with other
suitable and substantially equivalent products so that the Software
becomes noninfringing, or if (i) and (ii) are not practicable after
Commerce One has exhausted all diligent efforts, (iii) terminate this
Agreement and refund to Corio a pro-rated portion of the fees paid
hereunder.
8.2 Limitations. Commerce One shall have no liability for any infringement
based on (i) the use of the Software other than as set forth in the
Documentation; or (ii) the modification of the Software by a party other
than Commerce One, when such infringement would not have occurred but
for such modification.
9 LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING UNDER SECTION 8 OF THIS AGREEMENT, IN NO
EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT OR
THE USE OR PERFORMANCE OF THE SOFTWARE EXCEED THE TOTAL AMOUNT ACTUALLY
PAID BY CORIO HEREUNDER FOR THE TRANSACTION WHICH THE LIABILITY RELATES
TO DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE FILING OF THE
CAUSE OF ACTION TO WHICH THE LIABILITY RELATES. EXCEPT FOR LIABILITY
ARISING UNDER SECTION 8 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY
THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES AGREE THAT THIS SECTION 9
REPRESENTS A REASONABLE ALLOCATION OF RISK.
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LIABILITY RELATES. EXCEPT FOR LIABILITY ARISING UNDER SECTION 8 OF THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE
OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES
HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES
AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK.
10 CONFIDENTIALITY.
Each party hereby agrees that it shall not use any Confidential
Information received from the other party other than as expressly
permitted under the terms of a non-disclosure agreement to be
concurrently executed with this Agreement.
11 TERM AND TERMINATION.
11.1 Term. The term of this Agreement shall commence on the Effective Date
and shall continue in full force and effect for an initial period of
five (5) years. Thereafter, this Agreement shall automatically renew for
subsequent one (1) year periods unless either party provides the other
party with written notification at least thirty (30) days prior to the
expiration of the initial five (5) year term or any one (1) year renewal
thereof of its intention to terminate this Agreement.
11.2 Termination. If either party materially breaches any term or condition
of this Agreement and fails to cure such breach within-thirty (30) days
after receiving written notice of the breach, the nonbreaching party may
terminate this Agreement on written notice at any time following the end
of such-thirty (30) day period. This Agreement shall terminate
immediately upon notice if either party becomes insolvent (i.e., becomes
unable to pay its debts in the ordinary course of business as they come
due) or makes an assignment for the benefit of creditors. Compliance by
the Software with the Software's specifications after expiration of the
Warranty Period shall be deemed a material condition of this Agreement.
11.3 Effect of Termination. The following Sections shall survive the
termination or expiration of this Agreement for any reason: 4.2, 5.3, 7,
8, 9, 10, 12 and 14. Corio's right to allow its then-existing Customers
and their Software Users to use and access the Software in accordance
with Section 2 of this Agreement and all payment obligations related
thereto shall survive any termination or expiration of this Agreement.
Commerce One's obligation to provide Software support and maintenance to
Corio and its Customers shall survive any termination or expiration of
this Agreement, provided Corio continues to make its annual support and
maintenance payments as specified in this Agreement. Upon termination or
expiration of this Agreement, each party shall otherwise return or
destroy any Confidential Information of the other party provided,
however, Corio may retain any Confidential Information necessary for
Corio to continue supporting it's then-existing Customers.
12 SOURCE CODE ESCROW.
12.1 Escrow Account. Within sixty (60) days of the Effective Date, Commerce
One agrees to execute an escrow agreement by and among Corio, Commerce
One and a mutually acceptable escrow agent (the "ESCROW AGENT"). The
Escrow Agent shall require Commerce One to place in an
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escrow account in California a copy of the source code of the Software
including all Updates and Upgrades thereto, documentation and similar
materials (the SOURCE CODE). The escrow agreement shall contain, at a
minimum, the terms and conditions set forth in this Section 12. Corio
shall bear all fees, expenses and other charges to open and maintain
such escrow account. If a Release Condition (as defined in Section 12.2
of this Agreement) occurs and the Escrow Agent provides the Source Code
to Corio under the escrow agreement, Corio agrees to hold the Source
Code in confidence pursuant to the provisions contained in Section 10 of
this Agreement, and not to use them for any purpose other than those
purposes contemplated under Section 12.3 of this Agreement.
12.2 Release. Corio shall notify Commerce One in writing if it believes that
one of the following events (the "RELEASE CONDITIONS") has occurred and
that it intends to seek release of the Source Code from the escrow
account: (i) Commerce One's dissolution or ceasing to do business in the
normal course, or (ii) Commerce One's repeated and material breach of
its support and maintenance obligations under Section 5 of this
Agreement and such breach is not cured within sixty (60) days of receipt
of written notice thereof from Corio. If Commerce One notifies Corio in
writing that it disputes whether any such event has occurred, officers
of each of the parties shall negotiate for a period of ten (10) business
days to attempt to resolve the dispute. At the end of such ten (10)
business day period, if the parties have not resolved the dispute, the
matter shall be referred to arbitration in the manner provided in
Section 14.3 of this Agreement.
12.3 License. Upon the release of the Source Code to Corio pursuant to
Section 12.2 of this Agreement, Corio shall have a royalty-free,
nonexclusive, nontransferable, right and license in the Territory to use
and modify the Source Code to support and maintain the Software until
the expiration or termination of Corio's Customers' End User License
Agreements. The object code derived from the Source Code so modified
shall be subject to the same rights and restrictions on use,
reproduction and disclosure that are contained in this Agreement with
respect to the Software. Corio shall not distribute, sell or sublicense
the Source Code. Subject to the licenses expressly granted in this
Agreement, Commerce One shall retain all right, title and interest in
and to the Source Code. This license shall be deemed to extend worldwide
in scope if Corio, at the time one or more Release Conditions has
occurred, has been granted worldwide license rights by Commerce One
under Section 2 of this Agreement.
13 SHARED RESOURCES.
13.1 Operations. To the extent not provided for within the Statement of Work
covered by the Implementation Fee, Commerce One shall provide Corio with
access to Commerce One operations personnel as reasonably requested by
Corio, subject to payment by Corio of Commerce One's standard fees [*].
These Commerce One operations personnel shall work together with Corio
personnel to optimize the architecture and performance of the Software
and MarketSite.net Service in a hosted environment. Commerce One shall
only commit personnel with expertise in installations, operating
environments and networking functionality.
13.2 Consulting. To the extent not provided for within the Statement of Work
covered by the Implementation Fee, Commerce One shall provide Corio with
access to Commerce One consulting personnel as reasonably requested by
Corio, subject to payment by Corio of Commerce One's standard fees [*].
These Commerce One
[*] 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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consulting personnel shall initially work together with Corio personnel
to develop implementation templates. Commerce One may, in its sole but
reasonable discretion, elect to assign resources from a third party
systems integrator subject to advance notification to Corio of such
election.
13.3 Engineering. Commerce One shall provide Corio with reasonable access to
Commerce One engineering personnel at no additional cost to Corio. Joint
engineering work may include product development, including without
limitation, technical and functional application development and
integration.
13.4 Other. All services provided hereunder, in addition to services
subsequently requested by Corio (e.g. customization of the Software)
shall be subject to the terms of a separate agreement between the
parties.
13.5 Ownership. Subject to Commerce One's pre-existing ownership of any
materials or technology provided to Corio, the results of all such
development efforts set forth in this Section 13, including all
intellectual property rights in any software interface coding or
programs created solely by Corio during the term of this Agreement to
enable the Software to operated within the Corio Servers' hosted
environment ("DEVELOPMENTS"), shall be owned by Corio, unless such
Developments are supported on an ongoing basis by Commerce One in which
case Commerce One will retain all ownership rights, including
intellectual property rights in the Developments. To the extent that
Commerce One would otherwise have a claim of ownership in such
Developments, Commerce One hereby assigns all rights in and to such
Developments to Corio. Further, Commerce One represents and warrants
that all Commerce One employees, agents, contractors or consultants that
will be provided to work together with Corio have or will have signed
agreements with customary terms containing confidentiality provisions
and assignment of inventions ("EMPLOYEE NDA/INVENTION AGREEMENT"). Corio
covenants and warrants that it will not disclose to Commerce One or its
officers, directors, employees, agents, contractors or consultants any
proprietary information, including without limitation any technical
information related to Developments created solely by Corio under this
Agreement, except upon the written authorization to do so by a Corporate
Officer of Commerce One. Commerce One covenants that during the term of
this Agreement, it will continue to require all Commerce One employees,
agents, contractors or consultants to sign an Employee NDA/Invention
Agreement and that Commerce One will furnish to Corio copies of such
signed agreements upon Corio's request. Ownership of intellectual
property rights to any enhancements, modifications or derivative works
to the Software itself which may be developed jointly by the parties or
solely by Corio shall be negotiated by the parties prior to the start of
any such development work.
13.6 Independent Development: Covenant not to Sue. Nothing in this Agreement
will be construed to prohibit either parties' right to independently
develop the Developments contemplated above. Each party covenants that
it shall not, under any circumstances, sue the other party (or its
officers, directors, successors and assigns) or any of that parties'
licensees, customers, or distributors ("Protected Entities") for patent
infringment under any future patents or future patent rights relating to
said Developments, that either party owns or controls, so long as that
Protected Entity has a license from Commerce One or Corio to the
Software, or to a product that is a modification of, derivative work
based on, or replacement for the Software. The foregoing covenant is
binding on Corio's permitted successors and assigns, and inures to the
benefit of any
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of Commerce One's successors and assigns, and is binding on Commerce
One's permitted successors and assigns, and inures to the benefit of any
of Corio's successors and assigns.
14 MISCELLANEOUS.
14.1 Assignment. Neither party may assign this Agreement or any rights or
obligations hereunder, whether by operation of law or otherwise, without
the prior written consent of the other party. Notwithstanding the
foregoing, either party shall have the right to assign this Agreement in
connection with the merger or acquisition of such party or the sale of
all or substantially all of its assets related to this Agreement without
such consent, except in the case where such transaction involves a
direct competitor of the other party where consent of the other party
will be required. Subject to the foregoing, this Agreement will bind and
inure to the benefit of the parties, their respective successors and
permitted assigns. Any assignment in violation of this Section 14.1
shall be null and void.
14.2 Waiver and Amendment. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and
signed by the party to be charged. No failure or delay by either party
in exercising any right, power, or remedy under this Agreement, except
as specifically provided herein, shall operate as a waiver of any such
right, power or remedy.
14.3 Choice of Law; Arbitration; Venue. This Agreement shall be governed by
the laws of the State of California, USA, excluding conflict of laws
provisions and excluding the 1980 United Nations Convention on Contracts
for the International Sale of Goods. Any disputes arising out of this
Agreement shall be resolved by binding arbitration in accordance with
the then-current commercial arbitration rules of the American
Arbitration Association ("RULES"). The arbitration shall be conducted by
one (1) arbitrator appointed in accordance with the Rules in San
Francisco County, California. A judgment upon the award may be entered
in any court having jurisdiction of the parties, including without
limitation the courts in San Francisco, California. The non-prevailing
party in the arbitration shall pay all fees and charges of the American
Arbitration Association; each party, however, shall be responsible for
the payment of all fees and expenses connected with the presentation of
its respective case.
14.4 Notices. All notices, demands or consents required or permitted under
this Agreement shall be in writing. Notice shall be considered delivered
and effective on the earlier of actual receipt or when (a) personally
delivered; (b) the day following transmission if sent by telex, telegram
or facsimile followed by written confirmation by registered overnight
carrier or certified United States mail; or (c) one (1) day after
posting when sent by registered private overnight carrier (e.g., DHL,
Federal Express, etc.); or (d) five (5) days after posting when sent by
certified United States mail. Notice shall be sent to the parties at the
addresses set forth on the first page of this Agreement or at such other
address as shall be specified by either party to the other in writing.
14.5 Independent Contractors. The parties are independent contractors with
respect to each other. Each party is not and shall not be deemed to be
an employee, agent, partner or legal representative of the other for any
purpose and shall not have any right, power or authority to create any
obligation or responsibility on behalf of the other.
14.6 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall be
changed and interpreted so as to best accomplish the
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objectives of the original provision to the fullest extent allowed by
law and the remaining provisions of this Agreement shall remain in full
force and effect.
14.7 Force Majeure. Neither party shall be deemed to be in breach of this
agreement for any failure or delay in performance caused by reasons
beyond its reasonable control, including but not limited to acts of God,
earthquakes, strikes or shortages of materials.
14.8 Subcontract. Commerce One understands and agrees that Corio shall solely
direct the provision of Corio Services and may subcontract certain
portions of the Corio Services to third parties at any time during the
term of the Agreement.
14.9 Bankruptcy. The parties hereto agree that Corio, as a licensee of
Commerce One's intellectual property, shall be afforded all of the
protections afforded to a licensee under Section 365(n) of the United
States Bankruptcy Code, as amended from time to time (the "CODE") so
that the Trustee or Debtor in Possession, as defined in the Code, will
not interfere with Corio's license with respect to the Software as
provided in this Agreement, as set forth in Section 365(n) of the Code.
14.10 Complete Understanding. This Agreement including all Exhibits, and the
Non Disclosure Agreement and the Statement of Work referenced in this
Agreement and incorporated by reference herein, constitutes the final,
complete and exclusive agreement between the parties with respect to the
subject matter hereof, and supersedes any prior or contemporaneous
agreement. IN WITNESS WHEREOF, the parties have executed this Agreement
as of the Effective Date.
CORIO, INC. COMMERCE ONE, INC.
By: /s/ Signature Illegible By: /s/ Signature Illegible
--------------------------------
Name: GEORGE KADIFA Name: MARK S. BIESTMAN
--------------------------- ------------------------------
Title: CEO Title: V.P. WORLDWIDE SALES
-------------------------- ------------------------------
Date: 11/5/99 Date:
-------------------------- ------------------------------
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EXHIBIT A
SOFTWARE
1. SOFTWARE.
Hosted BuySite v 6.0
2. DEMONSTRATION SOFTWARE.
Hosted BuySite v 6.0
3. RELATIONSHIP MANAGERS. The Corio Relationship Manager shall be:
__________. The Commerce One Relationship Manager shall be: ________.
4. PRODUCT MANAGERS. For purposes of Section 5.4 of this Agreement, the
Corio product manager shall be: _________.
The Commerce One product manager shall be: _______________.
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EXHIBIT B
PRICING
SOFTWARE:
BuySite Hosted Edition version 6.0
MarketSite.net Service access
SOFTWARE USERS:
BuySite Hosted Edition: Unlimited
LICENSE FEES:
BuySite Hosted Edition: [*]
MARKETSITE.NET SERVICE FEES:
MarketSite.net Service Access:
Year 1 [*]
Year 2-5, and beyond: [*]
MAINTENANCE AND SUPPORT FEES:
Year 1 [*]
Year 2-5, and beyond: [*]
REVENUE SHARING FEES:
1. MarketSite Transaction Revenue:
Commerce One to pay Corio [*] of all transaction fees from Corio
Customer transactions on MarketSite.
2. Corio Customer Application Management Revenue:
Corio to pay Commerce One [*] of all Application Management Revenue from
Corio Customers for use of Commerce One Software or MarketSite.net
Service Access subject to the following limitations.
A. No Application Management Revenue shall be due for any
Corio Customer subscriptions utilizing the initial 3000
Software User licenses granted herein, subject to a
minimum limitation of 40 Authorized Software Users per
Customer
B. The Corio invoice amounts used to calculate the revenues
subject to this revenue share shall not include
Professional Service fees, or Network access fees.
C. These Application Management Revenue fees shall begin
accruing when the Corio Customer begins live operations.
IMPLEMENTATION FEES:
Time and Materials Basis
Billed at [*] in accordance with The Statement of Work as agreed between
the parties, not to exceed [*].
* 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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PAYMENT TERMS
License Fees: Due upon Software Acceptance.
Maintenance and Support Fees: Net 30 of Software acceptance anniversary date,
and each year thereafter. Revenue Sharing Fees: Quarterly payments shall be due
to receiving party, net 30 days after quarter close.
Implementation or Professional Service Fees: Net 30 days from date of Commerce
One invoice, which shall be issued only after successful completion of each
agreed upon milestone.
MarketSite.net Access Fee: Due upon Software Acceptance, and on each annual
anniversary of Software Acceptance thereafter.
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EXHIBIT C
CUSTOMER SERVICE OUTLINE
1. CONTACTING SUPPORT:
EMAIL: [email protected]
FAX: (925) 941-6060
SUPPORT HOTLINE: (925) 941-5959
WWW: http://commerceone.com/solutions/osupport.htm
Our web access allows you to submit new incidents and be notified in real time
by the support team, who will provide suggestions and technical support to
resolve your issue. Such support will include clarification of the functions and
features of the Software, clarification of the documentation, guidance in the
operations of the Software, and error correction analysis and verification to
the extent possible remotely.
2. SERVICE HOURS: Staffed Monday - Friday, 7 am to 7 pm PST (except
holidays). After hours support available 24x7 for Priority 1 technical issues
only.
3. PRIORITY DEFINITION:
COMMERCE ONE RESPONSIBILITIES:
* Priority 1: The software and/or the hosted physical
infrastructure is not operational and no workaround
exists. Customer's production/business is seriously
affected.
* Priority 2: Software and/or the hosted physical
infrastructure functionality is impaired, does not work
like proposed, but it is operational
CORIO RESPONSIBILITIES:
* Priority 3: Minor software and/or the hosted physical
infrastructure problems or functionality questions.
* Priority 4: Enhancement request or cosmetic problems.
4. RESPONSE TIME: (Commitment to customers)
Commence One will make every attempt to contact our customers within 30 minutes
of the report of a critical incident, and to notify and work with any third
party vendors providing ancillary services that may be affected by the incident.
However, for providing specific action plans for resolutions, we are committed
to the following schedule:
* Priority 1 incidents: 2 hours
* Priority 2 incidents: 4 hours
For resolution of incidents, we are committed to the following schedule:
* Priority 1 incidents: we will respond as provided above
and continue resolution efforts on a 24 x 7 basis until
the incident has been resolved
* Priority 2 incidents: we will respond as provided above
and continue resolution efforts during business hours
until the incident has been resolved
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5. SUPPORT CONTACTS:
Up to 5 individuals can be designated as "Registered Customers" to contact
Commerce One for Support services. Upon written notice, customers may change
their designated contacts. [Additional contacts can be purchased at additional
cost as mutually agreed. Specify the 5 contacts on the Customer Profile form.
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EXHIBIT D
SALES AND MARKETING COOPERATION
The parties agree to the following non-binding sales and marketing cooperation
efforts:
1. RELATIONSHIP MANAGERS. The parties' Relationship Managers would attempt
to meet at mutually agreeable times no less than every quarter to review
and coordinate sales efforts and review customer response to the
Software, the MarketSite.net Services and the Corio Services, and
address other topics related to this Agreement.
2. SALES COMPENSATION. The parties agree to provide their internal and
external sales and marketing personnel sufficient compensation
incentives designed to actively promote and encourage cross-selling of
the Corio Services, and the Software and the MarketSite.net Services,
respectively.
3. JOINT MARKETING PLANS. During the term of this Agreement the parties
agree to develop, review and submit to each other new and continuing
marketing plans with respect to the Corio Services and the Software and
MarketSite.net Services, respectively.
4. MARKETING FUND. Within six (6) months after the Effective Date of the
Agreement, Corio and Commerce One each would contribute to a marketing
fund to be jointly managed by the parties to promote the sale and
marketing of the Corio Services, the Software and the MarketSite.net
Services.
5. PERSONNEL. Each party agrees to assign one (1) existing sales or
marketing employee primarily dedicated to assist in the sales and
marketing promotional activity set forth in this Exhibit D.
6. COOPERATION AND PUBLICITY. Upon mutual agreement, Corio and Commerce One
may engage in the following activities: joint publicity releases, joint
marketing materials, joint marketing calls, joint conference and trade
show efforts, and strategy coordination concerned with promoting the
Software, the MarketSite.net Services and the Corio Services in the
commercial marketplace.
7. INITIAL CUSTOMERS. Within sixty (60) days after the Effective Date of
the Agreement, Corio agrees to use commercially reasonable efforts to
obtain orders from two (2) Customers for the Corio Services which
include access to the Software and MarketSite.net Services.
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