Corporate Master Agreement - Vignette Corp. and Cheap Tickets Inc.
CORPORATE MASTER AGREEMENT
Between
Cheap Tickets, Inc.
Vignette Corporation "Client"
"Vignette" a Delaware corporation
a Delaware corporation and 1440 Kapiolani Blvd. Suite 800
901 South Mo Pac Expressway Street Address
Building 3 Honolulu, HI 96814
Austin, Texas 78746-5776 City, State, Zip
This Corporate Master Agreement (this "Agreement"), effective October 31,
2000 (the "Effective Date"), sets forth the terms and conditions under which the
parties agree that Client may, pursuant to one or more separately executed
Schedules, (i) obtain licenses to use (a) Vignette's proprietary, non-custom
software (the "Programs") listed on the relevant Schedule(s), (b) Vignette-
furnished proprietary, custom software (the "Custom Programs") provided pursuant
to consulting services listed on the relevant Schedule(s) and (c) the user
documentation (the "Documentation") that Vignette makes generally available in
hard copy or electronic form to its general customer base in conjunction with
licenses of the Programs, (ii) purchase the services listed on the relevant
Schedules, and (iii) purchase the services (the "Services") listed on one or
more separately executed Assignments of Work. In this Agreement, the term
"Software" shall mean the Programs and/or the Custom Programs, along with the
Documentation, as appropriate.
This Agreement shall consist of this Agreement Form, the attached Exhibits, and
all executed Schedules, as well as all other referenced attachments and any
amendments. This Agreement is effective only upon full execution by both
parties. If Client is not a corporation or other legal entity formed in a state
of the United States, the terms and conditions of Exhibit B attached hereto
shall apply to this Agreement. By signing below, each party agrees to the terms
of this Agreement. Any executed copy of this Agreement made by reliable means
(e.g., photocopy or facsimile) is considered an original.
Agreed to by:
Vignette Corporation Cheap Tickets, Inc.
(Client)
By: By: /s/ Paul B. Halstead
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(Signature) (Signature)
By: By: Paul B. Halstead
-------------------------------- ---------------------------------
(Name typed or printed) (Name typed or printed)
By: By: CTO
-------------------------------- ---------------------------------
(Title) (Title)
By: By: 10/30/00
-------------------------------- ---------------------------------
(Date) (Date)
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EXHIBIT A
CORPORATE MASTER AGREEMENT GENERAL TERMS AND CONDITIONS
1. LICENSE GRANT AND RIGHT OF USE.
a. Provided that the Agreement and each relevant Schedule have been fully
executed by both Vignette and Client, Vignette grants to Client a
nonexclusive and nontransferable license to install and use the number of
copies of the object code version of the Programs and if applicable, the
source code version of Custom Programs, pursuant to the terms and
conditions herein and in the executed Schedules. Unless otherwise
designated, all licenses granted hereunder shall be perpetual.
b. Unless otherwise specified on the relevant Schedule, each copy of the
Software licensed hereunder [****]. Client may use the Software for the
functions expressly licensed by Client solely for Client's own internal
business purposes in the software operating environment (if any) specified
on the applicable Schedule. The Software may not be used to provide
computer time sharing, third-party training on the use of the Software,
virtual or actual hosting or as a service bureau for any third parties.
Client shall not (and shall not permit any employee or other third party to
copy, use, analyze, reverse engineer, decompile, disassemble, translate,
convert or apply any procedure or process to the Software in order to
ascertain, derive, and/or appropriate for any reason or purpose, the source
code or source listings for the Programs or any trade secret information or
process contained in the Software. Other special license terms and
restrictions specified on the relevant executed Schedules are incorporated
by reference into this Section 1. Client's rights in the Software will be
limited to those expressly granted in this Agreement. Vignette reserves all
rights and licenses in and to the Software not expressly granted to Client
under this Agreement.
2. FEES
a. Client shall pay Vignette the license fees and the Maintenance fees for the
Software specified on the applicable Schedule within 30 days after receipt
of Vignette's invoice. [****] All Software will be shipped FOB
Vignette's site. Invoices may contain shipping and handling charges.
b. Client shall pay any other fees and prices specified on a Schedule or
Assignment of Work within 30 days after receipt of Vignette's applicable
invoice.
c. All prices and fees are in U.S. dollars unless otherwise specified. All
amounts payable under this Agreement are exclusive of all sales, use,
value-added, excise, property, withholding, and other taxes and duties.
Client will pay all taxes and duties assessed in connection with this
Agreement and Client's performance hereunder by any authority. Client will
promptly reimburse Vignette for any and all taxes or duties that Vignette
may be required to pay in connection with this Agreement or its
performance. This provision does not apply to any taxes for which Client is
exempt, provided Client has furnished
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Vignette with a valid tax exemption certificate, or to Vignette's income or
franchise taxes.
3. REPRODUCTION OF THE SOFTWARE
a. Vignette shall provide Client with a single copy (the "Master Copy") of
each Software product licensed hereunder. Subject to the other terms and
conditions herein, Client may use the Master Copy (including all Updates
provided hereunder) to install the number of copies specified on the
relevant Schedule on Client's computer server(s) in accordance with the
license grant.
b. Client may also (i) make one copy of the Master Copy for archival purposes,
(ii) install one copy of the Software at a backup location for its use only
as and when necessary for business resumption purposes in the event of
Client's primary computing facility, becoming inoperable, (iii) install an
additional copy as necessary to accommodate a move of the installed
Software from one server to another (provided that the original
installation is removed after the new server is operational), and (iv) copy
the installed copies of the Software onto system backup media to the extent
necessary to accommodate Client's normal system backup routines. Otherwise,
Client may not copy the Software, in whole or in part.
c. Client shall assume all responsibility for the quality of the copies made
hereunder. Client shall include Vignette's copyright notice(s), proprietary
rights legend(s), and other indicia of ownership on all copies, in the
content and format as those that were contained on the Master Copy. Client
shall pay all duplication and distribution costs incurred by Client by
copying the Software, and shall also pay applicable use taxes, customs
duties and similar fees.
4. MAINTENANCE AND OTHER SERVICES
a. Provided Client elects to obtain maintenance services ("Maintenance") for a
Program and pays all applicable Maintenance fees, Vignette shall provide
Client with the following Maintenance services for the period commencing on
the date Vignette delivers the relevant Program to Client through the
period ending one anniversary year thereafter (the "Initial Maintenance
Period"):
i. Updates to the Programs. [****]
ii. [****]
iii. [****]
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b. Upon expiration of the Initial Maintenance Period, Maintenance shall
automatically renew for successive annual periods (each an "Annual
Maintenance Period"), provided (i) Vignette continues to offer Maintenance
for the relevant Program(s) to its general client base; (ii) Client pays
the Maintenance fees applicable for the relevant Annual Maintenance Period,
and (iii) Client does not terminate Maintenance by providing Vignette with
at least 30 days written notice prior to the expiration of the applicable
Initial or Annual Maintenance Period. Maintenance fees for the Program(s)
shall be calculated [****]. All Maintenance fees shall
be due and payable at the beginning of each Maintenance Period. Further,
Updates shall be deemed Software for purposes of this Agreement.
c. Client agrees to provide Vignette with all information and materials
requested by Vignette for use in replicating, diagnosing and correcting an
error or other Program problem reported by Client. Client acknowledges that
all Updates provided by Vignette will be cumulative in nature, and
therefore Client agrees to install all Updates provided by Vignette Client
further acknowledges that Vignette's ability to provide satisfactory
Maintenance is dependent on Client (i) installing all Updates and (ii)
providing Vignette with the information necessary to replicate Program
problems.
d. Vignette shall not be obligated to provide Maintenance for any software
other than the Programs (including all Updates) as delivered by Vignette to
Client. Except to the extent Vignette modifies the Programs pursuant to the
provision of Maintenance, [****].
e. Vignette shall provide consulting and training Services (each an
"Assignment"), under the terms of this Agreement, agreed to by the parties
and specified on one or more separately executed Schedule(s) or Assignment
of Work(s). In the event of any conflict between this Agreement and an
Assignment of Work, the provisions of the Assignment of Work shall prevail.
All Assignments shall be billed on a time and materials basis at Vignette's
then-current consulting rates unless otherwise agreed in writing by the
parties. Any monetary limit referenced in an Assignment of Work shall be an
estimate only for purposes of Client's budgeting and Vignette's resource
scheduling unless expressly stated to be a definitive limit. Vignette shall
have the right to use third parties in performance of Assignments hereunder
and, for purposes of this Agreement, all references to Vignette or its
employees shall be deemed to include such third parties. Client shall
provide Vignette access to its equipment, systems and other facilities to
the extent reasonably required by Vignette for the performance
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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of Assignments hereunder. For any on-site services requested by Client,
Client agrees to reimburse Vignette for its actual, reasonable travel and
other out-of-pocket expenses incurred.
5. CONFIDENTIALITY
a. Any business, operational or technical information provided to Client by
Vignette hereunder that is marked or otherwise identified as confidential
or proprietary, or that Client knows or should know is confidential or
proprietary, the Software and other deliverables furnished by Vignette
(including, but not limited to the oral and visual information relating
thereto and provided in Vignette's training classes, seminars, and
publications), and the terms of and pricing under this Agreement
(collectively Vignette's "Proprietary Information") contain valuable and
confidential information that is proprietary to Vignette and to third
parties from whom Vignette has obtained marketing rights (the "Third Party
Licensors"), and which includes and constitutes trade secrets and
unpublished copyrighted material of Vignette and the Third Party Licensors.
Client agrees to maintain the confidentiality of Vignette's Proprietary
Information and to only use it in carrying out its rights and obligations
under this Agreement. Nothing in this Agreement shall be construed to
convey any title or ownership rights to the Software or Proprietary
Information to Client. Client shall not sublicense, rent, assign, transfer
or disclose the Proprietary Information to any third party and shall not
reproduce, perform, display, prepare derivative works of, or distribute the
Proprietary Information except as expressly permitted in this Agreement.
Client shall not disclose the results of any benchmark tests of the
Programs to any third party without Vignette's prior written approval.
Client shall make commercially reasonable efforts to prevent the theft of
any Proprietary Information and/or the disclosure, copying, reproduction,
performance, display, distribution and preparation of derivative works of
the Proprietary Information except as expressly authorized herein.
b. Vignette agrees to maintain the confidentiality of business, operational
and other information provided by Client to Vignette hereunder, provided
such information is marked or otherwise identified by Client as
confidential or proprietary or is of a nature that Vignette knows or should
know is confidential or proprietary (also referred to herein as
"Proprietary Information"), and will only use it in carrying out its rights
and obligations under this Agreement.
c. Both parties agree to restrict access to the Proprietary Information of the
other only to employees who (i) require access in the course of their
assigned duties and responsibilities in connection with this Agreement, and
(ii) have agreed in writing to be bound by provisions no less restrictive
than those set forth in this Section 5.
d. The confidentiality obligations of the parties regarding the Proprietary
Information of the other shall not apply to any material or information
that (i) is or becomes a part of the public domain through no act or
omission by the receiving party, (ii) is independently developed by
employees of the receiving party without use or reference to the
Proprietary Information of the other party, (iii) is disclosed to the
receiving party by a third party that, to the
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receiving party's knowledge, was not bound by a confidentiality obligation
to the other party, or (iv) is demanded by a lawful order from any court or
any body empowered to issue such an order. Each party agrees to notify the
other promptly of the receipt of any such order, and to provide the other
with a copy of such order.
6. TERM AND TERMINATION
a. This Agreement shall continue in force and effect perpetually unless
terminated pursuant to its provisions.
b. This Agreement, any Assignment of Work, and/or any license granted
hereunder may be terminated in accordance with the following:
i. Vignette may terminate this Agreement, any Assignment of Work and/or
any licenses granted herein:
A. Upon 15 calendar days notice if Client uses, transfers or
discloses any of the Software or other Proprietary Information,
or any copy or modification thereof, in violation of this
Agreement, unless Client has fully cured such breach within such
15 day period;
B. Upon 30 calendar days written notice if Client has breached any
other material provision of this Agreement, including failure to
make payments when due, and such breach is not fully cured within
such 30 day period.
ii. Client may terminate this Agreement or any Assignment of Work on 30
calendar days written notice if Vignette has breached any material
provision of this Agreement and such breach is not fully cured within
such 30 day period.
c. Upon termination of the Agreement or any license(s) granted herein, [****].
Client shall immediately stop using all such Proprietary Information
(including Software) and shall return all copies to Vignette, except that
Client may instead choose to delete all installed copies off of any and all
storage media possessed by Client. Client shall provide Vignette with
written certification signed by an officer of Client that all copies of the
Software have been returned or destroyed and that Client has retained no
copies.
d. Any incomplete Assignment of Work(s) shall be terminated concurrently with
this Agreement. Client shall pay a pro-rata portion of any Assignment that
is incomplete at the time of termination and for which payments have not
been made and Vignette shall deliver to Client copies of all such
incomplete work for which payment has been made, unless any applicable
license for such work has been terminated.
e. Termination of this Agreement, any Assignment of Work or any license
granted hereunder shall not limit the remedies otherwise available to
either party, including injunctive relief.
7. WARRANTIES
Vignette warrants that for the first [****] following delivery of the Program to
Client (the "Warranty Period"), (i) the Programs as delivered will perform
substantially in
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conformance with the applicable Documentation, and (ii) that the digital or
electronic media on which the Programs and the Documentation are distributed are
free from defects in materials and workmanship. Vignette does not warrant that
the Programs will operate in combinations except as specified in the
Documentation. Notwithstanding any other provision of this Agreement, Vignette
and Client acknowledge that Client's use of the Software or other deliverables
provided hereunder may not be uninterrupted or error-free. As Client's sole and
exclusive remedy and Vignette's entire liability for any breach of the foregoing
warranty, Vignette will, at its sole option and expense, promptly repair or
replace any medium or Program which fails to meet this limited warranty or, if
Vignette is unable to repair or replace the medium or the Program, refund to
Client the applicable license fees paid upon return of the nonconforming item to
Vignette. If Vignette remits to Client a refund for a particular Program, as
contemplated by this paragraph, [****].
a. Vignette warrants that its Services provided hereunder shall be performed
consistent with generally accepted industry standards. This warranty shall
be valid for [****] days from the date of performance of the relevant
service.
b. Vignette warrants to Client that Vignette has the right to enter into this
Agreement and to grant the rights and licenses herein and, that to the best
of Vignettes knowledge, that Software does not infringe any patent or
copyright or violate any other proprietary rights of a third party.
Vignette's sole and exclusive obligation, and Client's sole and inclusive
remedy, for breach of this warranty with respect to intellectual property
or proprietary rights of any kind, is Vignette's indemnification of Client
as set forth in Section 8 below.
c. Provided that all date data provided to the Programs is in full 4 digit
year format, Vignette warrants that the Programs as delivered to Client by
Vignette: (i) have been designed to be Year 2000 compliant, which shall
include, as an illustration but not a limitation, date data century
recognition, and calculations that accommodate same and multi-century
formulae and date values; (ii) will operate in substantial accordance with
the Documentation prior to, during and after the calendar year 2000 AD; and
(iii) shall not end abnormally or provide invalid or incorrect results as a
result of date data, specifically including date data which represents
different centuries or more than one century. The foregoing warranty shall
not apply to (iv) third party software that is or may be used in
conjunction with the Programs, including database and operating systems
vendors, (v) any non-compliance to the extent caused by hardware, third
party software or applications and content developed with or operating with
the Programs as delivered, or (vi) Client's use of other than a current
unaltered release of the Programs if use of a current, unaltered release of
the Programs would avoid the nonconformance. Client is solely responsible
for all system integration and testing of the Software in a fully Year 2000
compliant operating, environment, including all hardware, system software,
databases, network environment, and other interoperating components.
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d. Vignette warrants that it will use commercially reasonable efforts to
ensure the Software as delivered by Vignette does not contain viruses,
worms, Trojan horses or other unintended malicious or destructive code
("Malicious Code"). If Malicious Code is discovered in Software as
delivered by Vignette, Vignette shall provide Client with a clean copy that
does not contain such Malicious Code within [****] days following Client's
notice to Vignette of a breach of this warranty. However, Client is hereby
notified that the Software may contain time-out devices, counter devices,
and/or other devices intended to ensure the limits of a particular license
will not be exceeded ("Limiting Devices"). If the Software does contain
Limiting Devices, Vignette shall ensure that Client receives any codes or
other materials necessary to use the Software to the limits of Client's
license.
e. EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, VIGNETTE MAKES NO OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT AND FITNESS OF A PARTICULAR PURPOSE.
8. VIGNETTE INDEMNITIES
a. Vignette will defend or settle, at its expense, any action brought or
allegation made against Client to the extent that it is based upon a claim
that the Software, as provided by Vignette to Client under this Agreement
and used within the scope of this Agreement, infringes any copyright, trade
secret, U.S. patent or other proprietary right, and [****]. Vignette's
obligations hereunder are contingent on the following conditions:
i. Client must notify Vignette in writing promptly after Client becomes
aware of a claim or the possibility thereof; and
ii. Client must grant Vignette the sole control of the settlement,
compromise, negotiation, and defense of any such action; and
iii. Client must provide Vignette with all information related to the
action that is reasonably requested by Vignette; and
iv. Vignette may, at its option, (A) obtain the right for Client to
continue using the Software; or (B) replace or modify the Software so
it is no longer infringing, or (C) terminate the applicable license(s)
and remove the Software. If Vignette so terminates the applicable
license(s) and removes the Software, [****].
b. The foregoing indemnity shall not apply to any infringement claim to the
extent arising from (i) [****]; and/or (ii) [****];
and/or (iii) [****]; and/or (iv) [****]; and/or (v) [****].
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c. Vignette will indemnify and hold Client harmless from all actual
liabilities, damages and losses incurred by Client arising out of any legal
action based on any claim of wrongful death, bodily injury or physical
destruction of tangible property to the extent resulting from any acts or
omissions of Vignette in the performance of its duties hereunder. The
indemnity specified in this subsection is contingent on the conditions
specified in subsections (a)(i)-(iii) above.
d. Vignette shall not be liable hereunder for any settlement made by Client
without Vignette's advance written approval or for any award from any
action in which Vignette was not granted control of the defense.
e. The parties agree to cooperate in good faith in the defense of any legal
action or suit that causes one party to invoke an indemnity hereunder.
f. This Section 8 states Vignette's entire liability and Client's exclusive
remedy for infringement of intellectual property rights of any kind.
9. CLIENT INDEMNITIES
a. Except to the extent Client is entitled to indemnification under Section
8.a. above, Client will defend or settle, at its expense, any action
brought or allegation made against Vignette to the extent that it is based
upon (i) [****] or (ii) [****]. Client's obligations hereunder are subject
to the following conditions:
i. Vignette must notify Client in writing promptly after Vignette becomes
aware of a claim or the possibility thereof;
ii. Vignette must grant Client the sole control of the settlement,
compromise, negotiation, and defense of any such action; and
iii. Vignette must provide Client with all information related to the
action that is reasonably requested by Client.
b. Client will indemnify and hold Vignette harmless from all actual
liabilities, damages and losses incurred by Vignette arising out of any
legal action based on any claim of wrongful death, bodily injury or
physical destruction of tangible property to the extent resulting from any
acts or omissions of Client hereunder. The indemnity specified in this
subsection is subject to the conditions specified in subsections
(a)(i)-(iii) above.
c. Client represents and warrants that it shall comply with all laws, rules,
and
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THE OMITTED PORTIONS.
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regulations of the United States and other countries that may be applicable
to the Software or to Client's activities under this Agreement. [****]
arising from breach of the warranties or Client's obligations set forth in
this paragraph. The indemnity specified in this subsection is subject to
the conditions specified in subsections (a)(i)-(iii) above
d. Client shall not be liable hereunder for any settlement made by Vignette
without Client's advance written approval or for any award from any action
in which Client was not granted control of the defense.
e. The parties agree to cooperate in good faith in the defense of any legal
action or suit that causes one party to invoke an indemnity hereunder.
f. This Section 9 states Client's entire liability and Vignette's exclusive
remedy for infringement of intellectual property of any kind.
10. LIMITATIONS OF LIABILITY
a. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO
VIGNETTE'S OBLIGATIONS UNDER SECTION 8, NOTWITHSTANDING THE FORM (E.G.,
CONTRACT, TORT (INCLUDING NEGLIGENCE) STATUTORY LIABILITY OR OTHERWISE) IN
WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST VIGNETTE,
NEITHER VIGNETTE NOR ITS THIRD PARTY LICENSORS SHALL BE LIABLE HEREUNDER
FOR DAMAGES WHICH [****].
b. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VIGNETTE OR
ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, PUNITIVE DAMAGES, OR FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION OR LOSS OF
PROFITS, EVEN IF VIGNETTE HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH
DAMAGE.
c. NOTHING IN THIS AGREEMENT SHALL LIMIT EITHER PARTY'S LIABILITY FOR DEATH OR
PERSONAL INJURY CAUSED BY A PARTY'S NEGLIGENCE OR LIABILITY FOR FRAUD.
d. The provisions of this Agreement allocate the risks between Client and
Vignette. Vignette's pricing reflects this allocation of risk and the
limitations of liability specified herein.
11. MISCELLANEOUS
a. In the event any action is brought to enforce any provision of this
Agreement, or to declare a breach of this Agreement, the prevailing party
shall be entitled to recover, in addition to any other amounts awarded,
reasonable legal and other related costs and expenses, including attorney's
fees, incurred thereby.
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b. Client shall comply with all then current export and import laws and
regulations of the United States and such other governments as are
applicable to the Software. Client hereby certifies that it will not
directly or indirectly, export, re-export, or transship the Software or
related information, media, or products in violation of United States laws
and regulations.
d. Client may not assign this Agreement or any license granted or created
hereunder whether by operation of law, change of control, or in any other
manner, without the prior written consent of Vignette, which consent shall
not be unreasonably withheld. Notwithstanding the foregoing, [****].
("Affiliate" of a party shall mean such party's parent corporation, any
entity under the control of such party's parent corporation at any tier, or
any entity controlled by such party at any tier. "Control" shall mean the
power to direct or cause the direction of the management and policies of
the entity through the ownership of more than 50% of the outstanding voting
interests in such entity.)
e. The parties are independent contractors and nothing in this Agreement shall
be deemed to make either party an agent, employee, partner or joint
venturer of the other party. Neither party shall have the authority to
bind, commit, or otherwise obligate the other party in any manner
whatsoever. Vignette may use Client's plain text name to list Client as a
customer of Vignette.
f. During the term of this Agreement and for [****] months thereafter, both
parties agree not to solicit or to offer employment to any employees of the
other party without it's the other party's prior written consent.
g. Any notice required under this Agreement shall be given in writing and
shall be deemed effective upon mailing by first class mail, properly
addressed and postage prepaid, or delivery by courier service to the
address specified on the face page hereof or to such other address as the
parties may designate in writing.
h. If any portion of this Agreement is determined to be or becomes
unenforceable or illegal, such portion shall be deemed eliminated and the
remainder of this Agreement shall remain in effect in accordance with its
terms as modified by such deletion. This Agreement shall be governed by and
interpreted in accordance with the laws of the United States and the State
of Texas, excluding its choice of law rules.
i. Definitions set forth in any part of this Agreement shall apply to all
parts of this Agreement. In the event of a conflict between the terms of
different parts of this Agreement, the following order of priority shall
apply: first, the relevant Schedule(s); second, the relevant Assignment(s)
of Work; third the Exhibits; and fourth, the Agreement.
j. Client shall permit Vignette by any reasonable and appropriate means to
verify that Client has complied with the provisions of Sections 1 (Software
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License), 5 (Confidentiality) and 6 (Termination), and Client agrees to
cooperate fully with such a verification. [****] unless Client is in
material breach of this Agreement. All such verifications shall take place
upon not less than [****] business days notice to Client, during Client's
regular business hours and will be conducted in a manner designed to
minimize any impact on Client's normal business operations. Vignette shall
be entitled, in addition to its other legal remedies, to obtain injunctive
relief to enforce the terms of Sections 1, 2, 5 and 6.
k. The following terms and conditions will survive termination: Sections l(b)
(except for the first 2 sentences), 2, 5, 6(c), 6(d) 8, 9, 10 and 11.
l. If Client is the United States Government or any contractor thereof, all
licenses granted hereunder are subject to the following: (i) for
acquisition by or on behalf of civilian agencies, as necessary to obtain
protection as "commercial computer software" and related documentation in
accordance with the terms of this Commercial Software Agreement as
specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and
its successors; (ii) for acquisition by or on behalf of units of the
Department of Defense ("DOD") as necessary to obtain protection as
"commercial computer software" and related documentation in accordance with
the terms of this commercial computer software license as specified in 48
C.F.R. 227-7202-2 of the DOD F.A.R. Supplement and its successors.
m. This Agreement (including the attached Schedules, Assignment of Work(s)
Exhibits and referenced attachments) constitute the entire agreement
between the parties regarding the subject matter hereof and supersede all
proposals and prior discussions and writings between the parties with
respect thereto. The parties agree that this Agreement cannot be altered,
amended or modified, except in writing that is signed by an authorized
representative of both parties. It is expressly agreed that the terms of
any Client purchase order or other ordering document (except for mutually
executed license Schedules and Assignments of Work) shall be without force
and effect. This Agreement shall also supersede all term of any unsigned or
"shrinkwrap" license included in any package, media or electronic version
of software licensed under a Schedule.
n. Except for actions for preliminary injunctive relief, actions arising from
a breach of confidentiality, actions brought to enforce a claim which is
covered by the indemnity provisions of this Agreement and actions to
enforce the decisions of the arbitrators, all disputes arising out of or
related to this Agreement, including the scope, the construction or
application of this Agreement, shall be resolved by arbitration in
accordance with the commercial arbitration rules of the American
Arbitration Association then in force. Notwithstanding the preceding, both
sides agree that the Federal Rules of Evidence will govern any such
proceeding. The arbitration hearings shall be held in Honolulu, Hawaii, and
shall be conducted in English. If the parties cannot agree upon a single
arbitrator within 15 days after demand by either of them, each party shall
select one arbitrator knowledgeable of the computer service industry and
notify the other of its selection, and such two arbitrators shall select a
third. All
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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<PAGE>
arbitrators must be licensed attorneys with experience in contract law. All
arbitrators must be able to sign an oath of neutrality evidencing no
demonstrable bias. The arbitrator(s) shall conduct a hearing within 30 days
after their selection. A majority of the arbitrators shall determine the
decision/award, which shall be rendered within five days after the
completion of the hearing. The decision of the arbitrator(s) shall be final
and binding upon the parties both as to law and to fact, and shall not be
appealable to any court in any jurisdiction. The expenses of the
arbitrators shall be shared equally by the parties. Nothing in any
indemnification provision hereunder shall be construed as having any
bearing on the award of attorneys fees under this Section. The provisions
for integration contained in this Agreement shall also apply to the
admissibility of evidence in any dispute subject to arbitration.
13
<PAGE>
EXHIBIT B
Terms and Conditions for Non-U.S. Corporations or Entities
If Client is not a corporation or other legal entity formed in a state of
the United States, the terms and conditions of this Exhibit B shall apply to
this Agreement. If Client is a corporation or other legal entity formed in a
state of the United States, this Exhibit B is inapplicable.
1. Notwithstanding anything to the contrary in this Agreement, Vignette may
give notice in writing to Client to terminate this Agreement, with
immediate effect:
a. Upon (A) the institution by or against Client of insolvency,
receivership or bankruptcy administration or compulsory winding-up
proceedings or any other proceedings for the settlement of Client's
debts; (B) Client's making any assignment for the benefit of
creditors; or (C) Client's liquidation, dissolution or ceasing to
conduct business in the normal course;
b. In the event that any current legislation or exchange controls under
applicable law preclude Client from making payments to Vignette in
United States currency for a period of 60 days; provided, however,
that termination under this subsection shall not relieve Client of its
payment obligations under this Agreement; or
c. Upon the enactment of any law, or regulation by any governmental
authority which would impair or restrict (A) the right of Vignette to
terminate this Agreement as herein provided, (B) Vignette's right,
title or interest in the Software and the intellectual property rights
therein and thereto, or (C) Vignette's rights to receive the payments
under this Agreement.
2. Client represents and warrants that the provisions of this Agreement, and
the rights and obligations of the parties hereunder, are enforceable under
the laws of the countries to which the Software will be delivered and in
which the Software will be used. Client agrees to indemnify and hold
harmless Vignette from all liabilities, damages, losses, claims, actions
and expenses (including attorneys' fees) arising from breach of the
warranties or Client's obligations set forth in this paragraph.
3. Client represents and warrants that no currency control laws prevent the
payment to Vignette of any sums due under this Agreement.
4. Client represents and warrants that, as of the Effective Date of this
Agreement, no consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority which has not been
made or obtained by Client prior to the Effective Date, is required in
connection with the valid execution, performance and delivery of this
Agreement. If the laws or regulations of any country require this Agreement
to be approved, registered or notified with or by any governmental
authority, Client will be solely responsible for such obligations. Vignette
will have the right to withhold delivery of the Software until it has
received satisfactory evidence that any
14
<PAGE>
required approvals, registrations or notifications have been obtained.
Vignette will provide Client with such assistance as Client may reasonably
request in making or obtaining any such approvals, registrations or
notifications. In the event that the issuance of any approvals,
registrations or notifications is conditioned upon an amendment or
modification to this Agreement which is unacceptable to Vignette, Vignette
will have the right to terminate this Agreement without further obligation
whatsoever to Client.
5. Client will advise Vignette of any legislation, rule, regulation or other
law (including but not limited to any customs, tax, trade, intellectual
property or tariff law) which is in effect or which may come into effect
after the Effective Date of this Agreement which affects the importation of
the Software into, or the use and the protection of the Software within the
country or countries to which the Software will be shipped and in which the
Software will be used, or which has a material effect on any provision of
this Agreement.
6. If any withholding or similar tax must be paid under the laws of any
country outside of the U.S. based on the payments to Vignette specified in
this Agreement, then Client will pay all such taxes and the amounts payable
to Vignette under this Agreement will be increased such that the amounts
actually paid to Vignette will be no less than the amounts Vignette would
have received notwithstanding such tax. Client will provide Vignette with
written documentation, including copies of receipts, of any and all such
taxes paid in connection with this Agreement.
7. The parties specifically disclaim the UN Convention on Contracts for the
International Sale of Goods.
8. Except for actions for preliminary injunctive relief and actions to enforce
the decisions of the arbitrators, all disputes arising out of or related to
this Agreement, including the scope, the construction or application of
this Agreement, shall be resolved by arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association then
in force. The arbitration hearings and all meetings pursuant to this
section shall be held in Austin, Texas, and shall be conducted in English.
If the parties cannot agree upon a single arbitrator within 15 days after
demand by either of them, each party shall select one arbitrator
knowledgeable of the computer service industry and notify the other of its
selection, and such two arbitrators shall select a third. The arbitrator(s)
shall conduct a hearing within 30 days after their selection. A majority of
the arbitrators shall determine the decision/award, which shall be rendered
within five days after the completion of the hearing. The decision of the
arbitrator(s) shall be final and binding upon the parties both as to law
and to fact, and shall not be appealable to any court in any jurisdiction.
The expenses of the arbitrators shall be shared equally by the parties.
Nothing in any indemnification provision hereunder shall be construed as
having any bearing on the award of attorneys fees under this Section. The
provisions for integration contained in this Agreement shall also apply to
the admissibility of evidence in any dispute subject to arbitration.
9. This Agreement is in the English language only, which language shall be
controlling in all respects, and all versions hereof in any other language
shall be for accommodation only and shall not be binding upon the parties
hereto. All communications and notices to
15
<PAGE>
be made or given pursuant to this Agreement shall be in the English
language. Les parties aux presentes confirment leur volonte que cette
convention de meme que tous les documents y compris tout avis qui s y
rattache, soient rediges en langue anglaise (translation: "The parties
confirm that this Agreement and all related documentation is and will be in
the English language.").
10. The terms and conditions of this Exhibit B shall survive termination of the
Agreement.
16
<PAGE>
APPENDIX A
ENTERPRISE LICENSE SCHEDULE
Schedule to Corporate Master Agreement. This Schedule supplements and amends the
Corporate Master Agreement (the "Agreement"), by and between Vignette
Corporation ("Vignette") and Cheap Tickets, Inc., ("Client") to license the
Software specified herein and to incorporate the additional terms set forth
below to grant Client an Enterprise License (the "Enterprise License") for the
Software specified herein (the "Included Software"). This Enterprise License is
in effect for the limited term specified below.
1. License Grant:
a) Vignette grants Client one Domain License to install and use [****]
number of copies of the Included Software throughout the Enterprise
(defined below) on [****] number of Servers owned and operated by
Client in connection with and in support of Client's world wide web
sites operated through only those Universal Resource Locators ("URLs")
that are wholly owned and controlled by Client. This Domain License
does not extend to any use except for the operation of the Domain.
This Domain License [****]. In the event that a third party does
acquire Client, the Domain License shall be limited to Client's
license configuration in effect as of the time of the acquisition. For
purposes of this Schedule, "Enterprise" shall mean Client and any
legal entity wholly owned and controlled by Client.
b) The parties agree that the number of copies that Client may install
pursuant to this Domain License shall be limited to the [****], in
support of the Domain, as of the end of the Domain Term. If, after the
end of the Domain Term, Client desires to install additional copies
and/or utilize additional or increased functionality, Client must
purchase such additional licenses pursuant to terms and conditions set
forth on a separate Schedule mutually acceptable to the parties.
Certain terms and definitions relevant to the scope of use of the
Included Software are appended hereto as Appendix A ("Product
Descriptions"). Notwithstanding the preceding sentence, to the extent
the Product Descriptions refer to or reference restrictions that
require additional licenses for that particular product based on
usage, such restrictions shall not apply during the Domain Term.
c) At the end of the Domain Term, Client shall possess a perpetual,
fully-paid license to use the number of copies of Included Software
[****] in support of the Domain, as of the end of the Domain Term.
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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<PAGE>
2. Included Software, Term and Fees:
a) The "Included Software" is defined as:
i) [****]
ii) [****]
iii) [****]
iv) [****]
v) [****]
vi) [****]
viii) [****]
b) Vignette will ship one copy of each Included Software product listed
above and associated documentation to Client at the following address
within five business days after execution of this Schedule:
Cheap Tickets, Inc.
------------------
1440 Kapiolani Blvd., Suite 800
-------------------------------
Honolulu, HI 96814
------------------
Attn: Eric Gomez
----------------
c) Term of Domain License: beginning October 31, 2000 and expiring
October 30, 2003, (the "Domain Term")
d) Fees:
Product/Service Total
Domain License Fee for the Domain Term $[****]
Enterprise Level Support for the Domain Term $[****]
- See Exhibit B
Total Amount due upon execution of Agreement: [****]
3. Optional Maintenance Service and Fees:
a) Provided that Client pays the fees specified above for Maintenance
service ("Domain Level Support"), Vignette will provide Central Site
Maintenance to the Client through the following Designated Location of
Client (the "Central Site")
Cheap Tickets, Inc.
1440 Kapiolani Blvd., Suite 800
Honolulu, HI 96814
Phone:___________________________________
Fax: ___________________________________
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
2
<PAGE>
i) Client agrees that all Maintenance and Phone Support for the
Included Software as required under Article 4 of the Agreement
shall be provided by Vignette only [****]. Vignette shall have no
obligation to provide any support for any copy of the Included
Software at [****]and all inquiries to Vignette and
communications between the parties shall be only with the Central
Site.
ii) Vignette shall provide one (1) copy of each correction,
improvement, or update to the Central Site. Client shall have the
right and obligation to copy and distribute each such correction,
improvement, or update to the other Designated Locations.
b) The Maintenance Fee for each subsequent year after the Domain Term
shall be equal to [****]for the configuration installed and in
production use by Client pursuant to the license granted herein
4. Additional Terms and Conditions
a) During the Domain Term, the following terms and conditions shall apply
to this Domain License and supersede and replace for such term only,
those provisions of the Agreement which directly conflict with these
terms and conditions.
i) Client shall have the right to make and use multiple copies of
the Included Software without obligations to pay additional
License fees for copies made.
ii) Upon Vignette's prior written request, Client shall conduct an
annual audit to determine the quantities and the addresses of the
then current locations at which the Included Software is
installed at the end of each anniversary year and shall give
Vignette written notice of the address of each such location on
or before thirty (30) days following the end of each such
anniversary year.
b) Client shall not use the Included Software for service bureau or time
sharing purposes.
c) So that Vignette may accurately track the usage of the Included
Software by Client, no later than two anniversary months prior to the
end of the Domain Term, upon Vignette's prior written request, Client
shall conduct an audit to determine the quantities and the addresses
of the then current locations at which copies of the Included Software
are installed pursuant to each type of license listed on Appendix 1
and shall give Vignette written notice of the quantities of licenses
in use for installed Included Software on or before 90 days prior to
the end of the Domain Term. Client shall notify Vignette of the final
quantities of licenses in use for installed Included Software at the
end of the Domain Term within 30 days following the end of the Domain
Term. Such reports shall include, at a minimum, the following
information regarding each installed copy of the Included Software:
i) [****]
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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ii) [****]
iii) [****]
iv) [****]
v) [****]
vi) [****]
vii) [****]
d) Client agrees, that in the event there is a good faith dispute
regarding the audit results, that Client will cooperate fully in a
secondary audit to be conducted by Vignette to ascertain Client's
installed configuration at the end of the Domain Term for purposes of
documenting the Included Software installed at the end of the Domain
Term.
e) Client agrees to serve as a "reference site". Vignette may refer up to
two (2) potential new customers per calendar quarter to Client as a
reference for the Software and Vignette, and Client agrees to respond
reasonably to all such reference contacts. Client shall respond
reasonably to questions from such prospective customers about Client's
use of the Included Software (without breaching any duty of
confidentiality hereunder and without any obligation to disclose any
confidential information of Client).
f) Client agrees to cooperate with Vignette to publish a joint press
release with Vignette announcing Client's purchase of a license for
the Included Software to be released after the execution of this
Agreement.
g)
h) The pricing and other consideration reflected in this Schedule are
contingent upon Client's execution of this Schedule by 6:00 pm Central
Time on October 31, 2000
All other terms and conditions of the Agreement which are not expressly modified
herein shall remain in full force and effect.
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
4
<PAGE>
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed
this Schedule as of the last date written below.
Vignette Corporation (Cheap Tickets, Inc.)
By: By: /s/ Paul B. Halstead
_______________________________ ------------------------------
(Signature) (Signature)
By: By: Paul B. Halstead
_______________________________ ------------------------------
(Name typed or printed) (Name typed or printed)
By: By: CTO
_______________________________ ------------------------------
(Title) (Title)
By: By: 10/30/00
_______________________________ ------------------------------
(Date) (Date)
5
<PAGE>
APPENDIX A
A. V/5 Products
[****]
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
6
<PAGE>
EXHIBIT B
---------
Maintenance and Support Services offered by Vignette
A. Maintenance
-----------
1. Updates
-------
[****]
2. Electronic Support Included
---------------------------
[****]
3. Extent of Maintenance
---------------------
[****]
B. Support Offerings
-----------------
1. Electronic Support (Included with the purchase of Basic, Extended or
Enterprise Support)
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1
<PAGE>
a. Problem Submission
. [****]
. [****]
. [****]
. [****]
. [****]
b. Knowledge Base
. [****]
. [****]
. [****]
c. Online, Searchable Program Documentation (as available)
d. Client Private Newsgroups
e. Informational Broadcasts
. [****]
. [****]
. [****]
. [****]
2. Basic Support
[****]
Problem Severity: Initial Response to Representative by Subsequent Responses:
---------------- -------------------------------------- --------------------
Vignette Within:
---------------
[****] [****] [****]
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
2
<PAGE>
Critical Errors: [****]
Major Errors: [****]
Minor Errors: [****]
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
3
<PAGE>
3. Extended Support
[****]
4. Enterprise Support
[****]
5. Upgrade Assistance
. [****]
. [****]
. [****]
6. Onsite Support (Additional Charges apply)
[****]
C. Services Not Included In Support Service:
[****]
D. Exclusions to Maintenance and Support services:
[****]
[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
4
<PAGE>
AMENDMENT TO APPENDIX A OF THE CORPORATE MASTER AGREEMENT
BETWEEN
CHEAP TICKETS, INC. AND
VIGNETTE CORPORATION
This Amendment, effective January 10, 2001 clarifies the intent of
Appendix A titled as: Enterprise License Schedule (the "Appendix") of the
Corporate Master Agreement between Cheap Tickets, Inc. ("Client") and Vignette
Corporation ("Vignette"), executed on October 31, 2000 (the "Agreement").
The parties hereby agree to amend Section 3 of the Appendix by adding the
following subsection in its entirety:
"3(c) Client and Vignette agree that for the purposes of this
Agreement, the Enterprise Level Support for the Domain Term will
commence on January 1, 2001, and terminate on October 26, 2003."
Except as specifically set forth above, all other terms and conditions
of the Agreement entered into between the parties shall remain unchanged and in
full force and effect.
IN WITNESS WHEREOF, Client and Vignette have duly executed this
Amendment by and on their behalf by their duly authorized representatives as of
the date provided above.
Agreed to by:
VIGNETTE CORPORATION CHEAP TICKETS, INC.
By: /s/ Robert R. Robinson By: /s/ Paul Halstead
--------------------------------------- ----------------------------
Name: Robert R. Robinson Name: Paul Halstead
------------------------------------- --------------------------
Title: Legal Counsel Title: CTO
------------------------------------ -------------------------