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EXHIBIT 10.35
* CONFIDENTIAL TREATMENT REQUESTED.
CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
April 1, 1996 HNC Software Inc.
5930 Cornerstone Court West
San Diego, CA 92121-3728
Tel: 619.546.8877
Fax: 619.452.6524
Robin Johnson
Infoseek Corporation
2620 Augustine Drive, Suite 250
Santa Clara CA 95054
Dear Robin:
The purpose of this letter is to set forth the terms and conditions whereby HNC
will provide Infoseek with a copy of HNC's CONVECTIS(TM) software (the "HNC
Software") prior to the execution of a definitive software license agreement
between the parties (the "Definitive Agreement"), which the parties acknowledge
is currently under negotiation between them.
As such, it is agreed that:
1. HNC's provision of the HNC Software to Infoseek shall be subject to the terms
and conditions of the Definitive Agreement as well as the Mutual Confidentiality
and Non-Disclosure Agreement executed by the parties as of April 2, 1996 (the
"Non-Disclosure Agreement"). It is acknowledged that the HNC Software shall be
considered "Confidential Information" for purposes of the Non-Disclosure
Agreement.
2. In the event the Definitive Agreement is not executed by both parties on or
before June 30, 1996, Infoseek shall immediately discontinue all use of the HNC
Software and, within ten (10) days thereof, return the original and all copies
of the HNC Software (as well as any and all HNC Confidential Information in
Infoseek's possession) to HNC. Such shipment shall be accompanied by a written
statement signed by an officer of Infoseek certifying that all HNC Software and
HNC Confidential Information provided to Infoseek in connection with the HNC
Software (as well as any copies thereof) has been either returned to HNC or
destroyed by Infoseek.
3. In the event of any return of the HNC Software as described in Section 2
above, HNC shall refund to Infoseek all amounts actually paid to HNC by
Infoseek in accordance with a quotation from HNC dated March 26, 1996, less
*[ ], which represents [ ] of the Installation Fee described in said quotation.
Please acknowledge your agreement to the above-referenced terms by signing this
letter in the space below and returning one copy of this letter to my attention
by return fax and U.S. Mail.
Sincerely, AGREED:
HNC SOFTWARE INC. INFOSEEK CORPORATION
Michael A. Thiemann By:________________________________
Executive Vice President Robin Johnson, President and CEO
Date signed:_______________________
- ----------------------------------------
*CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
2
March 26, 1996 HNC Software Inc.
5930 Cornerstone Court West
San Diego, CA 92121-3728
Tel: 619.546.8877
Fax: 619.452.6524
Infoseek Corporation
2620 Augustine Drive, Suite 250
Santa Clara CA 95054
Re: QUOTATION
The purpose of this letter is to provide Infoseek with a quotation with respect
to Infoseek's licensing of HNC's CONVECTIS(TM) product ("CONVECTIS").
This quotation shall not be construed as a license to Infoseek with respect to
CONVECTIS; such a license shall only be extended to Infoseek in accordance with
a software license agreement executed by both HNC and Infoseek. This quotation
assumes that HNC and Infoseek will enter into such a software license agreement
with respect to CONVECTIS as soon as reasonably practicable. However, this
quotation does not include all of the terms and conditions to be contained in
any such software license agreement.
As such, HNC provides the following quotation to Infoseek with respect to
CONVECTIS:
===============================================================================
Item Amount(3)
- -------------------------------------------------------------------------------
*Installation Fee(1) [ ]
- -------------------------------------------------------------------------------
*Annual Convectis License(2) [ ]
(includes one Convectis tuning workstation)
- -------------------------------------------------------------------------------
*Additional Convectis tuning workstation license(2) [ ]
- -------------------------------------------------------------------------------
*Annual Convectis Maintenance (includes one Convectis tuning [ ]
workstation license)(2)
- -------------------------------------------------------------------------------
*Additional Convectis tuning workstation maintenance(2) [ ]
===============================================================================
(1) A portion of this fee may be refundable in accordance with the terms and
conditions to be contained in the software license agreement.
(2) Quote is limited to first year fees only; fees for any subsequent year(s)
shall be paid in accordance with the terms and conditions to be contained in the
software license agreement.
(3) Fees shall be due and payable in accordance with the mutually agreed upon
terms of the Definitive Agreement.
Travel-related Expenses.
The Installation, License, and Maintenance fees set forth above and in any
software license agreement are exclusive of any travel-related expenses incurred
by HNC with respect to the subject matter of this quotation. Accordingly, any
travel related expenses HNC incurs with respect to the subject matter of this
quotation are to be reimbursed to HNC as provided herein in addition to the
payment of any other fees payable to HNC hereunder. Actual expenses will be
invoiced monthly and full reimbursement for such expenses will be due and
payable to HNC from Infoseek within thirty (30) days of Infoseek's receipt of
HNC's invoice therefor at the following rates, subject to increase as provided
in the section entitled "Consumer Price Index Adjustments" below:
Hotel (per day maximum) $ 160.00 per person
Meals (per day maximum) $ 40.00 per person
Automobile (full or luxury size) HNC's Actual Cost
Business Airfare HNC's Actual Cost
Courier Costs HNC's Actual Cost
Out-of-Pocket Expenses HNC's Actual Cost
Automobile mileage (if personal car) IRS Allowed Standard
- --------
* CONFIDENTIAL TREATMENT REQUESTED
FOR REDACTED PORTION
Page 1 of 2
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Infoseek Corporation
March 26, 1996
_______________
CONSUMER PRICE INDEX ADJUSTMENTS.
- --------------------------------
All fees, prices, labor rates and expense reimbursement rates set forth in this
quotation and in any software license agreement will be reviewed at the end of
each anniversary of the software license agreement's effective date, including
each year during any renewal of the software license agreement. This review will
commence on the first day of the anniversary month of the software license
agreement effective date and adjustments will be made to all such prices, labor
rates and expense reimbursement rates with reference to the percentage increase
(if any) of the Consumer Price Index (CPI), for the San Diego, California area,
but such increases will not be made at an annual rate in excess of CPI increase
plus four percent (4%). No decrease in any fee, price, labor rate or expense
reimbursement rate will be made.
This quotation shall be effective until April 2, 1996.
Sincerely,
HNC SOFTWARE INC.
Raymond V. Thomas
Vice President, Finance and Administration
Chief Financial Officer
cc: Michael Thiemann
John Gaffney
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HNC/Infoseek Mutual Confidentiality and Non-Disclosure Agreement
MUTUAL CONFIDENTIALITY
AND NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement is entered into as
of April 2, 1996 (the "Effective Date") by and between HNC Software Inc., a
Delaware corporation, and Infoseek, a California corporation (hereinafter
collectively referred to as "the parties").
WHEREAS, the parties recognize that each other's business involves
specialized and proprietary knowledge, information, methods, processes,
techniques, and skills peculiar to their security and growth. The parties
acknowledge that any disclosure of such methods, processes, skills, financial
data, or other confidential or proprietary information would substantially
injure the party's business, impair the party's investments and goodwill, and
jeopardize the party's relationship with the party's clients and customers;
WHEREAS, the parties presently desire to consult with each other with respect
to certain matters;
WHEREAS, in the course of such consultation the parties anticipate disclosing
to each other certain information of a novel, proprietary, or confidential
nature, and desire that such information be subject to all of the terms and
conditions set forth below.
NOW, THEREFORE, the parties hereto, in consideration of the premises and
other good and valuable consideration, agree as follows:
1. Confidential Information. "Confidential Information" shall mean and include
any information which relates to the financial and/or business operations of
each party, including, but not limited to, information relating to each party's
customers, products, processes, financial condition, employees, manufacturing
techniques, experimental work and/or trade secrets. Said Confidential
Information is deemed proprietary by the parties hereto. The Subject Matter of
this Agreement, as well as any additional information disclosed hereunder that
is deemed Confidential Information by the parties is described in Exhibit A
attached hereto and incorporated herein by this reference.
2. Use of Confidential Information. Each party agrees not to use the other's
Confidential Information for any purpose other than for the specific
consultation regarding the subject matter of this Agreement. Any other use of
such Confidential Information shall be made only upon the prior written consent
from an authorized representative of the party which disclosed such information
(hereinafter the "Disclosing Party") or pursuant to subsequent agreement between
the parties.
3. Non-Disclosure of Proprietary Information. The parties agree that from the
date of receipt, the party receiving the Confidential Information (hereinafter
the "Receiving Party") shall not disclose Confidential Information to any other
person, firm, corporation or other entity or use it for its own benefit except
as provided in this Agreement. The Receiving Party shall not publish, divulge,
communicate, or reveal any Confidential Information to any person, corporation,
or other third party or to any of Receiving Party's employees who do not have a
need to know such Confidential Information with respect to their job duties. The
Receiving Party shall use the same degree of care to avoid publication or
dissemination of the Confidential Information as it would with respect to its
own confidential information. These efforts shall specifically include document
control measures, such as numbered copies and sign out logs, and imposing on all
employees, agents and other representatives of Receiving Party restrictions at
least as strict as required by this Agreement.
"Confidential Information" shall not include information, technical data or
know-how which:
(a) is already known to the Receiving Party at the time of disclosure and is
not otherwise subject to restriction;
(b) is or becomes publicly known through no wrongful act of the Receiving
Party;
(c) rightfully disclosed to Receiving Party by a third party who has no
obligation of confidentiality to the Disclosing Party;
(d) is independently developed by the Receiving Party; or
(e) is approved for release by written authorization of the Disclosing Party.
4. Marking. Confidential Information may be disclosed either visually, orally or
in writing. Written material shall be identified and labeled "Confidential" or
"Proprietary" to discloser. Verbal or visual information should be identified as
"Confidential Information" when disclosed.
Confidential and Proprietary Information 1
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HNC/Infoseek Mutual Confidentiality and Non-Disclosure Agreement
5. Return of Confidential Information. All Confidential Information and copies
and extracts thereof shall be promptly returned to Disclosing Party three years
from the effective date of this Agreement, or at any time within thirty (30)
days of receipt of a written request by the Disclosing Party for the return of
such Confidential Information.
6. Ownership of Information. The parties agree that any Confidential
Information revealed to the other by the Disclosing Party remains the exclusive
property of the Disclosing Party and its successors and assigns, unless
otherwise expressly provided in writing signed by an authorized representative
of the Disclosing Party.
7. No License Granted. Nothing contained in this Agreement shall be construed
as granting or conferring any rights to the Receiving Party by license or
otherwise, expressly, impliedly or otherwise, for any information, discovery or
improvement made, conceived, or acquired after the date of this Agreement, or
for any invention, discovery, or improvement made, conceived or acquired prior
to the date of this Agreement.
8. Arbitration and Equitable Relief.
(a) Arbitration. Except as provided in Section 8(b) below, the parties agree
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement shall be
settled by arbitration to be held in San Diego County, California in accordance
with the Commercial Arbitration Rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. In the event of arbitration, a reasonable amount of
discovery may be undertaken by the parties. The decision of the arbitrator shall
be final, conclusive and binding on the parties to the arbitration. Judgment may
be entered on the arbitrator's decision in any court having jurisdiction.
(b) Equitable Remedies. The parties agree that it would be impossible or
inadequate to measure and calculate the Disclosing Party's damages from any
breach of the covenants set forth herein. Accordingly, the parties agree that if
in the event of a breach of any of the covenants contained in this Agreement,
the affected party will have available, in addition to any other right or remedy
available, the right to obtain an injunction from a court of competent
jurisdiction restraining such breach or threatened breach and to specific
performance of any such provision of this Agreement. The parties further agree
that no bond or other security shall be required in obtaining such equitable
relief and the parties hereby consent to the issuance of such injunction and to
the ordering of specific performance.
(c) Legal Expenses. If any action or proceeding is brought for the
enforcement of this Agreement, or because of an alleged or actual dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party shall be entitled to
recover reasonable attorneys' fees and other costs incurred in such action or
proceeding in addition to any other relief to which it may be entitled.
9. Term. This Agreement shall expire two (2) years from the Effective Date, but
may be terminated prior to expiration by either party giving thirty (30) days'
prior written notice to the other party; provided, however, the obligations to
protect the Confidential Information in accordance with this Agreement shall
survive for a period of five (5) years from the date of the last disclosure of
Confidential Information is made under this Agreement.
10. No Formal Business Obligations. This Agreement shall not constitute, create,
give effect to, or otherwise imply a joint venture, pooling arrangement,
partnership, or formal business organization of any kind, nor shall it
constitute, create, give effect to, or otherwise imply an obligation or
commitment on the part of either party to submit a proposal to or perform a
contract with the other party. Nothing herein shall be construed as providing
for the sharing of profits or loss arising out of the efforts of either or both
parties. Neither party will be liable to the other for any of the costs
associated with the other's efforts in connection with this Agreement.
11. General Provisions.
(a) Governing Law. This Agreement will be governed by the laws of the State
of California.
(b) Severability. If one or more of the provisions in this Agreement are
deemed void by law, then the remaining provisions will continue in full force
and effect.
(c) Successors and Assigns. This Agreement will be binding upon the
successors and/or assigns of the parties.
(d) Headings. All headings used herein are intended for reference purposes
only and shall not affect the interpretation, or validity of this Agreement.
Confidential and Proprietary Information 2
6
HNC/Infoseek Mutual Confidentiality and Non-Disclosure Agreement
(e) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter of this
Agreement. Any amendment or modification of this Agreement shall be in writing
and executed by a duly authorized representative of the parties.
The parties, by the signatures of their authorized representatives appearing
below, acknowledge that they have read and understand each and every term of
this Agreement and agree to be bound by its terms and conditions.
HNC Software Inc. Infoseek Corporation
5930 Cornerstone Court West 2620 Augustine Drive, Suite 250
San Diego, CA 92121-3728 Santa Clara, CA 95054
By: By:
----------------------------- -----------------------------
Michael A. Thiemann Robin Johnson
Executive Vice President CEO
Confidential and Proprietary Information 3
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HNC/Infoseek Mutual Confidentiality and Non-Disclosure Agreement
EXHIBIT A
SUBJECT MATTER; ADDITIONAL CONFIDENTIAL INFORMATION
HNC (which shall be considered the Disclosing Party for purposes of this Exhibit
A) may disclose information with respect to the following in connection with
this Agreement. The parties agree that any such information disclosed shall be
considered Confidential Information for purposes of this Agreement:
Any and all information from any and all verbal, electronic, and/or written
communications (whether in the form of slides, handouts, letters,
memoranda, agreements, facsimile transmissions, meetings, conference and
other telephone calls, diskettes, files, tapes, and/or any other mode) with
respect to the HNC products known as SelectCast(TM), Convectis(TM), related
products, and/or related concepts, proposals, data sources, plans, markets,
customers, pricing, schedules, development efforts (including future
product functionality and release plans), decision technology and/or
models, software (including source code, object code and/or documentation),
numerical data processing algorithms, product and software design
specifications and/or functionality, and/or ideas.
Confidential and Proprietary Information 4