EXHBIT 10.23
CERTAIN INFORMATION FROM THIS DOCUMENT HAS BEEN REDACTED PURSUANT TO A
CONFIDENTIAL TREATMENT REQUEST BY CLICKSOFTWARE TECHNOLOGIES LTD. UNDER 17
C.F.R.SS.SS.200.80(B)(4), 200.83 AND 240.24B-2 AND SUBMITTED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
TEAMING AGREEMENT
BETWEEN
CLICKSOFTWARE TECHNOLOGIES LTD.
AND
IBM UNITED KINGDOM LIMITED
1ST OF JULY, 2004
TEAMING AGREEMENT
This Teaming Agreement comes into force on the 1st of July 2004 ("Effective
Date"), and is entered into between ClickSoftware Technologies Ltd.
("ClickSoftware"), with its principal office located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ and IBM United Kingdom Ltd ("IBM"), having an office located at ▇▇
▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
("Agreement"). This Agreement establishes the basis for a teaming relationship
that will provide a joint offering in the following solution areas: Workforce
Management, Field Force Automation and Asset Monitoring. The purpose of this
Agreement is to outline the framework of the teaming relationship and specify
how the Parties will work with one another in the marketing, promotion and sale
of jointly delivered solutions comprised of ClickSoftware Core Competencies and
IBM Core Competencies to customers in the enterprise business environment
("Joint Initiatives"). ClickSoftware and IBM shall be referred to in the
singular as a "Party" and collectively as the "Parties".
1. DEFINITIONS
AFFILIATES are entities that are owned or controlled directly or indirectly (by
more than 50% of its voting stock, or if not voting stock, decision-making
power) by a Party or by its parent company.
CORE COMPETENCIES are the selected competencies, provided by ClickSoftware and
IBM, as applicable
o CLICKSOFTWARE'S CORE COMPETENCIES are the selected competencies
provided by ClickSoftware as described in Attachment A-1.
o IBM'S CORE COMPETENCIES are the selected competencies provided
by IBM as described in Attachment A-2.
The combination of IBM Core Competencies and ClickSoftware Core Competencies are
hereinafter referred to as ("Joint Solution (s)")
CUSTOMER is the entity that (1) executes a contract for Products and Services
and (2) acquires Products and/or Services for its own use and not for resale.
MACHINE is a machine, its features, conversions, upgrades, elements, or
accessories, or any combination of them. The term "Machine" includes either
Party's machines and any non-IBM or non-ClickSoftware machine including other
equipment that either Party may provide to the Party acting in the role of Prime
as defined below or directly to a Customer as authorized by the Prime in a
Transaction Document.
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MANAGEMENT COUNCIL shall mean the representatives of the Parties as described in
Section 4.B herein.
MARKETING MATERIALS are Product brochures, manuals, technical specification
sheets, demonstrations, presentations, Product education and training materials,
Product descriptions used in electronic online service, and other marketing
sales literature provided by a Party for the other Party's use in the
performance of its marketing activities.
PRODUCT is any IBM, ClickSoftware or other equipment manufacturer Program and /
or Machine.
PROGRAM is the following, including the original and all whole or partial
copies:
1. machine-readable instructions and data;
2. components;
3. audio-visual content (such as images, text, recordings, or
pictures);
4. related licensed materials; and
5. ClickSoftware Program Products as described in the Software and
Services Engagement Agreement between the Parties (number
4903GR0860) dated as of March 1, 2004 (the "SSEA").
The term "Program" does not include licensed internal code or materials which
are usually incorporated into a Machine.
PRIME means the entity that is responsible for the overall implementation and
sale of a Joint Solution to a specific Qualified Lead or Customer as set forth
in greater detail in Section 6.
PROJECT OFFICE shall mean the office or function established by the Parties to
fulfill the obligations as set forth in Section 4.A herein.
QUALIFIED LEADS are prospective customers that meet the following criteria: i)
the prospective customer has sufficient financial resources to acquire the Joint
Solution; ii) the engaged person or persons at the prospective customer are able
to make and execute acquisition and financial decisions on behalf of the
company; iii) the Party providing the lead and the person referenced in
subsection ii) above agree that the prospective customer has a business need
that the Joint Solution will satisfy; and iv) the person referenced in
subsection ii) above has identified a time within the next six (6) months in
which his company will determine whether to implement a Joint Solution.
SERVICE is performance of a task such as project management, engineering,
programming, consultation, education, training, installation, maintenance, site
preparation, facilities management or operations support, or use of a resource
(such as an informational database or a network and associated enhanced
communication and support) that the Sub makes available to the Prime or to the
Customer as authorized in a Transaction Document by the Prime.
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SUB means the entity that will perform the undertaking specified in the
applicable Transaction Document.
TERRITORY means worldwide, subject to IBM's being registered to do business
within the relevant country. Future changes to the Territory will be determined
by the Management Council as described in Section 4.B herein.
TRANSACTION DOCUMENT shall mean a detailed, written allocation of tasks,
responsibilities and fees, approved in writing by both parties, regarding the
provision of a Joint Solution to each Qualified Lead or Customer.
2. SCOPE
ClickSoftware and IBM recognize the need to focus on their Core Competencies and
maximize their respective competitive advantages in the marketplace.
Additionally, the market opportunity for Pervasive/Wireless e-Business services
and solutions is growing faster than their respective organizations are
currently capable of pursuing. In order to meet this market opportunity,
ClickSoftware and IBM have decided to form this teaming relationship that will
enable the Parties to coordinate their efforts to provide innovative and
effective information technology solutions to customers of both ClickSoftware
and IBM. This relationship will draw on the knowledge, expertise and resources
of the Parties to put in place business processes and solutions necessary to
deliver Joint Solutions to Customers in the Target Market (as defined in Section
6.A.).
The Parties intend to independently identify and qualify sales opportunities in
order to engage and deliver Joint Solutions based on their Core Competencies to
Customers. Through this teaming relationship, either Party may bring Qualified
Leads to the Project Office (identified in Section 4.A below) for consideration
as a Joint Solution opportunity (as more fully described in Section 6. below).
The Parties agree to coordinate the activities of their respective Affiliates
under this Agreement. This Agreement is written in English and signed with the
understanding that the Parties are bound by its terms. The Parties will
distribute copies of this Agreement to their respective Affiliates, when
appropriate. The respective Affiliates receiving copies of this Agreement will
acknowledge acceptance of these terms through a participation agreement letter
that incorporates this Agreement by reference.( Sample is attached in Exhibit
A).
3. ASSOCIATED CONTRACT DOCUMENTS
A. The Parties have entered into the following stand alone agreements that
will be used to deliver the Joint Solutions to Customers:
(1) The SSEA contains the terms under which ClickSoftware will
supply IBM with Program Products and/or Services in connection
with Customer engagements, as contemplated in Section 6.C.4 in
projects where IBM acts as Prime. The parties will develop SOW
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for each specific project. The Parties have already developed a
Master Scope Of Work reference number 4904IRO132 which will be
used for developing future SOW at each specific project level.
(2) The IBM International Agreement for Exchange of Confidential
Information ("AECI") entered into between ClickSoftware ltd and
IBM Israel for Exchange of Confidential Information No.
Z125-6271-00 ("AECI"), on June 11, 2003 contains terms under
which the Parties will exchange confidential information, if
any.
B - The Parties intend to negotiate in good faith and enter into
additional agreements as follows:
1) In the event ClickSoftware will act as a Prime and IBM as a Sub, the Parties
will agree on a case- by-case basis on a Sub-Contractor Agreement containing
terms and conditions acceptable to both Parties. This subcontractor agreement
will be entered into between ClickSoftware and the local IBM Affiliate;
2) In the event the Parties agree to work as parallel contractors vis a vis a
particular Customer, the parties will agree on a case-by-case basis as to
whether the revenue deriving from the ClickSoftware sale will be counted as
revenue achievement under this Agreement as well as under the Warrant Agreement.
The Warrant Agreement dated as of the date hereof, sets forth the terms and
conditions relating to the issuance of a warrant to IBM which will vest based on
the achievement of revenue performance milestones described therein
The Share Purchase Agreement dated as of the date hereof, sets forth the terms
and conditions relating to the funding of the Project Office.
In the event of any inconsistency between the terms of the various agreements
signed between the Parties and their respective Affiliates, the following order
of precedence shall apply:
1. The Transaction document, such as the MSOW, an SOW or Work order
2. The SSEA or any Sub-Contractor Agreement
3. This Agreement.
4. THE OPERATIONAL STRUCTURE OF THE TEAMING RELATIONSHIP.
A. THE PROJECT OFFICE
The Project Office will manage the day-to-day affairs associated with the
teaming relationship. IBM will dedicate ***1 whose main objective will be to
perform the activities set forth in this Section 4. A in EMEA meaning Europe,
Middle East and Africa and will also supervise the
-------------------------
1 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 5 of 20
activities in Asia Pacific countries (the "Project Office Leader"). IBM will
also designate ***2 to perform the same activities set forth in this Section 4.A
in Americas meaning the United States, Latin America and Canada (the Americas
Resource) as coordinated by the Project Office Leader.
ClickSoftware will appoint a relationship executive who shall represent
ClickSoftware in all of its activities with the Project Office ("Relationship
Executive").
The Project Office Leader will have the following general skills:
1. knowledgeable regarding the IBM organization, including IBM's
Affiliates
2. have a minimum of five years relevant experience in IBM
business, sales and marketing experience necessary to perform
the obligations hereunder; and
3. experience in enterprise solutions sales and marketing to the
Target Market.
The Parties will consult with each other regarding the appointments of the
Project Office Leader and the Relationship Executive.
The Parties agree to perform the following activities within the following time
periods unless extended by mutual agreement in writing:
a. IBM will designate its Project Office Leader and the Americas
Resource, and ClickSoftware will designate its Relationship
Executive within twenty (20) working days after the Effective
Date;
b. The Parties will hold a kick-off meeting at a date to be
mutually agreed after the designation of the Project Office
Leader and the Relationship Executive;
c. IBM will initiate, coordinate and run and ClickSoftware will
participate in the Alliance to Win ("ATW") session as agreed by
the Parties;
d. The Parties will complete the Business Plan described in Section
4.E. below, which will include also the go to market plan,
within forty (40) working days from the ATW date;
e. Define and periodically update an opportunity and sales
management process for engaging in offering and delivery of the
Joint Solutions as soon as practicable;
f. Periodically update the Business Plan;
g. Plan and execute internal marketing of the Joint Solutions in
the Parties' respective organizations;
h. Determine which Party will be the Prime for each Joint Solution
opportunity using the criteria set forth in Section 6.C.4.
below;
i. Resolve any conflicts of interest for each opportunity;
j. Identify, qualify and staff the Joint Initiatives;
k. Provide sales support for the Joint Solution;
-------------------------
2 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 6 of 20
l. Monitor the provision of Services to Customers and establish
measurable Service delivery and Customer satisfaction objectives
for each engagement; and
m. Report issues and status of Project Office to the Management
Council.
The Parties have already agreed that the Project Office Leader will be ***3 and
that the Relationship Executive will be ***4.
The Project Office Leader and Relationship Executive may be replaced by either
Party in consultation with the other Party. The new appointment shall be a
person with experience, skills and responsibilities equivalent of the person
replaced.
The Project Office Leader and the Relationship Executive will meet as required.
Meetings will be scheduled at times and locations mutually agreed upon by both
Parties.
B. THE MANAGEMENT COUNCIL
The Parties will establish a Management Council, comprised of at least two (2)
representatives from each Party. The IBM representatives will include the
Project Office Leader and the ClickSoftware representatives will include the
Relationship Executive. The Management Council will hold its first meeting
within the first ninety (90) calendar days of the Effective Date.
The Management Council will perform the following activities:
a. Hold quarterly meetings, unless otherwise required, to discuss:
o progress on current and new Joint Initiatives, and
o adjustments to the Business Plan, as mutually agreed in
writing.
b. Determine strategies and objectives, and provide guidance to the
Project Office in the development of the Business Plan and
opportunities and sales management process as described in
Section 4.E. below;
c. Measure/monitor the performance of the teaming relationship and
make all necessary adjustments to the Project Office;
d. Attempt to resolve disputes between the Parties;
e. Escalate unresolved disputes to the Executive Sponsors; and
f. Determine whether to change the list of Core Competencies on
Attachment A pursuant to the mutual agreement of the Parties.
The ClickSoftware Management Council representatives will be ***5 and the
Relationship Executive. The IBM Management Council representatives will be ***6
and the Project Office
-------------------------
3 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
4 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
5 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 7 of 20
Leader. A Party's management representatives may be replaced in consultation
with the other Party, and any new member(s) shall have with the experience,
skills and responsibilities equivalent of the member replaced.
C. EXECUTIVE SPONSORS
Each Party will designate a single Executive Sponsor for this Agreement. The
Executive Sponsors will be responsible for:
1) Assisting the Management Council in the settlement of disputes;
and
2) Facilitating any changes to the Parties' working relationship
based upon market developments .
The ClickSoftware Executive Sponsor will be ***7. The IBM Executive Sponsor will
be ***8. A Party's Executive Sponsor may be changed by notice to the other
Party, and such new Executive Sponsor shall be an individual with
responsibilities equivalent to the Executive Sponsor that was replaced.
D. RELATIONSHIP
The Parties shall perform their obligations under this Agreement as independent
contractors and nothing herein shall be construed as creating any partnership,
joint venture or any other similar relationship between the Parties. Each Party
shall be solely responsible for the withholding or payment of all applicable
federal, state and local income taxes, social security taxes and other payroll
taxes with respect to its employees, as well as any taxes, contributions or
other obligations imposed by applicable state unemployment or workers'
compensation acts. Each Party has sole authority and responsibility to hire,
fire and otherwise control its employees.
E. BUSINESS PLAN.
The Parties will mutually develop and agree upon a business plan (" Business
Plan") regarding alliance and teaming activities within forty (40) working days
of the date of the ATW. The Business Plan will set forth those objectives that
each Party individually would like to achieve in connection with this Agreement
as well as the objectives the Parties would like to achieve collectively (e.g.
go-to-market plan, lead generation, target customers, market development,
respective channels of distribution, sales training). The Parties will mutually
modify the Business Plan from time to time, as the Parties deem necessary.
5. MARKETING AND MARKET SUPPORT FOR JOINT INITIATIVES
-------------------------
6 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
7 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
8 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 8 of 20
The Parties agree to perform and/or provide their respective responsibilities as
outlined herein and in the Business Plan in support of the marketing and
promotion of the Joint Solutions .
A. MUTUAL RESPONSIBILITIES
1) FUNDING: On a case by case basis, the Parties may agree to allocate
expenses incurred or to be incurred in connection with Joint Initiatives
or with Joint Initiatives campaigns, promotional activities for their
pre-sales efforts and with regards to the marketing and sale of Joint
Solutions. The Business Plan will identify marketing activities
including joint publications and travel and the Parties may mutually
agree upon the funding required for such activities.
2) MARKETING EXTERNAL:
Each Party shall:
a. as it may mutually be agreed by the Parties, cooperate with the other
in (i) joint public relations announcements approved in writing in
advance by both Parties and (ii) other ongoing public relations, as it
may mutually be agreed by the Parties. After the signature of the
Agreement, IBM will participate in a press release to be issued by
ClickSoftware. Furthermore the Parties may issue a joint press release
describing the business relationship detailed in this Agreement once a
referenceable Customer for a Joint Solution has been secured;
b . create Marketing Materials, at its own expense, for its respective
Core Competencies and public relations releases utilizing Customer
information that is industry and solution (e.g. Categories) oriented;
c. provide such Marketing Materials to the other Party for purposes of
the Joint Solutions;
d. assist with pilot Customer installations for Joint Solutions, as
agreed by the Project Office Leader and the Relationship Executive. Each
Customer engagement will dictate the unique "pilot" activities. The
pilot activities may include a limited amount of Product and Services
for proof of concept purposes. Normally, participation in such pilots
will be at no charge to the other Party. However, where appropriate
(e.g., the Customer is paying for the pilot) the Parties may be
compensated by the Customer for their pilot activities subject to the
agreement of the Parties which will be documented in a Transaction
Document.
3) MARKETING INTERNAL:
Each Party shall participate in a shared requirements process, through which the
Parties have the ability to provide feedback and input based on the reporting
Party's experience in the field with Customers regarding modifications or
enhancements to the other Party's Core Competencies for future consideration and
possible inclusion.
B. CLICKSOFTWARE RESPONSIBILITIES
1) MARKETING EXTERNAL:
ClickSoftware shall:
a. designate IBM as a partner of ClickSoftware for wireless and
mobile solution;
Page 9 of 20
b. promote Joint Solutions to existing ClickSoftware services
customer base as specified in the Business Plan;
c. participate with IBM in tradeshows/seminars/wireless workshops,
as mutually agreed upon and specified in the Business Plan;
c. Where possible, provide Customer video testimonials for
inclusion in joint marketing activities with IBM's approval;
d. promote the Joint Initiative in media, highlighting the solution
and the benefits that it brings to enterprise business Customers
as specified in the Business Plan;
e. promote the Joint Solutions to potential Customers for the
purpose of increasing awareness, understanding and the sale of
Joint Solutions ; and
f. provide to the Project Office Qualified Leads for the Joint
Solutions;
2) MARKETING INTERNAL:
ClickSoftware shall:
a. recommend IBM's Core Competencies, where appropriate, based upon
customer requirements and technical capabilities;
(1) advise ClickSoftware's sales representatives and
ClickSoftware's identified enterprise focused channel partners
of the merits of the IBM's Core Competencies; and
(2) include marketing descriptions of IBM Core Competencies on
ClickSoftware's internal sales media.
b. promote Joint Solutions on the ClickSoftware internal sales
media; and
c. create internal awareness of and inform ClickSoftware sales and
support personnel of the IBM/ClickSoftware relationship & IBM's
Core Competencies in the area of wireless solutions.
3) DEMONSTRATION UNITS:
ClickSoftware shall:
a. provide IBM early access to ClickSoftware's Core Competencies,
as such Core Competencies are made available to ClickSoftware's
beta testing customers including programs and changes,
revisions, enhancements, thereto as well as new releases solely
for use in connection with Joint Solutions; and
b. Share Customer requirements for consideration in future IBM
solutions.
4) TRAINING:
ClickSoftware shall:
provide training, relating to ClickSoftware's Core Competencies ("Training") and
associated Training materials to IBM's personnel as defined in the MSOW of the
SSEA. The Parties may agree to additional training from time to time which will
be documented in a Transaction Document to be attached to the SSEA.
Page 10 of 20
5) CUSTOMER CARE/SERVICE
ClickSoftware will make reasonable efforts to (i) assist IBM personnel
participating in Project Office in the methods of selling ClickSoftware Products
and Services and (ii) assist IBM with technical issues of ClickSoftware Products
and Services.
6) PROJECT OFFICE FUNDING
In order to contribute towards the costs of the Project Office Leader and the
America's Resource and the associated expenses of their normal business
activities associated with the Project Office, ClickSoftware will pay IBM ***9.
This amount shall be payable quarterly as follows: ***10.
ClickSoftware will issue to IBM 100,000 ClickSoftware ordinary shares on the
date of the First Closing as set forth in the Share Purchase Agreement, at a per
share price equal to the par value of such shares, for an aggregate cash
purchase price of NIS 2,000, as set forth in the Share Purchase Agreement dated
as of the date hereof.
Provided that this Agreement has not been terminated prior to such date, on the
date of the Subsequent Closing as set forth in the Share Purchase Agreement,
ClickSoftware will issue to IBM an additional ClickSoftware 100,000 ordinary
shares at a per share price equal to the par value of such shares, for an
aggregate cash purchase price of NIS 2,000, as set forth in the Share Purchase
Agreement dated as of the date hereof.
The quarterly payments ***11 will be subject to the issuance of an invoice by
IBM to ClickSoftware which will include, ***12. ClickSoftware will wire this
quarterly payment to the IBM bank account specified on the invoice, within
thirty calendar days of receipt of such invoice.
The terms and conditions governing the issuance by ClickSoftware of 200,000
ordinary shares to IBM are set forth in the Share Purchase Agreement attached
hereto as Exhibit B.
C. IBM RESPONSIBILITIES
1) MARKETING EXTERNAL:
-------------------------
9 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
10 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
11 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
12 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 11 of 20
IBM shall:
a. designate ClickSoftware as a partner of IBM for wireless and
mobile solution;
b. promote Joint Solutions to existing IBM services customer base
as specified in the Business Plan;
c. include the Joint Solutions in tradeshows/seminars/wireless
workshops, and industry marketing events as mutually agreed upon
and specified in the Business Plan;
c. where possible, provide Customer video testimonials for
inclusion in joint marketing activities with IBM's approval;
d. promote the Joint Initiative in media, highlighting the solution
and the benefits that it brings to enterprise business Customers
as specified in the Business Plan;
e. promote the Joint Solutions to potential Customers for the
purpose of increasing awareness, understanding and the sale of
Joint Solutions ; and
f. provide to the Project Office Qualified Leads for the Joint
Solutions
2) MARKETING INTERNAL:
IBM shall:
a. provide to the Project Office Qualified Leads for the Joint
Solutions;
b. promote the Joint Initiatives on IBM's internal wireless website
(e.g. Webcasts);
c. promote ClickSoftware at IBM wireless seminars, workshops and
training events (e.g. Wireless, e-business University) as
specified in the Business Plan; and
d. create internal awareness of and inform IBM sales and support
personnel of the IBM/ClickSoftware relationship &
ClickSoftware's Core Competencies as described herein.
3) TRAINING:
Make available the identified IBM resources for Training on
ClickSoftware Core Competencies as specified in the Business Plan.
Either Party may authorize its Affiliates to perform all, or a portion of, its
obligations under this Section 5. Each Party remains responsible for any actions
it may authorize its Affiliates to perform under this section.
6. SALES
A. TARGET MARKETS
The primary markets where the Parties will focus their efforts to generate
Qualified Leads are Pervasive/Wireless e-business enterprise customers in the
following industries ("Target Markets"):
o ***13
o ***14
o ***15
o ***16
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13 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 12 of 20
B. SALES OF JOINT SOLUTIONS
1) The details pertaining to the various scenarios and business opportunity
within the Target Market will be defined in the ATW session and documented in
the Business Plan. The terms relating to the delivery of one Party's Core
Competencies will be governed, as the case may be, either by the SSEA, the MSOW
or by the Sub-contractor Agreement as well by the applicable Transaction
Document.
2) Each Party will be responsible for compensating their respective sales
forces for any Joint Solution engagements.
C. OPPORTUNITY MANAGEMENT
1) CUSTOMER LEAD GENERATION:
The Parties will generally continue their efforts and investments in the lead
generation phase of the sales cycle independently of each other. However, they
agree to actively pass Qualified Leads to each other that are consistent with
the Target Market focus and that meet the requirements established in the
Business Plan. Such leads will be submitted to the Project Office Leader or to
Relationship Executive as the case may be, and may be shared with each other.
2) SUBMISSION AND CONSIDERATION OF QUALIFIED LEADS:
The Project Office will use the established opportunity management and sales
process, as defined in the Business Plan, to determine whether or not to engage
in a Joint Solution. If a Party declines to participate in a Joint Initiative,
the Party that submitted the Qualified Lead shall be entitled to pursue such
lead alone or in combination with others, without any obligation to the
declining Party. The Party submitting a Qualified Lead acknowledges that, during
the above-described Joint Initiative evaluation process, individuals employed by
the other Party or its Affiliates may be simultaneously engaging (either
directly or in combination with others) in pursuing the same opportunity,
without having been informed of such opportunity by and without the knowledge of
the either the Project Office Leader or the Relationship Executive as the case
may be. The Parties agree that the Party who declines to participate in a Joint
Initiative shall not be considered to be in violation of any obligation under
this Teaming Agreement by virtue of such simultaneous pursuit. If a Party agrees
to participate in a Joint Initiative, the Project Office Leader or the
Relationship Executive as the case may be will, under Section 6.C.4 ).b., below,
determine which Party will act as the Prime. The Parties expressly recognize and
agree that nothing in this Agreement obligates a Party to accept any particular
opportunity as a Joint Initiative .
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14 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
15 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
16 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 13 of 20
3) SALES LEAD TRACKING AND SUPPORT:
The Project Office Leader shall track Qualified Leads, which the Parties have
agreed to pursue as Joint Initiatives and the Parties will provide sales support
as they have mutually agreed upon in writing.
4) INITIAL ACTIVITIES RELATED TO JOINT INITIATIVES:
After both Parties have accepted an opportunity as a Joint Initiative, the
Project Office Leader and Relationship Executive will take the following steps
in the following order:
a. They will evaluate and agree upon a high level description for
implementation of the Joint Solution for a potential Customer
(the "Framework"). The Framework will have sufficient detail to
determine the probable levels of responsibility for each of the
Parties in developing and deploying the solution and the types
of skills and resources that are likely to be required.
b. It is intended that the Joint Solutions will be offered to the
Customer under a single contract between a Party, who will act
as the Prime, and the Customer. The Parties agree that all sales
of ClickSoftware's Products shall be governed by ClickSoftware's
standard license agreement.
c. Based on the Framework, the Project Office Leader and the
Relationship Executive will jointly determine which Party will
act as the Prime and which Party will act as the Sub. It is
hereby agreed, that in most of the cases IBM will act as Prime.
However, the Parties may agree that the Party which is expected
to have the greatest level of responsibility in the deployment
of the Joint Solution will be selected to function as the Prime
unless (1) that Party is unable to make available to the Joint
Solutions sufficient personnel with the requisite skills to act
as the Prime or (2) a Customer requests that a particular Party
be the Prime (it being understood that a Customer preference for
a Prime may result in additional cost to that Customer). The
Project Office Leader and the Relationship Executive shall use
the following criteria to assist in determining which Party will
act as Prime for each Joint Solutions:
o Stated Customer preference;
o The relative strength of each Parties' relationship with
the Customer;
o The level of value-added content or Core Competencies to
be provided by each Party; and
o Other factors that may be mutually agreed upon by the
Parties.
Page 14 of 20
c. The Project Office Leader and the Relationship Executive will
select a team (the "Solutions Team") to develop the Joint
Solution that will be submitted to the Customer. The Solutions
Team will have one or more representatives from each Party's
organization. If the Qualified Lead was provided to the Parties
by a third party, and the Framework includes products or
services to be provided by that third party, the Solutions Team
may also include a representative from that third party. The
Solutions Team will be responsible for developing the proposal
and the proposal strategy for the Joint Solution and for
overseeing the contracting process, all as more fully set forth
below.
D. DISPUTE RESOLUTION.
Both Parties will attempt in good faith to resolve all disputes or defaults by
mutual agreement before initiating any legal action or attempting to enforce any
rights or remedies hereunder. The Project Office Leader and the Relationship
Executive shall meet to discuss the resolution of the dispute or default. If
they are unable to do so within thirty (30) calendar days, the dispute shall be
escalated to the Management Council. If the Management Council is unable to
resolve the issue within fifteen (15) calendar days of the dispute having been
referred to it, the dispute shall be escalated to the Executive Sponsors. If
unresolved at the end of sixty (60) calendar days and after escalation to the
Executive Sponsors, either Party may pursue any rights or remedies as they may
have at law or in equity.
E. EXPENSES
The Parties will be solely responsible for the expenses they individually incur
and both Parties will exercise reasonable efforts to minimize expenses
associated with meetings including, but not limited to, meeting via telephone,
personal computer conferencing, exchanging documents electronically, using
e-mail or fax machines and the like.
7. TERM AND TERMINATION.
The term of this Agreement shall be ***17 from the Effective Date, subject to
early termination as specified in this Article. The occurrence of the First
Closing, as defined and as set forth in the Share Purchase Agreement, is a
condition to the entering into of this Agreement by the Parties.
A) EARLY TERMINATION
Either Party may terminate this Agreement by giving the other Party not less
than 60 calendar days written notice prior to the anniversary date of the
Agreement, if such Party decides not to extend the activities of the Project
Office for an additional year. Such termination will take effect at the end of
the specific year during which notice is given. In such case, the Party to whom
notice is given agrees that it shall not have the right to claim damages from
the terminating Party in connection with this early termination. For avoidance
of doubt, in such case, the Parties agree that IBM will retain the payment of
***18 and the shares which had previously been issued to IBM.
-------------------------
17 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 15 of 20
B) TERMINATION FOR BREACH
Either Party may terminate this Agreement for material breach by the other Party
upon written notice containing the specific nature and dates of the material
breach. The breaching Party will have thirty (30) calendar days from receipt of
the notice to cure such breach. If such breach has not been timely cured, then
the non-breaching Party may immediately terminate this Agreement upon written
notice.
In the event of termination by IBM for material breach by ClickSoftware, the
Parties agree that IBM will retain the payment of ***19 and the shares which had
previously been issued to IBM and eventually claim damages in the event
ClickSoftware fails to issue to IBM the shares that were due to IBM prior to
termination.
8. WARRANTY
Each Party represents and warrants to the other Party as to itself that the
execution, delivery and performance by it of this Agreement have been duly
authorized by all necessary corporate action on its part.
THE WARRANTIES IN THIS SECTION 8 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
NONINFRINGEMENT, NONINTERFERENCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
9. LIMITATION OF LIABILITY
Circumstances may arise where, because of a default by a Party or other
liability, the other Party is entitled to recover damages from that defaulting
Party. In each such instance regardless of the basis on which such a claim is
based (including fundamental breach, negligence, misrepresentation, or other
contract or tort claim) a Party is liable for no more than ***20 (or a
particular country equivalent) per claim. This limit also applies to any of a
Party's subcontractors. It is the maximum for which a Party and its
subcontractors are collectively responsible. This limitation shall not apply to
the breach of the AECI, violation of the other Party's Intellectual Property
Rights, and to claims by a Party for bodily injury or damage to real property or
tangible personal property for which the other Party is legally liable.
-------------------------
18 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
19 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
20 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 16 of 20
Neither Party shall be liable to the other for any third party's claim (subject
to Section 10 below), nor for any economic consequential damages (including lost
profits, business, revenue, good will or anticipated savings and loss of or
damage to data and records), incidental damages or punitive damages, even if
advised that any of these types of damages may occur.
10. INDEMNIFICATION
A INDEMNIFICATION
Each Party (the "Indemnitor") will indemnify, defend and hold harmless the other
Party and its Affiliates, and its and their respective shareholders, controlling
persons, directors, officers, employees and agents (collectively, the
"Indemnitees"), from and against any and all third Party claims, costs,
including reasonable attorneys' fees, damages, liabilities and expenses
(collectively, "Losses") that a court finally awards, arising out of or
resulting from any modification, alteration by the Indemnitor of an Indemnitee
Product and as a result of which such modification or such product as modified
by the terminating Party infringes that third party's patent or copyright.
B. INDEMNIFICATION PROCEDURE:
The Indemnitee shall provide the Indemnitor (a) reasonably prompt
written notice of any such claim or action and permit the Indemnitor to answer
and defend such claim or action and (b) information available to the Indemnitee,
reasonable assistance and authority, at the Indemnitor's expense, to assist the
Indemnitor in defending such claim or action. The Indemnitor will not be
responsible for any settlement made by the Indemnitee without the Indemnitor's
written permission, which permission will not be unreasonably withheld or
delayed. In the event the Parties agree to settle a claim or action, each Party
agrees not to publicize the settlement without first obtaining the other Party's
written permission, which permission will not be unreasonably withheld or
delayed.
11. ADVERTISING AND PUBLICITY
Each Party grants to the other the right to use the other Party's Marketing
Materials as provided by the owning Party in support of the joint marketing
activities contemplated under this Agreement. The receiving Party shall not
alter the Marketing Materials in any manner, except as authorized by the owning
Party. Any goodwill attaching to a Party's trademarks, service marks, or trade
names belongs to the owning Party.
Neither Party shall identify, either expressly or by implication, this
relationship, the other Party or use any of the other Party's names, trademarks,
tradenames, service marks, or other proprietary marks in any advertising, press
releases, publicity matters or other promotional materials without the other
Party's prior written approval.
Neither Party is granted or vested with any right, title or interest in or to
any of the trademarks of the other Party by virtue of this Agreement, and all of
the trademarks shall remain the property of their respective owners. In the
performance of this Agreement, each Party will comply with all applicable
trademark laws and regulations.
Page 17 of 20
Except as expressly set forth herein, neither Party shall identify, either
expressly or by implication, this relationship, the other Party or use any of
the other Party's trademarks any advertising, press releases, publicity matters
or other promotional materials without the other Party's prior written
approval., not to be unreasonably withheld or delayed.
12. GENERAL
A. NOTICES. Any notice required or permitted under this Agreement will be sent
to the representative named below, and shall be effective upon receipt as
demonstrated by reliable written confirmation (for example: certified mail
receipt, courier receipt or facsimile receipt confirmation sheet). Each Party
will notify the other if their representative changes.
For ClickSoftware: ***21 For IBM: ***22
B. RIGHTS AND LICENSES. As between the Parties, each Party retains all right,
title and interest in an to (including, without limitation all Intellectual
Property Rights) its trademarks, tradenames, Products, Services, Marketing
Materials and Core Competencies. No rights or licenses to either Party's
intellectual property are granted hereunder except as expressly provided in this
Agreement.
C. ASSIGNMENT. Unless otherwise expressed in this Agreement, neither Party will
assign their rights or delegate or subcontract their duties under this Agreement
to third parties without the prior written consent of the other Party, such
consent not to be unreasonably withheld. However, this Agreement may be assigned
in conjunction with the sale of a substantial part of a Party's business that
utilizes this Agreement. Any unauthorized assignment of this Agreement is void.
D. FORCE MAJEURE. Neither Party will be considered in default or liable for any
delay or failure to perform any provision of this Agreement if such delay or
failure arises directly or indirectly out of an act of God, acts of the public
enemy, freight embargoes, quarantine restrictions, unusually severe weather
conditions, insurrection, riot, and other such causes beyond the reasonable
control of the Party responsible for the delay or failure to perform, provided
the affected Party notifies the other Party within fifteen (15) calendar days of
the occurrence.
E. LIMITATION OF ACTIONS. Neither Party will bring a legal action under this
Agreement more than two years after the cause of action arose.
-------------------------
21 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
22 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 18 of 20
F. GOVERNING LAW. Both Parties consent to the application of the laws of England
to govern, interpret, and enforce all of ClickSoftware's and IBM's rights,
duties, and obligations arising from, or relating in any manner to, the subject
matter of this Agreement, without regard to conflict of law principles.
G. FREEDOM OF ACTION. Notwithstanding any mutual strategic relationship between
the Parties, or that the Parties elect to provide a solution to a customer as
part of a Joint Initiative, either IBM or ClickSoftware may offer (either by
itself or together with third parties) to provide to a Customer Services or
Products whether or not such Services or Products are competitive to those
contained in a Joint Solution without any obligation to the other Party. Either
Party may independently develop, acquire and market materials, Products and
Services that may be competitive with (despite any similarity to) the other
Party's Products or Services.
H. CONFIDENTIALITY. The Parties agree that they shall maintain the terms and
conditions of this Agreement as "Information" pursuant to the terms of the AECI,
subject to the Parties' compliance and reporting obligations under applicable
laws and regulations.
I. ENTIRE AGREEMENT. Except as set forth in Sections 3 and 12.H. this Agreement
and its applicable Attachments are the complete agreement regarding these
transactions, and replace any prior oral or written communications between the
parties. If any term in this Agreement is found by competent judicial authority
to be unenforceable in any respect, the validity of the remainder of this
Agreement will be unaffected, provided that such unenforceability does not
materially affect the parties' rights under this Agreement. This Agreement may
only be amended or modified by a writing signed by both Parties.
By signing below, both Parties agree to the terms of this Agreement. Once
signed, any reproduction of this Agreement by any reliable means (for example,
photocopy or facsimile) is in all respects equivalent to an original unless
prohibited by local law.
IBM United Kingdom, Ltd. ClickSoftware Technologies, Ltd.
By: ________________________________ By: ___S/S ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Name: ***23 Name: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Title: ***24 Title: Chief Executive Officer
Date: July 1, 2004 Date: July 1, 2004
-------------------------
23 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
24 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
Page 19 of 20
ATTACHMENT A-1
CLICKSOFTWARE 'S CORE COMPETENCIES
The following are provided by ClickSoftware for integration into Joint
Solutions.
PRODUCTS:
SERVICE OPTIMIZATION SUITE TM
CLICKSCHEDULE TM
CLICKFORECAST TM
CLICKPLAN TM
CLICKANALYZE TM
CLICKFIX TM
SERVICES:
CONSULTING
IMPLEMENTATION
BUSINESS ANALYSIS
SUPPORT AND MAINTENANCE
SERVICE OPTIMIZATION REVIEW
COST BENEFIT ANALYSIS
GEOSPATIAL ANALYSIS
Page 20 of 20
ATTACHMENT A-2
IBM'S CORE COMPETENCIES
IBM provides the following for integration into Joint Solutions.
PROGRAMS: Lotus Notes, Tivoli Management Software, Middleware Software (i.e.
Webshpere Everyplace Suite, MQ Series)
MACHINES: PC Company Devices (e.g. Thinkpad) and Servers (e.g. AS/400)
NON IBM HARDWARE: To be determined on a case by case basis.
SERVICES: IBM mobile and wireless e-business services consisting of Consulting,
Systems Integration, Logistics Support and Delivery, Migration Services, Help
Desk, Outsourcing Services, Web Hosting Services, Site Services.
Page 21 of 20
EXHIBIT A TO CLICKSOFTWARE/IBM TEAMING AGREEMENT
--------------------------------------------------------------------------------
SAMPLE PARTICIPATION AGREEMENT BY IBM AND CLICKSOFTWARE AFFILIATES
IBM Lead Company Name: IBM United Kingdom Ltd.
ClickSoftware Lead Company Name: ClickSoftware Technologies Ltd.
Teaming Agreement Reference Number:
This Participation Agreement acknowledges our acceptance of the terms of the
ClickSoftware/IBM Teaming Agreement identified above (called the "Agreement")
and incorporates its terms.
This Participation Agreement, the Agreement and its associated supplemental
contract documents are the complete agreement regarding business transactions
between us related to its subject matter, and replace any prior oral or written
communications between us regarding such business transactions.
By signing below, both of us agree to the terms of this Participation Agreement
and the Agreement. Once signed, 1) unless prohibited by applicable law or
specified otherwise, any reproduction of this Participation Agreement, the
Agreement or its associated supplemental contract documents made by reliable
means (for example, photocopy or facsimile) is considered an original and 2) all
business transactions we engage in under the Agreement are subject to it.
Agreed to: Agreed to:
ClickSoftware Company name: IBM Company name:
By__________________________________ By__________________________________
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Date: Date:
CLickSoftware Company address: IBM Company address:
--------------------------------------------------------------------------------
After signing, please return a copy of this Acceptance Document to the "IBM
Company address" shown above.
--------------------------------------------------------------------------------
Page 22 of 20
