Exhibit 10.9
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
BT AGREEMENT NO. 658269
MARKETING AGREEMENT
DATED 1999
BETWEEN:
BRITISH TELECOMMUNICATIONS, PLC, a corporation organized under the laws of
England, having its registered office at 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
(hereinafter "BT"), and
COMMERCE ONE, INC., a corporation organized under the laws of California, having
a place of business at 0000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000
(hereinafter "C1")
WHEREAS the parties desire to enhance the marketing of the BT/C1 MarketSite
solution; and
WHEREAS each of C1 and BT desire to define their mutual rights and obligations
in connection with any joint marketing activities;
NOW THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1.0 TERM
This Agreement shall commence on the date of this Agreement ("the
Effective Date") and continue in full force and effect until the expiry
of the Initial Period under the MarketSite Licence granted by Commerce
One to BT of the same date as this Agreement or earlier termination of
Commerce One's undertaking under Clause 1.1.(b) of that Licence.
2.0 RESPONSIBILITIES AND OBLIGATIONS OF BT AND COMMERCE ONE
2.1 ADDITIONAL OBLIGATIONS: In addition to the responsibilities
set forth in this Agreement, the parties agree to the
additional responsibilities set out in the MarketSite Licence,
the Amended and Restated Trading Agreement, and the Governance
Agreement between the parties of even date herewith, including
the agreements contemplated therein.
2.2 MARKETING PACKAGE: BT will supply Marketing Packages for use
in marketing the service to BT customers, provided that C1
shall have the right to review those parts of the materials
supplied by BT in the Marketing Package that relate to
Commerce One other than in relation to prices.
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
CONFIDENTIAL
BT shall give C1 [*] business days prior written notice should
BT elect to change any of the materials in the MarketSite
Marketing Package that relates to C1 and will provide C1 with
a complete copy of the relevant part of the revised Marketing
Package at least ten (10) days prior to the effective date of
any changes. C1 shall have the right to review all changes to
the elements of the Marketing Package that relate to C1, and
to request, at C1's expense, any modifications that are
required.
2.3 Commerce One agrees to prominently display the BT brand when
BuySite customers connect to the BT MarketSite so far as this
is technically feasible and Commerce One agrees to use
reasonable endeavours to achieve such technical feasibility.
3.0 MARKETING AND SALES PROGRAMS
BT will contribute a minimum of [*] and Commerce One will allocate a
minimum of [*] in each case towards the initial marketing launch of the
C1 MarketSite Service for the development and execution of marketing
and sales programs for the financial year commencing 1st April 1999;
provided that if BT elects not to contribute at least [*] for such
purposes, then C1 shall have the option of terminating this Agreement
without penalty upon thirty (30) days prior written notice. Expenditure
of the marketing and sales program funds shall be as set forth in the
Marketing Plan to be agreed by the parties within [*] days of this
Agreement. If this is not agreed the parties will still be obliged to
make the above contributions for the purposes referred to above.
4.0 TERMINATION
4.1 Either party shall be entitled to terminate this Agreement immediately
on written notice to the other if the other party is in breach of any
of the terms of this Agreement and in the event of a breach capable of
being remedied, fails to remedy the breach within thirty (30) days of
receipt of notice of the breach in writing.
4.2 If Commerce One terminates this Agreement in accordance with Clause 3
or Clause 4.1 Commerce One's undertaking in Clause 1.1(b) and the
obligations of BT and Commerce One under Clause 1.1(d) of said
MarketSite Licence shall terminate automatically.
5.0 SEVERANCE
If any aspect of this Agreement is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Agreement. In such case this Agreement shall be construed and enforced
as if it did not contain such provision. The Parties shall negotiate in
good faith to modify and, or replace such provision with one that is
valid and legally enforceable. If the Parties cannot reach agreement on
a new provision which places the Parties in a position similar to the
commercial position which would have prevailed prior
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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to the modification or replacement being required, either Party may,
in its sole discretion, withdraw from the Agreement.
CONFIDENTIAL
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorised representatives as of the Effective Date.
BT . COMMERCE ONE, INC.
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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