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EXHIBIT 10.18
VITRIA CONTRACT 8511
DEVELOPMENT AND SERVICES AGREEMENT
This Development and Services Agreement is entered into between
Vitria
Technology, Inc., a Delaware corporation,
("Vitria") and CHILIN, LLC, a
California limited liability company,
("ChiLin") and shall become effective on
the Effective Date.
WHEREAS, Vitria desires that ChiLin develop certain Deliverables
that
shall be defined in separate Statements of
Work to be mutually agreed upon in
writing by the parties and subject to the
terms and conditions of this
Agreement;
WHEREAS, ChiLin desires to develop such Deliverables for Vitria
under
the terms and conditions of this
Agreement.
WHEREAS, Vitria desires to retain ChiLin for its experience and
abilities in connection with creating,
revising, updating or troubleshooting
relating to the Deliverables, and has
offered to engage ChiLin to render such
services (hereinafter the "Services") to
Vitria, which shall be specifically
described in Statements of Work as mutually
agreed by the parties and as
attached hereto; and
NOW THEREFORE, in consideration of the mutual covenants, terms
and
conditions hereinafter expressed, the
parties hereby agree as follows:
1.
DEFINITIONS
1.1
"Affiliate" means any corporate entity which, directly or
indirectly,
through one or more intermediaries,
controls or is controlled by, or is under
common control with, another corporate
entity.
1.2 "Change
Request" means a document detailing additional features,
enhancements or other modifications as set
forth in Section 2.2.
1.3
"Confidential Information means any business, marketing or
technical
information disclosed by Vitria or ChiLin
to the other in relation to this
Agreement, and identified in writing as
being confidential, proprietary or trade
secret in nature to, the disclosing party.
If disclosed orally, such information
must be identified at the time of
disclosure as confidential, proprietary, or
trade secret in nature and thereafter
summarized in writing, marked as
confidential, with the summary delivered to
the receiving party within 30 days
after disclosure. Notwithstanding the
foregoing, all Deliverables shall be the
Confidential Information of Vitria
regardless of the marking requirements.
1.4
"Deliverables" means those goods and Services developed or
performed by
ChiLin and provided to Vitria pursuant to a
Statement of Work.
1.5
"Dependencies" means are those conditions, goods or services
necessary
or precedent for the delivery of the
Deliverables as set forth in the Statement
of Work.
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VITRIA CONTRACT 8511
1.6
"Derivatives" means any translation, abridgement, revision,
transformation, adaptation, improvement, or
new material derived from any ChiLin
technology, tools, and components existing
in trade secret material, including
new material which may be protected by
copyright, patent and/or trade secret
that are contained, integrated and/or
embedded in the Deliverables.
1.7 "Development
Center" means the location(s) in Greater China where the
Services are to be performed.
1.8 "ChiLin
Fee" means those fees set forth in the Statement of Work.
1.9
"Documentation" means the user manuals and other related
materials,
including without limitation any training
materials, installation documentation
and documentation for the Software, in
whatever medium regarding the proper
installation and use of the Deliverables
described therein, and all updates, new
versions and any other modifications made
to such materials.
1.10 "Effective Date"
means the last date this Agreement is signed by both
parties.
1.11 "Export Laws"
means all laws, administrative regulations, and executive
orders of any applicable jurisdiction
relating to the control of imports and
exports of commodities and technical data,
including, without limitation, the
Export Administration Regulations of the
U.S. Department of Commerce, the
International Traffic in Arms Regulations
of the U.S. Department of State, and
the Enhanced Proliferation Control
Initiative.
1.12 "Object Code"
means the machine-readable computer code that (i) enables
the computer to execute a program, (ii) is
derived from the Source Code to the
product by a process generally referred to
as compiling and (iii) may be stored
in a variety of magnetic media or other
formats.
1.13 "Software" means
Object Code and Source Code of the Deliverables as set
forth in the Statement of Work which
include without limitation, any and all
enhancements, bug fixes, updates, new
versions, ports, localized versions and
other modifications made for such products
that are provided to Vitria pursuant
to the terms of this Agreement.
1.14 "Source Code"
means the underlying computer program which (i) comprises
a product, (ii) is readable by human beings
when displayed on a monitor or
printed on paper, regardless of the media
on which the product is stored, and
(iii) that must be translated by a process
generally known as compiling into
Object Code before the product can be
executed by a computer.
1.15 "Statement of
Work" means a document substantially in the form attached
as Exhibit A and signed by authorized
representatives of both parties under
which ChiLin agrees to perform Services for
Vitria.
1.16 "User Acceptance
Tests ("UATs") means tests run by Vitria to determine
that the Deliverables have met the
requirements in the Statement of Work,
including but not limited to running manual
spot tests and the product sample.
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VITRIA CONTRACT 8511
2.
SCOPE OF WORK
2.1 ChiLin
agrees to use commercially reasonable efforts to develop for
Vitria the Deliverables, and provide to Vitria the Services, in
accordance with the requirements and specifications set forth in
the
executed Statements of Work referencing this Agreement. The terms
of
each respective Statement of Work are intended to establish the
applicable requirements, specifications, schedules, outputs, and
other
services associated with the Deliverables and the Services. The
parties
also intend to discuss certain additional work efforts in the
future
and will mutually agree in writing on any such additional
Statements of
Work. The terms and conditions of this Agreement will govern
additional
Statements of Work. Although the parties agree to consider
additional
work efforts, there is no assurance that additional Statements of
Work
will be authorized or agreed upon.
2.2 Requested
Changes.
2.2.1 If
Vitria desires a variation to any Statement of Work, it
will
supply a Change Request to ChiLin. A Change Request must
specify in sufficient detail the change to be considered. If
Vitria supplies a Change Request, at ChiLin's cost, ChiLin
shall conduct an analysis of the impact of the request on the
price, schedule, Deliverables and/or Services of the relevant
Statement of Work and submit a written summary to Vitria for
approval. ChiLin reserves the right, for a significant work
effort associated in an impact analysis for a change request,
to charge Vitria on a time and materials basis, using the time
and materials services rates specified in the Statement of
Work to which the Change Request applies, or as otherwise
mutually agreed by Vitria and ChiLin. Any impact analysis work
to be charged to Vitria shall require prior approval from
Vitria; such approval shall not be unreasonably withheld. The
authority to authorize any impact analysis work must come, in
writing, from Vitria's VP of Customer Services and Engineering
Operations (or other designated executive officer), otherwise,
no such charges will be honored.
2.2.2 Once
the impact analysis of a Change Request has been
completed, it shall be submitted in writing to Vitria
management for approval. Change Requests shall only be acted
upon once they have been agreed and duly authorized in writing
by both ChiLin and Vitria. Neither party will have any
obligation to execute a Change Request.
2.3 The
parties will discuss progress made on the Deliverables and
issues
that may arise with respect to the Services during the status
meetings
as required under a Statement of Work. Either party will notify
the
other promptly upon learning of any event that may impact the
Deliverables or the Services.
3.
DEVELOPMENT, DELIVERY AND SERVICES
3.1 ChiLin
will use commercially reasonable efforts to develop and deliver
the Deliverables, and provide the Services, to Vitria in
accordance
with the applicable schedules set forth in the relevant Statement
of
Work; ChiLin acknowledges and agrees that time is of the essence
in
performance of it obligations hereunder provided, however, that
ChiLin
shall not be responsible for delays in the:
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VITRIA CONTRACT 8511
3.1.1
development or delivery of the Deliverables attributable to
time incurred as a result of defective Dependencies (as
defined in the applicable Statements of Work) to be delivered
by Vitria or a third party not in the control of ChiLin or
delays in the delivery of conforming Dependencies by Vitria or
a third party not in the control of ChiLin, or
3.1.2
development or delivery of the Deliverables or provision of
the Services attributable to circumstances beyond ChiLin's
reasonable control, including, without limitation, delays in
the delivery of materials by Vitria or a third party not in
the control of ChiLin. If any such delays occur, the delivery
schedule of the Deliverables and/or the Services, but not the
associated fees, shall be adjusted by a period equal to the
period of such delay. For purposes of this Section 3.1.2,
circumstances beyond ChiLin's control include, without
limitation, events such as earthquakes, wars, severe power
outages affecting the region where ChiLin is located, but does
not include failure of ChiLin's equipment, labor unrest,
illness or other similar circumstances.
3.2 ChiLin
shall designate in Statements of Work from time to time which
of
its employees or consultants are to provide the Services
thereunder.
ChiLin shall be entitled to change the persons designated to
provide
the Services in its reasonable discretion as a result of, (a)
termination of such person's employment or engagement with ChiLin
for
any reason, (b) such person's illness or death, or (c) such
person's
failure to perform the Services in a manner satisfactory to ChiLin.
If
Vitria is dissatisfied with the performance of any of ChiLin's
consultants or employees performing Services under this
Agreement,
ChiLin shall, within seven (7) calendar days of Vitria's written
notice
to ChiLin, replace such consultant or employee with a trained
and
skilled individual suitable to Vitria.
3.3 ChiLin may
make and retain in its possession a reasonable number of
copies of the Deliverables. Such copies shall remain the property
of
Vitria, except as provided in Section 10, and shall be used by
ChiLin
only for the purpose of enabling ChiLin to satisfy ChiLin 's
obligations under this Agreement.
4.
PROGRESS REPORTS
4.1 As
required under a Statement of Work, ChiLin agrees to provide
Vitria
with written progress reports showing the status of the
Deliverables
being developed hereunder, and to participate in other status
review
meetings with Vitria, at such times agreed upon by the parties.
Participation in such meetings may occur via teleconferencing.
Such
review meetings will be for the purpose of:
4.1.1
reviewing the progress of the development of the Deliverables
and the Services provided by ChiLin; and
4.1.2
formulating, if necessary, details of development activity in
the following weeks or details of the Services to be provided
in the future; and coordinating UAT, installation and training
schedules.
4.2 Additional
meetings will be held as reasonably requested by either
party.
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VITRIA CONTRACT 8511
5.
MAINTENANCE, INSTALLATION, TRAINING AND TECHNICAL SUPPORT
5.1 The
maintenance, installation, training, and/or other technical
support, if any, which ChiLin will perform in connection with
the
Deliverables (which include Software and Documentation) are as
set
forth in the Statements of Work.
5.2 At
ChiLin's written request, Vitria shall provide two FTE
resources,
for up to 12 months from the Effective Date, to work with ChiLin at
the
Development Center on product training, engineering process,
product
enhancements, product specifications, and related product
engineering
tasks. The costs associated with such employees during their work
with
ChiLin, including salary, travel, and expenses, shall be borne
by
ChiLin.
6.
PAYMENT
6.1 Vitria
shall pay to ChiLin the ChiLin Fee and other fees specified in,
and in accordance with, the payment schedule set forth in the
relevant
Statements of Work. The ChiLin Fee and such other fees shall be
full
payment for development of the Deliverables, provision of the
Services,
and all other agreed upon activities, Deliverables and Services
rendered under this Agreement, unless otherwise set forth herein or
in
a Statement of Work.
6.2 Unless
otherwise set forth in a Statement of Work, Vitria shall be
responsible for all travel expenses pre-approved by Vitria in
writing
incurred by ChiLin during the performance of services pursuant to
a
Statement of Work.
6.3 Vitria
shall be responsible for the payment of all taxes, duties and
licenses, including taxes paid or payable by ChiLin or which ChiLin
is
required to collect, in connection with the performance of this
Agreement, the delivery of the Deliverables, the provision of
the
Services, or arising from the use, operation or possession of
the
Deliverables or any part thereof, excluding any taxes based on
ChiLin's
income and any income, payroll or other withholding taxes. If
either
party is exempt from any taxes, the exempt party shall provide
the
other party with the necessary documentation required by the
taxing
authority to sustain such an exemption.
6.4 Payment of
all invoices shall be made by Vitria net 30 days following
the date Vitria's receipt of an undisputed invoice. Vitria shall
pay
all undisputed portions of such invoice net 30 days following
receipt.
6.5 All fees
shall be deemed overdue if, unless disputed, they remain
unpaid thirty (30) days after they become payable. All overdue
amounts
shall bear interest at the rate of one and one-half percent (1 -
1/2%)
per month or the maximum legal rate, whichever is lower. Vitria
shall
reimburse ChiLin for all reasonable costs incurred (including
without
limitation reasonable attorneys' fees) in collecting past due
amounts.
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VITRIA CONTRACT 8511
7.0
DELIVERABLES ACCEPTANCE
7.1 UAT of the
Deliverables (which include Software and Documentation)
shall commence on the appropriate delivery dates set forth in
the
relevant Statement of Work. UAT shall be conducted in accordance
with
the procedures, criteria, and timeframes set forth in such
Statement of
Work. If the Deliverables or any portion thereof are not
accepted
(Vitria's acceptance not to be unreasonably withheld, delayed
or
conditioned), ChiLin agrees to make (without any additional charge
to
Vitria) any necessary changes to the Deliverables to correct
such
errors or deviations as soon as commercially practicable
following
receipt of notice of such errors and deviations. If ChiLin
reasonably
believes that correction of such errors or deviations will take
longer
than ten (10) business days to complete and redeliver, ChiLin
shall
notify Vitria immediately, discuss the timing of the delay and
the
means necessary to correct it and propose, if applicable, alternate
or
interim solutions.
8.0 CHILIN
PERSONNEL
8.1 ChiLin
warrants that all personnel assigned to perform work under this
Agreement have entered into, or will enter into prior to
performing
such work, an agreement consistent with the provisions of this
Agreement.
9.0. OWNERSHIP
9.1 Vitria
shall own exclusively (i) all Vitria software and other
materials Vitria provides ChiLin pursuant to this Agreement, (ii)
any
and all changes or other modifications made by Vitria or ChiLin to
the
Vitria software or other Vitria materials, whether in Source Code
or
Object Code form (the "Vitria Modifications"), and (iii) all of
the
other development Deliverables, development notes and other
tangible
materials generated by Vitria or ChiLin in connection with any
development effort pursuant to this Agreement (the "ChiLin
Materials").
Except as warranted in Section 11 below, ChiLin expressly disclaims
any
authorship or ownership of the Vitria software, whether or not
resulting from the development efforts contemplated hereunder,
whether
in Source Code or Object Code form, or any proprietary rights
related
thereto, whether now known or hereunder recognized in any
jurisdiction
including but not limited to any copyrights or patent, trademark
or
trade secret rights thereto.
ChiLin hereby assigns, and shall assign when developed, to
Vitria
ownership
of all right, title and interest in and to the Deliverables,
Vitria Owned Modifications and Vitria Materials, as and when
cre
