Exhibit 10.19
REQUISITE TECHNOLOGY, INC.
CONTENT CONVERSION SERVICES AGREEMENT
Effective Date: December ___ , 1998
This Content Conversion Services Agreement (the "Services Agreement") is
made and entered into as of the Effective Date by and between Requisite
Technology, Inc., a Delaware corporation with offices at 0000 Xxxxx Xxxx Xxxxxx,
Xxxxx 000X, Xxxxxxx, Xxxxxxxx 00000 ("Requisite"), and SciQuest a North Carolina
corporation with offices at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000
("SciQuest").
Recitals
A. Requisite is in the business of creating and delivering electronic
catalog search engines and electronic catalog authoring software, providing
services related to the development, enhancement or publishing of product
information in electronic formats and acting as an electronic catalog provider
by gathering and compiling product information within certain industries,
organizing that product information in a formal manner and providing finding
technology to enable end users to utilize the catalog information.
B. SciQuest is in the business of making a marketplace of aggregated
demand and providing for the sourcing, purchase, and virtual distribution of
laboratory equipment, supplies, and services for scientists and their support.
C. Requisite and SciQuest desire to enter into a certain Product
Information Title Distribution Agreement and, in connection with that agreement,
enter into an agreement whereby Requisite will perform of even date herewith
certain services regarding the creation and conversion of SciQuest's Product
Information to Requisite's electronic catalog format and SciQuest's Net.Commerce
electronic format or another mutually acceptable format as determined by
SciQuest, as well as other services as may be defined from time-to-time.
Now, Therefore, in consideration of the foregoing premises and the
covenants contained herein, the parties hereby agree as follows:
Agreement
1. Definitions. In this Services Agreement the following words and
expressions shall have the meaning set forth below.
(a) "Content Services" means content conversion services whereby
Requisite will convert product information from electronic or print sources
into Requisite's electronic catalog format or any other mutually acceptable
electronic catalog format that will be billed on a per-item basis or per
the attached pricing on the attached Task Orders. Such Content Services
shall be considered as performed under the definition of "work made for
hire", as such term is defined in 17 U.S.C. (S) 101, the copyright of which
shall be owned solely, completely and exclusively by SciQuest. If any of
the aforementioned are considered to be work not included in the categories
of work covered by the "work made for hire" definition contained in 17
U.S.C. (S) 101, such work shall be owned solely by SciQuest and Requisite
hereby assigns and agrees to assign to SciQuest all right, title and
interest in and to such work.
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(b) "SciQuest Product Information" means the supplier data, supplier
product information, product categories, SciQuest Creative Materials, and
Updates to such information whether in electronic or paper form, or
contained in a Requisite-managed XML data store regarding all scientific
products and services available for sourcing purposes and for purchase
through SciQuest and SciQuest' affiliates and/or subsidiaries.
(c) "Deliverables" means the specific materials, devices, products or
other deliverables that are provided by Requisite to SciQuest as a result
of performing Services and that are specified in the Task Orders.
(d) "IP Rights" means the rights of recognized intellectual property
such as patents and patent applications, copyrights, trademarks, trade
secrets, industrial designs, know how, design flows, methodologies and any
and all other legal rights protecting intangible proprietary information.
(e) "Requisite Technology" means Requisite's proprietary information
and materials relating to electronic catalog systems, including electronic
catalog formats, electronic product catalog design tools and search engines
and related software tools, computer programs, documentation, computer
languages, methods, methodologies, algorithms and product catalogs and
other databases.
(f) "Services" means the services including any Content Services
described in the Task Orders Provided by Requisite or any subsidiary or
subcontractor or consultant to Requisite.
(g) "Task Orders" means the description of the Services and
Deliverables to be provided hereunder from time to time, which may include
single or multiple Task Orders.
2. Services.
(a) Task Orders. Requisite will provide to SciQuest the Services that
are described in the mutually approved initial Task Orders attached hereto
as Exhibit A, and any subsequent Task Orders agreed to in writing by both
parties under the terms and conditions of this Services Agreement. Such
Task Orders may be amended or modified by supplementary work orders agreed
to by both parties hereto and attached to the Task Orders, and thereafter
the Services shall be deemed to include the services described in such
supplementary task orders.
(b) Manner of Performance. Requisite will provide such resources and
utilize such employees and/or design consultants, as it deems necessary to
perform the Services. The manner and means used by Requisite to perform the
Services desired by SciQuest are in the sole discretion and control of
Requisite. All work shall be performed at Requisite's facilities unless
otherwise mutually agreed. Requisite shall use commercially reasonable
efforts to meet the schedules and time of performance for the Services as
set forth in the Task Orders. In the event that Requisite seeks to engage
the assistance of any third party consultant with respect to the Services,
such consultant shall be subject to Requisite's standard terms for
retention of consultants, which shall include agreements satisfactory to
SciQuest regarding the confidentiality of SciQuest's proprietary and
confidential information and assignment of certain IP Rights to SciQuest.
(c) SciQuest Assistance. SciQuest and Requisite agree to cooperate in
good faith to achieve completion of the Services in a timely and
professional manner. SciQuest understands and agrees that Requisite's
provision of the Services may depend on completion of
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certain SciQuest tasks or adherence to SciQuest schedules within SciQuest's
control; consequently, the schedule for completion of the Services or any
portion thereof may require adjustments or changes in the event such
SciQuest tasks or schedules change or are modified or are not completed as
anticipated. Requisite shall bear no liability or otherwise be responsible
for delays in the provision of Services or any portion thereof occasioned
by SciQuest's failure to timely complete a SciQuest task or adhere to a
SciQuest schedule.
3. Products and Deliverables.
(a) Deliverables. The Task Orders attached hereto have been prepared,
and any subsequent Task Orders will be prepared, jointly by both parties
considering SciQuest's specifications and Requisite's capabilities and
prior obligations. Each Task Order will accurately reflect the
specifications for the Services and the Deliverable(s) (the
"Specifications"), or, if provided in a Task Order, the acceptance criteria
applicable to the Deliverable(s) (the "Acceptance Criteria"). In
performing the Services, Requisite shall use commercially reasonable
efforts to design, develop and/or make for SciQuest the Deliverables
specified in the Task Orders. Requisite shall use commercially reasonable
efforts in order to ensure that the Deliverables meet the Specifications,
if any, set forth in the Task Orders for such Deliverables.
(b) Acceptance Testing. Requisite will notify SciQuest in writing
when each such Deliverable is available for testing, and SciQuest will
perform or have performed such tests under normal circumstances
substantially in accordance with the Specifications or Acceptance Criteria,
if any. If SciQuest fails to deliver a report to Requisite containing a
detailed description of any nonconformity between the Deliverable as
delivered and the Specifications and/or Acceptance Criteria for such
Deliverable in the Task Orders (a "Deficiency") within twenty (20) business
days after delivery of any Deliverable to SciQuest (such period shall be
referred to as the "Acceptance Period"), such Deliverable shall be deemed
accepted.
(c) Remedy of Deficiencies. With respect to any Deliverable
containing a Deficiency, SciQuest's sole recourse and Requisite's sole
obligation shall be the prompt modification of such Deliverable in order to
conform such Deliverable in all material respects to the applicable
Specifications, provided that such Deficiency is not due to a defect,
contradiction, inconsistency or other flaw in the Specifications requested
by SciQuest or any other material supplied by SciQuest. Requisite agrees to
modify, at its sole expense, the Deliverable in order to remedy any
Deficiencies promptly after receipt of a timely deficiency notice from
SciQuest, or within such longer period as the parties may agree. After
delivery of such modified Deliverable to SciQuest, SciQuest shall have
fifteen (15) business days to review or retest the Deliverable (testing to
be performed as set forth in Section 3(b)). By the day of completion of
such review or re-testing period, SciQuest may either: (i) deliver a
Deficiency report to Requisite, and modification and re-testing of the
Deliverable shall recommence; or (ii) as SciQuest's sole remedy, return the
Deliverable to Requisite and the applicable Task Order shall be deemed
terminated. Failure of SciQuest to do any of the foregoing, shall be deemed
an acceptance.
(d) No Implied Licenses. Except as expressly provided under this
Services Agreement, neither party is providing or licensing to the other
party any existing technology or proprietary property, or any IP Rights
thereto, including any software, product catalogs or other Requisite or
SciQuest products. Neither party may acquire licenses under such products
or technology other than under the terms of a separate software license
agreement or subscription agreement.
4. Term of Agreement. This Services Agreement commences on the Effective
Date and shall continue for the period during which the Product Information
Title Distribution
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Agreement executed by the parties hereto and of even date herewith (the
"Distribution Agreement") remains in effect, including any renewal periods of
the Distribution Agreement; provided, however, that upon expiration or
termination of the Distribution Agreement, this Services Agreement shall remain
in force with respect to any outstanding Task Orders until completion and
acceptance or termination of all Services pursuant to such Task Orders. This
Services Agreement may be earlier terminated as provided in Section 8 below.
5. Compensation.
(a) Services Fees and Expenses. For the Services and Deliverables
provided by Requisite, SciQuest agrees to pay Requisite the fees set forth
in the Fee Schedule of the Task Orders attached hereto plus any applicable
sales or use taxes or other charges as discussed in Section 5(c). SciQuest
also shall reimburse Requisite for actual, reasonable travel and out-of-
pocket expenses incurred for any Services that must be performed away from
Requisite facilities (subject to SciQuest's prior approval).
(b) Milestone Payments. In performance of the Services, the Task
Orders and any supplements thereto may provide for certain milestone
events, achievement of which by Requisite will trigger the obligation by
SciQuest to pay the applicable Milestone Payment as listed in the Payment
Schedule. Upon achievement of the Milestone, Requisite will provide to
SciQuest a statement in a form satisfactory to SciQuest showing achievement
of the milestone and an invoice for the amount of the applicable Milestone
Payment in accordance with the Task Orders.
(c) Taxes. The amounts payable to Requisite set forth in the Payment
Schedule are exclusive of any sales or use or other taxes or governmental
charges. SciQuest shall be responsible for payment of all such taxes or
charges except for any taxes based solely on Requisite's net income or
Requisite's employees. If SciQuest is required to pay any taxes based on
this Section 5(c), then SciQuest shall pay such taxes with no reduction or
offset in the amounts payable to Requisite hereunder.
(d) Invoices and Payments. Requisite shall invoice SciQuest for fees
and expenses owed under a Task Order. All invoices shall be due and payable
30 days from the invoice date; provided, however, that no amounts shall be
due or payable to Requisite for any Deliverable until and unless such
Deliverable has been accepted or deemed accepted hereunder by SciQuest.
Overdue amounts that are not subject to good faith dispute by SciQuest
shall accrue interest at the rate of the lesser of one and one half percent
(1.5 %) per month or the highest interest rate legally permissible by law.
6. Intellectual Property Rights. In providing the Services, Requisite
will exercise and utilize certain of its IP Rights. Except as otherwise set
forth herein, neither this Services Agreement, nor the provision of Services
hereunder, shall give either Requisite or SciQuest any ownership interest in or
rights to the IP Rights of the other party. All IP Rights that are owned or
controlled by a party at the commencement of this Services Agreement shall
remain under the ownership or control of such party throughout the term of this
Services Agreement and thereafter.
7. Limited Warranties and Exceptions.
(a) By Requisite. Requisite warrants the following to SciQuest:
(i) The Services provided hereunder will be performed in a
professional manner consistent with industry-recognized quality of
service performance;
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(ii) The Services Agreement has been duly authorized, executed
and delivered by Requisite; Requisite has the full power and authority
to enter into the Services Agreement and perform its obligations and is
free to enter into the Services Agreement; the Services Agreement
constitutes a valid and binding obligation of Requisite, enforceable in
accordance with its terms; the making of the Services Agreement by
Requisite does not violate any agreement, right or obligation existing
between Requisite and any other person, firm or corporation;
(iii) With respect to Requisite's IP Rights, no consents of any
third parties need be obtained for Requisite to enter into the Services
Agreement or perform the Services, or any such consents have been
obtained as of the Effective Date;
(iv) The Deliverables, in the form delivered to SciQuest
hereunder, and any Requisite-owned IP Rights incorporated therein,
shall be free of all liens and encumbrances and there will be no
claims, demands or actions pending or, to the best of Requisite's
knowledge, threatened with respect thereto;
(b) By SciQuest. SciQuest warrants the following to Requisite:
(i) The Services Agreement has been duly authorized, executed
and delivered by SciQuest; SciQuest has the full power and authority to
enter into the Services Agreement and perform its obligations and is
free to enter into the Services Agreement; the Services Agreement
constitutes a valid and binding obligation of SciQuest, enforceable in
accordance with its terms; the making of the Services Agreement by
SciQuest does not violate any agreement, right or obligation existing
between SciQuest and any other person, firm or corporation;
(ii) With respect to the SciQuest Product Information provided to
Requisite, no consents of any third parties need be obtained for
SciQuest to enter into the Services Agreement, or any such consents
have been obtained as of the Effective Date; and
(iii)
(c) Disclaimers. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH
ARE EXPRESSLY DISCLAIMED.
8. Termination.
(a) Termination for Breach. This Services Agreement may be terminated
by either party upon thirty (30) days prior written notice if the other
party materially breaches or fails to perform any material term hereof and
the breaching party fails to cure such breach within the 30-day notice
period. The foregoing thirty (30) day cure period shall apply to any
failure of SciQuest to timely pay fees and charges due hereunder, which
uncured breach shall be a material default of this Services Agreement.
(b) Other Termination. If either Requisite or SciQuest files a
petition in bankruptcy or is adjudged a bankrupt, or if a petition in
bankruptcy is filed against either party, or if either party becomes
insolvent, or makes an assignment for the benefit of creditors, or if
either party discontinues its business, or if a receiver is appointed for
either party's business who is not discharged within sixty (60) days, such
event shall constitute a material breach of this Services
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Agreement by such party. In the event of bankruptcy proceeding commenced
with respect to Requisite, and this agreement is not otherwise terminated,
to the extent permitted by law, SciQuest may suspend all further
performance of this Services Agreement, except for payment for Services and
products delivered and accepted, until Requisite assumes this Services
Agreement and provides adequate assurance of performance thereof or rejects
this Services Agreement pursuant to Section 365 of the Bankruptcy Code or
any similar or successor provision. Any such suspension of further
performance by SciQuest pending Requisite's assumption or rejection will
not affect SciQuest' rights to pursue or enforce any of its rights under
this Services Agreement.
(c) Effects of Termination. Each party's obligations under Sections
6, 8(c), 9, 10, 11 and 13 of the Services Agreement shall survive
termination or expiration of the Services Agreement. Within thirty (30)
days of termination of this Services Agreement for any reason, Requisite
shall submit to SciQuest an itemized invoice for any fees or expenses
accrued and unpaid under this Services Agreement prior to the date of such
termination. Termination of this Services Agreement pursuant to this
Section will not preclude or otherwise adversely affect any rights either
party may have under the terms of this Services Agreement or at law or
equity.
9. Indemnification.
(a) By Requisite. Subject to the provisions of Section 9(c),
Requisite agrees, at its expense, to defend SciQuest, its divisions,
affiliates and subsidiaries, and its officers, directors and employees
("SciQuest Indemnitees"), from and against all third party claims, suits
and proceedings brought against the SciQuest Indemnitees, and will pay all
final judgments awarded or settlements including reasonable attorney's fees
entered into on such claim, proceeding or suit ("Claims"), arising out of
or resulting from (i) any material breach of the terms, representations and
warranties of this Agreement; (ii) any injuries suffered by Requisite
employees except for injuries caused by negligence or intentional harm of
SciQuest or its employees or agents; and (iii) a Claim that the
Deliverables or Services provided by Requisite to SciQuest, infringe any
copyright, trade secret, duly issued United States patent or other IP
Right. Requisite shall not be obligated to defend or be liable for Claims
if the infringement claim arises out of or results from: (x) compliance
with SciQuest' specifications or requirements, to the extent such
infringement could not reasonably be avoided without failing to satisfy
such SciQuest's specifications or requirements, (y) additions or
modifications by SciQuest or any third party to the Deliverables in a
manner to become infringing, or (z) a combination of the Deliverables
and/or Services provided by Requisite under this Services Agreement with
other products or items developed or made by third parties if such
infringement could have been avoided either by the use of the Deliverables
and/or Services with commercially acceptable non-infringing products or
items, or by not making or composing such combination of the products or
items. Should any Deliverable or Service become or in Requisite's opinion
be likely to become, the subject of any such suit or action for
infringement, Requisite shall, as soon as reasonably possible after notice
of such suit or action, at Requisite's option and expense, procure for
SciQuest the right to continue using such Deliverable or Service or replace
or modify such Deliverable or Service so that it becomes non-infringing;
and (iv) a claim for breach of warranties set forth in Section 7(a)(ii) and
7(a)(iii).
(b) By SciQuest. Subject to the provisions of Section 9(c), SciQuest
agrees, at its expense, to defend Requisite, its divisions, affiliates and
subsidiaries, and its officers, directors and employees ("Requisite
Indemnitees"), from and against all third party claims, suits and
proceedings brought against the Requisite Indemnitees, and will pay all
final judgments awarded or settlements including reasonable attorney's fees
entered into on such claim,
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proceeding or suit ("Claims"), arising out of or resulting from (i) any
material breach of the terms, representations and warranties of this
Agreement; (ii) any injuries suffered by SciQuest employees, except for
injuries caused by negligence or intentional harm of Requisite or its
employees or agents, or (iii) a Claim that the use by the Requisite
Indemnitees of the SciQuest Product Information or any modification of the
Deliverables by SciQuest infringes any third party United States copyright,
trade secret, duly issued United States patent, or other IP Right that, but
for SciQuest' modification of the Deliverable would not infringe such third
party rights.
(c) Indemnification Procedure. The indemnifying party's
indemnification obligations under this Section 9 are conditioned upon the
indemnified party: (i) giving prompt notice of the claim or action; (ii)
granting sole control of the defense or settlement of the claim or action
to the indemnifying party (except that the indemnified party's prior
written approval will be required for any settlement that reasonably can be
expected to require a material affirmative obligation of, result in any
ongoing material liability to or materially prejudice or detrimentally
impact the indemnified party in any way); and (iii) providing reasonable
cooperation and, at the indemnifying party's request and expense,
assistance in the defense or settlement of the claim or action.
(d) THE FOREGOING STATES SCIQUEST'S AND REQUISITE'S SOLE AND EXCLUSIVE
REMEDIES WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY
RIGHTS OF ANY KIND.
10. Limitations on Liability.
EXCEPT FOR EACH PARTY'S LIABILITY EXPRESSLY ASSUMED UNDER SECTION 9 ABOVE,
IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS SERVICES AGREEMENT FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, OR
LOST PROFITS OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT NEGLIGENCE,
STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. Neither party's total liability under this Services
Agreement to the other shall exceed the total amount actually paid by SciQuest
hereunder; provided, however, that there shall be no limit on either party's
liability under the infringement indemnification provisions set forth in Section
9 above.
11. Confidentiality and Non-Use.
(a) Confidential Information. By virtue of this Services Agreement,
each party hereto may disclose to the other party information that is
confidential and otherwise proprietary. Subject to the exceptions listed
below, a party's "Confidential Information" means information disclosed by
such party to the other party under this Agreement, including any trade
secrets of such party and other information about such party's business,
technology or products that is not generally known in the industry and
which derives independent economic value, actual or potential, from not
being generally known to the public or to persons who can derive economic
value from its disclosure or use, and which is either clearly marked or
otherwise clearly designated as "confidential" or the equivalent or is
disclosed under circumstances such that a reasonable person would expect
such information to be held in confidence, and with respect to SciQuest,
shall include all third party supplier data provided to Requisite
hereunder. However, a party's Confidential Information shall not include
any information that the party asserting such exception proves by clear and
convincing evidence that: (i) is or becomes a part of the public domain
through no act or omission of the receiving party; or (ii) was in the
receiving party's
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lawful possession prior to the disclosure; or (iii) is independently
developed by the receiving party by employees or agents without access
to the disclosing party's Confidential Information; or (iv) is
lawfully disclosed to the receiving party by a third party without
restriction on disclosure. The Confidential Information of a party is
and shall remain the property of such party, notwithstanding any
permissible disclosure of such information under this Services
Agreement.
(b) Confidentiality Obligations. Except for trade secrets which are
defined under applicable law and shall remain confidential, each party
agrees, for the term of this Services Agreement and five (5) years
after its expiration or termination, (i) to hold the other party's
Confidential Information in strict confidence, (ii) not to disclose
such Confidential Information to third parties not authorized by the
disclosing party to receive such Confidential Information, and (iii)
not to use such Confidential Information for any purpose except as
expressly permitted hereunder. Each party agrees to take reasonable
steps to protect the other party's Confidential Information to ensure
that such Confidential Information is not disclosed, distributed or
used in violation of the provisions of this Services Agreement. The
foregoing prohibition on disclosure of Confidential Information shall
not apply to the extent certain Confidential Information is required
to be disclosed by the receiving party as a matter of law or by order
of a court, provided that the receiving party uses reasonable efforts
to provide the disclosing party with prior notice of such obligation
to disclose and reasonably assists in obtaining a protective order
therefor.
(c) Disclosure to Consultants. Each party may disclose Confidential
Information to third party consultants or contractors who have a need
to access such Confidential Information in connection with such
party's performance of services pursuant to this Services Agreement
subject to the restrictions under this Services Agreement; provided,
however, that this provision shall not be construed to prohibit the
disclosure of this Agreement by either party as may be reasonably
required in connection with lending and capital-raising transactions
undertaken by such party. Each party shall ensure that any third party
consultants or contractors that receive access to the Confidential
Information shall execute a non-disclosure agreement that preserves
the confidentiality and proprietary aspects of the Confidential
Information to the same extent as that required under this Services
Agreement.
(d) Return of Confidential Information. Upon termination of this
Agreement, Confidential Information of each party shall be returned to
the owner of the Confidential Information or destroyed.
12. Independent Contractors. Requisite shall perform the Services as an
independent contractor, and nothing contained in this Services Agreement shall
be construed to create or imply a joint venture, partnership, principal-agent or
employment relationship between the parties. Neither party shall take any
action or permit any action to be taken on its behalf that purports to be done
in the name of or on behalf of the other party and shall have no power or
authority to bind the other party to assume or create any obligation or
responsibility express or implied on the other party's behalf or in its name,
nor shall such party represent to any one that it has such power or authority.
13. Dispute Resolution.
(a) The parties shall attempt in good faith to resolve any dispute
arising under this agreement informally according to the following
procedure. Upon written request of either party identifying a dispute to be
resolved, each party will designate an executive officer
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with the responsibility and authority to resolve the dispute. These
officers shall meet within fifteen (15) days after the request to
identify the scope of the dispute and the information needed to
discuss and attempt to resolve such dispute. These officers shall then
gather relevant information regarding the dispute and shall meet to
discuss the issue and to negotiate in good faith to resolve the issue.
(b) In the event the parties are unable to resolve the dispute within
thirty (30) days after the first meeting of the designated officers a
specified above (or such longer time as the parties agree), then the
dispute may, upon written agreement of the parties, be resolved by
binding arbitration under the terms of this Section. The arbitration
shall be in accordance with the then existing commercial arbitration
rules of the American Arbitration Association, as modified hereunder.
The arbitration shall be conducted by three arbitrators, each of whom
shall be an expert in the subject matter of the dispute and not
associated with either party. Each party shall have the right to
select one of the arbitrators, and the two selected arbitrators shall
select the third. The decision of the arbitrators shall be binding
upon the parties, and judgment in accordance with that decision may be
entered in any court having jurisdiction thereof.
(c) Nothing in this Section shall restrict the right o either party
to apply to a court of competent jurisdiction for emergency equitable
relief prior to or pending final determination of a claim by arbitration in
accordance with this Section. The prevailing party in any arbitration or
judicial action brought to enforce or interpret this Services Agreement or
for relief for its breach shall be entitled to recover its costs (including
its share of arbitration fees) and its reasonable attorney(s)' fees therein
incurred.
14. Miscellaneous.
(a) Assignment. Neither party shall assign, delegate, or subcontract
any portion of its rights, duties, or obligations under this Services
Agreement without the prior written consent of the other party, which
consent will not be unreasonably withheld or delayed, and any attempt to do
so shall be void, provided, however, that Requisite may subcontract the
performance of services to be provided hereunder to its subsidiaries and
such subsidiaries shall be bound by the terms and conditions of this
Service Agreement. Either party may assign or transfer this Services
Agreement in connection with (i) the sale of all or substantially all of
the assets of such party or (ii) a merger, consolidation or other action or
event that effectively causes a change in control of such party.
(b) Notices. All notices, statements and/or payments to be given to
the parties hereunder shall be addressed to the parties at the addresses
set forth on the signature page below or at such other address as the
parties shall designate in writing from time to time. All notices shall be
in writing and shall either be served by personal delivery (to an officer
of each company), certified or registered mail return receipt requested,
facsimile (if confirmed by certified or registered mail return receipt
requested or personal delivery of a hard copy), all charges prepaid. Except
as otherwise provided herein, such notices shall be deemed given when
delivered, except that notices of change of address shall be effective only
after the actual receipt thereof. Copies of all notices to SciQuest should
be sent to the attention of the SciQuest representative designated in
writing by SciQuest. All notices to Requisite should be sent Attention:
Contracts Administration.
(c) Severability. If any term or provision of this Services Agreement
is determined to be invalid or unenforceable for any reason, it shall be
adjusted rather than voided, if possible, to achieve the intent of the
parties to extent possible. In any event, all other terms and provisions
shall be deemed valid and enforceable to the maximum extent possible.
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(d) Force Majeure. Neither party shall be liable for any loss,
damage, or penalty arising from delay due to causes beyond its reasonable
control (a "Force Majeure Event"). In the event that a Force Majeure Event
continues for a period of thirty (30) days, either party shall have the
right to terminate this Services Agreement upon thirty (30) days prior
written notice to the other party. Both parties agree to use commercially
reasonable efforts to minimize the extent of any delay caused by a Force
Majeure Event.
(e) Export Administration. If any Deliverable or custom software is
exported for use outside the United States, both parties agrees to comply
fully with all relevant regulations of the U.S. Department of Commerce and
with the U.S. Export Administration Act to assure that such are not
exported in violation of U.S. law and to comply fully with any other
regulations or laws relating to such export or import into another country.
The exporting party shall be responsible for any duties, customs charges or
other taxes or fees relating to such export.
(f) Complete Agreement. The parties acknowledge that they have read,
understand and agree to be bound by this Services Agreement and that the
Services Agreement is the complete and exclusive statement of the agreement
between the parties regarding the subject matter hereof, which supersedes
all proposals, oral or written, and all other communications between the
parties relating to such subject matter.
(g) Modification. Any terms and conditions of any purchase order or
other instrument issued by SciQuest or Requisite in connection with the
Services Agreement that are in addition to or inconsistent with the terms
and conditions of this Services Agreement shall be of no force or effect.
This Services Agreement may be modified only by a written instrument duly
executed by an authorized representative of Requisite and SciQuest.
(h) No Waiver. The failure of a party to enforce any provision of
this Services Agreement shall not constitute a waiver of such provision or
the right of such party to enforce such provision or any other provision.
(i) Governing Law and Jurisdiction. All questions concerning the
validity and operation of this Agreement and performance of the
obligations imposed upon the parties hereunder shall be governed by the
substantive laws of the State of Colorado.
(j) Counterparts. This Agreement may be executed in counterparts or
by facsimile, each of which shall be an original, and all of which
together shall constitute one and the same agreement.
(k) This Services Agreement shall be binding upon the parties solely
after its mutual execution by both parties.
[Rest of Document Intentionally Left Blank]
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In Witness Whereof, the parties hereto have executed this Services
Agreement as of the Effective Date.
SciQuest, Inc. Requisite Technology, Inc.
Signature: Signature:
------------------------------- -----------------------
Name: Name:
------------------------------------ ----------------------------
Title: Title:
----------------------------------- ---------------------------
Date: Date:
------------------------------------ ----------------------------
Address: 0000 Xxxxxxx Xxxxxxxxx Xxxxx 000 4888 Pearl Xxxx Xxxxxx Xxxxx 000X
Xxxxxx, XX 00000 Xxxxxxx, XX 00000
11
Exhibit A
COMMITTED TASK ORDERS
The purpose of Task Orders 1 through 5 of Exhibit A is to take product
information provided to SciQuest from multiple suppliers in both electronic and
paper formats and convert this content into SciQuest Product Information that
meets SciQuest's requirements for publishing this information to its electronic
commerce site and to Requisite's Product Information Titles for Requisite's ESV
partner applications.
Task Order 1
Task Order Name: . Content Conversion: Paper Catalog Content Conversion - "Rich Content"
-----------------------------------------------------------------------------------------------------------
Dependencies: . SciQuest delivery of paper catalogs and determination of products requiring
Rich Content" format according to following schedule:
. 33% of Products by December 28, 1998
. 33% of Products by January 13, 1999
. 33% of Products by January 20, 1999
-----------------------------------------------------------------------------------------------------------
Deliverables: . Populated database of product information in "Rich Content" format
-----------------------------------------------------------------------------------------------------------
Estimated Schedule: . Project start date - December14, 1998: Project completion date - February
15, 1999
-----------------------------------------------------------------------------------------------------------
Scope of Work: . 50,000 items converted from paper catalog source material
. Catalog page scanning, clean-up, and CD creation
. Graphic image capture/association in GIF/TIFF/JPEG format
. Line item conversion, field population, cleansing, and parametric attribute
extraction
. BugsEye genus category schema creation where applicable
-----------------------------------------------------------------------------------------------------------
Fee Schedule: . (See Attached) - Paper Catalog Content Conversion Price Schedule - "Rich
Content"
. Services will be invoiced monthly
-----------------------------------------------------------------------------------------------------------
Rebilled Expenses:
-----------------------------------------------------------------------------------------------------------
Estimated Cost: . [++++++++]
-----------------------------------------------------------------------------------------------------------
12
This task order is hereby incorporated as part of the Services Agreement between
Requisite Technology, Inc. and SciQuest dated December ___, 1998.
SciQuest. Requisite Technology, Inc.
Signature: Signature:
-------------------------- --------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
Date: Date:
------------------------------- -------------------------------
13
Exhibit A
COMMITTED TASK ORDERS
Task Order 2
Task Order Name: . Content Conversion: Paper Catalog Content Conversion - "Basic Content"
-----------------------------------------------------------------------------------------------------------
Dependencies: . SciQuest delivery of paper catalogs and determination of products requiring
"Basic Content" according to following schedule
. 33% of Products by December 28, 1998
. 33% of Products by January 13, 1999
. 33% of Products by January 20, 1999
-----------------------------------------------------------------------------------------------------------
Deliverables: . Populated database of product information in "Basic Content" format
-----------------------------------------------------------------------------------------------------------
Estimated Schedule: . Project start date - December 14, 1998; Project completion date - February
15, 1999
-----------------------------------------------------------------------------------------------------------
Scope of Work: . 50,000 items converted from paper catalog source material
. Catalog page scanning, clean-up, and CD creation
. Line item conversion, field population, and cleansing for "Basic Content"
. BugsEye genus category schema creation where applicable
-----------------------------------------------------------------------------------------------------------
Fee Schedule: . (See Attached) - Paper Catalog Content Conversion Price Schedule - "Basic
Content" and Upgrades to "Rich Content"
. Services will be invoiced monthly
-----------------------------------------------------------------------------------------------------------
Rebilled Expenses:
-----------------------------------------------------------------------------------------------------------
Estimated Cost: . [++++++++]
-----------------------------------------------------------------------------------------------------------
14
This task order is hereby incorporated as part of the Services Agreement between
Requisite Technology, Inc. and SciQuest dated December ___, 1998.
SciQuest. Requisite Technology, Inc.
Signature: Signature:
------------------------ ------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
15
Exhibit A
COMMITTED TASK ORDERS
Task Order 3
Task Order Name: . Content Conversion: Electronic File Content Conversion - "Basic Content"
-----------------------------------------------------------------------------------------------------------
Dependencies: . SciQuest and SciQuest's suppliers delivery of properly formatted electronic
files of products requiring "Basic Content" according to following schedule:
. 50% of Products by December 28, 1998
. 50% of Products by January 20, 1999
-----------------------------------------------------------------------------------------------------------
Deliverables: . Populated database of product information in "Basic Content" format
-----------------------------------------------------------------------------------------------------------
Estimated Schedule: . Project start date - December 14, 1998; Project completion date - February
15, 1999
-----------------------------------------------------------------------------------------------------------
Scope of Work: . 100,000 items converted from supplier submitted electronic files
. Line item conversion, field population, and cleansing for "Basic Content"
. BugsEye genus category schema creation where applicable
-----------------------------------------------------------------------------------------------------------
Fee Schedule: . (See Attached) - Electronic File Content Conversion Price Schedule - "Basic
Content" and Upgrades to "Rich Content"
. Services will be invoiced monthly
-----------------------------------------------------------------------------------------------------------
Rebilled Expenses:
-----------------------------------------------------------------------------------------------------------
Estimated Cost: . [++++++++]
-----------------------------------------------------------------------------------------------------------
This task order is hereby incorporated as part of the Services Agreement between
Requisite Technology, Inc. and SciQuest dated December ___, 1998.
SciQuest. Requisite Technology, Inc.
Signature: Signature:
------------------------- -------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
Date: Date:
------------------------------ ------------------------------
16
Exhibit A
COMMITTED TASK ORDERS
Task Order 4
Task Order Name: . Content Conversion: Electronic File and Paper Content Conversion - "Basic
---
Content"
-----------------------------------------------------------------------------------------------------------
Dependencies: . SciQuest and SciQuest's suppliers delivery of properly formatted electronic
files and paper catalogs of products requiring "Basic Content according to the
following schedule:
. A minimum of 25,000 items received by December 28, 1998
. A minimum of 25,000 items received weekly beginning January 4, 1999
-----------------------------------------------------------------------------------------------------------
Deliverables: . Populated database of product information in "Basic Content" format
-----------------------------------------------------------------------------------------------------------
Estimated Schedule: . Project start date - December 14, 1998; Project completion date - March
26, 1999
-----------------------------------------------------------------------------------------------------------
Scope of Work: . 300,000 items converted from supplier submitted paper catalogs and
electronic files of product information
. Requisite production of 25,000 items weekly commencing week of January 11,
1999
. Line item conversion, field population, and cleansing for "Basic Content"
. BugsEye genus category schema creation where applicable
-----------------------------------------------------------------------------------------------------------
Fee Schedule: . (See Attached) - Electronic File Content Conversion/Augmentation from Paper
Catalogs Price Schedule - "Basic Content" and Upgrades to "Rich Content"
. Services will be invoiced monthly
-----------------------------------------------------------------------------------------------------------
Rebilled Expenses:
-----------------------------------------------------------------------------------------------------------
Estimated Cost: . [++++++++]
-----------------------------------------------------------------------------------------------------------
17
This task order is hereby incorporated as part of the Services Agreement between
Requisite Technology, Inc. and SciQuest dated December ___, 1998.
SciQuest. Requisite Technology, Inc.
Signature: Signature:
------------------------- -------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
Date: Date:
------------------------------ ------------------------------
18
Exhibit A
COMMITTED TASK ORDERS
Task Order 5
Task Order Name: . Miscellaneous Requisite Services for SciQuest Content Conversion Tasks 1, 2,
3, 4
-----------------------------------------------------------------------------------------------------------
Dependencies:
-----------------------------------------------------------------------------------------------------------
Deliverables:
-----------------------------------------------------------------------------------------------------------
Estimated Schedule:
-----------------------------------------------------------------------------------------------------------
Scope of Work:
-----------------------------------------------------------------------------------------------------------
Fee Schedule: . SciQuest Supplier FTP Data Collection Site
. Initial Set-up Fee $ 5,000
. Monthly Maintenance Fee $ 800
. Schema Consulting $150.00 per hour
. Preparation of export files & data loading assistance $100.00 per hour
. Services will be invoiced monthly
-----------------------------------------------------------------------------------------------------------
Rebilled Expenses:
-----------------------------------------------------------------------------------------------------------
Estimated Cost:
-----------------------------------------------------------------------------------------------------------
This task order is hereby incorporated as part of the Services Agreement between
Requisite Technology, Inc. and SciQuest dated December ___, 1998.
SciQuest, Inc. Requisite Technology, Inc.
Signature: Signature:
------------------------- -------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
Date: Date:
------------------------------ ------------------------------
19
Paper Catalog Content Conversion Price Schedule - "Rich Content"
Description of Service Rich Content
-----------------------------------------------------------------------------------------
Content extraction from paper catalog to create [++++++++]
textual data in Spreadsheet form suitable for
import
-----------------------------------------------------------------------------------------
Image Capture/Association from Paper catalogs in
GIF/TIFF/JPEG format
. Black & White line drawing
. Black & White half-tone picture [++++++++]
. Full color picture [++++++++]
[++++++++]
-----------------------------------------------------------------------------------------
Conversion, cleansing, and parametric attribute Per line item/per catalog
population into database using Data
Transformation techniques per volume table
below:
1 to 1,000 items [++++++++]
1,001 to 5,000 items [++++++++]
5,001 to 10,000 items [++++++++]
10,001 to 25,000 items [++++++++]
25,001 and above [++++++++]
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Notes--
1- "Rich Content" is fully described and enriched product information. Part
numbers, manufacturer names, long and short product descriptions and associated
graphical content are organized into database fields. Short product
descriptions are cleansed and/or constructed from available information
provided. Available product-level attributes are extracted and populated into a
genus class category structure.
20
Paper Catalog or Electronic File Content Conversion Price Schedule - "Basic
--
Content" and Upgrades to "Rich Content"
Description of Service Basic Content UPGRADE TO
RICH CONTENT
------------------------------------------------------------------------------------------------------
Content extraction from paper catalog to [++++++++] [++++++++]
create textual data in Spreadsheet form
suitable for import
------------------------------------------------------------------------------------------------------
Image Capture/Association from Paper
catalogs in GIF/TIFF/JPEG format
. Black & White line drawing
. Black & White half-tone picture [++++++++] [++++++++]
. Full color picture [++++++++] [++++++++]
[++++++++] [++++++++]
[++++++++]
------------------------------------------------------------------------------------------------------
Conversion, cleansing, and parametric Per line item/per catalog Per line item/per catalog
attribute population into database using
Data Transformation techniques per volume
table below:
1 to 1,000 items [++++++++] [++++++++]
1,001 to 5,000 items [++++++++] [++++++++]
5,001 to 10,000 items [++++++++] [++++++++]
10,001 to 25,000 items [++++++++] [++++++++]
25,001 and above [++++++++] [++++++++]
Parametric attribute capture and population
applicable only to "Upgrade to Rich
Content" column
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
Notes--
1- "Rich Content" is fully described and enriched product information. Part
numbers, manufacturer names, long and short product descriptions and associated
graphical content are organized into database fields. Short product
descriptions are cleansed and/or constructed from available information
provided. Available product-level attributes are extracted and populated into a
genus class category structure.
2- "Basic Content" is product information that delivers at a minimum, the
required fields as specified in the SciQuest Product Information Content Table,
attached hereto as Exhibit B from available information and includes the BugsEye
genus classification for such product information.
21
3- "Upgrade to Rich Content" is the augmentation of "Basic Content" to "Rich
Content" through use of additional information available through paper catalog
sources.
22
