Cooperative Marketing Agreement - BackWeb Technologies Inc. and Oblix inc.
COOPERATIVE MARKETING AGREEMENT
This Cooperative Marketing Agreement (the "Agreement") is between BackWeb
Technologies Inc. ("BackWeb") and Oblix, Inc. ("Participant"). Participant
markets and distribute software or related services, and BackWeb has developed
and markets proprietary ProActive Portal (TM) software and related technology
("Programs"). BackWeb and Participant wish to arrange for the cooperative
marketing relationship specified herein.
1. MARKETING RESPONSIBILITIES
1.1 JOINT MARKETING ACTIVITIES
Participant and BackWeb will cooperate in following joint marketing
activities listed below and as well as any others agreed to by the parties
from time to time.
A. Public relations activities including a joint press release concerning
this Agreement, within ten (10) days of the parties' signing the Agreement,
in which each party shall include a quotation from its executive management
concerning the relationship;
B. Demonstration of BackWeb's products and Participant software solutions
working together to press or other individuals or organizations, as
appropriate;
C. Creation and distribution of promotional literature to the parties;
D. Convention activities including a variety of computer shows;
E. Additional press activities including statements refining product
positioning, and cooperation on product reviews;
F. Advertisements in a variety of publications and possibly other media;
G. Joint sales activities including sales calls, reference selling, lead
referrals, evaluation kits, direct marketing literature, cross promotions,
advertising, training and sales seminars;
H. Joint funding of any marketing activities proposed by the parties or any
marketing personnel retained by a party hereto as mutually agreed by the
parties in writing; and
I. Those additional activities listed in Exhibit A hereto and incorporated
herein by reference.
Any joint promotion, marketing literature and other marketing activity
will be designed and submitted by a party to the other party for review and
approval by such other party. In addition, Participant and BackWeb have the
right to approve any and all public statements that involve the other
company or the terms of this Agreement.
1.2 MANAGEMENT OF JOINT ACTIVITIES
A. BUSINESS DEVELOPMENT MANAGERS
Each party agrees to appoint a Business Development Manager to ensure
the implementation of this Agreement, coordinate its respective activities
pursuant to this Agreement and to act as the primary point of contact for
all activities hereunder The Business Development Managers for each party
are as follows:
FOR OBLIX:
Ken Sims
Vice President, Business Alliances
Oblix, Inc.
18922 Forge Drive
Cupertino, CA 95014
Telephone: (408) 861-6771
Fax: (408) 861-6810
Email: ksims@oblix.com
FOR BACKWEB:
Ms. Helaine Cohen
Director of Business Development
BackWeb Technologies, Inc.
980 North Michigan Avenue
Suite 1400
Chicago, IL 60611
Telephone: (312) 214-3551
Fax: (312) 214-3952
Email: helaine@backweb.com
The two Business Development Managers will be the individuals responsible
for planning and implementing this relationship, working to resolve any
disputes which may arise, and for focusing priorities and resources
necessary to facilitate the success of this relationship. Appointment of a
party's Business Development Managers will be at the sole discretion of each
such party. BackWeb and Participant may each change their appointed Business
Development Manager by written notification to the other party.
1.3 TRAINING
Promptly after the Effective Date of this Agreement, at least one of
Participant's sales consultants shall be enrolled in a BackWeb training
course providing a comprehensive overview of BackWeb's products. Participant
shall assign such personnel to assist in the marketing efforts set forth in
Section 1.1. If such individual ceases to be employed by Participant or
assumes different job responsibilities, Participant shall promptly replace
such individual with another Participant sales consultant who has also
completed the applicable BackWeb training course. BackWeb shall provide such
training at no cost.
Similarly, promptly after the Effective Date of this Agreement, at least
one BackWeb's sales consultants shall be enrolled in Participant's internal
training course providing a comprehensive overview of Participant's products
and services. BackWeb shall assign such personnel to assist in the marketing
efforts set forth in Section 1.1. If such individual ceases to be employed
by BackWeb or assumes different job responsibilities, BackWeb shall promptly
replace such individual with another BackWeb sales consultant who has also
completed the applicable Participant training course. Participant shall
provide such training at no cost.
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1.4 DESIGN REVIEW
Within two (2) months of the Effective Date of this Agreement, or at the
time the parties require for a potential joint customer, whichever is
sooner, the parties will engage in a design review of each party's products
and solutions in the context of a design review to determine the feasibility
of integration of each party's products and a potential integration path and
implementation plan. The development of the plan and of any joint
development shall be on terms and conditions to be mutually agreed upon.
2. EXPENSES
Unless otherwise agreed to by the parties, each party shall bear its own
expenses under this Agreement.
3. TERM AND TERMINATION
3.1 TERM
This Agreement shall become effective on the Effective Date and shall
remain in effect for one (1) year from the Effective Date (the "Initial
Term"), unless the Agreement is terminated previously as provided below.
This Agreement shall automatically renew for a one (1) year period at the
conclusion of the Initial Term and shall continue to renew for successive
one (1) year periods thereafter, unless either party sends a written notice
to the other so that such notice is received by the other at least sixty
(60) days prior to the end of a renewal period stating its intention not to
renew.
3.2 TERMINATION
Each party may terminate this Agreement for convenience upon thirty (30)
days prior written notice to the other.
3.3 EFFECT OF TERMINATION
Upon expiration or termination this Agreement, the cooperative and joint
marketing obligations set forth in this Agreement shall cease.
The termination of this Agreement shall not limit either party from
pursuing any other remedies available to it, including injunctive relief.
The parties' rights and obligations under Section 3.3 and Articles 4 and 5
shall survive termination of this Agreement.
4. INDEMNITY, WARRANTIES, REMEDIES
4.1 INFRINGEMENT INDEMNITY
Each party ("Provider") will defend and indemnify the other party
("Recipient") against a claim that any marketing material furnished by the
Provider ("Material") and used by the Recipient under this Agreement
infringes a copyright or trademark provided that: (a) the Recipient notifies
the Provider in writing within thirty (30) days of the claim; (b) the
Provider has sole control of the defense and all related settlement
negotiations; and (c) the Recipient provides the Provider with the
assistance, information, and authority reasonably necessary to perform the
above; reasonable out-of-pocket expenses incurred by the Recipient in
providing such assistance will be reimbursed by the Provider.
The Provider shall have no liability for any claim of infringement
resulting from: (a) the Recipient's use of a superseded or altered release
of some or all of the Material if infringement would have been avoided by
the use of a subsequent unaltered release of the Material which is provided
to the Recipient; or (b) any information, design, specification,
instruction, or material not furnished by the Provider.
In the event that some or all of the Material is held or is believed by
the Provider to infringe, the Provider shall have the option, at its
expense, (a) to modify the Material to be non-infringing; (b) to obtain for
the Recipient a license to continue using the Material; or (c) to require
return of the infringing Material and all rights thereto from the Recipient.
THIS SECTION 4.1 STATES THE PARTIES' ENTIRE LIABILITY AND EXCLUSIVE REMEDY
FOR INFRINGEMENT.
4.2 WARRANTIES AND DISCLAIMERS
A. WARRANTY
Each party warrants that it has the right to enter this Agreement and
perform its obligations hereunder.
B. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
NEITHER PARTY WARRANTS THAT ITS PRODUCTS WILL RUN PROPERLY IN ALL
SITUATIONS, THAT ITS PRODUCTS WILL MEET ITS CUSTOMERS' REQUIREMENTS OR
OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY ITS
CUSTOMERS.
4.3 EQUITABLE RELIEF
Each party acknowledges that any breach of its obligations with respect
to proprietary rights of the other party will cause such other party
irreparable injury for which there are inadequate remedies at law and that
such other party shall be entitled to equitable relief in addition to all
other remedies available to it.
5. GENERAL TERMS AND CONDITIONS
5.1 NONDISCLOSURE
By virtue of this Agreement, the parties may have access to information
that is confidential to one another ("Confidential Information").
Confidential Information shall be limited to the terms under this Agreement,
and all information clearly identified 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.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two years
after termination of this Agreement. The parties agree, unless required by
law, not to make each other's Confidential Information available in any form
to any third party (except to each such party's agents or independent
contractors) for any purpose other than the implementation of this
Agreement. Each party agrees to take all reasonable steps to ensure that
Confidential Information is not disclosed or distributed by its employees,
agents or independent contractors in violation of the terms of this
Agreement.
5.3 RELATIONSHIPS BETWEEN PARTIES
In all matters relating to this Agreement, Participant will act as an
independent contractor. Neither party will represent that it has any
authority to assume or create any obligation, express or implied, on behalf
of the other party, nor to represent the other party as agent, employee,
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franchisee, or in any other capacity. Nothing in this Agreement shall be
construed to limit either party's right to independently develop or
distribute software which is functionally similar to the other party's
products or services so long as proprietary information of the other party is
not included in such software.
5.4 ASSIGNMENT
Neither party may assign or otherwise transfer any rights under this
Agreement without the other party's prior written consent.
5.5 NOTICE
All notices required to be sent hereunder shall be in writing, sent to
the applicable Cooperative Marketing Manager specified under this Agreement,
and shall be deemed to have been given (i) upon delivery if sent by
facsimile or overnight courier or (ii) five (5) days after the date of
deposit with the United States Postal Service if mailed first class by
registered or certified mail, postage prepaid.
5.6 GOVERNING LAW/JURISDICTION
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the substantive and procedural laws of the
State of California and shall be deemed to be executed in San Jose,
California. The parties agree that any legal action or proceeding relating
to this Agreement shall be instituted in any state or federal court in Santa
Clara County, California. BackWeb and Participant agree to submit to the
jurisdiction of, and agree that venue is proper in, these courts in any such
legal action or proceeding.
5.7 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force and effect.
5.8 EXPORT
Each party agrees to comply fully with all relevant export laws and
regulations of the United States ("Export Law") to assure that neither the
Materials, nor any direct product thereof, are (a) exported, directly or
indirectly, in violation of Export Laws; or (b) are intended to be used for
any purposes prohibited by the Export Laws, including, without limitation,
nuclear, chemical, or biological weapons proliferation.
5.9 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY'S LIABILITY
FOR DAMAGES HEREUNDER SHALL EXCEED $50,000.
The provisions of this Agreement allocate the risks between BackWeb and
Participant.
5.10 WAIVER
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or breach.
5.11 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties
and supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document, usage
or custom shall be deemed to amend or modify this Agreement.
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The Effective Date of this Agreement shall be 12-19-01.
PARTICIPANT: OBLIX, INC. BACKWEB TECHNOLOGIES INC.
By: /S/ KEN SIMS By: /S/ EREZ LORBER
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Name: Ken Sims Name: Erez Lorber
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Title: VP, Business Alliances Title: VP, Business Development
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EXHIBIT A
ADDITIONAL OBLIX/ BACKWEB GO TO MARKET ACTIVITIES
GENERAL
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EVENTS
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WEBSITE
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MATERIALS
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FIELD SALES AND TECHNICAL TRAINING
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DEMONSTRATION SOFTWARE
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[*] Certain information on this page that is marked by "[*]" has been omitted
and filed separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.