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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.8
SIEBEL SYSTEMS, INC.
STRATEGIC ALLIANCE AND SOFTWARE LICENSE AGREEMENT
THIS STRATEGIC ALLIANCE AND SOFTWARE LICENSE AGREEMENT (the
"Agreement") is made and entered into effective as of this _____ day of
__________, 1995 (the "Effective Date"), by and between SIEBEL SYSTEMS, INC.
("Siebel"), a California corporation, on the one hand, and ITOCHU TECHNO-SCIENCE
CORPORAT ION, a corporation organized and existing under the laws of Japan, and
ITOCHU CORPORATION, a corporation organized and existing under the laws of
Japan, (Itochu Techno-Science Corporation and Itochu Corporation are hereafter
referred to collectively as "Itochu"), on the other hand.
RECITALS
A.Siebel owns and/or has rights to certain computer software programs,
known collectively as the Siebel Sales Enterprise system, that are useful in
managing, coordinating and improving product marketing and sales efforts.
B.Siebel and Itochu wish to enter into a strategic alliance under which
the parties will cooperate to promote the marketing of the Siebel Sales
Enterprise software products in Japan, Siebel will grant Itochu the right and
license to reproduce and distribute the object code of the Siebel Sales Ent
erprise software product in Japan, and Itochu will agree to make an equity
investment in Siebel.
NOW, THEREFORE, in consideration of the promises and covenants set forth herein,
the parties hereto agree as follows:
1. DEFINITIONS.
1.1 "ANCILLARY PROGRAMS" means those software programs listed as
"Ancillary Programs" on EXHIBIT A (Licensed Software) attached hereto, which
programs are licensed to Siebel by third parties.
1.2 "AUTHORIZED USER" means an individual authorized by the End User to
use the Licensed Software, regardless of whether such individual is using any of
the programs in the Licensed Software at any given time. The maximum number of
Authorized Users of a particular End User that may use the User P rograms
sublicensed by Itochu shall be as specified in the sublicense agreements between
Itochu and that End User.
1.3 "CO-EXCLUSIVE" means that, Siebel may distribute and license, and
may appoint third parties to distribute and license the Licensed Software to
End Users for use in Japan, provided that Siebel pays Itochu as set forth in
Section 6.5 ("Siebel Payments") of the Agreement with respect to any such
licenses granted.
1.4 "DOCUMENTATION" means user manuals written in English relating to
the Licensed Software.
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1.5 "DESIGNATED SYSTEM" or "DESIGNATED SYSTEMS" means the computer
hardware and operating system(s) of an End User, which act as the computer
servers for Authorized Users of the End User. Each End User shall specify the
Designated System(s) on which the Server Programs shall operate under license .
1.6 "END USER" means a third party entity that does not commercially
distribute or otherwise offer a product that is competitive with the Licensed
Software as listed in Exhibit B (Siebel Competitors) and that licenses the
Licensed Software for its ordinary and customary business purposes, and not for
redistribution or resale.
1.7 "ERROR" means a material defect or error in the Licensed Software
(other than the Ancillary Software) that causes such Licensed Software not to
operate substantially in accordance with the performance and functional
description of the Licensed Software contained in the Documentation.
1.8 "FIRST-LINE SUPPORT" means direct customer support of Licensed
Software, which includes but is not limited to installation, training, technical
assistance, and identifying and correcting or resolving as much as possible the
software errors and problems encountered by an End User in using Licen sed
Software.
1.9 "LICENSE TERM" means the period commencing on the Effective Date
and continuing until the termination or expiration of the Agreement pursuant to
Section 13 ("Term and Termination").
1.10 "LICENSED SOFTWARE" means the object code format of the Siebel
Sales Enterprise system, comprising of the software programs listed on EXHIBIT A
(Licensed Software) attached hereto (including Ancillary Programs), or any of
such software programs in object code individually or in combination. "Licensed
Software" shall include (i) both the English version of the Siebel Sales
Enterprise software products and all Japanese Localized Versions (as defined in
Section 1.11) of such products prepared by Itochu and accepted by Siebel
pursuant to Section 3.3 ("Preparation of Localized Versions") a nd (ii) Updates
(as defined in Section 1.17).
1.11 "LOCALIZATION SOURCE CODE" means such portions of the human
readable source code version of the Licensed Software (excluding the Ancillary
Programs) as are necessary for Itochu to prepare the Japanese localized version
of any program included within the Licensed Software (a "Japanese Localize d
Version"), and all associated technical documentation necessary for preparing
such Japanese Localized Version.
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1.12 "LIST PRICE" means the then current list price for licenses of the
Licensed Software in Japan as published by Siebel from time to time during the
term of the Agreement and attached hereto as EXHIBIT C (Current Software List
Price). The List Price for a particular program in the Licensed Soft ware varies
according to the number of Authorized Users permitted under the applicable End
User license to use such program.
1.13 "NET END USER PRICE" means the gross income received by Siebel for
the license or distribution of Licensed Software to any End User for use in
Japan, less distributor discounts, stock balancing, sales and consumption taxes,
customs duties and other government charges, returns and license fee s paid by
Siebel for the Ancillary Programs included in such Licensed Software. "Net End
User Price" shall also means the gross income received by Siebel for the
provision by Siebel (or any third party appointed by Siebel) of First-Line or
Second-Line Support related to the Licensed Software licen sed to any End User
for use in Japan, less any applicable discounts, sales and consumption taxes,
customs duties and other government charges, and charges paid by Siebel to third
parties for the provision of services in connection with such First-Line or
Second-Line Support.
1.14 "SERVER PROGRAMS" shall mean those portions of the Licensed
Software that reside and operate on Designated Systems.
1.15 "SOFTWARE MAINTENANCE AND SUPPORT SERVICES" shall mean support
provided under Siebel's policies in effect on the date Software Maintenance and
Support Services is ordered, subject to payment by Itochu of the applicable fees
for such support as set forth in Section 6.9 ("Software Maintenance a nd Support
Services") of this Agreement.
1.16 "TRAINING MATERIALS" has the meaning described in Section 3.4
("Installation and Training").
1.17 "UPDATE" means an updated or enhanced version of any of the
software programs listed on EXHIBIT A (Licensed Software), in object code
format, that is generally released by Siebel to its distributors and End Users,
which corrects Errors and/or adds such minor additional features or functions a
s Siebel, in its discretion, may choose to include in the release. Updates
typically will be designated by a change in the version number to the right of
the first decimal point. Updates shall also include new version releases that
are typically designated by a change in the version number to the left of the
first decimal point. Updates shall not include any release, option, upgrade or
future product that Siebel licenses separately or only offers for an additional
fee (above and beyond any annual maintenance or support fee).
1.18 "USER PROGRAMS" means those software programs within the Licensed
Software that reside and operate on the individual computer hardware systems
operated by the employees of a particular End User.
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CONFIDENTIAL TREATMENT REQUESTED
2. APPOINTMENT AS CO-EXCLUSIVE DISTRIBUTOR IN JAPAN.
2.1 APPOINTMENT. Siebel hereby appoints Itochu, effective during the
License Term, as Siebel's distributor of the Licensed Software for use in Japan.
The appointment shall be Co-Exclusive during the Co-Exclusive Period as defined
in Section 6.2 ("Minimum Payment Obligations During Co-Exclusive P eriod") and
shall otherwise be non-exclusive.
2.2 LICENSE GRANT. Subject to the terms and conditions of this
Agreement, Siebel hereby grants to Itochu the following non-transferable,
limited license rights exercisable solely during the License Term:
(a) the right to reproduce, exactly as provided by Siebel,
object code copies of the Licensed Software, as needed for distribution to End
Users;
(b) the right to distribute the Licensed Software to End
Users;
(c) the right to use the Licensed Software at Itochu's
facilities for the sole purpose of testing and evaluating the Licensed
Software, for training Itochu's personnel, and for demonstrating and promoting
the Licensed Software to potential customers and for providing First-Line
Support to End Users;
(d) the right to reproduce, exactly as provided by Siebel,
translate into Japanese, and distribute to End Users the Documentation and the
Training Materials, whether in English or in Japanese;
(e) the right to use the Localization Source Code at Siebel's
California facility for the sole purpose of creating Japanese localizations
pursuant to Section 3.3 ("Preparation of Localized Versions"); and
(f) The right to use that component of Siebel's source code
known as "Microsoft AppStudio Resource Files (.rc files)" which define the
screen layouts as Itochu's facilities subject to the terms and conditions of
Section 8.3 ("Protection of Source Code"). In addition, Itochu shall maintain a
log in the form of EXHIBIT D (Access Log of Employees of Itochu Granted Access
to Siebel Systems Inc.'s Source Code) of each authorized employee who has
received access to such source code. Itochu shall maintain the original of such
log and shall provide a copy to Siebel upon request.
The foregoing rights may not be sublicensed except as permitted in Section 2.3
("Right to Grant End User Sublicenses").
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2.3 RIGHT TO GRANT END USER SUBLICENSES. Subject to the terms and
conditions of this Agreement, Siebel hereby grants to Itochu the
non-transferable right, exercisable solely during the License Term, to grant to
each End User the following limited, non-transferable sublicense rights:
(a) to use the Server Programs solely for the End User's own
internal data processing and business operations on the Designated Systems
specified by such End User (or on a backup system if such Designated Systems are
inoperative); to use the User Programs solely for the End User's own internal
dat a processing and business operations for and by up to that number of
Authorized Users as provided in the license with Itochu; provided, however, that
the End User may not relicense the Licensed Software or use the Licensed
Software for third-party training, commercial time-sharing, rental or servic e
bureau use;
(b) the right to reproduce the User Programs, up to the
maximum number of Authorized Users permitted under the sublicense agreement with
such End User; provided, however, that in no event shall Itochu grant such right
to an End User if Itochu has reproduced and distributed to such End User a numbe
r of copies of the User Programs equal to such number of Authorized Users;
(c) the right to use the Documentation provided by Itochu in
support of the authorized use of the Licensed Software; and
(d) the right to copy the Licensed Software solely for
archival or backup purposes; provided, however, that User Programs may be copied
to up to one additional computer system for each Authorized User; all titles,
trademarks, and copyright and restricted rights notices shall be reproduced in
such copies; and all archival and backup copies of the Programs shall be subject
to the terms of this Agreement.
For purposes of this Agreement, an "End User" may include Itochu if Itochu
agrees to be bound by the terms and conditions of EXHIBIT E (Terms for End User
Agreement) to this Agreement and pays the amounts set forth in Section 6.2
("Itochu End User Payment").
2.4 END USER SUBLICENSE AGREEMENT. Itochu shall enter into an
End User sublicense agreement in Japanese language with each End User to whom
Itochu grants sublicense rights to use Licensed Software, which sublicense
agreement shall contain, and be at least as protective of Siebel's rights and
inte rests as, the terms and conditions for such agreement as attached hereto as
Exhibit E (Terms for End User Agreement). Such sublicense agreement shall
specify the Designated Systems on which the Server Programs may be used and the
maximum number of Authorized Users permitted to use the User Program s.
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2.5 CO-EXCLUSIVE SIEBEL DISTRIBUTION IN JAPAN. Notwithstanding the
above, Itochu understands and agrees that during the Co-Exclusive Period (as set
forth in Section 6.4 ("Minimum Payment Obligations During Co-Exclusive Period"))
Siebel may distribute and license, and may appoint third parties to distribute
and license, the Licensed Software to End Users for use in Japan, and such
licensing shall not constitute a breach of any terms of the Agreement, provided
that Siebel pays Itochu with the amounts set forth in Section 6.5 ("Siebel
Payments") with respect to any such licenses granted.
3. MARKETING AND SUPPORT OBLIGATIONS.
3.1 MARKETING AND SALES EFFORTS. Itochu shall use best efforts to
promote and market the Licensed Software to End Users and potential End Users in
order to maximize the licensing and distribution of the Licensed Software to End
Users in Japan. Such marketing efforts shall include, without limita tion:
establishment of a marketing and sales team (the "Marketing Team") dedicated
exclusively to promoting and distributing the Licensed Software in Japan, as
provided in Section 3.2 ("Marketing Team"); advertising the Licensed Software in
Japan in a commercially appropriate and reasonable manner ; and promoting the
Licensed Software at seminars, trade shows and conferences. Itochu agrees
further that its marketing and advertising efforts with respect to the Licensed
Software will be of the highest quality and in good taste, and shall preserve
the professional image and reputation of Siebe l and the Licensed Software.
Itochu agrees that if Itochu Techno-Science Corporation or any of its
subsidiaries, divisions, joint ventures or "Affiliates" (as defined below")
promote, market, license or distribute any products which are competitive
("Competitive Products") with the Licensed Softwa re (collectively referred to
as "Itochu Competitive Activity"), the Co-Exclusive Period (and Itochu's
Co-Exclusive distribution rights) shall immediately end and the following shall
immediately occur: (i) the payments which Itochu would otherwise be entitled to
under Section 6.5 ("Siebel Payments" ) shall be of no force or effect commencing
on the date when such Itochu Competitive Activity first occurred, (ii) Itochu's
rights hereunder shall convert to a non-exclusive basis and Itochu shall retain
such rights for the rest of the License Term on such basis. For purposes of the
foregoing, the term "Affiliates" shall mean any company in which Itochu
Techno-Science Corporation or any of its subsidiaries, divisions, or joint
ventures hold an equity or other capital investment in excess of $1,000,000. The
parties agree that the products which shall be considered to be "Competitive
Product s" as of the Effective Date are listed in EXHIBIT F (Competitive
Products).
3.2 MARKETING TEAM. Itochu shall establish a full time Marketing Team
that is dedicated exclusively to marketing, promoting and selling the Licensed
Software within Japan. Itochu shall ensure that the Itochu employees on such
Marketing Team use best efforts to promote and market the Licensed Sof tware in
Japan. The Marketing Team shall include, at a minimum, the following personnel:
(a) The "Itochu Marketing Manager," who will have overall
responsibility for coordinating the marketing, promotion, and distribution
efforts by Itochu for the Licensed Software and for managing the activities of
the Itochu Technical Services Manager, the Itochu Sales Director and the Itochu
Market ing Programs Manager (as described below);
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(b) The "Itochu Technical Services Manager," who will have
primary responsibility for directing, coordinating and implementing the
technical services and support activities related to installations of the
Licensed Software in Japan, which activities include without limitation customer
training pro grams, customer service, integration services and technical
support;
(c) The "Itochu Sales Director," who will have primary
responsibility for the directing, coordinating and implementing the sales and
distribution of the Licensed Software by Itochu in Japan; and
(d) The "Itochu Marketing Programs Director," who will have
primary responsibility for all activities in the marketing and promotion of the
Licensed Software, including without limitation advertising, seminar
coordination, sales communication development, brochures and other marketing
materials de velopment and trade show coordination.
Itochu shall appoint such other employees to the Marketing Team as are needed to
satisfy Itochu's obligation to use best efforts to market and sell the Licensed
Software in Japan.
3.3 PREPARATION OF LOCALIZED VERSIONS. Itochu shall be responsible for
utilizing the Localization Source Code to prepare the Japanese Localized
Versions of the Licensed Software (excluding the Ancillary Programs) and of any
new version thereof in accordance with a schedule to be agreed upon for e ach
such new version. Itochu's obligation in the immediately preceding sentence
shall be expressly conditioned upon Itochu's receipt from Siebel of such
technical support and assistance regarding the Licensed Software as Itochu may
reasonably request in connection with the preparation of Japanese Localized
Versions. All such localization efforts shall take place at Siebel's California
facility, at Itochu's expense. Employees and agents of Itochu will observe the
working hours, rules and holiday schedule of Siebel while working on Siebel's
premises and shall agree to such other reasonable conditions as Siebel may
require. Itochu shall also be responsible for translating the Documentation,
on-line help, and the Training Materials into Japanese, as set forth in EXHIBIT
G ("Core Documentation, Help and Training Related Materials"). Siebel will
provide ten (10) copies in hard copy and one (1) copy each in electronic format
of such Documentation, on-line help and Training Materials in the English
language no later than ten (10) consecutive business days following the
Effective Date. Itochu shall use best efforts to assure that such localized
versions are of the highest quality and faithfully and accurately translate into
Japanese the relevant information and materials in the Licensed Software, the
Documentation, on-line help and the Training Materials, and Itochu will use
commercially reasonable efforts to complete the localization of each Licensed
Software version with in sixty (60) days of the release of such version to
Itochu. In order to facilitate the localization process, Siebel agrees to
provide Itochu with beta releases of such versions as soon as they become
available in the United States. Upon completion of the development of each
Localized Version, Ito chu shall deliver a master copy of the localization to
Siebel and Siebel shall have thirty (30) business days in which to accept or
reject the same. Siebel shall own the entire right, title and interest in and to
all such localized and/or translated versions of the Licensed Software,
Documentation , on-line help and Training Materials.
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Itochu shall have exclusive responsibility for the development, packaging and
quality assurance of the Japanese Localized Versions. Itochu shall indemnify
Siebel from any liability, damages, costs and expenses caused by any errors in
such localizations or translations. In the event that Siebel a ccepts such
master copy of the Localized Version of the Licensed Software within the period
described above, such Localized Version shall be included within the definition
of the Licensed Software and Itochu retains such rights as set forth in Sections
2.2 ("License Grant") and 2.3 ('Right to Grant End User Sublicenses") of this
Agreement for such Localized Version. In the event that Siebel rejects any
master copy of a Localized Version, Itochu shall have no right to distribute
such version.
3.4 INSTALLATION AND TRAINING. Itochu shall be responsible for
conducting all activities required to install the Licensed Software at End User
locations in Japan and for providing training to the End Users and any systems
integrators involved in such installation. Siebel shall provide to Itochu,
promptly after the Effective Date, an English copy of all Siebel training
materials relating to the Licensed Software, and Itochu shall translate such
materials into Japanese (the English and Japanese versions of the Siebel
training materials are referred to collectively as the "Training Materials"). A
complete list of training courses, as covered by the Training Materials, that
Itochu shall utilize in training customers and integrators on the Licensed
System is set forth on EXHIBIT H (Training Courses) attached hereto. Itochu
shall provide such installation for End User customers located in Japan and
licensed by Siebel or any third parties, at Siebel's request and Itochu may
charge a reasonable fee to such End Users for such installation. Itochu shall
also conduct the training related activities for such End Users, at such End
User's request, and charge a reasonable fee to such End Users for such
training. All such installation and training shall be conducted with the highest
level of professionalism and quality.
3.5 TECHNICAL SUPPORT AND MAINTENANCE. Itochu shall be responsible for
providing First-Line Support with respect to technical questions, support
problems, and Error evaluation and correction to all End Users of Licensed
Software in Japan (including End Users licensed directly by Siebel or any thi rd
parties) who have entered into the Software Maintenance Agreement with Itochu,
as set forth in Section 6.9 ("Software Maintenance and Support Services") of
this Agreement, or an agreement with Siebel (or a third party appointed by
Siebel) for the provision of First-Line or Second-Line Support re lated to the
Licensed Software to any End User in Japan provided that Itochu shall receive
appropriate payment for such agreement as set forth in Section 6.5 ("Siebel
Payments") or such other payment as the parties may mutually agree to in the
event the Co-Exclusive Period ends; provided, however, that Siebel reserves the
right to provide (or appoint others to provide) First-Line Support to End Users
in the event Itochu does not have qualified technical personnel, Itochu is not
adequately equipped to provide such First-Line Support or Itochu is not
providing quality support to End Users. Si ebel shall be responsible for
providing to Itochu Second-Line Support with respect to any such support or
Error correction issues arising from End Users located in Japan. Such technical
support obligations are as follows:
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(a) First-Line Support. Itochu will provide First-Line Support
to all Licensed Software End Users located in Japan. Itochu shall provide
telephone and other appropriate contact points so that such End Users may
contact Itochu regarding technical and support questions and Errors or other
problem s regarding use of the Licensed Software. Itochu shall inform such End
Users that End Users must contact Itochu for resolution of all support,
technical questions and Error correction issues with respect to the Licensed
Software. Itochu shall use best efforts to answer all such technical and supp
ort questions promptly and accurately and to provide workaround or other
solutions to any Errors or problems reported by such End Users. If, after using
its best efforts, Itochu is not able to answer a support question or to correct
a reported material Error or problem in the Licensed Software, It ochu may
contact Siebel for Second-Line Support, as provided below.
(b) Second-Line Support. Siebel will offer second line support
to Itochu in the form of an eight (8) hours per day, five (5) days per week
telephone hot line and email support which qualified Itochu support personnel
can use after attempting to resolve support or Error correction problems relatin
g to the Licensed Software for (i) a diagnosis of problems or performance
deficiencies of the Licensed Software, and (ii) a resolution of problems or
performance deficiencies of the Licensed Software. If Itochu requests Siebel to
provide applications support or Error correction at a customer site or at
Itochu, Itochu agrees to pay Siebel for services in accordance with Siebel's
then current List Price for such services and to reimburse Siebel all its
out-of-pocket expenses, including travel and accommodations, in providing such
support.
3.6 SOFTWARE MAINTENANCE AND SUPPORT SERVICES FOR PROGRAMS OTHER THAN
LIMITED PRODUCTION PROGRAMS. Software Maintenance and Support Services shall be
provided under Siebel's Software Maintenance and Support Services policies in
effect on the date the Software Maintenance and Support Services is o rdered,
subject to the payment by Itochu of the applicable fees. Siebel reserves the
right to alter such policies from time to time, in its reasonable discretion, on
ninety (90) days' prior notice to Itochu. Itochu hereby agrees to purchase
Software Maintenance and Support Services from Siebel fo r the term of this
Agreement for all Licensed Software which is licensed to Itochu (for internal
purposes only) pursuant to this Agreement. Itochu is hereby authorized to
distribute any and all Error corrections and Updates which it receives from
Siebel as a part of Software Maintenance and Suppor t Services to all of its End
User customers and sublicensees.
3.7 END USER VISITS. Siebel may visit the End Users located in Japan
(directly licensed by Itochu) from time to time to stay abreast of customer
requirements and to evaluate features for potential future products provided
that Siebel notifies Itochu in writing in advance regarding such visits. I tochu
agrees to provide Siebel reasonable assistance in arranging such visits with End
Users.
3.8 ITOCHU WARRANTY. Itochu warrants that it maintains the facilities,
resources and experienced personnel necessary to market and distribute Licensed
Software and to perform the necessary installation, training and maintenance
services related to such Licensed Software and otherwise to fulfill i ts
obligations under this Agreement and that it is not precluded by any existing
arrangement, contractual or otherwise, from entering into this Agreement.
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3.9 ITOCHU INDEMNITY. Itochu will indemnify Siebel for, and hold Siebel
harmless from, any loss, expense, damages, claims, demands, or liability arising
from any claim, suit, action or demand resulting from: (a) the negligence,
error, omission or willful misconduct of Itochu or its representati ves or
sublicensees; (b) the breach of any terms of this Agreement; or (c) Itochu's
non-compliance with applicable laws and regulations pursuant to Section 14
("Compliance with Laws").
3.10 SIEBEL WARRANTY. Siebel warrants and covenants that it has and
will during the License Term take all actions reasonably necessary and
appropriate to maintain the right to grant Itochu to use, reproduce, or
sublicense the Licensed Software under this Agreement.
4. DELIVERY AND ACCEPTANCE.
4.1 DELIVERY OF LICENSED SOFTWARE. Within ten (10) business days after
the Effective Date of this Agreement, Siebel shall deliver to Itochu one copy,
appropriate for reproduction, of the Licensed Software and of the Documentation
and the Training Materials, in English. In the event that Siebel de velops any
Update of the Licensed Software or creates revised or updated versions of the
Documentation and/or Training Materials, Siebel shall deliver to Itochu one (1)
copy of such Licensed Software, Documentation and/or Training Materials no later
than ten (10) business days after the commercial release of such version to its
distributors and End Users.
4.2 ACCEPTANCE. Itochu acknowledges that it is familiar with the
Licensed Software and that such Licensed Software shall therefore be deemed to
have been accepted by Itochu concurrent with delivery pursuant to Section 4.1
("Delivery of Licensed Software") above.
4.3 LOCALIZATION SOURCE CODE. The Localization Source Code will be made
available to Itochu at Siebel's California facility for the limited purpose of
preparing Japanese localizations pursuant to Section 3.3 ("Preparation of
Localized Versions"), and Itochu agrees that it will not copy such Local ization
Source Code or use it outside of Siebel's California facility.
5. COVENANTS AND RESTRICTIONS REGARDING LICENSED SOFTWARE.
5.1 LICENSE RESTRICTIONS. Itochu acknowledges that, except as
explicitly stated in this Agreement, the Agreement does not grant Itochu any
right or license under the Licensed Software or any proprietary rights therein,
and no license or other rights shall be created by implication or estoppel. I n
particular, but without limiting the generality of the foregoing, no right or
license in or to source code for the Licensed Software is granted hereunder,
except with respect to the Localization Source Code for the limited purpose of
preparing the Japanese localization. Itochu covenants that it shall not prepare,
and it shall not permit any others to prepare, any derivative works of the
Licensed Software, or otherwise modify or revise any of the software therein,
except specifically to create the Japanese localization. Itochu covenants that
it shall not use, reproduce, distribute or sell the Licensed Software in any
manner or for any purpose except as specifically permitted under this Agreement.
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5.2 PROHIBITION ON DECOMPILING. Itochu acknowledges that the Licensed
Software contains the valuable information of Siebel and its suppliers, and
Itochu agrees not to cause or permit the modification, reverse engineering,
translation, disassembly, or decompilation of, or otherwise to attempt to derive
the source code of the Licensed Software, whether in whole or in part.
5.3 LIMITATION ON DISTRIBUTION. Itochu shall use best efforts to assure
that it distributes Licensed Software only to End Users who will use the
Licensed Software, in whole or in part, in Japan.
5.4 PROPRIETARY NOTICES. In order to protect Siebel's and its
licensor's copyright and other ownership interests in the Licensed Software,
Itochu agrees that as a condition of its rights hereunder, each copy of the
Licensed Software and related documentation of Siebel reproduced by or on behalf
o f Itochu shall contain the same proprietary notices on the media, within the
code and on the Documentation which appear on the media or within the code of
the Licensed Software or on the Documentation delivered by Siebel to Itochu and
as otherwise reasonably required by Siebel.
5.5 U.S. GOVERNMENT END USER LICENSING. The Licensed Software is
"commercial computer software" and the Documentation is "commercial computer
software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995).
Itochu shall only provide the Licensed Software and Documentation to agenci es
of the U.S. Government in accordance with the following:
(i) for acquisition by or on behalf of civilian agencies, Itochu shall
provide the Licensed Software and Documentation consistent with the
policy set forth in 48 C.F.R. 12.212 (SEPT 1995); or
(ii) for acquisition by or on behalf of units of the Department of
Defense, Itochu shall provide the Licensed Software and Documentation
consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUNE
1995) and 227.7202-3 (JUNE 1995).
5.6 END USERS OUTSIDE JAPAN. In the event Itochu identifies a potential
End User that desires a license granting rights to use the Licensed Software
solely at location(s) outside Japan, Itochu shall promptly identify such
potential End User to Siebel. Siebel shall have the sole right to grant su ch
End User the rights to use the Licensed Software. Itochu may license End Users
to use the Licensed Software at locations worldwide, provided that such End
Users will use the Licensed Software, in whole or in part, in Japan and provided
further that Itochu pays to Siebel the license fees require d hereunder.
5.7 FOREIGN GOVERNMENT AGREEMENTS. Itochu will take all reasonable
steps in making proposals and agreements with foreign governments other than the
United States which involve the Licensed Software and/or related documentation
to ensure that Siebel's proprietary rights in such Licensed Software a nd
related documentation receive the maximum protection available from such foreign
government for commercial computer software and related documentation developed
at private expense.
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6. PAYMENTS.
6.1 ITOCHU LICENSE PAYMENTS. [ *** ] of the licensing revenues received
for distribution and sublicensing of Licensed Software by Itochu in Japan will
accrue to the benefit of Itochu, subject to Itochu's obligation to pay Siebel
license fees as provided herein. For each copy of Licensed Software distributed
to, or produced by, an End User for use in Japan pursuant to an agreement with
Itochu, Itochu shall pay Siebel a license fee of [ *** ] of the appropriate List
Price for the specific programs in the Licensed Software, and for each copy of
Licensed Software distributed to, or produced by, an End User for use outside of
Japan, Itochu shall pay Siebel a license fee of [ *** ] of its receipts (but in
no event less than the appropriate List Price for the specific programs in the
Licensed Software), as determined according to the schedule on EXHIBIT C
(Current Software List Price) with respect to the relevant category for the
number of Authorized Users permitted in the specific license to the End User.
Such license fee obligation will accrue upon the delivery, or reproduction, of
the Licensed Software to or by the End User. Itochu also shall pay [ *** ] for
each copy of the Training Materials (either English or Japanese version)
distributed to a customer. This [ *** ] fee shall be due for each set of
Training Materials distributed to a customer or third party for training or
educational purposes of any kind, including without limitation, a set of
Training Materials distributed to each student in any training class. Siebel
retains the right to amend the current list price for the specific programs in
the Licensed Software attached hereto as Exhibit C (Current Software List Price)
upon ninety (90) days prior written notice to Itochu. In the event of any price
increase, Siebel shall be bound to honor any orders placed at the prices in
effect prior to the effective date of the subject price increase (which
effective date shall be the 91st day following Siebel's written notice des
cribed in the immediately proceeding sentence), and in the event of any price
decrease, unfulfilled orders for the Licensed Software affected by the price
reduction shall be adjusted to reflect the price decrease.
6.2 ITOCHU END USER PAYMENT. In the event that Itochu licenses the
Licensed Software for its own internal data processing and business operations,
it shall pay Siebel a license fee equal to [ *** ] of the List
Price, as determined according to the Schedule in EXHIBIT C (Current Software
List Price).
6.3 AMOUNTS DUE FROM ITOCHU TO SIEBEL. Amounts due from Itochu to
Siebel pursuant to Section 6.1 ("Itochu License Payments") or 6.2 ("Itochu End
User Payments") shall be payable within thirty (30) days after the end of each
calendar quarter when such distributions or license occurred, subject to an
applicable credit in the aggregate amount of all minimum payments actually made
as provided in Section 6.4 ("Minimum Payment Obligations During Co-Exclusive
Period") below.
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CONFIDENTIAL TREATMENT REQUESTED
6.4 MINIMUM PAYMENT OBLIGATIONS DURING CO-EXCLUSIVE PERIOD.
6.4.1 In consideration for the Co-Exclusive rights granted to
Itochu under this Agreement during the first year of this Agreement commencing
on the Effective Date and ending December 31, 1996 (the initial "Co-Exclusive
Period"), Itochu also agrees to pay to Siebel, subject to the credits provided b
elow, the following irrevocable and non-refundable minimum license amounts (the
"Minimum Co-Exclusive Fees") on the indicated dates provided that Itochu shall
have received from Siebel appropriate invoices therefor (i) immediately upon the
Effective Date for the first payment, and (ii) no later tha n thirty (30) days
prior to the due date for the subsequent payments:
Payment Amount Due Date
- -------------- --------
$[***] Within thirty (30) days after the Effective Date
but not later than December 22, 1995 \
$[***] March 15, 1996
$[***] June 15, 1996
6.4.2 By the mutual written agreement of both Siebel and
Itochu, the parties may extend the Co-Exclusive Period for an additional one (1)
year term ending December 31, 1997. The parties agree to use their collective
reasonable efforts to reach such mutual agreement to extend the Co-Exclusive
Perio d by no later than October 30, 1996. In the event the Co-Exclusive Period
is so extended, Itochu agrees to pay Siebel, subject to the credits provided
below, the following irrevocable and non-refundable minimum license amounts (the
"Additional Minimum Co-Exclusive Fees") on the indicated dates pro vided that
Itochu shall have received from Siebel an appropriate invoice no later than
thirty (30) days prior to the due date for the subsequent payments:
Payment Amount Due Date
- -------------- --------
$[***] December 15, 1996
$[***] March 15, 1997
$[***] June 15, 1997
In the event the parties agree to extend the Co-Exclusive Period to include
calendar year 1998, then the parties shall also agree upon the minimum license
amounts to be paid by Itochu to Siebel with respect to calendar year 1998.
In the event the parties do not extend the Co-Exclusive Period beyond December
31, 1996, then: (i) the payments which Itochu would otherwise be entitled to
under Section 6.5 ("Siebel Payments") shall be of no force or effect commencing
January 1, 1997, (ii) Itochu's rights hereunder shall convert to a non-exclusive
basis and Itochu shall retain such rights for the rest of the License Term on
such basis. For purposes of clarification, if the Co-Exclusive Period ends,
Itochu shall be free to promote, market, license or distribute any Competitive
Products.
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CONFIDENTIAL TREATMENT REQUESTED
6.4.3 Itochu shall be entitled to credit against a specific
Minimum Co-Exclusive Fee (and the Additional Minimum Co-Exclusive Fee, if
applicable) owed to Siebel all license fees paid to Siebel under Section 6.1
("Itochu License Payments") prior to the due date of such Minimum Co-Exclusive
Fee (or the Additional Minimum Co-Exclusive Fee, if applicable) payment (the
"Prior License Fees"), to the extent such license fees have not been credited
against any earlier Minimum Co-Exclusive Fee (or the Additional Minimum
Co-Exclusive Fee, if applicable) payment.
6.4.4 To the extent that any portion of a Minimum Co-Exclusive
Fee(or the additional Co-Exclusive Fee, if applicable) remains after deducting
Prior License Fees therefrom, Itochu shall have the right to carry forward and
apply all of such remaining portion as a credit against all future fees payable
by Itochu pursuant to section 6.1 above, subject to the restrictions contained
in Section 6.4.5 and 6.4.6 below:
6.4.5 For purposes of clarification, any portion of the
aggregate U.S. [***] Minimum Co-Exclusive Fee amount which has not been
credited against license fees owed pursuant to Section 6.1 ("Itochu License
Payments") as of the expiration of the initial Co-Exclusive Period shall be
applied as a credit against license fees otherwise payable to Siebel thereafter
whether or not Itochu has exercised the right to extend the Co-Exclusive Period
described in Section 6.4.2 above; provided, however, that in no event shall such
credit be carried forward longer than December 31, 1997.
6.4.6 For purposes of clarification, any portion of the
aggregate U.S. [***] Additional Minimum Co-Exclusive Fee amount (if
Itochu exercises such right described in Section 6.4.2) which has not been
credited against license fees owed pursuant to Section 6.1 ("Itochu License
Payments") as of the expiration of the succeeding Co-Exclusive Period shall
be applied as a credit against license fees otherwise payable to Siebel
thereafter; provided, however, that in no event shall such credit be carried
forward longer than December 31, 1998.
6.5 SIEBEL PAYMENTS. During any Co-Exclusive Period of this Agreement,
in the event that (i) Siebel or any third party licenses the Licensed Software
to any End User for use in Japan ("Siebel Japanese License Agreement"), or (ii)
Siebel (or any third party appointed by Siebel) enters into an agreement for
the provision by Siebel (or any third party appointed by Siebel) of First-Line
or Second-Line Support related to the Licensed Software to any End User in Japan
("Siebel Japanese Support Agreement"), Siebel shall pay Itochu a credit equal to
[***] of Siebel's Net End User Price for such Siebel Japanese License
Agreements and Siebel Japanese Support Agreements ("Siebel Payment
Amounts"). Such Siebel Payment Amounts shall not be due and payable to Itochu
unless and until Siebel has received payment of the applicable Net End User
Price. Siebel shall wire transfer the Siebel Payment Amounts to Itochu's
designated bank account within 30 days following the month when the later of the
following two events has occurred: (i) Siebel has received payment of the
applicable Net End User Price, or (ii) the date Siebel has shipped the Licensed
Software to the applicable End User for use in Japan. With respect to Siebel
Japanese Support Agreements, no payments will be due and payable by Siebel with
respect to any contract where Siebel has reasonably determined that Itochu does
not have qualified technical personnel Itochu is not adequately equipped to
provide such First-Line Support with respect to such End User or
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Itochu is not providing quality support to End Users. Siebel will keep
and maintain, for a period of three (3) years, proper records and books of
account relating to such Siebel Japanese License Agreements and Siebel Japanese
Support Agreements. I tochu may inspect, or have an independent audit firm
inspect on its behalf, any such records to verify Siebel's compliance with its
payments obligations hereunder. Any such inspection will be conducted during
regular business hours at the recordholder's offices in a manner that does not
unreasonab ly interfere with the recordholder's business activities. Such
inspection shall be at Itochu's cost and expense, unless the inspection reveals
that Siebel underpaid the amount actually owing by Five Percent (5%) or more, in
which case Siebel shall pay such costs and expenses. Such audits may be c
onducted no more than once in any twelve (12) month period. In the event that
Itochu wishes to inspect such books and records, the recordholder will make all
relevant records available. For the End Users which Siebel grants the right to
reproduce the User Programs, Siebel shall use commercially r easonable efforts
to compel such End Users to permit Itochu to inspect the records of such
sublicensee as provided in this Section. Siebel shall owe interest at the rate
of Two Percent (2%) per month or the highest legal interest rate, whichever is
lower, on any past due balances pursuant to this Section 6 ("Payments").
6.6 REPORTS. Within fifteen (15) days of the end of each calendar
quarter within the License Term, (i) Itochu shall render a statement to Siebel
showing in detail the number of units of Licensed Software and Training
Materials distributed by Itochu or sublicensed for reproduction by an End User s
ublicensee of Itochu during the previous calendar quarter, the amount owing
Siebel therefor, the names and locations of the End Users, and (ii) Siebel shall
render a statement to Itochu showing in detail the number of units of Licensed
Software distributed by Siebel or any third party during the previous month,
Siebel's gross receipts, the Net End User Price thereof, and the names and
locations of the End Users, and the amount and due date for the transaction.
6.7 TAXES. Itochu shall pay any sales, use, property, license, value
added, withholding, excise or similar tax or duty, or any tax imposed by the
Government of Japan on the income of Siebel from any payments pursuant hereto,
whether federal, state or local, that may be imposed upon or with respec t to
the Licensed Software, exclusive of taxes on Siebel's net income. Siebel
acknowledges and agrees that Itochu's payments to Siebel pursuant to this
Agreement to be paid by Itochu under this Agreement may be subject to
withholding income tax based on the income tax laws of Japan (the "USA/Japan Tax
Convention"). Notwithstanding anything to the contrary to the foregoing, in the
event withholding tax payments must be made under the USA/Japan Tax Convention
or such other applicable laws, Itochu shall: (i) withhold such tax on behalf of
Siebel, and (ii) pay such required tax to the Japane se tax authority on behalf
of Siebel, and (iii) transmit to Siebel an official tax receipt issued by the
Japanese tax authority after such tax payment. For this purposes, Siebel shall
execute and deliver to Itochu an appropriate form and Itochu shall execute such
application form and file it with a competent tax office in Japan in order to
reduce an applicable tax rate of withholding income tax in accordance with the
USA/Japan Tax Convention.
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CONFIDENTIAL TREATMENT REQUESTED
Siebel shall pay any sales, use, property, license, value added,
withholding, excise or similar tax or duty, or any tax imposed by the Government
of United States on the income of Itochu from any payments pursuant hereto,
whether federal, state or local, that may be imposed upon or with respect to the
Licensed Software, exclusive of taxes on Itochu's net income. Notwithstanding
anything to the contrary to the foregoing, in the event withholding tax payments
must be made under the income tax laws of the United States or such other
applicable laws, Siebel shall: (i) withhold such tax on beh alf of Itochu, and
(ii) pay such required tax to the tax authority on behalf of Itochu, and (iii)
transmit to Itochu an official tax receipt issued by the tax authority after
such tax payment.
6.8 RECORDS AND INSPECTION RIGHTS. Itochu will keep and maintain, for a
period of three (3) years, proper records and books of account relating to its
distribution and sublicensing of Licensed Software to End Users. Siebel may
inspect, or have an independent audit firm inspect on its behalf, any such
records to verify Itochu's compliance with its payments obligations hereunder.
Any such inspection will be conducted during regular business hours at the
recordholder's offices in a manner that does not unreasonably interfere with the
recordholder's business activities. Such inspection shall be at Siebel's cost
and expense, unless the inspection reveals that Itochu underpaid the amount
actually owing by [ *** ] or more, in which case Itochu shall pay
such costs and expenses. Such audits may be conducted no more than once in any
twelve (12) month period. In the event that Siebel wishes to inspect such books
and records, the recordholder will make all relevant records available. For the
End Users which Itochu grants the right to reproduce the User programs in
accordance with Section 2.3 (b), Itochu shall use commercially reasonable
efforts to compel such End Users t o permit Siebel to inspect the records of
such sublicensee as provided in this Section. Itochu shall owe interest at the
rate of Two Percent (2%) per month or the highest legal interest rate, whichever
is lower, on any past due balances pursuant to this Section 6 ("Payments").
6.9 SOFTWARE MAINTENANCE AND SUPPORT SERVICES. Itochu shall use
commercially reasonable efforts to enter into Software Maintenance agreements
with End Users (including End Users licensed directly by Siebel or by third
parties). Such Software Maintenance agreements shall provide for services subs
tantially equivalent to the Siebel Maintenance and Support Services Schedule
attached hereto as EXHIBIT I (Siebel Maintenance and Support Services Schedule)
as may be modified by Siebel from time to time during the term of this Agreement
to revise, delete and add Maintenance and Support related ser vices. Itochu
agrees to pay Siebel [ *** ] of initial maintenance and any renewal maintenance
fees which it received from its End Users (excluding consumption tax), but in no
event will it pay Siebel less than [ *** ] of the cumulative aggregate List
Price of all Licensed Software which it has distributed to End Users from the
Effective Date during each twelve (12) month period of this Agreement. If, at
the end of each twelve (12) month period, the fees actually paid to Siebel are
less than [ *** ] of the cumulative aggregate List Price of all Licensed
Software which Itochu has distributed to End Users from the Effective Date (the
"[ *** ]"), Itochu shall promptly remit the difference to Siebel. Such fees
will be paid by Itochu to Siebel on a quarterly basis as they accrue to Itochu
within thirty (30) days of the end of the quarter in U.S. Dollars calculated at
the exchange rate between U.S. Dollar and Japanese Yen, of which, exchange rate
shall be the T/T selling rate announced by the bank of Tokyo at the last day of
the respective calendar quarter. In consideration of such payment by Itochu,
Siebel shall provide Second Line support as described in Section 3.5 (b) to
Itochu.
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CONFIDENTIAL TREATMENT REQUESTED
6.10 SPECIAL PRICING TRANSACTIONS. The parties agree and acknowledge
that there may occur individual cases where a potential End User of Itochu may
seek to acquire the right to use the Licensed Software or maintenance and
support for the Licensed Software under special circumstances where it is n ot
economically feasible for Itochu to provide Licensed Software or maintenance and
support for the Licensed Software under the discounts or payment related
provisions set forth in this Agreement. When Itochu identifies such a
transaction, Itochu shall present such opportunity to Siebel, along with a
detailed written proposal to Siebel including the discounts Itochu proposes to
provide to such End User. If, in Siebel's reasonable discretion, Itochu's
proposal is accepted, the parties shall confirm their agreement in writing which
shall, among other things, specify that: (i) the parties shall split all of the
license, maintenance and support fees or other related fees due under the
transaction on an [ *** ] basis, and (ii) the [ *** ] set forth in
Section 6.9 shall not apply with respect to such transaction.
6.11 ITOCHU TECHNOLOGY INC. to Act as Agent for Itochu. The parties
agree that Itochu shall appoint Itochu Technology Inc. ("ITI"), located at 3100
Patrick Henry Drive, Santa Clara, California, 95054, a Delaware corporation and
subsidiary of Itochu Corporation, to act as an agent for and on behal f of
Itochu with Itochu's full authority to conduct the following activities: (i) to
receive shipments from Siebel, (ii) to place orders with Siebel, and (iii) to
make payments to Siebel. Itochu agrees and acknowledges that Itochu shall be
responsible for any acts or omissions of ITI with respect to any of these
activities.
7. LIMITED RIGHT TO USE TRADEMARKS.
7.1 GRANT OF LICENSE. Siebel hereby grants to Itochu under the terms
hereinafter set forth a non-exclusive license to use the trademarks and trade
names set forth in EXHIBIT J (Trademarks) hereto (the "Trademarks"), solely in
connection with the marketing, distribution and support of the Licensed Software
in Japan and only in the manner prescribed in this Agreement. Any other proposed
use of the Trademarks must be approved in writing by Siebel in advance of such
use. Itochu shall use the Trademarks in accordance with the terms of Siebel's
Trademark Use Policy as amended by Siebel from ti me-to-time, which contains
Siebel's policies and procedures describing the proper usage of the Trademarks
and other intellectual property. As Siebel revises this policy, it shall provide
an up-to-date copy to Itochu.
7.2 FORM OF USE. Itochu shall only use the Trademarks in the form(s)
approved in writing by Siebel, including the O symbol (and, upon registration of
the Licensed Mark, the (R) symbol), and an indication that Siebel is the owner
of the Trademarks.
7.3 NO USE OF IDENTICAL OR SIMILAR NAMES. Itochu shall not use as its
company name or a component thereof or on other products a mark or name
identical with or confusingly similar to the Trademarks except as permitted
herein.
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7.4 REGISTRATION OF TRADEMARK. Siebel shall use reasonable efforts to
register in Japan the Trademarks. Itochu shall not attempt to register on its
behalf, or for its benefit, Trademarks.
7.5 PRIOR SUBMISSION OF SAMPLES. Upon periodic requests by Siebel,
Itochu shall submit to Siebel samples of advertising or other items bearing the
Trademarks prior to the use of such advertising or other items. Siebel shall
have the right to make reasonable objections to any such sample within f ifteen
(15) days of its submission on the grounds that Siebel believes in good faith
that the use of such advertising or other items by Itochu will be damaging to
the recognition value or reputation for quality associated with the Trademarks
or that the advertising or other items do not meet the st andards of quality
required by Siebel. In the event of such an objection, Itochu shall modify the
advertising or other items in accordance with the objection of Siebel prior to
the use of such advertising or other items.
7.6 NO OBJECTIONS TO VALIDITY. Itochu agrees not to raise or cause to
be raised any objections to the validity of the Trademarks or to the respective
rights of Siebel.
7.7 NOTIFICATION OF ADVERSE USE. Itochu shall promptly notify Siebel of
any adverse use by a third party of any of the Trademarks or of a mark or name
confusingly similar to any of the Trademarks and agrees to take no action of any
kind with respect thereto except with the prior written authoriza tion of
Siebel. Itochu further agrees to provide full cooperation with any legal or
equitable action by Siebel to protect its rights, title and interest in the
Trademarks.
7.8 INFRINGEMENT PROCEEDINGS. In the event of infringement of the
Trademarks by a third party, Siebel shall have the sole right to bring
proceedings (including notifications to the Customs Department objecting to the
importation of infringing goods) against the infringing party and to retain any
damages recovered in such proceedings. Itochu shall cooperate with Siebel in the
prosecution of any such infringement proceedings. Siebel shall indemnify and
hold harmless Itochu against any proceeding brought by a third party on a claim
that the Trademarks infringes upon the trademark or other i ntellectual property
rights of such third party. Itochu shall promptly notify Siebel in writing of
any such proceeding and shall provide complete authority, information and
assistance to Siebel in connection with such proceeding. Siebel shall have the
sole and exclusive authority and obligation t o defend and/or settle any
proceeding with respect to the Trademarks.
8. SOURCE CODE.
8.1 SOURCE CODE ESCROW. Siebel has placed, or will place within thirty
(30) days of the commencement of the License Term, documented and working order
copies of the source code of the User Programs and Server Programs under the
control of an escrow agent pursuant to the terms of an escrow agreeme nt which
provides for the release of the source code for such programs to Itochu in the
event one or more of the following conditions exists and is uncorrected for a
period of thirty (30) days: entry of an order as to Siebel under Title 11 of the
United States Code, the making by Siebel of a gener al assignment for the
benefit of creditors, the appointment of a general receiver or trustee in
bankruptcy of Siebel's business or
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property, or action by Siebel under any state insolvency or similar law
for the purpose of Siebel's bankruptcy, reorganization or liquidation.
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8.2 LICENSE. Effective solely in the event Itochu obtains the Licensed
Software source code pursuant to Section 8.1 ("Source Code Escrow"), Siebel
hereby grants to Itochu the right and license (subject to Itochu's payment
obligations under this Agreement) solely to use the Licensed Software sour ce
code for maintenance of the Licensed Software licensed to End Users in Japan.
8.3 PROTECTION OF SOURCE CODE. In the event of release of the Licensed
Software source code to Itochu, Itochu will protect the Licensed Software source
code with the same care and using the precautions which it uses to protect its
own source code. Itochu will limit access to the Licensed Softwar e source code
to its employees with a need to know which have agreed in writing to maintain
the confidentiality of such source code.
9. OWNERSHIP AND PROPRIETARY RIGHTS.
9.1 OWNERSHIP. Siebel and its suppliers shall retain all title,
copyright and other proprietary rights in and to the Licensed Software. Itochu
does not acquire any rights, express or implied, in the Licensed Software, other
than those specified in this Agreement. In the event that Itochu makes s
uggestions to Siebel regarding new features, functionality or performance that
Siebel adopts for the Licensed Software, such new features, functionality or
performance shall become the sole and exclusive property of Siebel, free from
any restriction imposed upon Siebel by the provisions of Section 15.1
("Non-disclosure").
9.2 ASSIGNMENT OF RIGHTS IN LOCALIZATIONS. Itochu hereby assigns to
Siebel any and all right and title, including without limitation copyright, it
may have in the Japanese translations and/or Localized Versions of the Licensed
Software, the Documentation, on-line help and the Training Materials a s
prepared by Itochu hereunder, including but not limited to any previous work
performed by Itochu pursuant to the Proprietary Information and Inventions
Agreement dated September 1, 1994. If Itochu has any rights, including without
limitation moral rights, in such Localized Versions or translatio ns that cannot
be assigned to Siebel, Itochu unconditionally and irrevocably waives enforcement
of such rights and all claims and causes of action of any kind against Siebel
and any of its licensees and customers with respect to such rights. Itochu
further agrees, at Siebel's request and expense, to consent to and join in any
action to enforce such rights. If Itochu has any rights, including without
limitation moral rights, in such Localized Versions and/or translations that
cannot be assigned to Siebel or waived by Itochu, Itochu hereby unconditionally
and irrevocably grants to Siebel dur ing the term of such rights the exclusive,
perpetual, worldwide, fully paid and royalty-free right and license, with the
right to sublicense through multiple tiers of sublicensees, to reproduce, create
derivative works or, distribute, perform, display, make, use and sell such
rights or any product claimed or covered by such rights.
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9.3 SIEBEL'S RIGHTS IN FUTURE DEVELOPMENT WORKS. Itochu agrees and
hereby assigns all right, title and interest in any derivative works including
enhancements, new software modules or product options (collectively such future
versions of the Licensed Software and any derivative works including
enhancements, new software modules or product options shall be referred to as
"Future Development Work(s)"). For purposes this Section, any Itochu software
engineer or any other Itochu employee or independent contractor providing
assistance in connection with such Future Development Works shall be referred to
as "Itochu Development Personnel. If any Itochu or any Itochu Development
Personnel have any rights, including without limitation moral rights, in Future
Development Works that cannot be assigned to Siebel, Itochu (and any such Itochu
Development Personnel in their individual capaciti es, as may be necessary)
unconditionally and irrevocably waive enforcement of such rights and all claims
and causes of action of any kind against Siebel and any of its licensees and
customers with respect to such rights. Itochu and any such Itochu Development
Personnel (in their individual capacit ies, as may be necessary) further agree,
at Siebel's request and expense, to consent to and join in any action to enforce
such rights. If Itochu or any Itochu Development Personnel have any rights,
including without limitation moral rights, in such Future Development Works that
cannot be assigned to Siebel or waived by Itochu, Itochu and any Itochu
Development Personnel hereby unconditionally and irrevocably grant to Siebel
during the term of such rights the exclusive, perpetual, worldwide, fully paid
and royalty-free right and license, with the right to sublicense through
multiple tiers of sublicensees, to reproduce, create derivative works or,
distribute, perform, display, make, use and sell such rights or any product
claimed or covered by such rights. In the event that Itochu Development
Personnel have personal rights in the Future Development Works, Itochu agrees to
use its bes t efforts to cause such Itochu Development Personnel to execute such
documents as are necessary to grant Siebel the rights sought under this Section.
10. INFRINGEMENT INDEMNITY.
To the best of Siebel's knowledge, no portion of the Licensed Software
(excluding the Ancillary Program) infringes any third party intellectual
property rights. Siebel shall defend and indemnify Itochu against any and all
costs, liabilities, damages and expenses finally awarded against Itochu by a
court of competent jurisdiction (including settlement) arising out of a claim by
a third party that the Licensed Software infringes a copyright, patent or other
intellectual property rights of the United States or Japan, provided that: (a)
Itochu notifies Siebel in writing within thirty (30) days of the Itochu's
initial learning of a potential claim; (b) Siebel has sole control of the
defense of such claim and all related settlement negotiations; and (c) Itochu
provides Siebel, at Siebel's reasonable expense, with the assistance,
information and authority necessary to perform Siebel's obli gations under this
Section. Notwithstanding the foregoing, Siebel shall have no liability for any
claim of infringement based on (i) use of a superseded or altered release of
Licensed Software if the infringement would have been avoided by the use of a
current unaltered release of the Licensed Sof tware, which Siebel provided to
Itochu, or (ii) use of the Licensed Software in combination with any other
software, hardware or data where in the absence of such combination the Licensed
Software would not have been infringing.
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In the event the Licensed Software is held or believed by Siebel to
infringe, Siebel shall have the option, at its expense, to (a) modify the
Licensed Software to be non-infringing provided that Siebel maintains the
overall functionality of the Licensed Software; (b) obtain for Itochu and/or End
Users a license to continue using the Licensed Software; or (c) terminate this
Agreement with respect to the infringing Licensed Software and refund the
license fees paid for such Licensed Software, such amount to be reduced by
Twenty Percent (20%) for each year of each Itochu End User's use thereo f. This
Section states Siebel's entire liability and Itochu's exclusive remedy for
infringement.
11. LIMITED WARRANTIES AND DISCLAIMERS.
11.1 LIMITED PROGRAM WARRANTY. Siebel warrants for a period of one (1)
year from the date on which the Licensed Software is first delivered to Itochu
pursuant to Section 4.1 ("Delivery of Licensed Software") hereunder, that the
unmodified version of the Licensed Software will perform in all mater ial
respects the functions described in the Documentation when operated on a
platform which is supported by Siebel.
11.2 LIMITED MEDIA WARRANTY. Siebel warrants that the tapes, diskettes
or other media upon which Licensed Software is delivered by Siebel to Itochu to
be free of defects in materials and workmanship under normal use for ninety (90)
days from the date of delivery by Siebel.
11.3 LIMITED SERVICES WARRANTY. Siebel warrants that any services
contracted to be performed by Siebel pursuant to this Agreement shall be
performed in a manner consistent with generally accepted industry standards.
This warranty shall be valid for ninety (90) days from performance of service.
11.4 DISCLAIMERS. Siebel does not warrant that the Licensed Software
will meet Itochu's requirements, that the Licensed Software will operate in the
combinations which Itochu may select for use, that the operation of the Licensed
Software will be uninterrupted or error-free, or that all Program e rrors will
be corrected. Limited Production Licensed Software, pre-production releases of
Licensed Software, and computer-based training products are distributed "AS IS".
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WIT HOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.5 EXCLUSIVE REMEDIES. Itochu must report any breach of the
warranties contained in this Section 11 to Siebel during the relevant warranty
period, and Itochu's exclusive remedy and Siebel's entire liability for such
breach shall be:
(a) FOR LICENSED SOFTWARE. To correct or provide a workaround
for reproducible Errors that cause breach of this warranty.
(b) FOR MEDIA. The replacement of defective media, provided
that Itochu shall acquire an RMA number from Siebel before returning defective
media to Siebel.
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(c) FOR SERVICES. The reperformance of the services, or if
Siebel is unable to perform the services as warranted, Itochu shall be entitled
to recover the fees paid to Siebel for the unsatisfactory services.
12. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF
PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN A DVISED OF THE
POSSIBILITY OF SUCH DAMAGES. Notwithstanding the foregoing, Siebel's lost
revenue caused by a breach by Itochu shall constitute a direct damage. Except as
provided for under Section 10 ("Infringement Indemnity") of this Agreement,
Siebel's liability for damages hereunder shall in no event exceed the amount of
fees paid by Itochu under this Agreement, and if such damages result from
Itochu's use of the Licensed Software or services, such liability shall be
limited to fees paid for the relevant Program or services giving rise to the
liability.
The provisions of this Agreement allocate the risks between Siebel and
Itochu. Siebel's pricing reflects this allocation of risk and the limitation of
liability specified herein.
13. TERM AND TERMINATION.
13.1 TERM. This Agreement shall commence on the Effective Date and
shall continue in force for an initial term through December 31, 1998 (the
"Initial Term"). The Agreement may be extended after the Initial Term for
successive one (1) year terms by mutual agreement of the parties. Siebel shall h
ave no obligation to renew or extend the term of the Agreement, and no payments,
liabilities or damages shall be due Itochu, or shall be imposed upon Siebel, for
its decision to terminate or not to renew the Agreement.
13.2 TERMINATION FOR CAUSE. Either party may terminate this Agreement,
by written notice to the other party: (a) upon the material failure of the other
party to observe, keep or perform any of the covenants, terms or conditions
herein (including the failure to pay sums owed to the other party wh en due), if
such default continues for thirty (30) days after written notice by the other
party, (b) upon the institution by or against either party of insolvency,
receivership or bankruptcy proceedings or any other proceedings for the
settlement of its debts, (c) upon either party's assignment for the benefit of
creditors, or (d) upon either party's dissolution or ceasing to do business.
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CONFIDENTIAL TREATMENT REQUESTED
13.3 PAYMENT OF DAMAGES FOR TERMINATION BY SIEBEL FOR CAUSE. In the
event Siebel, during the first year of the Co-Exclusive Period, terminates the
Agreement for cause under Section 13.2 ("Termination for Cause"), Itochu shall
immediately thereafter pay to Siebel the difference between [***] and the
total license fees paid to Siebel by Itochu prior to such termination under the
Agreement (if less than [***]). In the event Siebel, during the second year
of the Co-Exclusive Period, terminates the Agreement for cause under Secti on
13.2 ("Termination for Cause"), Itochu shall immediately pay to Siebel the
difference between [***] and the total license fees paid to Siebel by Itochu
prior to such termination under the Agreement (if less than [***]). The
parties acknowledge and agree that the damage to Siebel due to the early
termination of the Agreement by Siebel for cause cannot readily be measured but
will, in any event, be significant, and that the remedy for such damages set
forth in this Section provides a reasonable and efficient method of compensa
ting Siebel for such damages. Itochu's payment of such amount shall be Siebel's
sole and exclusive remedy for a termination of this Agreement by Siebel for
cause under Section 13.2; provided; however, that Siebel reserves all other
rights and remedies available under copyright, patent, trademark, trade secret
and other applicable laws for a breach by Itochu of its obligations under
Section 5 ("Covenants and Restrictions Regarding Licensed Software") and Section
15.1 ("Non-disclosure").
13.4 PAYMENT OF DAMAGES FOR TERMINATION by Itochu for Cause.
Notwithstanding any provision to the contrary contained in Sections 6.4.1 or
6.4.2, in the event Itochu during the term of this Agreement, terminates this
Agreement for cause under Section 13.2 ("Termination for Cause") due to Siebel,
S iebel shall immediately thereafter pay to Itochu any portion of the Minimum
Co-Exclusive Fees (or the Additional Minimum Co-Exclusive Fee, if applicable) as
incurred pursuant to Section 6.4.4 above) which has not been credited against
license fees owed pursuant to Section 6.1 ("Itochu License Payme nt") as of the
termination of this Agreement. Siebel's payment of such amount shall be Itochu's
sole and exclusive remedy for a termination of this Agreement by Itochu for
cause under Section 13.2.
13.5 EFFECTS OF TERMINATION. Upon expiration or termination of this
Agreement: (a) all licenses and rights granted to the parties shall terminate,
except as set forth below or in Section 13.7 ("Survival"); (b) each party shall
refrain from representing themselves as a party to this Agreement; (c) any End
User sublicenses granted hereunder will not be affected; and (d) any other
rights of either party which may have accrued up to the date of termination
shall not be affected.
13.6 LIMITATION OF LIABILITY ON TERMINATION. Notwithstanding the
foregoing, upon expiration or termination, neither party will be liable to the
other party, because of such termination, for compensation (except for accrued
compensation and except as provided in Section 13.3 ("Payment of Damages f or
Termination by Siebel for Cause") or Section 13.4 ("Payment of Damages for
Termination by Itochu for Cause")), reimbursement or damages on account of the
loss of prospective profits or anticipated sales or on account of expenditures,
inventory, investments, leases or commitments in connection wi th the business
or goodwill of Siebel or Itochu.
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13.7 SURVIVAL. Sections 3.9 ("Itochu Indemnity"), 5.2 ("Prohibition on
Decompiling"), 6 ("Payments") except that Section 6.4 shall not survive in the
event of a termination of this Agreement by Itochu for cause under Section 13.4,
7.8 ("Infringement Proceedings"), 9 ("Ownership and Proprietary Ri ghts"), 10
("Infringement Indemnity"), 12 ("Limitation of Liability") and 15
("Miscellaneous") shall survive the termination of this Agreement; provided,
however, that Section 15.1 ("Non-disclosure") shall survive expiration or
termination of this Agreement for five years. In the event that Siebel obtains a
release of the Licensed Software source code from escrow pursuant to Section 8
("Source Code") at or prior to such termination, the provisions of Paragraphs
8.2 ("License") and 8.3 ("Protection of Source Code") shall also survive into
perpetuity. In addition, the confidentiality and non -disclosure provisions
EXHIBIT D shall also survive into perpetuity.
14. COMPLIANCE WITH LAWS.
14.1 COMPLIANCE WITH LAW AND REGULATIONS. Itochu shall act in strict
compliance with all applicable laws, ordinances, regulations and other
requirements of any government authority pertaining to Itochu's activities under
the Agreement and shall provide, pay for, and keep in good standing all perm
its, licenses or other consents necessary for such activities.
14.2 EXPORT CONTROL. The parties agree that the export of Licensed
Software is subject to the export control laws of the United States of America
and each party agrees to abide by all such export control laws and regulations,
including without limitation any regulations promulgated by the Departm ent of
Commerce (or its successors) or the Department of Treasury.
15. MISCELLANEOUS.
15.1 NON-DISCLOSURE. By virtue of this Agreement, the parties may have
access to information that is confidential to one another ("Confidential
Information"). Siebel's Confidential Information shall include the Licensed
Software, the source code for the Licensed Software, formulas, methods,
know-how, processes, designs, new products, developmental work, marketing
requirements, marketing plans, customer names, prospective customer names, the
terms and pricing under this Agreement, and all information clearly identified
in writing at the time of disclosure as confidential. In the event of o ral
disclosure only the information disclosed which is reduced to writing,
designated as confidential and transmitted to Itochu within thirty (30) days of
such oral disclosure shall be deemed the Confidential Information and subject to
this Section 15.1.
A party's Confidential Information shall not include information that
(a) is or becomes a part of the public domain through no act or omission of the
other party; (b) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party either directly or
indirectly from the disclosing party; (c) is lawfully disclosed to the other
party by a third party without restriction on disclosure; or (d) is
independently developed by the other party. Itochu shall not disclose the
results of any performance tests of the Licensed Software to any third party wi
thout Siebel's prior written approval.
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The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of five (5) years
after termination of this Agreement; provided, however, that with respect to the
source code for the Licensed Software, the nondisclosure obligations s et forth
in this Agreement and the escrow agreement shall survive into perpetuity. The
parties agree, unless required by law, not to make each other's Confidential
Information available in any form to any third party or to use each other's
Confidential Information for any purpose other than in the performance of this
Agreement. Each party agrees to take all reasonable steps to ensure that
Confidential Information is not disclosed or distributed by its employees or
agents in violation of the terms of this Agreement.
15.2 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the United States of America and the State of California as such
laws are applied to agreements entered into and to be performed entirely within
California between California residents. This Agreement is prepared and executed
in the English language only and any translation of this Agreement into any
other language shall have no effect. The parties agree that the United Nations
Convention on Contracts for the International Sale of Goods is specifically
excluded from application to this Agreement.
15.3 ATTORNEYS FEES. In the event any proceeding or lawsuit is brought
by Siebel, its suppliers or Itochu in connection with this Agreement, the
prevailing party in such proceeding shall be entitled to receive its costs,
expert witness fees and reasonable attorneys' fees, including costs and fees on
appeal.
15.4 ARBITRATION; Choice of Forum and Venue. Any dispute, controversy
or claim arising out of or relating to this Agreement, or the breach,
termination, or invalidity thereof, shall be settled by arbitration held in San
Francisco, California, United States of America , in accordance with the UNCIT
RAL Arbitration Rules in effect on the date of this Agreement and, to the extent
different from such rules the following rules and provisions:
(a) The arbitrator(s) shall apply the laws of the United
States of America and the State of California, United States of America, to
decide the dispute. The language of the arbitration shall be English. At the
first arbitration hearing, each party shall be entitled to submit a written list
of cat egories of documents to be produced to it by the other party relating to
the subject matter of the dispute. The arbitrator or arbitrators shall resolve
at the first hearing any dispute between the parties regarding the documents to
be produced. The arbitration hearings shall then be recessed for a reasonable
period of time to be determined by the arbitrator or arbitrators to allow the
parties to produce the requested categories of documents to each other. The
parties shall also be entitled to discovery as provided in Sections 1283.5 and
1283.1 of the Code of Civil Procedure of the State of California, whether or not
the California Arbitration Act is deemed to apply to such arbitration.
(b) If the dispute at issue involves a claim for money damages
only and in amount less than One Million U.S. Dollars ($1,000,000), exclusive of
attorneys' fees and costs of the arbitration, then the parties shall choose, by
mutual agreement, one (1) neutral arbitrator to hear the dispute. If the dispute
involves a claim for equitable relief and/or money damages in excess of One
Million U.S. Dollars ($1,000,000), exclusive of attorneys' fees and costs of the
arbitration, the parties shall designate three (3) neutral arbitrators. In the
event the parties cannot agree on the selection of the arbitrator(s) within
thirty (30) days after a demand for arbitration has been served, the
arbitrator(s) shall be selected by the American Arbitration Association.
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(c) The award shall be made promptly by the arbitrator(s) and,
unless otherwise agreed by the parties, no later than thirty (30) days from the
date of closing of the hearing, or if oral hearings have been waived, from the
date of transmittal of final statements and proofs to the arbitrator(s). If the
arbitrator(s) fails to reach a decision within thirty (30) days, the
arbitrator(s) shall be discharged, and new arbitrator(s) shall be appointed and
shall proceed in the same manner, and the process shall be repeated until a
decision is finally reached.
(d) The award rendered by the arbitrator(s) shall include
costs of the arbitration, reasonable attorneys' fees and reasonable costs for
experts and other witnesses. The award of the arbitrator shall be final,
non-appealable and binding upon the parties and their respective successors and
assigns . Judgment on the award may be entered in any court having jurisdiction.
(e) The parties agree that the arbitrator(s) shall have the authority
to issue interim orders for provisional relief, including, but not limited to,
orders for injunctive relief, attachment or other provisional remedy, as
necessary to protect either party's name, proprietary information, trade se
crets, know-how or any other proprietary right. The parties agree that any
interim order of the arbitrator(s) for any injunctive or other preliminary
relief shall be enforceable in any court of competent jurisdiction. In addition,
nothing in this Agreement shall be deemed as preventing either part y from
seeking provisional relief from any court of competent jurisdiction, in order to
protect that party's name or proprietary rights.
15.5 NOTICES. All notices or reports permitted or required under this
Agreement shall be in writing and shall be delivered by personal delivery,
telegram, telex, telecopier, facsimile transmission, or by certified or
registered mail, return receipt requested, and shall be deemed given upon person
al delivery, five (5) days after deposit in the mail, or upon acknowledgment of
receipt of electronic transmission. Notices sent to Siebel shall be sent to the
following address:
Siebel Systems, Inc.
4005 Bohannon Drive
Menlo Park, California 94025
Attention: President
Fax: (415) 329-6524
with a copy to the Vice President, Legal, at the same address.
Notices sent to Itochu shall be sent to the following address:
Itochu Techno-Science Corporation
16-7 Komazawa 1-Chome,
Setagaya-Ku
Tokyo, 154 Japan
Fax: 03-3419-9099
Either party may change the above addresses by written notice to the other.
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15.6 INJUNCTIVE RELIEF. It is expressly agreed that a breach of this
Agreement by Itochu will cause irreparable harm to Siebel and that a remedy at
law would be inadequate. Therefore, in addition to any and all remedies
available at law, Siebel will be entitled to an injunction or other equitabl e
remedies in all legal proceedings in the event of any threatened or actual
violation of any or all of the above provisions. In the event that Itochu or any
Itochu customer continues to distribute the Licensed Software or any portion
thereof, after its right to do so has terminated or expired, Si ebel shall also
be entitled to injunctive relief, including, without limitation, an order
directing that any copies of the Licensed Software, or any portion thereof,
which Itochu or any direct or indirect customers of Itochu attempt to distribute
be seized, impounded and destroyed by appropriate of ficials in order to prevent
such distribution.
15.7 INDEPENDENT CONTRACTOR. The parties are independent contractors
under this Agreement and nothing in this Agreement shall be construed to create
a partnership, franchise, joint venture, agency or employment relationship
between Siebel and Itochu. Neither party has any right, power or authori ty to
assume or create any obligation on behalf of the other party.
15.8 FORCE MAJEURE. Neither party shall be liable hereunder by reason
of any failure or delay in the performance of its obligations hereunder (except
for the payment of money) on account of strikes, shortages, riots, insurrection,
fires, flood, storm, explosions, acts of God, war, governmental ac tion, labor
conditions, earthquakes, material shortages, or any other cause which is beyond
the reasonable control of such party.
15.9 WAIVER. The failure of either party to require performance by the
other party of any provision hereof shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by either party of
a breach of any provision hereof be taken or held to be a waiver o f the
provision itself.
15.10 SEVERABILITY. In the event that any provision of this Agreement
shall be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not render
this Agreement unenforceable or invalid as a whole, and, in such event, such
provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
15.11 HEADINGS. The paragraph headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe,
or describe the scope or extent of such paragraph, or in any way affect this
Agreement.
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15.12 ASSIGNMENT. Neither this Agreement nor any rights or obligations
of Itochu hereunder may be assigned by Itochu in whole or in part without the
prior written approval of Siebel. For the purposes of this Section, a change in
the persons or entities who control Fifty Percent (50%) or more of the equity
securities or voting interest of Itochu shall be considered an assignment of
Itochu's rights. Siebel's rights and obligations, in whole or in part, under
this Agreement may be assigned by Siebel. Siebel may exercise full transfer and
assignment rights in any manner at Siebel's discretion and specifically may
sell, pledge or otherwise transfer its right to receive royalties under this
Agreement.
15.13 EXPORT. Itochu acknowledges that the laws and regulations of the
United States restrict the export and re-export of commodities and technical
data of United States origin, including the Siebel Support Information. Itochu
agrees that it will not export or re-export any Siebel Support Informa tion in
any form, without the appropriate United States and foreign governmental
licenses. Itochu agrees that its obligations pursuant to this Section shall
survive and continue after any termination or expiration of rights under this
Agreement.
15.14 FULL POWER. Each party warrants that it has full power to enter
into and perform this Agreement, and the person signing this Agreement on such
party's behalf has been duly authorized and empowered to enter into this
Agreement. Itochu further acknowledges that it has read this Agreement, und
erstands it, and agrees to be bound by it.
15.15 EARLIER TERMINATION -- GOVERNMENTAL OVERSIGHT. This Agreement is
subject to all necessary approvals and/or authorizations or other required
procedures of the Governments of Japan and the United States having been
obtained or completed. Siebel will be responsible for obtaining any U.S. Gove
rnment approvals and Itochu will be responsible for obtaining any Japanese
Government approvals. In the event that a recommendation or order for
modification or suspension of the terms and conditions of this Agreement or the
acts contemplated hereunder is made by either of the above-mentioned Gove
rnments, this Agreement shall only become or continue to be effective if an
amendment is executed in writing by the parties. Failure by the parties to reach
agreement shall result in this Agreement being deemed null and void ab initio,
and all rights, duties and obligations of each party to the ot her shall no
longer exist, except as otherwise provided in Section 15.1 ("Non-disclosure")
and Itochu shall return to Siebel the Licensed Software delivered by Siebel
pursuant to Section 4.1 ("Delivery of Licensed Software"). In the event of such
termination, any expenses which either party may ha ve incurred in respect to
this Agreement and the subject matter of this Agreement shall be for the account
of the party having incurred them, but Siebel shall retain any amounts
previously paid to Siebel by Itochu.
15.16 CONFIDENTIAL AGREEMENT. Neither party will disclose any terms or
the existence of this Agreement, except pursuant to a mutually agreeable press
release or as otherwise required by law.
15.17 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which will be considered an original, but all
of which together will constitute one and the same instrument.
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15.18 ENTIRE AGREEMENT. This Agreement, together with the referenced
and attached Exhibits, completely and exclusively states the agreement of the
parties regarding its subject matter. It supersedes, and its terms govern, all
prior and contemporaneous proposals, negotiations, representations, ag reements,
or other communications between the parties, written or oral, regarding the
subject matter hereof. This Agreement shall not be modified except by a
subsequently dated written amendment or appendix signed on behalf of Siebel and
Itochu by their duly authorized representatives and any prov ision of a purchase
order purporting to supplement or vary the provisions hereof shall be void.
15.19 BINDING EFFECT. This agreement is binding upon and inures to the
benefit of the parties and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
SIEBEL SYSTEMS, INC. ITOCHU TECHNO-SCIENCE CORPORATION
By: By:
----------------------------------- -----------------------------
Name: Name:
----------------------------------- -----------------------------
Title: Title:
----------------------------------- -----------------------------
Date: Date:
----------------------------------- -----------------------------
ITOCHU CORPORATION
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Date:
-----------------------------------
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EXHIBIT A
LICENSED SOFTWARE
(1) Server Programs:
SYSTEM MANAGEMENT SOFTWARE(1)
SOFTWARE VERSION
Marketing Administration Manager v 2.0
Sales Administration Manager v 2.0
Data Replication Manager v 2.0
Enterprise Integration Manager v 2.0
Database Extension Manager v 2.0
(1) Version 1.2 operates on Oracle 7.1, Sybase System 10, Informix
On-line 7.1 and Version 2.0 operates on Oracle 7.2 but such software does not
include any Oracle, Sybase, Informix or MS SQL Server DBMS Server licenses.
(2) User Programs:
SALES MANAGEMENT SOFTWARE LICENSING(2)
END-USER SOFTWARE VERSION
SIEBEL SALES ENTERPRISE V 2.0
PRODUCT OPTIONS:
Marketing Encyclopedia v 2.0
Correspondence System v 2.0
Quote Generation System v 2.0
Revenue Forecasting System v 2.0
Product Forecasting System v 2.0
Reportwriter w/ Standard Reports v 2.0
Field Sales Synchronization v 2.0
Tele-Business Extensions v 2.0
Business Object Configurator v 2.0
Executive Information System v 2.0
(2) Minimum system requirements include Microsoft Windows 3.1 or
Windows 95, 486 66 MHz PC, 500mb hard disk, 16mb of RAM, MS Word and appropriate
DBMS-specific remote connectivity hardware and network software.
32
(3)Ancillary Programs:
PRODUCT VERSION
Watcom SQL Database Runtime v4.0
MS Access Runtime v2.0
Adobe Exchange LE v2.x
Adobe Type Manager v3.01
MS ODBC Text Driver v2.0
(4)Description of Documentation:
DOCUMENT VERSION
Release Notes(3) v 2.0
Installation and Upgrade Guide(3) v 2.0
Administration Guide(3) v 2.0
Database Extension Reference Manual(4) v 2.0
Data Model Reference Manual(5) v 2.0
Business Object Configuration Guide(4) v 2.0
(3) A Non-disclosure agreement reasonably acceptable to Siebel is
required before access or disclosure of any kind is given to Itochu customers or
third parties.
(4) A Non-disclosure agreement reasonably acceptable to Siebel is
required before access or disclosure of any kind is given to Itochu employees,
customers or third parties.
(5) Available on an limited, as needed basis; special Non-disclosure
agreement and Siebel's CEO approval required before access or disclosure of any
kind is given to Itochu employees, customers or third parties.
33
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT B
SIEBEL COMPETITORS
[***]
Siebel reserves the right to add additional companies (who commercially
distribute or otherwise offer a product that is competitive with the Licensed
Software) to this list from time to time during this Agreement with the consent
of Itochu which consent shall not be unreasonably withheld or delayed . For
purposes of adding additional companies to this EXHIBIT B after the Effective
Date, the above listed companies are illustrative of the type of companies who
commercially distribute or otherwise offer a product that is competitive with
the Licensed Software.
34
EXHIBIT C
CURRENT SOFTWARE LIST PRICE
35
CONFIDENTIAL TREATMENT REQUESTED
SIEBEL
- --------------------------------------------------------------------------------
SIEBEL SALES ENTERPRISE INTERNATIONAL PRICE LIST
- --------------------------------------------------------------------------------
SALES MANAGEMENT SOFTWARE LICENSING (1)
PRICE PER NAMED USER
END-USER SOFTWARE PART NO. LIST PRICE
SIEBEL SALES ENTERPRISE SSEOMS001 [***]
PRODUCT OPTIONS:
Marketing Encyclopedia SSEMES001 [***]
Correspondence System SSECOR001 [***]
Quote Generation System SSEQUO001 [***]
Revenue Forecasting System SSERFOR001 [***]
Product Forecasting System SSEPFOR001 [***]
Reportwriter w/Standard Reports SSEREP001 [***]
Field Sales Synchronization SSEFSS001 [***]
Tele-Business Extensions SSETEL001 [***]
Business Object Configurator SSEBOBJ001 [***]
(1) Minimum system requirements include Microsoft Windows 3.1 or Windows 95, 486
66 Mhz PC, 500mb hard disk, 16mb of RAM, MS Word and appropriate DBMS-specific
remote connectivity hardware and network software.
- --------------------------------------------------------------------------------
SALES MANAGEMENT SOFTWARE LICENSING (2)
PRICE PER NAMED USER
(UP TO [**] USERS)
END-USER SOFTWARE PART NO. LIST PRICE
Marketing Administration Manager SSEDMADM001 [***]
Sales Administration Manager SSEDSADM001 [***]
Data Replication Manager SSEDREP001 [***]
Enterprise Integration Manager SSEINT001 [***]
Database Extension Manager SSEDBEX001 [***]
(2) Does not include Oracle, Sybase, Informix or MS SQL Server DBMS Server
license.
SIEBEL SYSTEMS, INC. CONFIDENTIAL -
PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE PAGE 1
NOVEMBER 10, 1995 PART #9003-001-00
36
CONFIDENTIAL TREATMENT REQUESTED
SIEBEL
FOR INTERNAL USE ONLY
- --------------------------------------------------------------------------------
SIEBEL SALES ENTERPRISE INTERNATIONAL GUIDELINES
- --------------------------------------------------------------------------------
SALES MANAGEMENT SOFTWARE LICENSING (1)
QUANTITY DISCOUNT GUIDELINES
PRICE PER NAMED USER
(BY NUMBER OF USERS)
---------------------------------------------------------------------------
END-USER SOFTWARE PART NO. 1-49 50-99 100-249 250-499 500-999 1000+
---------------------------------------------------------------------------
SIEBEL SALES ENTERPRISE SSEOMS001 [***] [***] [***] [***] [***] [***]
PRODUCT OPTIONS:
Marketing Encyclopedia SSEMES001 [***] [***] [***] [***] [***] [***]
Correspondence System SSECOR001 [***] [***] [***] [***] [***] [***]
Quote Generation System SSEQUO001 [***] [***] [***] [***] [***] [***]
Revenue Forecasting System SSERFOR001 [***] [***] [***] [***] [***] [***]
Product Forecasting System SSEPFOR001 [***] [***] [***] [***] [***] [***]
Reportwriter w/Standard Reports SSEREP001 [***] [***] [***] [***] [***] [***]
Field Sales Synchronization SSEFSS001 [***] [***] [***] [***] [***] [***]
Tele-Business Extensions SSETEL001 [***] [***] [***] [***] [***] [***]
Business Object Configurator SSEBOBJ001 [***] [***] [***] [***] [***] [***]
(1) Minimum system requirements include Microsoft Windows 3.1 or Windows 95, 486
66 Mhz PC, 500mb hard disk, 16mb of RAM, MS Word and appropriate DBMS-specific
remote connectivity hardware and network software.
- --------------------------------------------------------------------------------
SYSTEM MANAGEMENT SOFTWARE LICENSING (2)
QUANTITY DISCOUNT GUIDELINES
PRICE PER NAMED USER
END-USER SOFTWARE (BY NUMBER OF USERS)
----------------------------------------------------------------------------
PART NO. 1-49 50-99 100-249 250-499 500-999 1000+
----------------------------------------------------------------------------
Marketing Administration Manager SSEDMADM001 [***] [***] [***] [***] [***] [***]
Sales Administration Manager SSEDSADM001 [***] [***] [***] [***] [***] [***]
Data Replication Manager SSEDREP001 [***] [***] [***] [***] [***] [***]
Enterprise Integration Manager SSEINT001 [***] [***] [***] [***] [***] [***]
Database Extension Manager SSEDBEX001 [***] [***] [***] [***] [***] [***]
(2) Does not include Oracle, Sybase, Informix or MS SQL Server DBMS Server
license.
FOR INTERNAL USE ONLY
SIEBEL SYSTEMS, INC. CONFIDENTIAL -
PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE PAGE 1
NOVEMBER 10, 1995 PART #9003-001-00
37
EXHIBIT A
ORDER FORM
Minimum Terms of End User Agreement for
Siebel Sales Enterprise
(Itochu)
38
EXHIBIT D
ACCESS LOG OF EMPLOYEES OF ITOCHU
GRANTED ACCESS TO
SIEBEL SYSTEMS INC.'S SOURCE CODE
By signing below, you agree to the following:
(1) To protect any and all portions of that component of Siebel's source code
known as "Microsoft AppStudio Resource Files (.rc files)" ("Source Code")
including, but not limited to, all versions thereof (whether in a electronic or
hard copy formats) against unauthorized use, dissemination, or disc losure;
(2) To protect any and all portions of such Source Code" including, but not
limited to, all versions thereof (whether in a electronic or hard copy formats)
consistent with the security measures which apply to Itochu's highly sensitive
proprietary technical data and information;
(3) To maintain the strictest confidence of Siebel's Source Code
forever regardless of the status of my employment relationship with Itochu.
Printed Name of Authorized Employee Signature Date
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39
MINIMUM TERMS OF END USER AGREEMENT
FOR
SIEBEL SALES ENTERPRISE
Itochu agrees that its agreements with End Users will contain the
following minimum terms and conditions, and that such agreements will not
include any additional terms and conditions which are inconsistent with such
minimum terms and conditions.
1. DEFINITIONS,
1.1. "ANCILLARY PROGRAM" shall mean the third party software specified
in one or more Order Forms issued pursuant to this Agreement and which
are delivered with or embedded in the Programs and are necessary for
the operation of the Programs.
1.2. "COMMENCEMENT DATE" of each Program License shall mean the date on
which End User and Itochu enter into an Order Form pursuant to which
End User purchases Program Licenses for such Program(s).
1.3. "DESIGNATED SYSTEM" or "DESIGNATED SYSTEMS" shall mean the
computer hardware and operating system(s) designated on the Order
Form(s).
1.4. "LIMITED PRODUCTION PROGRAM" shall mean a Program which is not
generally licensed for commercial use by Itochu or which is not listed
in Itochu's generally available marketing literature or which is
designated as a Limited Production Program by Itochu.
1.5. "ORDER FORM" shall mean the document by which End User orders
Program Licenses and which is executed by the parties. Each Order Form
shall reference the Effective Date of this Agreement and shall, upon
signature by both parties, be deemed to have been added to the Software
Licenses and Services Agreement. A blank copy of the Order Form is
attached hereto as Exhibit A.
1.6. "PROGRAM" or "PROGRAMS" shall mean the User Programs and the
Server Programs, all as described in one or more Order Forms issued
pursuant to this Agreement; the media upon which such software is
delivered to End User; the guides and manuals for use of such software
("Documentation"); and Updates. Unless specifically set forth to the
contrary or unless the context clearly requires otherwise, "Programs"
shall also include the Ancillary Programs described in such Order
Form(s).
1.7. "SERVER PROGRAMS" shall mean those Programs specified in one or
more Order Forms issued pursuant to the Software License and Services
Agreement and which reside and operate on the Designated System.
1.8. "SOFTWARE MAINTENANCE AND SUPPORT SERVICES" shall mean Program
support provided under Itochu's policies in effect on the date Software
Maintenance and Support Services is ordered, subject to the payment by
End User of the applicable fees for such support. Itochu reserves the
right to alter such policies from time to time using reasonable
discretion.
1.9. "UPDATE" shall mean a subsequent release of the Program which is
generally made available for Program Licenses receiving Software
Maintenance and Support Services, at no additional charge other than
media and handling charges. Updates shall not include any release,
option or future product which Siebel Systems Incorporated ("Siebel")
licenses separately or only offers for an additional fee or any upgrade
in features, functionality or performance of the Programs which Itochu
licenses separately or only offers for an additional fee.
Minimum Terms of End User Agreement for
Siebel Sales Enterprise
(Itochu)
40
1.10. "USER" or "USERS" shall mean a named individual or individuals
authorized by End User to use specified Programs, regardless of whether
the individual is actively using the Programs at any given time. The
maximum number of Users that may use the User Programs or access the
Server Programs consistent with the terms of Program Licenses granted
herein is specified in the Order Form(s).
1.11. "USER PROGRAMS" shall mean those Programs specified in one or
more Order Form issued pursuant to this Agreement and which reside and
operate on User Systems.
1.12. "USER SYSTEM" shall mean the computer hardware and operating
systems operated by Users in the course of their employment with End
User, including notebook and portable computers.
2. PROGRAM LICENSE,
2.1. RIGHTS GRANTED,
A. Subject to the terms and conditions of this Agreement
and effective as of the applicable Commencement Date of each
Program License, Itochu grants to End User a worldwide,
nontransferable, nonexclusive sublicense to use the Programs
which the End User obtains under this Agreement, including a
worldwide, nontransferable, nonexclusive sublicense to use
the Ancillary Programs, as follows:
I) To use the Server Programs solely for End
User's own internal data processing operations on the
Designated Systems or on a backup system if the
Designated Systems are inoperative, up to any
applicable maximum number of designated Users set
forth in the Order Form(s); to use the User Programs
solely for End User's own internal data processing
operations for, and by up to, the number of
designated Users indicated in the Order Form(s);
provided, however, that End User may not relicense
the Programs or use the Programs for third-party
training, commercial time-sharing, rental or service
bureau use;
II) To use the Documentation provided with the
Programs in support of End User's authorized use of
the Programs;
III) To reproduce, exactly as provided by Itochu,
and distribute the Server Programs, the Ancillary
Programs and up to that number of copies of the User
Programs specified in the Order Form(s) to End User
for use by End User, provided that (a) each User
Program may be copied to up to one additional User
System for each designated User; (b) Programs may be
copied for archival or backup purposes; (c) all
titles, trademarks, and copyright and restricted
rights notices shall be reproduced in such copies;
and (d) all archival and backup copies of the
Programs shall be subject to the terms of this
Agreement; and
IV) To use the Programs in conjunction with other
software products.
Except as set forth herein, no other copies shall be made
without Itochu's prior written consent. For purposes of this
Agreement, "Program License" shall constitute each sublicense
granted to End User pursuant hereto to use a Server Program on
a single Server System and each sublicense granted to End
User for a User to use a User Program as specified in one or
more Order Forms.
Minimum Terms of End User Agreement for
Siebel Sales Enterprise
(Itochu)
41
B. End User recognizes and agrees that the source code of
the Program contains valuable confidential information
belonging to Siebel, and End User therefore agrees not to
cause or permit the reverse engineering, disassembly or
decompilation of the Programs.
C. Siebel and its suppliers shall retain all title,
copyright and other proprietary rights in and to the Programs.
End User does not acquire any rights, express or implied, in
the Programs, other than those specified in this Agreement.
D. To use a User Program or a Server Program, End User may
need to use an Ancillary Program. The Ancillary Program may be
used only in combination with Programs for the purpose of
installing or operating Programs as described on the Order
Form or Documentation, and for no other purpose. End User
shall have no right to use Ancillary Programs in connection or
combination with any other software programs.
E. As an accommodation to End User, Itochu may supply End
User with pre-production releases of Programs (which may be
labeled "Alpha" or "Beta"). End User acknowledges that these
products may not be suitable for general use.
F. The Program is comprised of "commercial computer
software" and "commercial computer software documentation" as
such terms are used in 48 C.P.R. 12.212 (SEPT 1995).
Government End Users acquire the Program under the following
terms:
i) for acquisition by or on behalf of
civilian agencies, consistent with the
policy set forth in 48 C.F.R. 12.212 (SEPT
1995); or
ii) for acquisitions by or on behalf of
units of the Department of Defense,
consistent with the policies set forth in 48
C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3
(JUN1995)
The contractor/manufacturer is: Siebel Systems Incorporated,
4005 Bohannon Drive, Menlo Park, California 94025.
2.2 TRANSFER AND ASSIGNMENT
A. End User may, upon written notice to Itochu and payment
of any then-applicable transfer fee, transfer a Program within
its organization from the Designated System to another
computer system; provided, however, that if End User transfers
the Program to a hardware and/or software platform which is
not supported by Itochu at the time of such transfer, Itochu
shall continue to provide Updates to End User which operate on
the Designated System and Itochu shall have no further
obligation to fix errors which occur when the Program is run
on an unsupported platform, Notwithstanding the foregoing, End
User shall remain obligated to pay for Software Maintenance
and Support Services ordered by End User prior to such
transfer.
B. Neither this Agreement nor any rights granted
hereunder, nor the use of any of the Programs, may be sold,
leased, assigned, or otherwise transferred, in whole or in
part, by End User, and any such attempted assignment shall be
void and of no effect; provided, however, that each End User
may assign this Agreement in connection with a merger,
acquisition or sale of all or substantially all of its assets
unless the surviving entity is a direct competitor of Siebel.
For purposes of this Agreement, "Direct Competitor" shall mean
company which offers an opportunity management system, a
personal information management system or a marketing
encyclopedia system or otherwise engaged in sales force
automation.
Minimum Terms of End User Agreement for
Siebel Sales Enterprise
(Itochu)
42
2.3 VERIFICATION, Itochu is hereby notified that Siebel Systems
Incorporated, a California corporation located at 4005 Bohannon Drive,
Menlo Park, California 94025 is a third-party beneficiary to this
Agreement and that the provisions of this Agreement related to End
User's use of the Programs are made expressly for the benefit of Siebel
and are enforceable by Siebel in addition to Licensor. At Siebel's
written request, not more frequently than annually, End User shall
furnish Siebel with a certificate executed by an officer of End User
(a) verifying that the Programs are being used pursuant to the
provision of the Agreement, including any User and other limitations,
and that End User is not in breach of any other license restrictions;
(b) providing a list of Users by name; and (c) listing the locations,
types and serial numbers of the Designated Systems on which the Server
Programs are run.
Itochu or Siebel may, at its expense, and upon thirty (30) days prior
written notice to End User, audit End User's use of the Programs. Any
such audit shall be conducted during regular business hours at End
User's facilities and shall not unreasonably interfere with End User's
business activities. If an audit reveals that End User has underpaid
fees to Itochu as a result of unauthorized use or copying of the
Programs, End User shall pay to Itochu such underpaid fees based on the
Program License fees incurred by End User for such Programs plus
interest thereon at the prevailing U.S. dollar prime rate from the
initial date of the unauthorized use. If the amount of the underpayment
exceeds Five Percent (5%) of the license fees paid, then End User shall
also pay Itochu's or Siebel's reasonable costs of conducting the audit.
Audits shall be conducted no more than once annually.
3. TERM AND TERMINATION,
3.1 TERM. Each Program License granted under this Agreement shall
commence on the applicable Commencement Date and shall remain in effect
perpetually unless such Program License or this Agreement is terminated
as provided in Section 3.2 (Termination by Itochu).
3.2 TERMINATION BY ITOCHU. Itochu may terminate this Agreement or
any Program License upon written notice if End User breaches this
Agreement and fails to correct the breach within thirty (30) days
following written notice from Itochu specifying the breach.
3.3 HANDLING OF PROGRAMS UPON TERMINATION. If a Program License
granted under this Agreement terminates, End User shall (a) cease using
the applicable Programs, and (b) certify to Itochu within thirty (30)
days after termination that End User has destroyed , or has returned to
Itochu, the Programs and all copies thereof. This requirement applies
to copies in all forms, partial and complete, in all types of media and
computer memory, and whether or not modified or merged into other
materials. Before returning Programs to Itochu, End User shall acquire
a Return Material Authorization ("RMA") number from Itochu.
4. GENERAL TERMS,
4.1 NONDISCLOSURE. By virtue of this Agreement, the parties may
have access to information that is confidential to one another
("Confidential Information"). Itochu's Confidential Information shall
include the Programs, formulas, methods, know-how, processes, designs,
new products, developments work, marketing requirements, marketing
plans, customer names, prospective customer names, the terms and
pricing under this Agreement, and all information clearly identified in
writing at the time of disclosure as confidential.
A party's Confidential Information shall not include information that
(a) is or becomes a part of the public domain through no act or
omission of the other party; (b) was in the other party's lawful
possession prior to the disclosure and had not been obtained by the
other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without
restriction on disclosure; or (d) is independently developed by the
other party. End User shall not disclose the results of any
performance tests of the Programs to any other third party without
Siebel's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of five
(5) years after termination of this Agreement. The parties agree,
unless
Minimum Terms of End User Agreement for
Siebel Sales Enterprise
(Itochu)
43
required by law, not to make each other's Confidential Information
available in any form to any third party or to use each other's
Confidential Information for any purpose other than in the performance
of this Agreement. Each party agrees to take all reasonable steps to
ensure that Confidential Information is not disclosed or distributed
by its employees or agents in violation of the terms of this Agreement.
4.2 DISCLAIMER OF IMPLIED WARRANTIES. END USER ACKNOWLEDGES AND
AGREES THAT SIEBEL MAKES NO EXPRESS OR IMPLIED WARRANTIES TO END USER,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
4.3 EXPORT. End User will not export or re-export the Programs
without the appropriate United States or foreign government permits or
licenses and will take no actions in violation of U.S. export control,
embargo, or foreign corrupt practice laws and regulations.
Minimum Terms of End User Agreement for
Siebel Sales Enterprise
(Itochu)
44
EXHIBIT E
TERMS FOR END USER AGREEMENT
45
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT F
COMPETITIVE PRODUCTS
COMPETITIVE PRODUCT(1) COMPANY (2)
[***]
46
CONFIDENTIAL TREATMENT REQUESTED
[ *** ]
47
CONFIDENTIAL TREATMENT REQUESTED
[ *** ]
(1) Siebel reserves the right to add additional products to this list
from time to time during this Agreement with the consent of Itochu which consent
shall not be unreasonably withheld or delayed. For purposes of adding additional
companies to this Exhibit B after the Effective Date, the above lis ted products
are illustrative of the type of products which are considered by the parties as
competitive with the Licensed Software as of the Effective Date.
(2) The list of companies is simply to identify the company which
either developed the Competitive Product or, to the best of Siebel's knowledge,
is currently the primary licensor of such Competitive Product.
48
EXHIBIT G
CORE DOCUMENTATION, HELP AND TRAINING RELATED MATERIALS
CORE DOCUMENTATION SHIPPED WITH EVERY LICENSE OF SIEBEL SALES ENTERPRISE
- - Siebel Sales Enterprise Administration Guide
- - Siebel Sales Enterprise Release Notes
- - Siebel Sales Enterprise Installation and Upgrade Guide
HELP FILES SHIPPED WITH EVERY LICENSE OF SIEBEL SALES ENTERPRISE
- - On-Line Help RTF
- - End-User On-Line Help
TRAINING RELATED MATERIALS
- - Using Siebel Sales Enterprise
- - Marketing Administration
- - Application Administration
- - Docking Administration
- - Configuration and Customization
Siebel reserves the right to add additional documentation, help, and the
training related materials (which materials are important to a complete
understanding of the proper use and operation of the Licensed Software) to this
list from time to time during this Agreement with the consent of Itochu wh ich
consent shall not be unreasonably withheld or delayed.
49
EXHIBIT H
TRAINING COURSES
Current Training Courses
- - Using Siebel Sales Enterprise
- - Marketing Administration
- - Application Administration
- - Docking Administration
- - Configuration and Customization
50
EXHIBIT I
MAINTENANCE AND SUPPORT SERVICES SCHEDULE
SIEBEL SYSTEMS, INC.
SOFTWARE MAINTENANCE AND SUPPORT SERVICES SCHEDULE
At any given time, Siebel shall provide support for (a) the
then-current version of the Programs enumerated in Order Forms executed pursuant
to an applicable Software License and Services Agreement and (b) the immediately
preceding version of such Programs, but only for a period of six (6) months
following the release of the then-current version. Such Programs are referred to
in this Schedule as the "Supported Programs."
1. MAINTENANCE.
1.1 SOFTWARE MAINTENANCE COVERS SUPPORTED PROGRAMS. Siebel will use
reasonable commercial efforts to cure, as described below,
reported and verifiable errors in Supported Programs so that
such Programs operate as specified in the associated
Documentation. Siebel recognizes three error levels:
- HIGH SEVERITY ERROR: A high severity error is an error
which halts the operation of a Program and for which there
is no work-around. Siebel will begin work on the error
within two hours of notification during normal business
hours and will engage development staff until an
acceptable work-aro und is achieved.
- LOW SEVERITY ERROR: A low severity error may halt
operation of a Program but has a work-around available.
Siebel will begin work on the error within a day of
notification and will engage development staff.
- INCONVENIENCE: An error which exhibits incorrect
functionality but does not halt operation of a Program.
Siebel will use its best efforts to deliver a fix or a
work-around in a subsequent Program Update.
Siebel will provide Customer with a single copy of the fix or
work-around on suitable media. Customer will distribute the fix
or work-around to User Systems or Server Systems as necessary.
51
2. UPDATES.
2.1 Siebel shall, from time to time, in its sole discretion make
Updates to Supported Programs available to Customer at no
additional charge except for media and handling charges. Updates
shall mean a subsequent release of the such Programs which is
generally made available at no additional charge for Program
Licenses receiving Software Maintenance and Support Services.
Updates shall not include any release, option, or future product
which Siebel licenses separately or offers for an additional
fee, or any upgrade in features, functionality or performance of
such Programs which Siebel licenses separately or offers for an
additional fee (above and beyond any annual maintenance or
support fee).
3. SUPPORT.
3.1 Customer shall establish and maintain the organization and
processes to provide "First Line Support" for the Supported
Programs directly to Users. First Line Support shall include but
not be limited to (a) a direct response to Users with respect to
inquiries concerning the performance, functio nality or
operation of the Supported Programs, (b) a direct response to
Users with respect to problems or performance deficiencies with
the Supported Programs, (c) a diagnosis of problems or
performance deficiencies of the Supported Programs and (d) a
resolution of problems or performance deficienc ies of the
Supported Programs.
3.2 If after reasonable commercial efforts Customer is unable to
diagnose or resolve problems or performance deficiencies of the
Supported Programs, Customer shall contact Siebel for "Second
Line Support" and Siebel shall provide support for the Supported
Programs in accordance with Siebel's then c urrent policies and
procedures for Second Line Support.
3.3 Siebel shall establish and maintain the organization and
processes to provide Second Line Support for the Supported
Programs to Customer. Second Line Support shall be provided to
Customer only if, after reasonable commercial efforts, Customer
is unable to diagnose and/or resolve problems or pe rformance
deficiencies of the Programs. Second Line Support shall be
provided to up to two designated representatives of Customer.
Siebel shall not provide Second Line Support directly to Users.
52
CONFIDENTIAL TREATMENT REQUESTED
3.4 Second Line Support shall include but not be limited to (i) a
diagnosis of problems or performance deficiencies of the
Supported Programs and (ii) a resolution of problems or
performance deficiencies of the Supported Programs, in each case
via telephone.
3.5 Second Line Support shall be provided via telephone by Siebel
from 8:30 a.m. Pacific Time to 6:00 p.m. Pacific time on regular
U.S. business days, holidays excepted.
4. MAINTENANCE AND SUPPORT FEES.
4.1 ANNUAL FEES for software maintenance, update and support
services as described herein shall be equal to [ *** ] of the
then current list price of Program Licenses times the number of
Program Licenses for Supported Programs purchased by Customer.
Such fees shall be payable annuall y, in advance, with the first
payment due thirty (30) days from applicable Commencement Date
and the payment every year thereafter due in advance. In the
event Customer acquires additional Program Licenses, maintenance
fees for such additional Programs will be payable on the same
terms except, how ever, that the first installment shall be
pro-rated for the balance of the annual period referenced above
such that all subsequent fees for maintenance, updates and
support shall be payable on the same anniversary date for all
Program Licenses granted pursuant to the Agreement.
4.2 REINSTATEMENT. Siebel may, at its sole option, reinstate lapsed
Software Maintenance and Support Services in accordance with its
then current policies upon payment by Customer of the applicable
reinstatement fee.
5. Excluded Services. The following services are outside the scope of Siebel's
Software Maintenance and Support Services:
5.1 Service for Programs which have been subject to unauthorized
modification by Customer.
5.2 Service which becomes necessary due to:
(i)Failure of computer hardware or equipment or programs not
covered by this schedule;
(ii)Catastrophe, negligence of Customer or any third party,
operator error, improper use of hardware or software or
attempted maintenance by unauthorized persons;
(iii)Services at the Customer's site.
53
6. OTHER TERMS. Except as stated in this Schedule, services shall
be subject to the terms and conditions of the applicable
Software License and Services Agreement between Siebel and
Customer.
54
EXHIBIT J
TRADEMARKS
TSQ(R) (registered in the United States)
Siebel(TM)
Siebel Sales Enterprise(TM)
Virtual Selling(TM)