STRATEGIC ALLIANCE AGREEMENT
THIS STRATEGIC ALLIANCE AGREEMENT is made as of May, 4 1999 (the
"Effective Date"), by and between XXXXXXX.XXX INC. ("Alliance Partner"), a
Washington corporation with its principal place of business at 000 Xxxxx
Xxxxxx Xxxxx, Xxxxx 000 X, Xxxxxxx, Xxxxxxxxxx 00000, and HNC SOFTWARE INC.
("HNC"), a Delaware corporation with its principal place of business at 0000
Xxxxxxxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000.
RECITALS
A. ALLIANCE PARTNER is a commerce service provider company specializing in
providing solutions to thousands of merchants who want to do business on the
Internet. HNC is a software development company specializing in the
application of neural network technology and other techniques of
computational intelligence to advanced decision software solutions.
B. The Parties desire to establish a worldwide strategic alliance for
the cooperative development, marketing and exploitation of products and
services utilizing the technological capabilities and distribution channels
of ALLIANCE PARTNER and HNC.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the Parties agree as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement will have the
following meanings:
"AFFILIATE" means, with respect to ALLIANCE PARTNER or HNC, any other Person
which, whether directly or indirectly, is controlled by or is under common
control with ALLIANCE PARTNER or HNC, as the case may be.
"AGREEMENT" means this Strategic Alliance Agreement.
"CONTROL" means the ownership, directly or indirectly, of more than fifty
percent (50%) of the voting shares of an entity, or otherwise the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of an entity.
"DISCLOSING PARTY" means either Party, when disclosing information to the
other Party.
"JOINT PROJECT" means any development Project that is jointly conceived by
the Parties, as evidenced by a written agreement signed by both of the
parties, to develop a new technology.
"PARTIES" means ALLIANCE PARTNER and HNC.
"PARTY" means either of ALLIANCE PARTNER or HNC.
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CONFIDENTIAL AND PROPRIETARY INFORMATION
"PERSON" means an individual, partnership, joint venture, association,
corporation, limited liability company, trust or any other legal entity.
"PROJECT" means each joint development, joint marketing, joint licensing or
other undertaking of the Parties (including Joint Project) with respect to a
discrete product or service, or group of related products or services, during
the term of this Agreement, evidenced by a writing signed by both Parties and
specifically providing that it is to be covered by this Agreement.
"PROJECT AGREEMENT" means a written agreement or a project addendum to this
Agreement, executed by an authorized representative of each Party, and which
specifies the relative obligations of the Parties as to the planning,
development, marketing and implementation tasks required to commercially
exploit a Project, as well as the respective rights of each Party in and to
the underlying intellectual property and resulting proceeds.
"HNC SOFTWARE" means the HNC Software identified in any Project Agreement
addendum attached hereto, and includes all updates, documentation,
enhancements and new versions of the HNC Software released during the term of
the Project Addendum.
"ALLIANCE PARTNER SOFTWARE" means the ALLIANCE PARTNER Software identified
in any Project Agreement addendum attached hereto, and includes all updates,
documentation, enhancements and new versions of the ALLIANCE PARTNER Software
released during the term of the Project Addendum.
"RECEIVING PARTY" means either Party, when receiving information from the
other Party.
"SERVICE BUREAU" means the HNC facility in which transactional data (to be
defined) from ALLIANCE PARTNER or its customers is processed in order to
utilize HNC software or other HNC technologies.
2. SCOPE AND PURPOSE OF AGREEMENT. The purpose of this Agreement is to
establish a non-exclusive, worldwide strategic alliance in which the Parties
will cooperate in the development, marketing and exploitation of products
utilizing HNC's software and technological expertise and ALLIANCE PARTNER's
software and technological expertise. Because the Parties acknowledge that it
would be impractical to specify in advance the precise terms and conditions
applicable to any or all of the particular products or services to be
developed and marketed over the course of this alliance, the Parties have
instead established the following general terms, which will serve as the
legal and procedural foundation for discussing and reaching agreement on the
projects to be undertaken by them. Accordingly, during the term of this
Agreement, each Project will be subject to the terms and conditions of this
Agreement, except to the extent that a written agreement regarding that
Project, signed by an authorized representative of each Party, specifically
identifies and expressly supersedes any given term of this Agreement. If
there are any conflicts between the terms of this Agreement and the Project
Agreement, the Project Agreement shall prevail.
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3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 All information disclosed by a Disclosing Party to a Receiving
Party during the term of this Agreement will be deemed to be confidential
unless specifically designated as nonconfidential at the time of disclosure.
Notwithstanding the foregoing, information will not be deemed confidential if
it (i) was known to the Receiving Party, and such information was acquired
through proper methods, prior to its receipt from the Disclosing Party, as
evidenced by written records of the Receiving Party; (ii) is now or (through
no act or failure on the part of the Receiving Party) later becomes generally
known in the information services industry through no breach of this
Agreement by the Receiving Party; (iii) is supplied to the Receiving Party
by a third party that the Receiving Party in good faith believes is free to
make that disclosure without restriction on disclosure; (iv) is disclosed by
the Disclosing Party to a third party generally, without restriction on
disclosure; or (v) is independently developed by the Receiving Party without
use of any confidential information provided by the Disclosing Party.
3.2 Except as provided in this subsection 3.2, the Receiving Party
agrees that it will (i) treat all confidential information received from the
Disclosing Party with at least the same degree of care which it applies to
its own proprietary information, (ii) not divulge any confidential
information, directly or indirectly, to any other Person, for any purpose
whatsoever, and (iii) not make use of or copy such confidential information,
except for the purposes permitted under this Agreement or an applicable
Project Agreement. Such confidential information may be disclosed only to
those employees, consultants, and permitted subcontractors of the Receiving
Party who require access to such information for the purpose for which it was
disclosed and who have nondisclosure obligations to the Receiving Party. In
each case of permitted disclosure, each employee, consultant, or permitted
subcontractor will be given only that limited portion of the confidential
information that is necessary for the fulfillment of that Person's
responsibilities consistent with this Agreement or the applicable Project
Agreement. The Receiving Party shall promptly report to the Disclosing Party
any actual or suspected violation of this subsection and shall take further
steps as may reasonably be requested by the Disclosing Party to prevent or
remedy any such violation.
3.3 Each Party agrees that the injury from any disclosure or
unauthorized use of the other's confidential information will be of such a
character that it cannot be adequately compensated by monetary damages.
Accordingly, if a Receiving Party breaches this Agreement, the Disclosing
Party may, in addition to pursuing its other remedies under the law, seek to
obtain from any court having jurisdiction over the subject matter and the
Parties an injunction restraining any violation, without (i) having to prove
the inadequacy of monetary damages or (ii) posting bond or other security.
3.4 If the Receiving Party becomes legally compelled (by
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any confidential
information, the Receiving Party will provide the Disclosing Party with prompt
notice of that request(s) so that it may seek appropriate protective order or
other appropriate remedy and/or waive the Receiving Party's compliance with
the provisions of this Agreement. If the Disclosing Party waives compliance
with the applicable provisions of this Agreement or fails
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to obtain a protective order or other remedy, the Receiving Party agrees to
furnish only that portion of the confidential information that it is legally
required to furnish in the reasonable opinion of its counsel.
3.5 As soon as any item of confidential information ceases to be
necessary or useful to the Receiving Party for the purpose for which it was
disclosed, the Disclosing Party may, subject to any rights that the Receiving
Party may have acquired in or to that information pursuant to a Project
Agreement, request its return or destruction, and the Receiving Party will
promptly return to the Disclosing Party or destroy all documents or other
media consisting of that confidential information, without retaining any
copies, and will confirm in writing that it has done so.
3.6 Notwithstanding any provision to the contrary contained in this
Agreement, it is understood and agreed by the parties that:
any HNC products and technology existing as of the Effective Date
or as of the date of the applicable Project Agreement Effective
Date and used in connection with HNC's provision of services and
performance hereunder and/or incorporated into any items developed
with respect to any Project undertaken hereunder (the "HNC
Technology") is, and will remain, the sole and exclusive property
of HNC, and, except as otherwise specifically provided in this
Agreement and/or any Project Agreement, no license, right, title,
interest in and/or such HNC Technology is granted to ALLIANCE
PARTNER by virtue of this Agreement and/or any Project Agreement
and/or HNC's performance hereunder. As such, HNC will continue
to have the unfettered right to utilize the HNC Technology (and
any portion or portions thereof) in any manner as determined by
HNC in its sole and absolute discretion.
any ALLIANCE PARTNER products and technology existing as of the
Effective Date or as of the date of the applicable Project
Agreement Effective Date and used in connection with ALLIANCE
PARTNER's provision of services and performance hereunder and/or
incorporated into any items developed with respect to any Project
undertaken hereunder (the "ALLIANCE PARTNER Technology") is, and
will remain, the sole and exclusive property of ALLIANCE PARTNER,
and, except as otherwise specifically provided in this Agreement
and/or any Project Agreement, no license, right, title, interest in
and/or to such ALLIANCE PARTNER Technology is granted to HNC by
virtue of this Agreement and/or any Project Agreement and/or
ALLIANCE PARTNER's performance hereunder. As such, ALLIANCE PARTNER
will continue to have the unfettered right to utilize the ALLIANCE
PARTNER Technology (and any portion or portions thereof) in any
manner as determined by ALLIANCE PARTNER in its sole and absolute
discretion.
Unless otherwise specifically provided in a Project Agreement attached to
this Agreement:
HNC will retain all right, title and interest to any modifications
made to the HNC Technology, derivative works derived from the HNC
Technology, and/or incorporating the HNC Technology pursuant to
this Agreement and/or any Project Agreement (including, without
limitation, any source code for said modifications and the right to
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own all patents and copyrights relating thereto) including, but not
limited to, modifications to enable the HNC Technology to function on a
different operating system.
ALLIANCE PARTNER will retain all right, title and interest to any
modifications made to the ALLIANCE PARTNER Technology, derivative works
derived from the ALLIANCE PARTNER Technology, and/or incorporating the
ALLIANCE PARTNER Technology pursuant to this Agreement and/or any Project
Agreement (including, without limitation, any source code for said
modifications and the right to own all patents and copyrights relating
thereto) including, but not limited to, modifications to enable the
ALLIANCE PARTNER Technology to function on a different operating system.
3.7 Each party agrees to indemnify, defend and hold harmless the other
and its directors, officers, employees, and agents from and against any and
all liabilities, actions, claims, demands, liens, losses, damages, judgments,
and expenses, including reasonable attorney's fees, that may arise from the
unauthorized disclosure of confidential information by it to third parties or
its unauthorized use of the confidential information.
3.8 This section 3. hereby replaces the Mutual Confidentiality and
Non-Disclosure Agreement date March 11, 1999 between the parties.
4. NONSOLICITATION. Neither Party will, during the term of this Agreement
and for six (6) months after its termination or expiration, without the prior
written consent of the other Party, for its own account or jointly with
another, directly or indirectly, for or on behalf of any Person, as
principal, agent or otherwise, solicit or induce, or in any manner attempt to
solicit or induce, any Person employed or engaged by the other Party
(including, without limitation, as an employee or independent contractor or
agent known to be exclusively engaged by the other party), to leave that
Person's employment or engagement. Notwithstanding the foregoing, this
Section 4 shall not preclude either Party from hiring any Person employed by
the other Party where such Person independently responds to an employment
opportunity broadcast by the Party to the general public (e.g., via
newspaper, magazine, broadcast, Internet, etc.) and has not otherwise been in
direct contact with the Party as a key person during the course of
performance of this Agreement.
5. PROJECT AGREEMENTS
5.1 JOINT PROJECTS
(A) Each time the Parties conceive of a potential new product or
technology that either party would like to develop jointly, a Joint
Project, they will first work in good faith to negotiate, prepare
and execute a Project Agreement, as discussed in Section 5.2, as
soon as reasonably practicable.
(B) If the Parties are unable to agree upon the terms of a
Project Agreement governing the Joint Project, each Party may proceed
to develop and market the underlying products and services
independently, provided no proprietary and/or Confidential
Information of the other party is used with respect to such
independent undertaking.
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5.2 PRODUCTS OR SERVICES
(A) During the term of this Agreement, both parties shall
introduce new products or services to the other as they become
available for consideration by the other party for internal use or
distribution to either party's customer base, as applicable. If both
parties can negotiate in good faith acceptable terms and conditions
to provide such products or services to the other party, then a
Project Agreement (in a form substantially similar to the form
attached hereto as Exhibit A) memorializing both parties agreement
shall be prepared and executed by both parties, taking into
consideration the terms and conditions of this Agreement.
5.3 PRESERVATION OF INTELLECTUAL PROPERTY RIGHTS. Nothing in
subsection 5.1B permitting the independent development and marketing of
information, goods or services that would otherwise be subject to this
Agreement is intended to permit either Party to violate the provisions of this
Agreement, or without limitation, the provisions of subsections 3.1 and 3.2.
5.4 STANDARD CLAUSES FOR PROJECT AGREEMENTS. In addition to the terms
of this Agreement, the additional standard clauses in Exhibit B attached
hereto will be included in each Project Agreement, with only those changes
that are necessary to reflect the form of the underlying transaction while
preserving the intent of such terms. Every Project Agreement that involves
the licensing of software by one Party to the other may include, as an
ancillary agreement, a source code escrow agreement, the terms and conditions
of which will be negotiated in good faith by the Parties on a case-by-case
basis.
6. SERVICE BUREAU SERVICES
(A) ACCESS TO SERVICE BUREAU. HNC may offer from time to time
certain products and technologies via its Service Bureau that
ALLIANCE PARTNER may desire to access. Although neither party has
any obligation to do so, both parties will periodically discuss
opportunities for such services.
(B) RESELL OR REDISTRIBUTION. It is understood by HNC that
ALLIANCE PARTNER may resell or redistribute access to the Service
Bureau services to its customers.
(C) The additional terms and conditions with respect to accessing
the Service Bureau services, reselling or redistribution of such
services to third parties or customers as well as pricing for such
services shall be separately negotiated and documented in a Project
Agreement as provided for under section 5.2 above.
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7. GRANT OF LICENSES FOR MARKETING PURPOSES
7.1 ALLIANCE PARTNER grants to HNC a non-exclusive, non-transferable,
worldwide, paid-up, unlimited, royalty free, right and license without the
right to sub-license, to use, reproduce and distribute (internally) copies of
the ALLIANCE PARTNER Software for use in internal and customer non-billable
external training, proof-of-concept activities, presentations, prototyping,
benchmarking, ALLIANCE PARTNER Software evaluations, demonstrations and other
marketing and services activities.
7.2 HNC grants to ALLIANCE PARTNER a non-exclusive, non-transferable,
worldwide, paid-up, unlimited, royalty free, right and license, without the
right to sub-license, to use, reproduce and distribute (internally) copies of
the HNC Software for use in internal and customer non-billable external
training, proof-of-concept activities, presentations, prototyping,
benchmarking, HNC Software evaluations, demonstrations and other marketing
and services activities.
7.3 The Receiving Party shall not alter or remove any patent,
copyright, trademark and/or other notices contained on or in copies of the
software received under this Agreement. The existence of any such copyright
notice shall be construed as an admission or deemed to create a presumption,
that publishing of such material has occurred.
8. ARBITRATION
(a) AGREEMENT TO SUBMIT. Except as provided below, the parties
agree to submit all disputes between them relating to this Agreement and its
formation, breach, performance, interpretation and application to arbitration
as follows:
(b) NOTICE. Each party will provide written notice to the other
party of any dispute within six (6) months of the date when the dispute first
arises or occurs. If a party fails to provide such notice, recovery on the
dispute will be barred.
(c) ARBITRATION RULES. Arbitration will be conducted at a neutral
location reasonably selected by the arbitrator, pursuant to the rules of the
American Arbitration Association, as modified herein. Within fifteen (15)
days after the date that written notice is provided to the other party, each
party will appoint a single arbitrator, and within an additional fifteen (15)
days thereafter, the two parties so chosen will appoint a third arbitrator.
All arbitrators will have knowledge of and experience regarding the computer
industry. The arbitration hearing will be commenced within sixty (60) days
after the appointment of all three arbitrators and the hearing will be
completed and an award rendered in writing within sixty (60) days after the
commencement of the hearing, unless the arbitrators determine that
exceptional circumstances justify delay. Each party will have the right to
take up to four (4) evidentiary depositions, and exchange one set of
document production requests and one set of not more than twenty-five
interrogatories, without subparts, prior to the hearing. The arbitration
award will be final and binding and may be enforced in any court of
competent jurisdiction.
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(d) COSTS AND ATTORNEYS' FEES. Unless the arbitrators find that
exceptional circumstances require otherwise, the arbitrators will grant the
prevailing party in arbitration its costs of arbitration and reasonable
attorneys' fees as part of the arbitration award.
(e) EXCEPTIONS. Neither party will be required to arbitrate any
dispute relating to actual or threatened (i) unauthorized disclosure of
confidential information or (ii) violation of its proprietary rights. Either
party will be entitled to receive in any court of competent jurisdiction
injunctive, preliminary or other equitable relief, in addition to damages,
including court costs and fees of attorneys and other professionals, to
remedy any actual or threatened violation of its rights with respect to which
arbitration is not required hereunder.
9. END-USER LICENSES/RESPONSIBILITY FOR PRODUCTS
9.1 Except as otherwise agreed, HNC or its agents will be responsible
for providing and executing end-user license agreements for the HNC Software
with the end users; and ALLIANCE PARTNER or its agents will be responsible
for providing and executing end-user license agreements for the ALLIANCE
PARTNER Software with the end-users.
9.2 Except as otherwise set forth in a Project Agreement, HNC is
responsible for the promotion, sale, installation and maintenance of the HNC
Software, and ALLIANCE PARTNER is responsible for the promotion, sale,
installation and maintenance of the ALLIANCE PARTNER Software.
9.3 If a third party complains or brings a complaint against HNC in
relation to the ALLIANCE PARTNER Software, or against ALLIANCE PARTNER in
relation to the HNC Software, ALLIANCE PARTNER and HNC, respectively will (i)
resolve the complaint; and (ii) defend the claim at its expense and pay any
damages awarded, provided it is given prompt notice and full control of the
defense.
10. IP INDEMNIFICATION
10.1 HNC will defend and indemnify ALLIANCE PARTNER against any
third-party claim alleging that the HNC Software infringes any patent, or
copyright, trade secret or other proprietary right, provided that HNC is
given prompt notice of the claim and full control of the defense. HNC will
not be obligated to defend or indemnify ALLIANCE PARTNER if such claim is
based on a modification of the HNC Software by ALLIANCE PARTNER, or a
combination of the HNC Software with other products not supplied by HNC nor
authorized by HNC to be combined with its software, if the HNC Software would
not have infringed absent such modification or combination.
10.2 ALLIANCE PARTNER will defend and indemnify HNC against any
third-party claim alleging that the ALLIANCE PARTNER Software infringes any
patent, or copyright, trade secret or other proprietary right, provided that
ALLIANCE PARTNER is given prompt notice of the claim and full control of the
defense. ALLIANCE PARTNER will not be obligated to defend or indemnify HNC if
such claim is based on a modification of the ALLIANCE PARTNER
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Software by HNC, or a combination of the ALLIANCE PARTNER Software with other
products not supplied by ALLIANCE PARTNER nor authorized by ALLIANCE PARTNER
to be combined with its software, if the ALLIANCE PARTNER Software would not
have infringed absent such modification or combination.
11. MEDIA RELEASES
Except for any announcement intended solely for internal distribution or any
disclosure required by legal, accounting, or regulatory requirements beyond
the reasonable control of the parties, all media releases, public
announcements, or public disclosure for general distribution (including, but
not limited to, promotional or marketing material) by either party, or by
their employees or agents, relating to this Agreement and/or any Project
Agreement or its subject matter, other than general statements that a
contractual relationship exists between the parties, will be coordinated with
and approved in writing by the other party prior to its release.
12. TERM AND TERMINATION
12.1 TERMINATION WITHOUT CAUSE. Unless earlier terminated by either
Party pursuant to Section 12.2 below, this Agreement will be in effect for an
initial term of one (1) year from the Effective Date, at which time this
Agreement will automatically renew for one or more subsequent renewal terms
of one (1) year each on each anniversary of the Effective Date unless either
Party sends thirty (30) days written notice to the other Party of its intent
not to renew this Agreement prior to the end of (i) the initial term or (ii)
any subsequent renewal term.
12.2 TERMINATION FOR CAUSE. Either Party may terminate this Agreement
upon the occurrence of any of the following events:
(A) Breach by the other Party of any of the material terms,
obligations, covenants, representations or warranties under this Agreement
(including, but not limited to, those contained in Section 3 of this
Agreement) and the failure of the breaching Party to cure that breach within
thirty (30) days from receipt of written notice from the non-breaching Party
identifying the breach; provided that if the breach is not reasonably capable
of cure within a thirty (30) day period, the breaching party may avoid
termination under this subsection 12.2 by promptly commencing efforts to cure
the breach and diligently prosecuting the cure to completion as soon as
practicable, but not later than one hundred and twenty (120) days from the
receipt of notice from the non-breaching Party; or
(B) The other Party is declared insolvent or bankrupt, or makes an
assignment of substantially all of its assets for the benefit of creditors,
or a receiver is appointed or any proceeding is demanded by, for or against
the other Party under any provision of the federal Bankruptcy Act or any
amendment to that Act (provided, however, that termination will not be
permitted if such a proceeding is brought against a Party and is terminated by
that Party within thirty (30) days); or
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(C) The other Party attempts to assign this Agreement within the
meaning of subsection 14.1 without obtaining the prior written consent of the
terminating Party.
12.3 CONTINUING VALIDITY OF PROJECT AGREEMENTS. Notwithstanding anything
in this Agreement that may be construed to the contrary, the termination or
expiration of this Agreement will not rescind or otherwise terminate any
Project Agreement then in effect, unless a Project Agreement specifically
provides that it will terminate upon termination or expiration of this
Agreement.
12.4 SURVIVAL. The obligations of sections 3, 4, 8, 10, 12, 13, and 14
will continue in effect after termination of this Agreement.
12.5 RETURN OF MATERIALS. Upon any termination of the license granted
under this Agreement, each Party shall return to the other Party (or at the
option of the other Party, destroy and certify in writing that it has
destroyed) the original and all copies of the ALLIANCE PARTNER Software or
HNC Software or other materials provided during the term of this Agreement to
each other, as the case may be, including partial copies if any.
12.6 EFFECT OF TERMINATION. Unless otherwise provided for in a Project
Agreement, all fees due or payable as of the termination date shall become
immediately due.
13. LIMITATION OF LIABILITY
NEITHER HNC NOR ALLIANCE PARTNER SHALL BE LIABLE TO THE OTHER FOR INDIRECT,
CONSEQUENTIAL, SPECIAL OR ECONOMIC DAMAGES OF ANY TYPE, INCLUDING LOST
PROFITS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES.
THE REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. EXCEPT FOR THE
INDEMNIFICATION PROVISIONS OF SECTIONS 3 AND 10 OF THIS AGREEMENT, IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES UNDER A PARTICULAR PROJECT
AGREEMENT IN EXCESS OF THE FEES ACTUALLY PAID WITH RESPECT TO THE AFFECTED
PROJECT AGREEMENT.
14. PROVISIONS OF GENERAL APPLICABILITY
14.1 ASSIGNMENT. Neither Party may assign or subcontract its rights or
obligations under this Agreement without the prior written consent of the
other Party. Such consent will not be unreasonably withheld.
14.2 NON-WAIVER. Neither Party will, by the lapse of time, and without
giving written notice, be deemed to have waived any of its rights under this
Agreement. No waiver of a breach of this Agreement will constitute a waiver
of any prior or subsequent breach of this Agreement or of any similar or
related provision in any Project Agreement.
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14.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the exhibits
attached hereto constitute the entire understanding of the Parties with
respect to the overall strategic alliance and the individual cooperative
ventures to be carried out by the Parties and supersedes all prior
communications regarding its subject matter, although the Parties understand
and agree that subsequent Project Agreements will provide further terms and
conditions applicable to particular Projects. This Agreement will not be more
strongly construed against either Party, regardless of who is more
responsible for its preparation. This Agreement may not be amended except by
a written agreement that acknowledges modification of this Agreement and
which is signed by authorized representatives of ALLIANCE PARTNER and HNC. No
Project Agreement will be construed as an amendment of this Agreement unless
the Parties' intent to amend this Agreement is clearly stated in such Project
Agreement.
14.4 NOTICES. Notices given under this Agreement must be in writing
and must be (i) served personally, or (ii) delivered by first class U.S.
mail, certified or registered, postage prepaid and addressed to the
addressees set forth below, or (iii) delivered by overnight courier service,
addressed to the addressees as set forth below. Notices will be deemed
received at the earlier of actual receipt in the case of personal service,
overnight courier, or U.S. Mail delivery. The Parties may change their
addresses by giving notice of such change to the other Party as provided in
this subsection.
If to ALLIANCE PARTNER:
Xx. Xxxx Xxxxxx
Executive Vice President, Finance and
General Counsel
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000 X
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to HNC: Xx. Xxxxxxx X. Xxxxxx, Vice President, Finance and
Administration; Chief Financial Officer
HNC Software Inc.
0000 Xxxxxxxxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
14.5 SEVERABILITY. If any part of this Agreement and or any Project
Agreement is found to be illegal or unenforceable, then that part will be
curtailed only to the extent necessary to make it, and the remainder of the
Agreement and or any Project Agreement, legal and enforceable.
14.6 APPLICABLE LAW. This Agreement and or any Project Agreement will
be governed solely by the internal laws of the State of California, without
regard to principles of conflicts of law.
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14.7 INDEPENDENT CONTRACTING PARTIES. Nothing in this Agreement creates
a joint venture, partnership, principal-agent or mutual agency relationship
between the Parties. No Party has any right or power under this Agreement to
create any obligation, expressed or implied, on behalf of the other Party. No
employee of a Party will be deemed to be an employee of the other Party by
virtue of this Agreement.
14.8 HEADINGS. The titles or captions used in this Agreement are for
convenience only and will not be used to construe or interpret any provision
hereof.
14.9 AUTHORITY. Each person signing below represents and warrants that
he or she has the necessary authority to bind the principal set forth below.
ALLIANCE PARTNER and HNC represent and warrant that they have the authority
to bind each of their Subsidiaries to this Agreement to the same extent as if
such Subsidiaries had executed this Agreement.
14.10 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which will be an original, with the same effect as if
the signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the Effective Date.
XXXXXXX.XXX INC., HNC SOFTWARE INC.,
A Washington corporation A Delaware corporation
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ---------------------------------
Print: Xxxx Xxxxxx Print: Xxxxxxx X. Xxxxxx
------------------------------ ------------------------------
Title: EVP Finance/Lead Counsel Title: CFO
------------------------------ ------------------------------
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EXHIBIT B
STANDARD CLAUSES FOR PROJECT AGREEMENTS
Potential provisions of any Project Agreement include, but are not limited to:
Mutual warranties regarding ownership of intellectual property utilized in
any Project and mutual indemnification regarding infringement claims; any
other specific ownership provisions.
ALLIANCE PARTNER and HNC standard disclaimers and releases regarding accuracy
of its data.
ALLIANCE PARTNER and HNC standard language regarding bi-lateral right to
terminate agreements based on changes in applicable law; any modifications
required due to changes in applicable law will be negotiated in good faith by
the parties.
Price/Fees (installation, modeling, on-going fees, travel related, and/or
other) and payment terms.
License terms, conditions and territory per product or service.
Sales, Marketing, Training and End User Support Obligations for both parties.
ALLIANCE PARTNER and HNC product development and support requirements.
Public announcements and trademarks requirements.
13
CONFIDENTIAL AND PROPRIETARY INFORMATION
EXHIBIT A
ADDENDUM NO. _____
PROJECT AGREEMENT
TO
STRATEGIC ALLIANCE AGREEMENT
BETWEEN
HNC SOFTWARE INC. AND _________________
This agreement addendum (the "Project Agreement") dated as of ______________
(the "Project Agreement Effective Date") modifies the Strategic Alliance
Agreement (the "Agreement") dated _______________ between the parties, HNC
Software Inc. ("HNC") and _________________ ("Alliance Partner") with respect
to additional services and products that HNC shall provide to Alliance Partner
as stated below.
Now, therefore, pursuant to Section 5.2 of the Agreement and in consideration
of the premises and the mutual covenants contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
[INSERT AGREED UPON TERMS AND CONDITIONS]
IN WITNESS WHEREOF, HNC and Alliance Partner have caused this Project
Agreement to be signed in duplicate and delivered by their duly authorized
representatives as of the Project Agreement Effective Date indicated above.
HNC Software Inc. _______________________________
a Delaware Corporation a _________________ corporation
By: By:
------------------------------- --------------------------------
Name: Name:
----------------------------- ------------------------------
Title: Title:
---------------------------- -----------------------------
14
CONFIDENTIAL AND PROPRIETARY INFORMATION