Reseller Agreement between BroadVision, Inc. and Corio, Inc. dated November 8, 1999
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This agreement is between BroadVision, Inc. and Corio, Inc., allowing Corio to resell and sublicense BroadVision's software to end-users. Corio receives nonexclusive, nontransferable licenses to use, develop, and demonstrate the software, and to sublicense it to customers under specific terms. Corio must ensure end-users sign required license agreements and is responsible for payments to BroadVision regardless of its own collections. The agreement also covers technical support fees, delivery terms, and restrictions on software use. The agreement is governed by the terms of a related Master Agreement between the parties.
EX-10.4 4 ex10-4.txt EXHIBIT 10.4 1 Exhibit 10.4 Contract No ____________ RESELLER AGREEMENT This Reseller Agreement ("Agreement") is made and entered into as of this 8th day of November 1999, between BroadVision, Inc. ("BroadVision") and Company Corio, Inc. ("Reseller") Address 700 Bay Road, Suite 210 Redwood City, CA 94063 This Reseller Agreement is attached to and incorporated by reference into that certain Master Agreement dated the date hereof between Reseller and BroadVision (the "Master Agreement"). Terms defined in the Master Agreement and used herein shall have the respective meanings ascribed to them in the Master Agreement. In consideration of the mutual covenants and conditions contained in this Agreement and in the Master Agreement, the parties agree as stated herein. The following attachments, required when applicable, are also part of this Agreement: A. Scope of License B. Current Licensing Practices C. Required Provisions of Sublicenses D. Support Escalation Procedure E. Master Preferred Escrow Agreement 1. LICENSE. A. DEVELOPER LICENSE. BroadVision hereby grants to Reseller a nonexclusive and nontransferable license ("Developer License"), subject to the terms and conditions of this Agreement, to use the object code for the Software. For the purpose of this Agreement, "Software" shall mean the software products set forth in Attachment A, including all versions, including current, previous, and subsequent versions, of all software products, together with operating instructions, user manuals, training material, and other documentation as BroadVision supplies to Reseller. Reseller's sole permitted uses of a Developer License shall be to develop and demonstrate the application software products and/or systems listed in Attachment A ("the Application") that it intends to license to end-user customers ("End-Users"). Reseller's use of Developer Licenses shall be in a manner consistent with Attachment B. Developer Licenses may not be used to operate production versions of the Application, or any other Reseller or End-User programs on a production basis. B. END-USER LICENSE. BroadVision also grants to Reseller a nonexclusive and nontransferable license to sublicense and distribute the Software to its End-Users, on a nonexclusive and nontransferable basis ("End-User License"), on Reseller's servers in a hosted environment for use solely in conjunction with the Application, in the geographic areas specified in Attachment A ("Territory"). Reseller shall require each End-User, before it may use or install the Application, to execute a written license agreement containing, at a minimum, the required provisions specified in Attachment C. Reseller shall indemnify BroadVision for all damages caused by Reseller's failure to include required terms in its sublicense agreements with its End-Users. Reseller may also obtain End-User Licenses for its own use, in the event that it itself intends to operate production versions of the Software; such End-User Licenses shall be governed by the terms and conditions of this Agreement, as if Reseller had sublicensed to an End-User. C. PROHIBITED USES. Reseller may not (a) rent, lease, or loan the Software other than allowed for in this Agreement; (b) electronically transmit the Software over a network except as necessary for Reseller's licensed use of the Software; (c) use run-time versions of third-party products embedded in the Software, if any, for any use other than the intended use of the Software, (d) modify, disassemble, decompile, or reverse engineer the Software; (e) transfer possession of any copy of the Software to another party, except as expressly permitted herein; (f) sublicense or permit the Software to be sublicensed to any governmental entity without BroadVision's prior written consent; or (g) use the Software in any way not expressly provided for in this Agreement. There are no implied licenses. Reseller agrees not to exceed the scope of the licenses granted herein. Reseller acknowledges and agrees that BroadVision may, at any time without notice, incorporate license management software into the Software to prevent Reseller or End Users from exceeding the scope of their respective licenses. 2. PAYMENT, PRICES. Except as set forth in the Master Agreement: A. For Developer Licenses, consulting, training, and documentation, invoices shall be issued upon delivery of the products or services, unless agreed to the contrary, and shall be due and payable in United States currency upon receipt by Reseller. * 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 1 of 8 2 Payment shall be overdue thirty (30) days after the delivery date specified on the invoice. B. Within thirty (30) days of delivery of each copy of the Software from BroadVision to Reseller or the End-User, or from Reseller to the End-User if Reseller has reproduction rights as set forth in Section 2.D below, Reseller shall pay BroadVision the applicable license or sublicense fee as set forth in the Master Agreement and as reported in Section 3 herein. Reseller is free to determine unilaterally its own sublicense fees to its End-Users. RESELLER'S OBLIGATION TO PAY SUBLICENSE FEES TO BROADVISION IS NOT CONTINGENT UPON RESELLER'S COLLECTION FROM ITS END-USERS. C. Technical support fees are due annually in advance of the anniversary date of each Developer License and End-User License, including the first year, since BroadVision's technical support fees are not bundled together with license fees. The annual price for technical support for Developer Licenses shall be BroadVision's then-current price for such services. Reseller may, at its option, make all technical support fees payable a common anniversary date, in which case only a prorated portion of the technical support fee shall be due immediately upon delivery of the license or sublicense. D. Software will be shipped FOB BroadVision's facility in Redwood City, California, U.S.A., by commercial surface transportation. Transportation charges in excess of such rates will be billed to Reseller. Except to the extent prohibited by law or contract, BroadVision will permit Reseller to obtain its initial copy of the Software by FTP transfer over the Internet in accordance with instructions provided by BroadVision. Reseller will download the initial copy of the Software promptly after execution of this Agreement and will thereafter download any separately priced version of Software promptly after the issuance of its purchase order to BroadVision for such version. Reseller will promptly notify BroadVision if it makes any copies of the Software as downloaded if such copy would require the payment of additional fees to BroadVision. Software shall be deemed accepted upon delivery. Reseller may produce its own copies of the Software for delivery to End-Users from a master copy provided by BroadVision so long as it notifies BroadVision in writing of any copies that it makes for such purpose and pays any applicable fees. E. The prices stated in BroadVision quotations are exclusive of any federal, state, municipal, value-added, foreign withholding or other governmental taxes, duties, fees, excises, or tariffs now or hereafter imposed on the production, storage, licensing, sale, transportation, import, export, or use of the Software or any improvements, alterations, or amendments to the Software. Reseller shall be responsible for, and if necessary reimburse, BroadVision for all such taxes, duties, fees, excises, or tariffs, except for governmental or local taxes imposed on BroadVision's corporate net income. Overdue payments shall be subject to a finance charge of one and one-half percent (1 1/2%) for each month or fraction thereof that the invoice is overdue, or the highest interest rate permitted by applicable law, whichever is lower. BroadVision shall also be reimbursed for its collection costs in the event of late payments, including reasonable attorney's fees. 3. REPORTING. Except as set forth in the Master Agreement, each month Reseller, within fifteen (15) days following the end of such month, shall provide BroadVision a report including the following: i. a list of each End-User License delivered and each End-User agreement executed, specifying the name and location of the sublicensee; ii. a detailed account of all fees due to BroadVision under this Agreement. 4. SOFTWARE MAINTENANCE. A. BroadVision agrees to provide Reseller with software maintenance subject to the provisions and conditions listed below. Reseller shall be solely responsible for installing and supporting its Customers; BroadVision will refer back to Reseller any questions BroadVision receives from Customers. i. Software maintenance shall include (i) telephone and electronic mail support provided during BroadVision's normal working hours, and (ii) standard releases containing improvements or modifications to the Software that BroadVision provides to its maintenance customers generally where such improvements or modifications are not priced as separate new products or options ("Standard Release"). A copy of BroadVision's support escalation Page 2 of 8 3 procedure, including targeted response times, is set forth in Attachment D hereto. ii. BroadVision shall provide software maintenance for any Standard Release only until one year after shipment of the subsequent Standard Release. iii. Reseller shall designate one Support Contact Person for each Customer, who shall be responsible for communicating support issues to BroadVision; provided, that in no event may the total number of such Support Contact Persons exceed eight (8) unless otherwise agreed by BroadVision. Reseller agrees to provide BroadVision with timely written notification containing all details of software problems necessary for BroadVision to diagnose such problems. Reseller agrees to cooperate fully in providing BroadVision with Reseller's source code, in machine-readable form, and other materials necessary to reproduce a reported software problem. Subject to Reseller's security requirements, Reseller agrees to provide BroadVision reasonable direct or remote access and test time on Reseller's BroadVision system, for the purpose of diagnosing reported software problems. If BroadVision provides on-site services at Reseller's request in connection with software maintenance, Reseller shall reimburse BroadVision for all travel and other reasonable out-of-pocket expenses incurred with respect to such services. iv. Software maintenance will also include any patch releases ("Patch Releases") that BroadVision makes available to its maintenance customers generally. Patch Releases are intended to address material deviations between the Software and its published specifications until a Standard Release can be made available. Reseller may install Patch Releases at its option. v. BroadVision shall not be responsible for maintaining Software that fails to comply with its published specifications if such non-compliance is the result of modification of the Software by Reseller or third parties. If BroadVision expends its time on a noncompliance found to be the result of any of the preceding or due to the operation of the Application, Reseller shall pay BroadVision for such time at BroadVision's then-current hourly consulting rate. B. BroadVision will give Reseller at least sixty days advance notice of the expiration of the applicable annual maintenance period and the annual maintenance fees for the ensuing annual maintenance period. Such prices will be determined in accordance with the Master Agreement and this Agreement. Reseller may renew maintenance for all (but not less than all) copies of the Software licensed to it by giving BroadVision written notice of such renewal on or before the beginning of the applicable maintenance renewal period. In the event of termination for Reseller's breach or Reseller's convenience, all maintenance fees shall be immediately due and payable without notice; in the event of termination for any other reason, Reseller shall be entitled to a refund of maintenance fees already paid, prorated for the unused portion of such fees. If BroadVision determines that it is in its best interests to cease providing its customers generally with maintenance for any or all of the Software, BroadVision may discontinue its maintenance obligations to Reseller (and to Reseller's Customers if BroadVision exercises its rights under Section 12 hereof) with respect to such Software by giving Reseller at least one year's prior written notice of such discontinuance. C. Annual software maintenance fees are due and payable in advance; in all other respects payments are subject to the terms and conditions of the Agreement. D. If Reseller initially declines software maintenance and then subsequently elects to commence maintenance, or if maintenance for an item of Software is discontinued at Reseller's request and then subsequently renewed, Reseller shall pay the maintenance fees that would have been due for the period during which maintenance was not provided. 5. CONDUCT. A. Reseller shall employee the highest reasonable professional standards in selling and supporting the Application, and shall avoid deceptive, misleading, or unethical practices that may be detrimental to BroadVision or to the Software. Reseller personnel shall obtain training from BroadVision, at BroadVision's then-current standard rates, in the proper use of the Software, and shall provide, or arrange for BroadVision to provide, such training to Customers where appropriate. Reseller and BroadVision shall Page 3 of 8 4 comply with all laws applicable to the subject matter of this Agreement. Failure to honor the terms of this section shall constitute a material breach of this Agreement; provided, however, that prior to BroadVision terminating this Agreement for any such failure, BroadVision and Reseller will promptly attempt to resolve any disagreement over such failure in good faith. B. Subject to the terms and conditions of this Agreement, BroadVision hereby grants to Reseller a non-exclusive, non-transferable, non-sublicenseable license to use the BroadVision trademarks, trade names, and logos (the "Marks") to advertise the Software in the Territory. Reseller acknowledges BroadVision's ownership and exclusive rights in the Marks. Reseller's use of the Marks shall inure to the benefit of BroadVision. Reseller shall not attempt to register the Marks or adopt, use or attempt to register any confusingly similar marks. BroadVision may immediately terminate this trademark license if Reseller's use of the Marks does not conform to BroadVision's then-current standards and usage policy. Reseller shall state at the first instance of each use of a Mark that the Mark is BroadVision's trademark and include the symbols TM or (R) as appropriate. Reseller shall not use any trademark, word, symbol, letter or design in combination with the Marks in any manner which would create a combination mark. C. Unless otherwise requested by BroadVision, Reseller shall ensure that the phrase "Personalized by BroadVision One-To-One" shall appear on the logon screen, splash screen, or other first view of the Application seen by consumers or other end-users when they enter the Application and will use all commercially reasonable efforts to obtain the consent of Customers to the foregoing in connection with their respective uses of the Application. The above phrase shall be a hypertext link to a URL specified by BroadVision. Reseller's use of the phrase shall be in accordance with BroadVision's guidelines for use of the mark. 6. TITLE TO SOFTWARE. Reseller shall include BroadVision's copyright or proprietary rights notice on any copies of the Software or associated documentation, including copyright or proprietary rights notices of third parties that are included on media or in documentation provided by BroadVision. Reseller acknowledges that the Software is the property of BroadVision or its licensors. Subject to BroadVision's ownership of any materials or technology provided to Reseller, including without limitation the Software, the results of all development efforts made solely by Reseller, including all intellectual property rights in any software interface coding or programs created solely by Reseller during the term of this Agreement to enable the Software to operate within Reseller's hosted environment ("Developments"), shall be owned by Reseller, unless otherwise agreed or unless such Developments are supported on an ongoing basis by BroadVision, in which case BroadVision will have or retain all ownership rights, including intellectual property rights in the Developments. To the extent that BroadVision would otherwise have a claim of ownership in Developments, BroadVision hereby assigns all rights in and to such Developments to Reseller. 7. WARRANTY. BroadVision warrants that the Software will conform in all material respects to its written specifications when installed and for 90 days thereafter. For purposes of this Agreement, the sole source of such specifications shall be BroadVision's written user documentation as provided to Reseller concurrently with the delivery of the Software. BroadVision further warrants that the Software is and shall be "Year 2000 Compliant". For purposes of this Section 7, the term "Year 2000 Compliant" means that, through January 31, 2001 (a) no value for a current date will cause any interruption in operation; (b) date-based functionality will behave consistently for dates prior to, during, and after year 2000; (c) in all interfaces and data storage, the century in any date must be specified either explicitly or by unambiguous algorithms or inferencing rules; and (d) year 2000 must be recognized as a leap year. BroadVision further warrants, so long as Reseller is purchasing maintenance services pursuant to Section 4 hereof, that its maintenance services will be performed in a professional and workmanlike manner. Reseller will notify BroadVision during or within thirty (30) days after the expiration of the applicable warranty period set forth above of any nonconformity. Where a material nonconformity exists within the warranty period, and proper notice has been given to BroadVision, BroadVision will use due diligence to correct the nonconformity and provide Reseller with one copy of any such corrected version of the Software, or, if BroadVision is unable to correct such nonconformance within a reasonable period of time, refund all license fees paid to it for the Software, or the most recent software maintenance fee paid for the Software, if the nonconformity relates to a Standard Page 4 of 8 5 Release or maintenance services delivered pursuant to Section 4 herein. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, AND BROADVISION EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. 8. LIMITATION OF LIABILITY. Except for a party's liability under Section 9 hereof and for breaches of Section 13 of the Master Agreement and Section 10 hereof, each party's liability to the other under this Agreement or for any other reason relating to the products and services provided under this Agreement, including claims for contribution or indemnity, shall be limited to the amount paid to BroadVision under this Agreement. NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY UNDER THIS AGREEMENT, EACH PARTY AGREES THAT IN NO EVENT SHALL THE OTHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS OF USE, HOWEVER ARISING INCLUDING NEGLIGENCE; PROVIDED, HOWEVER, THAT LOST REVENUE OR LOST PROFITS ARISING FROM A PARTY'S UNAUTHORIZED USE, DISCLOSURE OR DISTRIBUTION OF THE OTHER PARTY'S CONFIDENTIAL INFORMATION (INCLUDING WITHOUT LIMITATION THE SOFTWARE) SHALL BE DEEMED A DIRECT DAMAGE. 9. INTELLECTUAL PROPERTY RIGHTS INDEMNITY. A. BroadVision will defend any action against Reseller claiming that the Software constitutes infringement or misappropriation of any patent, copyright, trademark, trade secret or intellectual property right. BroadVision shall indemnify Reseller for any reasonable expense incurred by Reseller in connection with the foregoing. BroadVision's obligations under this section are conditioned upon BroadVision having sole control of any such action, and upon Reseller notifying BroadVision immediately in writing of the claim and giving authority, information, and assistance necessary to settle or defend such claim. If the use of the Software infringes or is enjoined, or BroadVision believes it is likely to infringe or be enjoined, BroadVision may, at its sole option, (i) procure for Reseller the right to continue use of the licensed Software as furnished; (ii) replace the licensed Software; (iii) modify the licensed Software to make it non-infringing, provided that the Software still substantially conforms to the applicable specifications; or (iv) if BroadVision, after using all commercially reasonable efforts, is unable to accomplish the foregoing remedies, terminate the license and refund the license fee for the Software, less a proportional adjustment for the time the Software was used by Reseller, equal to the ratio of the time elapsed since the delivery date to five (5) years. The indemnity provided herein shall not apply if the alleged infringement arises from: (a) the use of other than a currently supported, unaltered release of the licensed Software; (b) the use of Software that has been modified or merged with other programs by Reseller; or (c) the use of the licensed Software in combination with software or hardware not provided under this Agreement or with the Application. The foregoing states BroadVision's sole and exclusive liability for patent, copyright, or other proprietary rights infringement or for breach of any express or implied warranty of title, ownership or non-infringement. B. Reseller will defend any action against BroadVision (a) claiming that any software provided by Reseller to Customers (other than the Software) infringes or misappropriates any patent, copyright, trademark, trade secret or intellectual property right; or (b) resulting from Reseller's acts, omissions, or misrepresentations. Reseller shall indemnify BroadVision for any reasonable expense incurred by BroadVision in connection with the foregoing. Reseller's obligations under this section are conditioned upon Reseller having sole control of any such action, and upon BroadVision notifying Reseller immediately in writing of the claim and giving authority, information, and assistance necessary to settle or defend such claim. 10. CONFIDENTIALITY OF SOFTWARE AND DOCUMENTS. A. Except to the extent permitted in the Master Agreement, Reseller shall not reproduce, duplicate, copy, sell, or otherwise disseminate the Software, including operating instructions, user manuals, and training materials, in any medium except as authorized herein. B. Reseller acknowledges that the Software is BroadVision's extremely valuable trade secret. With respect to any copies of the Software retained by Reseller for its internal use, Reseller shall not disclose the Software to any third parties Page 5 of 8 6 (other than onsite contractors who are subject to confidentiality and use restrictions similar to those contained in this Agreement) nor use the Software for any purpose other than as expressly stated in this Agreement. With respect to copies of the Software that Reseller procures or makes for redistribution, such copies may only be redistributed so long as the recipient satisfies the requirements of this Agreement and, without limiting the foregoing, is subject to the use and disclosure restrictions of Attachment C. C. Reseller shall not release the results of any benchmark of the Software, or of any third party products embedded in the Software, without BroadVision's prior written approval. 11. AUDIT RIGHTS. No more than once annually, BroadVision may audit Reseller's records to ensure that license and other fees have been properly paid in compliance with this Agreement. Any such audit will be conducted during regular business hours at Reseller's offices and shall not interfere unreasonably with Reseller's business activities. If an audit reveals that Reseller has underpaid its total fees by more than five percent (5%), then Reseller shall pay BroadVision's reasonable costs of conducting the audit, in addition to the underpaid amount. 12. TERM/TERMINATION. A. This Agreement shall be for an initial term of forty-eight months unless the Agreement is terminated previously as provided herein. B. BroadVision may terminate this Agreement upon 30 days prior written notice and an opportunity for Reseller to cure within such 30 days: (a) any material breach of this Agreement by Reseller; or (b) failure by Reseller to pay license fees for Software under the payment terms specified in this Agreement or as stated on BroadVision's invoice for such Software. Reseller may terminate this Agreement upon 30 days written notice and an opportunity for BroadVision to cure any material breach of this Agreement by BroadVision with such 30 days. C. Upon termination of this Agreement for any reason, the following shall occur: i. Reseller's rights under this Agreement shall automatically cease, provided that all sublicenses shall continue according to their terms. Reseller may continue using the release of the Software then in its possession solely for the purpose of continuing technical support for sublicenses granted prior to termination. ii. Reseller shall return to BroadVision or destroy the Software and other marketing materials, software, and data, except as required for the operation of Section 12.C.i above. iii. BroadVision shall, within sixty (60) days after the effective date of termination of this Agreement have the option to assume the responsibility of providing maintenance and support for the Software to any or all of Reseller's customers pursuant to BroadVision's standard terms and conditions for the performance of such services, provided such customer requests such assumption and BroadVision consents. Reseller shall provide BroadVision with copies of all maintenance agreements in force with End-Users. Reseller shall pay to BroadVision a prorated portion of the maintenance fees paid by such customers and retained by Reseller for the remaining terms of such agreements. Notwithstanding the foregoing, so long as Reseller is paying BroadVision Revenue Fees and annual maintenance fees for other copies of Software licensed to Reseller (including Software subsequently sublicensed to Customers), BroadVision will continue to provide maintenance services to Reseller pursuant to Section 4 hereof following termination or expiration of this Agreement unless BroadVision terminates this Agreement (a) because Reseller has not made payments under the Master Agreement or this Agreement when due, or (b) for Reseller's use, reproduction, disclosure or distribution of any of the Software in a manner not authorized by this Agreement or the Master Agreement. iv. Reseller's obligations under Sections 2 (to the extent that any amounts are owed to BroadVision as of the termination date), and Sections 4, 6, 7, 8, 9, 10, 12, and 13 will survive the termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement. 13. GENERAL. A. WAIVER/AMENDMENT. No waiver, amendment, or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment, or modification is sought to be enforced. No failure or delay by either party in exercising any Page 6 of 8 7 right, power or remedy under this Agreement, except as specifically provided herein, shall be deemed as a waiver of any such right, power, or remedy. B. ASSIGNMENT. Either party may assign this Agreement to an entity acquiring substantially all of its assets or merging with it, provided that such assignee agree in writing to assume all obligations under this Agreement. Except as set forth above, neither party may assign any of its rights or delegate any of its obligations under this Agreement to any third party without the express written consent of the other. Any attempted assignment in violation of the foregoing shall be void and of no effect. Subject to the above, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. C. DISPUTES. The rights of the parties hereunder shall be governed by the laws of the State of California without giving effect to principles of conflicts of laws. Any suits brought hereunder may be brought in the federal or state courts in Santa Clara County, California, and Reseller submits to the jurisdiction thereof. The parties expressly exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods, if applicable. Reseller acknowledges that the Software contains trade secrets, the disclosure of which would cause substantial harm to BroadVision that could not be remedied by the payment of damages alone. Accordingly, BroadVision will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any breach of BroadVision's intellectual property rights in the Software. D. SEVERABILITY. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. E. EXPORT. Reseller acknowledges that the laws and regulations of the United States restrict the export of the Software. Reseller agrees that it will not export or re-export the Software in any form without first obtaining the appropriate United States and foreign government approvals. F. NOTICE. Any notice, consent, or other communication hereunder shall be in writing, and shall be given personally, by confirmed fax or express delivery to either party at their respective addresses: (i) to BroadVision at: BroadVision, Inc. 585 Broadway Redwood City, CA 94063, USA Attn: Chief Financial Officer (ii) to Reseller at: Corio, Inc. 700 Bay Road, Suite 210 Redwood City, CA 94063 Attn: Roger Lee or such other address as may be designated by written notice of either party. Notices shall be deemed given when delivered or transmitted, or seven days after deposit in the mail. G. INDEPENDENT CONTRACTORS. The parties' relationship shall be solely that of independent contractor and nothing contained in this Agreement shall be construed to make either party an agent, partner, joint venturer, or representative of the other for any purpose. H. FORCE MAJEURE. If the performance of this Agreement, or any obligation hereunder, except the making of payments, is prevented, restricted, or interfered with by reason of any act or condition beyond the reasonable control of the affected party, the party so affected will be excused from performance to the extent of such prevention, restriction, or interference. I. ENTIRE AGREEMENT. All products and services delivered by BroadVision to Reseller are subject to the terms of this Agreement, unless specifically addressed in a separate agreement. 14. ESCROW. If Reseller so elects within ninety (90) days after the execution of this Agreement, Reseller may become a party to the agreement pursuant to which BroadVision has deposited the source code to the Software. Such escrow agreement is attached hereto as Attachment E. Reseller shall bear the costs of opening and maintaining such escrow account. Page 7 of 8 8 AGREED TO BY: BROADVISION, INC. /s/ Signature Illegible Signature Randall Bolten -------------- Printed Name CFO --- Title RESELLER: CORIO, INC. /s/ Signature Illegible Signature Laurent Pacalin --------------- Printed Name VP Business Development 11/8/99 ------------------------------- Title Page 8 of 8 9 Contract No. _____________________ ATTACHMENT A TO RESELLER AGREEMENT SCOPE OF LICENSE The following BroadVision products may be licensed to and sublicensed by Reseller under the terms and conditions of the Agreement, and are collectively referred to as the "Software" in the Agreement: BroadVision One-To-One Development System (aka BroadVision One-To-One Enterprise) BroadVision One-To-One Commerce Retail BroadVision One-To-One Commerce Business BroadVision One-To-One Deployment System BroadVision One-To-One Command Center BroadVision One-To-One Publishing Center BroadVision One-To-One Instant Publisher BroadVision One-To-One Design Center Reseller may use the Software to develop the following programs, collectively referred to as the "Application" in the Agreement, intended to be licensed to, or operated on behalf of, End-Users: Application is an eCommerce solution offering hosted and managed by Reseller on behalf of its customers. The Reseller's eCommerce solution is the Software integrated with the hardware, software, and services that Reseller provides to its Customers on a hosted basis. Application includes functionality related to multiple eCommerce businesses, malls, and business to business applications. Reseller may use third parties in development of the Application, provided they abide with this Agreement. Reseller may sublicense the Software in the following geographic areas, collectively referred to as the "Territory" in the Agreement: [*] Any request by Reseller to expand the Territory is subject to BroadVision's agreement, which agreement will not be unreasonably withheld. BroadVision will not condition such expansion on the payment of any expansion fee or to a change in the Revenue Fee methodology described in the Master Agreement. If BroadVision consents to any such expansion of the Territory and BroadVision offers a localized version of all or part of the Software on its local price list, Reseller will have the right to acquire licenses for such localized versions on the terms set forth in the price list, subject to the discount structure set forth in the Master Agreement. Notwithstanding anything to the contrary herein, Reseller may not sublicense Software or permit Software to be sublicensed to the following countries, corporations and their affiliates: (a) in the countries of [*] prior to December 1, 1999; (b) to the following financial services End-Users, prior to July 1, 2000, for applications relating to consumer or corporate financial services: [*] [*] 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 1 of 2 10 [*] (c) [*] Initialed by: BroadVision Reseller [*] 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 11 Contract No. _____________ ATTACHMENT B TO RESELLER AGREEMENT BROADVISION LICENSING PRACTICES BroadVision's current standard licensing practices are as follows for the products listed below. These practices are in effect as of June 15, 1999. * ONE-TO-ONE DEVELOPMENT SYSTEM -- licensed on a per-user basis. In other words, each individual who will use the One-To-One Development System to develop BroadVision One-To-One applications must be separately licensed. Customer may reassign One-To-One Development System licenses within reason, for example as employees terminate employment or transfer to other departments. One-To-One Development System products include: * ENTERPRISE DEVELOPMENT SYSTEM -- the basic BroadVision development system * APPLICATION DEVELOPMENT SYSTEM -- includes the Enterprise Development System and the objects and other products necessary to develop ONE of the BroadVision Applications (Retail Commerce, Financial, or Knowledge) * TWO APPLICATION DEVELOPMENT SYSTEM -- same as the Application Development System, but for TWO of the BroadVision Applications (NOTE: Business Commerce by itself is counted as a Two Application Development System) THREE APPLICATION DEVELOPMENT SYSTEM -- same as the Application Development System, but for THREE of the BroadVision Applications * ONE-TO-ONE DEPLOYMENT SYSTEM -- licensing is based on the maximum number of Profiled Users permitted to be tracked by BroadVision One-To-One applications. A Profiled User corresponds to a record in the BroadVision user profile database. The record maintains information about the user's profile and may refer to external sources for additional profile information. The number of Profiled Users represents the number of one-to-one relationships that Customer wants to maintain with its users. By licensing a number of profiled users the customer is paying for the right to keep that many records in the BroadVision user profile database at any point in time. Examples of Profiled Users include, but are not limited to customers, partners and employees. * ONE-TO-ONE TOOLS -- licensed on a per-user basis, similar to the One-To-One Development System products. One-To-One Tools include: * ONE-TO-ONE COMMAND CENTER, formerly known as the Dynamic Command Center, or DCC * ONE-TO-ONE PUBLISHING CENTER, formerly known as the Content Management Center, or CMC * ONE-TO-ONE INSTANT PUBLISHER * ONE-TO-ONE DESIGN CENTER, formerly known as the Visual Design Center, or VDC [NOTE: The One-To-One Command Center, the One-To-One Publishing Center, and the One-To-One Instant Publisher may be sublicensed to third parties using Customer's application software in accordance with the terms of this Agreement.] Page 1 of 1 12 Contract No ________________________ ATTACHMENT C TO RESELLER AGREEMENT REQUIRED PROVISIONS OF SUBLICENSE AGREEMENTS This Attachment C is incorporated into the Reseller Agreement (the "Agreement") dated the 8th day of November, 1999 between BroadVision, Inc. ("BroadVision") and Corio, Inc. ("Reseller"). The terms and conditions contained herein are subject in all respects to the terms and conditions of that Agreement, except that in the event of a conflict between the terms of this Attachment C and the Agreement, the terms of this Attachment C shall govern. Each agreement sublicensing the Software entered into between Reseller and its End-Users shall contain provisions that are at least as protective of BroadVision's interests as the following: 1. End-Users shall be licensed to use the object code of the Software only in accordance with BroadVision's licensing practices. Unless stated otherwise in the licensing practices, End-Users shall have the right to duplicate the Software only for backup or archival purposes and as necessary to transfer the Software to a backup computer in the event of computer malfunction. 2. End-Users shall not (i) rent, lease, or loan the Software; (ii) electronically transmit the Software over a network except as necessary for End-User's licensed use of the Software; (iii) use run-time versions of third-party products embedded in the Software, if any, for any use other than the intended use of the Software, (iv) modify, disassemble, decompile, or reverse engineer the Software; (v) sublicense or transfer possession of any copy of the Software to another party, except as expressly permitted by BroadVision; or (vi) use the Software in any way not expressly provided for. 3. Title to the Software shall not pass to the End-User. End-User shall include BroadVision's copyright or proprietary rights notice on any copies of the Software or associated documentation, including copyright or proprietary rights notices of third parties that are included on media or in documentation provided by BroadVision. End-User shall acknowledge that the Software is the property of BroadVision or its licensors. 4. End-User may be permitted to grant nontransferable sublicenses to portions of the Software, where such grants are explicitly permitted by BroadVision's licensing practices. End-User shall require each such sublicensee, before it may use or install the sublicensed Software, to execute a written license agreement containing, at a minimum, the required provisions specified in this Attachment. End-User shall indemnify BroadVision for all losses, costs, damages, expenses, and liabilities caused by a sublicensee's failure to honor the terms of such sublicense, or by End-User's failure to include required terms in its sublicense agreements with its sublicensees. 5. Unless otherwise requested by BroadVision, End-User shall ensure that the phrase "Personalized by BroadVision One-To-One" shall appear prominently on the logon screen, splash screen, or other first view of the End-User's application seen by consumers or other end-users when they enter such application. The above phrase shall be a hypertext link to a URL specified by BroadVision. End-User's use of the phrase shall be in accordance with BroadVision's guidelines for use of the mark. 6. BroadVision disclaims all warranties, express or implied, to End-Users. 7. BroadVision shall not be liable for any damages, whether direct, indirect, incidental, or consequential, arising from the use of the Software. 8. End-User shall not reproduce, duplicate, copy, sell, or otherwise disclose, or disseminate the Software, including operating instructions, user manuals, and training materials, in any medium except as expressly permitted pursuant to BroadVision's licensing practices or this Attachment. End-User expressly undertakes, using reasonable efforts not less than it exercises for its own confidential materials, to retain in confidence, and to require its employees or consultants to retain the Software in confidence, and will make no use of such information, except under the terms and during the existence of its Agreement with Reseller, and only to the extent that such use is necessary to End-User's employees or consultants in the course of their employment. 9. At the termination of the End-User License, the End-User shall discontinue use and shall destroy or return Page 1 of 2 13 the Software to BroadVision, including all archival or other copies. 10. BroadVision is a third-party beneficiary of the End-User License agreement with Reseller. 11. The End-User shall not publish any result of benchmark tests run on the Software. 12. End-User may assign its license to the Software only to an entity acquiring substantially all of its assets or merging with it, provided that such assignee agree in writing to assume all associated obligations. Otherwise, End-User may not assign its rights in the Software to any third party, and any attempted assignment in violation of the foregoing shall be void and of no effect. 13. The End-User shall comply fully with all relevant regulations of the United States Department of Commerce and with the U.S. Export Administration to assure that the Software is not exported in violation of the code and regulations. Page 2 of 2 14 Attachment D To Software License and Services Agreement BROADVISION SUPPORT POLICY Case tracking is the procedure of tracking customer-reported problems. BroadVision support engineers open cases in the order in which they are received. Cases have different priorities and will be treated accordingly. Standard support is provided from 9am to 6pm PT in America, and 9am to 6pm GMT in Europe. (For enhanced support coverage see the section below concerning After-hours support.) If a case hasn't been opened after 1 day the Support manager will be notified. After 2 days the Support Director will be notified. CASE ESCALATION AND 'HOT SITE' STATUS The support engineer opening a case will set case priority. A customer may request that a case be escalated at any time by contacting the Support engineer or the Support Manager. Unusually important site problems will be considered 'hot sites'. This includes such issues as serious reliability problems or significant performance problems on production systems. To escalate a case, the customer may notify their Support engineer or the Support Manager. A 'hot site' will gain Executive level attention and all necessary resources to resolve the issue as quickly as possible. A hot site will have a dedicated Support engineer until it is resolved. The customer is expected to provide technical resources, remote access and reproducible cases as necessary. BroadVision will manage a list of issues to be resolved in the escalation to be communicated daily by the assigned Support engineer. Once all the issues are resolved, the escalation to 'hot site' will be closed. The response and turnaround times indicated below are BroadVision's most reasonable estimates of such times. Such times may be impacted by a number of factors beyond BroadVision's reasonable control, including without limitation the fact that the source of the problem may exist with a component not provided by BroadVision. BroadVision will not be deemed to be in breach of its maintenance obligations to Reseller if it fails to meet such response or turnaround times due to factors beyond BroadVision's reasonable control. PRIORITY 1 The highest level is reserved for site-down type failures. Once BroadVision support is notified that a site is down they will start work to restore the site as soon as possible. If a site is not restored after 4 hrs of work the Support engineer will move the site to 'hot site' status. The WPSO engineer who worked on the site will be contacted and Support Director notified of escalation. After 1 day of escalation VP WPSO and VP Engineering will be notified. The VPs will identify additional resources to work on the problem. After 2 days of escalation the CEO will be notified. PRIORITY 2 Level 2 is for serious problems on a site not causing total failure. BroadVision Support will start work on the site as soon as they are aware of the problem. If a workaround has not been developed after 1 day of work by Support then the Support Director will be notified. After 3 days of work VP WPSO and VP Engineering will be notified. PRIORITY 3 The third level is for general issues on a site not causing serious problems. If a case isn't resolved after 2 days the Support Manager will be notified. After 3 days the Support Director will be notified. 15 PRIORITY 4 The lowest level is for questions or issues on a site not requiring immediate action. If a case isn't resolved after 3 days the Support Manager will be notified. After 5 days the Support Director will be notified. AFTER-HOURS SUPPORT An optional support package is available to provide support 7 days a week, 24 hrs a day for assistance with serious problems on live-sites. It will not support development questions/issues. Customers with this support will be provided with a single pager number to contact the on-call Support person in the case of a priority 1 support call. It is preferred that the customer must provide BroadVision dialup access to the site in order to for support to able to provide assistance in the recovery process. The Support engineer on call will have a laptop so that he/she can then dial into the website and help effect system recovery. DOCUMENTING KNOWN PROBLEMS This note is to announce BroadVision's policy of sharing bug lists with customers. Several customers and the field have requested that we share an edited version of the bug list with our customers. The intent is to pro-actively let the customers know about known problems and document workarounds. Support, engineering and product management will decide which problems to report. Today we publish some of this information in the Known Problems section of the Release Notes. The following is our policy of enhancing this information as well as updating the known bugs every month and making it available through the support section of the BroadVision web site. 1. Currently we provide the following information in the Known Problems section of the Release Notes. The Release Notes will be updated upon every release. Bug Information: problem ID, brief description, any known workaround 2. Starting with version 4.1 Technical Support will update the Known Bugs section to include known bugs reported since the last release. This will be updated once a month. Since the updates will be written by Technical Support, it will be directed to an engineering audience. At product release time, Tech Pubs will roll them into the formal Release Notes. 3. We will also make the following patch information available on our Tech support site: Patch Number: Date released: Required previous patches: Resolved problems:
- PRODUCT ENHANCEMENT REQUEST PROCEDURE TO SUBMIT AN ENHANCEMENT REQUEST Log in to Broadvision.com\login.html. Select Support, and then click "Submit a new ticket". Include the text "Enhancement" in the description before submitting the request, and the product you wish to submit an enhancement request for. PM will review enhancements on a weekly basis and respond to you, the submitter, with the status
