CORIO, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of _______,
_______ by and between Corio, Inc., a Delaware corporation (the "Company"), and
____________________ ("Indemnitee").
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve the Company and its
related entities;
WHEREAS, in order to induce Indemnitee to continue to provide services
to the Company, the Company wishes to provide for the indemnification of, and
the advancement of expenses to, Indemnitee to the maximum extent permitted by
law;
WHEREAS, the Company and Indemnitee recognize the continued difficulty
in obtaining liability insurance for the Company's directors, officers,
employees, agents and fiduciaries, the significant increases in the cost of such
insurance and the general reductions in the coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors, officers,
employees, agents and fiduciaries to expensive litigation risks at the same time
as the availability and coverage of liability insurance has been severely
limited; and
WHEREAS, in view of the considerations set forth above, the Company
desires that Indemnitee shall be indemnified and advanced expenses by the
Company as set forth herein;
NOW, THEREFORE, the Company and Indemnitee hereby agree as set forth
below.
1. Certain Definitions.
(a) "Change in Control" shall mean, and shall be deemed to have
occurred if, on or after the date of this Agreement, (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company acting in such capacity or a corporation
owned directly or indirectly by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company, becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing more than 50% of the total
voting power represented by the Company's then
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outstanding Voting Securities, (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board of
Directors or nomination for election by the Company's stockholders was approved
by a vote of at least two thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation other than a
merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of
related transactions) all or substantially all of the Company's assets.
(b) "Claim" shall mean with respect to a Covered Event: any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.
(c) References to the "Company" shall include, in addition to
Corio, Inc., any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to which Corio, Inc. (or any
of its wholly owned subsidiaries) is a party which, if its separate existence
had continued, would have had power and authority to indemnify its directors,
officers, employees, agents or fiduciaries, so that if Indemnitee is or was a
director, officer, employee, agent or fiduciary of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.
(d) "Covered Event" shall mean any event or occurrence related to
the fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or any subsidiary of the Company, or is or was serving
at the request of the Company as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action or inaction on the part of Indemnitee
while serving in such capacity.
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(e) "Expenses" shall mean any and all expenses (including
attorneys' fees and all other costs, expenses and obligations incurred in
connection with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, to be a witness in or to
participate in, any action, suit, proceeding, alternative dispute resolution
mechanism, hearing, inquiry or investigation), judgments, fines, penalties and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) of any Claim and any
federal, state, local or foreign taxes imposed on the Indemnitee as a result of
the actual or deemed receipt of any payments under this Agreement.
(f) "Expense Advance" shall mean a payment to Indemnitee pursuant
to Section 3 of Expenses in advance of the settlement of or final judgement in
any action, suit, proceeding or alternative dispute resolution mechanism,
hearing, inquiry or investigation which constitutes a Claim.
(g) "Independent Legal Counsel" shall mean an attorney or firm of
attorneys, selected in accordance with the provisions of Section 2(d) hereof,
who shall not have otherwise performed services for the Company or Indemnitee
within the last three years (other than with respect to matters concerning the
rights of Indemnitee under this Agreement, or of other Indemnitees under similar
indemnity agreements).
(h) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to "serving
at the request of the Company" shall include any service as a director, officer,
employee, agent or fiduciary of the Company which imposes duties on, or involves
services by, such director, officer, employee, agent or fiduciary with respect
to an employee benefit plan, its participants or its beneficiaries; and if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan, Indemnitee shall be deemed to have acted in a manner "not opposed to the
best interests of the Company" as referred to in this Agreement.
(i) "Reviewing Party" shall mean, subject to the provisions of
Section 2(d), any person or body appointed by the Board of Directors in
accordance with applicable law to review the Company's obligations hereunder and
under applicable law, which may include a member or members of the Company's
Board of Directors, Independent Legal Counsel or any other person or body not a
party to the particular Claim for which Indemnitee is seeking indemnification.
(j) "Section" refers to a section of this Agreement unless
otherwise indicated.
(k) "Voting Securities" shall mean any securities of the Company
that vote in the election of directors.
2. Indemnification.
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(a) Indemnification of Expenses. Subject to the provisions of
Section 2(b) below, the Company shall indemnify Indemnitee for Expenses to the
fullest extent permitted by law if Indemnitee was or is or becomes a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant in, any Claim (whether by reason of or arising in
part out of a Covered Event), including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses.
(b) Review of Indemnification Obligations. Notwithstanding the
foregoing, in the event any Reviewing Party shall have determined (in a written
opinion, in any case in which Independent Legal Counsel is the Reviewing Party)
that Indemnitee is not entitled to be indemnified hereunder under applicable
law, (i) the Company shall have no further obligation under Section 2(a) to make
any payments to Indemnitee not made prior to such determination by such
Reviewing Party, and (ii) the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all Expenses
theretofore paid to Indemnitee to which Indemnitee is not entitled hereunder
under applicable law; provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee is entitled to be indemnified hereunder
under applicable law, any determination made by any Reviewing Party that
Indemnitee is not entitled to be indemnified hereunder under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expenses theretofore paid in indemnifying Indemnitee until a
final judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed). Indemnitee's
obligation to reimburse the Company for any Expenses shall be unsecured and no
interest shall be charged thereon.
(c) Indemnitee Rights on Unfavorable Determination; Binding
Effect. If any Reviewing Party determines that Indemnitee substantively is not
entitled to be indemnified hereunder in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation seeking an initial
determination by the court or challenging any such determination by such
Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and, subject to the provisions of Section 15, the Company hereby
consents to service of process and to appear in any such proceeding. Absent such
litigation, any determination by any Reviewing Party shall be conclusive and
binding on the Company and Indemnitee.
(d) Selection of Reviewing Party; Change in Control. If there has
not been a Change in Control, any Reviewing Party shall be selected by the Board
of Directors, and if there has been such a Change in Control (other than a
Change in Control which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to such Change in Control),
any Reviewing Party with respect to all matters thereafter arising concerning
the rights of Indemnitee to indemnification of Expenses under this Agreement or
any other agreement or under the Company's Certificate of Incorporation or
Bylaws as now or hereafter in effect, or under any other applicable law, if
desired by Indemnitee, shall be Independent Legal
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Counsel selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld). Such counsel, among other things, shall render
its written opinion to the Company and Indemnitee as to whether and to what
extent Indemnitee would be entitled to be indemnified hereunder under applicable
law and the Company agrees to abide by such opinion. The Company agrees to pay
the reasonable fees of the Independent Legal Counsel referred to above and to
indemnify fully such counsel against any and all expenses (including attorneys'
fees), claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto. Notwithstanding any other provision
of this Agreement, the Company shall not be required to pay Expenses of more
than one Independent Legal Counsel in connection with all matters concerning a
single Indemnitee, and such Independent Legal Counsel shall be the Independent
Legal Counsel for any or all other Indemnitees unless (i) the Company otherwise
determines or (ii) any Indemnitee shall provide a written statement setting
forth in detail a reasonable objection to such Independent Legal Counsel
representing other Indemnitees.
(e) Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement other than Section 10 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of any
Claim, Indemnitee shall be indemnified against all Expenses incurred by
Indemnitee in connection therewith.
3. Expense Advances.
(a) Obligation to Make Expense Advances. Upon receipt of a
written undertaking by or on behalf of the Indemnitee to repay such amounts if
it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified therefore by the Company hereunder under applicable law, the Company
shall make Expense Advances to Indemnitee.
(b) Form of Undertaking. Any obligation to repay any Expense
Advances hereunder pursuant to a written undertaking by the Indemnitee shall be
unsecured and no interest shall be charged thereon.
(c) Determination of Reasonable Expense Advances. The parties
agree that for the purposes of any Expense Advance for which Indemnitee has made
written demand to the Company in accordance with this Agreement, all Expenses
included in such Expense Advance that are certified by affidavit of Indemnitee's
counsel as being reasonable shall be presumed conclusively to be reasonable.
4. Procedures for Indemnification and Expense Advances.
(a) Timing of Payments. All payments of Expenses (including,
without limitation, Expense Advances) by the Company to the Indemnitee pursuant
to this Agreement shall be made to the fullest extent permitted by law as soon
as practicable after written demand by
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Indemnitee therefor is presented to the Company, but in no event later than
thirty (30) business days after such written demand by Indemnitee is presented
to the Company, except in the case of Expense Advances, which shall be made no
later than ten (10) business days after such written demand by Indemnitee is
presented to the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to Indemnitee's right to be indemnified or Indemnitee's
right to receive Expense Advances under this Agreement, give the Company notice
in writing as soon as practicable of any Claim made against Indemnitee for which
indemnification will or could be sought under this Agreement. Notice to the
Company shall be directed to the Chief Executive Officer of the Company at the
address shown on the signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnitee). In addition, Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
(c) No Presumptions; Burden of Proof. For purposes of this
Agreement, the termination of any Claim by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by this
Agreement or applicable law. In addition, neither the failure of any Reviewing
Party to have made a determination as to whether Indemnitee has met any
particular standard of conduct or had any particular belief, nor an actual
determination by any Reviewing Party that Indemnitee has not met such standard
of conduct or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that Indemnitee
should be indemnified under this Agreement under applicable law, shall be a
defense to Indemnitee's claim or create a presumption that Indemnitee has not
met any particular standard of conduct or did not have any particular belief. In
connection with any determination by any Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder under applicable
law, the burden of proof shall be on the Company to establish that Indemnitee is
not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 4(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall give
prompt notice of the commencement of such Claim to the insurers in accordance
with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such Claim in
accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be
obligated hereunder to provide indemnification for or make any Expense Advances
with respect to the Expenses of any Claim, the Company, if appropriate, shall be
entitled to assume the defense of
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such Claim with counsel approved by Indemnitee (which approval shall not be
unreasonably withheld) upon the delivery to Indemnitee of written notice of the
Company's election to do so. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees or
expenses of separate counsel subsequently retained by or on behalf of Indemnitee
with respect to the same Claim; provided that, (i) Indemnitee shall have the
right to employ Indemnitee's separate counsel in any such Claim at Indemnitee's
expense and (ii) if (A) the employment of separate counsel by Indemnitee has
been previously authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense, or (C) the Company shall not
continue to retain such counsel to defend such Claim, then the fees and expenses
of Indemnitee's separate counsel shall be Expenses for which Indemnitee may
receive indemnification or Expense Advances hereunder.
5. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify the Indemnitee
to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company's Certificate of Incorporation, the Company's Bylaws or
by statute. In the event of any change after the date of this Agreement in any
applicable law, statute or rule which expands the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits afforded by such
change. In the event of any change in any applicable law, statute or rule which
narrows the right of a Delaware corporation to indemnify a member of its board
of directors or an officer, employee, agent or fiduciary, such change, to the
extent not otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties' rights and
obligations hereunder except as set forth in Section 10(a) hereof.
(b) Nonexclusivity. The indemnification and the payment of
Expense Advances provided by this Agreement shall be in addition to any rights
to which Indemnitee may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any other agreement, any vote of stockholders or
disinterested directors, the General Corporation Law of the State of Delaware,
or otherwise. The indemnification and the payment of Expense Advances provided
under this Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity even though subsequent thereto
Indemnitee may have ceased to serve in such capacity.
6. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision
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of the Company's Certificate of Incorporation, Bylaws or otherwise) of the
amounts otherwise payable hereunder.
7. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses incurred in connection with any Claim, but not, however, for
all of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such Expenses to which Indemnitee is entitled.
8. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy may prohibit
the Company from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company's right under public policy to indemnify Indemnitee.
9. Liability Insurance. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are provided to the most favorably
insured of the Company's directors, if Indemnitee is a director; or of the
Company's officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company's key employees, agents or fiduciaries, if Indemnitee
is not an officer or director but is a key employee, agent or fiduciary.
10. Exceptions. Notwithstanding any other provision of this Agreement,
the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Action or Omissions. To indemnify or make Expense
Advances to Indemnitee with respect to Claims arising out of acts, omissions or
transactions for which Indemnitee is prohibited from receiving indemnification
under applicable law.
(b) Claims Initiated by Indemnitee. To indemnify or make Expense
Advances to Indemnitee with respect to Claims initiated or brought voluntarily
by Indemnitee and not by way of defense, counterclaim or crossclaim, except (i)
with respect to actions or proceedings brought to establish or enforce a right
to indemnification under this Agreement or any other agreement or insurance
policy or under the Company's Certificate of Incorporation or Bylaws now or
hereafter in effect relating to Claims for Covered Events, (ii) in specific
cases if the Board of Directors has approved the initiation or bringing of such
Claim, or (iii) as otherwise required under Section 145 of the Delaware General
Corporation Law, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, Expense Advances, or insurance recovery, as
the case may be.
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(c) Lack of Good Faith. To indemnify Indemnitee for any Expenses
incurred by the Indemnitee with respect to any action instituted (i) by
Indemnitee to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that each of
the material assertions made by the Indemnitee as a basis for such action was
not made in good faith or was frivolous, or (ii) by or in the name of the
Company to enforce or interpret this Agreement, if a court having jurisdiction
over such action determines as provided in Section 13 that each of the material
defenses asserted by Indemnitee in such action was made in bad faith or was
frivolous.
(d) Claims Under Section 16(b). To indemnify Indemnitee for
Expenses and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. Binding Effect; Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), spouses, heirs and
personal and legal representatives. The Company shall require and cause any
successor (whether direct or indirect, and whether by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve as
a director, officer, employee, agent or fiduciary (as applicable) of the Company
or of any other enterprise at the Company's request.
13. Expenses Incurred in Action Relating to Enforcement or
Interpretation. In the event that any action is instituted by Indemnitee under
this Agreement or under any liability insurance policies maintained by the
Company to enforce or interpret any of the terms hereof or thereof, Indemnitee
shall be entitled to be indemnified for all Expenses incurred by Indemnitee with
respect to such action (including, without limitation, attorneys' fees),
regardless of whether Indemnitee is ultimately successful in such action, unless
as a part of such action a court having jurisdiction over such action makes a
final judicial determination (as to which all rights of appeal therefrom have
been exhausted or lapsed) that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was
frivolous; provided, however, that until such final judicial determination is
made, Indemnitee shall be entitled under Section 3 to receive payment of Expense
Advances hereunder with respect to such action. In the event of an action
instituted by or
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in the name of the Company under this Agreement to enforce or interpret any of
the terms of this Agreement, Indemnitee shall be entitled to be indemnified for
all Expenses incurred by Indemnitee in defense of such action (including,
without limitation, costs and expenses incurred with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action a court having jurisdiction over such action makes a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or
lapsed) that each of the material defenses asserted by Indemnitee in such action
was made in bad faith or was frivolous; provided, however, that until such final
judicial determination is made, Indemnitee shall be entitled under Section 3 to
receive payment of Expense Advances hereunder with respect to such action.
14. Period of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal
action within such two year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action, such
shorter period shall govern.
15. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice.
16. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.
17. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
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18. Choice of Law. This Agreement, and all rights, remedies,
liabilities, powers and duties of the parties to this Agreement, shall be
governed by and construed in accordance with the laws of the State of Delaware
as applied to contracts between Delaware residents entered into and to be
performed entirely in the State of Delaware without regard to principles of
conflicts of laws.
19. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
20. Amendment and Termination. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless it is in writing
signed by both the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed to be or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver.
21. Integration and Entire Agreement. This Agreement sets forth the
entire understanding between the parties hereto and supersedes and merges all
previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof between the parties hereto.
22. No Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Company or any of its subsidiaries or affiliated entities.
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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.
CORIO, INC.
A Delaware Corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: 700 Bay Road, Suite 210
Redwood City, CA 94063
AGREED TO AND ACCEPTED
INDEMNITEE:
---------------------------------
(signature)
Name:
----------------------------
Address:
-------------------------
12
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.2
<SEQUENCE>8
<DESCRIPTION>EXHIBIT 10.2
<TEXT>
<PAGE> 1
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.
<PAGE> 2
"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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<PAGE> 3
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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<PAGE> 4
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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<PAGE> 5
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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<PAGE> 6
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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<PAGE> 7
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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<PAGE> 8
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 [*] 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
[*] 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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<PAGE> 9
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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<PAGE> 10
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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<PAGE> 11
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
<PAGE> 12
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.
<PAGE> 15
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.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.3
<SEQUENCE>9
<DESCRIPTION>EXHIBIT 10.3
<TEXT>
<PAGE> 1
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.
-1-
<PAGE> 2
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
-2-
<PAGE> 3
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.
-3-
<PAGE> 4
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 six 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.
-4-
<PAGE> 5
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 two 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 two 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.
-5-
<PAGE> 6
(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.
-6-
<PAGE> 7
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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<PAGE> 8
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 [*] 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 rec