<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 1, 1999
REGISTRATION NO. 333-76987
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 8
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
COMMERCE ONE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7372 68-0322810
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) Number)
</TABLE>
------------------
1600 RIVIERA AVENUE
WALNUT CREEK, CALIFORNIA 94596
(925) 941-6000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
------------------
MARK B. HOFFMAN
CHIEF EXECUTIVE OFFICER
1600 RIVIERA AVENUE
WALNUT CREEK, CALIFORNIA 94596
(925) 941-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------
COPIES TO:
DAVID J. SEGRE STEVEN M. SPURLOCK
Wilson Sonsini Goodrich & Rosati Gunderson Dettmer Stough
Professional Corporation Villeneuve Franklin & Hachigian, LLP
650 Page Mill Road 155 Constitution Drive
Palo Alto, California 94304 Menlo Park, California 94025
(650) 493-9300 (650) 321-2400
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. / /
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
The purpose of this Amendment No. 8 is solely to file certain exhibits to
the Registration Statement as set forth below as in Item 16(a) of Part II.
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- --------
<C> <S>
1.1** Form of Underwriting Agreement.
2.1** Agreement and Plan of Reorganization by and among the
Registrant, Blackhawk Acquisition Corporation, VEO Systems,
Inc., the Shareholders named therein, and U.S. Bank Trust,
N.A., dated November 25, 1998.
3.1** Restated Certificate of Incorporation of the Registrant to be
in effect after the closing of the offering made under this
Registration Statement.
3.2** Bylaws of the Registrant to be in effect after the closing of
the offering made under this Registration Statement.
4.1** Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between the Registrant and
each of its directors and officers.
10.2** Form of 1997 Incentive Stock Option Plan and form of
agreements thereunder.
10.3** Form of 1999 Employee Stock Purchase Plan and form of
agreements thereunder.
10.4** Amended and Restated 1995 Stock Option Plan and form of
agreement thereunder.
10.5** Form of 1999 Director Option Plan and form of agreements
thereunder.
10.6** VEO Systems, Inc. Option Plan and form of agreement
thereunder.
10.7 Master Software License and Services Agreement between the
Registrant and Nippon Telegraph and Telephone Corporation
dated April 16, 1999.
10.8 Governance Agreement between the Registrant and British
Telecommunications, plc., dated March 26, 1999.
10.9 Marketing Agreement between the Registrant and British
Telecommunications, plc., dated March 26, 1999.
10.10+ MarketSite License Agreement between the Registrant and
British Telecommunications, plc., dated March 25, 1999.
10.11 Amended and Restated Trading Agreement between the Registrant
and British Telecommunications, plc., dated March 25, 1999.
10.12 Marketing Agreement between the Registrant and MCI Systemhouse
Corporation dated August 4, 1998.
10.13 Agreement between the Registrant and PricewaterhouseCoopers
LLP dated September 2, 1998.
10.14+ OEM Software License and Distribution Agreement between the
Registrant and PeopleSoft, Inc., dated June 5, 1999.
10.15 Joint Development Agreement between the Registrant and
PeopleSoft, Inc., dated June 5, 1999.
10.16** Stock Purchase and Master Strategic Relationship Agreement
between the Registrant and PeopleSoft, Inc., dated June 5,
1999.
10.17** Stock Purchase and Master Strategic Relationship Agreement
between the Registrant and SingTel Ventures (Cayman) Pte.
Limited, dated June 1999.
10.18** Stock Purchase and Master Strategic Relationship Agreement
between the Registrant and Nippon Telegraph and Telephone
Company, dated June 1999.
23.1** Consent of Ernst & Young LLP, Independent Auditors.
23.2** Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.3** Consent of Wilson Sonsini Goodrich & Rosati (see Exhibit 5.1).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- --------
<C> <S>
24.1** Power of Attorney (see page II-6).
27.1** Financial Data Schedule.
</TABLE>
- --------------
+ The registrant is seeking confidential treatment of certain portions of this
exhibit from the Commission. The omitted portions have been separately filed
with the Commission.
** Previously filed.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 8 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Walnut Creek, State of California, on the 1st day of July, 1999.
<TABLE>
<S> <C> <C>
COMMERCE ONE, INC.
By: /s/ MARK B. HOFFMAN
-----------------------------------------
MARK B. HOFFMAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 8 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
President, Chief Executive
/s/ MARK B. HOFFMAN Officer and Chairman of
- ------------------------------ the Board (Principal July 1, 1999
MARK B. HOFFMAN Executive Officer)
Vice President and Chief
/s/ PETER F. PERVERE Financial Officer
- ------------------------------ (Principal Financial July 1, 1999
PETER F. PERVERE Officer)
*
- ------------------------------ Director July 1, 1999
ASIM ABDULLAH
*
- ------------------------------ Director July 1, 1999
JOHN V. BALEN
*
- ------------------------------ Director July 1, 1999
WILLIAM B. ELMORE
*
- ------------------------------ Director July 1, 1999
KENNETH C. GARDNER
- ------------------------------ Director
THOMAS GONZALES
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
*
- ------------------------------ Director July 1, 1999
WILLIAM J. HARDING
- ------------------------------ Director
JOHN SWINGEWOOD
*
- ------------------------------ Director July 1, 1999
JAY M. TENENBAUM
*
- ------------------------------ Director July 1, 1999
JEFFREY T. WEBBER
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ MARK B. HOFFMAN
-------------------------
MARK B. HOFFMAN
ATTORNEY-IN-FACT
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- --------
<C> <S>
1.1** Form of Underwriting Agreement.
2.1** Agreement and Plan of Reorganization by and among the
Registrant, Blackhawk Acquisition Corporation, VEO Systems,
Inc., the Shareholders named therein, and U.S. Bank Trust,
N.A., dated November 25, 1998.
3.1** Restated Certificate of Incorporation of the Registrant to be
in effect after the closing of the offering made under this
Registration Statement.
3.2** Bylaws of the Registrant to be in effect after the closing of
the offering made under this Registration Statement.
4.1** Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1** Form of Indemnification Agreement between the Registrant and
each of its directors and officers.
10.2** Form of 1997 Incentive Stock Option Plan and form of
agreements thereunder.
10.3** Form of 1999 Employee Stock Purchase Plan and form of
agreements thereunder.
10.4** Amended and Restated 1995 Stock Option Plan and form of
agreement thereunder.
10.5** Form of 1999 Director Option Plan and form of agreements
thereunder.
10.6** VEO Systems, Inc. Option Plan and form of agreement
thereunder.
10.7 Master Software License and Services Agreement between the
Registrant and Nippon Telegraph and Telephone Corporation
dated April 16, 1999.
10.8 Governance Agreement between the Registrant and British
Telecommunications, plc., dated March 26, 1999.
10.9 Marketing Agreement between the Registrant and British
Telecommunications, plc., dated March 26, 1999.
10.10+ MarketSite License Agreement between the Registrant and
British Telecommunications, plc., dated March 25, 1999.
10.11 Amended and Restated Trading Agreement between the Registrant
and British Telecommunications, plc., dated March 25, 1999.
10.12 Marketing Agreement between the Registrant and MCI Systemhouse
Corporation dated August 4, 1998.
10.13 Agreement between the Registrant and PricewaterhouseCoopers
LLP dated September 2, 1998.
10.14+ OEM Software License and Distribution Agreement between the
Registrant and PeopleSoft, Inc., dated June 5, 1999.
10.15 Joint Development Agreement between the Registrant and
PeopleSoft, Inc., dated June 5, 1999.
10.16** Stock Purchase and Master Strategic Relationship Agreement
between the Registrant and PeopleSoft, Inc., dated June 5,
1999.
10.17** Stock Purchase and Master Strategic Relationship Agreement
between the Registrant and SingTel Ventures (Cayman) Pte.
Limited, dated June 1999.
10.18** Stock Purchase and Master Strategic Relationship Agreement
between the Registrant and Nippon Telegraph and Telephone
Company, dated June 1999.
23.1** Consent of Ernst & Young LLP, Independent Auditors.
23.2** Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.3** Consent of Wilson Sonsini Goodrich & Rosati (see Exhibit 5.1).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- --------
<C> <S>
24.1** Power of Attorney (see page II-6).
27.1** Financial Data Schedule.
</TABLE>
- --------------
+ The registrant is seeking confidential treatment of certain portions of this
exhibit from the Commission. The omitted portions have been separately filed
with the Commission.
** Previously filed.
<PAGE>
Exhibit 10.7
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
This Master Software License and Services Agreement (the "Agreement") is
entered into as of this 16th day of April, 1999 (the "Effective Date"), by and
between Commerce One, Inc. a California corporation with offices located at 1600
Riviera Avenue, Walnut Creek, California 94596 ("Commerce One") and Nippon
Telegraph and Telephone Corporation, a Japanese corporation with offices located
at 3-19-2, Nishi-Shinjuku, Shinjuku, Tokyo 163-8019, Japan ("NTT").
BACKGROUND
WHEREAS, Commerce One is developing or has the rights to the software and
documentation described in Section 1 below and desires to license NTT to use
such software on the terms and conditions stated herein; and
WHEREAS, NTT is interested in receiving a license from Commerce One to such
software and documentation on the terms and conditions stated herein, and
further desires to retain Commerce One to perform certain services specific to
Commerce One's software products as set forth herein; and
WHEREAS, Commerce One desires to perform such services for NTT; and
WHEREAS, NTT is interested in establishing an electronic commerce service
in Japan enabling businesses to buy and sell products over the Internet; and
WHEREAS, NTT and Commerce One intend to enter into an initial agreement
covering a pilot project and subsequently enter into a partnership agreement
with the intent to bring to market an internet based open trading community
connecting trading partners across Japan; and
WHEREAS, Commerce One and NTT wish to discuss the possibility of the
marketing of a localized version of the Software in Japan and the provision of
certain electronic commerce services using the localized Software in Japan.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions stated herein, the parties agree as follows:
1. DEFINITIONS.
1.1 "COMMERCE ONE TECHNOLOGY" shall mean (i) the Deliverables and any
and all technology, information, data, know-how, ideas, designs, software,
inventions, documentation, resources and all other tangible and intangible items
made, conceived or reduced to practice by Commerce One alone or jointly with
others hereunder, and (ii) all Intellectual Property rights in (i).
<PAGE>
1.2 "DELIVERABLE" shall mean an item identified as a deliverable in
the Statement of Work.
1.3 "DOCUMENTATION" shall mean any instructions, manuals or other
materials provided to NTT by Commerce One in connection with the Software.
1.4 "INTELLECTUAL PROPERTY" means any and all (by whatever name or
term known or designated) tangible and intangible and now known or hereafter
existing: copyrights (including derivative works, as defined by the United
States Copyright Act, thereof), trademarks, trade names, trade secrets, mask
work rights, know-how, patents and any other intellectual and industrial
property and proprietary rights, of every kind and nature throughout the
universe and however designated, and including all registrations, applications,
renewals and extensions thereof.
1.5 "PHASE II" shall have the meaning set forth in the Statement of
Work.
1.6 "SOFTWARE" shall mean the computer program(s) set forth in
EXHIBIT A in machine executable object code format and the Documentation,
together with Updates thereto and Deliverables provided to NTT in accordance
with the terms and conditions hereof.
1.7 "Specifications" means the technical specifications for the
Deliverables which will be developed in conjunction with the Statement of Work
in accordance with Section 4.5.
1.8 "STATEMENT OF WORK" shall mean a document setting forth in detail
the services and Deliverables to be performed and delivered by Commerce One
under this Agreement and an estimated schedule therefor. A preliminary version
of the Statement of Work is attached as EXHIBIT B. The Statement of Work may be
amended by the parties from time to time in accordance with this Agreement. Each
separate Statement of Work shall be sequentially numbered as EXHIBIT B
(e.g., EXHIBIT B-1, B-2, etc.).
1.9 "UPDATES" shall mean new versions of the Software that Commerce
One makes available generally to customers of the Software as part of the
support described in Section 3 below.
2. SCOPE.
2.1 RIGHT TO USE. Subject to the terms and conditions of this
Agreement, Commerce One grants NTT a limited, nontransferable license, without
right of sublicense, to install the Software at the Designated Sites (as
defined below) and to use the Software for internal business purposes only.
Additionally, NTT can provide access to MarketSite services to up to five (5)
external business partners during Phase II of this project. Further, it is
understood and agreed that beta versions of the Software provided hereunder to
NTT are still under development and are provided for
-2-
<PAGE>
experimental, evaluation purposes only. Accordingly beta versions of the
Software shall not be used in a production or commercial environment. Unless
otherwise specified herein, NTT shall install the double byte enabled version
of the Software, if any, solely at the locations in Japan set forth in
EXHIBIT D (collectively, the "Designated Sites"). Commerce One will use
reasonable efforts to timely complete the development of the double byte
enabled version of the Software. NTT agrees that it will not itself, or
through any third party, modify the Software or reverse engineer,
disassemble, decompile or otherwise attempt to derive source code from the
Software; use the Software to provide services to third parties, whether in
commercial timesharing, rental or sharing arrangements, or otherwise use the
Software on a "service bureau" basis.
2.2 COPIES. NTT shall not copy the Software, in whole or in part,
except for one (1) copy as necessary to archive such Software.
2.3 INSTALLATION. NTT shall install or, where applicable, shall allow
Commerce One to install, the Software at the Designated Sites for use in
accordance with Section 2.1 above.
2.4 INFORMATION. NTT shall provide information, including NTT
Confidential Information, as reasonably requested by Commerce One to ensure
compliance by NTT with the terms of this Agreement. In addition, and as a
condition of the grant of the license set forth in Section 2.1 above, NTT shall
permit Commerce One to operate "polling software" which monitors transactions
associated with the Software, and NTT shall at all times cooperate with Commerce
One to ensure that Commerce One has remote access to NTT's computers for such
purpose and that Commerce One's polling software operates correctly on NTT's
computers.
2.5 EVALUATION. NTT will participate in a pilot program for the
Software in accordance with the criteria set forth in EXHIBIT D ("Pilot
Program"). NTT shall designate a test coordinator (the "Coordinator" as the
primary contact for Commerce One during the term of this Agreement with respect
to the Pilot Program). NTT will cooperate and consult with Commerce One in the
evaluation of the Software based on NTT's operation, use, and testing of the
Software pursuant to the Pilot Program Criteria set forth in EXHIBIT D. During
the term of the Pilot Program, if NTT discovers errors or bugs in the Software,
the Coordinator will promptly call Commerce One to report such problems.
Commerce One shall, at any time and in its sole discretion replace, modify,
alter, improve, enhance or change the Software and in such event the replaced
version shall be deemed part of the Software. If Commerce One provides NTT with
a corrected or updated Software, NTT shall promptly install such Software solely
as a version replacement and erase from memory any and all copies of the
previous Software. It is understood that any corrected or updated versions of
the Software shall be used solely as version replacements and shall not expand
the number or scope of licenses granted herein.
2.6 EXCLUSIVITY. During the period commencing on the Effective Date
and expiring on the later of (a) December 31, 1999 or (b) the expiration of
three (3) months following Commerce One's release of the MarketSite 3.0
version and the BuySite 6.0 version of the Software ("Exclusivity Period"),
Commerce One agrees that except for the entities listed in EXHIBIT E, Commerce
One will not license the localized Japanese language version of the BuySite
Software and/or the MarketSite Software, to third parties for use within the
Field of Use. For purposes of this Agreement, "Field of Use" shall mean use by
the licensee of the MarketSite and/or BuySite Software to provide services to
third parties having their principal place of business in Japan which services
are for the procurement of Indirect Materials for use by such third parties in
Japan. "Indirect Materials" means materials used in the day-to-day operation
of a buyer entity's business and which are more commonly referred to as
maintenance, repair and operations materials or "MRO" (e.g., desks, paper,
pencils, chairs) and specifically excluding materials that are directly
incorporated into the ultimate product or service
-3-
<PAGE>
sold by such buyer entity to its customers. For the avoidance of doubt, it is
further understood and agreed that nothing in this Agreement or any of the
attachments hereto shall restrict Commerce One's ability to license the
Software to third parties for their own internal use in procuring goods or
services electronically on their own behalf for fulfillment of their own
internal business needs. Prior to entering into a definitive agreement during
the Exclusivity Period to license a localized Japanese language version of the
Software to a third party with its principal place of business in Japan for
use not within the Field of Use in Japan, Commerce One agrees to discuss with
NTT its possibility of participating with Commerce One in the sales process for
such Software. If the parties do not reach an agreement within ten (10)
business days of notice of such transaction by Commerce One, Commerce One
shall have no further obligation under this Section, and Commerce One may
grant rights to or license the Software to third parties for use not within
the Field of Use. Upon the expiration of the Exclusivity Period, Commerce One
shall have the right to negotiate with any third parties regarding licensing
the Software, provided that Commerce One grants NTT the first right of
negotiation. Such first right of negotiation shall not preclude Commerce One
from negotiating with other third parties. This first right of negotiation
period shall expire three months from the date of the expiration of the
Exclusivity Period.
3. SUPPORT. During Phase II, Commerce One will make available to NTT,
without charge, such Software support including on-site and off-site support
as Commerce One makes available generally to its customers of the Software
located in Japan.
4. CONSULTING SERVICES.
4.1 SERVICES. Commerce One shall use reasonable best efforts to
provide those services and/or deliver any Deliverables to NTT as set forth in
the applicable Statement of Work and NTT shall use reasonable efforts to
provide, or make available to Commerce One, free of charge, any information,
hardware or software resources or other materials of NTT, and assistance
reasonably required for the performance of such services and reasonable access
to NTT's facilities. Without limiting the foregoing, NTT shall use reasonable
efforts to perform those tasks and assume those responsibilities set forth in
the Statement of Work. The Statement of Work may also set forth certain
assumptions related to the services, and to the extent such assumptions are not
met or are inaccurate, the cost and schedule of the services may be affected.
NTT acknowledges and agrees that Commerce One's performance is dependent on
NTT's timely and effective satisfaction of all of NTT's responsibilities
hereunder and timely decisions and approvals by NTT. Commerce One is entitled to
rely on all decisions and approvals of NTT in connection with the services
provided hereunder. The information NTT has provided to Commerce One is true,
accurate and complete.
4.2 PERFORMANCE. Commerce One warrants that the Services shall be
performed in a professional and workmanlike manner using persons with skills and
experience appropriate to their function.
4.3 DELAYS. If NTT, or any third party acting on NTT's behalf, does
not provide any required item or service to Commerce One on a timely basis in
accordance with the applicable Statement of Work, then the dates set forth in
such Statement of Work which have been directly or indirectly affected by such
delay, shall be extended as reasonably necessary to account for such delay.
-4-
<PAGE>
4.4 PROGRESS REPORTS; REVIEW MEETINGS. Commerce One will provide
to NTT progress reports regarding its work progress during development as set
forth in a Statement of Work or otherwise by mutual agreement. In addition,
the Project Managers (as defined below) shall participate in project review
meetings as set forth in a Statement of Work or otherwise by mutual
agreement. Any agreement reached among the parties at such meeting to modify
a Statement of Work shall be prepared in writing and duly signed by the
Project Manager of each party, and such revised Statement of Work shall be
binding upon the parties with respect to the subject matter thereof.
4.5 SPECIFICATIONS. The parties will work in good faith to
complete the Specifications for each Deliverable within thirty (30) days
prior to the delivery date for such Deliverable specified in the Statement of
Work. Upon written approval of both parties to the final version of the
Specifications for a Deliverable, such final version shall be deemed the
"Specifications" for such Deliverable for purposes of this Agreement. If
after such good faith discussions, the parties do not agree upon the
Specifications for a Deliverable within such thirty (30) day period, either
may terminate this Agreement with respect to such Deliverable by forty-five
(45) days prior written notice to the other party within thirty (30) days
after the expiration of such time period.
4.6 PROJECT MANAGERS. NTT and Commerce One shall each designate a
project manager who will be responsible for, and authorized to: (i) make
decisions regarding the Statement of Work; (ii) give any necessary approvals
in conjunction with the Statement of Work; and (iii) provide Commerce One
personnel with information and support for performance of the Statement of
Work.
4.7 MODIFICATIONS TO STATEMENT OF WORK. Should NTT desire to
change the services specified in the Statement of Work, or request additional
services not included in the Statement of Work, NTT shall submit the proposed
modification in writing to Commerce One. Commerce One may, as determined by
Commerce One, elect to perform such modification or additional services, and
if Commerce One elects to perform such modifications or additional services,
Commerce One will provide NTT with a cost estimate and schedule impact for
performing the modifications and/or additional services in a revised
Statement of Work. Upon NTT's written acceptance of the revised Statement of
Work, Commerce One will proceed to perform the modifications mutually agreed
to by the parties.
4.8 COMMENCEMENT CONDITION OF PHASE II: It is hereby understood and
agreed that Phase II shall be (i) commenced on or after NTT shall enter into a
certain letter of intent with its potential customer who desires to receive an
electronic procurement services from NTT by utilizing the localized Japanese
language version of the Software, and (ii) pursued by taking the needs and
requirements of the potential customer into due consideration. In case where
said letter of intent shall not be entered into between NTT and its potential
customer on or before the end of April, 1999, NTT and Commerce One shall
discuss in good faith and determine how to commence Phase II.
4.9 PREFERRED STATUS. NTT will have the right to participate in
Commerce One's program for third party participation in periodic design
review meetings with Commerce
-5-
<PAGE>
One's collaboration partners for the Software. In addition, Commerce One will
provide a dedicated Commerce One liaison to be located in Japan during Phase
II.
4.10 All members of Commerce One Resource (as set forth on EXHIBIT
F) shall, while working at the Designated Sites, observe and abide by the
laws and regulations of the country having jurisdiction over such location,
and all rules and regulations applicable at the Designated Sites, as well as
any and all instructions given by NTT, provided that such instructions are
reasonable. Commerce One shall at its sole discretion provide all members of
Commerce One Resource with appropriate guidance and otherwise cause them to
observe the provisions of this Agreement including the preceding paragraph.
NTT shall not be liable to Commerce One for any act or
omission of any member of Commerce One or for any accident while they are
staying at the Designated Sites or on the way to and from the Designated
Sites or to such personnel's home country. Commerce One, at its own cost,
shall subscribe to and maintain an insurance policy or policies covering any
accident referred to above, and any other appropriate property and liability
insurance for all members of Commerce One during their stay in the Designated
Sites.
Nothing contained herein shall be construed as creating or
requiring any employment or labor relationship between NTT and any member of
Commerce One .
When the services in each week are furnished, Commerce One
shall present a compiled weekly work sheet to NTT specifying works and dates
worked by each member of Commerce One Resource. Within seven (7) days after
receipt of the weekly work sheet, NTT shall verify the work sheet and issue
the accepted weekly work sheet to Commerce One. Should NTT fail to verify a
weekly work sheet, the services provided by Commerce One during the week in
question shall be deemed to have been accepted by NTT on the passage of said
seven (7) days. Should any defect or incorrectness be found in the work sheet
presented and so is pointed out by NTT, and agreed to as a defect or
incorrectness by Commerce One, Commerce One shall revise such defect or
incorrectness immediately and NTT shall verify and accept the revised work
sheet in the same way. It is hereby understood and agreed that NTT will not
accept any time stated in the work sheet as spent by a particular member of
Commerce One, if such work is not performed in accordance with this Agreement.
5. DELIVERY AND ACCEPTANCE.
5.1 DELIVERABLES. Upon completion of each Deliverable, Commerce
One shall deliver such Deliverable to NTT.
5.2 ACCEPTANCE PROCEDURE. Within twenty (20) days after receipt of
each Deliverable, NTT shall review, test and evaluate the Deliverable for
conformity with the Specifications and shall provide Commerce One with a
written acceptance of the Deliverable, or a written statement of defects to
be corrected. Commerce One shall promptly correct such defects, if any, and
return the Deliverable to NTT for retesting, review and reevaluation, and NTT
shall, within twenty (20) days of such redelivery, again provide Commerce One
with a list of defects which need to be corrected, if any. Failure of NTT to
provide Commerce One with a statement of acceptance or defects within the
applicable acceptance period shall be deemed
-6-
<PAGE>
acceptance by NTT of the Deliverable. The foregoing procedure shall be
repeated until acceptance of each Deliverable by NTT; provided that if a
Deliverable is rejected five or more times by NTT and Commerce One has used
all reasonable efforts to correct the rejected Deliverable to bring it into
conformity with the Specifications, NTT will accept the Deliverables.
Notwithstanding the foregoing, Commerce One agrees to discuss with NTT the
possibility of redefining the specifications for the Deliverable.
5.3 FINAL ACCEPTANCE. Upon NTT's acceptance of each Deliverable,
Commerce One shall promptly provide NTT with one (1) master copy of the
Deliverable for use in accordance with the terms of this Agreement. NTT shall
not remove any copyright, trademark or other Intellectual Property rights notice
placed by Commerce One on the master copies.
6. MARKETING. The parties agree to negotiate in good faith a definitive
agreement describing the commercial relationship between the parties for
establishment of an electronic procurement service utilizing the Software for
use within the Field of Use (as defined above) on pricing terms as favorable
as those pricing terms offered by Commerce One to any similarly situated third
party under a Comparable Marketing Agreement. For purposes of this Section,
"Comparable Marketing Agreement" means a marketing agreement that (i) exists
as of the effective date of the definitive agreement between NTT and Commerce
One, (ii) is for the same products and services and (iii) has substantially
the same scope, terms and conditions as the definitive agreement entered into
between NTT and Commerce One. It is understood that such definitive agreement
will contain an exclusivity provision as broad as that set forth in Section
2.6 above, subject to the parties' agreement on the scope of NTT's performance
obligations, as well as other terms and conditions to be negotiated in good
faith by the parties. If the parties do not enter into such a definitive
agreement by December 15, 1999 (the "Marketing Date"), neither party will be
under any further obligation to negotiate such an agreement and Commerce One
may grant rights to or license any or all of the Software to third parties
with no further obligations under this Section 6.
7. OWNERSHIP OF PROPRIETARY RIGHTS.
7.1 SOFTWARE. The Software is protected by both United States
copyright law and international copyright treaty provisions. NTT agrees to
reproduce the Commerce One Intellectual Property rights notices and all other
legal notices, including but not limited to other proprietary notices and
notices mandated by governmental entities, on all complete or partial copies or
transmissions, if any, of the Software. As between Commerce One and NTT,
Commerce One or its licensors, as applicable, retain sole and exclusive
ownership of all right, title and interest in and to the Software and all
Intellectual Property rights relating thereto. In addition, Commerce One shall
own all rights in any copy, translation, modification, adaptation or derivative
work of the Software, and NTT hereby assigns all rights in them to Commerce One.
Without limiting the foregoing, NTT shall own all Intellectual Property rights
directly related to any additional features to the Software that NTT develops
independently and without input from Commerce Once, provided that the software
developed by NTT has a substantial use that does not infringe any Commerce One
patent rights. Without limiting the obligations set forth in Section 2.6 above,
if NTT files any patents or patent applications whose claims read on the
manufacture, sale or use of the Software, then NTT shall promptly give notice to
Commerce One in writing of such application or filing, and negotiate in good
faith a license grant to Commerce
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<PAGE>
One related to such claims made by NTT, including the right for Commerce One
to grant sublicenses to its customers and distributors, on reasonable and
customary terms and conditions to be negotiated in good faith between NTT and
Commerce One. NTT further agrees to assign all other modifications and
customizations to Commerce One that NTT develops in the exercise of all other
rights granted by Commerce One to NTT under this Agreement. NTT shall
physically identify the Software and any related materials as owned by
Commerce One. All rights not expressly granted hereuner are reserved by
Commerce One and its licensors. NTT shall physically identify the Software
and any related materials as owned by Commerce One. All rights not expressly
granted hereunder are reserved by Commerce One and its licensors.
7.2 COMMERCE ONE TECHNOLOGY. As between NTT and Commerce One,
Commerce One shall own all right, title and interest in and to the Commerce
One Technology. NTT hereby irrevocably assigns, and agrees to assign, to
Commerce One all of its right, title and interest in and to the Commerce One
Technology. NTT agrees to, and to cause its employees, agents and consultants
to, execute such documents and perform such acts, as may be reasonably
necessary to perfect Commerce One's rights as set forth in this Section 7 and
to obtain, enforce and defend Intellectual Property rights in and to the
Commerce One Technology.
7.3 DELIVERABLES INCLUDING NTT CONFIDENTIAL INFORMATION. If NTT
provides Commerce One with any NTT Confidential Information as defined in
Section 11 below, Commerce One and NTT agree to discuss in good faith the
ownership of any Deliverables containing such NTT Confidential Information:
Provided however, NTT shall have no obligation to provide any NTT
Confidential Information if the parties cannot resolve such ownership to the
mutual satisfaction of both parties.
7.4 RIGHT TO DEVELOP INDEPENDENTLY. Without limiting the intent of
Section 2.6 above, NTT understands and acknowledges that Commerce One is in
the business of developing products and providing consulting services similar
to those provided for NTT for other parties based upon the same tools and
knowledge base, and NTT agrees that nothing in this Agreement will impair
Commerce One's right to provide the same services or develop for itself or
others deliverables substantially similar to, or performing the same or
similar functions as, the Deliverables under this Agreement.
7.5 USER GROUP. During the term of this Agreement, NTT will have
the right to participate in any "user group" forums which Commerce One may
establish from time to time for the purpose of exchanging information and
ideas regarding the establishment of similar electronic procurement services.
8. COMPENSATION.
8.1 LICENSE FEE. NTT shall pay Commerce One the nonrefundable,
noncreditable license fees ("License Fees") set forth in EXHIBIT F.
8.2 SERVICE FEES. In consideration for performing the services
listed in the Statement of Work, NTT shall pay Commerce One the
nonrefundable, noncreditable service fees
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("Service Fees") set forth on EXHIBIT F. All fees quoted and payments made
shall be in U.S. Dollars. Invoices shall be due and payable within forty-five
(45) days days of the receipt date of invoice. NTT shall reimburse Commerce
One for any out-of-pocket expenses, if accompanied by the payment evidence,
that are actually incurred by Commerce One in performing under each Statement
of Work.
8.3 LATE PAYMENT AND TAXES.
(a) Any amounts due hereunder and not paid within forty-five
(45) days of the receipt date of invoice shall accrue interest at the rate of
one and one-half percent (1.5%) per month or the maximum rate permitted by
applicable law, whichever is less, determined and compounded on a daily basis
from the date due until the date paid. NTT shall be responsible for all sales
taxes, use taxes and similar taxes and charges of any kind imposed by any
federal, state or local governmental entity for products and/or services
provided under this Agreement, excluding only taxes based solely upon Commerce
One's net income.
(b) All payments by NTT specified hereunder are expressed as net
amounts and shall be made free and clear of, and without reduction for, any
withholding taxes. Any such taxes which are otherwise imposed on payments to
Commerce One shall be the sole responsibility of NTT. NTT shall provide Commerce
One with official receipts issued by the appropriate taxing authority or such
other evidence as is reasonably requested by Commerce One to establish that such
taxes have been paid. If Commerce One uses a foreign tax credit received by
Commerce One as a result of the payment of withholding taxes by NTT and thereby
reduces the amount of U.S. income tax that Commerce One otherwise would have
paid, Commerce One shall refund to NTT the amount of such reduction with respect
to such foreign tax credit.
9. INDEMNIFICATION.
9.1 COMMERCE ONE INDEMNIFICATION. If an action is brought against NTT
claiming that the Software infringes any United States patent, or any copyright
or trade secret rights of a third party, Commerce One shall defend NTT and shall
pay the damages and costs finally awarded against NTT, or settlements entered
into by Commerce One on NTT's behalf, in the action, but only if (a) NTT
notifies Commerce One promptly and in writing upon learning that the claim might
be asserted, (b) Commerce One has sole control over the defense of the claim and
any negotiation for its settlement or compromise, and (c) NTT cooperates and
assists in the defense or settlement of the claim, as reasonably requested by
Commerce One. The indemnity set forth herein will not apply if and to the extent
that the infringement claim results from (a) a correction, modification or
unauthorized merged portion of the Software not provided by Commerce One, (b)
the failure to promptly install an update, (c) the combination of the Software
with items not provided by Commerce One, or (d) the performance of services or
development of customizations to the Software by Commerce One pursuant to a
specific design submitted by NTT.
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If NTT's use of the Software is enjoined by a court of competent
jurisdiction, or if Commerce One wishes to minimize its liability hereunder,
Commerce One may, at its option and expense, either (a) substitute a
substantially equivalent non-infringing item, (b) modify the infringing item
so that it no longer infringes but remains functionally equivalent, (c)
obtain for NTT the right to continue using such item, or (d) terminate the
licenses set forth herein with respect to the allegedly infringing Software
and refund the portion of the License Fees attributable to such Software.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THE FOREGOING
STATES THE ENTIRE LIABILITY AND OBLIGATION OF COMMERCE ONE AND ITS LICENSORS
WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY PATENT,
COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE,
OR OTHERWISE ARISING OUT OF THIS AGREEMENT.
9.2 NTT INDEMNIFICATION. NTT shall indemnify and hold harmless
Commerce One from and against any damages and costs finally awarded against
Commerce One, or settlements entered into by NTT on Commerce One's behalf, in
connection with any claims, actions, suits or proceedings brought by third
parties arising out of or relating to the use by NTT of the Software, but
only if (a) Commerce One notifies NTT promptly and in writing upon learning
that the claim might be asserted, (b) NTT has sole control over the defense
of the claim and any negotiation for its settlement or compromise, and (c)
Commerce One cooperates and assists in the defense or settlement of the
claim, as reasonably requested by NTT. The indemnity set forth herein will
not apply if and to the extent that: (i) the claim, action, suit or
proceeding results from the negligence or willful misconduct of Commerce One
or any officer, director, employee, affiliate, agent, consultant or
representative of Commerce One, or breach of the Agreement by Commerce One or
any officer, director, employee, affiliate, agent, consultant or
representative of Commerce One; or (ii) it would be inconsistent with
Commerce One's indemnification obligations to NTT under Section 9.1.
10. LIMITATION OF LIABILITY.
If either party shall sustain any damage due to any willful
misconduct or negligence by the other party or breach by the other party of
its obligations under this Agreement, the damage-sustained party shall be
entitled to claim, against the other party, recovery of actually proven
damage but only to the extent of damage which shall arise as direct
consequences thereof and to such limit not exceeding the total amount of fees
set forth in Section 8.1 and 8.2 above.
IN NO EVENT WILL COMMERCE ONE OR ANY OF ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER
(INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE,
BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION
WITH OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR THE USE
OR INABILITY TO USE THE SOFTWARE, OR THE FURNISHING, PERFORMANCE OR USE OF
THE DELIVERABLES OR SERVICES PERFORMED HEREUNDER, WHETHER BASED UPON
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, INCLUDING NEGLIGENCE,
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EVEN IF COMMERCE ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION SHALL APPLY NOT WITHSTANDING ANY FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
IN NO EVENT WILL NTT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION WITH OR ARISING OUT OF
OR RELATED TO THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, INCLUDING NEGLIGENCE, EVEN IF NTT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
11. CONFIDENTIALITY.
"Confidential Information" of Commerce One means the Software, this
Agreement, including the Statements of Work, the Deliverables, any trade
secrets, data, documentation or other information relating to or used in the
Software or Deliverables, or any other information relating to the work
performed under the Statement of Work or Commerce One's business or product
plans, marketing information, finances, or other similar information of a
proprietary or confidential nature. "Confidential Information" of NTT means this
Agreement, including the Statement of Work information of a nontechnical nature
concerning NTT's business plans, finances, marketing information, or other
similar information of a proprietary or confidential nature. NTT will not
provide Commerce One with any NTT Confidential Information, including the
information which will be acquired through the remote access to NTT's computers
pursuant to Section 2.4 without Commerce One's prior written approval. In the
event Commerce One shall require access to technical information considered
confidential to NTT, Commerce One agrees to enter into a mutually acceptable
confidentiality agreement with NTT for the limited purpose of the required
disclosure. Confidential Information that is in written, graphic, machine
readable or other tangible form shall be marked "Confidential," "Proprietary" or
in some other manner to indicate its confidential nature. If Confidential
Information is disclosed orally, it shall be confirmed at the time of disclosure
as confidential and be reduced to written summary and delivered to the receiving
party within forty-five (45) days after disclosure and marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential nature. Each
party shall not use Confidential Information of the other party except as
authorized herein or otherwise authorized in writing, shall implement reasonable
procedures to prohibit the disclosure, unauthorized duplication, misuse or
removal of the other party's Confidential Information, shall not disclose such
Confidential Information to any third party, and shall only disclose the
Confidential Information to those of its directors, employees, subsidiaries and
advisors who need access to such information to exercise the rights and fulfill
the obligations set forth herein. Without limiting the foregoing, each of the
parties shall protect the Confidential Information using at least the same
procedures and degree of care that it uses to prevent the disclosure of its own
confidential information of like importance, but in no event less than
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reasonable care. Should any portion of the Confidential Information be
disclosed or used, the receiving party shall cooperate fully with the
disclosing party to enforce its proprietary rights.
The parties understand, however, that any of the following information is
not subject to this confidentiality requirement:
(1) information which at the time of disclosure was or thereafter becomes
in the public domain through no act or omission of the recipient;
(2) information which prior to disclosure was already in the recipient's
possession either without limitation on disclosure to others or
subsequently becoming free of such limitation;
(3) information obtained by the recipient from a third party having an
independent right to disclose the information;
(4) information which is independently developed by the recipient without
using the Confidential Information; or
(5) information that the receiving party is required to disclose by any
court order or government action; provided that the receiving party
gives the disclosing party at least 30 days' advance written notice to
seek a protective order relating to any such disclosure and, provided,
further, that the receiving party will only furnish the portion of the
Confidential Information that it is required to disclose.
12. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
12.1 LIMITED WARRANTY. Commerce One warrants to NTT that for a
period of twelve (12) months from the date of acceptance (the "Warranty
Period"), the Software and/or Deliverable, as applicable, will perform
substantially in accordance with the applicable Specifications when operated
on a system which meets the requirements specified by Commerce One in such
Specifications.
In case where the Software and/or Deliverable does not function as
warranted due to any cause not attributable to NTT, Commerce One shall use
commercially reasonable efforts to repair or replace such malfunction without
any charge to NTT, and in case where said repair or replacement is not
completed by Commerce One within a reasonable period of time, the License Fees
or Service Fees set forth in Sections 8.1 and 8.2, respectively, shall be
refunded by Commerce One as applicable. In case of the License Fees, such
refund shall be in full during the first six (6) months of the Warranty
Period. During the final six months of the Warranty Period, Commerce One will
refund the portion of License Fees attributable to such Software less a
reasonable amount for use based on straight line depreciation over a five (5)
year period. In case of the Service Fees, such refund shall be as determined
by the parties in good faith.
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12.2 DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN
THIS SECTION 12, COMMERCE ONE AND ITS LICENSORS MAKE NO WARRANTIES EXCEPT AS
SPECIFICALLY PROVIDED IN THIS SECTION 12, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, THE SERVICES PERFORMED
UNDER THIS AGREEMENT OR THE STATEMENT OF WORK, OR THE DELIVERABLES, AND
COMMERCE ONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
13. TERM AND TERMINATION.
13.1 TERM. This Agreement shall commence on the Effective Date and
shall be terminated on the end of the Pilot Period or the day otherwise agreed
to by both parties hereto, unless earlier terminated as follows: (a) if NTT
fails to make any payment due within forty-five (45) days after receiving
written notice from Commerce One that such payment is delinquent, Commerce One
may terminate this Agreement on written notice to NTT at any time following
the end of such forty-five (45) day period; or (b) if either party materially
breaches any term or condition of this Agreement and fails to cure that breach
within forty-five (45) days after receiving written notice of the breach
stating the notifying party's intent to terminate, the nonbreaching party may
terminate this Agreement on written notice at any time following the end of
such forty-five (45) day period.
13.2 EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement for any reason NTT shall immediately pay to Commerce One all amounts
due and outstanding as of the date of such termination or expiration, and the
parties shall return or destroy, at the other parties discretion, all originals
and all copies of such Confidential Information, including all copies of the
Software or portions thereof and any related materials, and if destroyed,
provide written certification of destruction. The following sections shall
survive the expiration or termination, for any reason, of this Agreement: 7.1,
7.2, 8, 9, 10, 11, 12, 13.2 and 14.
14. MISCELLANEOUS.
14.1 FORCE MAJEURE. Neither party will incur any liability to the
other party on account of any loss or damage resulting from any delay or failure
to perform all or any part of this Agreement, except for the failure to meet any
financial obligation, if such delay or failure is caused, in whole or in part,
by events, occurrences, or causes beyond the control and without negligence of
the parties; provided that NTT shall be excused from payment for monies due and
owing by NTT to Commerce One for a period not to exceed 10 days during the
period of such impossibility, which period may be extended by mutual agreement.
Such events, occurrences, or causes will include, without limitation, acts of
God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions.
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<PAGE>
14.2 INDEPENDENT CONTRACTORS. The relationship between NTT and
Commerce One hereunder is that of independent contractors and nothing herein
will be deemed to create a joint venture, partnership or agency relationship
between the parties for any purpose.
14.3 SUBCONTRACTORS. Commerce One may use subcontractors in
connection with the performance of services hereunder, subject to NTT's prior
written consent which consent shall not be unreasonably withheld.
14.4 NO SOLICITATION. During the term of this Agreement and for one
(1) year thereafter, NTT agrees not to solicit the employment of any employee
or consultant of Commerce One.
14.5 WAIVER. Any waiver of the provisions of this Agreement or of a
party's rights or remedies under this Agreement must be in writing to be
effective. Failure, neglect, or delay by a party to enforce the provisions of
this Agreement or its rights or remedies at any time will not be construed
and will not be deemed to be a waiver of such party's rights under this
Agreement and will not in any way affect the validity of the whole or any
part of this Agreement or prejudice such party's right to take subsequent
action.
14.6 SEVERABILITY. If any term, condition, or provision in this
Agreement is found to be invalid, unlawful or unenforceable to any extent,
the parties shall endeavor in good faith to agree to such amendments that
will preserve, as far as possible, the intentions expressed in this
Agreement. If the parties fail to agree on such an amendment, such invalid
term, condition or provision will be severed from the remaining terms,
conditions and provisions, which will continue to be valid and enforceable to
the fullest extent permitted by law.
14.7 AMENDMENT. This Agreement may not be amended, except by a
writing signed by both parties.
14.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed to be an original and such counterparts together
will constitute one and the same agreement.
14.9 GOVERNING LAW. This Agreement will be interpreted and
construed in accordance with the laws of the State of California, without
regard to conflict of law principles or the 1980 UN Convention on Contracts
for the International Sale of Goods.
14.10 ARBITRATION.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement, including whether either or both of the parties
have satisfied their obligation to negotiate in good faith under Section 6 or
Section 12 of this Agreement, shall be determined by final and binding
arbitration: (i) in Santa Clara, California, in accordance with the
commercial rules of the American Arbitration Association ("AAA"), in case NTT
requests an arbitration; and (ii) in Tokyo, in accordance with the commercial
arbitration rules of the Japan Commercial Arbitration Association ("JCAA"),
in case Commerce One requests an arbitration. The arbitration
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shall be conducted in the English language and by three arbitrators appointed
in accordance with said rules. Each party shall bear its own expenses in
connection with such arbitration.
(b) Notification of any claim that a party has not fulfilled its
obligation under Section 6 or Section 12 of this Agreement ("Notice") must be
delivered within thirty (30) calendar days after the expiration of the Marketing
Date or the conclusion of the Warranty Period as applicable. Each party shall
prepare a written report setting forth its position within thirty (30) calendar
days of receipt of the Notice.
14.11 NONASSIGNMENT/BINDING AGREEMENT. Neither this Agreement nor
any rights under this Agreement may be assigned or otherwise transferred by NTT,
in whole or in part, whether voluntary or by operation of law, including by way
of sale of assets, merger or consolidation, without the prior written consent of
Commerce One, which consent will not be unreasonably withheld. Notwithstanding
the foregoing, at the time of NTT's reorganization (the "Reorganization") as
prescribed in the Supplementary Provisions to the Law Concerning Partial
Amendment to the Nippon Telegraph and Telephone Corporation Law (Law No. 98 of
1997 of Japan), NTT may assign this Agreement to one of the entities (the
"Replacing Entity") to be established pursuant to such Reorganization. Upon
prior written notice to Commerce One, the Replacing Entity shall replace NTT as
a party to this Agreement and assume all of NTT's rights and obligations
hereunder in writing, and in such event, Commerce One agrees to release and
discharge NTT from any further obligations under this Agreement. Subject to the
foregoing, this Agreement will be binding upon and will inure to the benefit of
the parties and their respective successors and assigns.
14.12 ENTIRE AGREEMENT. This Agreement (including the Exhibit(s)
and any addenda hereto signed by both parties) contains the entire agreement of
the parties with respect to the subject matter of this Agreement and supersedes
all previous communications, representations, understandings and agreements,
whether oral or written, between the parties with respect to said subject
matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMMERCE ONE, INC. NTT
By:__________________________________ By:_______________________________
Name:________________________________ Name:_____________________________
Title:_______________________________ Title:____________________________
<PAGE>
EXHIBIT A
SOFTWARE
English language version of BuySite
English language version of MarketSite
Double byte version of BuySite, if and when available
Double byte version of MarketSite, if and when available
<PAGE>
EXHIBIT B
STATEMENT OF WORK
Statement of Work for Phase II consists of (i) Project Schedule, (ii) Roles
and Responsibilities, (iii) Activities and (iv) Deliverables Descriptions.
(i) Project Schedule
The general time frame for the implementation work steps is illustrated in
the diagram below. The actual time frame and resource requirements will be
confirmed at the end of each phase for the next phase.
<TABLE>
<CAPTION>
Task Name May Jun Jul Aug Sep Oct Nov Dec Jan
E B M E B M E B M E B M E B M E B M E B M E B M E B M E
- --- --------------------------------------------- -------------------------------------------------------
<S> <C> <C>
1 Project Management XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
2 Ongoing Project Management XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
3 Project Status Reports and Meetings XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
77 Project Organization XXXXXXX
78 Determine Meeting Locations and Times X
82 Assessment XXXXXXX
102 NTTJ Market Site Infrastructure Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
103 Hardware Strategy XXXXXXX
116 Software Strategy XXXXXXX
118 Architecture Planning XXXXXXX
122 Business Planning XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
126 Build Marketsite Environments XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
146 NTTJ Supplier Adoption Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
147 Supplier Adoption Development I (Partial) XXXXXXXXXXXXXXXXXXXXX
155 Supplier Adoption Development II (Full) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
161 NTTJ Catalog Development Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
172 NTTJ Internal Buysite Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
173 Business and Technical Assessment XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
174 Business Process Assessment XXXXX
200 IT Operations Assessment X
215 Installation & Operation XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
218 BuySite Pre - Installation X
233 NTTJ Buysite Installation Japanese XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
245 Catalog Development Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
246 Develop Overall Content Strategy XXXXXXXXXXXXXXXXXXX
248 Knowledge transfer XXXXXXXXXXXXX
250 Local Content Management XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
252 NTTJ Phase III Planning XXXXXXXXXXXXX
</TABLE>
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(ii) Roles and Responsibilities
Commerce One will provide to NTT the project management, product
and technical consultation and guidance necessary to achieve a
successful project implementation. The roles and
responsibilities that are required to meet the defined goals
under the given time constraints are discussed in this section.
NTTJ MARKET SITE INFRASTRUCTURE PROGRAM
Resources
Commerce One (0.8) 5/1/99 - 1/15/00
NTT (6) - Manager (1), Technical (5)
DB, SysAdmin, Webmaster,Network Admin, Tech
NTTJ SUPPLIER ADOPTION PROGRAM
- ------------------------------
Resources
Commerce One (0.5) 6/1/99 - 8/1/99
NTT (4) - Manager (1), Associate (3)
NTTJ CATALOG DEVELOPMENT PROGRAM
- --------------------------------
Resources
Commerce One (0.5) 6/1/99 - 8/1/99
NTT (4) - Manager (1), Associate (3)
NTTJ INTERNAL BUYSITE PROGRAM
- -----------------------------
Resources
Commerce One (0.8) 5/1/99 - 12/1/99
NTT (5)
NTTJ SOFTWARE LOCALIZATION PROGRAM
- ----------------------------------
Resources
To Be Determined
To Be Determined
NTTJ JAPAN CONSULTING OPERATIONS
- --------------------------------
Resources
To Be Determined
To Be Determined
NTTJ BUSINESS INFRASTRUCTURE PROGRAM
- ------------------------------------
3
<PAGE>
To Be Determined
PROJECT MANAGEMENT
- ------------------
Resources
Commerce One (1) 5/1/99 - 1/15/00
(iii) Activities
The focus of Phase II is to develop the infrastructure and "go to market"
plans for NTT Japan and to enhance the Commerce One Commerce Chain Solution
for the Japanese marketplace. The project team will be working very closely
with both the Commerce One implementation consultants and the Commerce One
product marketing and engineering teams.
The activities for Phase II begin in early May, 1999 to leverage the working
relationship that has started between the two companies. The system that is
operational at NTT America will play a critical role in this phase by
providing both a referenceable site and a working solution to assist in the
functional design for the Japanese marketplace.
The Phase II activities are described below:
1. PROJECT MANAGEMENT - The overall project management responsibility will
reside with NTT, but Commerce One would provide management support at the
Steering Committee level with representation by one of Commerce One's
corporate executives and at the project team level with its account
management/executive support. Team leadership would also be NTT's
responsibility with Commerce One product consultants supporting each
team. Monthly status reports would be required, as well as quality
assurance monthly meetings.
SERVICES: Project Management Support to NTT Project Team
Monthly Quality Assurance Meeting
DELIVERABLES: Monthly Status Report
FINAL PHASE II DETAILED PROJECT PLAN
2. MARKETING AND BUSINESS PLAN - The Marketing and Business Plan has three
major components that have been identified to be included to support
NTT's Electronic Commerce Services vision. This plan is expected to
provide the initial framework and will be updated as NTT moves closer to
executing against the vision. Commerce One is expecting to provide
consulting support to the development of this plan, leveraging its
experience and market knowledge.
- The first component is the definition of the actual business goals.
This includes the business vision for Japan, an initial analysis of a
few short-term business opportunities that will offer proof points in
Japan, and the revenue models for these opportunities with milestones.
- The second component is a clear definition of roles and
responsibilities within NTT. It is important to define product
ownership issues, the required organizational structure to support the
business model, and the estimated funding required to support the
rollout of the solution.
- A third component is a more complete market analysis that will clearly
define the three to five year revenue objectives. This analysis will
also be supported by the identification of the key suppliers and
trading partners for the NTT Electronic Commerce Services Solution.
4
<PAGE>
Once the plan has been completed, Commerce One would welcome the
opportunity to co-present the plan to NTT Japan as a further example of our
working partnership.
3. JAPANESE MARKETSITE - Due to the significant long term revenue goals
that will be generated through the Japanese MarketSite hosted by NTT, it
is imperative that the right resources are available to address the
planning, design, and implementation. It is also imperative that this
activity starts on time. Commerce One will work closely with NTT during
this major activity from definition through implementation and into
production.
- THE PLANNING TASKS ARE EXPECTED TO AGAIN LEVERAGE COMMERCE ONE'S
EXPERIENCE AND TOOLS. AN EXAMPLE IS THE TASK ASSOCIATED WITH CONTENT
MANAGEMENT. NTT WILL BE EXPECTED TO WORK WITH THE COMMERCE ONE
CONTENT MANAGEMENT GROUP TO UNDERSTAND ITS METHODOLOGIES AND TOOLS.
THIS KNOWLEDGE TRANSFER WILL ENABLE THE NTT CONTENT TEAM TO BEGIN
WORKING WITH ITS TARGETED SUPPLIERS TO ACQUIRE CONTENT, MAP IT TO THE
PROPER CATEGORIES AND STRUCTURES, AND BEGIN TO PUBLISH IT IN THE
REQUIRED FORMAT TO MAKE IT "TRANSACTIVE CONTENT."
- THIS APPROACH IS ALSO EXPECTED TO TAKE PLACE WITH THE SUPPLIER
ADOPTION METHODOLOGY DEFINITION TASK. NTT IS EXPECTED TO ADOPT THE
METHODOLOGY THAT COMMERCE ONE HAS DEVELOPED FOR THE JAPANESE
MARKETPLACE. THIS WOULD INCLUDE MARKETING PROGRAMS, COMMUNICATION AND
INCENTIVE PROGRAMS.
- ANOTHER AREA IS SUPPLIER INTEGRATION. NTT WOULD DEVELOP THEIR
TECHNICAL STRATEGY TO FULLY INTEGRATE KEY SUPPLIERS OR TO OFFER THE
WEB-BASED SUPPLIER MANAGEMENT SOLUTION TO SUPPLIERS. THE TECHNICAL
STRATEGY WILL IMPACT THE TECHNICAL PLATFORM DESIGNS AND IMPLEMENTATION
PLANS.
- A KEY COMPONENT OF A COMPLETE TECHNICAL PLAN WILL BE THE EXPECTED
BENCHMARKS AND PERFORMANCE CRITERIA THAT NTT WANTS TO PUT IN PLACE TO
MEASURE THEIR SERVICE STANDARDS. THE OUTPUT WILL BECOME INPUT INTO
THE OVERALL PROJECT FUNDING.
Once the planning is complete, the NTT project team can begin the
implementation of its Japanese MarketSite. This process will need to be
coordinated with Commerce One's MarketSite product management team to
ensure that the installation in Japan starts with the latest release.
The implementation process will include the establishment of the
environment, the delivery of the software and testing, the loading of the
adopted suppliers' content, and the training of the support staff.
DELIVERABLES: JAPANESE MARKETSITE DESIGN DOCUMENT
JAPANESE MARKETSITE PRE LAUNCH CERTIFICATION
Supplier Systems Integration Training
4. JAPANESE LOCALIZATION - This activity will start very early in the
project with the initial focus on completing a detailed design document
that will be turned over to the NTT translator. The design will include
the user interface, documentation, online help, error messages, test
scenarios, and training materials. After review of the above, the
project team would then focus on defining any unique functional
requirements, changes to reflect the Japanese operating system and
database requirements, and changes to the Commerce One support
tools/products (e.g., catalog administration, SupplyOrder).
The design would then be followed by the development and testing
activities for each of the above sections. NTT's involvement in these
activities will provide the required detailed product knowledge that will
allow NTT to rapidly become self-sufficient. Commerce One's primary role
would be in assisting in the design activities around functional
enhancements.
5. JAPANESE BUYSITE - This is the activity that will install Commerce One's
BuySite product at NTT Japan connected to NTT's MarketSite to conduct
electronic commerce between a selected internal department
5
<PAGE>
and a minimal set of Japanese suppliers. The key contingencies are the
translation efforts, conversion to the Japanese operation system and
database requirements, and having a fully functioning MarketSite. With
these tasks in place the actual implementation effort will be very
similar to the one that took place at NTT America. It is expected that
the NTT project team will be in a position to manage and perform the
majority of the implementation tasks with Commerce One providing product
consulting and project oversight.
SERVICES: Integration Design Assistance
Onsite End User and Technical Supports
DELIVERABLES: JAPANESE BUYSITE DESIGN DOCUMENT
JAPANESE BUYSITE PRELAUNCH CERTIFICATION
Unlike the implementation of the NTT America BuySite, this implementation
will require the project team to actively engage in the supplier adoption
and content management activities. The plan is based upon the initial
Japanese suppliers for the internal BuySite to also be key suppliers that
will be a part of the initial NTT Hosted BuySite rollout. NTT will
utilize the supplier adoption programs developed by Commerce One as the
basis for its own programs. These will be adapted for the Japanese
marketplace and NTT will take the lead on bringing the identified
suppliers on board. NTT and Commerce One will work together on utilizing
the content management tools and building the content processes to
convert the supplier catalog information into transactive content format.
One of the tasks under this activity that will require Commerce One
participation will be integration analysis and design to NTT's selected
procurement/financial system (e.g., SAP, Baan). The goal is to first
implement the BuySite product in a stand-alone environment as part of
Phase II and then develop and implement the integration processes as part
of the early part of Phase III. This is done to ensure that NTT can
begin to realize their return on investment as early as possible. The
development and implementation effort will not require Commerce One's
participation.
Commerce One has included in its resource plans onsite "help desk"
assistance for the first two months of production and onsite technical
support for the first two months of production. These resources will be
supported by Commerce One's Customer Service Center that delivers 7 by 24
hour support for level two and level three problems.
6. HOSTED BUYSITE (DESIGN AND DEVELOPMENT) -- Commerce One will be
responsible for the design and development of its Hosted BuySite product.
This effort will be driven by solid engineering methodology, which will
include organizational modeling, focus group input, and customer design
review sessions. NTT is welcomed to actively participate in the Commerce
One Design Program. This group meets on a regular basis to receive
detailed work through from product development team and the group
receives design materials for review and input. A couple of the areas
that NTT may be able to offer valuable insight in the design: security,
system management, reporting and supplier ERP integration. At a minimum,
as part of the product consulting support, Commerce One will keep the NTT
project team well informed on the design and development timelines and
will share design documentation to ensure that any unique NTT
requirements can be analyzed against the expected delivered product.
Hosted BuySite functions will be integrated into BuySite 6.0.
7. HOSTED BUYSITE (IMPLEMENTATION) - One of the advantages of the strategy
that has been jointly developed is NTT will have become self-sufficient
with the supplier adoption and content management activities through
their efforts in the implementation of the NTT BuySite solution.
Commerce One and NTT will have worked together to put in place the
robust content management processes that simplifies the process for
suppliers to deliver content updates that contain items and
6
<PAGE>
content that is relevant to NTT internal use as well as content for the
commercial use in the Hosted NTT Solution. The Commerce One methodology
includes a set of administrative tools that allow NTT to create a
"catalog profile" for each supplier and a "catalog profile" for the
individual groups of users. This process is greatly simplified if the
Supplier maintains their content within MarketSite, as the tools are also
available for the suppliers to establish "customer profiles" to provide a
first filtering step before the new content is pulled to NTT. These
integrated suppliers are also able to provide on-going updates on price
and availability as their products are being checked prior to an order or
as their products are being ordered.
The Supplier Adoption program focuses on educating NTT suppliers on the
value of electronic procurement and how they can participate with NTT. As
part of this program, each strategic supplier's ability to adopt the NTT
Electronic Commerce Services Solution is evaluated and rated to confirm
their ability to be a part of the NTT implementation. They are
prioritized and individual plans are prepared and agreed to.
8. SUPPLIER ADOPTION AND CONTENT MANAGEMENT PROGRAMS - The Supplier Adoption
and Content Management program focuses on building organizations and
processes to support these efforts and also to assist educating NTT
suppliers on the value of electronic procurement and how they can
participate with NTT. As part of this program, each strategic
suppliers's ability to adopt the NTT Electronic Commerce Services
Solution is evaluated and rated to confirm their ability to be a part of
the NTT implementation. They are prioritized and individual plans are
prepared and agreed to.
SERVICES: Support for Content Development
DELIVERABLES: SUPPLIER ADOPTION LOCALIZATION PLAN
CONTENT LOCALIZATION PLAN
SUPPLIER ADOPTION TRAINING
CONTENT MANAGEMENT TRAINING
(iv) Deliverables Descriptions
FINAL PHASE II DETAILED PROJECT PLAN
The deliverable will provide the final detailed plan for execution of Phase
II of the project. the deliverable will require NTT input and resource
commitments.
SUPPLIER ADOPTION LOCALIZATION PLAN
This deliverable will provide the planning and structure for developing a
Supplier Adoption Program for the Japanese market.
CONTENT LOCALIZATION PLAN
This deliverable will provide the planning and structure for developing a
Content Management Program for the Japanese market.
SUPPLIER ADOPTION TRAINING
This deliverable will consist of primarily instructor led training by a
dedicated Commerce One resource. These programs will take place in the US and
Japan between 6/1/99 and 8/1/99 and will enable NTT to build a successful
Supplier Adoption organization in Japan.
CONTENT MANAGEMENT TRAINING
This deliverable will consist of primarily instructor led training by a
dedicated Commerce One resource. These programs will take place in the US and
Japan between 6/1/99 and 8/1/99 and will enable NTT to build a successful
Content Management organization in Japan.
JAPANESE INTERNAL BUYSITE DESIGN DOCUMENT
This deliverable will provide the detailed functional and technical
specifications for the Internal BuySite implementation and will include the
specifications addressing procurement processes, architecture, and user
adoption.
JAPANESE INTERNAL MARKETSITE DESIGN DOCUMENT
This deliverable will provide the detailed functional and technical
specifications for addressing architecture and operations of a MarketSite
implementation in Japan.
JAPANESE BUYSITE PRE LAUNCH CERTIFICATION
The deliverable will provide pre-production testing and system acceptance
prior to launch of the NTT'S internal BuySite.
JAPANESE MARKETSITE PRE LAUNCH CERTIFICATION
The deliverable will provide pre-production testing and system acceptance
prior to launch of the NTT Japan Business.
7
<PAGE>
EXHIBIT C
Intentionally Omitted
8
<PAGE>
EXHIBIT D
DESIGNATED SITES
Japan:
Address: 1-9-1, Konan, Minato-ku, Tokyo 108-8019
--------------------------------------------------------
PILOT PROGRAM CRITERIA
TERM: As currently defined, the Pilot Program will begin on May 1, 1999 and
continue through January 15, 2000 which, may be extended by mutual agreement.
SCOPE: The objective of the Pilot Program is to refine Commerce One's
business model for an installation of the Software in Japan in Phase III. The
efforts of both parties in Japan will give Commerce One an opportunity to
create the initial infrastructure for electronic procurement service in Japan.
TESTS TO BE PERFORMED BY NTT: Commerce One expects that NTT and other
localization partners will provide the opportunity and make efforts to fully
evaluate the success of Commerce One's localization efforts, and to identify
additional functional changes that would be required in order to meet the
specific business requirements of the Japanese market.
OTHER:
9
<PAGE>
EXHIBIT E
EXCLUDED ENTITIES
To comply with the terms of certain of Commerce One's pre-
existing relationships, the following entities shall be deemed
Excluded Entities:
Ricoh
Nihon Unisys
Mitsubishi
MCI
Price WaterhouseCoopers
10
<PAGE>
EXHIBIT F
FEES
License Fees: One Million Seven Hundred Thousand Dollars (US$1,700,000)
payable within forty-five (45) days of the receipt of invoice.
Services and Deliverables: To be provided on a fixed fee basis totaling
US$770,000 payable according to the following schedule upon the delivery of
certain Deliverables by each payment date.
<TABLE>
<CAPTION>
Payment Payment Payment Amount Deliverables
Number Date
- -------- ------------ ------------------- -------------------------------------------
<S> <C> <C> <C>
1 6/15 $140,000 - FINAL PHASE II DETAILED PROJECT PLAN
- -------- ------------ ------------------- -------------------------------------------
2 8/15 $215,000 - SUPPLIER ADOPTION LOCALIZATION PLAN
- CONTENT LOCALIZATION PLAN
- SUPPLIER ADOPTION TRAINING
- CONTENT MANAGEMENT TRAINING
- -------- ------------ ------------------- -------------------------------------------
3 10/15 $165,000 - JAPANESE BUYSITE DESIGN DOCUMENT
- JAPANESE MARKETSITE DESIGN DOCUMENT
- -------- ------------ ------------------- -------------------------------------------
4 12/15 $250,000 - BUYSITE PRE LAUNCH CERTIFICATION
- MARKETSITE PRE LAUNCH CERTIFICATION
- -------- ------------ ------------------- -------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Program Title Commerce One Resource Person Month
- --------------------------------- ----------------------------- ---------------------------
<S> <C> <C>
Project Manager Project Manager 8.5
(1) 5/1/99-1/15/00
- --------------------------------- ----------------------------- ---------------------------
MarketSite Infrastructure Program MarketSite Lead 6.8
(0.8) 5/1/99-1/15/00
- --------------------------------- ----------------------------- ---------------------------
Supplier Adoption Program Supplier Adoption Lead 1.0
(0.5) 6/1/99-8/1/99
- --------------------------------- ----------------------------- ---------------------------
Content Management Program Content Management Lead 1.0
(0.5) 6/1/99-8/1/99
- --------------------------------- ----------------------------- ---------------------------
Internal BuySite Program Internal BuySite Program 6.8
(0.8) 5/1/99-1/15/00
- --------------------------------- ----------------------------- ---------------------------
Total 24.1
- --------------------------------- ----------------------------- ---------------------------
</TABLE>
Total Service Fee=
$200.00 (Service Fee : one person per hour]
x 8 hours (Working Time : hours per day [9:00-18:00 with one hour break])
x 20 days (Working Days : days per month)
x 24.1 person month
= $770,000
11
<PAGE>
Exhibit 10.8
BT AGREEMENT NO. 658270
DATED 1999
- --------------------------------------------------------------------------------
COMMERCE ONE, INC.
and
BRITISH TELECOMMUNICATIONS PLC
- --------------------------------------------------------------------------------
GOVERNANCE AGREEMENT
- --------------------------------------------------------------------------------
Nabarro Nathanson
50 Stratton Street
London W1X 6NX
Tel: 0171 493 9933
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
Clause Subject Matter Page
<S> <C>
DATE............................................................................................1
PARTIES.........................................................................................1
RECITALS........................................................................................1
1. GENERAL.........................................................................................1
2. ADVISORY COMMITTEE..............................................................................2
3. AUDIT...........................................................................................2
4. PRODUCT EVOLUTION...............................................................................3
5. BRANDING........................................................................................3
6. CONTENT MANAGEMENT..............................................................................3
7. OVERARCHING CRITERIA............................................................................3
8. CONTRACT REVIEWS................................................................................4
9. ESCALATION OF DISPUTES..........................................................................4
10. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.................................................4
C1 Representations and Warranties...............................................................4
C1 Indemnification Obligations..................................................................5
BT Representations and Warranties...............................................................5
BT Indemnification Obligations..................................................................5
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
11. TERM AND TERMINATION............................................................................6
Term............................................................................................6
Termination.....................................................................................6
12. GENERAL PROVISIONS..............................................................................6
Notices.........................................................................................6
Entire Agreement................................................................................7
Amendments......................................................................................7
Waivers.........................................................................................7
No Third Party Beneficiaries....................................................................7
Assignment......................................................................................8
Headings........................................................................................8
Severance.......................................................................................8
Severability....................................................................................8
Governing Law...................................................................................8
THE SCHEDULE INFORMATION TO BE SUPPLIED QUARTERLY TO THE ADVISORY
COMMITTEE.......................................................................................9
</TABLE>
ii
<PAGE>
GOVERNANCE AGREEMENT
("THIS AGREEMENT")
DATE 1999 (the "EFFECTIVE TIME")
PARTIES
(1) COMMERCE ONE, INC., a California corporation whose principal place of
business is at 1600 Riviera Avenue, Suite 200, Walnut Creek, California
("C1"); and
(2) BRITISH TELECOMMUNICATIONS plc whose registered office is at 81 Newgate
Street, London EC1A 7AJ and whose registered number is 1800000 ("BT").
RECITALS
(A) Pursuant to the terms and conditions of an Amended and Restated Trading
Agreement dated the same date as this Agreement by and between C1 and BT
(the "TRADING AGREEMENT"), C1 has granted to BT a MarketSite Software
licence and may grant other licences to BT pursuant to that Agreement or
pursuant to reseller arrangements proposed to be put in place between the
parties in relation to C1's BuySite product.
(B) In connection with the various trading arrangements existing and proposed
between C1 and BT, the parties wish to enter into this Agreement,
effective as of the Effective Time, with respect to the governance of
their relationships and certain other matters in relation to the products
covered by their trading arrangements.
IT IS AGREED AS FOLLOWS:
1. GENERAL
The parties agree that this Agreement, and the rights and obligations of
the parties hereunder shall become effective on the Effective Time.
Capitalised terms not defined herein shall have the meanings set forth in
the Trading Agreement.
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<PAGE>
2. ADVISORY COMMITTEE
2.1 THE PARTIES SHALL AS FROM THE EFFECTIVE TIME ESTABLISH AN ADVISORY
COMMITTEE (THE "ADVISORY COMMITTEE") CONSISTING OF TWO SENIOR REPRESENTATIVES
NOMINATED BY EACH PARTY, ONE OF WHOM SHALL BE ON THE TECHNICAL SIDE AND THE
OTHER ON THE OPERATIONAL SIDE. THE FIRST MEMBERS SHALL BE ERIC MEIER-RUEGG
AND KENTON SANMOGEN AS THE NOMINEES OF C1 AND TERRY CARLIN AND MALCOLM ROPER
AS THE NOMINEES OF BT.
2.2 EACH OF C1 AND BT WILL HAVE THE RIGHT TO REPLACE EITHER OR BOTH OF ITS
NOMINEES ON THE ADVISORY COMMITTEE, PROVIDED THAT C1 AND BT AGREE TO CONSULT
WITH EACH OTHER PRIOR TO ANY SUCH REPLACEMENT AND NOT TO APPOINT A PERSON TO
WHOM THE OTHER PARTY REASONABLY OBJECTS.
2.3 THE ADVISORY COMMITTEE SHALL MEET QUARTERLY IN LONDON OR WALNUT CREEK,
CALIFORNIA AT THE MUTUAL AGREEMENT OF THE PARTIES. IT SHALL REGULATE ITS OWN
PROCEEDINGS, PROVIDED THAT WHERE DECISIONS ARE MADE THEY SHALL BE MADE BY
UNANIMOUS VOTE OF ALL FOUR MEMBERS OF THE ADVISORY COMMITTEE. IN THE EVENT THAT
THE ADVISORY COMMITTEE IS UNABLE TO REACH AGREEMENT THE PROVISIONS OF CLAUSE 9
WILL APPLY.
2.4 THE ROLE OF THE ADVISORY COMMITTEE SHALL BE TO RECEIVE AND REVIEW RELEVANT
INFORMATION (AS REFERRED TO IN CLAUSE 2.5), PROVIDE A FORUM FOR THE SHARING OF
VIEWS, WISHES AND CONCERNS AND, WHERE EXPRESSLY STATED BELOW, TO REACH WRITTEN
AGREEMENTS WHICH SHALL BE BINDING ON C1 AND BT.
2.5 THE INFORMATION TO BE PRESENTED TO THE ADVISORY COMMITTEE FOR REVIEW AT ITS
QUARTERLY MEETINGS SHALL COVER THE MATTERS LISTED IN THE SCHEDULE AND SUCH OTHER
MATTERS AS THE ADVISORY COMMITTEE MAY FROM TIME TO TIME DECIDE. THE ADVISORY
COMMITTEE SHALL DETERMINE WHICH STATISTICS ARE REQUIRED IN RESPECT OF EACH
MATTER LISTED AND THE RESPONSIBILITY AS BETWEEN C1 AND BT TO MAKE THEM
AVAILABLE. FOR THE AVOIDANCE OF DOUBT, NO PERSONAL DATA (AS DEFINED FOR THE
PURPOSES OF THE DATA PROTECTION ACT 1998) SHALL BE DISCLOSED TO THE ADVISORY
COMMITTEE.
2.6 EACH PARTY SHALL SUPPLY THE ADVISORY COMMITTEE FOR EACH MEETING WITH ITS
BEST ESTIMATE, BASED ON REASONABLE ASSUMPTIONS, OF ITS FUTURE SUPPLIER ADOPTION
RATES AND A REVIEW OF PAST ACTUAL RATES AGAINST FORECAST IN SO FAR AS THIS IS
NECESSARY TO ASSIST THE OTHER PARTY IN PLANNING ITS OWN OPERATIONS AND
RESOURCES.
-2-
<PAGE>
3. AUDIT
Each party shall allow an independent third party reasonably acceptable
to it from time to time access at all reasonable times to inspect its
books and records for the purpose of verifying any sales, costs or other
information supplied by that other to it for the purpose of any agreement
between the parties and to obtain copies of extracts from such books and
records subject to paying reasonable copying charges for them.
4. PRODUCT EVOLUTION
4.1 C1 IS ESTABLISHING A TECHNICAL ADVISORY COUNCIL AND BT SHALL BE ENTITLED TO
DESIGNATE A SENIOR TECHNICAL REPRESENTATIVE TO BE A MEMBER OF THAT COUNCIL WITH
AN EQUAL VOICE ON THAT COUNCIL TO EACH OF THE OTHER FRANCHISE MARKETSITE
OPERATORS OF C1 MARKETSITE.
4.2 BT SHALL HAVE A FIRST OPTION TO TEST NEW SOFTWARE IN THE UK FOR NEW
MARKETSITE VALUE ADDED SERVICES BUT SHALL NOT BE OBLIGED TO CARRY OUT BETA
TESTING.
4.3 WHERE NEW VALUE ADDED SERVICES ARE READY FOR LICENSING IN THE UK, C1 WILL
GIVE BT FIRST OPPORTUNITY TO ACQUIRE A NON-EXCLUSIVE LICENCE FOR THE UK PROVIDED
THAT THIS SHALL NOT PREVENT C1 OFFERING THE SAME RIGHT TO ANY BETA TESTER OF
THAT SERVICE.
5. BRANDING
5.1 THE PARTIES HAVE JOINTLY AGREED THE FOLLOWING BRANDING DESCRIPTION FOR BT'S
SERVICE USING MARKETSITE, NAMELY "BT MARKETSITE POWERED BY COMMERCE ONE" AND
AGREE THAT THIS SHALL BE USED AS THE SOLE BRAND FOR THAT SERVICE. EXCEPT AS
STATED ABOVE, NEITHER PARTY HAS ANY RIGHT TO USE ANY TRADE OR SERVICE MARK OF
THE OTHER EXCEPT WITH THE WRITTEN AGREEMENT OF THE OTHER. THE PROVISIONS OF THIS
CLAUSE 5.1 SHALL SURVIVE AND CONTINUE IN FORCE AFTER ANY TERMINATION OF THIS
AGREEMENT.
5.2 THE BRANDING SHALL BE KEPT UNDER REVIEW BY THE ADVISORY COMMITTEE, BUT ANY
CHANGE TO THE BRANDING DESCRIPTION AS SET OUT IN THE SAID MARKETING AGREEMENT
WHICH IS RECOMMENDED BY IT SHALL REQUIRE THE WRITTEN CONSENT OF BOTH BT AND C1
BEFORE IT IS IMPLEMENTED.
-3-
<PAGE>
6. CONTENT MANAGEMENT
BT agrees that it will comply with standards for supplier content on
MarketSite agreed between C1 and BT from time to time.
7. OVERARCHING CRITERIA
In acknowledgement of C1's interest in a successful take up of the
Market Site service, BT will discuss with C1, in the context of the
Advisory Committee, its proposed overarching criteria for its
MarketSite and will take account of these criteria, as amended from
time to time.
8. CONTRACT REVIEWS
8.1 IF EITHER C1 OR BT CONSIDER THAT THE FINANCIAL ARRANGEMENTS BETWEEN THEM CAN
NO LONGER PRODUCE THE RESULTS ANTICIPATED IN THE ORIGINAL FINANCIAL MODEL, THEN
IT SHALL REFER THE MATTER TO THE ADVISORY COMMITTEE AND C1 AND BT SHALL PROCURE
THAT THEIR RESPECTIVE APPOINTEES ON THE ADVISORY COMMITTEE SHALL NEGOTIATE IN
GOOD FAITH TO ENDEAVOUR TO AGREE AN AMENDMENT TO THE FINANCIAL ARRANGEMENTS
WHICH IS FAIR TO BOTH PARTIES.
8.2 IF THEY ARE UNABLE TO REACH AN AGREEMENT, THE MATTER SHALL BE ESCALATED IN
ACCORDANCE WITH CLAUSE 9 AND IF THAT FAILS TO ACHIEVE AN AGREEMENT NO CHANGE
SHALL BE MADE TO THE FINANCIAL ARRANGEMENTS. IF AN AGREEMENT IS REACHED WITHIN
THE ADVISORY COMMITTEE OR IN ACCORDANCE WITH THE ESCALATION PROCEDURE, THE
PARTIES SHALL AGREE THE APPROPRIATE CHANGES TO THE AGREEMENTS BETWEEN THEM.
9. ESCALATION OF DISPUTES
9.1 WHERE ANY MATTER REQUIRES TO BE AGREED OR DETERMINED, BY THE ADVISORY
COMMITTEE UNDER THIS AGREEMENT BUT THE NECESSARY UNANIMOUS AGREEMENT OF THE
MEMBERS CANNOT BE OBTAINED, THE MATTER SHALL BE REFERRED TO THE CHIEF EXECUTIVE
OFFICER OF C1 AND GENERAL MANAGER OF THE BT E-BUSINESS UNIT FOR THEIR AGREEMENT.
IF THEY REACH AGREEMENT, IT SHALL BE DEEMED TO BE THE AGREEMENT OF THE ADVISORY
COMMITTEE FOR THE PURPOSES OF THIS AGREEMENT. IF AGREEMENT CANNOT BE REACHED AND
IN THE REASONABLE OPINION OF EITHER PARTY THE INABILITY TO AGREE MAKES IT
IMPOSSIBLE TO GOVERN THEIR RELATIONSHIP IN THE MANNER REASONABLY ANTICIPATED AT
THE OUTSET THEN EITHER PARTY MAY BY NOTICE TO THE OTHER TERMINATE THIS AGREEMENT
AND THE AMENDED TRADING AGREEMENT BUT, FOR THE AVOIDANCE OF DOUBT, SUCH
TERMINATION SHALL NOT AFFECT ANY ORDER.
-4-
<PAGE>
9.2 THE PARTIES AGREE THAT ANY DISPUTE ARISING UNDER ANY OF THE AGREEMENTS
BETWEEN THEM SHALL, BEFORE EITHER PARTY RESORTS TO OTHER LEGAL REMEDIES
(INCLUDING THE EXERCISE OF A RIGHT TO TERMINATE), BE REFERRED TO THE ADVISORY
COMMITTEE FOR DISCUSSION AND, IF POSSIBLE, RESOLUTION AND, FAILING THAT, SHALL
BE ESCALATED IN ACCORDANCE WITH CLAUSE 9.1, PROVIDED THAT THIS SHALL NOT APPLY
WHERE ACTION NEEDS TO BE TAKEN URGENTLY BY EITHER PARTY TO PROTECT ITS
LEGITIMATE INTERESTS.
10. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
10.1 C1 REPRESENTATIONS AND WARRANTIES
C1 represents and warrants to BT that:
10.1.1 it has the right, power and authority to enter into this Agreement
and fully to perform its obligations under this Agreement;
10.1.2 the making of this Agreement by it does not violate any agreement
existing between it and any other person or entity;
10.1.3 it complies, and at all times shall comply, with all applicable
laws, rules and regulations in effect at the time services are
performed pursuant to this Agreement pertaining to the subject
matter hereof; and
10.1.4 it shall not exercise any of the rights granted to it under or
pursuant to this Agreement in a manner that shall violate any
applicable law, rule or regulation.
10.2 C1 INDEMNIFICATION OBLIGATIONS
C1 agrees to, and shall, indemnify, defend and hold harmless BT and
its Affiliates and their respective directors, shareholders,
officers, agents, employees, successors and assigns from and against
any and all claims, demands, suits, judgments, damages, costs,
losses, expenses (including reasonable attorneys' fees and expenses)
and other liabilities arising from actions brought by third parties
in connection with or related to, directly or indirectly, any breach
or alleged breach of any of the representations or warranties made by
it under Clause 10.1, provided that BT gives C1 full control over the
defence (including any settlements) of any such claim; and BT
provides C1 with full information and reasonable assistance, at C1's
expense. C1 shall keep BT informed of, and consult with BT in
connection with, the progress of such litigation or settlement and
(i) C1 shall not have any right, without BT's written consent, to
settle any such claim if such settlement arises from or is part of
any criminal action, suit or proceeding or contains a stipulation to
or admission or acknowledgement of any liability or wrongdoing
(whether in contract, tort or otherwise) on
-5-
<PAGE>
the part of any BT Affiliate, and (ii) BT shall promptly notify C1 of
any such claim. For the purposes of this Clause "Affiliate" has the
meaning in the Amended and Restated Trading Agreement between the
parties.
10.3 BT REPRESENTATIONS AND WARRANTIES
BT represents and warrants that:
10.3.1 it has the right, power and authority to enter into this Agreement
and fully to perform its obligations under this Agreement;
10.3.2 the making of this Agreement by it does not violate any agreement
existing between it and any other person or entity;
10.3.3 it complies, and at all times shall comply, with all applicable
laws, rules and regulations in effect at the time services are
performed pursuant to this Agreement pertaining to the subject
matter hereof; and
10.3.4 it shall not exercise any of the rights granted to it under or
pursuant to this Agreement in a manner that shall violate any
applicable law, rule or regulation.
10.4 BT INDEMNIFICATION OBLIGATIONS
BT agrees to, and shall, indemnify, defend and hold harmless C1 and
its Affiliates, and its directors, shareholders, officers, agents,
employees, successors and assigns from and against any and all
claims, demands, suits, judgments, damages, costs, losses, expenses
(including reasonable attorneys' fees and expenses) and other
liabilities arising from actions brought by third parties in
connection with or related to, directly or indirectly, any breach or
alleged breach of the representations or warranties made by it under
Clause 10.3. C1 shall promptly notify BT of any such claim; C1 gives
BT full control over the defence (including any settlements) of such
claim; and C1 provides BT with full information and reasonable
assistance, at BT's expense; provided, however, that (i) BT shall
keep C1 informed of and consult with C1 in connection with the
progress of such litigation or settlement; and (ii) BT shall not have
any right, without C1's written consent, to settle any such claim if
such settlement arises from or is part of any criminal action, suit
or proceeding or contains a stipulation to, or admission or
acknowledgement of, any liability or wrongdoing (whether in contract,
tort or otherwise) on the part of C1.
-6-
<PAGE>
11. TERM AND TERMINATION
11.1 TERM
The term of this Agreement shall commence as of the Effective Time
and shall continue until termination of the Trading Agreement unless
terminated earlier in accordance with Clause 11.2.
11.2 TERMINATION
Without prejudice to any other rights or remedies available to the
parties, BT and C1 shall each have the right, in its sole discretion,
to terminate this Agreement upon written notice to the other in the
event of the occurrence of one or more of the following:
11.2.1 In the event that the other party shall become insolvent or cease
to trade or compound with its creditors, or a receiver or an
administrative receiver is appointed in respect of any of the
other party's assets or a petition for an administration order is
presented or such an order is made in relation to the other party
or a resolution or petition or order to wind up the other party is
passed or presented or made or a liquidator is appointed in
respect of it (otherwise than for reconstruction or amalgamation).
11.2.2 The other party breaches any material term or provision of this
Agreement and fails to cure such breach within sixty (60) days
after the non-breaching party delivers written notice thereof to
the other party stating what actions are required to cure such
breach or indicating that such breach is incapable of being cured;
provided that the alleged breaching party shall use its reasonable
efforts to timely cure such breach.
11.2.3 The management ownership or control of the other is changed to the
detriment of BT or Commerce One as applicable.
12. GENERAL PROVISIONS
12.1 NOTICES
12.1.1 All notices which either party is required or may desire to serve
upon another party shall be in writing and addressed as follows:
-7-
<PAGE>
(a) if to BT:
British Telecommunications plc
Stephen Russell
BT Business Services
PPB113
North Star House
North Star Avenue
Swindon SM2 1BS
(b) if to C1:
Commerce One, Inc.
1600 Riviera Avenue, Suite 200
Walnut Creek
California 94596
Attn: Robert M. Tarkoff, Esq.
12.1.2 Any such notice may be served personally or by mail (postage
prepaid), facsimile (provided oral confirmation of receipt is
immediately obtained and a hard copy is concurrently sent by
internationally commercially recognised overnight delivery
service), internationally commercially recognised overnight
delivery service (such as Federal Express or DHL) or courier.
Notice shall be deemed served upon personal delivery or upon
actual receipt. Any party may change the address to which notices
are to be delivered by written notice to the other parties served
as provided in this Clause 12.1.
12.2 ENTIRE AGREEMENT
This Agreement, together with its Schedules constitutes the complete,
final and exclusive understanding and agreement between the parties
with respect to the transactions contemplated, and supersedes any and
all prior or contemporaneous oral or written representations,
understanding, agreement or communication between the parties
concerning the subject matter hereof.
12.3 AMENDMENTS
All amendments or modifications of this Agreement shall be binding
upon the parties so long as the same shall be in writing and executed
by each of the parties hereto.
-8-
<PAGE>
12.4 WAIVERS
No waiver of any provision of this Agreement or any rights or
obligations of any party hereunder shall be effective, except
pursuant to a written instrument signed by the party waiving
compliance, and any such waiver shall be effective only in the
specific instance and for the specific purpose stated in such
writing.
12.5 NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement is intended or shall be construed to give
any person, other than the parties hereto, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
12.6 ASSIGNMENT
No party shall, directly or indirectly, assign this Agreement to any
third party, except that either party may assign this Agreement to
its parent corporation or any entity of which its parent owns at
least 80% of the voting equity.
12.7 HEADINGS
The section and sub-section headings and captions appearing in this
Agreement are inserted only as a matter of convenience and shall not
be given any legal effect.
12.8 SEVERANCE
If any aspect of this Agreement is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Agreement. In such case this Agreement shall be construed and
enforced as if it did not contain such provision. The Parties shall
negotiate in good faith to modify and, or replace such provision with
one that is valid and legally enforceable.
12.9 SEVERABILITY
If any aspect of this Agreement is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Agreement. In such case this Agreement shall be construed and
enforced as if it did not contain such provision. The Parties shall
negotiate in good faith to modify and, or replace such provision with
one that is valid and legally enforceable. If the Parties cannot
reach agreement on a new provision which places the Parties in a
position similar to the commercial position which would have
prevailed prior to
-9-
<PAGE>
the modification or replacement being required, either Party may, in
its sole discretion, withdraw from the Agreement.
12.10 GOVERNING LAW
This Agreement is governed by English law and each party submits to
the non-exclusive jurisdiction of the English Courts.
IN WITNESS WHEREOF the duly authorised representatives of each party have
executed this Agreement as of the day and year first written above.
BRITISH TELECOMMUNICATIONS plc COMMERCE ONE, INC.
By: By:
Name: Name:
<PAGE>
Exhibit 10.9
BT AGREEMENT NO. 658269
MARKETING AGREEMENT
DATED 1999
BETWEEN:
BRITISH TELECOMMUNICATIONS, PLC, a corporation organized under the laws of
England, having its registered office at 81 Newgate Street, London EC1A 7AJ
(hereinafter "BT"), and
COMMERCE ONE, INC., a corporation organized under the laws of California, having
a place of business at 1600 Riviera Avenue, Walnut Creek, California 94596
(hereinafter "C1")
WHEREAS the parties desire to enhance the marketing of the BT/C1 MarketSite
solution; and
WHEREAS each of C1 and BT desire to define their mutual rights and obligations
in connection with any joint marketing activities;
NOW THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1.0 TERM
This Agreement shall commence on the date of this Agreement ("the
Effective Date") and continue in full force and effect until the expiry
of the Initial Period under the MarketSite Licence granted by Commerce
One to BT of the same date as this Agreement or earlier termination of
Commerce One's undertaking under Clause 1.1.(b) of that Licence.
2.0 RESPONSIBILITIES AND OBLIGATIONS OF BT AND COMMERCE ONE
2.1 ADDITIONAL OBLIGATIONS: In addition to the responsibilities
set forth in this Agreement, the parties agree to the
additional responsibilities set out in the MarketSite Licence,
the Amended and Restated Trading Agreement, and the Governance
Agreement between the parties of even date herewith, including
the agreements contemplated therein.
2.2 MARKETING PACKAGE: BT will supply Marketing Packages for use
in marketing the service to BT customers, provided that C1
shall have the right to review those parts of the materials
supplied by BT in the Marketing Package that relate to
Commerce One other than in relation to prices.
<PAGE>
BT shall give C1 ten (10) business days prior written
notice should BT elect to change any of the materials in
the MarketSite Marketing Package that relates to C1 and
will provide C1 with a complete copy of the relevant part
of the revised Marketing Package at least ten (10) days
prior to the effective date of any changes. C1 shall have
the right to review all changes to the elements of the
Marketing Package that relate to C1, and to request, at
C1's expense, any modifications that are required.
2.3 Commerce One agrees to prominently display the BT brand when
BuySite customers connect to the BT MarketSite so far as this
is technically feasible and Commerce One agrees to use
reasonable endeavours to achieve such technical feasibility.
3.0 MARKETING AND SALES PROGRAMS
BT will contribute a minimum of L500,000 and Commerce One will
allocate a minimum of US $200,000 in each case towards the initial
marketing launch of the C1 MarketSite Service for the development
and execution of marketing and sales programs for the financial year
commencing 1st April 1999; provided that if BT elects not to
contribute at least L500,000 for such purposes, then C1 shall have
the option of terminating this Agreement without penalty upon thirty
(30) days prior written notice. Expenditure of the marketing and
sales program funds shall be as set forth in the Marketing Plan to
be agreed by the parties within sixty (60) days of this Agreement.
If this is not agreed the parties will still be obliged to make the
above contributions for the purposes referred to above.
4.0 TERMINATION
4.1 Either party shall be entitled to terminate this Agreement immediately
on written notice to the other if the other party is in breach of any
of the terms of this Agreement and in the event of a breach capable of
being remedied, fails to remedy the breach within thirty (30) days of
receipt of notice of the breach in writing.
4.2 If Commerce One terminates this Agreement in accordance with Clause 3
or Clause 4.1 Commerce One's undertaking in Clause 1.1(b) and the
obligations of BT and Commerce One under Clause 1.1(d) of said
MarketSite Licence shall terminate automatically.
5.0 SEVERANCE
If any aspect of this Agreement is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Agreement. In such case this Agreement shall be construed and enforced
as if it did not contain such provision. The Parties shall negotiate in
good faith to modify and, or replace such provision with one that is
valid and legally enforceable. If the Parties cannot reach agreement on
a new provision which places the Parties in a position similar to the
commercial position which would have prevailed prior
-2-
<PAGE>
to the modification or replacement being required, either Party may,
in its sole discretion, withdraw from the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorised representatives as of the Effective Date.
BT . COMMERCE ONE, INC.
By: By:
------------------------- -------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------- -------------------------
Date: Date:
------------------------- -------------------------
-3-
<PAGE>
Exhibit 10.10
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
Official Order Cover Sheet
This Order (which comprises this Official Order Cover Sheet and appended
documents referenced below) is subject to the terms and conditions of the
BT/Commerce One Amended and Restated Trading Agreement dated March 25, 1999.
Should the terms and conditions of this Order conflict with or vary from those
of the Trading Agreement then the Trading Agreement shall take precedence;
however variations that are clearly and explicitly set out in the Variation to
Trading Agreement section of this Order shall take precedence over those terms
set forth in the Trading Agreement. Any definitions used in this Order shall
have the meanings given in the attached BT Commerce One Marketsite Licence - BT
Order 658272
<TABLE>
- ------------------------------------------- -----------------------------------------------------------------
<S> <C>
ORDERING ENTITY: BRITISH TELECOMMUNICATIONS PLC ("BT")
- ------------------------------------------- -----------------------------------------------------------------
POINT OF CONTACT: STEVE RUSSELL
- ------------------------------------------- -----------------------------------------------------------------
ADDRESS: PPB113 NORTH STAR HOUSE
- ------------------------------------------- -----------------------------------------------------------------
NORTH STAR AVENUE
- ------------------------------------------- -----------------------------------------------------------------
SWINDON. UNITED KINGDOM
- ------------------------------------------- -----------------------------------------------------------------
POSTCODE: SN2 1BS
- ------------------------------------------- -----------------------------------------------------------------
- ----------------------------------------------------------------------------------- --------------------------
STATE WHETHER ORDER IS A COMMERCIAL SERVICE LICENCE (REFERRED TO IN CLAUSE 5.2.2 YES
OF THE TRADING AGREEMENT
- ----------------------------------------------------------------------------------- --------------------------
STATE WHETHER ORDER IS A SPECIAL COMMISSIONING ORDER (REFERRED TO IN CLAUSE 5.8 NO
OF THE TRADING AGREEMENT)
- ----------------------------------------------------------------------------------- --------------------------
ORDER NO: 658272
- ------------------------------------------- -----------------------------------------------------------------
QUOTATION NO: BT COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- ------------------------------------------- -----------------------------------------------------------------
PRICE AND CURRENCY: $600,000
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
DELIVERY ADDRESS: TERRY CARLIN
ANZANI HOUSE
TRINITY AVENUE
FELIXSTOWE
- ------------------------------------------- -----------------------------------------------------------------
POST CODE: IP11 8XB
- ------------------------------------------- -----------------------------------------------------------------
INVOICE ADDRESS IF FROM ABOVE: COLLETTE BLACKMORE
- ------------------------------------------- -----------------------------------------------------------------
PP302F, TELECOM HOUSE (TLC-M6), 91 LONDON ROAD
- ------------------------------------------- -----------------------------------------------------------------
MANCHESTER, LANCASHIRE, UNITED KINGDOM.
- ------------------------------------------- -----------------------------------------------------------------
</TABLE>
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
<TABLE>
- ------------------------------------------- -----------------------------------------------------------------
<S> <C>
POST CODE: M60 1HQ
- ------------------------------------------- -----------------------------------------------------------------
</TABLE>
WORK REQUIRED AND TIMESCALES (INCLUDING BT COMMERCE ONE MARKETSITE LICENCE -
REFERENCES TO ANY APPENDED DOCUMENTS)* BT ORDER 658131
- ------------------------------------------- ------------------------------------
*WHERE THE QUOTATION AND OR SPECIFICATION ARE NOT ATTACHED TO THIS DOCUMENT THEN
THE WORK REQUIRED AND TIMESCALES SHOULD BE IDENTIFIED.
<TABLE>
- ------------------------------------------------------- -----------------------------------------------------
<S> <C>
VARIATION TO TRADING AGREEMENT THE PROVISIONS OF CLAUSE 1.
- ------------------------------------------------------- -----------------------------------------------------
Authorised Signatures
- ------------------------------------------------------- -----------------------------------------------------
ORDERING ENTITY COMMERCE ONE
- ------------------------------------------------------- -----------------------------------------------------
NAME: NAME:
- ------------------------------------------------------- -----------------------------------------------------
SIGNATURE: SIGNATURE:
- ------------------------------------------------------- -----------------------------------------------------
DATE: DATE:
- ------------------------------------------------------- -----------------------------------------------------
</TABLE>
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
BT - Commerce One MarketSite Licence and associated services ("Licence")
THIS LICENCE IS BETWEEN:
1. COMMERCE ONE INC OF 1600 RIVIERA AVENUE, WALNUT CREEK, CALIFORNIA 94596, USA
("COMMERCE ONE"); AND
2. BRITISH TELECOMMUNICATIONS PLC OF 81 Newgate Street, London EC1A 7AJ ("BT").
THESE ARE THE AMENDED AND RESTATED TERMS AND CONDITIONS OF THE LICENCE GRANTED
IN ACCORDANCE WITH BT ORDER 658131 AND THE DATE OF THIS LICENCE IS TO BE TREATED
FOR ALL PURPOSES AS 8 JANUARY 1999.
CONTENTS
1. Commerce One Deliverables
1.1 MarketSite licence
1.2 Software support
1.3 Services
2. Charges and fees
DEFINITIONS
<TABLE>
<S> <C>
"API" means Application Programming Interface
"Business Day" means any day other than Saturday, Sunday, Christmas
Day or Good Friday and other than a bank holiday in
England.
"Governance Agreement" means the agreement of that name of the same date as
this licence between Commerce One and BT.
</TABLE>
<PAGE>
CONFIDENTIAL
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
"Initial Period" means the period from the date of this Licence until
[*] (unless terminated earlier in accordance with the
terms of the Licence) comprising a Beta testing
period from [*] to [*] and a launch period from [*]
to [*].
"MarketSite" means a software product and a set of services which
Commerce One has created to enable commerce service
providers to create interactive trading communities
as further described in Appendix 1.
"MarketSite Revenues" mean all revenues (exclusive of VAT) earned by BT
from the operation of MarketSite or the provision of
any service using MarketSite including without
limitation access fees, extranet licence fees,
transaction fees and subscriptions to services
whether payable by buyers or suppliers but not
supplier support fees, content management services
fees and telecommunications network usage charges and
set up fees and excluding any BT services which do
not use MarketSite as a significant vehicle for
conducting transactions.
"MarketSite Services" means the Services which can be provided to
purchasers and suppliers using the MarketSite
Software including the granting of access to
MarketSite operations.
"MarketSite Software" means the Commerce One MarketSite software described
in Appendix 1.
</TABLE>
[*] = CERTAIN INFORMATION ON THIS PAGE HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS
<PAGE>
<TABLE>
<S> <C>
"Trading Agreement" means the Amended and Restated Trading Agreement
658130 dated January 8 1999 between Commerce One and
BT.
"UK" means the United Kingdom of Great Britain and
Northern Ireland, the Channel Islands and Isle of
Man.
</TABLE>
1. Commerce One Deliverables
In consideration of payment of charges, royalties and fees described in clause
2, Commerce One shall deliver the following licences, services and deliverables.
- --------------------------------------------------------------------------------
1.1 MARKETSITE LICENCE
- --------------------------------------------------------------------------------
(a) For the licence fee and royalties set out in clause 2(a), Commerce
One hereby grants BT a perpetual, transferable license to install
the MarketSite Software anywhere in the UK. BT may use the
MarketSite Software to offer a commercial service to any customer
anywhere in the world except BT undertakes that during the Initial
Period it will not actively market (which for the avoidance of doubt
does not prevent fulfillment of existing or passively acquired
supplier commitments or responding to requests from suppliers with a
principal place of business in the areas referred to below or
elsewhere or fulfilling access requests in these areas) its
MarketSite Services to suppliers whose principal place of business is
in Japan, North America, Latin America or South Africa; this
limitation shall only apply to the extent that Commerce One has
contractual exclusivity commitments with another party (Commerce One
shall use all reasonable endeavours to ensure that such commitments
will give BT reciprocal rights in respect of passively acquired
sales to those detailed above). For the avoidance of doubt this
Licence is a Commercial Service Licence as referred to in clause
5.2.2 of the Trading Agreement.
(b) Subject to clause 1.1 (c) Commerce One undertakes that it will not
itself, and will not grant any license to a third party in respect
of the MarketSite Software or any software with equivalent
functionality which permits that third party during the Initial
Period to, install in the UK or to actively market its MarketSite
Services to suppliers (which for the avoidance of doubt does not
prevent fulfillment of existing or passively acquired supplier
commitments or responding to requests from suppliers with a
principal place of business in the UK or access requests in the UK)
whose principal place of business is in the UK or itself so actively
market during the Initial Period Provided that for the avoidance of
doubt this restriction does not prevent access being allowed by
another MarketSite operator with MarketSite software installed
outside the UK to a supplier whose principal place of business in
the UK if it is requested by a customer of that MarketSite operator
where such access is not then available through connections between
BT and that MarketSite operator or the customer does not wish to
access it in that way, Commerce One agrees to allow such other
MarketSite operators the same freedom as in this proviso.
(c) If in any quarter as specified below BT does not sell (meaning entering
into a legally binding agreement and receiving the initial payment
for) the minimum number of milestone extranet access licenses to its
MarketSite Services specified in the table below (subject to any
adjustment in accordance with (i) below) for that quarter ("deficit
quarter"). Commerce One may, by notice to BT given within seven (7)
Business Days following the end of that quarter, terminate its
undertaking in clause 1.1 (b) and the obligations under
Clause 1.1(d)(i) and (ii).
Provided that (but only if the provisions of this proviso have not been
implemented in both the preceding two quarters) Commerce One's notice
given as above shall cease to be of effect if within the ten (10)
Business Days referred to above either
(i) BT agrees that the minimum number of extranet access licences for
the then current quarter shall be increased by the amount of the
shortfall in the deficit quarter or
(ii) BT undertakes to Commerce One within such ten (10) Business Days
to pay to Commerce One a sum equal to 100% of the average extranet
access licence fees charged by BT in the quarter (if any) which
<PAGE>
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
preceded the deficit quarter multiplied by the shortfall in number
in the deficit quarter.
The following is the schedule of milestone extranet access licences to
BT's MarketSite Services during the Initial Period:
<TABLE>
<CAPTION>
QUARTER ENDING NUMBER OF LICENCES
-------------- ------------------
<S> <C>
30 June 1999 [*]
30 September 1999 [*]
31 December 1999 [*]
31 March 2000 [*]
30 June 2000 [*]
</TABLE>
References to extranet access licences and fees for them include for
the above purpose licences or subscriptions howsoever designated and
fees for them.
BT shall notify Commerce One in writing of the relevant sales in each
of the above quarters within three (3) Business Days of the end of that
quarter failing which it shall be conclusively presumed for the
purposes of determining whether Commerce One's right under this (c) is
exercisable that there were no such sales.
(d) (i) BT undertakes that BT e-Business will only promote the
MarketSite Service using MarketSite for business-to-business
electronic procurement of commoditised indirect goods and
services during the Initial Period. Should BT breach this
undertaking Commerce One may by notice in writing to BT
terminate its undertakings in Clause 1.1(b) and the obligations
under clauses 1.1.(d)(i) and (ii) provided that this shall not
prevent promotion of single supplier catalogues promoted by
Infobank or ICAT or GEM's retail direct good trading. For the
avoidance of doubt this obligation shall not apply to BT other
than BT's unit or units e-Business unit or its successor.
(ii) Commerce One undertakes that it will only promote to suppliers or
customers in the UK BT's MarketSite Service for
business-to-business electronic procurement of commoditised
indirect goods and services during the Initial Period.
(e) Commerce One undertakes that before 30 September 1999 it will publish
open APIs and provide MarketSite integration to third party purchasing
applications.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS.
<PAGE>
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
(f) For the avoidance of doubt no licence is granted to Commerce One in
respect of content, pricing and transactional information that may be
derived from BT's use of the MarketSite Software.
- --------------------------------------------------------------------------------
1.2 SOFTWARE SUPPORT MARKETSITE
- --------------------------------------------------------------------------------
Commerce One shall support the MarketSite Software in accordance with the terms
of the Trading Agreement.
The parties agree that all major and minor upgrades and new releases of the
MarketSite product shall be offered to BT at no charge under the current
Maintenance and Support Agreement and will be reflected in the standard
Maintenance and Support arrangements. The parties further agree that additional
value-added services which Commerce One provides to BT which have either (1) an
identifiable incremental revenue stream, (2) are sourced from third parties and
carry a royalty obligation by Commerce One to the outside vendor, or (3) can
reasonably be considered to have new functionality that is bundled and sold by
Commerce One as an add-on product to other customers, shall be considered new
products, and Commerce One shall be authorized to price separately from the
initial MarketSite license fee paid by BT.
- --------------------------------------------------------------------------------
1.3 SERVICES
- --------------------------------------------------------------------------------
(a) Commerce One shall provide up to eight (8) person months at no additional
charge to BT to carry out implementation of the MarketSite Software for
BT, including
- - System Infrastructure/Installation
- - Testing in BT hosting infrastructure
- - Knowledge transfer and training for the BT/Commerce One project team
- - On-Site technical support
- - Localisation support substantially in the form and scope as described
in Appendix 1 to this Licence
- - Support for supplier adoption and content management training and
skills transfer
The allocation of these services will be managed through written call-off
from BT. Commerce One shall provide a monthly statement to BT that details
the usage of such services, deliverables achieved and reference to the
relevant call-off document.
<PAGE>
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
b) Commerce One agrees that any additional services required by
BT shall be billed at Commerce One's Professional Services
Rates from time to time, the current rates being as set forth
in Appendix 2 to this Licence (subject to BT placing an Order
for such services from time to time) provided that increases
in the first 5 years of this Agreement shall not exceed
increases in the US Consumer Price Index after the date of
this Licence and no increase shall take effect before the
expiry of 12 months from the date of this Licence.
c) BT will provide supplier content management as part of the
Market Site service, with the amount and timing of the content
to be adopted to be subject to agreement between BT and its
customers. BT may procure additional services from Commerce
One to deliver service to its customers at charges to be
mutually agreed on a case by case basis.
2. Charges and Fees
(a) BT shall pay Commerce One:
(i) an initial lump sum licence fee of US$500,000 upon delivery,
successful installation and acceptance of the MarketSite
Software and services described within this Licence;
(ii) a royalty at the rate of 20% of all MarketSite Revenues (any
dispute as to what is included in MarketSite Revenues being
referred to resolution under the Governance Agreement); and
(iii) support fees in accordance with scale set out in the Trading
Agreement which for the avoidance of doubt shall be US$90,000
per annum beginning after the end of the first year of this
Agreement. Such fees shall be payable six (6) monthly in
arrears.
(b) As owner of all content and transactions carried on or across the
MarketSite, BT shall charge customers using the MarketSite Services fees
it deems appropriate for usage of such services.
(c) BT shall notify Commerce One of the MarketSite Revenues received in each
quarter ending 31 March, 30 June, 30 September or 31 December and sums
payable under clause (2)(a)(ii) within thirty (30) days of the end of the
quarter and shall pay Commerce One's invoice for the sums due to Commerce
One within 30 days of date of invoice. Commerce One shall be entitled to
audit such statements in accordance with the provisions of the Governance
Agreement.
<PAGE>
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
(d) Where new services not currently provided are to be provided by BT using
the MarketSite Software as the platform, the revenues from these new
services shall be included in MarketSite Revenues but the parties will
discuss any alteration to the royalty rate applicable to MarketSite
Revenues from these new services in accordance with the procedures in the
Governance Agreement provided that if a different rate is agreed it shall
not be more than 20% nor less than 5%. In addition where such a new
service is sourced from a third party the revenue from such new service
shall be deemed to be the revenue net of the royalties payable to such
third party.
3. Severance
If any aspect of this Licence is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Licence. In such case this Licence shall be construed and enforced as if it
did not contain such provision. The parties shall negotiate in good faith to
modify and, or replace such provision with one that is valid and legally
enforceable.
4. Menu Content
The provisions of Exhibit 4 apply.
5. Global MarketSite
BT shall support Commerce One's objective to secure the availability of each
MarketSite Software licensee's supplier content on all MarketSites once this
is technically achievable and for this purpose shall endeavor (unless in the
reasonable opinion of BT this will be detrimental to BT) to reach agreement
with other licensees of MarketSite Software for the sharing of supplier
content and ensure that the supplier content of BT's MarketSite accords with
the common standards set by Commerce One. Commerce One shall use its
commercially reasonable endeavours to include a similar term in its
agreements with other operators of MarketSite.
<PAGE>
BT - COMMERCE ONE MARKETSITE LICENCE - BT ORDER 658272
- --------------------------------------------------------------------------------
APPENDIX 1
COMMERCE ONE MARKETSITE VERSION 2.0
December 1998
WHAT IS MARKETSITE
MarketSite is an online trading community for business to business
e-commerce. Commerce One MarketSite provides the environment and required
tools to build interactive trading communities for business to business
commerce.
MarketSite consists of both a product and a set of services which Commerce
One has created to enable CSP's (commerce service providers) to create
interactive trading communities.
The product portion is the infrastructure and applications to enable the
trading community. The services are the content management services and
process to create and maintain the multi-supplier catalog.
MarketSite can be broken down into three key areas:
1. Infrastructure services or a platform on which all other trading community
services are built
2. Commerce Communication Services - these are hosted and distributed
services which provide the real time transaction capabilities and
connectivity with trading partners
3. Applications - value add applications built on top of MarketSite
infrastructure services.
WHAT COMPONENTS ARE PROVIDED WITH MARKETSITE 2.0:
1. MarketSite Transaction Server, version 6.5
- - MarketSite maintains a centrally hosted transaction server (servers) to
manage business transaction exchange. All servers are NT based, and use
Cisco's Local Director to provide load balancing and fault tolerance in
addition, transaction servers use RAID 1 for critical data storage and
redundancy.
- - Base Capabilities
- Purchase order processing and reconciliation
- Real time price checking
- Real time availability checking
- Status checking
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2. SupplyOrder v1.03
- Hosted application, that provides order management services for
suppliers who wish to use MarketSite, but do not have the system
capability to integrate using SIS.
3. Pricing Server
- Used in conjunction with the MarketSite Transaction Server and
SupplyOrder provides contract pricing support for suppliers that are
not integrated using SIS.
4. Content Management (tools and process), CUP tool version 2.03 (scheduled
for January 99)
- Consist of the Catalog Update Package (CUP) tool set. These tools are
used to assemble and distribute catalog content to subscribing BuySite
customers.
5. Supplier Integration Services (SIS)
- MarketSite supplier integration package, 1used by professional
services to directly integrate suppliers systems into MarketSite
- Base Components
- Java listener program
- Supporting documentation
Commerce One agrees to work with BT to provide scaleability of the MarketSite
Software at such levels as will accommodate 250m transactions, 100m SKUs, 500
buyers, 5000 suppliers.
MARKETSITE INTERNATIONALISATION PLANS
MarketSite version 2.0 and BuySite version 4.0 are in the process of being
Internationalised (I18N) and localised (L10N). Both products will have
I18N/L10N performed for British English and German. Expected delivery date is
April 1999. Commerce One agrees to provide an internationalisation kit to be
used by BT to develop currency code support and currency translation which
shall be provided under the Maintenance and Support Agreement.
MARKETSITE PRODUCT ROADMAP
Please see Product Roadmap attached as Appendix 3.
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APPENDIX 2
PROFESSIONAL SERVICES RATES
EXHIBIT A
PROFESSIONAL SERVICES RATE SCHEDULE
EFFECTIVE AS OF JANUARY 1ST, 1999 THROUGH JUNE 30TH, 1999
THE DOLLAR TO STERLING RATE IS FIXED AS OF 25 MARCH 1999
<TABLE>
<CAPTION>
CATEGORY ROLE DESCRIPTION HOURLY
-------- ---------------- RATE
------
<S> <C> <C>
PROJECT
MANAGEMENT $300.00
Project Director Involved with large or strategic customer projects where
Commerce One is required to provide a senior-level role in
executive management meetings, or at a minimum, in the
initial project planning and scope definition tasks
Account Manager Commerce One's primary customer interface to ensure that
the project deliverables are completed. This includes:
- Working with the customer at the beginning of the
project to define the project scope, roles and
responsibilities
- Coordinating partners and Commerce One on projects
- Assisting in defining what information is required
to complete the MAP methodology components (i.e.,
assessments, supplier and customer adoption,
integration, catalog development and other
implementation tasks)
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
PRODUCT This position reports to the Account Manager for project work.
CONSULTING $250.00
Systems Engineer Focuses on the software integration component of our Commerce One
projects for customizations, interfaces and conversions programs
including:
- Requirements and Design
- Programming
- Testing
- Cutover (Production) Technical Support
E-Commerce Supports the recruitment and coordination of suppliers and buyers.
Consultant Reports to the Account Manager for the following types of project
work:
- Expertise in Commerce One applications such as BuySite and MarketSite
- Development of a Supplier Adoption strategy
- Coordination of supplier assessments and supplier recruitment
- Enablement of suppliers on BuySite and MarketSite (ECN)
- Ongoing supplier support when required
Systems/Network Provides expertise in Commerce One installations: Hardware, LANs,
Architect computer systems and tuning, databases, communications, and workstation
expertise
- ------------------------------------------------------------------------------------------------------
$200.00
CONTENT Supports the catalog development component of MAP. This includes the
CONSULTANT acquisition and translation of supplier content (catalogs, multi-media,
contract and pricing data) to be resident in MarketSite (ECN) and BuySite.
The Data Acquisition Specialist will work with the Account Manager to:
- Ensure that the customer (buyer or supplier) fully understands what
information is required to build their catalog
- Define the data relationships and facilitate the accuracy of the
data being provided
- ------------------------------------------------------------------------------------------------------
$200.00
TRAINER Works with the Account Manager to support client training needs,
including:
- The development of client training material
- The development of workshop material
- Performing on site training for both Train the Trainer
and End User training workshops
- ------------------------------------------------------------------------------------------------------
ADMINISTRATIVE Clerical project support for such activities as typing, filing, $ 65.00
copying, and data entry
- ------------------------------------------------------------------------------------------------------
</TABLE>
TERMS AND CONDITIONS
1. Services provided at a customer site (on site services) requires a four
(4) hour minimum fee.
2. Travel and per diem expenses are billed on an actual basis. Daily per diem
for meals and miscellaneous can be fixed at $50 per day.
3. A blended consulting rate of $235/hour can be quoted (this does not include
travel and per diem expenses)
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APPENDIX 3
COMMERCE ONE
MarketSite 3.0 Product Road Map
March 1999
DATE: 03/16/99
Commerce One Confidential - DO NOT DISTRIBUTE
This document is not to be distributed without written consent from
Commerce One
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1 INTRODUCTION............................................................ 17
2 COMMERCE ONE PRODUCT LINES.............................................. 17
3 MARKETSITE PRODUCT FAMILY............................................... 17
3.1 XML COMMERCE DOCUMENT GUIDE....................................... 17
3.2 XML COMMERCE CONNECTOR............................................ 18
3.3 MARKETSITE: MARKETPLACE SOFTWARE PLATFORM........................ 19
3.3.1 MARKETSITE.NET................................................ 19
3.3.2 SUPPLIER ORDER MANAGEMENT SYSTEM, SUPPLYORDER................ 20
3.3.3 BUSINESS SERVICES............................................. 20
3.3.4 XML CONTENT PIPELINE......................................... 21
3.3.5 MARKETPLACE PLATFORM.......................................... 21
4 MARKETSITE PRODUCT DELIVERY SCHEDULE.................................... 22
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1 INTRODUCTION
This document outlines the MarketSite product deliverables and product roadmap.
2 COMMERCE ONE PRODUCT LINES
Commerce One has two primary product lines today which can be broken down as
follows:
1. Distributed Enterprise Applications - packaged applications bundled and sold
to end customers. This consists of:
- Commerce One BuySite Enterprise Edition
- Commerce One Hosted Edition
2. MarketSite - comprehensive marketplace software platform used to create
open, XML based, marketplaces
3 MARKETSITE PRODUCT FAMILY
MarketSite 3.0 consists of the following components:
- - MarketSite XML Commerce Document Guide
- - MarketSite XML Commerce Connector
- - MarketSite Marketplace Platform
3.1 XML COMMERCE DOCUMENT GUIDE
DESCRIPTION: Documentation on building and using XML marketplace documents.
TARGET USER: Any trading partner who needs to understand and use MarketSite
XML based business documents.
COMPONENTS:
1 Common Business Library (CBL) - consists of a set of XML modules and
libraries designed to be the base building blocks for creation of XML
based commerce documents.
2 SOX Guide - overview and guide for schema for object oriented (SOX) XML
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3 MarketPlace XML Business Documents - base set:
- Purchase Order
- Purchase Order Acknowledgement
- Change Order
- Order Status Check
- Availability Check
- Price Check
- Invoice
- Invoice Acknowledgement
- Advanced Ship Notice
- Catalog Document, OCF (open catalog format)
4 Documentation on how to use the documents to interface with MarketSite
5 Document testing service with MarketSite
3.2 XML COMMERCE CONNECTOR
DESCRIPTION: The XML Commerce Connector is an XML toolkit, which provides all
the necessary components to enable trading partner integration with
MarketSite. The XML Commerce Connector provides a robust set of tools and
infrastructure to enable the creation, transmission, routing and processing
of XML based documents.
The XML Commerce Connector is used by developers to create software services
that generate and respond to XML based business documents. These services can
facilitate, for example, integration with a trading partner's database,
commerce application, or ERP application.
TARGET USER: Trading partners, ISV's, and SI's who wish to interface
applications (buy/sell) into the MarketSite trading community.
COMPONENTS
1 XML Commerce Document Guide
2 XDK - XML Developers Kit
- SOX Design Documentation - programming model and documentation to
create and build SOX based XML documents
- XML Compiler - translates SOX based documents into a Java based
programming model and other codes necessary to translate and
transport the document instance
3 XML Runtime Server - provides business document transport and
routing of XML based business documents
Notes:
- - SOX = Schema for Object Oriented XML
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3.3 MARKETSITE: MARKETPLACE SOFTWARE PLATFORM
DESCRIPTION: Marketplace platform for creation and deployment of open, XML,
based marketplaces.
TARGET USER: Entity who needs to setup an Internet based marketplace.
SUMMARY OF MARKETPLACE COMPONENTS
- - MarketSite.net - Marketplace web interface - interface for all hosted service
applications
- - Business Services - hosted commerce services for trading partners
- MarketSite Pricing Server
- MarketSite Shipping Server
- MarketSite Payment Server
- - Supplier Order Management System - hosted, web based system, providing
order management capabilities for suppliers
- - XML Content Pipeline - comprehensive suite of catalog content management
tools, which link with supplier's native data source and produce XML based
catalog documents. Product can be hosted or distributed to trading partners
- - Marketplace platform - system services and components necessary to operate,
enable and create new Marketplace commerce services
3.3.1 MARKETSITE.NET
MarketSite.net is a web-based, Marketplace, interface - this is the
user-interface for the marketplace. All functions, which require interaction
within the MarketPlace, are enabled via MarketSite.net - this includes access
to all hosted business services and value-added applications
FUNCTIONALITY
- Trading Partner Registry
- Trading Partner Directory
- Catalog Viewer
- Catalog Subscription Service
- Catalog Upload Service
- Trading Partner InBox
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3.3.2 SUPPLIER ORDER MANAGEMENT SYSTEM, SUPPLYORDER
Hosted within each Marketplace is a Supplier Order Management System,
SupplyOrder to provide a hosted low cost mechanism for suppliers to interact
with the Marketplace. Only requirement for the supplier is Internet access
and a 4.x browser (IE or Netscape).
FUNCTIONALITY
- Receive purchase orders
- Respond to purchase orders
- Download and print orders
- Update pricing and availability
- Maintain catalog data
- Maintain contract pricing data
3.3.3 BUSINESS SERVICES
MarketSite business services are value-added services hosted within
MarketSite to enhance the overall value of the trading community.
Business services can be accessed by trading partners via their buying and
selling applications or via MarketSite.net depending on the type of service.
BUSINESS SERVICES
- - MarketSite pricing server - manages contract pricing between buyers and
sellers, facilitates approval and management of contract prices.
- - MarketSite shipping server - provides turnkey integration with major
freight carriers for shipping rate estimation and tracking
- - MarketSite payment server - provides out the box integration with major
payment providers
- - MarketSite tax service -- tax rate update service for buyers
NOTES:
- - Business document services and pricing server based on Babylon in Q3 99
- - Shipping, payment server is targeted for Q4 99
- - Business intelligence is targeted for Q1 2000
- - Shipping, payment, and tax service all have COGS components that have not
been negotiated.
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3.3.4 XML CONTENT PIPELINE
Comprehensive suit of catalog content management tools that collect,
categorize, normalize and publish catalog content from suppliers. Tools can
be hosted or distributed and are designed to provide complete flexibility in
the content management cycle. The XML Content Pipeline provides an extensible
pipeline process to the collection and publishing of content, new stages of
the pipeline can be added or subtracted by partners to enhance the value of
the catalog content. All content is published and mapped to the OCF (open
catalog format) XML document structure which provides a common structure for
trading partners to view and select product and service information. The XML
Content Pipeline allows the marketplace operator to enable an end to end
process to acquire content from trading partners, aggregate content and
distribute content to subscribing trading partners
COMPONENTS
- - Content acquisition and validation tool - pipeline stage collects content
from native data source and validates for missing data elements
- - Content categorization tool - pipeline stage categorizes content into
desired taxonomy
- - Content normalization tool* - normalizes data based on the rules
setup by the marketplace
- - Catalog server - used for presentation of the catalog content to buyers
and sellers
- - Content versioning tool - version control of XML catalog documents
- - Distribution of content is handled via MarketSite.net
NOTES:
- - Content normalization tool is not bundled with MarketSite base product
3.3.5 MARKETPLACE PLATFORM
The marketplace platform provides the foundation to process business
transactions, create and deploy new commerce services and manage Marketplace
commerce services.
COMPONENTS
- - MarketSite Admin Console - central console to administer the Marketplace
- - Certificate Server - Generation of self-signed X.509 v3 certificates
- - Directory Server - repository for trading partner profiles and relationships
- - XML Runtime Server - listens, parses, routes and enables commerce services
for XML documents
- - Business Document Transformation Service - document conversion between
different formats
- OBIv1
- EDI ANSIX12
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Notes:
- - MarketSite 3.0 will include: Admin, Certificate Server, Directory Server
and XML Runtime
- - Integration service is targeted for Q4 99
4 MARKETSITE PRODUCT DELIVERY SCHEDULE
MarketSite 3.0 is targeted beta release in Q2 99 and release in Q3 99.
Specific component details below:
<TABLE>
<CAPTION>
MARKETSITE COMPONENT Q199 Q299 Q399 Q499
<S> <C> <C> <C> <C>
XML Commerce Document Guide Beta GA
- ------------------------------------------- ----------- -------------- ------------ -----------
XML Commerce Connector Beta GA
- ------------------------------------------- ----------- -------------- ------------ -----------
MarketSite.net public Pilot new GA
pages services
- ------------------------------------------- ----------- -------------- ------------ -----------
SupplyOrder Beta GA
- ------------------------------------------- ----------- -------------- ------------ -----------
Business Services
- Shipping Beta GA
- Payment
- Taxation
- ------------------------------------------- ----------- -------------- ------------ -----------
XML Content Pipeline Pilot Beta GA
- ------------------------------------------- ----------- -------------- ------------ -----------
MarketPlace Platform Beta GA
- ------------------------------------------- ----------- -------------- ------------ -----------
</TABLE>
12
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APPENDIX 4
V. Definition of Content Menu Items
A. For the relationship with Boots, BT and Commerce One shall share costs
associated with content services on the basis that BT pays 50% of net valid
invoices that Commerce One receives for such services
B. Commerce One shall use all reasonable endeavours to assign the relationship
between Commerce One UK and TSI to BT (and TSI) - should this prove
commercially impractical, Commerce One shall provide all reasonable
assistance to enable BT to negotiate contractual terms directly with
INFORMATION LTD ("TSI") WHOSE REGISTERED OFFICE IS CHERRYHOLT ROAD,
STAMFORD, LINCONSHIRE, PE9 2HT.
C. In the period prior to BT executing a contract with TSI, BT shall contract
with Commerce One for such services and the costs shall be split between BT
and Commerce One (defined as net valid invoices received by Commerce One
from TSI for such services).
D. Neither Commerce One or TSI shall hold any rights to Information (as
defined in the Trading Agreement) generated during activity described in
this section (V) - all such right shall vest in BT.
E. BT shall be provided with the necessary skills transfer and methodology
training under the terms and conditions of the MarketSite license
professional service commitments. Commerce One will additionally agree to
license content management tools to BT as they become available, if
applicable on terms to be negotiated by the parties.
F. Commerce One shall use all reasonable endeavours to assign the relationship
between Commerce One UK and the suppliers of Boots to BT- should this prove
commercially impractical, Commerce One shall provide all reasonable
assistance to enable BT to negotiate contractual terms directly with those
suppliers. [BOOTS SHOULD BE DEFINED AS THE BOOTS COMPANY PLC AND ITS
SUBSIDIARIES]
DEFINITION OF CONTENT MANAGEMENT SERVICES:
A) The provision of content management services and support to enable
suppliers or manufacturers to meet the Commerce One catalogue
specification as may be agreed from time to time
B) The provision of data enhancement manipulation and classification services
to assist in the fulfilling of A above
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These services that will be performed from time to time as agreed by the
parties can be further described as follows:
Data aggregation and content development services, including but not
limited to:
- Categorization of database content utilizing standard coding,
as agreed from time to time
- Development of searchable descriptive data
- Database synchronization (to account for data updates etc.)
- Database reformatting to meet Commerce One BuySite-TM- or MarketSite-TM-
database specifications.
LICENSED CONTENT DESCRIPTION:
A. Collectively, all materials, data, comprehensive product specification and
summaries of each product to be included in the BuySite Catalogue, related
scripts, and similar information collected and owned by Supplier,
including, without limitation, all enhancements.
B. Suppliers are required to send their content in the following formats:
comma delimited format, fixed field format, Microsoft Access files,
Microsoft Excel files, and SQL databases or as otherwise specified by
Commerce One or a Customer. While other formats are acceptable, they may
delay the delivery of content to BuySite Catalogues.
C. "BuySite Catalogues" means Commerce One's proprietary electronic catalogue
that delivers content to the Commerce One customers.
D. "Licensed Content" means Supplier's electronic content as described in A
and B above (including, but not limited to, all text, pictures, audio,
video, trademarks, service marks, trade names and logos and copy contained
therein), and any updates, revisions, and/or corrections thereto provided
by the suppliers.
E. "Digitise" and variations thereof, means converting Licensed Content into
digital format such that it can be read, utilised and displayed by a
device, machine, or any other technology currently in existence or
hereafter developed capable of utilising digital information
THE PROCESS FOR CONTENT ADOPTION TO MARKETSITE:
- - Sign Agreement with Supplier for Licensed Content
- - Receive Licensed Content
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- - Assess completeness of data in the Licensed Content
- - Scrub, rationalize and normalize data in the Licensed Content (including,
but not limited to, the replacement of abbreviations with full
descriptions, the removal of duplicate entries and the completion of data
fields where data was not provided)
- - Agree finalized data with Supplier (and BuySite customer, where
appropriate)
- - Categorize the Licensed Content (either using the UN/SPSC categorization
standards or other categorization standards that may be agreed from time to
time)
- - Agree categorizations with Supplier (and BuySite customer, where
appropriate)
- - Format the Licensed Content into data files that can be used to upload the
BuySite-TM- or MarketSite-TM- databases
- - Deliver such files for upload to the BuySite-TM- or MarketSite-TM- as
required.
ROLES IN CONTENT MANAGEMENT SERVICES:
During an initial period (probably six months, but no more than 12 months),
Commerce One will be responsible for undertaking Content Management Services.
External costs for the Content Management Services including TSI will be
shared equally between BT and Commerce One.
After the initial period (once BT has MarketSite full operational in the UK),
BT will take on responsibility for the Content Management Services. BT may
choose to continue with TSI or undertake the work themselves. Commerce One
would provide support services, and other assistance related to Content
Management, to BT where required. All costs would be the paid by BT.
The above services may be charged against the eight (8) person months
referred to under Clause 1.3(a) of the Licence.
15
<PAGE>
Exhibit 10.11
AMENDED AND RESTATED TRADING AGREEMENT 658130 dated March 1999
between
(1) "BT" - British Telecommunications plc whose registered office is at 81
Newgate Street, London, EC1A 7AJ, and whose registered number is 1800000
and
(2) "Commerce One": -of Commerce One, Inc., a Californian corporation whose
principal place of business is at 1600 Riviera Avenue, Walnut Creek, California
94596
The purpose of this Trading Agreement is to enable BT and companies in which it
has a defined economic interest worldwide to order from Commerce One certain
Programs and other related software and services that enable the ordering entity
to subsequently provide electronic procurement and open trading partner network
services or other services which from time to time may be agreed across the
Internet for which the ordering entity will pay to Commerce One certain
remuneration. For a period of 5 years from the Effective Date, and in
consideration of the sum of one pound payable by BT to Commerce One and of BT's
obligations and other good and valuable consideration (the receipt and
sufficiency of which is hereby acknowledged), This Amended and Restated Trading
Agreement shall supersede in its entirety the Trading Agreement entered into at
an earlier date by the parties. Commerce One shall undertake Work in accordance
with and subject to the provisions of this Trading Agreement, which comprises
this front sheet and the following appended documents:
<TABLE>
<CAPTION>
- ------------------------------- ----------------------------------------------------------------------------------------
Schedule Number Description
- ------------------------------- ----------------------------------------------------------------------------------------
<S> <C>
1 Terms and Conditions
- ------------------------------- ----------------------------------------------------------------------------------------
2 Pricing (to be completed)
- ------------------------------- ----------------------------------------------------------------------------------------
Appendix A Support and Maintenance Agreement
- ------------------------------- ----------------------------------------------------------------------------------------
Appendix B Official Order Cover Sheet
- ------------------------------- ----------------------------------------------------------------------------------------
Appendix C Confidentiality Agreement
- ------------------------------- ----------------------------------------------------------------------------------------
Appendix D BT Code of Practice On the Disclosure of Customer Information
- ------------------------------- ----------------------------------------------------------------------------------------
</TABLE>
SIGNED FOR AND ON SIGNED FOR AND ON
BEHALF OF BT BEHALF OF COMMERCE ONE
<PAGE>
- ------------------------------ -------------------------------------
- ------------------------------ -------------------------------------
NAME NAME
- ------------------------------ -------------------------------------
POSITION POSITION
SCHEDULE 1
TERMS AND CONDITIONS
<TABLE>
<CAPTION>
SECTION TITLE
- ------- -----
<S> <C>
1 Definitions
SCOPE
2 General
3 Description of Work
4 Prices and Leadtimes
5 Intellectual Property and Licenses
6 Support
7 Warranty
MANAGEMENT
8 Programme Management
9 Trading Agreement Change Procedure
10 Order Procedure
11 Suspension of Work on Site
12 Default for Late Delivery
</TABLE>
<PAGE>
<TABLE>
<S> <C>
13 [Number not used]
14 Interface with other Equipment
15 Performance and Retention
16 Termination
INTELLECTUAL PROPERTY
17 Confidentiality
18 [Number not used]
19 Intellectual Property Indemnity
20 Electronic Data Interchange (EDI)
GENERAL
21 Ordering Entity Items
22 Assignment and Subcontracting
23 Mistakes in Information
24 Protection of Documents and Programs
25 Title and Risk
26 Indemnity-General
27 Limitation of Liability
28 Insurance
39 Recovery of Sums Due
30 Payment
31 Records Inspection
32 Sites
33 Export and Re-Export
</TABLE>
APPENDICES:
Appendix A Support and Maintenance Agreement
Appendix B Official Order Cover Sheet
Appendix C Confidentiality Agreement
Appendix D BT Code of Practice On the Disclosure of Customer Information
<PAGE>
1 DEFINITIONS
1.1 "Acceptance" shall mean written acknowledgment by the Ordering
Entity which shall include by electronic mail, that the Work, or
part of it, has been completed in accordance with any Order.
"Accept" and "Accepted" in the context of "Acceptance" shall be
construed accordingly.
1.2 "Acceptance Test" shall mean any formal testing agreed between the
Parties and set out in any Order to determine if the Work
commissioned under such Order satisfies the criteria for
Acceptance for such Work by the Ordering Entity.
1.3 "Agreement" shall mean the Trading Agreement.
1.4 "Alliance" shall mean BT, and any legal entity in which British
Telecommunications plc, from time to time has or will have an
economic interest of 20% or more. BT to provide list of such
entities as of date of execution of this agreement and at the
reasonable request of Commerce One.
1.5 "BT" shall mean British Telecommunications plc of 81 Newgate
Street, London, EC1A 7AJ, and whose registered number is 1800000.
1.6 "Foreground Information" shall mean the product of Work, including
related documentation, resulting from a Special Commissioning
Order. This does not include Programs, Program Documentation or
Background Information. The Foreground Information so developed
shall be either owned by Commerce One ("Commerce One Foreground
Information") or by the Ordering Entity ("Ordering Entity
Foreground Information"). The allocation of the Foreground
Information shall be made according to the terms of this Agreement
agreed by the Ordering Entity and Commerce One in the
Commissioning Order. For the avoidance of doubt, work performed by
Commerce One related to the implementation of software sold under
this Trading Agreement shall not be considered Foreground
Information unless specifically agreed to by Commerce One in any
Commissioning Order.
1.7 "Trading Agreement" shall mean this Trading Agreement.
1.8 "Indirect Taxes" shall mean any sales, use, excise, value added
taxes (VAT), goods and services tax (GST) or similar tax, but not
any property tax, imposed by the law of any locality, state,
national, supra-national or equivalent government but, unless
stated specifically otherwise, shall not include any income or
other taxes in lieu of income tax.
<PAGE>
1.9 "Background Information" shall mean information, whether written
or oral, including but not limited to design information,
documentation, specifications, reports, data, notes, drawings,
models, patterns, samples, computer outputs, designs, circuit
diagrams, inventions and know-how, whether patentable or not
existing as of the Effective Date of each applicable Order. For
the avoidance of doubt, this does not include Programs,
Documentation or Foreground Information. Background Information
shall be the property of either Commerce One ("Commerce One
Background Information") or the Ordering Entity ("Ordering Entity
Background Information"), and shall be supplied by either party to
the other subject to licensing under the terms of this Agreement
and/or any commissioning Order, with such alterations as may be
agreed by the parties in writing.
1.10 "Intellectual Property Right" shall mean any patent, petty patent,
registered design, copyright, design right, semiconductor
topography right, know-how, trade mark, service mark or any
similar right, registered or not, exercisable in any part of the
world and shall include any applications for the registration of
rights in connection therewith in any part of the world.
1.11 "Network" shall mean all exchange equipment, bandwidth,
transmission equipment, network terminating equipment, line plant,
power plant and ancillary equipment, computing and data
communications equipment, owned or operated by the Ordering
Entity.
1.12 "Order" shall mean a written order placed by an Ordering Entity
for Work (including Special Commissioning Orders). Any Order shall
consist of an Official Order Cover Sheet (an example of which is
appended in Appendix B and documents and appendices referred to
therein.
1.13 "Ordering Entity" shall mean the relevant Alliance entity that is
placing or has placed an Order under the Trading Agreement.
1.14 "Ordering Entity Items" shall mean all items provided by the
Ordering Entity to Commerce One in connection with an Order.
1.15 "Order Price" shall mean the total sum of License Fees, Support
and Maintenance and other consulting service Fees and other
remuneration payable to Commerce One by the Ordering Entity for
Work to be performed under any Order as stated in the relevant
Order.
1.16 "Site" shall mean the actual place at which Work shall be
delivered and/or installed by Commerce One.
<PAGE>
1.17 "Programs" shall mean the object code version of the computer
programs, owned or distributed by Commerce One, for which BT and
or the Ordering Entity is granted a license pursuant to this
Agreement . Programs shall refer solely to those items identified
as such in the Order together with Maintenance Releases as defined
in and provided pursuant to the Support and Maintenance Agreement
together with the Documentation. For the avoidance of doubt,
Programs does not include any Foreground Information or Background
Information.
1.18 "Subcontractor" shall mean any person, partnership or corporation
with whom Commerce One places a contract and/or an order for the
supply of any equipment, item, service or for any Work, and
"subcontract" shall be construed accordingly.
1.19 "Special Commissioning Order" shall mean a written order placed by
an Ordering Entity that commissions Foreground Information.
1.20 "End User" means the party to whom an End User License Agreement
is granted by the Ordering Entity.
1.21 "Program Documentation" means such material, owned or distributed
by Commerce One, furnished by Commerce One in conjunction with the
Programs, including instructions and user guides [, as set out in
Appendix B of this Agreement].
1.22 "Commerce One Licensee" means the Ordering Entity, or any third
party who is licensed by Commerce One or the Ordering Entity under
the terms of the sub-license to use the Programs, Documentation,
Commerce One Foreground Information, Commerce One Background
Information or other Commerce One products.
1.23 License Fees" means sums stated in the Order Price related to
licensing under this Trading Agreement and payable by the Ordering
Entity to Commerce One according to the order between Commerce One
and the Ordering Entity.
1.24 "Opportunities" means opportunities, as identified by Commerce One
and the Alliance (or part thereof) together, to sell Commerce One
products and services including, without limitation, the Programs
and Documentation.
1.25 "Support and Maintenance Agreement" means the Support and
Maintenance Agreement to be executed by Commerce One and the
Ordering Entity and as set out in Appendix C of this Agreement.
<PAGE>
1.26 "Support and Maintenance Fees" means those fees payable by the
Ordering Entity pursuant to the Support and Maintenance Agreement
and as stated in any Order Price.
1.27 "Work" shall mean all deliverables supplied, and all installation,
Acceptance and support services, including but not limited to
training and development set out in any specific Order.
1.28 References to the plural of any definition shall be deemed to
include the singular and vice-versa.
1.29 "Contract Personnel" shall mean Commerce One's employees,
subcontractors and agents (and their employees, subcontractors and
agents) engaged in the performance of the Contract.
2. GENERAL
2.1 If any aspect of the Trading Agreement is found to be invalid,
illegal or unenforceable this shall not affect the validity of any
part of the Trading Agreement. In such case Trading Agreement
shall be construed and enforced as if it did not contain such
provision. The parties shall negotiate in good faith to modify
and, or replace such provision with one that is valid and legally
enforceable. If the parties cannot reach agreement on a new
provision which places the parties in a position similar to the
commercial position which would have prevailed prior to the
modification or replacement being required, either party may, in
its sole discretion, withdraw from the Agreement.
2.2 The headings to the Trading Agreement provisions are for reference
only and shall not affect their interpretation.
2.3 No delay, neglect or forbearance by either party in enforcing any
provision of the Trading Agreement shall be deemed to be a waiver
of or in any way prejudice any rights of that party.
2.4 No waiver by either party shall be effective unless made in
writing or constitute a waiver of rights in relation to any
subsequent breach of the Trading Agreement.
2.5 The Trading Agreement and those terms explicitly included in any
Order and referenced on the Official Order cover sheet thereto
govern the relationship between the parties in relation to the
subject matter of this Agreement to the exclusion of any other
terms and conditions, unless such other terms are agreed in
writing between BT
<PAGE>
and Commerce One. Should any conflict exist between the terms of
the Trading Agreement and an Order then the precedence provisions
of Section 3.4 of this Agreement shall apply.
2.6 The Trading Agreement is governed by English law and the parties
hereby submit to the jurisdiction of the English Courts. The
parties hereto agree that the Convention on International Sale of
Goods shall not apply to this Agreement.
2.7 Other than as set out herein, neither party shall, nor in any way
represent itself as, an agent of the other and shall have no
authority to enter into any obligation on behalf of the other or
to bind the other in any way.
2.8.1 Notices required under the Trading Agreement to be given in
writing shall be delivered by hand or by post or by facsimile
transmission. Notices shall be deemed to be given upon receipt
except that notices sent by pre-paid recorded delivery post in a
correctly addressed envelope shall be deemed to be given within 48
hours (excluding Sundays and public holidays) of posting, and
notices sent by facsimile transmission shall be deemed to be given
upon transmission.
2.8.2 Notices are to be given to BT and/or the Ordering Entity (where
appropriate). Where notices are to be given to BT they shall be
sent to the address below. Where notices are to be given to the
Ordering Entity they shall be sent to the contact point outlined
in the Order.
BT Contact Point:
Name: Stephen Russell
Address: ppB113 North Star House, North Star Avenue, Swindon,
Wiltshire
Telephone: 01793 547970
Facsimile: 01793 547158
Internet : [email protected]
Commerce One Contact Point:
Name: Robert M. Tarkoff, Esq.
Address: 1600 Riviera Ave., Walnut Creek, CA 94596
Telephone: (925) 941-2000
Facsimile: (925) 941-4555
Internet: [email protected]
2.8.3 Notices to Commerce One shall be given at the address set out above.
<PAGE>
2.9 Without prejudice to any prior obligations of confidentiality it
may have, either party shall ensure that no publicity relating to
the Trading Agreement or any Order shall take place without the
prior written agreement of either BT or C1 (for the Agreement) or
the appropriate Ordering Entity (for any Order), which consent
shall not be unreasonably withheld.[this change makes the
agreement consistent with the Confidentiality Section - otherwise
these provisions are in conflict].
2.10 The provisions of the following Sections of the Trading Agreement
set out below and any Sections relating thereto set out in any
Order shall survive the termination or expiry of the Trading
Agreement and/or any Order:
Section 5 - Intellectual Property and Licenses
Section 7.3 - Year 2000 Warranty
Section 17 - Confidentiality
Section 19 - Intellectual Property Indemnity
Section 26 - Indemnity - General
Section 27 - Limitation of Liability
2.11 Neither party shall be liable to the other for its failure or
delay in the performance of a required obligation if such failure
or delay is caused by strike, riot, fire, flood, natural disaster
or other similar cause beyond either party's control provided,
however, that either party gives prompt written notice of such
condition and resumes the performance of its obligations as soon
as possible.
3. DESCRIPTION OF WORK
3.1 Commerce One shall accept and fulfill all Orders placed in
accordance with the Trading Agreement where such Orders are for
the supply of Programs, products and services listed in Schedule 2
(Pricing), provided that Commerce One agrees and that it is
commercially reasonable for Commerce One to do so.
3.2 Commerce One shall accept Special Commissioning Orders (as
provided for under Section 5) where Commerce One has submitted a
valid quotation approved by an authorized signatory of Commerce
One.
3.3 The Work shall accord with any specifications agreed by both
parties and referred to in the Order accepted by Commerce One from
the Ordering Entity. Commerce One shall
<PAGE>
provide reasonable assistance necessary to carry out the
installation, commissioning and testing.
3.4 The Work shall be performed in accordance with the Trading
Agreement and with the provisions of such Order(s) that an
Ordering Entity in its sole discretion may place in accordance
with the Condition headed "Order Procedure" of this Schedule 1.
Should the terms and conditions of any Order conflict with or vary
from those of the Trading Agreement then the Trading Agreement
shall take precedence; however variations that are clearly and
explicitly set out or referenced in the Variation to Trading
Agreement section of the Official Order Cover Sheet shall take
overall precedence over the terms set forth in this Trading
Agreement.
3.5 The Trading Agreement is not in itself an order for Work and no
Ordering Entity shall be under any obligation to order Work. It is
a framework agreement against which the Ordering Entity may order
Work. Notwithstanding the foregoing, any Ordering Entity shall
cooperate with Commerce One in the provision of information,
hardware, software or other materials or resources, at no charge
to Commerce One, as more fully set out in each Order.
3.6 Neither BT nor any other member of the Alliance shall be liable
for, or in relation to, any Order not placed by it. Further,
neither BT, nor any other Ordering Entity shall be liable for any
act or omission of any other Ordering Entity whether in relation
to the Trading Agreement, any Order or otherwise. Any Ordering
Entities placing orders under the Trading Agreement are separately
and individually liable for anything pertaining to any such Order.
Notwithstanding the foregoing, Commerce One's performance (as
described in Section 15) shall be dependent upon the timely and
accurate receipt of such cooperation by the Ordering Entity.
3.7 No breach by any Ordering Entity other than BT in relation to any
Order shall affect the validity or continuation of this Trading
Agreement.
4. PRICES AND LEADTIMES
4.1 Commerce One agrees that the prices of Work payable by any Ordering
Entity:
(a) shall be no less favourable than those payable within the
prior six (6) months period of time by any other Ordering
Entity or by any third party for similar supplies; and
(b) without prejudice to sub-paragraph (a) above, shall, where
reductions in such prices in relation to any individual
Ordering Entity are volume sensitive, be determined as though
the volumes of similar supplies committed to every other
Ordering Entity had been aggregated with such individual
commitment.
(c) For the avoidance of doubt, if Commerce One offers Work at a
lower price than that offered to an Ordering Entity within six
(6) months following the Order, then Commerce One shall be
obligated to offer the Ordering Entity the more favourable
price on a going-forward basis.
<PAGE>
4.2 Commerce One shall if requested by the Ordering Entity determine
whether lead times can be improved to meet specific project
timescales and advise the Ordering Entity if this can be achieved
and whether there are any additional costs which would require a
change order to be implemented to achieve such improved lead time.
4.3 Commerce One shall acknowledge receipt of an Order in writing
within one business day from receipt.
5. INTELLECTUAL PROPERTY AND LICENSES
5.1 Intellectual Property Rights in the Programs and Documentation
belong to Commerce One or its licensors. The Ordering Entity shall
ensure that all copyright notices and trade marks of Commerce One
and/or its licensors are retained in all copies of the Programs,
Documentation possessed by the Ordering Entity and shall be
included on any Programs and Documentation sub-licensed to End
Users.
5.2 Upon delivery of Work by Commerce One under an Order from an
Ordering Entity, Commerce One hereby grants the Ordering Entity a
worldwide (subject to such Variations to Trading Agreement as are
prominently set forth on the Official Order Cover Sheet of the
Order), perpetual, transferable (provided that such transferee is
a member of the Alliance) licence, subject to payment of the
licence fees set out in any Order, to:
5.2.1 Use the Programs and Documentation for the Ordering
Entity's own internal business purposes. The Ordering
Entity may make a reasonable number of copies of the
Programs and/or Documentation to the extent required
for internal training and processes, and
5.2.2 Where the Official Order Cover Sheet specifies a
Commercial Service License to use the Programs and
Documentation in order to offer commercial service to
End Users pursuant to this Agreement. The Ordering
Entity may make copies of the Programs and/or
Documentation to the extent required for internal
training and processes and as far as is necessary in
order to exercise its right to sub-license the Programs
and Documentation to End Users under Section 5.2.3.,
and
5.2.3 Sub-license those elements of the Programs listed in
the Order as sublicensable and relevant Program
Documentation as listed in the Order to End Users.
<PAGE>
5.3 The Ordering Entity shall not use the Programs or Documentation
for any purpose other than as specified in this Section 5 and
shall not sell or otherwise make available the Programs or
Documentation nor any information relating thereto to third
parties who are not End Users.
5.4 The Ordering Entity shall not undertake or permit the
modification, reverse engineering, disassembly or decompilation of
the Programs except to the extent permitted at law.
Notwithstanding the foregoing, the Ordering Entity shall notify
Commerce One prior to undertaking any reverse engineering so as to
give Commerce One the opportunity to provide the required
information to the Ordering Entity.
5.5 The Ordering Entity agrees that it shall make each End User aware
that the Documentation and Programs, are Confidential Information
of Commerce One and/or its licensors, and may not be disclosed to
any third party unless so required by law or with the prior
written consent of Commerce One.
5.6 All Ordering Entity Background Information and any copies thereof
and all Intellectual Property Rights therein shall remain the
property of the Ordering Entity. Commerce One shall return the
Ordering Entity Background Information to the relevant Ordering
Entity upon expiry or termination of the Trading Agreement or
relevant Order, or earlier upon request by the Ordering Entity.
5.7 Except as expressly set out in the Trading Agreement or any Order
no assignment of or license under any Intellectual Property Right
owned or controlled by the Ordering Entity is granted by the
Trading Agreement or by any Order.
5.8 From time to time an Ordering Entity may commission Foreground
Information from Commerce One via a Special Commisssioning Order.
Commerce One hereby grants to the Ordering Entity a perpetual
(subject to such limitations as are expressly set out in the
Variation to Trading Agreement section on the Official Order Cover
Sheet), transferable (only to members of the Alliance) licence to
use copy and sublicense the Foreground information for its
business purposes. This licence may be subject to the payment of
license fees and or royalties to Commerce One as expressly set out
in the Special Commissioning Order. For the avoidance of doubt,
Commerce One shall own all Foreground information unless otherwise
set forth in any Special Commissioning Order.
In addition Commerce One undertakes that for a period of one year
from the date of Acceptance of the relevant Foreground Information
(or such other period as to be stated in the Special Commissioning
Order) save for a non exclusive license to BT as set out in
Section 5.9 Commerce One will not whether by itself or on its
behalf sell
<PAGE>
lease hire distribute disclose or license (nor offer to sell lease
hire distribute disclose or license):
(a) any of the Foreground Information; or
(b) any equipment or software incorporating any of the
Foreground Information; or
(c) Any equipment or software incorporating any of the features
or functionality specified in the Special Commissioning
Order or any equivalent features or functionality.
5.9 Commerce One undertakes to grant to BT on request a non-exclusive
license on the same terms as the Programs licensed in this Trading
Agreement in respect of any Foreground Information developed by
Commerce One under any Special Commissioning Order for any
Ordering Entity () on the terms and conditions as set out in the
Special Commissioning Order or the applicable Order.
6 SUPPORT
6.1 The obligations of Commerce One to provide support for the
Programs are set out in Appendix A, the Support and Maintenance
Agreement. As part of any Order, the Ordering Entity may execute a
Support and Maintenance Agreement with Commerce One in the form
set out in Appendix A to this Agreement. Commerce One may not
refuse to enter into such an Agreement if requested subject to
agreement of the price on reasonable terms to be negotiated by the
parties.
6.2 Commerce One shall provide bug fixing services for Foreground
Information commissioned under a Special Commissioning Order under
similar terms and for the Support and Maintenance Fees set out in
the relevant Order.
7 WARRANTY
7.1 Commerce One warrants that for a period of 12 months following
Acceptance of any particular Work under the terms of any relevant
Order that (i) the Programs, Documentation and Foreground
Information, if applicable, will conform with their published
specifications as may be set out in any relevant Order, and (ii)
the physical media on which the Programs, Documentation and
Foreground Information is furnished will be free of defect under
normal use.
<PAGE>
7.2 Commerce One warrants that it has the right and power to grant the
Ordering Entity the licenses granted to it under the Trading
Agreement and under any Order.
7.3 Commerce One warrants that those parts of the Programs and
Documentation created by Commerce One (not including third party
software licensed to Commerce One and identified in writing on any
Order cover sheet) and Foreground Information under this Agreement
are fully compatible (without modification, loss of performance,
loss of use, or work or expense on the part of the licensee
Ordering Entity) with changes to inputs, outputs, data or other
information in relation to dates arising in the year 2000 and
beyond (not including loss of performance due to other software,
hardware, software operating systems or firmware owned by BT or
licensed to BT by parties other than Commerce One and (b) on the
date of delivery free from:(i) all "viruses" that could have been
detected (at the date of dispatch, or if appropriate, immediately
before installation by Commerce One) by using the latest
commercially available virus detection software and (ii) all forms
of "electronic repossession" except where required by the Ordering
Entity or as specified in its defined functionality and "logic
bombs" (which expressions shall have meanings as they are
generally understood within the computing industry).
7.4 Any remedy for breach of the warranties set forth in this Section
7 shall be limited to commercially reasonable efforts to repair or
replace by Commerce One within the timescales detailed in the
Support and Maintenance agreement appended in Appendix A.
8. TRADING AGREEMENT REVIEW - PROGRAMME MANAGEMENT
8.1 Commerce One Programme Management:
Commerce One (and BT) shall provide a (full-time dedicated)
programme manager to act as prime interface with BT, for the
management of the Trading Agreement. The programme manager shall
receive all queries/correspondences from the Ordering Entity or BT
and shall be responsible for initiating work activities,
co-ordinating all such activity, controlling, monitoring and
progressing the Work to an acceptable conclusion including the
arrangement of review meetings. The programme manager shall be
responsible for providing BT and Ordering Entity with such reports
as may be required from time to time.
8.2 The scope and frequency of programme and Trading Agreement review
meetings shall be as required by BT from time to time.
<PAGE>
8.3 Commerce One shall provide monthly (or with such other periodicity
as BT shall from time to time require) reports detailing all
Orders placed to date, including cumulative sums, and a review of
Trading Agreement Performance Requirements. If required by BT,
Commerce One shall provide documentary evidence to validate and
support the information provided in such reports.
8.4 Commerce One shall meet with BT quarterly to discuss and review
Commerce One's current and future product development plans with
the aim of providing the Ordering Entity with early access to
technological developments and an opportunity to influence those
plans, provided, that Commerce One shall not be required to
disclose certain proprietary information at its sole reasonable
discretion. BT to be invited to Commerce One Commerce Council.
8.5 Commerce One's programme manager shall, if requested by an
Ordering Entity, hold Order review meetings and/or provide
progress reports in relation to the Ordering Entity Orders. The
scope and frequency of such Order reviews and progress reports
shall be as determined by the Ordering Entity.
9. TRADING AGREEMENT CHANGE PROCEDURE
9.1 Any change, including timescales to the Trading Agreement or any
Order thereunder shall not be effective unless agreed by Commerce
One and BT ( for the Trading Agreement) and the Ordering Entity
(for any Order) in writing. Any change, including timescales, to
an Order shall not be effective unless agreed by the Ordering
Entity and Commerce One in writing. Any agreed changes in costs
arising from such variation shall be added to, or deducted from,
the relevant Trading Agreement/Order Price or the prices for the
relevant portion of the Work.
10. ORDER PROCEDURE
10.1 All Work to be performed by Commerce One in relation to Trading
Agreement shall be undertaken on the basis of a properly
authorized Order.
10.2 All Orders shall be sent to Commerce One at Commerce One's
location as set our in this Agreement and as amended from time to
time.
10.3 Without limitation, the Order shall include and clearly state the
following:
(i) name of the Ordering Entity;
<PAGE>
(ii) Trading Agreement number (where possible);
order number;
(iii) Quotation reference Number
(iv) Work requested
(v) Site or delivery address;
(vi) timescales;
(vii) Ordering Entity's point of contact;
(viii) billing address;
(ix) price, invoicing procedure and currency.
(x) Authorized Signature of Ordering Entity
(xi) Variations to the Trading Agreement
Any variations to the Trading Agreement as mentioned in Section
10.3 (xi) shall be governed by the precedence terms detailed in
Section 3.4.
11. SUSPENSION OF WORK ON SITE
11.1 The Ordering Entity shall have the right to suspend the Work at
any time for a maximum period of 30 days (or for such other period
as may be agreed in writing by the parties) and will pay to
Commerce One all reasonable, unavoidable, resulting expenses
incurred by Commerce One (other than those arising from Commerce
One's own default) provided that:
11.1.1 no payment shall be made for any period of suspension,
prevention or delay less than ten consecutive working
days; and
11.1.2 Commerce One has within 10 working days after the event
giving rise to the claim, given notice in writing to
the Ordering Entity of its intention to make such a
claim;
11.1.3 Commerce One makes such claim giving details of each
item claimed and the reason for such cost within 30
days after performance of the Work is resumed; and
11.1.4 the Ordering Entity shall not suspend Work under the
terms of this Section more than once in relation to any
particular Order.
12. DEFAULT FOR LATE DELIVERY
<PAGE>
12.1 Subject to Section 2.11, if Commerce One does not deliver,
install, or complete any Work by the date specified in the Order,
or such other date mutually agreed in writing. Commerce One shall
be in breach of the Trading Agreement and shall pay to the
Ordering Entity if requested an amount of liquidated damages in
respect of such delay at 1.5% for each week of delay, up to 10% of
the price of the Work in delay. Payment of these liquidated
damages shall be in lieu of all liability for any and all extra
costs, losses or expenses, claims, penalties and any other damages
whether special or consequential and of whatsoever nature incurred
by the Ordering Entity which are occasioned by such delay in
delivery. These liquidated damages do not constitute a penalty and
the parties, having bargained in good faith for such specific
damages, are estopped from contesting the validity or
enforceability of such damages. Notwithstanding the foregoing,
Commerce One shall not be considered in breach of this Trading
Agreement if the failure to complete the Work shall be the result
of the failure of BT or any other Alliance member to fulfill their
obligations set forth in this Trading Agreement or in any
applicable Order.
12.2 The Ordering Entity may, at its option, at any time deduct any
amount of liquidated damages then due from Commerce One to the
Ordering Entity from any sums then due from the Ordering Entity to
Commerce One and any not so deducted may be recovered by the
Ordering Entity from Commerce One as a debt.
12.3 Payment of, or the Ordering Entity's right to, liquidated damages
under this Condition shall not affect any of the Ordering Entity's
or BT's rights under the Condition headed "Termination" provided
Commerce One has received notification in writing within 7 days of
such claim.
13. [NUMBER NOT USED]
14. INTERFACE WITH OTHER EQUIPMENT
14.1 Commerce One shall be responsible for the successful inter working
of Work in or with the Ordering Entity Network specified by the
Ordering Entity, existing at the time of Acceptance of the Work.
14.2 Commerce One shall supply such information, as the Ordering Entity
may reasonably require, to enable the Ordering Entity to interface
the Work with such other equipment and systems as may form part of
the Ordering Entity Network or the network of any other public or
private telecommunications operator.
14.3 Such information as required under Sections 14.1 and 14.2 shall be
supplied at no charge to the Ordering Entity, provided that
Commerce One have been provided with
<PAGE>
all the necessary information at the time of commissioning Order
and Commerce One have accepted such Order without identifying and
requesting additional costs for such work
15. PERFORMANCE AND RETENTION
15.1 Performance
15.1.1 Commerce One's performance of the Work shall be
measured by comparing Commerce One's actual achieved
performance against any standard specified and agreed
by Commerce One and the Ordering Entity in any Order
(an "Order Standard").
15.1.2 BT reserves the right to negotiate and include
additional Order Standards as and when required
pursuant to the Trading Agreement Change Procedure,
provided BT provides Commerce One with reasonable
notice of such additional Order Standards and Commerce
One agrees to such standards.
15.2 Payment Retention
15.2.1 If Commerce One's actual achieved performance shall
fail to meet any relevant Order Standard in any
month then BT shall have the right to retain a
maximum of 10% of the total sum otherwise due to
Commerce One for each Order Standard not met;
15.2.2 Any sums to be retained under Condition 16.2.1 shall be
deducted from the most recent invoice then due or to
become due for payment by the Ordering Entity to
Commerce One under the Trading Agreement.
15.2.3 All sums retained in respect of Commerce One's failure
to achieve any Order Standard shall be released, in
addition to all other amounts owed to Commerce One
under the Order, to Commerce One following the first
month there after in which Commerce One's achieved
performance has subsequently met or exceeds that Order
Standard.
15.2.4 In any event the Ordering Entity shall not pay any
invoice unless the Order Standard statistics have been
submitted by Commerce One within 7 days of the relevant
invoice date.
<PAGE>
15.3 The rights of the Ordering Entity or BT under this Condition are
without prejudice to any other rights or remedies under the
Trading Agreement.
15.4 Delivery and Acceptance. Upon delivery of Work performed by
Commerce One to the Ordering Entity by Commerce One, the Order
Entity shall evaluate the Work for conformity with the
specifications set forth in the Order. Within thirty (30) working
days after delivery of the Work, the Ordering Entity shall provide
Commerce One with written acceptance thereof ("Acceptance"), or a
statement of defects to be corrected. If not accepted, Commerce
One shall have thirty (30) working days to correct such defects
and return the Work to the Ordering Entity for retesting, review
and reevaluation. The foregoing process shall be continued until
the Work is accepted by the Ordering Entity, until the parties
agree to terminate their Order under Section 17, or until the
parties agree on another method to resolve the failure.
16. TERMINATION
16.1 Notwithstanding the provisions of Section 16.2 if either Commerce
One or BT commits a material or persistent breach of this
Agreement or an Order placed by BT and in the case of such a
breach which is capable of remedy, fails to remedy the breach
within thirty (30) working days (or such longer period as BT or
Commerce One may agree in writing) of written notice from BT or
Commerce One, as applicable, then, without prejudice to any other
rights or remedies Commerce One or BT may have, the non-breaching
party shall have the right at any time after such 30 day notice
period to terminate the Agreement forthwith as a whole and/or
performed under an Order placed by BT, and BT or Commerce One, as
applicable, to terminate Orders placed by BT forthwith as a whole
or (at BT's or Commerce One's option, as applicable) in respect of
any part of the Work, performed or to be performed under the Order
placed by BT, and to claim for all resulting losses and expenses
(including, without limitation, the cost of completing the Work,
or having the Work completed by another Contractor, to a similar
standard).
16.2 Without prejudice to other rights or remedies it may have, either
Commerce One or BT shall have the right at any time to terminate
the Agreement forthwith, and to cancel Orders placed by BT
forthwith, and to claim for all resulting losses and expenses
(including, without limitation, the cost of completing the Work or
having the Work completed by another Contractor to a similar
standard) if:
16.2.1 Commerce One or BT shall become insolvent or cease to
trade or compound with its creditors; or
<PAGE>
16.2.2 a bankruptcy petition or order is presented or made
against Commerce One or BT; -; or if a trustee in
sequestration is appointed in respect of the assets of
Commerce One
16.2.3 a receiver or an administrator receiver is appointed in
respect of any of Commerce One's or BT's assets, as
applicable; or
16.2.4 a petition for an administration order is presented or
such an order is made in relation to Commerce One or
BT, as applicable; or
16.2.5 a resolution or petition or order to wind up Commerce
One or BT is passed or presented or made or a
liquidator is appointed in respect of Commerce One or
BT (otherwise than for reconstruction or amalgamation);
or.
16.2.6 The management, ownership or control of Commerce One is
materially changed to the detriment of BT as may
determine upon the exercise of its reasonable judgment.
16.3 Notwithstanding the provisions of Section 16.4 if either Commerce
One or an Ordering Entity commits a material or persistent breach
of an Order and in the case of such a breach which is capable of
remedy, fails to remedy the breach within thirty (30) working days
(or such longer period as the Ordering Entity or Commerce One may
agree in writing) of written notice from the Ordering Entity or
Commerce One, as applicable, then, without prejudice to any other
rights or remedies Commerce One or the Ordering Entity may have,
the non-breaching party shall have the right at any time after
such 30 day notice period to terminate the Order forthwith as a
whole or (at the non-breaching parties' option) in respect of any
part of the Work, performed or to be performed under the Order,
and to claim for all resulting losses and expenses (including,
without limitation, the cost of completing the Work, or having the
Work completed by another Contractor, to a similar standard).
16.4 Without prejudice to other rights or remedies it may have, either
Commerce One or an Ordering Entity shall have the right to cancel
Orders forthwith, and to claim for all resulting losses and
expenses (including, without limitation, the cost of completing
the Work or having the Work completed by another Contractor to a
similar standard) if:
16.4.1 Commerce One or the Ordering Entity shall become
insolvent or cease to trade or compound with its
creditors; or
<PAGE>
16.4.2 a bankruptcy petition or order is presented or made
against Commerce One or the Ordering Entity; - or if a
trustee in sequestration is appointed in respect of the
assets of Commerce One
16.4.3 a receiver or an administrator receiver is appointed in
respect of any of Commerce One's or the Ordering
Entity's assets, as applicable; or
16.4.4 a petition for an administration order is presented or
such an order is made in relation to Commerce One or
the Ordering Entity, as applicable; or
16.4.5 a resolution or petition or order to wind up Commerce
One or the Ordering Entity is passed or presented or
made or a liquidator is appointed in respect of
Commerce One or the Ordering Entity (otherwise than for
reconstruction or amalgamation);
16.5 The Ordering Entity may at any time, without prejudice to any
other rights and remedies it may have, terminate Orders forthwith
on forty five (45) days written notice. Where the Ordering Entity
terminates Orders under this Condition and does not have any other
right to terminate as set forth above, the Ordering Entity shall
pay Commerce One such amounts as may be necessary to cover its
reasonable costs and outstanding and unavoidable commitments
necessarily incurred solely in performing the Orders in relation
to the Work ordered by the Ordering Entity before the date of
termination and for which payment has not at that date become due
from the Ordering Entity ("the Applicable Work"). However, the
Ordering Entity shall not pay for any such costs or commitments
that the Commerce One is able to mitigate and shall only pay costs
and commitments that the Ordering Entity has validated to its
satisfaction. For the avoidance of doubt, resource commitments
made by Commerce One to fulfill Orders shall count as compensable
expenses provided that Commerce One can document to the reasonable
satisfaction of the Ordering Entity such resource commitment
expenses.
Notwithstanding the above, the Ordering Entity's total liability
under this Section 16.5 shall not in any circumstances exceed the
price that would have been payable by the Ordering Entity for the
Applicable Work if the Order had not been terminated (which price
shall include the costs of such resource commitments referenced
above). Apart from any payments to be made as set out in this
Section 16.5, and subject to Section 16.6, the Ordering Entity
shall have no liability to make any payments to Commerce One in
relation to the Order following its termination by the Ordering
Entity in accordance with its rights referred to above.
<PAGE>
16.6 In the event that the Agreement or an Order is terminated for any
reason whatsoever, any rights and obligations of any party hereto
which may have accrued prior to the date of such termination shall
not be affected. Furthermore, Commerce One shall complete all
other Orders existing at the time of termination of the Agreement,
including all support obligations as if the Agreement had not been
terminated.
16.7 Termination of the Agreement or Order shall be without prejudice
to any provision intended to operate thereafter.
17. CONFIDENTIALITY
17.1 Subject to the Condition headed `Intellectual Property", either
party receiving Information ("the Recipient") from the other shall
not without the other's prior written consent use such Information
except for Contract purposes or disclose such Information to any
person other than BT people or Contract Personnel who have a need
to know. The Recipient shall return documentation containing such
Information to the other party when no longer required for such
purposes.
17.2. Section 17.1 shall not apply to Information that is:
a) published except by a breach of the Contract; or
b) lawfully known to the Recipient at the time of disclosure
and is not subject to any obligations of confidentiality;
or
c) lawfully disclosed to the Recipient by a third party
without any obligations of confidentiality; or
d) replicated by development independently carried out by or
for the Recipient by an employee or other person without
access to or knowledge of the Information.
17.3. Neither Commerce One or BT shall publicise the Agreement or any
Order without the other's prior written consent and shall ensure
that any subcontractor is bound by similar confidentiality terms
to those in this Condition.
17.4. Without prejudice to any prior obligations of confidentiality it
may have, where Commerce One or Contract Personnel have access to
BT's computer systems or to Information relating to BT's customers
or subject to the Data Protection Acts 1984/1998 ("DPA"), Commerce
One shall:
<PAGE>
a) comply (and ensure that all relevant Contract Personnel
comply) with all relevant provisions of any BT Codes of
Practice (mutatis mutandis) appended to the Contract or
notified to Commerce One from time to time, the Computer
Misuse Act 1990 and the DPA; and
b) ensure all such Contract Personnel first sign and deliver
to BT a confidentiality agreement in the form appended to
the Agreement in Appendix D, or in such form as BT shall
reasonably require; and
c) ensure such Information is not disclosed to or accessed by
Contract Personnel not directly employed by Commerce One
without BT's prior written consent; and
d) keep (and ensure all relevant Contract Personnel keep) such
Information secure, act only on BT's instructions with
respect to it, and comply with such further reasonable
requirements from time to time of BT for the security of
it; and
e) not export such Information outside the European Union
without BT's prior written consent; and
f) allow (and ensure that all relevant Contract Personnel
allow) BT or its authorised representatives such access to
premises, systems and records containing such Information
as is reasonably necessary to assess Commerce One's
compliance with this Condition.
[18. NUMBER NOT USED]
19. INTELLECTUAL PROPERTY INDEMNITY
19.1 Commerce One shall fully indemnify the Ordering Entity against all
actions, claims, proceedings, damages, costs, and expenses arising
from any infringement or alleged infringement of any patent,
copyright or trade secret arising from the use by the Ordering
Entity of the Programs, the Program Documentation or other
Information supplied by Commerce One pursuant to this Agreement.
Notwithstanding the foregoing, Commerce One shall have no
obligation to indemnify under this Section 19 if such infringement
claim results from corrections/modifications not provided by
Commerce One, failure to install updates, combinations of the
Programs software with any software not provided by Commerce One,
or specific customization of the Program software at the request
of BT (which shall be defined as the addition or inclusion of any
specific functionality requested by BT) or any Alliance members.
<PAGE>
19.2 BT and/or the Ordering Entity shall notify Commerce One, and
Commerce One shall notify BT, promptly in writing of any
infringement or alleged infringement referred to in Section 19.1.
19.3 In the event of any such infringement or alleged infringement as
set out in Section 19.1, Commerce One shall at its own expense
and, provided Commerce One exercises reasonable judgement, its own
option:
19.3.1 Substitute a substantially equivalent non-infringing
product allowing the Ordering Entity unrestricted use
of the infringing Programs or Documentation, and to
exercise its other rights granted it under the trading
Agreement and relevant Order in respect of such
Programs or Documentation; or
19.3.2 Modify or replace the Programs or Documentation , so as
to meet the existing functional specification and avoid
the claim of infringement and any injunction or court
order; or
19.3.3 Negotiate for settlement of or defend the claim, and
hold the Ordering Entity harmless from any judgement,
order or settlement. Commerce One shall endeavour to
conduct such negotiations and litigation in a timely
manner, provided that Commerce One shall have sole
central of the defense, including settlement.
Unless otherwise agreed in writing Commerce One shall conduct all
negotiations and litigation in relation to any such infringement
or alleged infringement and be responsible for all costs and
expenses incurred. The Ordering Entity shall afford all reasonable
assistance in contesting such allegations but if Commerce One
fails to conduct such negotiations or litigation within a
reasonable time, the Ordering Entity may request to conduct of the
same and in such instance Commerce One shall fully reimburse the
Ordering Entity for all resultant costs.
20. ELECTRONIC DATA INTERCHANGE (EDI)
BT or the Ordering Entity may wish to introduce EDI during the continuance
of the Trading Agreement. Commerce One shall fully co-operate with BT or
the Ordering Entity in any such initiative the costs of introducing EDI to
be paid by the Ordering Entity
<PAGE>
21. ORDERING ENTITY ITEMS
21.1 All Ordering Entity Items shall remain the property of the
Ordering Entity. Commerce One shall return them to the Ordering
Entity upon completion or termination of the Trading Agreement or
relevant Order, or earlier reasonable request by the Ordering
Entity. Commerce One shall keep the Ordering Entity Items, and
(before their delivery to Ordering Entity) any items or things
that are or have become the Ordering Entity's property ("Ordering
Entity property"), in safe custody and good condition, set aside
and clearly marked as Ordering Entity property. Commerce One shall
be fully liable for any loss of or damage to Ordering Entity Items
or Ordering Entity property.
21.2 Upon receipt of the Ordering Entity Items, Commerce One shall
satisfy itself that they are not defective or deficient for the
purpose for which they are being provided, and within 14 days of
receipt shall notify the Ordering Entity of any defects or
deficiencies.
21.3 Commerce One shall not, without the prior written consent of the
Ordering Entity, use Ordering Entity Items for any purpose other
than is necessary for the performance of the Trading Agreement, or
allow any other party to use, take possession of, or have any
rights or lien over Ordering Entity Items or Ordering Entity
property.
21.4 Without limiting the generality of Commerce One's obligations,
Commerce One shall not have, and shall ensure that third parties
shall not have, a lien on the Ordering Entity Items or Ordering
Entity property for any sum due. Commerce One shall take all
reasonable steps to ensure the title of the Ordering Entity and
the exclusion of such lien are brought to the notice of all
personnel dealing with any Ordering Entity Items or Ordering
Entity property.
21.5 In the event of any threatened seizure of any Ordering Entity
Items or Ordering Entity property or in the event of Commerce One
(or any personnel or Subsidiaries of Commerce One in possession of
such Ordering Entity Items or property) going into receivership,
administration or liquidation (or the equivalent of any of these)
Commerce One shall:
a) Notify BT and the Ordering Entity immediately; and,
b) Draw to the attention of the relevant official that
Ordering Entity Items and Ordering Entity property are the
property of the Ordering Entity and do not form part of
Commerce One's assets; and,
<PAGE>
c) Allow BT and the Ordering Entity to enter Commerce One's
premises or those of any Subcontractor where Ordering
Entity Items or Ordering Entity property are stored and
take possession of them.
22. ASSIGNMENT AND SUBCONTRACTING
22.1 Commerce One shall be wholly responsible for the performance of
the Work and the actions and omissions of all Subcontractors for
which Commerce One is responsible
22.2 BT, Commerce One and any Ordering Entity shall not without the
permission in writing of the other
22.2.1 Assign or sub-contract the whole of the Trading
Agreement; or
22.2.2 Assign or sub-contract part of the Trading Agreement
except as is customary in the trade; or
22.2.3 Assign or sub-contract any Order in whole or in part
without the others permission in writing, provided,
however that, notwithstanding the foregoing, Commerce
One shall be able to assign this Trading Agreement to
an entity acquiring all, or substantially all, of its
assets or capital stock, provided that such entity is
not a competitor of BT or any of its majority owned
subsidiaries, in which case Commerce One shall be
required to receive BT's consent to such assignment. In
addition, Commerce One shall be able to use
subcontractors to complete any Work under this
Agreement or any Order.
23. MISTAKES IN INFORMATION
Both parties shall inform each other in writing of any mistakes in the
Information, within a reasonable time of receipt.
24. PROTECTION OF DOCUMENTS AND PROGRAMS
24.1 Both parties shall take suitable precautions to protect
documentation and Programs [and Foreground Information] generated
or required for the Trading Agreement or Order against loss of any
kind. Upon the release of any Programs or Documentation
<PAGE>
update a set of the latest Programs and documentation shall be
stored by Commerce One in a safe location remote from Commerce
One's normal work premises.
24.2 Commerce One shall, if required by the Ordering Entity, enter an
agreement with a neutral third party, acceptable to the Ordering
Entity, to lodge with the third party copies of such Programs
including source code and update them as necessary for release to
the Ordering Entity in the event that Commerce One becomes
unwilling or unable to support such Programs. Each party shall be
responsible for its respective costs. Should the parties be unable
to agree a mutually acceptable third party the services of Escrow
International, UK shall be employed as a default option.
24.3 In the event of either party being required to dispose of any
Programs media during the course of any Work to be carried out
under this Agreement he shall ensure that all such disposals are
effected so as to give absolute protection to any of the other
parties Information contained therein and to prevent any data
falling into the hands of any third party.
25. TITLE AND RISK
25.1 Without prejudice to the Ordering Entity's right to reject under
the Agreement or Order, the title in the Work shall pass to the
Ordering Entity upon the earlier of delivery or Acceptance or the
passing of risk or payment (including any part payment).
25.2 Without prejudice to the Ordering Entity's right to reject under
the Agreement or Order, risk shall pass from Commerce One to the
Ordering Entity upon the later of, Acceptance, delivery or
payment.
26. INDEMNITY-GENERAL
26.1 Without prejudice to any other rights or remedies available to
either party, each party shall indemnify the other against all
claims and proceedings, damages, costs and expenses arising or
incurred in respect of:
26.1.1 Death or personal injury of any other person to the
extent arising as a result of the negligent acts or
omissions of the other or the other's personnel or
subcontractors in relation to the performance of the
Trading Agreement or any Order thereunder; or
<PAGE>
26.1.2 Loss of or damage to any physical property to the
extent arising as a result of negligent acts or
omissions of the other or the other's personnel or
subcontractors in relation to the performance of the
Order; provided that this does not apply to any
liability arising from defects in the Programs,
Documentation, Foreground Information or Background
Information.
26.1.2 Any other direct loss or damage arising under or in
connection with this Agreement.
27. LIMITATION OF LIABILITY
27.1 Neither BT, Commerce One or any Ordering Entity, in connection
with this Agreement and any Order executed thereunder, shall be
liable to the other in respect of any misrepresentation or in
contract or in tort including, without limitation, negligence for:
27.1.1 Any indirect or consequential loss, loss arising
from third party claims, loss of revenue, loss of
profits, loss of business or goodwill, loss of,
damage to, corruption of or compromise of data, loss
of use or any other economic loss; and
27.1.2 Damages in excess of 1.5 times the aggregate sums
paid and payable under this Agreement or the Orders
accepted pursuant to this Trading Agreement.
27.2 The limitations under Section 27.1 shall not apply in respect of:
27.2.1 Death or personal injury, fraud or fraudulent
misrepresentation; or
27.2.2 The Intellectual Property Right Indemnities in
Section 19, provided, however, that in no event
shall Commerce One be liable in excess of the limits
detailed in Section 27.1.2 for patent claims in
countries who have not agreed to abide by the
General Agreement and Tariffs and Trade (GATT).
27.2.3 Any liability of BT or Ordering Entity to pay any Order
Price, charges and any other sums due to Commerce One
under this Agreement.
28. INSURANCE
28.1 Commerce One shall provide satisfactory evidence of such
insurances, at the customary coverage levels and conditions
germane to the types of products and services being purchased, as
BT or Ordering Entity may request before and during the
<PAGE>
term of the Trading Agreement, to include where appropriate, but
not necessarily limited to:
28.1.2 Employer's Liability Insurance;
28.1.3 Third party liability insurance;
28.1.4 Comprehensive general (third party) liability
insurance;
28.1.5 Professional liability insurance;
This Condition shall not be deemed to limit in any way Commerce One's
liability under the Trading Agreement.
If Commerce One cannot provide evidence of insurances to BT or Ordering
Entity, BT or Ordering Entity may arrange such insurances and recover the
cost from Commerce One, subject to Commerce One's approval of the terms of
such insurances.
29. RECOVERY OF SUMS DUE
Whenever a sum of money due to the Ordering Entity from Commerce One in
relation to any Order or otherwise is not paid on the due date, it may be
deducted from any sum then due, or which at any time thereafter may become
due to Commerce One under the Order or any other contract with the
Ordering Entity.
30. PAYMENT
30.1 In consideration of the licenses, products and services supplied
by Commerce One pursuant to this Agreement, the Ordering Entity
will pay to Commerce One the fees detailed in Schedule 2 or as
agreed in any Order for Foreground Information.
All fees are stated exclusive of value added tax but which shall
be payable in addition by the Ordering Entity.
30.2 All sums under this Agreement shall be payable by the Ordering
Entity within 30 (thirty) working days of submission of a valid
invoice (such invoice to be issued according to the terms of the
relevant Order), whether such sums become due on the date of the
relevant invoice from Commerce One or on the grant of any
applicable license or sub-license.
<PAGE>
31. RECORDS INSPECTION
The Ordering Entity shall maintain records of, and provide Commerce One
within [30] days of the end of each month a list of all End Users to
whom a sub-license (does this include resell) of the Programs or
Program Documentation is granted by the Ordering Entity.
32. SITES
32.1 Commerce One shall at his own expense comply with all Site
regulations applicable to the performance of the Order and take
and comply with such other measures as may be reasonably necessary
in respect of precautions for safeguarding all persons and
property as may be affected by the performance of the Order.
32.2 Where the Work is to be carried out on Site, the Ordering Entity
shall provide such reasonable facilities as Commerce One may
require to undertake the Work.
32.3 The Ordering Entity and Commerce One shall agree such reasonable
working hours as may be applicable to each Site.
32.4 Commerce One shall agree and advise the Ordering Entity in writing
of the dates and times on which it proposes to deliver any work to
the Site, together with any specific requirements related to the
work for each Site.
32.5 Commerce One's personnel and SubContractor's personnel shall
conform to all security, safety and Site regulations and such
other local instructions, as may be notified by the Ordering
Entity or where applicable, its End User, whilst on any Site.
32.6 Commerce One shall be deemed to have examined the Sites. No claims
from Commerce One for additional payment will be allowed on the
grounds of misinterpretation of any matter relating to the Site,
on which Commerce One could reasonably have satisfied itself, by a
visit to the premises, reference to the Ordering Entity or such
other means as may be appropriate.
32.7 Commerce One shall give at least 10 working days notice in writing
to the Ordering Entity of the proposed dates and times on which it
proposes to deliver any Supplies or Commerce Ones Supplies to the
Site.
<PAGE>
32.8 Commerce One shall upon dispatch of the Supplies or Commerce Ones
Supplies to Site notify the Ordering Entity of details of the
Supplies or Commerce Ones Supplies by means of a copy of the
dispatch note or otherwise in writing.
32.9 Commerce One shall deliver the Supplies to the Site and shall
provide all equipment and labour for the conveyance and unloading
of the Supplies on to the Site.
32.10 No part of the Supplies or Commerce Ones Supplies shall be removed
from the Site without the consent of the Ordering Entity.
32.11 Other than any defective Work and Supplies Commerce One shall not
remove Commerce One's Supplies before submitting Work for
Acceptance, and, shall leave the Site clean and in good condition.
33. EXPORT AND RE-EXPORT
33.1 Commerce One will be responsible for compliance with all
applicable national export control laws and regulations and agrees
not to export, directly or indirectly, any Programs or
Documentation where such export would cause a breach of either any
such laws or regulations applicable to Commerce One or the
Ordering Entity or of any export licence granted or applicable to
Commerce One or the Ordering Entity.
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
SCHEDULE 1
NOT USED.
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
SCHEDULE 2
NOT USED.
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
APPENDIX A
COMMERCE ONE, INC.
AND
BT
APPENDIX A
MAINTENANCE AND SUPPORT AGREEMENT
1. DEFINITIONS.
This Agreement is entered into by and between C1 and BT in connection with that
certain Software License Agreement executed by the parties of even date herewith
(the "License Agreement"). Any capitalized term use herein and not otherwise
defined herein shall have the meaning ascribed to such term in the Trading
Agreement.
(a) "DESIGNATED INTERFACE" shall mean a mutually agreed to reasonable
number of contact persons designated by BT who have been adequately
trained in the C1 Software that will coordinate all Support requests to
C1.
(b) "ERROR" shall mean a reproducible or demonstrable defect in the
Software when operated on a Supported Environment which causes the
Software not to operate substantially in accordance with the
Documentation.
(c) "RESOLUTION" shall mean a modification or workaround to the Software
provided by C1 to BT that resolves an Error, or an agreed upon action
plan provided by C1 for resolving an Error to the extent C1 is
performing in accordance with such action plan.
(d) "SUPPORT" shall mean the services provided by C1 pursuant to the terms
of this Agreement.
(e) "SUPPORT HOURS" are as set forth in Section 2 of Exhibit A attached
hereto.
(f) "SUPPORTED ENVIRONMENT" shall mean any hardware and operating system
platform which C1 supports for use with the Software.
(g) "SOFTWARE" shall mean the current version and at least one (1) previous
version of the Software (as defined in the License Agreement) in use by
BT or a Permitted User.
(h) "TERM" shall mean the period specified in Section 2(a) of this
Agreement as it may be amended or extended from time to time.
(i) "UPDATE" means a subsequent release of the Software which C1 generally
makes available for Software licensees covered under support agreements
at no additional license fee.
2. TERM AND TERMINATION.
(a) TERM. The term of this Agreement shall be three (3) years from the
Effective Date or as may be agreed in any Order or Special
Commissioning Order.
Use standard trading agreement terms
3. SERVICES PROVIDED.
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
(a) TELEPHONE SUPPORT. C1 will provide telephone support to a Designated
Interface during the Support Hours. Telephone support will include the
following:
(i) CLARIFICATION OF FUNCTIONS AND FEATURES OF THE SOFTWARE;
(ii) CLARIFICATION OF THE DOCUMENTATION;
(iii) GUIDANCE IN OPERATION OF THE SOFTWARE;
(iv) ASSISTANCE IN IDENTIFYING AND VERIFYING THE CAUSES OF SUSPECTED ERRORS
IN THE SOFTWARE; AND
(v) ADVICE ON BYPASSING IDENTIFIED ERRORS IN THE SOFTWARE, IF REASONABLY
POSSIBLE.
(b) RESOLUTION OF ERRORS. C1 will provide an initial response acknowledging
Errors reported by BT in accordance with the severity levels and
response times identified in EXHIBIT A ("Error Correction Severity
Levels and Response Times") hereto. The parties hereto shall agree on
the severity level assigned to a particular Error. Prior to the
"Resolution Time" identified for a applicable severity level in Exhibit
A, C1 shall provide a reasonable Resolution to the Error or shall
provide a written plan for such resolution specifying a firm resolution
date which is reasonably acceptable to BT. C1 will acknowledge each BT
report of an Error by written acknowledgement. Notwithstanding any
other provision of this Agreement, C1's obligation under this Agreement
is to provide a Resolution to any Error in the Software
(c) TRAVEL EXPENSES. Maintenance and support services provided hereunder
shall be provided at C1's principal place of business, or on site at
C1's expense, as determined in C1's reasonable discretion. Should BT
request that C1 send personnel to a Permitted User's site to resolve
any Error in the Software when on site presence of C1 is not reasonably
required to resolve the Error in an acceptable time period, BT shall
pay C1's reasonable travel, meals and lodging expenses in accordance
with the then-current C1 travel policy. Any such travel shall be
subject to the reasonable availability of C1 personnel.
(d) EXCEPTIONS. C1 shall have no responsibility under this Agreement to fix
any Errors to the extent such Errors are caused by or result from the
following: (a) any modification of the Software (in whole or in part)
by any party other than C1 or its contractors, or interaction of the
Software with any BT Enhancement (as defined in the License Agreement),
for which C1 has not received the source code and a license to
incorporate such source code into the baseline Software pursuant to
Section 5 of the Trading Agreement; (b) use of the Software in an
environment other than a Supported Environment; (c) accident; unusual
physical, electrical or electromagnetic stress; neglect; misuse;
failure or fluctuation of electric power, air conditioning or humidity
control; failure of media not furnished by C1; excessive heating; fire
and smoke damage; operation of the Software with other media and
hardware, or software or telecommunication interfaces not meeting or
not operating in accordance with the manufacturer's specifications, or
(d) any third party software not embedded in the Source Code of the
Software. Any corrections performed by C1 for such Errors shall be
made, upon the prior written agreement of the parties, at agreed upon
time and material charges.
(e) ADDITIONAL C1 OBLIGATIONS RELATED TO SERVICES. C1 shall comply with the
following requirements as to any services to be performed hereunder:
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
(1) Insurance. COVERED IN MAIN BODY OF AGREEMENT
(2) Independent Contractor Status. THROUGHOUT THE TERM OF THIS AGREEMENT C1 IS
PROVIDING SERVICES TO BT AS AN INDEPENDENT CONTRACTOR. C1 SHALL FILE ALL
FORMS AND MAKE ALL PAYMENTS NECESSARY OR APPROPRIATE TO PRESERVE OR
SUPPORT SUCH INDEPENDENT CONTRACTOR TAX STATUS.
(3) C1 Personnel. C1 IS RESPONSIBLE FOR ALL EMPLOYEE-RELATED BENEFITS
APPLICABLE TO C1'S PERSONNEL AND CONTRACTORS PERFORMING SERVICES UNDER
THIS AGREEMENT. BT, ITS AFFILIATES OR ANY OTHER PERMITTED USER SHALL NOT
BE OBLIGATED TO PROVIDE C1 PERSONNEL WITH EMPLOYEE BENEFITS OF ANY TYPE
UNLESS OTHERWISE REQUIRED BY LAW. C1 IS RESPONSIBLE FOR WITHHOLDING FROM
C1'S PERSONNEL'S WAGES, APPLICABLE PORTIONS OF FEDERAL, STATE AND LOCAL
TAXES AND ASSESSMENTS AS REQUIRED BY LAW.
(f) PROCEDURES. Within thirty (30) days of the Effective Date of this
Agreement, the parties shall agree upon written procedures for the
logistical provision of Support under this Agreement.
4. UPDATES.
(a) C1 will provide Updates for the Software as and when developed for
general release in C1's sole discretion. C1 shall support the most
current Update and the two (2) immediately preceding release. Each
Update will consist of a set of programs and files made available on
machine-readable media and will be accompanied by Documentation
adequate to inform BT of the problems resolved and any significant
operational differences resulting therefrom. Any Update provided
hereunder shall, upon delivery to BT, be deemed by the parties to
become part of the Software for purposes of this Agreement.
5. BT RESPONSIBILITIES.
(a) SUPERVISION AND MANAGEMENT. BT is responsible for undertaking the
proper supervision, control and management of its use of the Software,
including, but not limited to assuring proper Supported Environment
configuration, Software installation and operating methods.
(b) TRAINING. BT is responsible for proper training of all appropriate
personnel in the operation and use of the Software and associated
equipment.
(c) DESIGNATED INTERFACE. BT shall from time to time designate to C1 in
writing an individual or group to serve as the Designated Interface
with C1 for the Support.
(d) ACCESS TO PERSONNEL AND EQUIPMENT. BT shall provide C1 with reasonable
access to BT's personnel and its equipment during Support Hours. This
access must include the ability to dial-in to the equipment on which
the Software are operating and to obtain sufficient access to the
equipment to perform C1's obligations. C1 will inform BT of the
specifications of the reasonable modem equipment and associated
software needed, and BT will be responsible for the costs and use of
said equipment.
6. SUPPORT FEES.
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
(a) SUPPORT FEES. Support is provided during the term hereof at an annual
rate of 18% of net software license fees paid to C1. These fees shall
be adjusted according to revenues associated with MarketSite Support
and Maintenance provided by BT as the UK MarketSite Operator as
negotiated by the parties. Support is provided to BT or Permitted Users
that obtain such support through BT; provided Permitted Users shall
only use the Support provided hereunder in connection with the licenses
granted pursuant to the License Agreement.
(b) EXPENSES. Any expenses or other charges payable by BT in accordance
with Sections 3(c) and 3(d) hereof shall be invoiced no more
frequently than monthly. Undisputed charges shall be paid by BT
within thirty (30) days of BT' receipt of an invoice. C1 shall
accommodate BT' reasonable requests regarding the content of, and
process for submitting, invoices to facilitate prompt payment.
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
EXHIBIT A
C1 MAINTENANCE AND SUPPORT POLICIES
1. DESCRIPTION
Maintenance programs commence at the expiration of the warranty period. BT shall
receive a combination of 12 x 5 operation support with 24 x 7 for mission
critical response ("down condition").
2. HOURS OF OPERATIONS
Monday to Friday 7AM to 7PM PST for operational
support 24 x 7 on call pager support for "customer
down" situations 24 x 7 scheduled customer content
update assistance
3. CONTACTING SUPPORT
Home Page: http://support.commerceone.com
800 Hotline Support Number 800 949-8939
Fax Number (925) 941- 6060
Email [email protected]
4. SUPPORT DESCRIPTIONS
Unlimited phone support during operational hours in the following areas: product
functionality, documentation questions, tips/suggestions/workarounds, bug
reporting, and upgrade/update releases; 24 x 7 (scheduled) support and
assistance in updating catalog and or suppliers; 24 x 7 emergency support (via
paging service). C1 will support BT on a 2nd line or backline basis unless
mutually agreed.
Unlimited 24 x 7 web access for submitting problem reports or checking status of
previous reported issues.
Unlimited 24 x 7 web access for FAQ and self-help Knowledge Base systems.
5. RESPONSE AND RESOLUTION TIMES
5.1 Commerce One shall correct all faults in the Software notified by
BT and shall provide BT with all such documentation as may be
necessary to reflect changes to the Software.
5.2 Upon receipt of BT's request for support and/or rectification of a
fault Commerce One shall promptly commence work on such request so
as to achieve the timescales for
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
support and rectification of faults detailed in paragraph 3.3.
5.3 (a) PRIORITY CODE A: Software down and cannot be brought up
or Software failing once or more a day causing serious
disruption for BT-Commerce One shall commence work on the
problem and/or rectification of the fault immediately upon
receipt of notification by BT and shall continue the work
until the problem is resolved and/or the fault is
rectified. Commerce One shall use its best endeavours to
resolve a Priority Code A problem and or by-pass or rectify
a priority Code A fault within two (2) hours of receipt of
report from BT of the said problem or fault.
(b) PRIORITY CODE B: Software failing regularly or problems
occurring whenever a specific facility or function is
invoked or if Development is halted - Commerce One shall
use all reasonable endeavours to resolve a Priority Code B
problem and/or rectify a Priority Code B fault within four
(4) hours of receipt of report from BT of the said problem
or fault. In the event that Commerce One shall fail to meet
the four (4) hour timescale for resolution of problem or
rectification of fault BT may at its discretion escalate
the said problem or fault from Priority Code B to Priority
Code A.
(c) PRIORITY CODE C: Problems/failures occur occasionally but
can be circumvented without undue difficulty or disruption
to BT's operation - Commerce One shall use all reasonable
endeavours to resolve a Priority Code C problem and/or
rectify a Priority Code C fault within 5 days of receipt of
report from BT of the said problem or fault.
2.4 Commerce One shall carry out such modifications, amendments and
enhancements to the Software as BT may request from time to time.
<TABLE>
<CAPTION>
- ------------------------------ ------------------------------------------------------------------------
LEVEL OF SEVERITY
- ------------------------------ ------------------------- ---------------------- -----------------------
ESCALATION LEVEL CATEGORY A CATEGORY B CATEGORY C
- ------------------------------ ------------------------- ---------------------- -----------------------
<S> <C> <C> <C>
Commerce One Help-Desk Formal notification of Formal notification Formal notification
problem or fault of problem or fault of problem or fault
- ------------------------------ ------------------------- ---------------------- -----------------------
Commerce One Help-Desk Within 2 hours of BT Within 4 hours of BT Within 5 working days
Supervisor reporting the problem reporting the of BT reporting the
or fault unless a fix problem or fault problem or fault
is scheduled unless a fix is unless a fix is
scheduled scheduled
- ------------------------------ ------------------------- ---------------------- -----------------------
</TABLE>
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
<TABLE>
<CAPTION>
- ------------------------------ ------------------------------------------------------------------------
LEVEL OF SEVERITY
- ------------------------------ ------------------------- ---------------------- -----------------------
ESCALATION LEVEL CATEGORY A CATEGORY B CATEGORY C
- ------------------------------ ------------------------- ---------------------- -----------------------
<S> <C> <C> <C>
Commerce One Project Manager Within 4 hours of BT Within 1 working Within 14 working
reporting the problem days of BT reporting days of BT reporting
or fault unless a fix the problem or fault the problem or fault
is scheduled unless a fix is unless a fix is
scheduled scheduled
- ------------------------------ ------------------------- ---------------------- -----------------------
Commerce One Director Within 12 hours of BT Within 3 working -
reporting the problem days of BT reporting
or fault unless a fix the problem or fault
is scheduled unless a fix is
scheduled
- ------------------------------ ------------------------- ---------------------- -----------------------
Escrow Trigger 24 hours 5 working days
- ------------------------------ ------------------------- ---------------------- -----------------------
</TABLE>
All deadlines in the table relate to the date and time of the
original fault report call. Commerce One will respond to BT
problems or faults within the timescales stated in Section 4.3
unless the above escalation procedure is invoked. It will be
the responsibility of Commerce One to notify BT that the
escalation has occurred, and to specify the level of
escalation.
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
APPENDIX B
OFFICIAL ORDER COVER SHEET
This Order (which comprises this Official Order Cover Sheet and attendant
documents referenced below) is subject to the terms and conditions of the BT /
Commerce One Trading Agreement 658130 dated December 8th, 1998. Should the terms
and conditions of this Order conflict with or vary from those of the Trading
Agreement then the Trading Agreement shall take precedence; however variations
that are clearly and explicitly set out in the Variation to Trading Agreement
section of this Order shall take precedence over those terms set forth in the
Trading Agreement.
<TABLE>
<CAPTION>
<S> <C>
- ------------------------------------------- -----------------------------------------------------------------
ORDERING ENTITY:
- ------------------------------------------- -----------------------------------------------------------------
POINT OF CONTACT:
- ------------------------------------------- -----------------------------------------------------------------
ADDRESS:
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
POSTCODE:
- ------------------------------------------- -----------------------------------------------------------------
- ---------------------------------------------------------------------------------- --------------------------
STATE WHETHER ORDER IS A COMMERCIAL SERVICE LICENCE (REFERRED TO IN SECTION YES / NO
5.2.2 OF THE TRADING AGREEMENT
- ---------------------------------------------------------------------------------- --------------------------
STATE WHETHER ORDER IS A SPECIAL COMMISSIONING ORDER (REFERRED TO IN SECTION YES / NO
5.8 OF THE TRADING AGREEMENT)
- ---------------------------------------------------------------------------------- --------------------------
- ------------------------------------------- -----------------------------------------------------------------
ORDER NO:
- ------------------------------------------- -----------------------------------------------------------------
QUOTATION NO:
- ------------------------------------------- -----------------------------------------------------------------
PRICE AND CURRENCY:
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
DELIVERY ADDRESS:
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
POST CODE:
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
INVOICE ADDRESS IF FROM ABOVE:
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
POST CODE:
- ------------------------------------------- -----------------------------------------------------------------
- ------------------------------------------- -----------------------------------------------------------------
WORK REQUIRED AND TIMESCALES (INCLUDING
REFERENCES TO ANY APPENDED DOCUMENTS)*
- ------------------------------------------- -----------------------------------------------------------------
*WHERE THE QUOTATION AND OR SPECIFICATION ARE NOT ATTACHED TO THIS DOCUMENT THEN
THE WORK REQUIRED AND TIMESCALES SHOULD BE IDENTIFIED.
- ------------------------------------------------------- -----------------------------------------------------
VARIATION TO TRADING AGREEMENT
- ------------------------------------------------------- -----------------------------------------------------
Authorised Signatures
- ------------------------------------------------------- -----------------------------------------------------
ORDERING ENTITY COMMERCE ONE
- ------------------------------------------------------- -----------------------------------------------------
NAME: NAME:
- ------------------------------------------------------- -----------------------------------------------------
SIGNATURE: SIGNATURE:
- ------------------------------------------------------- -----------------------------------------------------
DATE: DATE:
- ------------------------------------------------------- -----------------------------------------------------
</TABLE>
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
APPENDIX C
CONFIDENTIALITY AGREEMENT
IMPORTANT NOTE: This form must be completed by all non-BT people who
are to undertake work for BT before they have access to BT information
or BT computer systems.
You may, as a supplier or as an employee or subcontractor of a supplier
to British Telecommunications plc (BT), have access to BT information
or BT computer systems.
BT requires you:
- - to keep all BT information (whether or not it is marked "NOT TO BE SHOWN
OUTSIDE BT", "IN CONFIDENCE", or "IN STRICTEST CONFIDENCE") confidential
and not to disclose it, unless you first have BT's written permission.
- if you have access to BT customer or personal information, to comply
with the provisions of the Data Protection Acts 1984 and 1998 and only
to process, transfer or remove such information in accordance with
BT's instructions.
- - to access BT computer systems and BT electronic information only to the
extent you have been authorised to do so. Unauthorised access may result in
your being prosecuted under the Computer Misuse Act 1990.
- - to access and use BT computer systems and BT information only as is
necessary to do your job properly.
- - to comply with other BT instructions and security policies that may be
notified from time to time.
If you are in any doubt as to these requirements or the policies of BT Group
Security, further advice and information can be obtained from your BT contact.
One copy of this form must be signed and delivered to your BT contact before you
start work, and the other retained by you.
PERSONAL DECLARATION
I have read and understand the above requirements and agree to be bound by them.
Signed ............................................. Date: ..............
Print full name and home address:
....................................................
Name
....................................................
Address
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
..........................................................
..........................................................
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
APPENDIX D
BT CODE OF PRACTICE ON THE DISCLOSURE OF CUSTOMER INFORMATION.
BT Code of Practice on the Disclosure of Customer Information by BT
Supplemental Services Business.
INTRODUCTION
1. British Telecommunications plc (BT) operates under a licence granted by
the Secretary of State for Trade and Industry under Section 7 of the
Telecommunications Act 1984 (the Licence).
2. Conditions 38 and 38A of the Licence oblige BT to produce Codes of
Practice for use by those of its employees engaged in the Systems Business and
those of its employees engaged in the Supplemental Services Business
respectively. This Code is in relation to the Supplemental Services Business and
is intended to protect information about a customer acquired in the course of
the Supplemental Services Business so as to prevent the use of such information
to obtain an unfair advantage. For example, information that a customer has
contracted for value added services or data services should not be passed
without the customer's consent outside of the Supplemental Services Business to
help create a further selling opportunity for apparatus or systems. A separate
Code of Practice has been issued in respect of the Systems Business.
3. The Code, which has been agreed by the Director General of
Telecommunications, is without prejudice to any other legal obligations of BT
towards its customers.
4. BT has an obligation under Condition 38A to take all reasonable steps to
ensure that the terms of the Code are followed by employees in the Supplemental
Services Business. All other BT employees must co-operate with those in the
Supplemental Services Business to ensure that the Code is respected.
Instructions for BT employees in the Supplemental Services Business follow
below.
5. In accordance with Condition 38A, this Code deals with the disclosure of
information and does not deal with the possibility of unfair advantage arising
from the use of information by a person who works for the Supplemental Services
Business and obtains information in that capacity and at the same time works for
other Businesses such as Systems or Apparatus Supply. However, BT has
established guidelines for its employees about fair trading practices and under
those guidelines employees who receive information in their capacity for the
Supplemental Services Business and, for example , as part of the same
transaction make a sale of apparatus are required to inform customers that they
can obtain apparatus from competitors if they wish to do so.
6. Disclosure of certain information about the use made of public
telecommunication systems otherwise than in the course of duty may also be a
criminal offence under Section 45 of the Telecommunications Act 1984 (as
replaced by Schedule 2 to the Interception of Communications Act 1985).
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
THE CODE
WHAT IS SUPPLEMENTAL SERVICES BUSINESS
7. 'Supplemental Services Business' is defined within Condition 18 of the
Licence. Broadly, it is:
- the provision of any service which could have been provided on 1 April
1987 under and in accordance with the Class Licence for the running of
telecommunication systems providing value added and data services
granted by the Secretary of State on 1 April 1987, (effectively any
service provided by BT which could be provided by a competitor under
the Class Licence for value added and data services), together with
- activities such as installation, maintenance, adjustment, repair,
alteration, moving, removal or replacement of any apparatus comprised
in any of BT's systems used, wholly or partly, for providing those
services.
8. This Code of Practice applies to all customer information which is
acquired by BT in the provision of telecommunication services for a
consideration in the course of its Supplemental Services Business. This
may include details of the customer's telecommunication and computing
systems provided to enable compatible connections with BT's systems, or
details of services with which the customer is being provided.
9. Where BT acquires any customer information to which this Code applies it
must be assumed that the information has been supplied or gained in
confidence. This information must not be disclosed outside the
Supplemental Services Business without the customer's recorded prior
consent. A customer shall only be held to have given such consent where
that consent was given by way of a specific response to a request by BT.
Information may be passed to persons within that part of BT also dealing
with the provision of telecommunication services without the customer's
prior recorded consent, for the internal purposes of BT, where those
persons have a valid operational requirement for the information. In such
cases its status as confidential information must be made clear to the
recipient and such recipients must be made aware of their responsibilities
under this Code.
10. Those responsible for collecting and storing confidential customer
information must ensure that it is kept confidential, and that it is not
disclosed to any BT employee except as permitted by paragraph 9 above
subject to the exceptions below.
EXCEPTIONS
11. There are five exceptions to the normal procedure described above.
a) In the investigation of any criminal offence or as specifically
permitted by law. BT discloses information without customer consent
where necessary in the
<PAGE>
Trading Agreement 658130 Schedule 1 - Terms and Conditions
prevention or detection of a criminal offence, in the interests of
national security or as specifically permitted by law, e.g. for the
purpose of any criminal proceedings;
b) Accounts; details of a customer's individual account may be
disclosed by any BT employee without that customer's consent when
the disclosure falls within the exceptions listed in (a) above or
is in the course of his duty in the Supplemental Services Business.
For example to the extent necessary to avoid bad debts or as
required by auditors.
c) Information already in the public domain or which has been supplied
to BT in order to be published may be disclosed without customer
consent.
d) Statistical information derived from customers' records may be
passed outside the Supplemental Services Business only if the
customer concerned cannot be identified from the information.
e) Information for the purpose of complying with BT's obligations
under the Licence may be disclosed without specific customer
consent.
COMPLYING WITH THE CODE
12. BT will take all reasonable steps to ensure that those engaged in the
Supplemental Services Business, or involved in handling customer accounts,
read this Code and understand it. If in any doubt about how to apply the
Code, employees should consult their manager for advice.
13. Observance of this Code is mandatory and Senior Management attach the
greatest importance to compliance with it at all times.
<PAGE>
Exhibit 10.12
MARKETING AGREEMENT
THIS AGREEMENT entered into effective as at the ____ day of July, 1998
BETWEEN:
MCI SYSTEMHOUSE CORP.
a corporation incorporated under the laws of Delaware,
having its principal place of business at 3 Ravinia Drive,
Atlanta, Georgia, 30346-2102
(hereinafter, "MCIS")
AND:
COMMERCE ONE, INC.
a corporation incorporated under the laws of California,
having a place of business at 1600 Riviera Avenue, Walnut Creek,
California 94596
(hereinafter, "C1")
WHEREAS the parties each desire to enhance the marketability of their respective
products and services;
AND WHEREAS the parties have complementary capabilities, products, and services,
and it is to their mutual benefit to cooperate and work together for the
purposes of providing Services as defined herein to Customers;
AND WHEREAS the parties intend to submit Proposals to Customers in an effort to
secure Contracts with Customers;
AND WHEREAS MCIS and C1 each desire to define their mutual rights and
obligations in connection with any joint marketing efforts, the preparation and
submission of Proposals and in connection with certain matters which may arise
if the Customer enters into a Contract;
NOW THEREFORE, in consideration of the mutual premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
<PAGE>
1.0 INTERPRETATION
1.1 In this Agreement the following expressions shall, unless the subject
matter or context is inconsistent therewith, have the respective
following meanings:
"ACT OF INSOLVENCY" means that a party:
(i) institutes proceedings for its winding-up (except for
reorganization), liquidation, or dissolution or consents to the
filing of any petition with respect thereto or files a petition
seeking reorganization, readjustment, arrangement, composition or
similar relief under applicable law, or consents to the filing of
any such petition or to the appointment of a receiver, liquidator,
trustee or similar officer of itself or any part of its property
or makes an assignment for the benefit of creditors; or
(ii) if a court having jurisdiction enters a decree or order for its
winding up, liquidation or dissolution or adjudges it to be
insolvent or enters a decree or order which remains in force,
undischarged or unstayed, for a period of 20 Business Days or more
approving, as properly filed, a petition seeking reorganization,
readjustment, arrangement, composition or similar relief for any
such party under applicable law, or the appointment of any
receiver, liquidator, trustee or similar officer of any such party
or all or any part of its property; or
(iii) if any application is made with respect to it under chapter 7 or
chapter 11 of Title 11 of the U. S. Code or similar or replacement
legislation or if a proceeding is instituted for its winding up or
a petition in bankruptcy is presented against it under a
bankruptcy or similar act and such application, proceeding or
petition is not dismissed, stayed or withdrawn within 20 Business
Days after such party has notice or knowledge of the institution
thereof.
"AFFILIATE" of a party or other entity shall mean a corporation,
partnership, joint venture or other entity directly or indirectly,
through one or more intermediaries, controlling, controlled by or under
common control with such party or other entity.
"AGREEMENT" means this agreement, any Schedule or Exhibit hereto, and all
amendments or modifications thereto.
"BUSINESS DAY" means any day between the hours of 8:00 a.m. and 5:00
p.m., Pacific time, other than a Saturday, Sunday or United States
federal holiday.
"C1 SOFTWARE" means the C1 software products as defined by the term
"Software" in the License Agreement.
"CONFIDENTIAL INFORMATION" means confidential or proprietary information
disclosed by a party pursuant to this Agreement, as defined in the Non-
Disclosure Agreement between the parties attached hereto as Schedule "B".
2
<PAGE>
"CONTRACT" means a contract entered into by either or both parties with a
Customer resulting from a Proposal.
"CUSTOMER" means an existing or potential customer or end-user of either
party, for whom Services may be performed.
"CUSTOMER OPPORTUNITY(IES)" means those opportunities to provide Services
to a Customer pursuant to this Agreement, as further defined in Schedule
"A" - Co-Marketing Obligations.
"EXHIBIT(S)" means the attachments to this Agreement listed in Section
1.6.
"EFFECTIVE DATE" means July __, 1998.
"INCLUDING" means "including without limitation" and is not to be
construed to limit any general statement which it follows to the specific
or similar items or matters immediately following it.
"LICENSE AGREEMENT" means the license agreement between the parties of
even date herewith.
"SUPPORT AGREEMENT" means the maintenance and support agreement between
the parties of even date herewith.
"PERSON" means an individual, partnership, corporation (including
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity or a government or any agency, department
or instrumentality thereof or vice versa howsoever designated or
constituted.
"PROPOSAL" means a proposal for the provision of Services made by either
or both parties to a Customer.
"SCHEDULE(S)" means the attachments to this Agreement listed in Section
1.6.
"SERVICES" means the products (including the C1 Software) and services to
be provided through the cooperation of the parties as described herein.
"TERRITORY" means anywhere in the world.
"WORK PRODUCT" means all original literary, artistic, technical, or other
material made, prepared, developed or produced by either party in the
performance of its obligations pursuant to this Agreement including
documentation, reports, manuals, and flow charts, but excluding ideas,
concepts, know-how or techniques.
3
<PAGE>
1.2 HEADINGS. The division of this Agreement into Sections and the
insertion of recitals and headings are for convenience of reference only
and shall not affect the construction or interpretation hereof.
1.3 SINGULAR, PLURAL, GENDER. Wherever in this Agreement the context so
requires, the singular number shall include the plural number and vice
versa and any gender herein used shall be deemed to include the feminine,
masculine or neuter gender.
1.4 AGREEMENT. The terms "hereof", "hereto", "herein", "hereunder" and
similar expressions refer to this Agreement and not to any particular
Section or other portion hereof and include any agreement supplemental
hereto.
1.5 ENTIRE AGREEMENT. This Agreement, together with the License Agreement
and the Support Agreement both of even date herewith, completely and
exclusively state the agreement of the parties regarding the subject
matter hereof and thereof. In the event of any conflict between the
terms of this Agreement and the License Agreement or the Support
Agreement, the terms of such other agreement shall control with respect
to the subject matter of such agreement. This Agreement supersedes, and
its terms govern, all prior proposals, agreements or other communications
between the parties, oral or written, regarding the subject matter of
this Agreement. This Agreement shall not be modified except by a
subsequently dated written amendment signed on behalf of C1 and MCIS by
their duly authorized representatives, and any purchase order purporting
to supplement or modify the provisions hereof shall be void.
1.6 SCHEDULES. The following are the Schedules attached to and forming
part of this Agreement:
Schedule "A" - Co-Marketing Obligations
Schedule "B" - Non-Disclosure Agreement
Exhibit "1" - C1 Standard Cancellation Policy - Training
The terms and conditions of any Schedule or Exhibit are in addition to
the terms and conditions set forth in this Agreement, except where such
terms and conditions of any Schedule conflict or are inconsistent with
the terms and conditions of the main body of this Agreement, in which
case the terms and conditions of the main body of this Agreement shall
prevail in all respects, and those of the Schedules shall prevail over
those of the Exhibits.
1.7 SEVERABILITY. In the event that any provision of this Agreement shall be
unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not
render this Agreement unenforceable or invalid as a whole and, in such
event, any such provision shall be changed and interpreted so as to best
accomplish the objectives of such unenforceable or intended provision
within the limits of applicable law or applicable court decisions.
4
<PAGE>
1.8 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the United States of America and the State of New York as
such laws are applied to agreements entered into and to be performed
entirely within New York between New York residents. The parties agree
that the United Nations Convention on Contracts for the International
Sale of Goods is specifically excluded from application to this
Agreement.
1.9 DATE FOR ACTION. In the event that any date on which any action is
required to be taken hereunder by any of the parties is not a Business
Day, such action shall be required to be taken on the next succeeding day
which is a Business Day unless otherwise provided in this Agreement.
1.10 CURRENCY. All references to currency are deemed to mean United States
dollars unless expressed to be in some other currency.
2.0 TERM
2.1 This Agreement shall be deemed effective as of the Effective Date and
shall continue in full force and effect for an initial term of three (3)
years unless earlier terminated in accordance with the terms of this
Agreement. For those Customer Opportunities for which a Proposal has been
submitted to the Customer prior to the termination of this Agreement, the
terms of this Agreement will survive and apply to Proposals accepted by a
Customer or contracts entered into with such Customer for the provision
of Services within nine (9) months from the date of termination of this
Agreement unless the parties otherwise mutually agree to extend such
period.
3.0 RELATIONSHIP OF THE PARTIES
3.1 The parties hereby agree to collaborate in order to mutually identify and
develop, subject to the terms and conditions of this Agreement, suitable
Customer Opportunities. Customer Opportunities will be pursued pursuant
to the requirements set forth in Schedule "A" attached hereto and
incorporated herein by reference.
3.2 The parties hereto shall be deemed to be independent contractors, and the
employees of one shall not be deemed to be employees of the other.
Neither party shall act as the agent of the other, and neither party
shall have any authority to, or shall attempt to, bind or commit the
other party for any purposes. This Agreement is not intended by the
parties, and shall not be deemed, to constitute or create a joint
venture, joint enterprise, partnership, or formal business organization
of any kind whatsoever.
3.3 Subject to any limitations set forth in Schedule A, "Co-Marketing
Obligations", each party expressly understands and agrees that the other
party may sell its respective
5
<PAGE>
products and services in the ordinary course of its business to third
parties who may individually submit a proposal to a Customer.
3.4 Nothing in this Agreement shall be construed as providing for the sharing
of profits or losses arising out of the efforts of the parties, except as
expressly provided in Section 5.0.
3.5 Neither party shall make any warranties, express or implied, concerning
the performance of the Services of the other party, including without
limitation fitness for a particular purpose.
4.0 RESPONSIBILITIES OF THE PARTIES
4.1 In addition to the responsibilities set forth in this Agreement, the
parties agree to the additional responsibilities set out in the
Schedules.
4.2 MCIS and C1 shall each use commercially reasonable efforts to formulate
Proposals and do all things reasonably appropriate and necessary to
secure the award of a Contract in accordance with the responsibilities
outlined herein.
4.3 Each party will provide to the other for such party's use to assist, as
reasonably necessary, in preparing a Proposal or in responding to
subsequent inquiries from the Customer, the following:
(i) such business information as a Customer, acting in a commercially
reasonable manner, deems necessary for selecting C1 as a software
supplier or MCIS as a services provider provided that this
information must be requested in writing by the Customer, with a
copy to both parties, and subject to Customer's execution of a
non-disclosure agreement reasonably acceptable to the party
providing such information;
(ii) technical data and information related to the Proposal;
(iii) drafts of relevant portions of a Proposal, if applicable;
(iv) prototypes and working demonstrations of its products;
(v) reasonable cost and pricing data for its portion of the Proposal
as requested by Customer, if applicable; and
(vi) commercially reasonable access to key personnel.
4.4 The parties agree to use reasonably commercial efforts to work with each
other in all applicable areas, including but not limited to Proposal
preparation, demonstration, submission and presentations to Customer, if
applicable.
6
<PAGE>
4.5 The parties each will designate one or more individuals within their
organizations as their representative(s) responsible to direct
performance of the parties' obligations under this Agreement
(respectively, the "PROPOSAL CONTACTS"). The following Proposal Contacts,
who may be replaced or changed upon written notice to the other party
from time to time, are named for the purposes herein:
For MCIS: ________________
________________
MCI Systemhouse Corp.
________________
________________
_______________, California ______
Fax #: ______________
For C1: Melissa Lynch
Jeff Smith
Commerce One, Inc.
1600 Riviera Avenue
Walnut Creek, California 94596
Fax #: 510-941-6060
4.6 Each party will advise the other party in a timely manner of any changes
in a Customer Opportunity which may affect the other party's areas of
responsibility for Services. In the event of such changes, the parties
will enter into good faith negotiations to revise a Proposal to increase
or decrease the Services to be performed by each party hereunder and the
associated impacts on pricing; provided that in no event shall either
party have the right to modify the other party's obligations under a
Proposal without such party's prior written consent to such
modifications.
5.0 SALES COMMISSIONS
5.1 C1 shall pay MCIS 5% of each MCI-based ECN transaction fee paid by any
C1 Customer during the term of this Agreement where such Customer has not
engaged MCIS to provide systems integration services. C1 shall pay MCIS
10% of each MCI-based ECN transaction fee paid by any C1 Customer during
the term of the Agreement where such Customer has engaged MCIS to provide
systems integration services and MCIS performs such integration services.
For purposes of this Section 5.1, "MCI-based ECN transaction fee" shall
mean fees, to the extent received in cash by C1, from Customers whose C1
proprietary electronic commerce networks ("ECN") are hosted by an MCIS
Affiliate with respect to transactions executed over such networks. It
is understood and agreed that "MCI-based ECN transaction fees" shall not
include license fees, maintenance and
____________________________
7
<PAGE>
support fees, professional service or consulting fees or any other amount
not expressly included within the definition of "MCI-based ECN
transaction fees" above.
5.2 With respect to any C1 licenses entered into during the term of the
Agreement for which MCIS provides systems integration services (whether
such services are provided as a subcontractor to C1, directly to the
Customer by MCIS or by MCIS through a third party subcontractor) to the
Customer, C1 shall pay MCIS (i) 15% of all such license fees payable by
Customers or distributors to C1 for SAP-based accounts (i.e., accounts
where the Customer has implemented, contracted to implement, or has
otherwise identified that it intends to implement SAP America, Inc.'s
and/or its affiliate's proprietary enterprise resource planning software
solution), and (ii) 20% of all such license fees payable by Customers or
distributors to C1 for all accounts that are not SAP-based accounts as
defined above. For purposes of this Section 5.2, "license fees revenue"
shall mean license fees payable to C1 for C1 software. It is understood
and agreed that "license fees revenue" shall not include any amounts
received by C1 for transaction fees, maintenance and support fees,
professional service or consulting fees or any other amount not expressly
included within the definition of "license fees revenue" above.
5.3 With respect to any C1 licenses entered into during the term of the
Agreement which do not fall within the scope of Section 5.2 hereof, but
for which MCIS or it Affiliates provided real sales and marketing
support - such support including but not limited to participation in
Customer presentations, sales calls, direct Customer mailings, seminars,
trade shows or user group activities, - C1 shall pay MCIS (i) 5% of all
such license fees payable by Customers to C1 where C1 has a contractual
obligation to provide a sales agency fee or other comparable fee to
another Preferred Systems Integrator, or to Ernst & Young Technology,
Inc. or Cambridge Technology Partners, Inc. under either party's Sales
Agency Agreement in effect as of the Effective Date; and (ii) 10% of all
such license fees payable by Customers to C1 where C1 has no obligation
to provide a sales agency fee or other comparable fee to another
Preferred Systems Integrator or the entities identified under subsection
(i) above.
5.4 C1 shall provide quarterly reports of commissions due pursuant to
Sections 5.1, 5.2 and 5.3 hereof and shall pay MCIS any such commissions
within thirty (30) days of the close of a calendar quarter.
5.5 The rates set forth in Sections 5.1, 5.2 and 5.3 hereof are determined
based on C1's current business model for delivering its products and
services to the marketplace. In the event of any material change to the
C1 business model or pricing during the term of this Agreement, the
parties agree to equitably adjust such rates in such a manner as to yield
a comparable compensation to MCIS. Any such adjustment shall be
effective for all transactions impacted by such change in business model
or pricing.
5.6 In the event C1, pursuant to generally accepted accounting principles,
writes-off as a bad debt any license fees payable by a Customer for which
C1 paid a commission to MCIS pursuant to Section 5.2 or Section 5.3, then
MCIS shall refund to C1 within thirty (30)
8
<PAGE>
days of receipt of evidence of such bad debt write-off, a PRO RATA
portion of any commissions paid to MCIS pursuant to Section 5.2 or
Section 5.3, in either case, calculated based on the ratio of the
total license fees charged to the applicable Customer to the total
amount of license fees to be written-off.
6.0 DISPUTE RESOLUTION
6.1 The parties hereto agree to attempt to settle any dispute, controversy or
difference which may arise between or among them in connection with this
Agreement or any Schedule or Exhibit attached hereto (except as otherwise
expressly contemplated by this Agreement or any such Schedule or Exhibit)
by good faith discussions between or among representatives designated by
the parties to the dispute. During the course of the discussions between
or among such representatives, the parties will comply with all
reasonable requests for access to relevant information. The specific
format for such discussions will be left to the discretion of the
designated representatives but may include the preparation of agreed upon
statements of fact or written statements of position furnished to the
other party. If resolution cannot be achieved by such representatives
within five (5) Business Days of referral, the dispute will be referred
to the senior management of both parties. During the course of the
discussions between or among the senior management, the parties will
comply with all reasonable requests for access to relevant information.
The specific format for such discussions will be left to the discretion
of the senior management but may include the preparation of agreed upon
statements of fact or written statements of position furnished to the
other party.
6.2 If resolution cannot be achieved by senior management of both parties
within five (5) Business Days of referral, then arbitration may be
conducted upon written notice to the other party demanding arbitration in
accordance with Section 6.3 below.
6.3 Without prejudice to any party's right to seek equitable relief
(including, but not limited to, injunction) from a court of competent
jurisdiction, any dispute or disagreement arising between the parties in
connection with this Agreement, which is not settled to the mutual
satisfaction of the parties in accordance with the procedures identified
under Sections 6.1 and 6.2 hereof, shall be settled by arbitration, to be
conducted in San Francisco, California, in accordance with the
J.A.M.S./ENDISPUTE Arbitration Rules and Procedures, as amended by this
Agreement. The cost of the arbitration, including the fees and expenses
of the arbitrator(s), will be shared equally by the parties unless the
award otherwise provides. Each party shall bear the cost of preparing
and presenting its case. The parties agree that this provisions and the
arbitrator's authority to grant relief shall be subject to the United
States Arbitration Act, 9 U.S.C. 1-16 et seq. ("USAA"), the provisions of
this Agreement, and the ABA-AAA Code of Ethics for Arbitrators in
Commercial Disputes. The parties agree that the arbitrator(s)) shall
have no power or authority to make awards or issue orders of any kind
except as expressly permitted by this Agreement, and in no event shall
the arbitrator(s) have the authority to make any award that provides for
punitive or exemplary damages. The decision of the arbitrator(s) shall
follow the plain meaning of the relevant documents, and shall be final
and binding upon
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the parties. The award may be confirmed and enforced in any court of
competent jurisdiction. All post-award proceedings shall be governed
by the USAA. This Agreement and the rights and obligations of the
parties shall remain in full force and effect pending the award in any
arbitration proceeding hereunder. Except where clearly prevented by
the nature of the dispute, the parties shall continue performing their
respective duties, obligations and responsibilities under this
Agreement while the dispute is being resolved in accordance with this
Section, unless and until such obligations are lawfully terminated or
expire in accordance with the provisions hereof.
6.4 No action, claim or proceeding arising out of this Agreement, regardless
of the form thereof, may be brought by either party more than two (2)
years following the later of either the termination of this Agreement,
or the date upon which the cause of action became known to the party
initiating such action.
7.0 REPRESENTATIONS AND WARRANTIES
7.1 MCIS represents, warrants and covenants to C1 that:
(i) the entering into and performance of this Agreement is not
restricted or limited by, and will not result in a breach by MCIS
of, any other obligations, duties, agreement or covenant to any
Person;
(ii) MCIS has the authority, unencumbered right, and full corporate
power, to enter into and perform this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by
MCIS and constitutes a valid, binding and legally enforceable
agreement of MCIS; and
(iv) it shall discharge all of its obligations hereunder in a proper,
efficient and business-like manner using persons with skills and
experience appropriate to their function.
7.2 THE OBLIGATIONS OF MCIS EXPRESSLY STATED IN THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. WITHOUT
LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS EXCLUSION OF ALL
OTHER WARRANTIES AND CONDITIONS EXTENDS TO IMPLIED WARRANTIES OR
CONDITIONS OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABLE
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY
STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF
TRADE.
7.3 C1 represents, warrants and covenants to MCIS that:
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(i) the entering into and performance of this Agreement is not
restricted or limited by, and will not result in a breach by C1
of, any other obligations, duties, agreement or covenant to any
Person;
(ii) C1 has the authority, unencumbered right, and full corporate
power, to enter into and perform this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by
C1 and constitutes a valid, binding and legally enforceable
agreement of C1; and
(iv) it shall discharge all of its obligations hereunder in a proper,
efficient and business-like manner using persons with skills and
experience appropriate to their function.
7.4 THE OBLIGATIONS OF C1 EXPRESSLY STATED IN THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. WITHOUT
LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS EXCLUSION OF ALL
OTHER WARRANTIES AND CONDITIONS EXTENDS TO IMPLIED WARRANTIES OR
CONDITIONS OF NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABLE
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY
STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF
TRADE.
8.0 AUDITS AND REPORTS
8.1 Each party (for the purposes of this Section 8.0, the "auditing party")
shall have the right upon reasonable notice to audit the records of the
other party (for the purposes of this Section 8.0, the "audited party")
to ensure that the audited party is in compliance with this Agreement.
Any such audit shall be conducted during regular business hours at the
audited party's offices, in such a manner as not to interfere with the
audited party's normal business activities and only by a third party
independent auditor who is a nationally recognized certified public
accounting firm other than Pricewaterhouse Coopers LLP. Such independent
auditor shall hold all information obtained from the audited party in
confidence and shall report to the auditing party only on the compliance
of the audited party with the terms of the Agreement. In no event shall
audits be conducted more frequently than annually. If any such audit
reveals that any amount is owed to the auditing party, the audited party
shall promptly pay such amount together with any interest due. If the
amount is within ten percent (10%) of the amount previously reported by
the audited party, the auditing party shall pay for such audit and if the
number is greater than ten percent (10%), then the audited party shall
pay the reasonable costs of such audit.
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8.2 Each party shall maintain complete, true and accurate accounting and
business books and records regarding its activities under this Agreement
in accordance with U.S. generally accepted accounting principles and such
party's business practices. Each party shall retain such books and
records for not less than two (2) years following the date of final
payment hereunder.
9.0 INTELLECTUAL PROPERTY RIGHTS
9.1 BRANDING. MCIS agrees to display on a bundled C1
Software / MCIS Service offering, or in connection with its marketing,
promotion and sale of a bundled C1 Software / MCIS Service offering,
one or more brands or logos provided by C1 that indicate that such
offering contains technology and/or software provided by C1 (the
"C1 Logos"). The parties acknowledge and agree that, as between MCIS
and C1, C1 shall own all right, title and interest in and to the C1
Logos. The C1 Logos shall be used by MCIS in accordance with C1's
guidelines for use of the C1 Logos issued in writing from time to time.
C1 shall have the right to change the C1 Logos or the guidelines for use
of the C1 Logos upon reasonable notice to MCIS; however, MCIS shall be
entitled to phase out its previous use of the C1 Logos over a reasonable
period of time not to exceed six (6) months (or such earlier time as may
be requested by C1 at C1's expense). Upon C1's reasonable request,
samples of all materials that may be distributed by MCIS displaying the
C1 Logos shall be submitted to C1 to verify compliance with C1's
guidelines for use of the C1 Logos. Subject to the foregoing, MCIS
shall be permitted to brand a bundled C1 Software / MCIS Service offering
using its own trademarks, service marks, trade names, logos, trade dress
or other similar designations (collectively, the " MCIS Marks"). As
between MCIS and C1, MCIS shall own and retain any and all rights in
the MCIS Marks. C1 shall not have the right to use any MCIS Marks or
other intellectual property without MCIS' express prior written consent.
Except as expressly provided above with respect to the C1 Logos, MCIS
shall not have the right under this Agreement to use any other C1 owned
or controlled trademarks, service marks, trade names, logos, trade dress
or other similar designations without C1's prior written consent.
9.2 OWNERSHIP. Except as expressly provided herein (including in Schedule A
attached hereto), ownership of any Work Product or other intellectual
property developed or otherwise arising pursuant to this Agreement shall
be treated as prescribed by the License Agreement.
9.3 COMPETING PRODUCTS AND SERVICES. Subject to Schedule A "Co-Marketing
Obligations", this Agreement shall not preclude the parties from
developing materials or providing services which are competitive to the
Work Product irrespective of their similarity to computer programming
code, documentation or other materials or services which might be
delivered pursuant to this Agreement, except to the extent any of same
may infringe or misappropriate any of the other party's or its
subcontractor's or supplier's patent, copyright or other proprietary
rights or Confidential Information.
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10.0 PUBLICITY
10.1 Except as may be required by law or by the rules, regulations or by-laws
of any stock exchange or securities regulator, neither party will make
any news release, public announcement, advertisement, or publicity
concerning the existence or contents of this Agreement, a Proposal, any
resulting Contract, or any subcontract, without the prior written
approval of the other party and Customer as may be required. Any such
publicity shall give due credit to the contributions of each party.
10.2 Each party will:
(i) conduct business in a manner that reflects favorably at all times
on the good name, goodwill and reputation of the other party;
(ii) not engage or cooperate in deceptive, misleading or unethical
practices or representations that are or might be detrimental to
the other party or reflect adversely on the other party's products
or services;
(iii) not make any representations to anyone with respect to the
specifications, features or capabilities of the other party's
products or services that are inconsistent with the literature
distributed by the other party, including all disclaimers
contained in such literature, this Agreement or any Schedule or
Exhibit hereunder;
(iv) not make any warranty or representation in respect of the subject
matter of this Agreement to anyone that would give the recipient
any claim or right of action against the other party;
(v) not infringe any patent, copyright, trade secret, trade mark or
other proprietary right in connection with any published
advertising or promotional materials produced by such party and
provided to the other party pursuant to this Agreement; and
(vi) indemnify and hold the other party harmless from any cost,
liability and expense, including legal fees, arising out of any
breach by such party of the terms of this Section 10.0.
11.0 NON-SOLICITATION
11.1 During the term of this Agreement, and for a period of one year after the
termination hereof, each party agrees not to directly solicit any
employee of the other who has participated in the performance of this
Agreement without the prior written consent of such other party.
However, if an employee of either party in an unsolicited manner
approaches the other for potential employment, and such person was
subsequently hired by the other party, such actions shall not constitute
a breach.
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12.0 TERMINATION
12.1 This Agreement shall automatically expire and be deemed terminated
effective upon the date of the occurrence of any one of the following
events, whichever shall first occur:
(i) mutual agreement of the parties to terminate the Agreement;
(ii) any Act of Insolvency by or in respect of any party;
(iii) material breach of this Agreement by any party with such breach
remaining unremedied within thirty (30) days after written notice
to the breaching party specifying the nature of the breach; or
(iv) termination of the License Agreement pursuant to Section 4(c)
thereof.
12.2 In the event not even one business unit of MCIS's affiliate, MCI
Telecommunications Corp., or its successor, enters into a license
agreement for the license of the C1 Software and establishes a project
plan (including a target "go live" date) for the implementation of
such C1 Software as such business unit's electronic procurement
solution during the term of the Agreement, then C1 shall have the
option by giving one hundred and twenty (120) days prior written notice,
to terminate the Agreement at the end of the first contract year. Upon
election of this option, all joint marketing funds for the applicable
year (as provided in Schedule A) which are paid and which are not
expended, shall be returned to the parties. In the event C1 does not
elect such termination on or before the thirtieth day prior to the
close of the first contract year, then C1 shall be deemed to have
waived its termination option and the contract shall remain in effect
for the remainder of the term. In the event of early termination
under this Section 12.2, C1 shall pay any commissions payable pursuant
to Section 5.0 hereof for any license of the C1 Software or ECN
transaction fees falling within the scope Section 5.0; provided such
license is entered into or such ECN transaction fee is incurred within
one (1) year of the effective date of such early termination.
12.3 In the event of MCIS' divestiture from the MCI family of companies,
(including, upon successful completion of the pending merger, WorldCom),
and the failure or inability of the successor to perform the services
which are contemplated as part of this Agreement (whether directly or
through an alliance or subcontractor) at least in substantially the same
manner and with the same degree of competency as MCIS and its Affiliates
prior to such divestiture during the first six (6) months after such
divestiture, C1 shall have the option to terminate this Agreement;
provided C1 refund any and all marketing dollars paid by MCIS or its
successor for the year during which such termination takes place.
_______________________________
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12.4 The parties' rights and obligations under Section 1.0 "Interpretation",
Section 2.0 "Term", Section 3.0 "Relationship of the Parties", Section
6.0 "Dispute Resolution", Section 7.2, Section 7.4, Section 8.0 "Audits
and Reports", Section 9.0 "Intellectual Property Rights", Section 10.1,
Section 11.0 "Non-Solicitation", Section 12.0 "Termination", Section 13.0
"Liability", Section 14.0 "Indemnity" and Section 15.0 "General" and
those provisions of the Non-Disclosure Agreement, Schedule B, that
survive in accordance with the terms thereof, shall survive termination
or expiration of this Agreement for any reason.
13.0 LIABILITY
13.1 NEITHER PARTY NOR ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR ANY LOSS
OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT
LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN THIS SECTION
13.0 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS
AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14.0 INDEMNITY
14.1 C1 Indemnity.
14.1.1 GENERAL INDEMNITY. C1 at C1's own expense, shall defend, hold
harmless and indemnify MCIS, its Affiliates, and its and their
respective directors, officers, employees and agents, from and
against any and all claims, costs, liabilities, damages, losses or
expenses (including without limitation reasonable attorneys' fees)
arising from: (a) third party claims that the C1 Software or any
other Services performed or delivered by C1 to MCIS, its
Affiliates, or its Customers (i) infringes a copyright or other
intellectual property right or misappropriates a third party's
trade secret under the law of any country that is a member of the
Berne Convention or (ii) infringes any valid patent issued in any
country that is a party to the Paris Convention; (b) third party
claims of injury to or death of any person or loss of or damage to
any tangible property to the extent caused by the intentional or
negligent acts or omissions of C1, its Affiliates or their
respective personnel in the performance or delivery of any
Services hereunder; or (c) any C1 personnel being declared to have
"employee" status with respect to MCIS. MCIS
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or the applicable MCIS Affiliate shall: (x) promptly notify C1
in writing of the claim; (y) grant C1 sole control of the
defense and all related settlement negotiations; and (z)
provide C1 with the assistance, information and authority
necessary to perform C1's obligations under this Section 14.1.
C1 will reimburse MCIS' and its Affiliates' reasonable
out-of-pocket expenses incurred in providing such assistance.
To the extent any failure by MCIS or its Affiliate to perform
any of the foregoing directly has an adverse impact on C1's
liability to the applicable third party, C1 shall be entitled
to reduce the amount of its indemnification exposure hereunder
by the amount of such adverse impact. MCIS or its Affiliate
may, at its own expense, be represented in such defense.
14.1.2 EXCLUSIONS. C1 shall have no liability for any claim of
infringement or misappropriation to the extent based on (i) use of
other than the latest release of the C1 Software during the period
of time when the infringement would have been avoided by use of
the latest release; (ii) modification of the C1 Software by MCIS
if the infringement would have been avoided without such
modification; or (iii) the combination or use of the C1 Software
furnished hereunder with materials not furnished or specified by
C1 if such infringement would have been avoided by use of the C1
furnished or specified materials alone.
14.1.3 ALTERNATIVES. In the event the C1 Software is held to, or C1
believes is likely to be held to, infringe any intellectual
property right, C1 shall have the right at its sole option and
expense to (i) substitute or modify the C1 Software in a manner
that is functionally and operationally equivalent and
noninfringing; or (ii) obtain for MCIS a license to continue using
the C1 Software as provided in this Agreement; or (iii) if (i) and
(ii) are not reasonably practicable, terminate this Agreement.
14.1.4 EXCLUSIVE REMEDY. THE FOREGOING STATES THE SOLE AND EXCLUSIVE
REMEDY OF MCIS AND THE ENTIRE LIABILITY AND OBLIGATION OF C1 WITH
RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY ARISING HEREUNDER.
14.2 MCIS Indemnity.
14.2.1 MCIS at MCIS' own expense, shall defend, hold harmless and
indemnify C1, its Affiliates, and its and their respective
directors, officers, employees and agents, from and against any
and all claims, costs, liabilities, damages, losses or expenses
(including without limitation reasonable attorneys' fees) arising
from (a) third party claims that the Services performed or
delivered by MCIS to C1, its Affiliates, or its Customers (i)
infringes a copyright or other intellectual property right or
misappropriates a third party's trade secret under the law of any
country that is a member of the Berne Convention or (ii) infringes
any valid patent issued in any country that is a party to the
Paris Convention; or (b) third party claims of injury to or death
of any person or loss of or damage to any tangible property to
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the extent caused by the intentional or negligent acts or
omissions of MCIS, its Affiliates or their respective personnel
in the performance of any Services hereunder. C1 or the applicable
C1 Affiliate shall: (x) promptly notify MCIS in writing of the
claim; (y) grant MCIS sole control of the defense and all related
settlement negotiations; and (z) provide MCIS with the
assistance, information and authority necessary to perform MCIS'
obligations under this sub-Section 14.2. MCIS will reimburse C1's
and its Affiliates' reasonable out-of-pocket expenses incurred in
providing such assistance. To the extent any failure by C1 or its
Affiliate to perform any of the foregoing directly has an adverse
impact on MCIS' liability to the applicable third party, MCIS
shall be entitled to reduce the amount of its indemnification
exposure hereunder by the amount of such adverse impact. C1 or
its Affiliate may, at its own expense, be represented in such
defense.
14.2.2 EXCLUSIVE REMEDY. THE FOREGOING STATES THE SOLE AND EXCLUSIVE
REMEDY OF C1 AND THE ENTIRE LIABILITY AND OBLIGATION OF MCIS WITH
RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT ARISING HEREUNDER
15.0 GENERAL
15.1 NOTICES. All notices or reports permitted or required under this
Agreement shall be in writing and shall be by personal delivery,
telegram, telex, telecopier, facsimile transmission, or by certified or
registered mail, return receipt requested, and shall be deemed given upon
personal delivery, five (5) days after deposit in the mail, or upon
acknowledgment of receipt of electronic transmission. Notices shall be
sent to the addresses set forth below, or such other address as either
party may specify in writing.
For MCIS: Colin Dalzell
MCI Systemhouse Corp.
777 108th Ave., NE, Suite 550
Bellevue, Washington 98004
Fax #: ______________
For C1: Jeff Smith
Commerce One, Inc.
1600 Riviera Avenue
Walnut Creek, California 94596
Fax #: 510-941-6060
15.2 FORCE MAJEURE. Neither party shall be liable hereunder by reason of any
failure or delay in the performance of its obligations hereunder on
account of strikes, riots, insurrection, fires, flood, storm, explosions,
acts of God, war, governmental action, labor conditions,
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earthquakes, material shortages or any other cause which is beyond the
reasonable control of such party.
15.3 ASSIGNMENT. This Agreement shall not be assigned by C1 or MCIS in whole
or in part without the prior written approval of the other party,
provided either party shall have the right to assign this Agreement in
connection with the merger or acquisition of such party or the sale of
all or substantially all of its assets related to this Agreement without
such consent. Any assignment in violation of this sub-Section shall be
void and of no effect. Nothing in this Section 15.3 is intended to
prevent either party from subcontracting certain obligations under this
Agreement to third parties for purposes of delivering Services.
15.4 WAIVER. The failure of either party to require performance by the other
party of any provision hereof shall not affect the full right to require
such performance at any time thereafter; nor shall the waiver by either
party of a breach of any provision hereof be taken or held to be a waiver
of the provision itself. No failure on the part of any party hereto to
exercise and no delay in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or remedy by any party preclude any other or
further exercise thereof or the exercise of any other right, power or
remedy. No express waiver or consent by any party hereto to any breach
of or default in any term or condition of this Agreement shall constitute
a waiver or an assent to any succeeding breach of or default in the same
or any other term or condition hereof.
15.5 WARRANTY. Each party acknowledges that it has read this Agreement,
understands it and agrees to be bound by it.
15.6 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which will be considered an original, but all
of which together will constitute one and the same instrument.
15.7 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties and their respective successors and
permitted assigns.
15.8 FURTHER ASSURANCES. Each party agrees that upon the written
request of the other party, it shall do all such acts and execute all
such further documents, conveyances, deeds, assignments, transfers and
the like, and shall cause the doing of all such acts and shall cause the
execution of such further documents as are within its powers to cause the
doing and execution of, as the other Party hereto may from time to time
reasonably request be done and/or executed as may be reasonably necessary
to give effect to this Agreement.
15.9 COMPLIANCE WITH LAWS. Each party shall strictly comply with, and
abide by, all consents, licenses, and permits that may exist concerning
its activities and/or performance obligations under this Agreement, and
each party shall perform its obligations under this
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Agreement and otherwise conduct its affairs and business in any
connection with this Agreement in strict compliance with all laws,
by-laws, regulations, orders, judgments and governmental rulings and
decrees. Without limiting the foregoing, neither party shall attempt,
or otherwise undertake, to influence the award of a Contract through
any unethical, illegal, fraudulent, deceptive or misrepresentative
means whatsoever.
15.10 DUE DILIGENCE. Each party hereto acknowledges (i) the risks of its
undertakings hereunder; (ii) the uncertainty of the benefits and
obligations hereunder; and (iii) its assumption of such risks and
uncertainty. Each party has conducted its own due diligence and
requested and reviewed any contracts, business plans, financial
documents, and other written material as in such party's opinion shall be
the basis of the party's decision to enter into this Agreement.
15.11 NON-COMPETITION. The Parties agree and confirm that the
restrictions set out in this Agreement, including the preferred status
conferred herein: (i) are fair and reasonable in the commercial
circumstances of this Agreement; (ii) reasonably protect the
legitimate business interests of the parties and do not constitute any
undue restraint of trade; (iii) are fair and reasonably in the
interests of the parties because (a) the consideration provided to
each party under this Agreement adequately and fairly compensates such
party in connection with such restrictions, and (b) neither party
would have entered into this Agreement but for the other party's
agreement with such restrictions and that such restrictions have been
an inducement to enter into this Agreement.
15.12 NO MERGER. The parties agree and acknowledge that none of the
warranties, representations and covenants contained in this Agreement
shall merge upon either the execution and delivery of this Agreement by
both parties, or upon the full payment (or any partial payments) of any
monies that are due and payable hereunder and that all such warranties,
representations, and covenants shall continue in full force and effect
throughout the term.
_______________________________
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the
Effective Date.
MCI SYSTEMHOUSE CORP. COMMERCE ONE, INC.
By: ______________________________ By: ______________________________
Name: _________________________ Name: _________________________
Title: _________________________ Title: _________________________
Date: _________________________ Date: _________________________
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SCHEDULE "A"
CO-MARKETING OBLIGATIONS
1.0 BASIC UNDERSTANDING.
1.1 MCIS will be identified by C1 as a "Preferred Solution Provider" in all C1
originated Software license opportunities worldwide.
1.2 MCIS and its affiliates will be identified by C1 as its "Preferred
Commerce One Electronic Commerce Network ("ECN") Services Provider" in
all C1 originated Software license opportunities worldwide where an ECN
Services Provider has not already been identified for that specific
account. For purposes of this Agreement, "ECN Services Provider" shall
mean an entity that provides one or more of the following services:
circuit configuration determination, LAN assessments, REOS hosting,
circuit ordering, circuit implementation coordination/outsourcing,
coordination and organization of catalogue content. In situations where
a Customer directs C1 to utilize another ECN Services Provider, C1 will
be free to identify and contract with another ECN Services Provider for
that specific Customer; provided C1 does not disclose any confidential
information of MCIS and its affiliates to such other ECN Services
Provider.
1.3 During the term of the Agreement, C1 will designate only one other
systems integrator as a having a "preferred" relationship with C1 or any
other similar designation.
1.4 C1 shall not enter into any other alliance or similar agreements with a
systems integrator which agreement(s), when viewed as a combined set,
contain relevant, material terms or conditions that are superior to any
combined set of material terms or conditions provided to MCIS and that
put MCIS at a competitive disadvantage. In the event this provision is
breached, C1 shall agree to equitably adjust the combined set of MCIS
terms and conditions to eliminate such competitive disadvantage. By way
of example, and not of limitation, C1 shall not offer any pricing terms
to any other system integrator which could put MCIS at a competitive
disadvantage.
1.5 C1 shall not enter into any other arrangements with any third party that
prohibits MCIS from providing Services to C1 Customers in any markets.
1.6 C1 will be identified by MCIS as the "preferred product" in all electronic
procurement opportunities where a product solution has not already been
identified for that specific account. Both parties will promote the
relationship to the Customer.
1.7 The following principles govern the pursuit of Customer Opportunities and
the Services to be provided by the parties:
(a) The Customer has the sole and final right to approve or disapprove the
C1/MCIS relationship.
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(b) In situations where MCIS brings C1 into a Customer Opportunity both
parties will work together in completing the transaction, however if
MCIS is not willing or able to close the service integration portion
of the transaction, C1 is permitted to partner with another systems
integration partner; provided C1 does not disclose any Confidential
Information of MCIS and its affiliates to such other systems
integration partner.
(c) In situations where C1 brings MCIS into a Customer Opportunity both
parties will work together in completing the transaction, however if
C1 is not willing or able to close the product portion of the
transaction, MCIS is open to partner with another system product
company; provided MCIS does not disclose any Confidential Information
of C1 and its affiliates to such other system product partner.
(d) In situations where either another product company chooses to bring
MCIS into an account or where another system integrator chooses to
bring C1 into an account, each party has the ability to complete
that transaction with such other party.
(e) When C1 is working with another systems integration partner and
that systems integration partner or the applicable Customer or
prospective Customer identifies services that require additional
resources or resources with skill sets outside the capabilities of
such systems integration partner, C1 will recommend each Preferred
Provider (subject to the Customer's discretion) to be engaged to
perform such services.
(f) Within 30 days of executing the definitive agreement, MCIS and C1
agree to develop further detailed mutually agreed to sales "rules
of engagement".
2.0 JOINT RELATIONSHIP MANAGEMENT.
2.1 C1 will implement a Quarterly Product Advisory Committee meeting that will
allow for the inclusion of the MCIS Chief Technology Officer or his/her
designee (as may be reasonably acceptable to C1).
2.2 C1 and MCIS will each designate dedicated individuals responsible for
the joint relationship, sales pipeline management, and an executive
sponsor and such designated persons will have sufficient authority for
the role.
2.3 MCIS and C1 will each identify and provide advocates of the C1/MCIS
solution in the form of sales and marketing resources to industry
vertical and geographical markets as appropriate.
<PAGE>
2.4 Except in those circumstances where C1 has been jointly involved in a
sales and marketing opportunity with another systems integrator (to the
extent such involvement is not otherwise prohibited by, or in violation
of, this Agreement) or where another systems integrator has been
identified by the Customer, MCIS shall have the right to participate as
a preferred systems integrator in account-specific sales activities or
any subsequent or similar marketing or sales team initiatives or
approaches. Where MCIS, in its discretion and for any reason, notifies
C1 on a case-by-case basis that shall not participate in any such team
or activity, C1 has no further obligation to recommend MCIS for that
opportunity.
2.5 Each party agrees to share with each other their respective "lead" and
prospect lists related to electronic procurement, solely for the purpose
of conducting joint sales and marketing in accordance with this
Agreement. The obligation to provide such leads shall not apply, in
each party's case, to those circumstances where one party is working
with a different systems integrator or solution provider (as the case
may be) to the extent not prohibited by, or otherwise in violation of
this Agreement.
2.6 Upon C1's request from time to time, MCIS shall use reasonable
commercial efforts to identify those MCIS Affiliates who are engaging in
sales and marketing efforts with respect to the C1 Software.
2.7 During calendar year 1998, MCIS shall commit to train a minimum of 75
MCIS personnel to perform MCIS' obligations hereunder (including both
sales-related, and Services-related obligations). Such training shall
be provided by C1 as part of the complementary training provided in
accordance with Section 2.8 of this Schedule A.
2.8 On a schedule reasonably acceptable to both parties, C1 will provide up
to 200 training days per calendar year during each year of the term of
the Agreement for training MCIS internal staff in the marketing, sale,
support, use, implementation and operation of the C1 Software. For
purposes of this calculation, a "training day" shall refer to one
calendar day of instruction provided by a C1 instructor for one MCIS
trainee. Furthermore, a training day could take place as either
structured classroom training or on-site at a Customer location. It is
also the intent of both parties to execute a training strategy whereby
C1 is "training the trainers" at MCIS. At MCIS' option, MCIS can
purchase additional training days from C1, in advance, for a reduced fee
as follows: (i) for purchases of 1-299 training days a discount of 33%
off of the then current list price will apply, and (ii) for purchases of
greater the 300 training days, a discount of 40% off of the then current
list price will apply. Training priced under this discount must be
purchased at least thirty (30) days in advance. Any training credits
(e.g.., the 200 days provided at no charge to MCIS or any days purchased
in advance) remaining unused at the end of the each year will expire. C1
will send to MCIS a quarterly report on the status/balance of such
unused training credits. MCIS when ordering training to be applied
against the purchased training credit amount should quote a reference
purchase order number to ensure credit against the prepaid training
credit balance. The Agreement will include a mutually acceptable
cancellation policy for scheduled training classes. It is understood
<PAGE>
that all C1 technical training shall be provided at C1's Walnut Creek,
California facilities, and sales training will be provided at MCIS
regional offices or other similar facilities which will be made
available and paid for by MCIS and MCIS shall pay all costs and expenses
of C1 including C1 travel and living expenses in accordance with MCIS's
travel policy which is attached to the Software License Agreement.
2.9 C1 and MCIS shall jointly prepare a Project Progress Report, in an
agreed format and on an agreed frequency (initially monthly), that
summarizes activities in all joint functional execution areas.
3.0 MARKETING AND SALES PROGRAMS.
MCIS and C1 will each contribute at least $150,000 towards the development
and execution of joint marketing and sales programs for calendar year 1998.
MCIS and C1 will consider making similar contributions, and increasing such
contribution up to an additional $350,000 each for calendar years 1999, 2000
and 2001 based on the performance of the overall program; provided that in
the event either party elects not to contribute at least $150,000 for each
calendar year, then the other party shall have the option of terminating this
Agreement without penalty upon thirty (30 days prior written notice.
Expenditure of the combined marketing and sales program funds shall be only
as mutually agreed upon. Any funds not expended for a particular year shall,
on agreement of the parties, be refunded to the parties, PRO RATA, or shall
be applied toward the fund commitment for the following year. The programs
supported by this fund may include, among other things, the following:
3.1 BASE MARKETING MATERIALS
(a) Branding - to support combined MCIS/C1 product and service
offering. As set forth in Section 9.1 of the Agreement, MCIS is
entitled to separately brand its bundled C1/MCIS business solution
with all related intellectual property rights in the applicable
brand owned by MCIS (or its affiliate). The fund shall be used to
support both the C1 Logos together with the MCI bundled brand (if
any).
(b) Selling Tools/Collateral Materials - to include such materials as
the parties may mutually agree, with intellectual property to be
created and/or provided by each party, and with ownership of such
intellectual property, in each case, remaining with the provider
and/or creator thereof in accordance with Section 6(d) of the
License Agreement.
(c) Web Site(s) updates to support joint product, service and branded
offerings with intellectual property rights related to such web
site(s) to be determined in accordance with Section 6(d) of the
License Agreement.
(d) Press/Analyst Introduction Events.
<PAGE>
(e) Internal MCI/C1 Quarterly Communications to all sales and service
personnel.
3.2 MARKETING PROGRAM DELIVERABLES
PUBLIC RELATIONS AND PARTNER AWARENESS
(a) Define MCI/C1 Solution Offerings (Applications, Services,
Consulting and third-party products).
(b) Define markets - targets, position, message and business drivers
(basis for campaign messages and positioning).
(c) Define Introduction and Communications Program.
(d) Execute beginning with U.S. and Europe Q3/98.
(e) Target list of Industry Influencers (press and analysts) for MCI/C1
Solution Offerings to be developed in Q3/98.
(f) Target Executives within the MCI corporate accounts and target
industries for the MCI/C1 Solution Offerings with a focused
seminar/breakfast series starting in Q3 and minimally one event per
quarter.
INDUSTRY MARKETING INITIATIVES
(g) Coalition Selling between MCIS and C1 defined in Q3/98 for
industry-focused and organized to produce key industry accounts in
target industries for 1998.
(h) Target industries for consideration; Fortune 200
(i) Minimally, one quarterly End User, MCIS and C1 Marketing Program
and Campaign to drive industry specific demand generation and leads.
3.3 NATIONAL ADVERTISING CAMPAIGN
(a) Implement a 1998 advertising placement schedule to communicate the
overall solution and market position in E-Commerce/Electronic
Procurement and IT/Web industry publications.
(b) Target - CIO and EVP audiences across industries through advertising
messages.
(c) Incorporate MCIS/C1 solution offering into MCIS existing 1998
business-to-business campaigns targeting the Fortune 1000 campaigns
as an extension of MCIS services.
<PAGE>
(d) Define industry specific market messages and campaigns - targets,
position, message and business drivers (basis for campaign messages
and positioning).
4.0 VERTICAL AND HORIZONTAL TEMPLATE SOLUTIONS AND INTELLECTUAL PROPERTY.
4.1 During the term of the Agreement, MCIS may, in its discretion, develop
vertical and horizontal template solutions to support its systems
integration efforts under the Agreement. C1 authorizes MCIS to create
such templates and will provide up to 100 hours per calendar year of
support and assistance to MCIS in such development at no charge to MCIS.
All support provided at no charge shall be subject to the reasonable
availability of C1 personnel. Upon mutual agreement, MCIS may engage C1
to provide additional support at the following rates: (i) for the first
1-300 hours in a particular year, a discount of 33% off C1's then
current standard consulting rate, and (ii) for any support services in
excess of 300 hours for a particular year, a discount of 40% off C1's
then current standard consulting rate. MCIS shall own any and all
newly-created intellectual property resulting from such vertical and
horizontal template solutions subject at all times to C1's rights in the
underlying C1 Software. MCIS and C1 may, from time to time, agree on
reasonable commercial terms and conditions whereby C1 would be permitted
to license such templates to end-users and/or systems integrators other
than MCI for use with Software. Nothing herein is intended to give MCIS
or its Affiliates any title to C1 pre-existing intellectual property
rights.
4.2 For purposes of Section 4.1, "vertical and horizontal template
solutions" include new business/functional process frameworks, process
training aids, technology architectural frameworks, data and process
conversion aids, software tools, gateway and translation software,
pre-configured hardware, commercial-of-the-shelf software platforms,
application integration mechanisms and software tools including
extensions which are designed for use with a particular industry segment
(i.e., vertical) or are designed for use across multiple industry
segments (i.e., horizontal), provided that such items are developed in
such a manner as to not require a change to the underlying C1 Software
source code (e.g., using an application programming interface).
<PAGE>
SCHEDULE "B"
NON-DISCLOSURE AGREEMENT
ATTACHED HERETO IS THE NON-DISCLOSURE AGREEMENT EXECUTED BY THE PARTIES
EFFECTIVE AS OF _________________. "CONFIDENTIAL INFORMATION" DISCLOSED PURSUANT
TO THIS AGREEMENT SHALL BE AS DEFINED IN SUCH NON-DISCLOSURE AGREEMENT AND SHALL
BE GOVERNED THEREBY.
[Not Attached]
<PAGE>
EXHIBIT "1"
C1 STANDARD CANCELLATION POLICY - TRAINING
The following is C1's standard cancellation policy. Cancellation charges
described below are subject to the discounts set out in section 2.8 of Schedule
"A":
Class cancellations
If you are unable to attend the training class in which you are enrolled, please
call us at (650) 493 2506. We will give you a complete refund if you cancel at
least seven days before the class begins. Please note, however, that we will
charge 50% of the course's full retail cost for cancellations received less than
seven days prior to the class start date. C1 reserves the right to cancel any
regularly scheduled class. If we do cancel a class, all students will be
notified at least seven days prior to the planned start date, and the full
tuition will be refunded.
<PAGE>
Exhibit 10.13
AGREEMENT
This Agreement (the "Agreement") is entered as of the _____ day of
September, 1998, by and between Commerce One, Inc. ("C1"), a California
corporation with a principal place of business at 1600 Riviera Avenue, Walnut
Creek, California 94596 and PricewaterhouseCoopers LLP ("PwC"), a registered
Delaware limited liability partnership with offices located at 1177 Avenue of
the Americas, New York, NY 10036 (each, a "Party" and together the "Parties").
C1, among other things, develops, markets, sells and supports
enterprise-level software applications and services that enable businesses and
their suppliers to engage in electronic procurement and supplier management over
the Internet and other communications media (the "C1 Software").
PwC, among other things, assists companies like C1 in the development,
marketing, and sale of such software systems and services and implements and
supports these systems for customers who have purchased them.
Because of the complementary knowledge and expertise of the Parties,
the Parties desire to enter into an alliance under which they will work together
to develop, market, sell, implement and support the C1 Software.
Now, therefore, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the Parties agree as
follows:
1. DEFINITIONS
As used herein, the following terms shall have the following meanings:
(a) "Agreement" shall mean this Agreement by and among
the Parties.
(b) "C1 Software" shall mean all software products of
C1, including without limitation, those relating to
electronic procurement and supplier management,
(including their constituent elements and code in
whatever form, whether proprietary to C1 or others) as
they now exist or as they are further developed and
shall include all software, related databases, design
elements, custom applications, preexisting code or
applications, code frameworks, methods and standards,
including without limitation, all documentation (in
whatever form or medium), end user manuals, user's
guides and technical manuals proprietary to C1.
(c) "Confidential Information" means any information
in whatever form, and however delivered or
communicated, including, without limitation, all code,
documentation,
<PAGE>
product plans, Trade Secrets, business plans, customer
lists, know-how, and all other information of whatever
nature related to or incorporated into C1 Software or
the business of C1 or PwC or any subsidiary or other
business entity which is an affiliate of C1 or PwC
(such subsidiary or business entity referred to
collectively as "C1" or "PwC", as the case may be) and
which is reasonably understood to be of a confidential
nature. Confidential Information includes information
of others that C1 or PwC has agreed to keep
confidential. Confidential Information of PwC
specifically includes information relating to any bids
or proposals made by PwC in relation to the
implementation of or the provision of consulting
services relating to the C1 Software. Confidential
Information of a Party shall not include information
or materials that is disclosed to the other party (the
"Receiving Party") that is:
(i) otherwise rightfully known to the Receiving
Party;
(ii) in the public domain through no fault of the
Receiving Party;
(iii) lawfully obtained by the Receiving Party
from a third party without breach of such third
party's obligations of confidentiality; or
(iv) that a Receiving Party is required to disclose by
legal process; provided, however, that voluntary
disclosure beyond that which is required by law
shall constitute a violation of this Agreement.
(e) "Trade Secrets" shall mean technical or other
information, designs, processes, procedures,
algorithms, formulas, improvements, or modifications
disclosed to PwC by C1 or to C1 by PwC, that are
commercially valuable and secret. Trade Secrets are
unique assets of C1 or PwC that give C1 or PwC a
competitive advantage over competitors that do not
possess such information. Trade Secrets include, but
are not limited to, system designs and specifications,
programming sequences, algorithms, flow charts, and
formulas, developed in whole or in part by C1 or PwC.
(f) "Upgrades" shall mean a new version of a proprietary
product to which additional or incremental
functionality has been added.
2. COOPERATION IN C1 SOFTWARE DEVELOPMENT AND IMPLEMENTATION
2.1 ESTABLISHMENT OF THE TRC. To enhance the performance,
development and implementation of C1 Software, the Parties will
establish a Technical Review Committee ("TRC"). The intended
objective of the TRC is to provide advice to C1 regarding
functionality, priorities, release schedules, and use of
development resources.
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2.2 SCOPE OF THE TRC'S REVIEW. The TRC shall be charged with
reviewing the performance of the C1 Software, all developments
or potential developments to the C1 Software and the
implementation of the C1 Software.
2.3 MEMBERSHIP OF THE TRC. The TRC shall be composed of three C1
employees selected by C1 who are involved in and knowledgeable
about the performance and development of C1 Software and three
PwC employees selected by PwC who are involved in and
knowledgeable about the implementation of C1 Software. C1 and
PwC may at any time with notice to the other Party change their
employees designated to serve as members of the TRC. Each Party
represents that its designated members of the TRC are
authorized to act on that Party's behalf on all matters that
come before the TRC.
2.4 MEETINGS AND REPORTS. The TRC shall meet at least quarterly to
review and assess the performance of the C1 Software, all
developments or potential developments to that software and the
implementation of that software. At least once every six
months, the TRC shall issue a report to C1 and PwC reviewing
and assessing in detail the above. In the event that the
members of the TRC do not concur in their review and
assessment, the report shall so state and shall set forth
separately the review and assessment of all members.
2.5 OBLIGATION TO PROVIDE INFORMATION TO THE TRC. C1 and PwC shall
each promptly provide to the TRC all material information known
or available to each of them relating to the performance of the
C1 Software, all material developments or potential
developments to the C1 Software, and the implementation of the
C1 Software. This obligation includes but is not limited to
providing the TRC with all Beta releases, with all information
relating to C1 Software Upgrades, and with all information
relating to problems with C1 Software performance or
implementation.
3. OPERATION IN C1 SOFTWARE MARKETING
3.1 ESTABLISHMENT OF MDC. To enhance the marketing of C1 Software,
the Parties will establish a Marketing Development Committee
("MDC").
3.2 SCOPE OF THE MDC'S REVIEW. The MDC shall be charged with
developing and overseeing the joint marketing of C1 Software
based upon the initial marketing plan and budget to be agreed
upon and entered into by the Parties within 30 days of the date
hereof (the "Marketing Plan"). The MDC shall agree upon not
less than five customers to serve as beta integration sites
with respect to the C1 Software. The MDC shall also identify
each party's commitments and obligations, including joint
activities. The MDC shall consider using marketing tools such
as, among other things, magazine inserts in publications such
as Forbes, methodology books (for pre-sale), PwC sponsored
conferences, and training forums.
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3.3 COMMITMENT OF THE PARTIES. The specific monetary and in-kind
commitments of the Parties shall be determined by the MDC in
accordance with the Marketing Plan; provided, however, PwC
agrees that it shall spend a minimum of $250,000 the first year
this Agreement is in effect pursuant to jointly approved plans
for the marketing of the C1 Software. Thereafter, the Parties
shall determine in good faith the amount per year that each
Party shall commit to the marketing of the C1 Software;
provided that in the event that the parties are unable to agree
upon the minimum amount to be spent by PwC for marketing in any
subsequent year, the minimum amount shall be $250,000.
3.4 MEMBERSHIP OF THE MDC. The MDC shall be composed of two C1
employees selected by C1 and two PwC employees selected by PwC,
all of whom are involved in the marketing of C1 Software. C1
and PwC may at any time with notice to the other Party change
their employees designated to serve as members of the MDC. Each
Party represents that its designated members of the MDC are
authorized to act on that Party's behalf on all matters that
come before the MDC; provided that in no event shall the MDC
have the authority to modify the terms of this Agreement
3.5 MEETINGS. The MDC shall meet at least quarterly to develop and
oversee C1 Software marketing.
3.6 PUBLICITY. The MDC shall establish guidelines governing all
news releases, public announcements, or any other mass
publicity, including without limitation, mass-produced
marketing materials, which makes reference to PwC or includes a
Mark (as defined below) of PwC or New Mark (as defined below)
(collectively, "Publicity") to be released by either Party
relating to C1 Software. Notwithstanding the foregoing, C1
shall not release any Publicity relating to PwC unless such
Publicity is approved by PwC. The MDC shall establish
guidelines governing all news releases, public announcements,
or any other publicity which makes reference to C1 or includes
a Mark (as defined below) of C1 (collectively, "C1 Publicity")
to be released by either Party relating to C1 Software.
Notwithstanding the foregoing, PwC shall not release any C1
Publicity relating to C1 unless such C1 Publicity is approved
by C1.
3.7 TRADEMARKS, LOGOS, TRADE NAMES AND SERVICE MARKS. The MDC shall
establish written guidelines governing the use by a Party of
trademarks, logos, trade names and service marks (together
"Marks") of the other Party or any successor entity to either
of the Parties; provided, however, C1 shall not use PwC's Marks
unless the use is approved by PwC and PwC shall not use C1's
Marks unless the use is approved by C1. Notwithstanding any
other provision contained herein or in any guidelines
established by MDC, in the event that PwC gives C1 notice that
it is terminating this Agreement pursuant to Section 11.3.2, C1
shall immediately cease, and in the event the Agreement is
terminated for any other reason, upon termination C1 shall
cease, the use of the names "Price Waterhouse,"
"PricewaterhouseCoopers", the mark "PW," "PwC," any derivations
thereof or any other mark proprietary to PwC, including without
limitation any other new or successor trade
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<PAGE>
name, logo, trademark or service mark which evolves as a result
of the recent merger between Price Waterhouse LLP and Coopers &
Lybrand LLP (together, the "New Marks"), in connection with the
marketing, promotion, Publicity and sale of the C1 Software.
Notwithstanding any other provision contained herein or in any
guidelines established by MDC, in the event that C1 gives PwC
notice that it is terminating this Agreement pursuant to
Section 11.3.2, PwC shall immediately cease, and in the event
the Agreement is terminated for any other reason, upon
termination PwC shall cease, the use of the name "Commerce
One," the mark "C1", any derivations thereof or any other mark
proprietary to C1.
3.8 MARKETING MATERIALS. In addition to any other guidelines set
forth by the MDC, (i) all C1 created brochures and marketing
materials relating to the C1 Software shall contain a statement
that C1 and PwC are strategically aligned and that PwC is a
preferred systems integration and consulting partner, and (ii)
all references to third party integration and consulting
partners shall be made in such a manner as to preserve the
preferred implementor status of PwC. MCI Systemshouse shall be
the only other entity designated or allowed to hold itself out
as a preferred systems integrator and consulting partner of C1.
4. BETA PRODUCTS; BETA INTEGRATION SITES
4.1 BETA PRODUCTS. C1 shall provide to PwC advance copies and beta
releases of all C1 Software as soon as reasonably possible.
4.2 BETA INTEGRATION SITES. The MDC will agree upon not less than
five customers to serve as beta integration sites with respect
to the C1 Software. PwC shall perform the implementation
functions relative to such C1 Software at such beta integration
sites. PwC shall perform such implementation services at a
price necessary to attract the agreed upon customers to
participate in such testing while attempting to minimize the
extent to which billing rates are discounted; however, for the
first three customers, PwC shall use reasonable commercial
efforts to perform such services at discounted rates but shall
not be required to discount such rates below forty five percent
(45%) of PwC's stated rates for such services for the first
three customers, or below fifty-five percent (55%) of PwC's
stated rates for such services for the fourth and fifth
customers. C1 will use reasonable commercial efforts to license
the C1 Software at a price necessary to attract the agreed upon
customers to participate in such integration and will supply
necessary technical expertise and support with respect to the
beta integration site implementations under a mutually agreed
upon timetable.
5. C1 SOFTWARE SALES
5.1 C1 SOFTWARE SALES. C1 may, at its option, sell C1 Software
either directly to clients or sell it to PwC who will resell it
to clients; provided that, direct sales to clients will comply
with the provisions set forth in Section 5.1.1 below and sales
to PwC for resale will comply with the provisions set forth in
Section 5.1.2 below.
5.1.1 DIRECT SALES TO CLIENTS. When C1 sells C1 Software directly to
a client and PwC is to be the implementor of the C1 Software,
the client, C1 and PwC will enter into a client contract. The
client contract will provide that:
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<PAGE>
(a) C1 will provide to the client the C1 Software and
related license.
(b) PwC will provide to the client:
(i) assistance and/or management in the
installation, implementation and operation of
C1 Software, including without limitation,
requirements definition, change integration,
process analysis and design;
(ii) assistance in integrating C1 Software into
the client's existing systems; and
(iii) training for client personnel in the use or
maintenance of C1 Software ((i), (ii) and
(iii) together are "C1 Installation and
Related Services").
(c) In exchange for the consideration set forth in
sections (a) and (b) above, the client will pay C1 and
PwC such fees as may be agreed upon from time to time.
(d) C1 will supply to the client any Upgrades to C1
Software under C1's standard maintenance and support
terms.
5.1.2 SALES TO PwC FOR RESALE TO CLIENT. The sale of C1 Software to
PwC and PwC's resale of C1 Software shall occur as follows:
(a) C1 will provide to PwC the C1 Software and related
license. PwC will provide said software and related
license to the client.
(b) PwC will provide to the client C1 Software
Installation and Related Services.
(c) In exchange for the C1 Software and related license,
PwC will pay to C1 an amount equal to C1's standard
list price for such C1 Software, less an agreed upon
discount which shall not be less than any other
reseller's discount, except for SAP; provided,
however, PwC shall be entitled to the same discount
offered to SAP in situations where PwC is in direct
competition with SAP, and provided, further, in no
event shall such discount be less than 30%. PwC may
charge the client such amounts as PwC may determine in
its sole discretion in exchange for the C1 Software
and related license and the C1 Software Installation
and Related Services.
(d) C1 will supply to PwC any Upgrades to C1 Software
under the terms and conditions for its so doing set
forth in the definitive reseller agreement described
in section (e) below. PwC will supply these Upgrades
to the client under the terms and conditions for its
so doing set forth in the PwC's agreement with its
customer.
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(e) Within a reasonable time following the conclusion of
the beta integration projects, PwC and C1 shall enter
into a more detailed Value Added Reseller Agreement
consistent with the terms hereof and containing other
mutually acceptable terms customary for the software
industry. Such agreement shall not diminish C1's
ability to communicate with and survey the licensees
of the C1 Software. Such agreement will also provide
that C1 will always execute a license agreement with
the end-user for C1 Software.
6. PREFERRED IMPLEMENTOR STATUS
6.1 PwC AND MCI SYSTEMSHOUSE. PwC shall be designated as a
preferred implementor or preferred systems integration and
consulting affiliate with respect to the C1 Software. C1 shall
neither name nor allow any other entity to promote itself as a
preferred implementor or preferred systems integration and
consulting partner of C1, except for MCI Systemshouse;
provided, however, in the event that MCI Systemshouse
terminates its status as a preferred implementor or preferred
systems integration and consulting partner of C1, C1 shall have
the right to designate another entity to replace MCI
Systemshouse as a preferred implementor or preferred systems
integration and consulting partner provided, further, however,
the Parties agree that any such replacement entity shall not be
a "Big Five" accounting firm or Andersen Consulting and any
such replacement entity shall be required to make an investment
in C1 equal to or greater than the cumulative total investment
in C1 made by PwC up to such time pursuant to this Agreement.
In the event C1 designates such a replacement entity as
provided in this Section 6.1 any provisions herein which
specifically reference MCI Systemshouse shall apply to such
replacement entity.
6.2 PROMOTION OF PARTIES. In furtherance of the Parties' joint
efforts with respect to the C1 Software:
(a) C1 shall publicly designate PwC as a C1 preferred
systems integration and consulting affiliate;
(b) C1 shall notify PwC of all potential implementation
opportunities with respect to the C1 Software of which
C1 becomes aware, except for those opportunities which
are brought to the attention of C1 by another systems
implementor;
(c) C1 shall provide to PwC, on a timely, periodic and
confidential basis, advance information collected by
C1 regarding potential customer prospects with respect
to the C1 Software;
(d) C1 shall not engage in any active pattern of promotion
with respect to any third party, other than MCI
Systemshouse, as an implementor of the C1 Software;
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(e) For one year following the execution of this
Agreement, C1 shall not enter into any joint
development agreement or any similar business
arrangement related to the development of the C1
Software with any other systems implementor other than
MCI Systemshouse with respect to MarketSite,
Electronic Commerce Network, the Commerce One extranet
application that provides the interoperability,
functionality and transactive content that enables an
on-line trading community;
(f) PwC shall publicly designate C1 as its preferred
solution provider for MRO (indirect) Electronic
Procurement Solutions and PwC shall announce C1 as its
preferred solution provider for MRO (indirect)
Electronic Procurement Solutions to PwC's internal
staff directly involved in MRO (indirect) electronic
procurement solutions consulting using its Lotus Notes
communications system or any other system as
determined by PwC in its sole discretion;
(g) No employees, partners or consultants of PwC who
are members ("EPS Members") of PwC's US MRO (indirect)
Electronic Procurement Solutions practice or any
successor practice thereto ("EPS Practice") shall
enter into any agreements or arrangements pursuant to
which such EPS Members will co-develop or co-market a
product which directly competes with C1 in the MRO
(indirect) electronic procurement solutions market;
(h) PwC shall notify C1 of all MRO (indirect)
electronic procurement solution opportunities of which
PwC's EPS Practice becomes aware, except for those
opportunities which are brought to the attention of
PwC by another MRO (indirect) electronic procurement
solutions provider;
(i) PwC shall provide to C1, on a timely, periodic and
confidential basis, advance information collected by
PwC's EPS Practice regarding potential customer
prospects with respect to an MRO (indirect) electronic
procurement solution;
(j) PwC's EPS Practice shall not engage in any active
pattern of promotion with respect to any third party
as an MRO (indirect) electronic procurement solution
provider; and
(k) Within 120 days following the execution of this
Agreement, C1 shall be included in PwC's solution
center network.
6.3 RIGHT OF FIRST REFUSAL. PwC shall have a right of first refusal
with respect to other consulting and systems implementation
firms with respect to any consulting project of total value
greater than $500,000 (i.e. the total billable work for such
project exceeds $500,000) performed for C1 in relation to the
C1 Software; provided that this section 6.3 shall not apply to
any joint development agreement entered into by C1 that
otherwise complies with the terms of this Agreement. This right
of first refusal is not intended to apply to consulting work to
be performed for clients of C1. Within 20 days following a
determination by C1 that C1 requires consulting services, C1
shall notify PwC of such determination and C1 and PwC shall
negotiate in good faith regarding the terms of PwC's
involvement in the consulting project (the "Project"). If C1
and PwC cannot agree upon the terms of PwC's involvement within
30 days of PwC's receipt of such notice, C1 shall be entitled
to enter into an agreement with a third party to perform the
Project on terms and conditions not less favorable to C1 than
those last offered by PwC with respect thereto.
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6.4 ATTENDANCE AT BOARD MEETINGS. Throughout the term of this
Agreement, PwC shall be entitled to observe meetings called or
held by the Board of Directors of C1 and to receive materials
provided or distributed to the Board of Directors of C1 as
provided in the Observers Rights Agreement attached hereto as
Exhibit B.
6.5 Requirements FOR OTHER SYSTEMS IMPLEMENTORS. C1 shall require
each third party systems implementor, other than MCI
Systemshouse, to pass a certification qualification test within
six (6) months of beginning implementation of C1 Software
products. The requirements of such certification tests shall be
jointly agreed upon by C1 and PwC and shall be administered by
C1; provided that in the event the Parties are unable to agree
on such requirements after a period of twenty (20) days, C1
shall develop commercially reasonable requirements.
6.6 MOST FAVORED IMPLEMENTOR STATUS. Except for SAP but subject to
Section 5.1.2(c), the price of the C1 Software sold by C1 to
PwC for resale or for use by PwC shall be equal to or lower
than the lowest price charged by C1 to any other systems
implementor reseller, including MCI Systemshouse with regard to
the prices and other material terms and conditions provided to
such other implementor, when considered collectively.
6.7 OPTIONAL EQUITY INVESTMENT. For 120 days following the
execution of this Agreement, PwC shall have the option, but not
the obligation, to purchase shares of Series D Preferred Stock
at a price equal to 125% of the lowest price paid by the Series
D Preferred Stock investors in the Series D Preferred Stock
financing. Such purchase shall be on the terms and conditions
as set forth in the Series D Preferred Stock financing
agreements. Notwithstanding the foregoing, in no event shall
PwC's investment be less than $2,500,000 or more than
$5,000,000 upon exercise of the rights granted in this Section.
7. PERSONNEL AND TRAINING
7.1 PwC PERSONNEL. For the first year after the Effective Date of
this Agreement and pursuant to and subject to the terms and
conditions set forth in the Human Resources Agreement to be
agreed upon and entered into by the Parties within 30 days of
the date hereof (the "Human Resources Agreement"), PwC shall
provide C1 with a total of 18,000 man-hours to be performed by
various PwC personnel and/or consultants of PwC (the "PwC
Staff") and one partially dedicated PwC partner (the "PwC
Partner") plus certain ancillary support associated with the
employment of these people, including, without limitation,
items such as payment of salaries (including without
limitation, employee benefits and applicable withholding taxes,
such as FICA, worker's compensation, unemployment and other
like items) and provision of laptop computers and computer
software (the "Support"). In the event that C1 does not utilize
all 18,000 hours during such year and this Agreement is still in
effect, C1 shall be entitled to carry over up to 2,700 unused
hours to the next year
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for no additional cost. PwC and C1 shall determine in good faith the amount
of resources required from time to time based upon the needs of C1 and the
availability of the PwC Staff; provided, however, no PwC Human Resources (as
defined below) shall be provided to C1 until such time as the Human Resources
Agreement has been executed by the Parties. The PwC Partner shall devote a
sufficient amount of his/her professional time in order for him/her to carry
out his/her responsibilities under this Agreement. The PwC Staff and the PwC
Partner shall be responsible for assisting C1 with product enhancement,
quality assurance, testing procurement consulting and sales support and
implementation activities. Subject to the terms of the Human Resources
Agreement, PwC shall have the right to rotate various people between the C1
headquarters in Walnut Creek, California (the "C1 Headquarters") and various
client sites. Notwithstanding the foregoing, PwC's obligation to provide the
18,000 hours, the PwC Partner and the Support (collectively, the "PwC Human
Resources") shall cease (i) immediately in the event (a) C1 is dissolved or
liquidated, (b) PwC gives C1 notice of its intention to terminate the
Agreement pursuant to Section 11.3.2, or (c)the Human Resources Agreement is
terminated, or (ii) upon termination, in the event PwC gives C1 75 days'
written notice (the "Termination Notice") of PwC's decision to terminate this
Agreement pursuant to Section 11.3.1; provided, however, in the event that
PwC gives C1 the Termination Notice, PwC shall continue to provide the PwC
Human Resources during the 75 day notice period as is necessary in order to
complete, to the extent possible, any current projects on which the PwC Staff
and/or the PwC Partner are working.
7.2 TRAINING. During the first 12 months of the Agreement, PwC
shall commit to train a minimum of 25 PwC personnel to perform
PwC's obligations hereunder (including both sales-related, and
Services-related obligations). Such training shall be provided
by C1 as part of the complimentary training provided in
accordance with details below, or at PwC's discretion, by a PwC
trainer.
On a schedule reasonably acceptable to both parties, C1 will provide up
to three training days per trainee per calendar year during each year of the
term of the Agreement for no more than 100 trainees in the marketing, sale,
support, use, implementation and operation of the C1 Software. For purposes of
this calculation, a "training day" shall refer to one calendar day of
instruction provided by a C1 instructor for one PwC trainee. A training day
could take place as either structured classroom training or on-site at a client
location. The parties intend to execute a training strategy whereby C1 is
"training the trainers" at PwC. At PwC's option, PwC may purchase additional
training days from C1, in advance, for a reduced fee as follows: (i) for
purchases of 1-299 training days, a discount of 33% off of the then current list
price will apply, (ii) for purchases of greater the 300 training days, a
discount of 40% off of the then current list price will apply. Training priced
under this discount must be purchased at least thirty (30) days in advance. Any
training days purchased but not utilized or any free training days (i.e., the 3
days provided at no charge to PwC for 100 trainees) remaining unused at the end
of the each year will expire. C1 will send to PwC a
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quarterly report on the status/balance of such unused training days. PwC when
ordering training to be applied against the purchased training credit amount
shall quote a reference number from the applicable purchase order to ensure
credit against the prepaid training day balance. The Parties shall agree on a
mutually acceptable cancellation policy for scheduled training classes. It is
understood that all C1 technical training shall be provided at C1's Walnut
Creek, California facilities, at no cost to PwC, and sales training will be
provided at PwC regional offices or other similar facilities which will be made
available by PwC and PwC shall pay the out-of-pocket cost of travel plus lodging
of the C1 representative performing the training.
C1 shall provide to PwC sufficient copies of C1 Software and related
materials as shall be reasonably required for the training of the PwC personnel;
provided that such copies shall be used by PwC solely for internal training
purposes. C1 shall be entitled to receive adequate training by PwC on PwC's full
value procurement system for up to 20 training days per calendar year, at no
cost to C1 if such training takes place at one of PwC's offices as designated by
PwC, or for the out-of-pocket cost of travel plus lodging of the PwC
representative performing the training, if such training is performed at a C1
office or another location designated by C1.
7.3 PWC SERVICES FEE. In consideration of PwC supplying the PwC
Human Resources, after the parties have entered into the Human
Resources Agreement, PwC shall be entitled to receive a fee
equal to 5% of C1's license fee revenues, up to a maximum fee
of $3,500,000. In the event the relationship between license
fees, revenues and other revenues received by C1 from its
licensees (i.e., consulting fees, maintenance fees and support
fees) differs materially from C1's business plan as it exists
on the date hereof and as disclosed to PwC, the parties shall
negotiate the fees due under this Section 7.3 in good faith.
For purposes of this Section 7.3, "license fee revenues" shall
mean license fees, to the extent received in cash by C1, net of
withholding taxes and other deductions, from customers;
provided that it is understood and agreed that "license fee
revenues" shall not include any amounts received by C1 for
maintenance and support services, consulting or professional
service fees, any transaction fees or any other amount or
payment for goods or services not expressly included within the
definition of "license fee revenues" set forth above. Such fee
shall be paid quarterly in arrears; provided, however, in the
event that this Agreement is terminated by C1 or by PwC
pursuant to section 11.3.2 below, or there is a Change of
Control of C1, prior to PwC being paid the full $3,500,000
under this Section 7.3, PwC shall be entitled to be paid a pro
rata amount of $3,500,000 based upon the number of hours of the
PwC Human Resources that have been provided to C1 out of 18,000
hours. For example, if PwC provides 9,000 hours of the PwC
Human Resources, PwC shall be entitled to be paid 5% of C1's
gross revenues, up to a maximum fee of $1,750,000 (or 1/2 of
$3,500,000).
In the event that there is a Change in Control of C1, all remaining
amounts due to PwC under this Section 7.3 shall become immediately due and
payable to PwC regardless of the amount of C1's license fee revenues on that
date.
For purposes of this Agreement, a Change in Control shall mean the
occurrence of one or more of the following events:
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(a) the direct or indirect sale, lease, exchange or other
transfer of all or substantially all of the assets of
an entity to any person or entity or group of persons
or entities acting in concert as a partnership or
other group (a "Group of Persons");
(b) the consummation of any consolidation or merger of an
entity with or into another corporation with the
effect that the stockholders of such entity
immediately prior to the date of the consolidation or
merger hold immediately after such merger or
consolidation less than 51% of the combined voting
power of the outstanding voting securities of the
surviving entity of such merger, or the corporation
resulting from such consolidation, ordinarily having
the right to vote in the election of directors (apart
from rights accruing under special circumstances)
immediately after such merger or consolidation;
(c) the stockholders of an entity shall approve any plan
or proposal for the liquidation or dissolution of such
entity;
(d) a person or entity or Group of Persons acting in
concert as a partnership, limited partnership,
syndicate or other group shall, as a result of a
tender or exchange offer, open market purchases,
privately negotiated purchases or otherwise, have
become the direct or indirect beneficial owner (within
the meaning of Rule 13d-3 under the Exchange Act of
1934, as amended) of securities of an entity
representing 30% or more of the combined voting power
of the then outstanding securities of such entity
ordinarily (and apart from rights accruing under
special circumstances) having the right to vote in the
election of the directors; and
(e) a person or entity or Group of Persons, together with
any affiliates thereof, shall succeed in having a
sufficient number of its nominees elected to the Board
of Directors of an entity such that such nominees,
when added to any existing directors remaining on the
Board of Directors of such entity after such election
who are affiliates of such person, entity or Group of
Persons, will constitute a majority of the Board of
Directors of such entity.
8. CONFIDENTIALITY; INTELLECTUAL PROPERTY
8.1 CONFIDENTIALITY GENERALLY. During the term of this Agreement
and for a period of three (3) years from the termination of
this Agreement (and for a period of ten (10) years from the
termination of this Agreement in the case of source code), each
Party hereto shall take all reasonable steps which are
necessary or reasonable to safeguard the secrecy and
confidentiality of, and proprietary rights to, the Confidential
Information disclosed or provided by the other Party, and shall
not disclose the foregoing to any third party (other than any
employee, agent, director, officer, consultant or contractor
and on a "need to know" basis under suitable agreements of
confidentiality with such parties) or use the same for purposes
other than those set forth herein.
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8.1.1 Each Party shall make no use whatsoever, directly or
indirectly, of any Confidential Information of the other Party,
except as required in connection with the performance of its
obligations under this Agreement and in accordance with its
terms.
8.1.2 Upon either Party's request at any time and for any reason,
the other Party shall immediately deliver to the Party so
requesting all materials (including all copies) in its
possession which contain Confidential Information of that Party.
8.2 CONFIDENTIALITY WITH RESPECT TO THE TRC AND THE MDC.
Confidential Information of a Party may be (and in certain
circumstances must be) disclosed by the Party to the TRC or the
MDC. The employees designated as members of the TRC and the MDC
may share with their employers any and all information,
including Confidential Information, disclosed to the TRC or the
MDC; provided, however, that the requirements regarding
Confidential Information set forth in Section 8.1 above will be
observed by the members of the TRC and the MDC, the Parties and
their employees with respect to Confidential Information
disclosed by either Party to the TRC or the MDC.
8.3 INTELLECTUAL PROPERTY. All inventions, development,
improvements, patents, patent applications, trade secrets,
processes, concepts, uses, know how, software applications,
designs, works of authorship, algorithms, lists, marketing and
business plans and other work product and intellectual property
(collectively, "Intellectual Property") relating to C1 Software
shall be the sole property of C1. . At any time or from time to
time on and after the date of this Agreement, PwC shall at the
request of C1 (i) deliver to C1 such records, data or other
documents consistent with the provisions of this Agreement, and
(ii) execute, and deliver or cause to be delivered, all such
assignments, consents, documents or further instruments of
transfer or license, and (iii) take or cause to be taken all
such other actions, as C1 may reasonably deem necessary or
desirable in order for C1 to obtain the full benefits of this
Agreement and the transactions contemplated hereby. C1 shall,
for any Intellectual Property relating to C1 Software owned by
it and not by PwC provide to PwC a temporary, limited,
non-exclusive, non-transferable license co-extensive with the
term of this Agreement to use any and all such Intellectual
Property solely for the purposes set forth in this Agreement
(i.e., demonstration, internal training and support purposes).
8.4 DATA COLLECTION. C1 and PwC may each compile for its own use and
purposes, and shall have exclusive use and ownership of, any
captured cost data or other information. Any such statistical
data or information compiled by either C1 or PwC shall be its
sole property, and it may use, sell or distribute such data or
information for any purposes not prohibited by this Agreement
or any other agreement.
8.5 LICENSE. Following the execution of this Agreement, PwC, on
behalf of PwC's Business Process Outsourcing service line and
C1 shall negotiate in good faith regarding a license to
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the C1 Software for the purpose of allowing PwC to provide Business Process
Outsourcing services. PwC's Business Process Outsourcing service line is not
bound to choose Commerce One as its preferred solution by virtue of the
preceding language.
9. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION BY PwC
9.1 PwC REPRESENTATIONS AND WARRANTIES. PwC hereby represents and
warrants to C1 as follows:
(a) any C1 Software Installation and Related Services
performed by PwC shall be performed in a workmanlike
and competent manner.
(b) PwC has full right, power, and authority to enter into
this Agreement and to carry out its obligations
hereunder.
9.2 INDEMNIFICATION. Subject to the provisions of Section 9.3
below, PwC shall indemnify C1, its employees, agents, officers,
shareholders, directors and affiliates for, defend and hold C1
harmless from and against, any costs (including attorneys'
fees) or damages finally awarded against C1 and payable to a
third party that are attributable to
(a) any breach of the warranties set forth in 9.1; and
(b) any claims by third parties for death, personal injury
or damages resulting from the wrongful acts or
negligence of PwC or its employees, agents, officers
or directors.
(c) C1 shall give PwC prompt written notice of any such
claim or liability, and allow PwC to control the
defense of such claim and all related settlement
negotiations and fully cooperate with PwC in such
defense and negotiations at PwC's expense. In the
event that C1 wishes to participate in the defense of
any such claim, C1 shall be entitled to participate at
C1's own expense.
10. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION BY C1
10.1 C1 REPRESENTATIONS AND WARRANTIES. C1 hereby represents and
warrants to PwC as follows:
C1 has full right, power and authority to enter into this
Agreement and to carry out its obligations hereunder, and the
execution of the terms hereof do not violate any other
agreement to which C1 is a party.
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10.2 INDEMNIFICATION BY C1. Subject to the provisions of Section
10.3 below, C1 shall indemnify PwC and the PwC Affiliates for,
defend and hold each of them harmless from and against, any
costs (including attorneys' fees) or damages finally awarded
against PwC and/or the PwC Affiliates and payable to a third
party that are attributable to
(a) any breach of the warranties set forth in Section 10.1
above; and
(b) arising out of claims by third parties for death,
personal injury or damages resulting from the wrongful
acts or negligence of C1 or its employees, agents,
officers or directors.
PwC and/or the PwC Affiliates, as applicable, shall give C1
prompt written notice of any such claim or liability, and allow
C1 to control the defense of such claim and all related
settlement negotiations and fully cooperate with C1 in such
defense and negotiations. In the event that PwC and/or the PwC
Affiliates wish to participate in the defense of any cash
claim, C1 may allow PwC and/or the PwC Affiliates to
participate at PwC's and/or the PwC Affiliates' own expense.
10.3 THIRD PARTY INFRINGEMENT.
(a) INDEMNITY. C1 shall indemnify PwC and PwC Affiliates
for, defend and hold each of them harmless from and
against, any costs (including attorney's fees) or
damages arising from any claim that the C1 Software
infringes a copyright, United States patent or Trade
Secret and shall pay any settlements entered into or
damages awarded against PwC and the PwC Affiliates to
the extent based on such a claim, provided that (i)
PwC and/or the PwC Affiliates, as applicable, notifies
C1 promptly in writing of the claim; (ii) C1 has sole
control of the defense and all related settlement
negotiations; and (iii) PwC and/or the PwC Affiliates,
as applicable, provides C1 with all necessary
assistance, information, and authority to perform the
above, at C1's sole cost and expense.
(b) EXCLUSIONS. C1 shall have no liability for any claim
of infringement based on (i) PwC's use of other than
the latest release of the C1 Software if the
infringement would have been avoided by use of the
latest release; (ii) PwC's modification of the C1
Software if the infringement would have been avoided
without such modification; or (iii) the combination or
use of the C1 Software furnished hereunder by PwC with
materials not furnished by C1 if such infringement
would have been avoided by use of the C1 materials
alone.
(c) ALTERNATIVES. In the event the C1 Software licensed to
PwC hereunder is held to, or C1 believes is likely to
be held to, infringe a copyright, trade secret or
patent C1 shall have the right at its sole option and
expense to (i) substitute or modify the C1 Software
license to PwC hereunder so that it is noninfringing;
or (ii) obtain for PwC a license to continue using the
C1
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Software as provided in this Agreement; or (iii) if
(i) and (ii) are not reasonably practicable, terminate
the license granted to PwC pursuant to the last
sentence of Section 8.3 hereof.
(d) The foregoing states the sole obligation and exclusive
liability of C1 (express, implied, statutory or
otherwise) for any infringement on claims or claims of
infringement of any patent, copyright or trade secret
by reason of PwC's use of the C1 Software pursuant to
the last sentence of Section 8.3 hereof.
10.4 INSURANCE. C1 shall maintain in full force and effect at all
times the insurance specified in Exhibit A in the minimum
amounts set forth and shall name PwC as an additional named
insured. PwC represents and warrants that it is self insured in
amounts satisfactory to PwC to cover its contractual
obligations hereunder.
11. EFFECTIVE DATE, TERM AND TERMINATION
11.1 EFFECTIVE DATE. This Agreement shall become effective (the
"Effective Date") as of the date hereof.
11.2 TERM. Unless terminated earlier as provided in this Agreement,
this Agreement shall be for an initial term of (i) three years
if PwC does not make an equity investment in C1, or (ii) five
years if PwC makes an equity investment in C1 as provided in
Section 6.6, and thereafter will continue until either party
gives at least 90 days' written notice of termination.
11.3 TERMINATION.
11.3.1 WITHOUT CAUSE. PwC may terminate this Agreement upon 75 days'
written notice to C1.
11.3.2 WITH CAUSE.
(a) C1 may terminate this Agreement for material breach by
PwC upon 30 days' written notice to PwC if said breach
is not cured by PwC within such period. PwC may
terminate this Agreement for material breach by C1
upon 30 days' written notice to C1 if said breach is
not cured by C1 within such period.
(b) Either party may terminate this Agreement effective
immediately if the Parties are not able to negotiate
in good faith and execute the Human Resources
Agreement and the Marketing Plan within 30 days
following the execution of this Agreement, unless
otherwise agreed by the Parties.
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(c) Finally, either Party may terminate this Agreement
effective immediately upon written notice to the
other, if at any time the other Party:
(i) files a voluntary petition for bankruptcy;
(ii) is adjudged a bankrupt;
(iii) has a trustee or receiver is appointed by a court
for all or a substantial portion of its respective
assets;
(iv) has a court assume jurisdiction of its assets
under a reorganization act;
(v) suspends business;
(vi) makes an assignment of its assets for the benefit
of creditors; or
(vii) enters into a composition for the benefit of
creditors.
11.4 EFFECT OF TERMINATION.
11.4.1 Unless the Parties agree to the contrary, the termination of
this Agreement for any reason shall not relieve a Party of its
obligations:
(a) to make payments hereunder which have accrued prior to
termination; and
(b) to complete its obligations to clients or relating to
obligations for clients existing at the termination
date pursuant to Sections 5.1 and 5.2.
11.4.2 SURVIVAL. In addition, the following Sections shall survive
termination or expiration of this Agreement: 1, 8.1, 8.2, 8.3,
8.4, 9, 10, 11.4, 12 and 13.
11.4.3 TERMINATION OF HUMAN RESOURCES AGREEMENT. In the event that PwC
provides notice to C1 that it is terminating this Agreement
pursuant to Section 11.3.1, PwC shall be entitled to terminate
the Human Resources Agreement upon 75 days' written notice to
C1. In the event that PwC provides notice to C1 that it is
terminating this Agreement pursuant to Section 11.3.2, PwC
shall be entitled to terminate the Human Resources Agreement
and cease its provision of the Human Resources immediately.
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GENERAL PROVISIONS
12.1 HEADINGS. The headings in this Agreement and Exhibits are
provided for reference only and shall not be used as a guide to
interpretation.
12.2 SEVERABILITY. If any provision of this Agreement shall be
adjudicated to be invalid or unenforceable, the Agreement shall
be amended to delete such provision and the Agreement shall
otherwise remain in full force and effect as amended unless
such amended Agreement does not reflect the purposes of the
Parties in entering into the Agreement.
12.3 AUTHORITY OF PARTIES. Neither Party shall have any authority,
express or implied, to assume or create any obligation on
behalf of the other Party..
12.4 PARTIES INDEPENDENT. In making and performing this Agreement
the parties act and shall act at all times as independent
contractors and nothing contained in this Agreement shall be
construed or implied to create an agency, partnership or
employee/employer relationship between C1 and PwC or between
any Party hereto and any officer or employee of the other
Party. Each Party shall be responsible for the acts, negligence
and omissions of its employees, agents servants and
subcontractors. Each Party accepts full and exclusive liability
with respect to its own employees for the payment of any and
all contributions and taxes imposed by local, state or federal
law, including but not limited to taxes or contributions for
social security, unemployment insurance, worker's compensation,
old age retirement benefits, pensions and annuities, and agrees
to provide indemnity for any such payment made by the other
Party.
12.5 ASSIGNMENT. This Agreement shall be binding on and inure to the
benefit of the Parties and their respective successors and
assigns, PROVIDED THAT neither PwC nor C1 may assign its rights
or obligations hereunder to any party which is not controlled
by or under common control with the assigning party without the
prior written consent of the other Party.
12.6 ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement may be submitted to arbitration by
either party hereto in accordance with the rules of the
American Arbitration Association for Commercial Arbitration,
and judgment upon the award rendered by the arbitrators may be
entered in any court having proper jurisdiction. The Parties to
any such arbitration shall share equally the cost of the
arbitrators, but shall each bear its own legal, accounting and
similar fees and expenses; provided, however, that the
arbitrators shall require the Party or Parties, if any, not
prevailing in such arbitration to pay all costs of the
arbitrators and to reimburse the prevailing Party or Parties,
if any, for their legal, accounting and other similar fees and
expenses in connection with the arbitration. Such arbitration
and determination shall be final and binding on the parties.
Such arbitration shall be held in San Francisco, California or
such other location as the parties may agree.
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12.7 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Exhibits
attached hereto contain the entire agreement between the
parties hereto with respect to the subject matter hereof and
supersedes all prior agreements or understandings between the
parties hereto with respect thereto. This Agreement may be
amended only by an agreement in writing signed by the parties
hereto.
12.8 NOTICES. Any notice required or permitted to be given pursuant
to this Agreement shall be in writing and shall be personally
delivered, delivered by next-day air courier, or mailed (by
registered or certified mail, return receipt requested and
postage prepaid) or delivered by facsimile as follows:
IF TO C1:
Chuck Donchess
V.P. Marketing
Commerce One
1600 Riviera Ave.
Suite 200
Walnut Creek CA
Phone: 925-941-6030
Fax: 925-941-6060
IF TO PRICE WATERHOUSE
Robert Glatz
PricewaterhouseCoopers LLP
800 Market Street, 18th Floor
St. Louis, MO 63101
Fax: (314) 206-8615
WITH A COPY TO
Office of the General Counsel
PricewaterhouseCoopers LLP
1251 Avenue of the Americas
New York, New York 10020
Fax: 212-790-6630
or to such other addresses as the Party to whom notice is given
may have furnished to the other Party in writing, in accordance
herewith. Any communication shall be deemed to have been given,
in the case of personal delivery or confirmed facsimile, on the
date of delivery; in the case of delivery of air
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courier, on the business day after delivery to the applicable
air-courier service; and in the case of mailing, on the third
business day following the day on which the piece of mail
containing such communication is posted.
12.9 WAIVER. No terms or provisions hereof shall be deemed waived
and no breach consented to or excused, unless such waiver,
excuse or consent shall be in writing and signed by the Party
claimed to have waived or consented. The consent, waiver or
excuse by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach by such other Party.
12.10 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State
of New York, excluding its conflicts of laws rules.
12.11 FORCE MAJEURE. Neither Party shall be liable or deemed to be in
default for any delay or failure to perform under this
Agreement or for interruption in the functions of the
proprietary products or services resulting, directly or
indirectly, from any cause beyond such Party's reasonable
control.
13. LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH ABOVE, NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY WITH RESPECT TO ANY SERVICES OR
MATERIALS PROVIDED UNDER THIS AGREEMENT, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR
NONINFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE WITH RESPECT TO SUCH ITEMS. EXCEPT FOR (A) INFRINGEMENT OF
THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, (B) A MATERIAL BREACH OF SECTION
8, OR (C) A BREACH OF SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF
SUCH DAMAGES. IN THE EVENT OF A BREACH BY C1 OF ITS OBLIGATIONS UNDER SECTION 6,
C1'S LIABILITY TO PwC BY REASON OF SUCH BREACH SHALL IN NO EVENT EXCEED $3.5
MILLION.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
authorized officers of the respective parties as of the day and year first above
written.
COMMERCE ONE, INC. PRICEWATERHOUSECOOPERS LLP
By: By:
---------------------------------------- ---------------------------
Title: Title:
------------------------------------ ------------------------
Date: Date:
------------------------------------ ------------------------
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EXHIBIT A
---------
Insurance
<PAGE>
EXHIBIT B
---------
OBSERVATION RIGHTS AGREEMENT
[COMMERCE ONE LETTERHEAD]
July __, 1998
PricewaterhouseCoopers LLP
[Insert Address]
Attention: [Insert Name]
Re: Agreement entered into as of ____ day of July, 1998 by and
between Commerce One, Inc., a California Corporation (the
"Company"), and PricewaterhouseCoopers LLP ("PwC"), a
registered Delaware Limited Liability Partnership (the
"Agreement")
Gentlemen:
This letter is provided in connection with the Agreement dated as of
July __, 1998 by and between the Company and PwC.
The Company will allow one authorized representative of PwC
("Representative") to attend all meetings of the Board of Directors of the
Company in a non-voting observer capacity, and shall provide the
Representative with such notice of and other information with respect to such
meetings as are delivered to the directors of the Company; provided that the
Company reserves the right to withhold any information or to exclude the
Representative from any meeting or portion thereof if delivery of such
information or attendance by such Representative could adversely affect the
attorney-client privilege between the Company and its counsel. The Company
shall notify the Representative in advance of the taking of any written
action by the Board of Directors of the Company in lieu of a meeting thereof
and shall provide the Representative with a copy of any proposed written
resolutions or unanimous written consents prior to their execution by the
Board of Directors. PwC and the Representative shall maintain the
confidentiality of all financial, confidential and proprietary information of
the Company obtained by them as a result of these rights, and the
Representative agrees that the information provided by the Company pursuant
to these rights shall not be made available to any competitor or customer of,
or vendor to, the Company or any affiliate or associate of any such entity.
The rights granted hereunder shall terminate upon the termination of
the Agreement. The rights granted hereunder may not be assigned or otherwise
conveyed by PwC or by any subsequent transferee of any such rights without
the prior written consent of the Company.
Very truly yours,
Commerce One, Inc.
--------------------------------
By: Mark Hoffman, Chief Executive Officer
Agreed to and accepted by PricewaterhouseCoopers LLP this __ day of
July, 1998.
<PAGE>
PricewaterhouseCoopers LLP
By: ________________________________
Title: ________________________________
<PAGE>
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
OEM SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This OEM Software License and Distribution Agreement ("Agreement") is
entered into on this 5th day of June, 1999 ("Effective Date") by and between
Commerce One, a California corporation ("Commerce One"), with principal offices
at 1600 Riviera Ave, Walnut Creek, California, 94596 and PeopleSoft, Inc., a
Delaware corporation ("PeopleSoft"), with principal offices at 4460 Hacienda
Drive, Pleasanton, California 94588-8615.
BACKGROUND
A. PeopleSoft markets and distributes certain software products; and
B. Commerce One wishes to grant to PeopleSoft rights to distribute certain
of Commerce One's products, both as standalone products and as integrated within
certain of PeopleSoft's products, and PeopleSoft desires to obtain such rights,
all as more particularly described below, in accordance with the terms and
conditions of this Agreement; and
C. Each of Commerce One and PeopleSoft agree to grant certain exclusivity
in consideration for the rights and obligations set forth herein; and
D. The parties are concurrently entering into a Joint Development Agreement
under which Commerce One and PeopleSoft have agreed to perform certain
development activities as further set forth therein.
In consideration of the mutual covenants contained herein, the parties
agree to the following terms and conditions, which set forth the rights, duties,
and obligations of the parties.
ARTICLE 1.
CONSTRUCTION
All references in this Agreement to "ARTICLES," "ARTICLE," "ATTACHMENTS,"
"SECTION" and "SECTIONS" refer to the articles, sections and exhibits of this
Agreement. As used in this Agreement, neutral pronouns and any variations
thereof shall be deemed to include the feminine and masculine and all terms used
in the singular shall be deemed to include the plural, and vice versa, as the
context may require. The words "HEREOF," "HEREIN" and "HEREUNDER" and other
words of similar import refer to this Agreement as a whole, as the same may from
time to time be amended or supplemented, and not to any subdivision contained in
this Agreement. The word "INCLUDING" when used herein is not intended to be
exclusive and means "INCLUDING, WITHOUT LIMITATION." The words "SELL" or "SOLD"
when used herein is not intended as a sale of goods pursuant to the terms of the
U.N. Convention on Contracts for the International Sale of Goods and when used
with respect to software shall be considered a license and no transfer of title
to software shall be implied thereby.
<PAGE>
ARTICLE 2.
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
Section 2.1. "ATTACHMENT(S)" means the attachments to this Agreement which are
attached hereto and incorporated herein.
Section 2.2. "BUY SITE PRODUCT(S)" means the computer software products listed
or described in Attachment A, Major and Minor Updates thereof, and Connectors.
BuySite Products shall also include the associated documentation which shall
include the software user manuals, reference manuals and installation guides, or
portions thereof, delivered by Commerce One under this Agreement and which
Commerce One may update from time to time as to the general customer base.
Section 2.3. "CODE" means computer programming code. "Object Code" means the
binary machine-executable form of Code, including object files, libraries,
executable program, scripts, and HTML pages. "Source Code" means the
human-readable form of Code including but not limited to annotations, flow
charts, use cases, ERDs and design guides
Section 2.4. "CONNECTOR" means the interfaces developed pursuant to the Joint
Development Agreement.
Section 2.5. "DERIVATIVE WORK(S)" means a revision, modification, translation,
abridgment, condensation or expansion of a BuySite Product, PeopleSoft Product
or any form in which a BuySite Product or PeopleSoft Product may be recast,
transferred, or adapted, and which, if prepared without the consent of Commerce
One or PeopleSoft, as the case may be, would be a copyright infringement.
Section 2.6. "DISTRIBUTE" or "DISTRIBUTION" means selling, sublicensing,
transmitting, marketing, or otherwise distributing the Products or the
MarketSite Services. For the avoidance of doubt, where applicable, PeopleSoft
shall be enabled to operate a hosted version of the BuySite Product either
directly or indirectly.
Section 2.7. "DISTRIBUTOR" means any entity that acquires or reproduces the
BuySite Products or PeopleSoft Products for Distribution by such entity directly
to End Users and not for such entity's own use.
Section 2.8. "END USER" means any third party licensed to use, but not to
further Distribute, the BuySite Products and/or the PeopleSoft Products.
Section 2.9. "JOINT DEVELOPMENT AGREEMENT" means the Joint Development Agreement
entered into by the parties of even date herewith.
Section 2.10. "MAJOR AND MINOR UPDATES" mean updates, if any, to the BuySite
Products to the general customer base. Major Updates include additions of
substantial functionality while Minor
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Updates do not. Major Updates are designated by a change in the number to the
left of the decimal point of the number appearing after the product name, while
Minor Updates are designated by a change in such number to the right of the
decimal point. Commerce One is the sole determiner of the availability and
designation of an update as a Major or Minor Update. Major Updates exclude
software releases which are reasonably designated by Commerce One as new
products. Where used herein "Updates" shall mean Major Updates or Minor Updates
interchangeably.
Section 2.11. "MARKETSITE DIRECT SERVICES" means any MRO Portal electronic
commerce service operated by Commerce One.
Section 2.12. "MARKETSITE INDIRECT SERVICES" means a MarketSite electronic
commerce service hosted by a third party licensee of Commerce One's MarketSite
software.
Section 2.13. "MARKETSITE SERVICES" means the MarketSite Direct Services and
MarketSite Indirect Services.
Section 2.14. "MRO PORTAL" means a multisupplier and multiproduct line merchant
portal designed to facilitate trading for operating resources (goods or services
which are used to operate a business, excluding goods or services which are
primarily used to directly contribute to products, services or other revenue
generating activities which a business provides to its customers). Operating
resources shall include, but not be limited to, industrial parts and supplies,
computer equipment and peripherals, goods and services required to maintain
plant, property and equipment, and contract and temporary employment services.
Without limiting the foregoing, such multisupplier and multiproduct line
merchant portal shall not include any and all portals which are not: (1)
multisupplier; (2) multiproduct line; (3) do not offer both (a) goods; and (b)
services for the purposes set forth above; and (4) directed to government
markets.
Section 2.15. "NAMED ACCOUNTS" means the list of named accounts as described on
Attachment G being "Commerce One Named Account," "PeopleSoft Named Accounts" (to
be provided within fourteen (14) days of the Effective Date) and "Telco Named
Accounts."
Section 2.16. "PEOPLESOFT DISTRIBUTION CHANNELS" means the list of Distributors
designated within two (2) weeks of the Effective Date, attached hereto as
Attachment J and as existing as of the Effective Date. Future Distribution
Channels require Commerce One's prior written approval.
Section 2.17. "PEOPLESOFT PRODUCT(S)" or "PEOPLESOFT PSBN PRODUCT" means
PeopleSoft's software product, as described in Attachment F which product may
include any or all of the BuySite Product Source Code.
Section 2.18. "PRODUCTS" means the BuySite Products and the PeopleSoft Products
collectively.
Section 2.19. "PROGRAM ERRORS" means one or more reproducible deviations in the
BuySite Products from the applicable specifications shown in the associated
documentation.
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Section 2.20. "SPECIFIED COMPANIES" means the list of entities as set out on
Attachment H. "Commerce One Specified Company" means the list of entities as set
forth in Attachment H as Commerce One Specified Companies. "PeopleSoft Specified
Companies" means the list of entities as set forth in Attachment H as PeopleSoft
Specified Companies.
Section 2.21. "TELCO INDUSTRY" means only those entities which carry out
business in the telecommunication industry sub-segments as set forth with SIC
code number 4813 (telecommunications) as they exist on the Effective Date. The
named sub-segments shall be limited to facilities-based telecommunication
carriers (except wireless), local telephone carriers (except wireless),
long-distance telephone carriers (except wireless), telecommunications carriers
(wired), telecommunications networks (wired) and telephone carriers facilities
based (except wireless).
Section 2.22. "UPGRADE" means the right to use BuySite or the PeopleSoft PSBN
Product on a designated computer with increased processing power or an increase
in the number of users to the next pricing increment and generally in each case
a requirement for a payment of applicable Upgrade fees to PeopleSoft.
ARTICLE 3.
GRANT OF LICENSES AND RIGHTS TO PEOPLESOFT
Section 3.1. LICENSES.
(a) BUYSITE PRODUCTS (ENTERPRISE) LICENSE. Subject to the terms and
conditions of this Agreement, Commerce One hereby grants and PeopleSoft hereby
accepts, a non-exclusive (except as set forth herein), nontransferable,
worldwide right and license to (i) reproduce, without change, the BuySite
Product (in Object Code only) including all Major and Minor Updates (except as
set forth herein) and (ii) Distribute directly or by sublicense, through the
PeopleSoft Distribution Channels to End Users for use in either direct or
indirect procurement of goods and services.
(b) BUYSITE PRODUCTS (HOSTED) LICENSE. Subject to the terms and conditions
of this Agreement, Commerce One hereby grants and PeopleSoft hereby accepts, a
non-exclusive (except as set forth herein), nontransferable, worldwide right and
license to (i) reproduce, without change, the hosted BuySite Products (in Object
Code only) and (ii) Distribute directly or by sublicense through the PeopleSoft
Distribution Channels only for use by End Users who will use such hosted BuySite
Products to provide purchasing capabilities for direct or indirect goods and
services.
(c) BUYSITE PRODUCTS (SOURCE CODE) LICENSE. Subject to the terms and
conditions of this Agreement, Commerce One hereby grants and PeopleSoft hereby
accepts, a non-exclusive (except as set forth herein), nontransferable,
worldwide right and license to (i) reproduce, use, modify and create Derivative
Works of the BuySite Products including all Major and Minor Updates (in Object
and Source Code) and (ii) Distribute by sublicense such BuySite Product copies
including all Major and Minor Updates to Distributors and End Users only as part
of and integrated into a PeopleSoft Product. PeopleSoft may grant Distributors
the right to grant further sublicenses to Distribute (but not reproduce) such
copies of the BuySite Products integrated into PeopleSoft Products to other
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Distributors regardless of tier and PeopleSoft and all Distributors shall have
the right to Distribute such BuySite Products to End Users.
(d) SOURCE CODE FREEZE. Commencing on the effective date of termination of
the Joint Development Agreement, PeopleSoft's right and license to the Source
Code to the BuySite Products under Section 3.1(c) shall be limited to the
commercial release or version of BuySite Products that is commercially available
as of the effective date of termination of the Joint Development Agreement and
Minor Updates thereof and such right and license to the Source Code shall be
limited to use only for support, maintenance and development of the PeopleSoft
Products. As of the effective date of termination of the Joint Development
Agreement, Commerce One shall be relieved of its obligations to deliver any
further Source Code for Major and Minor Updates of the BuySite Products which
may become commercially available after the effective date of termination of the
Joint Development Agreement. For the avoidance of doubt, PeopleSoft shall
continue to have the right and license granted in Section 3.1(c) as modified by
this Section 3.1(d) to the Source Code of the BuySite Products, including all
Major and Minor Updates and Derivative Works thereof made solely by PeopleSoft,
up to and including the release or version of BuySite Products that is
commercially available as of the effective date of termination of the Joint
Development Agreement and any Minor Updates to such release or version of
BuySite Products.
(e) LOCALIZED CODE. Subject to the terms and conditions of this Agreement,
Commerce One hereby grants and PeopleSoft hereby accepts, a non-exclusive
(except as set forth herein), nontransferable worldwide right and license to (i)
reproduce, use, modify and create Derivative Works of any localized version of
BuySite Products (in Object and Source Code) and (ii) Distribute by sublicense
such localized version of BuySite Product copies to Distributors and End Users
only as part of and integrated into a PeopleSoft Product. PeopleSoft may grant
Distributors the right to grant further sublicenses to Distribute such copies of
the localized version of BuySite Products integrated into PeopleSoft Products to
other Distributors regardless of distribution tier, and all Distributors shall
have the right to Distribute such localized version of BuySite Products to End
Users.
(f) COMMERCE ONE RESELLERS. During the term of the Agreement, Commerce One
shall ensure that all reseller agreements entered into between Commerce One and
a third party reseller, on or after the Effective Date shall exclude a grant of
any right or license to Distribute the BuySite Product to the PeopleSoft Named
Accounts consistent with Section 5.1 of this Agreement. Notwithstanding the
foregoing and the provisions of Section 5.1 of this Agreement, any reseller
agreements entered into between Commerce One and a third party reseller (a
"Grandfathered Reseller") prior to the Effective Date shall not be required to
exclude a grant of any right or license to Distribute the BuySite Product to the
PeopleSoft Named Accounts. Notwithstanding Section 5.1 of this Agreement,
Grandfathered Resellers shall have the right to Distribute the BuySite Products
to PeopleSoft Named Accounts; provided, however, that Commerce One shall attempt
to amend any reseller agreement with a Grandfathered Reseller to eliminate such
distribution rights to PeopleSoft Named Accounts if it is both reasonable and
practical to do so. Commerce One shall designate to PeopleSoft all Grandfathered
Resellers within two (2) weeks of the Effective Date as existing as of the
Effective Date.
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(g) COMMERCE ONE MARKETSITE DIRECT SERVICES (ACCESS) LICENSE. Subject to
the terms and conditions of this Agreement, Commerce One hereby grants and
PeopleSoft and its Distributors hereby accepts, a non-exclusive (except as set
forth herein), nontransferable worldwide right and license to Distribute
subscriptions for access to MarketSite Direct Services during the term, to
Distributors and End Users for use in procurement of either direct or indirect
goods and services. During the period of eighteen (18) months from the Effective
Date, Commerce One agrees that it shall be a condition of any MarketSite
Indirect Service provider agreement that PeopleSoft shall be granted equally
favorable reseller rights as those granted to Commerce One by the MarketSite
Indirect Service provider. Additionally, throughout the term of the Agreement,
Commerce One will negotiate in good faith with any and all subsequent MarketSite
Indirect Service operators to provide PeopleSoft with the ability to resell
access to such MarketSite Indirect Service.
(h) COMMERCE ONE MARKETSITE LICENSE. Upon written request by PeopleSoft,
Commerce One agrees to negotiate in good faith to grant PeopleSoft a license to
Distribute the MarketSite software (in Object Code) provided that the further
terms of such license shall be negotiated in good faith. If the parties do not
enter into a definitive agreement within ninety (90) days after PeopleSoft's
requests, subject to Section 18.13(c), neither party shall have any further
obligations under this Section 3.1(h).
Section 3.2. REPRODUCTION RIGHTS. PeopleSoft shall notify Commerce One, in
writing, of the name and address of all Distributors granted the right to
reproduce the BuySite Product and PeopleSoft shall ensure that all such
Distributors are required to provide PeopleSoft with a report of the number of
copies of BuySite Product made or licensed, which report shall include the
information as set forth in Section 8.4 of this Agreement. Such reproduction
shall occur only at the location of Distributor's principal office unless an
alternate location is otherwise specified in writing to Commerce One. PeopleSoft
shall require such Distributors to authorize PeopleSoft, or Commerce One on
PeopleSoft's behalf, to audit its records which audit rights shall be consistent
with the rights set forth in Section 8.5 of this Agreement. PeopleSoft shall
require such Distributors to provide a warranty to PeopleSoft and its licensors
that the copies made are free from defects and to provide indemnification of
PeopleSoft and its licensors for any breach of such warranty.
Section 3.3. NO RESTRICTIONS. Subject to the terms of Article 5 of this
Agreement, Commerce One reserves all rights not expressly granted in this
Agreement in and to the BuySite Products and the MarketSite Services.
ARTICLE 4.
GRANT OF LICENSES AND RIGHTS TO COMMERCE ONE
Section 4.1. LICENSE.
(a) PEOPLESOFT PSBN PRODUCT LICENSE. Upon written request by Commerce One
within ninety (90) days of commercial availability of the PeopleSoft PSBN
Product, PeopleSoft agrees to negotiate in good faith to grant Commerce One a
license to Distribute the PeopleSoft PSBN Product provided that the further
terms of such license shall be negotiated in good faith between the parties.
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If the parties do not enter into a definitive agreement within ninety (90) days
after Commerce One's request, subject to Section 18.13(c), neither party shall
have any further obligations under this Section 4.1(a).
(b) NO RESTRICTIONS. Subject to the terms of Article 5 of this Agreement,
PeopleSoft reserves all rights not expressly granted in this Agreement in and to
the PeopleSoft Products.
ARTICLE 5.
EXCLUSIVITY
Section 5.1. PEOPLESOFT EXCLUSIVITY. For a period commencing on the Effective
Date and ending on January 1, 2001, PeopleSoft shall not enter into an agreement
with Commerce One Specified Companies to Distribute or develop products similar
to the BuySite Products, the MarketSite Services and the associated software.
PeopleSoft shall use the MarketSite Services as its exclusive MRO Portals and
PeopleSoft shall not Distribute or develop any other hosted MRO Portals or enter
into any agreement with any third party with respect to any MRO Portal during
the period of this exclusivity. For the term of this Agreement, PeopleSoft shall
not provide a Source Code or Object Code license to the BuySite Products to a
Commerce One Specified Company. If, at any time commencing on the Effective Date
and ending on January 1, 2001 , PeopleSoft is in breach of the exclusivity
provisions of this Section 5.1 or assigns this Agreement through operation of
law, merger or acquisition of all or substantially all of its assets to a
Commerce One Specified Company, without limiting any other rights or remedies of
Commerce One, Commerce One shall be entitled to change the exclusivity set forth
in Sections 5.1 (a) and 5.3 below to non-exclusive by providing PeopleSoft with
written notice thereof. Nothing in this Section 5.1 shall be construed as
terminating this Agreement or the licenses granted herein.
(a) PEOPLESOFT EXCLUSIVE ACCOUNTS. During the term of the Agreement and
subject to Section 5.3(a) and (b) below, PeopleSoft shall have the sole and
exclusive right, (except as to Grandfathered Resellers) to market and Distribute
the Products to the PeopleSoft Named Accounts other than PeopleSoft Named
Accounts within the Telco Industry.
Section 5.2. PEOPLESOFT MINIMUMS. Commencing on the Effective Date, and subject
to the potential extended period under Section 5.6 below, PeopleSoft shall enter
into licenses for the Products either directly or indirectly through
Distributors, with the projected cumulative sales targets set forth on
Attachment I (the "Minimum Targets"). For the purpose of this Section 5.2, any
license entered into by PeopleSoft or Commerce One with a Commerce One Named
Account pursuant to Section 5.3(a) below shall be considered a license by
PeopleSoft for the purpose of calculating the Total Customers as defined in
Attachment B. In the event that the Total Customers are not, at a minimum, equal
to the cumulative Minimum Target for any two consecutive calendar quarters,
Commerce One shall be entitled to demand and receive a change to the grant of
exclusivity set forth in Section 5.1(a) above to non-exclusive by written notice
to PeopleSoft; provided, however, that PeopleSoft shall first have the
opportunity to cure the possible loss of exclusivity as follows:
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If PeopleSoft does not meet the cumulative Minimum Target as of the end of
any two consecutive calendar quarters, PeopleSoft may, by the thirtieth (30th)
day ("Cure Date") of the calendar quarter immediately following the second
consecutive calendar quarter in which the cumulative Minimum Target was missed
(the "Cure Quarter"), pay a prepaid nonrefundable royalty creditable against
future licenses entered into by PeopleSoft in an amount equal to the average
PeopleSoft Net Fees received per End User for licenses entered into (not
including access agreements to MarketSite Services) by PeopleSoft for the twelve
(12) months preceding the beginning of the Cure Quarter, multiplied by "X",
where "X" is the Minimum Target as of the expiration of the second consecutive
calendar quarter, less the actual number of Total Customers licensed or sold
access to MarketSite Services, as applicable, as of the expiration of the second
consecutive calendar quarter ("Cure Cost"). It is understood and agreed that if
at the end of the Cure Quarter, PeopleSoft has entered into sufficient licenses
or access agreements to meet the Minimum Target as of end of the Cure Quarter
and paid the Cure Cost to Commerce One, then PeopleSoft shall be entitled to
retain the right of exclusivity under Section 5.1 above.
By way of numerical example only, if, the Minimum Target for the tenth
(10th), eleventh (11th) and twelfth (12th) quarters are ninety-five (95), one
hundred and five (105) and one hundred and twenty (120) licenses or access
agreements for MarketSite Services, respectively, and the average PeopleSoft Net
Fees received per End User for licenses (but not including access agreements for
MarketSite Services) over the twelve (12) months prior to the beginning of the
Cure Quarter is equal to $500,000 ("X" = $500,000); and, PeopleSoft does not
meet the cumulative Minimum Target in the tenth (10th) quarter and enters into
only one hundred (100) licenses or access agreements to MarketSite Services by
the end of the eleventh (11th) quarter ("Total Customer" as defined in Section
14 of Attachment B herein), PeopleSoft will have missed the cumulative Minimum
Target for two (2) consecutive calendar quarters. The Cure Cost shall be equal
to the product obtained by multiplying $500,000 by five (5) (where five shall
have been calculated by subtracting the Total Customers at the end of the
eleventh quarter (100) from the cumulative Minimum Target as of the end of the
eleventh quarter (105)), or $2,500,000. If at the end of the twelfth quarter,
PeopleSoft shall have met the Minimum Target (120) and paid the Cure Cost of
$2,500,000, then PeopleSoft shall continue to retain its exclusivity.
Section 5.3. COMMERCE ONE EXCLUSIVITY. For a period commencing on the
Effective Date and ending on January 1, 2001, Commerce One shall not enter into
an agreement with PeopleSoft Specified Companies to Distribute, sell or develop
products similar to the Products or MarketSite Services. Notwithstanding the
foregoing, Commerce One may enter into an Agreement with SAP only for the
purpose of becoming ISV certified and with Oracle for the purpose of database
development. If, at any time during the eighteen (18) months from the Effective
Date, Commerce One is in breach of the exclusivity provisions of this Section
5.3 or assigns this Agreement through operation of law, merger or acquisition of
all or substantially all of its assets to a Specified Company, without limiting
any other rights or remedies of PeopleSoft, PeopleSoft shall be entitled to
change the exclusivity set forth in Section 5.1 above or 5.3(a) below to
non-exclusive by providing Commerce One with written notice thereof. Nothing in
this Section 5.3 shall be construed as terminating this Agreement or the
licenses granted herein.
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(a) COMMERCE ONE EXCLUSIVE ACCOUNT. Notwithstanding Section 5.1(a)
above, for a period of three (3) months after the Effective Date, Commerce One
shall have the exclusive right to Distribute the Products to the Commerce One
Named Accounts. In the event any of the Commerce One Named Accounts enters into
a license during such three (3) month period, such license may be between either
Commerce One or PeopleSoft and such individual Commerce One Named Account. Such
Commerce One Named Account shall pay fees to either Commerce One or PeopleSoft,
who shall then allocate the fees as set forth in Attachment B. Nothing in this
Section shall prohibit or discourage PeopleSoft from cooperatively engaging with
Commerce One with respect to Commerce One Named Accounts.
(b) COMMERCE ONE EXCLUSIVE ACCOUNT. Notwithstanding Section 5.1 (a) above,
for a period of six (6) months after the Effective Date, Commerce One shall have
the exclusive right to market and Distribute the BuySite Products to the Telco
Named Accounts.
(c) TELCO NAMED ACCOUNTS. From the Effective Date, PeopleSoft has a
non-exclusive right to Distribute the Products to the Telco Industry, excluding
the Telco Named Accounts. Commencing at the beginning of the seventh (7th)
month after the Effective Date, PeopleSoft shall be at liberty to Distribute to
the Telco Named Accounts.
Section 5.4. LIMITED RIGHT TO WORK WITH SPECIFIED COMPANIES FOR END USER
CUSTOMER-REQUESTED IMPLEMENTATIONS.
(a) The parties contemplate that only on a rare case-by-case basis both
parties may, due to an insistent End User customer request, need to work on such
End User-requested implementations with respect to Specified Company's products
and each party may, for such rare cases, provide services to such End User
notwithstanding the provisions of Sections 5.1 and 5.3. Prior to undertaking or
so agreeing to such an implementation effort, the requested party must first use
all reasonable efforts to direct the customer to an external independent third
party implementor to conduct the work for the End User. The parties shall also
use all reasonable efforts, primarily expected to be conducted through their
alliance personnel, to provide advance written notice (which shall include by
electronic mail) of at least five (5) business days to the other of a situation
whereby the requested party has attempted and failed to persuade the End User to
use an independent third party implementor and that the party is considering
entering into an End User agreement to provide the future direct implementation
services to the End User for the Specified Company product.
(b) The intent of this Section is that implementations for a
Specified Company conducted by the Parties shall be the rare exception rather
than the rule, and in the event such End User requested implementations occur on
at least two occasions within any six month period, the Parties acknowledge that
this is cause for concern and therefore the Parties' executive liaisons will
promptly have face-to-face meeting(s) to discuss this issue to resolve the issue
to their mutual satisfaction.
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Section 5.5. PREFERRED SOLUTIONS.
(a) COMMERCE ONE. Commerce One agrees to promote customer advantages of
using the BuySite Product and the PeopleSoft Products as the preferred solution
to interconnect with the MarketSite Services.
(b) PEOPLESOFT. PeopleSoft agrees to promote customer advantages of using
the MarketSite Services as the preferred solution to interconnect with the
BuySite Product and the PeopleSoft Products.
Section 5.6. EXTENSION OF EXCLUSIVITY. In the event BuySite 6.0 is not
available for commercial release by December 31, 1999, each of the following
shall occur: (a) the period of exclusivity set forth in this Section 5 shall
be extended solely for the benefit of PeopleSoft by one whole calendar
quarter for each calendar quarter or portion thereof it takes for BuySite 6.0
to be delivered and accepted pursuant to the terms of the Joint Development
Agreement and (b) the target dates for all Minimum Targets as set forth in
Section 5.2 and Attachment I shall be adjusted forward by one whole calendar
quarter for each calendar quarter or portion thereof it takes for BuySite 6.0
to be delivered and accepted pursuant to the terms of the Joint Development
Agreement. By way of example only, if BuySite 6.0 is delivered and accepted
on any day from January 1, 2000 through March 31, 2000, the period of
exclusivity shall be extended until June 30, 2001, and all Minimum Targets as
set forth in Section 5.2 shall be adjusted forward by one whole quarter,
beginning with the Minimum Target of sixty (60) at the end of the second
calendar quarter of 2001. As further example, if BuySite 6.0 is delivered and
accepted on any day from April 1, 2000 through June 30, 2000, the period of
exclusivity shall be extended through September 30, 2001, and all Minimum
Targets as set forth in Section 5.2 shall be adjusted forward one quarter
beginning with the Minimum Target of sixty (60) at the end of the third
calendar quarter of 2001.
Section 5.7. LIMIT TO EXCLUSIVITY. Nothing in this Agreement shall prevent
PeopleSoft from entering into Agreements with third parties to integrate any
product or service content into the PeopleSoft Products.
Section 5.8. GOVERNMENT PROCUREMENT SOLUTION. In the event PeopleSoft elects to
move forward with a government procurement solution, PeopleSoft grants to
Commerce One a right to negotiate with regard to partnering to provide a
government procurement solution. In the event the parties enter into such
negotiations, the parties shall conclude a definitive agreement or material
agreement on the terms and conditions of a definitive agreement within three (3)
months of the commencement of negotiations or PeopleSoft shall be free to enter
into negotiations with other third parties, subject to Section 18.13(c).
ARTICLE 6.
MARKETING AND DISTRIBUTION
Section 6.1. PUBLIC ANNOUNCEMENTS AND PROMOTIONAL MATERIALS. Commerce One and
PeopleSoft shall cooperate with each other so that each party may issue a press
release concerning this
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Agreement, provided that each party must approve any press release prior to its
release within seven (7) days of the Effective Date.
Section 6.2. JOINT MARKETING. Within thirty (30) days of the Effective Date,
Commerce One shall enter into PeopleSoft's substantially standard PSBN charter
merchant agreement provided that the entry into such charter merchant agreement
shall be at no cost to Commerce One. Upon the expiration or early termination of
this Agreement, Commerce One shall have the right to renew such charter merchant
agreement subject to payment of the then current maintenance rate, which shall
be negotiated by the parties.
Section 6.3. TERMS RELATING TO DISTRIBUTION.
(a) GENERAL RESTRICTIONS ON DISTRIBUTION. PeopleSoft agrees to comply with,
and shall require its Distributors to comply with, all applicable laws, rules
and regulations to preclude the acquisition of unlimited rights to technical
data, software and documentation provided with the BuySite Product to a
governmental agency, and ensure the inclusion of the appropriate "Restricted
Rights" or "Limited Rights" notices required by the U.S. Government agencies.
(b) DISTRIBUTOR LICENSE AGREEMENT. PeopleSoft shall procure from each of
its Distributors, and shall require that the PeopleSoft Customers procure from
each of their Distributors, an executed copy of a distribution license agreement
("Distributor License Agreement") sufficient to ensure that such Distributors
are required to comply with the relevant terms of this Agreement. In addition,
such agreement shall include warranty disclaimers and limitations of liability
on behalf of its licensors and suppliers.
(c) END USER LICENSE AGREEMENTS. PeopleSoft and its Distributors shall
Distribute the BuySite Products to End Users only under the terms of, and shall
ensure that the BuySite Products are subject to, end user license agreements
with terms at least as restrictive as those set forth in the applicable end user
license agreement attached hereto as Attachment D ("Commerce One End User
License Agreement").
Section 6.4. ENFORCEMENT OF SUBLICENSE AGREEMENTS. PeopleSoft and its
Distributors shall use commercially reasonable efforts to enforce each
Distributor License Agreement and End User License Agreement, whichever may be
relevant, with at least the same degree of diligence used in enforcing similar
agreements governing others, which in any event shall be sufficient to
adequately enforce such agreements. PeopleSoft shall use commercially reasonable
efforts to protect Commerce One's copyright, notify Commerce One of any breach
of a material obligation under a Distributor License Agreement or an End User
License Agreement affecting BuySite Products, and cooperate with Commerce One in
any legal action to prevent or stop unauthorized use, reproduction or
Distribution of BuySite Products.
Section 6.5. STAFFING.
(a) ACCOUNT MANAGERS. Each party shall appoint an Account Manager ("Account
Manager") to address opportunities and issues as they arise with respect to
marketing and sales activities and to
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manage the interaction of the parties respective sales forces. Either party may
change its Account Manager by providing written notice thereof to the other
party. Disputes with respect to this Agreement which cannot be resolved by the
parties' Account Managers shall be subject to the provisions of Section 18.13 of
this Agreement. The Account Managers shall meet at least once per calendar
quarter to monitor the progress of this Agreement and to manage issue resolution
under this Agreement.
(b) GUIDELINES. Within sixty (60) days of the Effective Date, the Account
Managers must establish mutually acceptable guidelines for co-operation of the
parties' respective sales forces. The parties shall maximize the effectiveness
of each respective party's sales organization.
(c) EXCHANGE OF INFORMATION. Each party shall keep appropriate records
relating to the activities contemplated by this Agreement, and shall report to
the other party on the status of such activities on a regular basis.
(d) PERSONNEL. The parties shall provide sufficient sales and pre-sales
personnel to support each other in the marketing efforts required under this
agreement. Each party agrees to use commercially reasonable efforts to support
the other party's efforts to market the Products. Commencing on the Effective
Date for a period of twelve (12) months, Commerce One shall organize its sales
personnel on a territory basis, which for the purpose of this Agreement, shall
mean a geographic organization of the sales force, to maximize sales
opportunities with PeopleSoft under this Agreement.
(e) COMMERCE ONE COMPENSATION. Commencing on the Effective Date for a
period of nine (9) months for sales representatives and for a period of
eighteen (18) months for sales managers, Commerce One shall compensate its
non-CSP sales personnel based on the gross licensing revenue received by
PeopleSoft from Distribution of the BuySite Product or the PeopleSoft Product
under this Agreement to the same extent as if Commerce One had received such
Product gross license revenues directly. As used in this Section, gross
licensing revenue shall mean the actual license fees, royalties or other cash
consideration received by Commerce One or PeopleSoft with respect to the
licensing, sublicensing or other Distribution of the BuySite Products without
reduction. Commencing on the beginning of the tenth (10th) month from Effective
Date for a period of nine (9) months thereafter, Commerce One shall compensate
its sales representatives based on the PeopleSoft Net Fees paid to Commerce One
under this Agreement (pursuant to Attachment B) for PeopleSoft Distribution of
the BuySite Product or PeopleSoft Product under this Agreement. Commerce One
shall compensate its sales personnel for a period of eighteen (18) months from
the Effective Date the same sum, as determined in the sole discretion of
Commerce One, for a MarketSite Direct Services access license whether such
access license was procured through Commerce One or any of its Distributors.
Section 6.6. SALES AND SALES SUPPORT TRAINING. Commerce One shall provide, at no
additional charge, six (6) sales training courses of one (1) day each for sales
training for the BuySite Products to the PeopleSoft personnel. PeopleSoft will
pay to Commerce One fifty percent (50%) of Commerce One's then current list
price for any training services, in addition to such training services listed in
this Section 6.6 above, provided by Commerce One to PeopleSoft.
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Section 6.7. SALES TRAINING MATERIALS. Training materials shall be provided as
part of Commerce One's training obligation. Commerce One grants to PeopleSoft a
royalty-free, nonexclusive, worldwide and nontransferable (except as set forth
in Section 18.2) right and license to use and reproduce any sales training
materials pertaining to BuySite Products, with the exception of any web based
sales training materials, (the "Training Materials") and to use and create
Derivative Works of the Training Materials to develop training materials for
PeopleSoft Products. PeopleSoft shall have the worldwide right to reproduce and
Distribute all Training Materials internally and to Distributors. PeopleSoft
shall have the right to request a license, similar to the license for the
Training Materials set forth in this Section 6.7 above, for the web based
training materials for use by End Users subject to payment of a royalty, at a
rate to be determined by the parties, for such web based training materials.
Section 6.8. COMMERCE ONE MOST FAVORED CUSTOMER PRICING. Commerce One shall
provide PeopleSoft with equally favorable pricing on MarketSite Direct Services
access as is offered to End Users either by Commerce One or its distributors.
Commerce One represents that the prices charged PeopleSoft shall be no higher
than the prices Commerce One charges to any other unaffiliated customer or
distributor at a similar level of distribution respecting similar MarketSite
Direct Services during such calendar year provided, that PeopleSoft's actual
purchases of MarketSite Direct Services during such calendar year are under
substantially equivalent terms and conditions as the purchases by such other
customer or distributor; and PeopleSoft's actual purchases of MarketSite Direct
Services are intended for sale in the same country or geographic region or
vertical market during such calendar year. In the event Commerce One is in
breach of the foregoing, MarketSite Direct Services pricing will be reduced by
Commerce One to PeopleSoft to equal the lower prices and will apply to
PeopleSoft purchases of MarketSite Direct Services from the date lower prices
were charged to such other customers or distributors by Commerce One. In
addition, if PeopleSoft took delivery of and paid for MarketSite Direct Services
while Commerce One was in breach of the foregoing representation, appropriate
credits toward the purchase of MarketSite Direct Services or refunds, at
PeopleSoft's option, shall be issued by Commerce One to PeopleSoft, the amount
of which shall reflect the differences in the prices for MarketSite Direct
Services that were actually charged to PeopleSoft and the prices for MarketSite
Direct Services which should have been charged to PeopleSoft if Commerce One had
complied with the foregoing representation.
(a) AUDIT. Not more than once in any twelve (12) month period, and at a
time which is reasonably acceptable to Commerce One, Commerce One shall permit
an independent certified public accountant hired by PeopleSoft and approved by
Commerce One to review Commerce One's books and records for the purpose of
determining whether Commerce One is complying with the representations and other
provisions contained in this Section 6.8.
(b) COST OF AUDIT. The costs of such review shall be borne by PeopleSoft,
except in the event that it is determined, as a result of such review, that
Commerce One was not in compliance with the representations and other provisions
contained in this Section 6.8. Commerce One shall then reimburse PeopleSoft for
the reasonable costs PeopleSoft incurred in connection with such review,
including the fees paid to such certified public accountant. If the results of
such audit establish that the prices charged PeopleSoft are higher than the
prices Commerce One charges to any other
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unaffiliated customer or distributor as described above by more than five
percent (5%) of the price which should have been charged, in which case Commerce
One shall bear the expenses of the audit not to exceed $15,000.
ARTICLE 7.
FEES
Each party shall pay the royalties and other fees in accordance with
Attachment B to this Agreement. Each party shall make such payments to the other
party within thirty (30) days of the end of the calendar quarter in which such
royalties or fees accrue.
ARTICLE 8.
PAYMENT AND TAXES
Section 8.1. PAYMENTS.
(a) COMMERCE ONE. All payments to Commerce One shall be made in United
States dollars at Commerce One's address as indicated in this Agreement or at
such other address as Commerce One may from time to time indicate by proper
notice hereunder.
(b) PEOPLESOFT. All payments to PeopleSoft shall be made in United States
dollars at PeopleSoft's address as indicated in this Agreement or at such other
address as PeopleSoft may from time to time indicate by proper notice hereunder.
Section 8.2. TAXES GENERALLY. Fees do not include and are net of any foreign or
domestic governmental taxes or charges of any kind that may be applicable to the
sale, licensing, marketing or Distribution of the BuySite Products or MarketSite
Services, including without limitation excise, sales, use, or value-added taxes;
customs or other import duties; or other taxes, tariffs or duties. For payments
by PeopleSoft to Commerce One, PeopleSoft shall be responsible for, and shall
pay in a timely manner, all such taxes and charges levied against Commerce One,
excluding taxes on the income of Commerce One. When Commerce One has the legal
obligation to pay or collect such taxes the appropriate amount shall be invoiced
to PeopleSoft, excluding taxes on the income of Commerce One, and paid by
PeopleSoft within thirty (30) days of the date of invoice unless PeopleSoft
provides Commerce One with a valid tax exemption certificate authorized by the
appropriate taxing authority or affidavit of use tax directly accrued and paid
by PeopleSoft.
Section 8.3. WITHHOLDING TAXES. All payments by PeopleSoft shall be made free
and clear of, and without reduction for, any withholding taxes. Any such taxes
which are otherwise imposed on payments to Commerce One shall be the sole
responsibility of PeopleSoft. PeopleSoft shall provide Commerce One with
official receipts issued by the appropriate taxing authority or such other
evidence as is reasonably requested by Commerce One to establish that such taxes
have been paid.
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Section 8.4. QUARTERLY REPORTS. PeopleSoft and its Distributors shall maintain
accurate records and report the number and type of BuySite and PeopleSoft
Product licenses and access agreements entered into and MarketSite Services
access agreements entered into , the calendar quarter of the date of such
agreements, all supporting documentation for the calculation of PeopleSoft Net
Fees, the location shipped to (by country or state) if applicable and the
corresponding fees due hereunder. Such reports shall be submitted by PeopleSoft
to Commerce One within thirty (30) calendar days after the end of each calendar
quarter.
Section 8.5. AUDIT OF RECORDS. PeopleSoft shall keep and maintain full, true,
and accurate records containing all BuySite and PeopleSoft Products or
MarketSite Services Distributed. Not more than once in any twelve (12) month
period, Commerce One shall have the right, through auditors reasonably
acceptable to PeopleSoft who shall execute an appropriate nondisclosure
agreement reasonably acceptable to both parties, during normal business hours
upon at least fifteen (15) business days prior notice, to audit and analyze the
relevant records of PeopleSoft to verify compliance with the provisions of this
Agreement. The audit shall be conducted at Commerce One's expense unless there
is inadequate record keeping or the results of such audit establish that
inaccuracies in the monthly royalty reports have resulted in underpayment of
royalties to Commerce One more than five percent (5%) of the amount actually due
in any month, in which case PeopleSoft shall bear the expenses of the audit not
to exceed $15,000. Equivalent audit rights and reporting obligations shall be
granted to PeopleSoft with respect to the MarketSite Direct Fees or MarketSite
Indirect Fees payable to PeopleSoft under this Agreement.
ARTICLE 9.
DELIVERABLES, UPDATES AND TECHNICAL SUPPORT
Section 9.1. COMMERCE ONE DELIVERABLES. Commerce One shall provide PeopleSoft
with the deliverables indicated in Attachment A ("Commerce One Deliverables").
All deliveries under this Agreement shall be F.O.B. Commerce One, Walnut Creek,
California. F.O.B. shall have the definition in the California Uniform
Commercial Code.
Section 9.2. PEOPLESOFT DELIVERABLES. PeopleSoft shall provide Commerce One with
the deliverables indicated in Attachment F ("PeopleSoft Deliverables"). All
deliveries under this Agreement shall be F.O.B. PeopleSoft, Pleasanton,
California. F.O.B. shall have the definition in the California Uniform
Commercial Code.
Section 9.3. UPDATES AND TECHNICAL SUPPORT. Commerce One shall provide support
in accordance with Attachment E, provided that PeopleSoft has paid for such
maintenance and support in accordance with Attachment B.
Section 9.4. FURTHER SUPPORT. Within ninety (90) days of the Effective Date, the
parties shall enter into a mutually acceptable support plan which shall outline
the terms for identification of severity
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levels and escalation, bug tracking, training schedules and the names of the
appropriate contact for support for each party.
Section 9.5. TECHNICAL TRAINING. Commerce One shall provide, at no additional
charge, ten (10) technical training courses of three (3) days each for technical
training (for example, training for support and consulting) for the BuySite
Products to the PeopleSoft training personnel. PeopleSoft will pay to Commerce
One fifty percent (50%) of Commerce One's then current list price for any
training services, in addition to such training services listed in this Section
9.5 above, provided by Commerce One to PeopleSoft.
Section 9.6. TECHNICAL TRAINING MATERIALS. Training materials shall be provided
as part of Commerce One's training obligation. Commerce One grants to PeopleSoft
a royalty-free, nonexclusive, worldwide and nontransferable (except as set forth
in Section 18.2) right and license to use and reproduce any technical training
materials pertaining to BuySite Products, with the exception of any web based
technical training materials, (the "Training Materials") and to use and create
Derivative Works of the Training Materials to develop training materials for
PeopleSoft Products. PeopleSoft shall have the worldwide right to reproduce and
Distribute all Training Materials internally and to Distributors. PeopleSoft
shall have the right to request a license, similar to the license for the
Training Materials set forth in this Section 9.6 above, for the web based
training materials for use by End Users subject to payment of a royalty, at a
rate to be determined by the parties, for such web based training materials.
ARTICLE 10.
TRADEMARKS AND TRADE NAMES
Section 10.1. TRADEMARKS. Subject to the provisions of this Article 10, during
the term of this Agreement, PeopleSoft shall have the right to indicate to the
public that PeopleSoft Products contain the BuySite Product, and to advertise
the BuySite Products as incorporated into the PeopleSoft Products under the
trademarks, marks, and trade names of Commerce One set forth in Attachment C, as
same may be amended in writing by Commerce One from time to time ("Commerce
One's Trademarks"), subject to Commerce One's prior inspection and written
approval of the PeopleSoft Products in which the Commerce One Trademarks are
attached. All representations of Commerce One's Trademarks that PeopleSoft
intends to use shall first be submitted to Commerce One for approval (which
shall not be unreasonably withheld) of design, color and other details, or shall
be exact copies of those used by Commerce One. PeopleSoft shall fully comply
with all guidelines, if any, communicated by Commerce One concerning the use of
Commerce One's Trademarks. Commerce One may modify any Commerce One Trademarks,
or substitute an alternative mark for any Commerce One Trademark upon ninety
(90) days prior notice to PeopleSoft.
Section 10.2. USE. Except as set forth in this Article 10, nothing contained in
this Agreement shall grant or shall be deemed to grant to PeopleSoft any right,
title or interest in or to Commerce One's Trademarks. All uses of Commerce One's
Trademarks and all goodwill associated with such Commerce One Trademarks shall
inure solely to Commerce One and PeopleSoft shall obtain no rights with respect
to any of Commerce One's Trademarks, other than as expressly set forth herein,
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and PeopleSoft irrevocably assigns to Commerce One all such right, title and
interest, if any, in any of Commerce One's Trademarks. At no time during or
after the term of this Agreement shall PeopleSoft challenge or assist others to
challenge Commerce One's Trademarks (except to the extent expressly required by
applicable law) or the registration thereof or attempt to register any
trademarks, marks or trade names confusingly similar to those of Commerce One.
Upon Commerce One's request from time to time PeopleSoft agrees to provide
Commerce One with copies of goods bearing Commerce One's trademarks and trade
names so that Commerce One can verify their adequate quality. Upon termination
of this Agreement, PeopleSoft shall immediately cease to use all Commerce One's
Trademarks and any listing by PeopleSoft of Commerce One's name in any telephone
book, directory, public record or elsewhere, shall be removed by PeopleSoft as
soon as possible, but in any event not later than the subsequent issue of such
publication.
Section 10.3. COMMERCE ONE LOGO. PeopleSoft shall place the Commerce One
Trademark or logo on the PeopleSoft Product (provided the PeopleSoft Product is
developed under any joint development agreement between the parties) in a
location which is visible to the End User.
Section 10.4. REGISTERED USER AGREEMENTS. Commerce One and PeopleSoft shall
enter into registered user agreements with respect to the Commerce One's
Trademarks pursuant to applicable trademark law requirements worldwide.
PeopleSoft shall be responsible for proper filing of the registered user
agreement with government authorities worldwide and the parties shall share
equally all costs or fees associated with such filing.
ARTICLE 11.
PROPRIETARY RIGHTS
Section 11.1. COMMERCE ONE PROPRIETARY RIGHTS. Title to and ownership of all
copies of the BuySite Products and the MarketSite Services and associated
software whether in machine-readable or printed form, and including, without
limitation, Derivative Works thereof provided by Commerce One hereunder,
compilations, or collective works thereof and all related technical know-how and
all intellectual property rights therein (including without limitation rights in
patents, copyrights, and trade secrets applicable thereto), are and shall remain
the exclusive property of Commerce One and its suppliers. PeopleSoft shall not
take any action to jeopardize, limit or interfere in any manner with Commerce
One's ownership of and rights with respect to the BuySite Products and the
MarketSite Services and associated software. PeopleSoft shall have only those
rights in or to the BuySite Products and the MarketSite Services and associated
software granted to it pursuant to this Agreement. Title to and ownership of all
copies of the PeopleSoft Product, exclusive of the BuySite Products and the
MarketSite Services and associated software, and all related technical know-how
and all rights therein (including without limitation rights in patents,
copyrights, and trade secrets applicable thereto), are and shall remain the
exclusive property of PeopleSoft and its suppliers, as applicable.
Section 11.2. PROPRIETARY NOTICES.
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(a) NO ALTERATION OF NOTICES. PeopleSoft and its employees and agents shall
not remove or alter any trademark, trade name, copyright, or other proprietary
notices, legends, symbols, or labels appearing on or in copies of the BuySite
Products and the MarketSite Services and associated software delivered to
PeopleSoft by Commerce One and shall use the same notices, legends, symbols, or
labels in and on copies of BuySite Products and the MarketSite Services and
associated software as are contained in and on such BuySite Products and the
MarketSite Services and associated software.
(b) NOTICE. Each portion of the BuySite Products and the MarketSite
Services and associated software reproduced by PeopleSoft shall include the
intellectual property notice or notices appearing in or on the corresponding
portion of such materials as delivered by Commerce One hereunder. PeopleSoft
shall ensure that all copies of the BuySite Products and the MarketSite Services
and associated software made by PeopleSoft pursuant to this Agreement
conspicuously display the following notice: Copyright (1999 (or other
appropriate year(s)), Commerce One. All Rights Reserved.
ARTICLE 12.
CONFIDENTIAL INFORMATION AND DISCLOSURE
Section 12.1. CONFIDENTIAL INFORMATION. Each party agrees to maintain all
Confidential Information in confidence to the same extent that it protects its
own similar Confidential Information and to use such Confidential Information
only as permitted under this Agreement. For purposes of this Agreement
"Confidential Information" shall mean information including, without limitation,
computer programs, code, algorithms, names and expertise of employees and
consultants, know-how, formulas, processes, ideas, inventions (whether
patentable or not), schematics and other technical, business, financial, pricing
and product development plans, forecasts, strategies and information marked
"Confidential" or if disclosed verbally, reduced to writing and marked
"Confidential" within thirty (30) days after the date of disclosure or
reasonably understood by the parties to be confidential. Each party agrees to
take all reasonable precautions to prevent any unauthorized disclosure or use of
Confidential Information including, without limitations disclosing Confidential
Information only to its employees (a) with a need to know to further permitted
uses of such information and (b) who are parties to appropriate agreements
sufficient to comply with this Article 12, and (c) who are informed of the
nondisclosure/ non-use obligations imposed by this Article 12 and both parties
shall take appropriate steps to implement and enforce such
non-disclosure/non-use obligations. The foregoing restrictions on disclosure and
use shall survive for three (3) years following termination of this Agreement
but shall not apply with respect to any Confidential Information which (i) was
or becomes publicly known through no fault of the receiving party; (ii) was
rightfully known or becomes rightfully known to the receiving party without
confidential or proprietary restriction from a source other than the disclosing
party; (iii) is independently developed by the receiving party without the
participation of individuals who have had access to the Confidential
Information; (iv) is approved by the disclosing party for disclosure without
restriction in a written document which is signed by a duly authorized officer
of such disclosing party; (v) by the receiving party in connection with
securities filings with the Securities
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and Exchange Commission or as otherwise required by government regulation, or
(vi) the receiving party is legally compelled to disclose; provided, however,
that prior to any such compelled disclosure, the receiving party will (a) assert
the privileged and confidential nature of the Confidential Information against
the third party seeking disclosure and (b) cooperate fully with the disclosing
party in protecting against any such disclosure and/or obtaining a protective
order narrowing the scope of such disclosure and/or use of the Confidential
Information. In the event that such protection against disclosure is not
obtained, the receiving party will be entitled to disclose the Confidential
Information, but only as and to the extent necessary to legally comply with such
compelled disclosure.
Section 12.2. CONFIDENTIALITY OF AGREEMENT. Unless required by law, and except
to assert its rights hereunder or for disclosures to its own employees on a
"need to know" basis, each party agrees not to disclose the terms of this
Agreement or matters relating thereto without the prior written consent of the
other, which consent shall not be unreasonably withheld.
ARTICLE 13.
WARRANTIES AND REPRESENTATIONS
Section 13.1. LIMITED WARRANTY. Subject to the limitations set forth in this
Agreement, for a period of one (1) year from the date PeopleSoft or its
Distributors deliver the BuySite Product ("Warranty Period"), Commerce One
warrants only to PeopleSoft that the BuySite Products when properly adapted,
installed, and used will substantially conform to the specifications in the
documentation in effect when the BuySite Products are shipped to PeopleSoft.
Commerce One's warranty and obligation is solely for the benefit of PeopleSoft,
who has no authority to extend this warranty to any other person or entity.
COMMERCE ONE MAKES NO WARRANTY THAT ALL ERRORS OR FAILURES WILL BE CORRECTED. As
PeopleSoft's exclusive remedy, Commerce One will use all reasonable efforts to
timely correct nonconformities of the BuySite Products within the warranty set
forth in this Section 13.1 above.
Section 13.2. EXCLUSIVE WARRANTY. EXCEPT AS
EXPRESSLY SET FORTH IN SECTION 13.1 ABOVE, COMMERCE ONE MAKES NO OTHER
REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE HEREUNDER, AND COMMERCE ONE EXPRESSLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
Section 13.3. DEFECTS NOT COVERED BY WARRANTIES. Commerce One shall have no
obligations under the warranty provisions set forth in Section 13.1 for
nonperformance of Commerce One's warranty obligations if any nonconformance is
caused in whole or in part by: accident; transportation; neglect or misuse;
alteration, modification, or enhancement of the BuySite Products or
incorporation, interfacing, attachment of any feature, program or device to the
BuySite Products by a person or entity other than Commerce One or as authorized
by Commerce One; failure to install or implement according to Commerce One's
installation or implementation guidelines; use of the BuySite Products for other
than the specific purpose for which the BuySite Products are designed; use of
the
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BuySite Products on any systems other than the specified hardware platform for
such BuySite Products; or use of defective media or defective duplication of the
BuySite Products by PeopleSoft.
Section 13.4. PATENT CLAIMS. As of the Effective Date and to the knowledge of
Commerce One, there are no pending or threatened patent infringement claims.
Section 13.5. OTHER. Each party (the "Warranting Party") warrants to the other
party as of the Effective Date and on a continuing basis that:
(a) CORPORATE AUTHORITY. The Warranting Party has the right to enter this
Agreement, is a corporation duly organized, validly existing, and in good
standing under the laws of the state of its incorporation set forth on page one
hereof, has the power and authority, corporate and otherwise, to execute and
deliver this Agreement and to perform its obligations hereunder, and has by all
necessary corporate action duly and validly authorized the execution and
delivery of this Agreement and the performance of its obligations hereunder.
(b) BINDING OBLIGATION. This Agreement is the valid and legally binding
obligation of the Warranting Party in accordance with its terms, subject to
bankruptcy, reorganization, insolvency, moratorium and similar laws and to
general principles of equity which are within the discretion of courts of
applicable jurisdiction.
(c) NO CONFLICTS. The execution, delivery and performance by the Warranting
Party of this Agreement and each other agreement, document, or instrument now or
hereafter executed and delivered by the Warranting Party pursuant thereto or in
connection herewith will not: (i) conflict with or violate the articles or
certificate of incorporation or by-laws of the Warranting Party or any provision
of any law, rule, regulation, authorization or judgment of any governmental
authority having applicability to the Warranting Party or its actions; or (ii)
conflict with or result in any breach of, or constitute a default under, any
note, security agreement, commitment, contract or other agreement, instrument or
undertaking to which the Warranting Party is a party or by which any of its
property is bound.
ARTICLE 14.
INDEMNIFICATION
Section 14.1. PEOPLESOFT INDEMNIFICATION. Commerce One agrees that PeopleSoft
has the right to defend, or at its option to settle, and PeopleSoft agrees, at
its own expense, to defend or at its option to settle, any third party claim,
suit or proceeding (collectively, "Action") brought against Commerce One to the
extent such Action results from infringement by the PeopleSoft Product or any
PeopleSoft trademark of any United States patent, or any copyright, trade secret
or trademark worldwide ("PeopleSoft Intellectual Property Rights"), subject to
the limitations hereinafter set forth. PeopleSoft will have sole control of any
such Action or settlement negotiations, and PeopleSoft agrees to pay, subject to
the limitations hereinafter set forth, any settlement amounts or final judgment
entered against Commerce One on such issue in any such Action defended and/or
settled by PeopleSoft. Commerce One agrees that PeopleSoft will be relieved of
the foregoing obligations
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unless Commerce One notifies PeopleSoft promptly in writing of such Action,
gives PeopleSoft sole control and authority to proceed as contemplated herein,
and gives PeopleSoft reasonably proper and full information and reasonable
assistance to settle and/or defend any such Action. If it is adjudicatively
determined, or if PeopleSoft believes, that the PeopleSoft Products, or any part
thereof, infringe any PeopleSoft Intellectual Property Rights, or if the sale or
use of the PeopleSoft Products, or any part thereof, is, as a result, enjoined,
then PeopleSoft may, at its election, option, and expense: (i) procure for
Commerce One the right under such PeopleSoft Intellectual Property Rights to
sell or use, as appropriate, the PeopleSoft Products or such part thereof; or
(ii) replace PeopleSoft Products, or part thereof, with other noninfringing
suitable PeopleSoft Products or parts; or (iii) suitably modify the PeopleSoft
Products, PeopleSoft trademark, or part thereof to become noninfringing without
materially altering the performance or functionality; or (iv) remove the
PeopleSoft Products, or part thereof, terminate Distribution or sale thereof and
refund the payments paid by Commerce One for such PeopleSoft Products less a
prorata amount computed over a three year period using straight line
depreciation. PeopleSoft will not be liable for any costs or expenses incurred
without its prior written authorization, or for any installation costs of any
replaced PeopleSoft Products.
Section 14.2. COMMERCE ONE INDEMNIFICATION. PeopleSoft agrees that Commerce One
has the right to defend, or at its option to settle, and Commerce One agrees, at
its own expense, to defend or at its option to settle, any third party claim,
suit or proceeding (collectively, "Action") brought against PeopleSoft to the
extent such Action results from infringement by the BuySite Products or
MarketSite Direct Services of any United States patent, or any copyright, trade
secret or trademark worldwide (" Commerce One Intellectual Property Rights"),
subject to the limitations hereinafter set forth. Commerce One will have sole
control of any such Action or settlement negotiations, and Commerce One agrees
to pay, subject to the limitations hereinafter set forth, any settlement amounts
or final judgment entered against PeopleSoft on such issue in any such Action
defended and/or settled by Commerce One. PeopleSoft agrees that Commerce One
will be relieved of the foregoing obligations unless PeopleSoft notifies
Commerce One promptly in writing of such Action, gives Commerce One sole control
and authority to proceed as contemplated herein, and gives Commerce One
reasonably proper and full information and reasonable assistance to settle
and/or defend any such Action. If it is adjudicatively determined, or if
Commerce One believes, that the BuySite Products or MarketSite Direct Services,
or any part thereof, infringe any Commerce One Intellectual Property Rights, or
if the sale or use of the BuySite Products or MarketSite Direct Services, or any
part thereof, is, as a result, enjoined, then Commerce One may, at its election,
option, and expense: (i) procure for PeopleSoft the right under such Commerce
One Intellectual Property Rights to sell or use, as appropriate, the BuySite
Products or MarketSite Direct Services or such part thereof; or (ii) replace the
BuySite Products or MarketSite Direct Services, or part thereof, with other
noninfringing suitable BuySite Products or MarketSite Direct Services or parts;
or (iii) suitably modify the BuySite Products, MarketSite Direct Services,
Commerce One Trademark, or part thereof to become noninfringing without
materially altering the performance or functionality; or (iv) remove the BuySite
Products or MarketSite Direct Services, or part thereof, terminate Distribution
or sale thereof and refund the payments paid by PeopleSoft for such BuySite
Products or MarketSite Direct Services less a prorata amount computed over a
three year period using straight line depreciation provided however, during the
first twelve months of this Agreement, such prorata
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deduction shall not apply. Commerce One will not be liable for any costs or
expenses incurred without its prior written authorization, or for any
installation costs of any replaced BuySite Products or MarketSite Direct
Services.
Section 14.3. LIMITATIONS. Notwithstanding the provisions of Section 14.2 above,
Commerce One shall have no liability for (i) any infringement claims alleging
infringement by BuySite Products, MarketSite Direct Services or other completed
equipment or any assembly, circuit, combination, method or process in which any
of the BuySite Products or MarketSite Direct Services may be used but not
covering the BuySite Products or MarketSite Direct Services standing alone; (ii)
any trademark infringements involving any marking or branding not applied by or
requested by Commerce One, or involving any marking or branding applied by
Commerce One at the request of PeopleSoft; or (iii) any modification of the
BuySite Products or MarketSite Direct Services, or part thereof, (unless such
modification was made by Commerce One or at the direction of Commerce One) where
such infringement would not have occurred but for such modifications. For
purposes of this Article 14, BuySite Products shall exclude the Connectors.
Section 14.4. LIMITATIONS. Notwithstanding the provisions of Section 14.1 above,
PeopleSoft shall have no liability for (i) any infringement claims alleging
infringement by PeopleSoft Products or other completed equipment or any
assembly, circuit, combination, method or process in which any of the PeopleSoft
Products may be used but not covering the PeopleSoft Products standing alone;
(ii) any trademark infringements involving any marking or branding not applied
by or requested by PeopleSoft, or involving any marking or branding applied by
PeopleSoft at the request of Commerce One; or (iii) any modification of the
PeopleSoft Products, or part thereof, (unless such modification was made by
PeopleSoft or at the direction of PeopleSoft) where such infringement would not
have occurred but for such modifications. For purposes of this Article 14,
PeopleSoft Products shall exclude the Connectors.
Section 14.5. DISCLAIMER. THE FOREGOING PROVISIONS OF
THIS ARTICLE 14 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF COMMERCE ONE AND
PEOPLESOFT AND THE EXCLUSIVE REMEDY OF PEOPLESOFT AND ITS END USERS, AND
COMMERCE ONE, RESPECTIVELY, WITH RESPECT TO ANY ALLEGED INTELLECTUAL PROPERTY
RIGHT INFRINGEMENT BY THE MARKETSITE INDIRECT SERVICES, BUYSITE PRODUCT OR
PEOPLESOFT PRODUCTS.
ARTICLE 15.
LIMITATION OF LIABILITY
Section 15.1. With the exception of any infringement or other violation of
Intellectual Property Rights through a breach under Sections 3.1(a), (b), (c),
(e), (f), or a breach of Article 7 (including Attachment B), and Articles 12 and
14, either Party's entire liability to the other party arising out of or
relating to this Agreement, the BuySite Products and the MarketSite Services and
associated software, or the use or operation of any of the foregoing products or
documentation shall not exceed the amount received, in the aggregate, by
Commerce One and PeopleSoft during the prior twelve (12) month period from the
date the claim arose. For the avoidance of doubt, the perpetual nature of
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Section 11 of Attachment B is excluded from the foregoing limitation.
Notwithstanding the foregoing and subject to Section 16.4(c) below, the entire
liability of Commerce One to PeopleSoft arising out of the breach of Section 9.3
or Section 13.1 herein by Commerce One and the entire liability of either party
to the other party arising out of the breach of Section 5.1, 5.3 and 5.4 herein
shall be limited to two (2) times the aggregate amounts paid under this
Agreement. The foregoing exception is not intended to apply to non-conformance
of the BuySite Product to the specifications under Section 13.1.
Section 15.2. IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS OR LICENSORS BE
LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF USE OR
DATA, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED
HEREIN), OR FOR ANY CLAIM AGAINST SUCH PARTY BY ANY THIRD PARTY.
ARTICLE 16.
TERM AND TERMINATION
Section 16.1. TERM. This Agreement shall commence upon the Effective Date and
continue in full force and effect for five years, unless earlier terminated in
accordance with the provisions of this Agreement. Thereafter, this Agreement may
be renewed upon mutual written agreement of the Parties.
Section 16.2. TERMINATION FOR CAUSE. This Agreement may be terminated by either
party by written notice of termination effective immediately if the other party
breaches any material term or condition of this Agreement and fails to remedy
the breach within thirty (30) days after being given written notice thereof
stating the non-breaching party's intent to terminate.
Section 16.3. NO LIABILITY FOR TERMINATION. Except as expressly required by law,
in the event of termination of this Agreement by either party in accordance with
any of the provisions of this Agreement, neither party shall be liable to the
other, solely because of such termination, for compensation, reimbursement or
damages on account of the loss of prospective profits or anticipated sales or on
account of expenditures, inventory, investments, leases or commitments in
connection with the business or goodwill of Commerce One or PeopleSoft.
Termination shall not, however, relieve either party of obligations incurred
prior to the termination.
Section 16.4. EFFECT OF TERMINATION; SURVIVAL. PeopleSoft may Distribute access
to the MarketSite Services after the effective date of such termination and the
provisions of Articles 2, 7, 8, 11, 12, 13 (except 13.5(c)) , 14, 15, 16and 18,
Section 3.1(g) and Attachment B of Section 7 hereof shall survive termination of
this Agreement. It is understood and agreed that End User Licenses shall survive
in accordance with their terms and PeopleSoft's license to use the BuySite
Products and the MarketSite Services and associated software solely for support
purposes pursuant to Section 9.3 and Attachment E shall survive during the term
of such End User Licenses.
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(a) RETURN OF MATERIALS TO COMMERCE ONE. All BuySite Products and
MarketSite Services and associated software, trademarks, marks, trade names,
patents, copyrights, designs, drawings, formulas or other data, photographs,
samples, literature, and sales and promotional aids of every kind shall remain
the property of Commerce One. Within thirty (30) days after the effective date
of termination of this Agreement, PeopleSoft shall at Commerce One's option
destroy all tangible items bearing, containing, or contained in, any of the
foregoing in its possession or control, and provide written certification of
such destruction, or prepare such tangible items for shipment to Commerce One or
Commerce One's designee, as Commerce One may direct, at Commerce One's expense.
PeopleSoft shall not make or retain any copies of any Confidential Information
(as defined in Article 12 above) which may have been entrusted to it. The
parties shall meet and negotiate in good faith a mutually acceptable plan to
transition support and maintenance for the existing End Users.
(b) RETURN OF MATERIALS TO PEOPLESOFT. All PeopleSoft Products, trademarks,
marks, trade names, patents, copyrights, designs, drawings, formulas or other
data, photographs, samples, literature, and sales and promotional aids of every
kind shall remain the property of PeopleSoft. Within thirty (30) days after the
effective date of termination of this Agreement, Commerce One shall at
PeopleSoft's option destroy all tangible items bearing, containing, or contained
in, any of the foregoing in its possession or control, and provide written
certification of such destruction, or prepare such tangible items for shipment
to PeopleSoft or PeopleSoft's designee, as PeopleSoft may direct, at
PeopleSoft's expense. Commerce One shall not make or retain any copies of any
Confidential Information (as defined in Article 12 above) which may have been
entrusted to it. The parties shall meet and negotiate in good faith a mutually
acceptable plan to transition support and maintenance for the existing End
Users.
(c) THE PROVISION OF SECTION 15 THAT EXCLUDES SUPPORT SERVICES SET FORTH IN
SECTION 9.3 FROM THE LIMITATION OF DAMAGES SHALL NOT SURVIVE TERMINATION OF THIS
AGREEMENT AND SHALL NOT APPLY TO ANY PLAN TO TRANSITION SUPPORT AND MAINTENANCE
UNDER THIS ARTICLE 16.
ARTICLE 17.
COMPLIANCE WITH LAWS
Section 17.1. EXPORT CONTROL. Each Party understands and acknowledges that the
other party is subject to regulation by agencies of the United States
Government, including, but not limited to, the U.S. Department of Commerce,
which prohibit export or diversion of certain products and technology to certain
countries. Any and all obligations of Commerce One to provide the BuySite
Products and the MarketSite Services and associated software, as well as any
other technical information or assistance or of PeopleSoft to provide the
PeopleSoft Product as well as any other technical information or assistance
shall be subject in all respects to such laws and regulations as shall from time
to time govern the license and delivery of technology and products abroad by
persons subject to the jurisdiction of the United States, including without
limitation the U.S. Export Administration Act of 1979, as amended, any successor
legislation, and the Export Administration Regulations issued by the U.S.
Department of Commerce, Bureau of Export Administration. Each party agrees to
cooperate with the other including without limitation, providing required
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documentation, in order to obtain export licenses or exemptions therefrom. Each
party warrants that it will comply with the U.S. Export Administration
Regulations and other laws and regulations governing exports in effect from time
to time.
Section 17.2. GOVERNMENTAL APPROVALS. Each party represents and warrants that it
has obtained or will obtain all required approvals of the applicable government
worldwide in connection with this Agreement and that the provisions of this
Agreement and the rights and obligations of the parties hereunder, are
enforceable under the applicable laws.
ARTICLE 18.
MISCELLANEOUS PROVISIONS
Section 18.1. INDEPENDENT CONTRACTORS. The relationship of Commerce One and
PeopleSoft established by this Agreement is that of independent contractors, and
neither party is an employee, agent, partner or joint venturer of the other. All
financial obligations associated with PeopleSoft's business are the sole
responsibility of PeopleSoft. All sales and other agreements between PeopleSoft
and its End Users are PeopleSoft's exclusive responsibility and will have no
effect on PeopleSoft's obligations under this Agreement. All financial
obligations associated with Commerce One's business are the sole responsibility
of Commerce One. All sales and other agreements between Commerce One and its End
Users are Commerce One's exclusive responsibility and will have no effect on
Commerce One's obligations under this Agreement.
Section 18.2. ASSIGNMENT. Except as set forth in this Section 18.2 below,
neither party shall transfer or assign its this Agreement without the prior
written consent of the other party and any purported assignment in violation of
the foregoing shall be null and void. Either party shall have the right to
assign this Agreement, or any of its rights or obligations hereunder, to any
successor in interest to all or substantially all of such party's business or
assets related to this Agreement or to a wholly owned subsidiary. Subject to the
foregoing, this Agreement will be binding upon and inure to the benefit of the
parties hereto, their successors and assigns. It is understood and agreed that
the parties may use subcontractors to perform their obligations hereunder
provided that such party remains responsible for performance of all its
obligations hereunder
Section 18.3. INDEMNITY
(a) PEOPLESOFT INDEMNITY. Except for warranty claims for which Commerce One
is liable under Article 13 and infringement claims covered by Article 14, at
Commerce One's request, PeopleSoft agrees to indemnify and hold Commerce One
harmless against any cost, loss, liability or expense (including attorneys'
fees) arising out of third party claims against Commerce One relating to
PeopleSoft's reproduction, use, Distribution, modification or creation of
Derivative Works of the BuySite Products; provided that with respect to third
party claims brought against Commerce One, Commerce One promptly notifies
PeopleSoft of such claim, gives PeopleSoft control over the defense and/or
settlement of such claims and Commerce One gives PeopleSoft reasonable
information and assistance with respect to such claims at PeopleSoft's expense.
Commerce One
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may participate in the defense and/or settlement of any actions
covered under this Section 18.3 at its own expense with counsel of its own
choosing.
(b) COMMERCE ONE INDEMNITY. Except for warranty claims for which
PeopleSoft is liable under Article 13 and infringement claims covered by
Article 14, at PeopleSoft's request, Commerce One agrees to indemnify and
hold PeopleSoft harmless against any cost, loss, liability or expense
(including attorneys' fees) arising out of third party claims against
PeopleSoft relating to Commerce One's reproduction, use, Distribution,
modification or creation of Derivative Works of the PeopleSoft Products;
provided that with respect to third party claims brought against PeopleSoft,
PeopleSoft promptly notifies Commerce One of such claim, gives Commerce One
control over the defense and/or settlement of such claims and PeopleSoft
gives Commerce One reasonable information and assistance with respect to such
claims at Commerce One's expense. PeopleSoft may participate in the defense
and/or settlement of any actions covered under this Section 18.3 at its own
expense with counsel of its own choosing.
Section 18.4. NON-SOLICITATION. Until twenty-four (24) months after the
expiration of the Joint Development Agreement, each party agrees not to solicit
the employment of the other party's employees without the prior written consent
of such party. For this purpose, using general advertisement, employment
agencies, and the like, to which the other party's employees may respond on
their own initiative, shall not constitute "solicitation."
Section 18.5. NO IMPLIED WAIVERS. The failure of either party at any time to
require performance by the other of any provision hereof shall not affect the
right of such party to require performance at any time thereafter, nor shall the
waiver of either party of a breach of any provision hereof be taken or held to
be a waiver of a provision itself.
Section 18.6. SEVERABILITY. If any provision of this Agreement is held to be
invalid by a court of competent jurisdiction, then the remaining provisions
will nevertheless remain in full force and effect. The parties agree to
renegotiate in good faith those provisions so held to be invalid to be valid,
enforceable provisions which provisions shall reflect as closely as possible
the original intent of the parties, and further agree to be bound by the
mutually agreed substitute provision.
Section 18.7. FORCE MAJEURE. Except for payment of monies, neither party shall
be liable for failure to fulfill its obligations under this Agreement or any
purchase order issued hereunder or for delays in delivery due to causes beyond
its reasonable control, including, but not limited to, acts of God, man-made or
natural disasters, earthquakes, fire, riots, flood, material shortages, strikes,
delays in transportation or inability to obtain labor or materials through its
regular sources. The time for performance of any such obligation shall be
extended for the time period lost by reason of the delay.
Section 18.8. CONFLICTING TERMS. The parties agree that the terms and conditions
of this Agreement shall prevail, notwithstanding contrary or additional terms,
in any purchase order, sales acknowledgment, confirmation or any other document
issued by either party effecting the purchase and/or sale of the BuySite
Products, the MarketSite Services or the PeopleSoft Products.
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Section 18.9. LIABILITY OF EITHER PARTY. The provisions of this Agreement under
which the liability of either party is excluded or limited shall not apply to
the extent that such exclusions or limitations are declared illegal or void
under the laws applicable worldwide in which the Products or the MarketSite
Services are sold, unless the illegality or invalidity is cured under the laws
of the Territory by the fact that the law of the State of California, U.S.A.,
governs this Agreement.
Section 18.10. FOREIGN CORRUPT PRACTICES ACT. In conformity with the United
States Foreign Corrupt Practices Act and with the party's established corporate
policies regarding foreign business practices, the parties and their employees
and agents shall not directly or indirectly make any offer, payment, or promise
to pay; authorize payment; nor offer a gift, promise to give, or authorize the
giving of anything of value for the purpose of influencing any act or decision
of an official of any government worldwide or the United States Government
(including a decision not to act) or inducing such a person to use his or her
influence to affect any such governmental act or decision in order to assist
such party in obtaining, retaining or directing any such business.
Section 18.11. NOTICE. Any notice required or permitted to be given under this
Agreement shall be delivered (i) by hand, (ii) by registered or certified mail,
postage prepaid, return receipt requested, to the address of the other party
first set forth above, or to such other address as a party may designate by
written notice in accordance with this Section 18.11, with a copy to each
parties' General Counsel, (iii) by overnight courier, or (iv) by fax with
confirming letter mailed under the conditions described in (ii) above. Notice so
given shall be deemed effective when received, or if not received by reason of
fault of addressee, when delivered.
Section 18.12. GOVERNING LAW. This Agreement shall be governed by and construed
under the law of the State of California, U.S.A., without regard to conflict of
laws principles or the U.N. Convention on Contracts for the International Sale
of Goods.
Section 18.13. DISPUTES.
(a) ESCALATION. If Commerce One and PeopleSoft, are unable to resolve any
dispute, controversy or claim arising out of this Agreement between them, either
Commerce One or PeopleSoft may, by written notice to the other, first have such
dispute referred to the Vice President, Business Development (or equivalent) of
Commerce One and PeopleSoft, for attempted resolution by good faith negotiations
within five (5) business days after such notice is received. If not resolved
within such five (5) business day period, the parties shall escalate the dispute
their respective Chief Operating Officer (or equivalent) for resolution within
fifteen (15) business days after expiration of the initial five day period.
Unless otherwise mutually agreed, the negotiations between the designated
officers shall be conducted by face-to-face meetings within five (5) business
days and at times within the period stated above offered by the designated
officer of PeopleSoft to the designated officer of Commerce One for
consideration. If the parties are unable to resolve such dispute in accordance
with the aforementioned procedure or within such thirty (30) day period, either
party shall have the right to pursue settlement of such dispute as set forth in
Section 18.13(c).
(b) (b) Subject to Section 18.13(c) below, the parties agree that any suit
or proceeding brought in connection with, arising out of or relating to, this
Agreement shall be instituted only in a
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court of law located in the County of Santa Clara, State of California, U.S.A.,
and the parties hereby irrevocably agree and submit to the jurisdiction and
venue of any such proceeding and agree that service of process may be effected
in the same manner notice is given hereunder. Moreover, in the event that the
either party brings suit in a Federal court, the other party agrees not to
request removal of such suit to a State court.
(c) Arbitration. Any dispute or claim arising with respect to Sections
3.1(h), 4.1(a), or 5.8 of this Agreement, or the interpretation, making,
performance, breach or termination thereof, shall be finally settled by binding
arbitration under the Rules of the American Arbitration Association as presently
in force ("Rules") and by one (1) arbitrator mutually agreed upon the parties or
if not agreed, than appointed in accordance with said Rules; provided however
that either party may elect to have the dispute resolved by three (3)
arbitrators in which event each party shall appoint one of the arbitrators and
the third arbitrator will be appointed by the first two arbitrators. Judgment on
the award rendered may be entered in any court having jurisdiction thereof. The
place of arbitration shall be San Francisco, California, U.S.A. Any monetary
award shall be in U.S. dollars and the arbitration shall be conducted in the
English language. The parties may apply to any court of competent jurisdiction
for temporary or preliminary injunctive relief, without breach of this Section
18.13 and without any abridgment of the powers of the arbitrator. The arbitrator
shall have thirty days to resolve the dispute after submission of the issue to
arbitration and appointment of the arbitrator(s) as set forth above.
(d) Attorneys Fees. If any dispute arises under this Agreement, the
prevailing party shall be entitled to receive its reasonable legal fees and
costs associated therewith as part of the court proceeding or arbitration.
Section 18.14. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements relating thereto, written or oral, between the
parties. Amendments to this Agreement must be in writing, signed by the duly
authorized officers of the parties. The terms of any purchase order are
expressly excluded.
Section 18.15. REMEDIES. Unless otherwise specifically referred to herein,
nothing in this Agreement shall be deemed to limit either party's right to any
remedy under this Agreement.
Section 18.16. ATTACHMENTS. The following Attachments are attached to
and form a part of this Agreement:
Attachment A- BuySite Product Descriptions
Attachment B - Pricing, Payment Schedules and Deliverables
Attachment C - Commerce One Trademarks
Attachment D - Commerce One End User License Agreement
Attachment E - OEM Maintenance and Support
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Attachment F - PeopleSoft Products
Attachment G - Named Accounts
Attachment H - Specified Companies
Attachment I - Minimum Targets
Attachment J - PeopleSoft Distribution Channels
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to enter into this Agreement effective on the Effective Date.
Commerce One PeopleSoft, Inc.
By: Robert M. Tarkoff By: Craig Conway
------------------------------------ --------------------------------
Signature: /s/ Robert M. Tarkoff Signature: /s/ Craig Conway
----------------------------- -------------------------
Title: Vice President & General Counsel Title: President, CEO
--------------------------------- -----------------------------
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ATTACHMENT A
BUYSITE PRODUCT DESCRIPTIONS
----------------------------
The BuySite Product shall offer web-based procurement capabilities that are
designated to enable companies to reduce their indirect goods purchasing
costs while increasing their overall supply chain efficiency. Cost
reductions are achieved through user-friendly application functionality
designed to reduce off-contract, or "rogue," purchases, automate manual
processes, improve leverage with suppliers and provide links to a dynamic
trading community.
<PAGE>
ATTACHMENT B
PRICING, PAYMENT SCHEDULES AND DELIVERABLES
-------------------------------------------
DEFINITIONS.
1. "PeopleSoft Net Fees" means the actual amount of license fees,
royalties or other consideration received by PeopleSoft with respect to the
BuySite Products or PeopleSoft Products, or with respect to the licensing,
sublicensing, or other Distribution of the BuySite Products or the PeopleSoft
Product. PeopleSoft Net Fees shall include, without limitation, the
following sources of revenue that may be payable to PeopleSoft under this
Agreement: (a) revenues generated with respect to providing access to or use
of any or all of the BuySite or PeopleSoft Products offered on a hosted
basis, (b) revenues generated from buyers and suppliers with respect to
transactions performed using such hosted versions of the BuySite Product or
the PeopleSoft Product, as applicable, and (c) any other revenues derived
from the license or use of the BuySite and PeopleSoft Products. In each case
set forth above, PeopleSoft Net Fees shall exclude sales, use and value-added
taxes, third party software royalty payments (excluding royalties owed
herein), imputed fees for bundled maintenance, and training and consulting
services (not to exceed PeopleSoft's standard published prices for such
services). In addition, barter, equity or other noncash consideration
received shall be valued at fair market value.
2. "MarketSite Direct Fees" means the actual amount of license fees,
royalties or other consideration received by Commerce One with respect to the
MarketSite Direct Service, not including license revenue received for
licensing the MarketSite technology to MarketSite Service providers.
MarketSite Direct Fees shall include, without limitation, the following
sources of revenue that may be payable to Commerce One under this Agreement:
(a) revenues generated with respect to providing access to or use of any or
all of the MarketSite Direct Services, (b) revenues generated from buyers and
suppliers with respect to transactions performed using such MarketSite Direct
Services, and (c) any other revenues derived from the use of the MarketSite
Direct Services. In each case set forth above, MarketSite Direct Fees shall
exclude sale, use and value-added taxes, third party software royalty
payments (excluding royalties owed herein), imputed fees for bundled BuySite
software, maintenance, training and consulting services (not to exceed
Commerce One's standard published prices for such services), and any one-time
installation charges, adoption fees, or professional services fees payable
to Commerce One by suppliers. In addition, barter, equity or other noncash
consideration received shall be valued at fair market value.
"MarketSite Indirect Fees" means the actual amount of license fees,
royalties or other consideration received by Commerce One with respect to the
MarketSite Indirect Services, not including license revenue received for
licensing the MarketSite technology to MarketSite Service providers.
MarketSite Indirect Fees shall include, without limitation, the following
sources of revenue that may be payable to Commerce One under this Agreement:
(a)
<PAGE>
revenues generated with respect to providing access to or use of any or all
of the MarketSite Indirect Services, (b) revenues generated from buyers and
suppliers with respect to transactions performed using such MarketSite
Indirect Services, and (c) any other revenues derived from the use of the
MarketSite Indirect Services. In each case set forth above, MarketSite
Indirect Fees shall exclude sale, use and value-added taxes, third party
software royalty payments (excluding royalties owed herein), imputed fees for
bundled BuySite software, bundled maintenance, training and consulting
services (not to exceed Commerce One's standard published prices for such
services). In addition, MarketSite Indirect Fees shall also exclude any
one-time installation charges, adoption fees, and professional service fees
received by Commerce One from suppliers. In addition, barter, equity or
other noncash consideration received shall be valued at fair market value.
4. First Commercial Shipment shall mean the date upon which PeopleSoft
first initiates shipment of the PeopleSoft Product to commercial customers,
which shall not include limited beta release at selected customer sites.
5. ROYALTIES. Royalties for Products Distributed shall be paid in
accordance with this Attachment B and Article 8 and 9 of this Agreement.
6. ADVANCE ROYALTY. PeopleSoft shall pay an advance prepaid,
nonrefundable Product royalty, which shall be fully creditable against
royalties otherwise due and payable to Commerce One under this Agreement.
Beginning on the Effective Date, PeopleSoft's right to credit against prepaid
Product royalties shall expire at the following rate: (a) $[*] upon
the expiration of two years from the Effective Date, and (b) an additional
$[*] per annum thereafter. The total advance Product royalties
payable shall be [*], which shall be paid on the terms and condition set
forth below:
(a) Within ten (10) days of the Effective Date, PeopleSoft shall
pay [*] to Commerce One;
(b) Within thirty (30) days of delivery and Acceptance of the
Deliverable for BuySite 6.0p (as defined in the Joint Development
Agreement of even date herewith), which acceptance shall not be
unreasonably withheld and shall be subject to the arbitration provisions
of the Joint Development Agreement of even date. PeopleSoft shall pay [*]
to Commerce One; and
(c) Within thirty (30) days of the earlier to occur of (a) the
First Commercial Shipment of the PeopleSoft PSBN Product or, (b)
eighteen months (18) from the Effective Date, PeopleSoft shall pay [*]
to Commerce One.
7. ROYALTIES FOR BUYSITE PRODUCTS. The royalty payable to Commerce One
for Distribution of the BuySite Products licensed hereunder pursuant to Section
3.1 of the Agreement shall be as follows:
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
<PAGE>
(a) PeopleSoft shall pay Commerce One [*]of all PeopleSoft Net
Fees received for Distribution of the BuySite Product beginning on the
Effective Date and continuing through the term of this Agreement
(subject to continuing payments under Section 9 below).
8. ROYALTIES FOR PEOPLESOFT PRODUCTS. The royalties payable by
PeopleSoft to Commerce One for Distributing the PeopleSoft Products pursuant to
Section 3 of the Agreement shall be as follows:
(a) [*] of all PeopleSoft Net Fees received for the first year of
this Agreement ("Initial Period") for Distributing PeopleSoft Products;
(b) beginning upon the later of (i) the end of the Initial Period,
or (ii) the First Commercial Shipment of the PeopleSoft Product, a rate
to be negotiated at such time, but in no event greater than [*] of all
PeopleSoft Net Fees received;
(c) For PeopleSoft Product developed and licensed after the
termination of the Joint Development Agreement, [*] beginning one year
from the date of First Commercial Shipment of the PeopleSoft Product and
continuing through the remaining term of the Agreement (subject to
continuing payment obligations under Section 9 below), provided that
such PeopleSoft Product incorporates any portion of the Commerce One
BuySite Product Source Code.
9. In the event PeopleSoft Distributes the PeopleSoft Products on a
subscription model (e.g. fees are to be paid over the term of agreement with
the customer), PeopleSoft shall calculate the royalties payable to Commerce
One on the basis of aggregate amounts owed to PeopleSoft by the customer over
the term of the agreement between PeopleSoft and the customer, provided,
however that such payments shall be made to Commerce One only upon receipt of
payment to PeopleSoft by the customer. Without limiting the foregoing, and
subject to Section 15 of the Agreement, such payment obligations will
continue to be made by PeopleSoft to Commerce One beyond the termination of
this Agreement, if necessary to meet the obligations set forth above in this
paragraph.
Without limiting the foregoing, if PeopleSoft enters into a
limited term license or subscription access agreement with a customer during
the term of this Agreement, Commerce One shall have continuing rights to
royalties during the term of such agreement or any contract renewal with such
customer; provided that if such contract renewal extends beyond the term of
this Agreement, PeopleSoft shall only be obligated to pay royalties to
Commerce One during no more than three (3) years after the date such limited
term license or subscription agreement is entered into or renewed prior to
the termination of this Agreement.
10. In the event Commerce One has a BuySite customer who wants to switch
to
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
<PAGE>
the PeopleSoft Product during the term of the Agreement, PeopleSoft agrees
to negotiate in good faith with such customer the terms and conditions under
which that customer may license the PeopleSoft Product. Any PeopleSoft Net
Fees received from such customers who switch to the PeopleSoft Products shall
be subject to the applicable royalty payable to Commerce One. PeopleSoft
shall not be entitled, however, to receive any MarketSite Direct Fees or
MarketSite Indirect Fees, as applicable, from such customers who switch to
PeopleSoft Products during the term of this Agreement.
11. In the event PeopleSoft has a customer using the PeopleSoft Product
or the BuySite Product who wants to switch to another third party procurement
application during the term of this Agreement, PeopleSoft shall continue to
be entitled to the applicable royalty set forth in the Section titled
"MarketSite Royalties" below, of either the MarketSite Direct Fees or
MarketSite Indirect Fees, as applicable, attributable to such customer,
provided that if such customer does not renew their agreement with either
Commerce One or PeopleSoft prior to the twelve (12) month expiration of the
initial termination of the customer license agreement, any subsequent fees
derived with respect to such customer shall not be included in the royalties
otherwise owed to PeopleSoft by Commerce One hereunder.
12. MARKETSITE ROYALTIES: Commerce One shall pay to PeopleSoft the
following royalties on all PeopleSoft customers who enter into access
agreements for the MarketSite Services during the term of the Agreement in
accordance with Section 7 of the Agreement:
(a) [*] of all MarketSite Indirect Fees and [*] of all MarketSite
Direct Fees, as applicable (including any recurring or perpetual fees) received,
directly or indirectly, from (i) End Users who license the BuySite Product or
PeopleSoft Product from PeopleSoft either directly or through its Distributors
during the term of this Agreement or (ii) End Users to whom PeopleSoft has sold
access subscriptions to MarketSite Services.
(b) These MarketSite royalty payment obligations shall survive in
perpetuity in the event the End User replaces the PeopleSoft PSBN Product with
a third party hosted procurement product which interconnects with Commerce One
MarketSite Product and shall also survive in perpetuity the expiration or
termination of this Agreement, but only for End Users licensed by PeopleSoft,
directly or indirectly, prior to the expiration or termination of this
Agreement.
(c) Notwithstanding the foregoing provisions of this Section, if
PeopleSoft enters into a license agreement for a Product with an End User who
later obtains access to a MarketSite Service, or PeopleSoft enters into a
MarketSite access agreement with an End User for a Product, and such End User
ceases to use such MarketSite Service for twelve (12) months or more, any
MarketSite Direct Fees or MarketSite Indirect Fees with respect to such End User
shall not be included for purposes of calculating the MarketSite royalty
otherwise payable to Commerce One hereunder.
13. MAINTENANCE AND SUPPORT FEES. PeopleSoft agrees to pay to Commerce
One maintenance and support fees according to the following schedule:
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
<PAGE>
(a) [*] of all maintenance and support received by PeopleSoft for any
BuySite Product licenses where the maintenance and support
obligation is in effect and Commerce One has a continuing
maintenance and support obligation.
(b) [*] of all maintenance and support fees received by PeopleSoft for
any PeopleSoft Product licenses where the maintenance and support
obligation is in effect and Commerce One has a continuing
maintenance support obligation.
(c) No maintenance fees shall be paid by PeopleSoft to Commerce One on
PeopleSoft Products that Commerce One has no continuing obligation
to provide maintenance and support, provided that Commerce One
shall receive compensation on a time and materials basis.
All such maintenance and support fees referenced above shall be due
quarterly within thirty (30) days after the end of each calendar quarter with
respect to maintenance and support fees received by PeopleSoft for such quarter.
PeopleSoft shall report such maintenance and support fees in the quarterly
royalty report required hereunder.
14. MINIMUM ROYALTIES PAYABLE TO COMMERCE ONE. In the event a license
is granted pursuant to this Agreement, the minimum royalty payable to
Commerce One for the BuySite Product or PeopleSoft Product licensed shall be
the lesser of (a) [*] of the Commerce One then current list price multiplied
by the applicable then current royalty rate or (b) in the event the
PeopleSoft Products are Distributed as part of a multiple product sale, the
average blended discount offered by PeopleSoft for each of the Products
offered within the applicable transaction. Notwithstanding the foregoing,
PeopleSoft shall have the right to review Commerce One's actual pricing for
the prior six (6) months to determine whether the Commerce One list price
shall be equitably adjusted, which adjustment will not be unreasonably
withheld by Commerce One.
15. ROYALTY ESCALATION. Within thirty (30) days of the end of each
calendar quarter, PeopleSoft shall report to Commerce One the following
information: (a) the number of End User Licenses entered into for the
PeopleSoft Product during the prior quarter, (b) the number of End User
licenses entered into for the BuySite Product during the prior quarter, and
(c) the number of access subscriptions sold by PeopleSoft for the MarketSite
Services where such End User has not licensed the PeopleSoft Product or the
BuySite Product from PeopleSoft or its Distributors as described in (a) and
(b) above (collectively, (a), (b) and (c) shall be defined as the "Total
Customers"). Beginning when PeopleSoft has at least 500 Total Customers, the
following adjusted royalty percentages shall apply on a going forward basis:
APPLICABLE MARKETSITE SERVICES ROYALTY PERCENTAGE
END USERS LICENSED BY PEOPLESOFT INDIRECT DIRECT
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
<PAGE>
600-699 [*] [*]
700-799 [*] [*]
800-899 [*] [*]
900-999 [*] [*]
1000 or greater [*] [*]
For the avoidance of doubt, such royalty rate adjustment shall apply on
a going forward basis to all customers who contribute to the Total Customer
calculation, and shall only apply to MarketSite Direct Services Fees or
MarketSite Indirect Services Fees invoiced after the end of the calendar
quarter in which the above-mentioned Total Customer agreements entered into.
For example, at such time the Total Customer calculation equals 800
customers, the going-forward royalty on all customers contributing to the
Total Customer calculation (800) shall be [*] and [*], as applicable.
16. REFERRAL FEES
Commerce One and PeopleSoft agree that as to the Commerce One Named
Accounts as defined in Section 5.3(a) of the Agreement, Commerce One and
PeopleSoft shall cooperatively engage in the sale of the BuySite Products.
The percentage of Net Fees payable to PeopleSoft (whether such license is
entered into by and between Commerce One or PeopleSoft and such End User)
from each such license entered into shall be as set forth below. For
purposes of this paragraph, Net Fees shall be subject to the same terms and
limitations as set forth under the definition of PeopleSoft Net Fees above:
NUMBER OF CUSTOMER NAMED ACCOUNTS PERCENTAGE OF NET FEES PAYABLE TO
PEOPLESOFT
0-5 BuySite Licenses [*] of Net Fees payable to
PeopleSoft
5-15 BuySite Licenses [*] of Net Fees payable to
PeopleSoft
15-39 BuySite Licenses [*] of Net Fees payable to
PeopleSoft
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
<PAGE>
ATTACHMENT C
COMMERCE ONE TRADEMARKS
-----------------------
The following are trademarks of Commerce One in the United States and/or
other countries:
Commerce One
Commerce Chain
BuySite
MarketSite
VEO
<PAGE>
ATTACHMENT D
SOFTWARE LICENSE AND SUPPORT AGREEMENT
This SOFTWARE LICENSE AND SUPPORT AGREEMENT (this "Agreement") is entered
into as of June 15, 1999 (the "Effective Date") by and Nihon Unisys, Ltd.
("Customer"), and Commerce One, Inc. ("C1"), and describes the terms and
conditions pursuant to which C1 shall license to Customer and support certain
Software (as defined below).
In consideration of the mutual promises and upon the terms and conditions
set forth below, the parties agree as follows:
1. DEFINITIONS
1.1 "Authorized Users" means the total number of individuals licensed to
use the Software, as specified in Schedule B.
1.2 "Confidential Information" means this Agreement and all its Schedules,
any addenda hereto signed by both parties, all Software listings,
Documentation, information, data, drawings, benchmark tests,
specifications, trade secrets, object code and machine-readable copies
of the Software, source code relating to the Software, and any other
proprietary information supplied to Customer by C1, or by Customer to
C1 and clearly marked as "confidential information", including all
items defined as "confidential information" in any other agreement
between Customer and C1 whether executed prior to or after the date of
this Agreement.
1.3 "Documentation" means any on-line help files or written instructions
manuals regarding the Use of the Software.
1.4 "Equipment" means the computer system, including peripheral equipment
and operating system software, specified in Schedule B.
1.5 "Maintenance and Support" means the services described in Section 5.
1.6 "Site" means each physical location specified in Schedule B of one or
more CPU's of the Equipment at which Customer is entitled to Use the
Software.
1.7 "Software" means the computer software programs specified in Schedule
A and otherwise provided to Customer pursuant to this Agreement.
1.8 "Update" means a set of the Software in which corrections and minor
functional enhancements have been included. Updates are registered by
means of a change of the number to the right of the decimal point,
e.g. 3.0>>3.1.
1.9 "Upgrade" means a set of the Software in which substantial new
functionalities or other substantial changes are introduced. Upgrades
are registered by means of a change of the number to the left of the
decimal point, e.g. 3.0>>4.0.
1.10 "Use" means loading, utilization, storage or display of the Software
by Customer (and such other entities as are expressly permitted by
Section 3(c)) by no more than the number of Authorized Users set forth
on Schedule B, for its own internal information processing services
and computing needs (except as expressly permitted by Section 3(c)),
by copying or transferring the same into Customer's Equipment.
<PAGE>
2. GRANT OF LICENSE.
2.1 GRANT. Subject to the terms and conditions of this Agreement, C1
hereby grants to Customer during an unlimited period of time, a
non-exclusive and non-transferable license to (a) Use the Software on
the Equipment (or with prior written notice to C1, on substitute,
upgraded, or additional equipment) and at the Site, and to make
sufficient copies as necessary for such Use, and (b) use the
Documentation in connection with Use of the Software. This license
transfers to Customer neither title nor any proprietary or
intellectual property rights to the Software, Documentation, or any
copyrights, patents, or trademarks, embodied or used in connection
therewith, except for the rights expressly granted herein.
2.2 DELIVERY. C1 shall issue to Customer, as soon as practicable, one (1)
machine-readable copy of the Software for Use at the Site only, along
with one (1) copy of the on-line Documentation. C1 will provide
Customer with written copies of the Documentation at C1's standard
charges. Customer may not copy the Documentation. Customer
acknowledges that no copy of the source code of the Software will be
provided to Customer.
2.3 EQUIPMENT. If the specified Equipment is inoperable or under repair,
Customer will be entitled to transfer the Software to substitute
Equipment at the same Site using an operating system that is supported
by C1, provided that Customer shall promptly notify C1 in writing of
the transfer. Customer will be responsible for any services required
if the Software has to be ported to an operating system that is not
supported by C1.
2.4 COPIES. Customer will be entitled to make a reasonable number of
machine-readable copies of the Software for backup or archival
purposes only. Customer may not copy the Software, except as permitted
by this Agreement. Customer shall maintain accurate and up-to-date
records of the number and location of all copies of the Software and
inform C1 in writing of such location(s). All copies of the Software
will be subject to all terms and conditions of this Agreement.
Whenever Customer is permitted to copy or reproduce all or any part of
the Software, all titles, trademark symbols, copyright symbols and
legends, and other proprietary markings must be reproduced.
3. LICENSE RESTRICTIONS
3.1 Customer agrees that it will not itself, or through any parent,
subsidiary, affiliate, agent or other third party:
(a) sell, lease, license or sublicense the Software or the
Documentation;
(b) decompile, disassemble, or reverse engineer the Software, in
whole or in part;
(c) allow access to the Software by any Authorized User not located
at the Site other than Customer's employees and employees of
Customer's suppliers who Use such Software pursuant to the terms
of Section 3(f) below;
(d) write or develop any derivative software or any other software
program based upon the Software or any Confidential Information;
(e) use the Software to provide processing services to third parties,
commercial timesharing, rental or sharing arrangements, or
otherwise use the Software on a 'service bureau' basis; or
(f) provide, disclose, divulge or make available to, or permit use of
the Software by any third party without C1's prior written
consent; provided, however, that Customer may allow its suppliers
to Use the Software solely for the purpose of conducting business
with Customer within the scope of their supplier relationship
with Customer.
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<PAGE>
4. LICENSE FEE
4.1 LICENSE FEE. In consideration of the license granted pursuant to
Section 2.1, Customer agrees to pay C1 the License Fee specified in
Schedule A. The License Fee is due and payable in full upon the
Effective Date. Customer will have the option to expand the license
granted pursuant to Section 2.1 by increasing the number of Authorized
Users after C1's prior written consent and further after C1's receipt
of additional license fees for the expanded Use as set forth in C1's
then-current standard commercial price list.
4.2 TAXES. Customer agrees to pay or reimburse C1 for all federal, state,
dominion, provincial, or local sales, use, personal property, payroll,
excise or other taxes, fees, or duties arising out of this Agreement
or the transactions contemplated by this Agreement (other than taxes
on the net income of C1).
4.3 NO OFFSET. Fees and expenses due from Customer under this Agreement
may not be withheld or offset by Customer against other amounts owed
by Customer for any reason.
4.4 AUDIT. Customer shall provide C1 with information as reasonably
requested by C1 to verify compliance by Customer with the terms of
this Agreement. In addition, Customer shall install and permit C1 to
operate C1 "polling software" which monitors all transactions
associated with the Software. Customer shall at all times cooperate
with C1 to ensure that C1 has remote access to Customer's Equipment
for such purposes. Customer shall also provide C1 with reasonable
access to such "polling software" to verify its operation.
5. MAINTENANCE AND SUPPORT
For so long as Customer is current in the payment of all Maintenance
Fees (described below), Customer will be entitled to Maintenance and
Support as specified in this Section 6.
5.1 TERM AND TERMINATION. C1's provision of Maintenance and Support to
Customer will commence on the Effective Date and will continue for an
initial term of one (1) year. Maintenance and Support will
automatically renew at the end of the initial term and any subsequent
term for a renewal term of one (1) year unless either party has
provided the other party with a written termination notice of its
intention not to renew the Maintenance and Support at least ninety
(90) days prior to the expiration of the then-current term.
Termination of Maintenance and Support upon failure to renew will not
affect the license of the Software.
5.2 MAINTENANCE AND SUPPORT SERVICES. Maintenance and Support will be
provided only with respect to versions of the Software that are being
supported by C1. As part of Maintenance and Support, C1 will provide
during C1's standard hours of service: (i) Updates and Upgrades, when
and if available, and related on-line Documentation, and (ii)
telephone assistance with respect to the Software, including (a)
clarification of functions and features of the Software; (b)
clarification of the Documentation; (c) guidance in the operation of
the Software; and (d) error verification, analysis and correction to
the extent possible by telephone. C1's standard hours of service are
Monday through Friday, 8:30 a.m. to 5:00 p.m., Pacific Standard time,
except for holidays as observed by C1.
5.3 ON-SITE ASSISTANCE. At C1's discretion, C1 can decide to provide
Maintenance and Support at the Customer Site. In such event Customer
will reimburse C1 for all related traveling expenses and costs for
board and lodging.
5.4 INSTALLATION. Upon Customer's request, C1 or a designated C1 partner
can perform the installation of the Software. Unless otherwise agreed,
the costs hereof shall be invoiced to Customer on the basis of C1's
then-current rates.
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<PAGE>
5.5 CAUSES WHICH ARE NOT ATTRIBUTABLE TO C1. Maintenance and Support will
not include services requested as a result of, or with respect to
causes which are not attributable to C1. These services will be billed
to Customer at C1's then-current rates. Causes which are not
attributable to C1 include but are not limited to:
(a) accident; unusual physical, electrical or electromagnetic stress;
neglect; misuse; failure or fluctuation of electric power, air
conditioning or humidity control; failure of rotation media not
furnished by C1; excessive heating; fire and smoke damage;
operation of the Software with other media and hardware, software
or telecommunication interfaces not meeting or not maintained in
accordance with the manufacturer's specifications; or causes
other than ordinary use;
(b) improper installation by Customer or use of the Software that
deviates from any operating procedures established by C1 in the
applicable Documentation;
(c) modification, alteration, or addition or attempted modification,
alteration or addition of the Software undertaken by persons
other than C1 or C1's authorized representatives;
(d) software programs made by Customer, C1 or other parties.
5.6 RESPONSIBILITIES OF CUSTOMER. C1's provision of Maintenance and
Support to Customer is subject to the following:
(a) Customer shall provide C1 with access to Customer's personnel and
Equipment during normal business hours. This access must include
the ability to dial-in to the Equipment on which the Software is
operating and to obtain the same access to the Equipment as those
of Customer's employees having the highest privilege or clearance
level. C1 will inform Customer of the specifications of the modem
equipment and associated software needed, and Customer will be
responsible for the costs and use of said equipment.
(b) Customer shall document and promptly report all errors or
malfunctions of the Software to C1. Customer shall take all steps
necessary to carry out procedures for the rectification of errors
or malfunctions within a reasonable time after such procedures
have been received from C1. Customer shall maintain a current
backup copy of all programs and data. Customer shall properly
train its personnel in the Use and application of the Software
and the Equipment on which it is used.
5.7 MAINTENANCE FEE. The Maintenance Fee for each calendar year of
Maintenance and Support will be fifteen percent (15%) of the list
price of the Software, as set forth in C1's price list in effect as of
the Effective Date. The Maintenance Fee for the Customer maybe
modified subsequent to the signing of a Distributor Agreement. Year 1
Maintenance Fees are included as part of the initial license fees as
described in Schedule A. The Maintenance Fee is due and payable in
full in advance within thirty (30) days after the date of delivery of
the Software. Any amounts not paid within thirty (30) days will be
subject to interest of 1% per month, which interest will be
immediately due and payable. Each calendar year, the Maintenance Fee
may be modified by C1 by written notice to Customer at least thirty
(30) days prior to the end of the then-current term. In the event of a
modification of the Maintenance Fee, Customer may discontinue
Maintenance and Support. If Customer elects not to renew Maintenance
and Support, Customer may re-enroll only upon payment of the annual
Maintenance Fee for the coming year and ___ percent (___%) of all
Maintenance Fees that would have been paid had Customer not terminated
Maintenance and Support, which entitles Customer to all Updates and
Releases of the Software which have been released during the same
period.
-4-
<PAGE>
6. LIMITED WARRANTY AND LIMITATION OF LIABILITY
6.1 WARRANTY. C1 warrants that the Software will perform in substantial
accordance with the Documentation for a period of thirty (30) days
from the Effective Date. If during this time period the Software does
not perform as warranted, C1 shall undertake to correct the Software,
or if correction of the Software is reasonably not possible, replace
such Software free of charge. If neither of the foregoing is
commercially practicable, C1 shall terminate this Agreement and refund
to Customer the License Fee. In addition, C1 warrants that the media
on which the Software is distributed will be free from defects in
materials and workmanship under normal use for a period of thirty (30)
days from the Effective Date. C1 will replace any defective media
returned to C1 within the thirty (30) day period. THE FOREGOING ARE
CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. The
warranty set forth above is made to and for the benefit of Customer
only. The warranty will apply only if:
(a) the Software has been properly installed and used at all times
and in accordance with the instructions for Use; and
(b) no modification, alteration or addition has been made to the
Software by persons other than C1 or C1's authorized
representative; and
(c) Customer has not requested modifications, alterations or
additions to the Software that cause it to deviate from the
Documentation.
6.2 DISCLAIMER. EXCEPT AS SET FORTH ABOVE, C1 MAKES NO WARRANTIES, WHETHER
EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE
OR THE DOCUMENTATION, OR ANY MATERIALS OR SERVICES FURNISHED OR
PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING MAINTENANCE AND
SUPPORT. C1 SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT
WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SAID OTHER MATERIALS
AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
6.3 LIMITATION OF LIABILITY. IN NO EVENT WILL C1 BE LIABLE FOR ANY LOSS OF
PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF
COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE
OR USE OF THE SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER
ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING
NEGLIGENCE, EVEN IF C1 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN ADDITION, C1 WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY
DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR SAID SERVICES. C1'S
LIABILITY UNDER THIS AGREEMENT FOR DIRECT, INDIRECT, SPECIAL,
INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE
LICENSE FEE PAID BY CUSTOMER TO C1 UNDER THIS AGREEMENT.
6.4 CUSTOMER INDEMNITY. Customer shall indemnify and hold C1 harmless from
and against any costs, losses, liabilities and expenses (including
reasonable attorneys fees) arising out of third party claims related
to Customers Use of the Software under this Agreement.
6.5 NO OTHER WARRANTY. No employee, agent, representative or affiliate of
C1 has authority to bind C1 to any oral representations or warranty
concerning the Software. Any written representation or warranty not
expressly contained in this Agreement will not be enforceable.
-5-
<PAGE>
7. INDEMNIFICATION FOR INFRINGEMENT
7.1 INDEMNITY. C1 shall, at its expense, defend or settle any claim,
action or allegation brought against Customer that the Software
infringes any copyright or trade secret of any third party and shall
pay any final judgments awarded or settlements entered into; provided
that Customer gives prompt written notice to C1 of any such claim,
action or allegation of infringement and gives C1 the authority to
proceed as contemplated herein. C1 will have the exclusive right to
defend any such claim, action or allegation and make settlements
thereof at its own discretion, and Customer may not settle or
compromise any such claim, action or allegation, except with prior
written consent of C1. Customer shall give such assistance and
information as C1 may reasonably require to settle or oppose such
claims. In the event any such infringement, claim, action or
allegation is brought or threatened, C1 may, at its sole option and
expense:
(a) procure for Customer the right to continue Use of the Software or
infringing part thereof; or
(b) modify or amend the Software or infringing part thereof, or
replace the Software or infringing part thereof with other
software having substantially the same or better capabilities;
or, if neither of the foregoing is commercially practicable;
(c) terminate this Agreement.
7.2 EXCLUSIONS. The foregoing obligations shall not apply to the extent
the infringement arises as a result of (i) modifications to the
Software made by any party other than C1 or C1's authorized
representative, (ii) use of other than the latest release of the
Software, or (iii) the combination or use of the Software with
materials not furnished by C1.
7.3 SOLE OBLIGATION. The foregoing states the entire liability of C1 with
respect to infringement of any patent, copyright, trade secret or
other proprietary right.
8. CONFIDENTIAL INFORMATION
8.1 OBLIGATIONS OF CONFIDENTIALITY. Each party acknowledges that the
Confidential Information constitutes valuable trade secrets and each
party agrees that it shall use Confidential Information solely in
accordance with the provisions of this Agreement and will not
disclose, or permit to be disclosed, the same, directly or indirectly,
to any third party without the other party's prior written consent.
Each party agrees to exercise due care in protecting the Confidential
Information from unauthorized use and disclosure. However, neither
party bears any responsibility for safeguarding information that (i)
is publicly available, (ii) already in the other party's possession
and not subject to a confidentiality obligation, (iii) obtained by the
other party from third parties without restrictions on disclosure,
(iv) independently developed by the other party without reference to
Confidential Information, or (v) required to be disclosed by order of
a court or other governmental entity.
8.2 INJUNCTIVE RELIEF. In the event of actual or threatened breach of the
provisions of Section 8.1, the non-breaching party will have no
adequate remedy at law and will be entitled to immediate and
injunctive and other equitable relief, without bond and without the
necessity of showing actual money damages.
9. TERM AND TERMINATION
9.1 TERM. This Agreement will take effect on the Effective Date and will
remain in force until terminated in accordance with this Agreement.
9.2 TERMINATION FOR CONVENIENCE. This Agreement may be terminated by
Customer upon thirty (30) days' prior written notice to C1, with or
without cause, provided that no such termination will entitle Customer
to a refund of any portion of the License Fee or Maintenance Fee.
-6-
<PAGE>
9.3 TERMINATION FOR CAUSE. C1 may, by written notice to Customer,
terminate this Agreement if any of the following events ("Termination
Events") occur, provided that, except as set forth in Section 9.3(d)
below, no such termination will entitle Customer to a refund of any
portion of the License Fee or Maintenance Fee:
(a) Customer fails to pay any amount due to C1 within thirty (30)
days after C1 gives Customer written notice of such non-payment;
or
(b) Customer is in material breach of any non-monetary term,
condition or provision of this Agreement, which breach, if
capable of being cured, is not cured within thirty (30) days
after C1 gives Customer written notice of such breach; or
(c) Customer (i) terminates or suspends its business activities, (ii)
becomes insolvent, admits in writing its inability to pay its
debts as they mature, makes an assignment for the benefit of
creditors, or becomes subject to direct control of a trustee,
receiver or similar authority, or (iii) becomes subject to any
bankruptcy or insolvency proceeding under federal or state
statutes; or
(d) C1 elects to refund Customer's fees in accordance with Section
6.1
If any Termination Event occurs, termination will become effective
immediately or on the date set forth in the written notice of
termination. The following Sections will survive termination of this
Agreement for any reason: 4, 6.2, 6.3, 6.4, 6.5 and 7-12. Termination of
this Agreement will not affect the provisions regarding Customer's or
C1's treatment of Confidential Information, provisions relating to the
payment of amounts due, or provisions limiting or disclaiming C1's
liability, which provisions will survive termination of this Agreement.
9.4 RETURN OF MATERIALS. Within fourteen (14) days after the date of
termination or discontinuance of this Agreement for any reason
whatsoever, Customer shall return the Software, derivative works and
all copies thereof, in whole or in part, all related Documentation and
all copies thereof, and any other Confidential Information in its
possession. Customer shall furnish C1 with a certificate signed by an
executive officer of Customer verifying that the same has been done.
10. NON-ASSIGNMENT/BINDING AGREEMENT
Neither this Agreement nor any rights under this Agreement may be
assigned or otherwise transferred by Customer, in whole or in part,
whether voluntary or by operation of law, including by way of sale of
assets, merger or consolidation, without the prior written consent of
C1, which consent will not be unreasonably withheld. Subject to the
foregoing, this Agreement will be binding upon and will inure to the
benefit of the parties and their respective successors and assigns.
11. NOTICES
Any notice required or permitted under the terms of this Agreement or
required by law must be in writing and must be (a) delivered in person,
(b) sent by first class registered mail, or air mail, as appropriate,
(c) sent by overnight air courier, or (d) by facsimile, in each case
properly posted to the appropriate address set forth below. Either party
may change its address for notice by notice to the other party given in
accordance with this Section. Notices will be considered to have been
given at the time of actual delivery in person, three (3) business days
after deposit in the mail as set forth above, one (1) day after delivery
to an overnight air courier service, or one (1) day after the moment of
transmission by facsimile.
12. MISCELLANEOUS
12.1 FORCE MAJEURE. Neither party will incur any liability to the other
party on account of any loss or damage resulting from any delay or
failure to perform all or any part of this Agreement if such delay or
-7-
<PAGE>
failure is caused, in whole or in part, by events, occurrences, or
causes beyond the control and without negligence of the parties. Such
events, occurrences, or causes will include, without limitation, acts
of God, strikes, lockouts, riots, acts of war, earthquakes, fire and
explosions, but the inability to meet financial obligations is
expressly excluded.
12.2 WAIVER. Any waiver of the provisions of this Agreement or of a party's
rights or remedies under this Agreement must be in writing to be
effective. Failure, neglect, or delay by a party to enforce the
provisions of this Agreement or its rights or remedies at any time,
will not be construed and will not be deemed to be a waiver of such
party's rights under this Agreement and will not in any way affect the
validity of the whole or any part of this Agreement or prejudice such
party's right to take subsequent action. Except as expressly stated in
this Agreement, no exercise or enforcement by either party of any
right or remedy under this Agreement will preclude the enforcement by
such party of any other right or remedy under this Agreement or that
such party is entitled by law to enforce.
12.3 SEVERABILITY. If any term, condition, or provision in this Agreement
is found to be invalid, unlawful or unenforceable to any extent, the
parties shall endeavor in good faith to agree to such amendments that
will preserve, as far as possible, the intentions expressed in this
Agreement. If the parties fail to agree on such an amendment, such
invalid term, condition or provision will be severed from the
remaining terms, conditions and provisions, which will continue to be
valid and enforceable to the fullest extent permitted by law.
12.4 ENTIRE AGREEMENT. This Agreement (including the Schedules and any
addenda hereto signed by both parties) contains the entire agreement
of the parties with respect to the subject matter of this Agreement
and supersedes all previous communications, representations,
understandings and agreements, either oral or written, between the
parties with respect to said subject matter. This Agreement may not be
amended, except by a writing signed by both parties.
12.5 STANDARD TERMS OF CUSTOMER. No terms, provisions or conditions of any
purchase order, acknowledgement or other business form that Customer
may use in connection with the acquisition or licensing of the
Software will have any effect on the rights, duties or obligations of
the parties under, or otherwise modify, this Agreement, regardless of
any failure of C1 to object to such terms, provisions or conditions.
12.6 EXPORT OF SOFTWARE. Customer may not export or re-export the Software
without the prior written consent of C1 and without the appropriate
United States and foreign government licenses.
12.7 PUBLIC ANNOUNCEMENTS. Customer acknowledges that C1 may desire to use
its name in press releases, product brochures and financial reports
indicating that Customer is a customer of C1, and Customer agrees that
C1 may use its name in such a manner.
12.8 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which so executed will be deemed to be an original and such
counterparts together will constitute one and the same agreement.
12.9 APPLICABLE LAW; JURISDICTION. This Agreement will be interpreted and
construed in accordance with the laws of the State of California and
the United States of America, without regard to conflict of law
principles. All disputes arising out of this Agreement shall be
subject to the exclusive jurisdiction and venue of the state and
federal courts of Santa Clara County, California, and the parties
consent to the exclusive and personal jurisdiction of these courts.
12.10 HEADINGS. Section and Schedule headings are for ease of reference
only and do not form part of this Agreement.
12.11 NON-SOLICITATION. Customer acknowledges and agrees that the employees
and consultants of C1 who perform the Maintenance and Support Services
or other services are a valuable asset to C1 and are
-8-
<PAGE>
difficult to replace. Accordingly, Customer agrees that, for a
period of twelve (12) months after the completion of the
Maintenance and Support Services or other services, it will not
offer employment as an employee, independent contractor, or
consultant to any C1 employee or consultant who performs any of the
Maintenance and Support Services or other services.
IN WITNESS WHEREOF, the parties have executed this Agreement.
________________________(CUSTOMER) COMMERCE ONE, INC.
By:___________________________________ By:_________________________________
______________________________________ ____________________________________
(print name and title) Robert M. Tarkoff
Vice President, General Counsel
Address: Address:
______________________________________ ____________________________________
______________________________________ ____________________________________
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<PAGE>
SCHEDULE A
SOFTWARE AND LICENSE FEE
US $1,000,000 FOR BUYSITE, ENTERPRISE EDITION, INCLUDES YEAR 1 MAINTENANCE FEE
<PAGE>
SCHEDULE B
EQUIPMENT AND SITE
B.1 The following is the Equipment on which Customer may Use the Software:
B.2 The following is the Operating System on which Customer may Use the
Software:
B.3 The following is/are the physical Site(s) at which Customer is entitled to
Use the Software:
B.4 The following is the number of Authorized Users specified per Site and
allowed under the Agreement:
Unlimited User License for use by Nihon Unisys, Ltd.
<PAGE>
ATTACHMENT E
OEM MAINTENANCE AND SUPPORT
---------------------------
1. MAINTENANCE/MINOR UPDATES. In consideration of the Maintenance and
Support fee set forth in Attachment B, Commerce One will provide to
PeopleSoft any Minor Updates made generally available during the five (5)
year term of maintenance and support. PeopleSoft and not Commerce One will be
responsible for providing Minor Updates to its PeopleSoft Customers,
Distributors and End Users. The expenses of any such distribution will be
paid by PeopleSoft. PeopleSoft and Commerce One will favorably consider
electronic or alternative dissemination methods of such Minor Updates to the
extent consistent with policies of both companies. PeopleSoft and Commerce
One agree to discuss monthly support issues and processes.
2. TECHNICAL SUPPORT. In consideration of the Maintenance and Support
fee set forth in Attachment B, Commerce One will provide PeopleSoft with
Commerce One's backend technical support services, as further described
herein.
a. BACK-END SUPPORT. Commerce One will provide back-end support
to PeopleSoft for Program Errors not resolved by PeopleSoft pursuant to
PeopleSoft's support policies and in accordance with subparagraph (b) below.
This support includes efforts to identify defective source code and to
provide corrections, workarounds and/or patches to correct Program Errors.
Commerce One will provide PeopleSoft with a telephone number and an e-mail
address which PeopleSoft may use to report Program Errors during Commerce
One's standard support hours. For priority 1 or 2 failures, PeopleSoft agrees
to notify Commerce One via a method to be determined as mutually agreed
between the parties. The parties agree to have designated members of each
party's support staff meet on a regular basis to address support issues as
they arrive with respect to support activities and to manage, with a view to
continuously improve, the support relationship and process. Each party will
identify one (1) member of its customer support staff and an alternate to act
as the primary technical liaisons responsible for all communications with the
other party's technical support representatives. Such liaisons will have
sufficient technical expertise, training and/or experience for PeopleSoft to
perform its obligations hereunder. Notification will be in writing and/or
e-mail to Commerce One. PeopleSoft may substitute contacts at any time.
Commerce One will make reasonable efforts to correct significant Program
Errors that PeopleSoft identifies, classifies and reports to Commerce One and
that Commerce One substantiates. Commerce One may reclassify Program Errors
if it reasonably believes that PeopleSoft's classification is incorrect.
PeopleSoft will provide sufficient information to enable Commerce One to
duplicate the Program Error before Commerce One's response obligations will
commence. Commerce One will not be required to correct any Program Error
caused by (a) PeopleSoft's incorporation or attachment of a feature, program,
or device to the BuySite Products, or any part thereof; (b) any
nonconformance caused by accident, transportation, neglect, misuse,
alteration, modification, or enhancement of the BuySite Products; (c) the
failure to provide a suitable installation environment; (d) use of the
BuySite Products for other than the specific purpose for
<PAGE>
which the BuySite Products are designed; (e) use of the BuySite Products on
any systems other than the specified hardware platform for such BuySite
Products; (f) PeopleSoft's use of defective media or defective duplication of
the BuySite Products; or (g) PeopleSoft's failure to incorporate any Minor
Update previously released by Commerce One which corrects such Program Error.
Provided Program Error reports are received by Commerce One during
Commerce One's standard support hours, Commerce One will use its best
commercial efforts to communicate with PeopleSoft about the Program Error via
telephone or e-mail within the targeted response times which shall be
determined by mutual agreement of the parties. The parties will use
reasonable efforts to ensure the targeted response times will meet and
implement the PeopleSoft standards and current best practices.
Commerce One will use reasonable commercial efforts to resolve each
significant Program Error by providing either a reasonable workaround, an
object code patch, or a specific action plan for how
Commerce One will address the problem and an estimate of how long it
will take to rectify the defect. Commerce One reserves the right to charge
PeopleSoft additional fees at its then-standard rates for services performed
in connection with reported Program Errors which are later determined to have
been due to hardware or software not supplied by Commerce One.
Notwithstanding the foregoing, Commerce One has no obligation to perform
services in connection with (i) Program Errors resulting from hardware or
software not supplied by Commerce One; (ii) which occur in the BuySite
Product release which is not the then-current supported releases; or (iii)
which are not aligned with the PeopleSoft support policy.
b. FRONT-LINE SUPPORT. PeopleSoft, and not Commerce One, will provide
front-line, or first and second level, technical support to its PeopleSoft
Customers, Distributors and End Users. Such support includes call receipt,
call screening, installation assistance, problem identification and
diagnosis, efforts to create a repeatable demonstration of the Program Error
and, if applicable, the distribution of any defective media or Minor Updates.
PeopleSoft agrees that any documentation Distributed by PeopleSoft will
clearly and conspicuously state that End Users should call PeopleSoft for
technical support for the BuySite Products. Commerce One will have no
obligation to furnish any assistance, information or documentation with
respect to the BuySite Products, to any PeopleSoft Customer, Distributor or
End User. If Commerce One customer support representatives are being
contacted by a significant number of Distributors or End Users then, upon
Commerce One's request, PeopleSoft and Commerce One will cooperate to
minimize such contact.
<PAGE>
ATTACHMENT F
PEOPLESOFT PRODUCTS
-------------------
PEOPLESOFT PRODUCT
The PeopleSoft Product shall offer web-based procurement capabilities that
are designated to enable companies to reduce their indirect goods purchasing
costs while increasing their overall supply chain efficiency. Cost
reductions are achieved through user-friendly application functionality
designed to reduce off-contract, or "rogue," purchases, automate manual
processes, improve leverage with suppliers and provide links to a dynamic
trading community. The PeopleSoft Product shall be implemented within the
integrated suite of other PeopleSoft PSBN products and will provide merged
knowledge-based, analytic and transactional content delivered through a
portal like interface.
The PeopleSoft Product may incorporate any or all parts of the BuySite
Product Source Code or Derivative Works thereof. The PeopleSoft product may
also be developed without any such BuySite Product Source Code. PeopleSoft
shall be entirely free to determine the features and functionality of the
PeopleSoft Product using internal resources, contracted resources or through
acquisition either in whole or in part.
For greater clarity, nothing in this definition of the PeopleSoft Product
shall include any and all other PeopleSoft products developed by or on behalf
of PeopleSoft including but not limited to PeopleSoft ERP products, analytic
products and other PSBN products not explicitly defined above.
<PAGE>
ATTACHMENT G
NAMED ACCOUNTS
--------------
COMMERCE ONE NAMED ACCOUNTS
---------------------------
(See attached)
PEOPLESOFT NAMED ACCOUNTS
-------------------------
*
TELCO NAMED ACCOUNTS
--------------------
(See attached)
- ----------------------------------------
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
<PAGE>
ATTACHMENT G
------------
Commerce One Named Accounts
<TABLE>
<S> <C> <C>
ABB (Pty) Ltd International Europe
ABN AMRO Bank NV International Europe
Arthur Andersen International East
Bass Hotels & Resorts Incorporated Service Indust East
BP Amoco Corporation Manufacturing Europe
California State University Higher Educ West
Cargill Financial Services Corporation Financial Svcs Midwest
Chase Manhattan Bank Financial Svcs East
Compaq Computer Corporation Manufacturing West
Computacenter Limited International Europe
Con Edison Infrastructure East
Credit Suisse Group Financial Svcs Europe
CSC Computer Sciences International Europe
Cummins Utility LP Select Midwest
Disney Worldwide Services Incorporated Service Indust West
Dupont Manufacturing East
Eli Lilly And Company Manufacturing East
Fujitsu America Incorporated Manufacturing West
General Motors Corporation Manufacturing Midwest
Harris Corporation Manufacturing East
Home Depot USA Incorporated Retail East
IBM Service Indust East
New York Times Company Service Indust East
Nike Incorporated Manufacturing West
Novartis Corporation Manufacturing East
PacifiCare Health Systems Incorporated Healthcare West
Pain Webber Financial Svcs East
Paribas Financial Svcs Europe
Perot Systems Corporation Service Indust West
Praxair Incorporated Manufacturing East
PRC Incorporated/Litton Service Indust East
Read Rite Corporation Manufacturing West
Siemens Corporation Manufacturing West
Silicon Graphics Incorporated Manufacturing West
Sybase Service Indust West
TRW Incorporated Manufacturing West
United Parcel Service (UPS) Infrastructure East
Universal City Studios Incorporated Service Indust West
Weyerhaeuser Company Manufacturing West
</TABLE>
<PAGE>
ATTACHMENT G
- ------------
TELCO NAMED ACCOUNTS
- --------------------------------------
AT&T
- --------------------------------------
BCE
- --------------------------------------
Deutsche Telecom
- --------------------------------------
Hong Kong Telecom
- --------------------------------------
Cable & Wireless
- --------------------------------------
Telecom, Brasileiras S.A.
- --------------------------------------
Bell South
- --------------------------------------
GTE
- --------------------------------------
Bell Atlantic
- --------------------------------------
Sprint
- --------------------------------------
Chunghwa Telecom Co. LTD
- --------------------------------------
Tele Danmark
- --------------------------------------
Telefonos de Mexico, S.A.
- --------------------------------------
Telefonica de Espana S.A.
- --------------------------------------
Telecom Italia
- --------------------------------------
France Telecom
- --------------------------------------
S. Korea Telecom
- --------------------------------------
South Africa Telecom
- --------------------------------------
Ameritech
- --------------------------------------
China Telecom
- --------------------------------------
Telia, Sweden
- --------------------------------------
New Zealand Telecom
- --------------------------------------
SBC
- --------------------------------------
USWeb
- --------------------------------------
Qwest Communications
- --------------------------------------
<PAGE>
ATTACHMENT H
SPECIFIED COMPANIES
-------------------
COMMERCE ONE SPECIFIED COMPANIES
--------------------------------
Ariba, Harbinger, Chemdex, Netscape, TPN, Requisite & Sterling
PEOPLESOFT SPECIFIED COMPANIES
------------------------------
Ariba, Concur, SAP, Oracle, or Siebel
<PAGE>
ATTACHMENT I
MINIMUM TARGETS
---------------
Quarters Cumulative
Minimum
Targets
Q3, 1999 NA
Q4, 1999 NA
Q1, 2000 NA
Q2, 2000 NA
Q3, 2000 NA
Q4, 2000 NA
Q1, 2001 60
Q2, 2001 72
Q3, 2001 85
Q4, 2001 101
Q1, 2002 119
Q2, 2002 140
Q3, 2002 165
Q4, 2002 194
Q1, 2003 228
Q2, 2003 267
Q3, 2003 313
Q4, 2003 366
Q1, 2004 428
Q2, 2004 500
<PAGE>
ATTACHMENT J
PEOPLESOFT DISTRIBUTION CHANNELS
--------------------------------
[NOT INCLUDED AT TIME OF SIGNING]
<PAGE>
JOINT DEVELOPMENT AGREEMENT
This Joint Development Agreement (the "Agreement") is made and entered into as
of this 5th day of June, 1999 ("Effective Date") by and between Commerce One,
Inc., a California corporation, with offices at 1600 Riviera Avenue, Walnut
Creek, California 94596 ("Commerce One"), PeopleSoft, Inc., a California
corporation, with principal offices at 4460 Hacienda Drive, Pleasanton,
California 94588-8615 ("PeopleSoft").
BACKGROUND
Commerce One and PeopleSoft desire that Commerce One perform development work on
behalf of PeopleSoft to develop PS products, on the terms and conditions set
forth herein. The intent of the parties is that Buysite 6.0 and Buysite 6.0P
source code baseline shall be componentized to support the isolation of user
interface and business objects to serve as the potential basis for a potential
future PeopleSoft procurement product.
The parties are concurrently entering into an OEM Software License
Agreement ("OEM Agreement").
In consideration of the mutual promises contained herein, Commerce One and
PeopleSoft agree as follows.
ARTICLE 1
DEFINITIONS
The following terms shall have the following meanings herein:
1.1 "ACCEPTANCE CRITERIA" means the acceptance criteria agreed upon by the
Joint Development Committee .
1.2 "CODE" means computer programming code. "Object Code" means the binary
machine-executable form of Code, including object files, libraries, executable
program, scripts and HTML pages. "Source Code" means the human-readable form of
Code, including but not limited to annotations, flow charts, use cases, ERDs and
design guides..
1.3 "DELIVERABLES" shall mean the items to be delivered by a party hereto
to the other party hereto in connection with the Development Task, as set forth
in the Development Exhibit.
1.4 "COMMERCE ONE DELIVERABLES" shall mean the Deliverables made, conceived
or reduced to practice solely by Commerce One, including all Technology and
Intellectual Property Rights therein.
1.5 "PEOPLESOFT DELIVERABLES" shall mean the Deliverables made, conceived
or reduced to practice solely by PeopleSoft, including all Technology and
Intellectual Property Rights therein.
<PAGE>
1.6 "DERIVATIVE WORK(S)" means a revision, modification, translation,
abridgment, condensation or expansion of a BuySite Product, PeopleSoft Product
or Documentation, as the case may be, or any form in which a BuySite Product,
PeopleSoft Product or Documentation, as the case may be, may be recast,
transferred, or adapted, and which, if prepared without the consent of Commerce
One or PeopleSoft, as the case may be, would be a copyright infringement.
1.7 "BUYSITE PRODUCT(S)" means BuySite versions 5.0, 6.0 and all Major and
Minor Updates thereto released during the term of this Agreement.
1.8 "DEVELOPMENT EXHIBIT" shall mean Exhibit A hereto.
1.9 "DEVELOPMENT SCHEDULE" shall mean the schedule for completion of the
Development Task, as set forth in the Development Exhibit. 1.10 "DEVELOPMENT
TASK" shall mean the development work to be performed pursuant to this Agreement
and the Development Exhibit.
1.10 "Development Task" shall mean the development work to be performed
pursuant to this Agreement and the Development Exhibit.
1.11 "INTELLECTUAL PROPERTY RIGHTS" shall mean all current and future
worldwide patents and other patent rights, utility models, copyrights, mask work
rights, trade secrets, and all other intellectual property rights, including
without limitation all applications and registrations with respect thereto.
1.12 "OEM AGREEMENT" shall mean the OEM Agreement executed by the parties
on the Effective Date.
1.13 "PEOPLESOFT PRODUCT(S)" means PeopleSoft software products as
described in the Development Exhibit with which the BuySite Products are to be
interfaced hereunder.
1.14 "PRODUCTS" means the BuySite Products and the PeopleSoft
Products collectively.
1.15 "TECHNOLOGY" shall mean all tangible and intangible results and items
arising out of or constituting the results of the Development Task, including
without limitation all Deliverables, ideas, inventions, designs, know-how,
notes, memoranda, documentation, and copyrighted materials, and all Intellectual
Property Rights constituting, embodied in, or pertaining to any of the
foregoing.
1.16 "TELCO INDUSTRY" means only those entities which carry out business in
the following named telecommunication industry sub-segmentsas set forth within
SIC code number 4813 (telecommunications) as they exist on the Effective Date.
The named sub-segments are limited to Facilities-based telecommunication
carriers (except wireless), Local telephone carriers (except wireless),
Long-distance telephone carriers (except wireless), Telecommunications carriers
(wired), Telecommunications networks (wired), and Telephone carriers facilities
based (except wireless).
1.17 "UNDERLYING TECHNOLOGY" means any inventions, discoveries, ideas,
formulae, processes, methods, techniques, improvements, technology, know-how, or
information made, conceived or reduced to practice outside of this Agreement
that are owned or controlled by
-2-
<PAGE>
PeopleSoft and that PeopleSoft elects to include with the Deliverables
hereunder, and all patents and other patent rights (including utility models),
copyrights, trade secrets and other intellectual property rights in or relating
to any of the foregoing, to the extent such inventions, discoveries, ideas,
formulae, processes, methods, techniques, improvements, technology, know-how, or
information is incorporated by PeopleSoft into, or would be infringed by the use
of, the Technology. For purposes of this Section 1.17, "control" means the right
to grant the licenses set forth in Section 3.6. If royalties or other
consideration is payable to third parties, or any license is required, with
respect to any Technology, PeopleSoft shall notify Commerce One of such
Technology prior to incorporating such Technology within the PeopleSoft
Deliverables.
1.18 "MAJOR AND MINOR UPDATES" shall have the meaning set forth in the OEM
Agreement.
ARTICLE 2
DEVELOPMENT, DELIVERY AND ACCEPTANCE
2.1 DEVELOPMENT.
(a) JOINT DEVELOPMENT COMMITTEE. The parties shall establish a joint
development committee comprised of six (6) members to oversee the conduct of the
Development Task, monitor the progress of the Development Task, and ensure open
communications between the parties. Each party shall appoint three (3) members
to the Joint Development Committee. The Joint Development Committee further
shall develop Acceptance Criteria for the Deliverables in a manner consistent
with Exhibit A and requirements for ongoing technical support with respect to
the Deliverables. Decisions of the Joint Development Committee shall be made by
unanimous approval. Either party may change its members of the Joint Development
Committee by providing written notice thereof to the other party. Disputes with
respect to this Agreement which cannot be resolved by the Joint Development
Committee shall be subject to the provisions of Section 9.10 of this Agreement.
The Joint Development Committee shall meet at least once per calendar quarter to
monitor the progress of this Agreement and to manage issue resolution under this
Agreement. Upon acceptance of each Deliverable, the Joint Development Committee
will confirm that the designations of Deliverables as Commerce One Deliverables,
PeopleSoft Deliverables or jointly developed Deliverables as set forth in the
Development Exhibit are correct. Inclusion of Underlying Technology shall be
subject to approval of the Joint Development Committee, which approval shall not
be unreasonably withheld.
(b) EXCHANGE OF INFORMATION. Each party shall keep appropriate records
relating to the activities contemplated by this Agreement, and shall report to
the other party on the status of such activities on a regular basis.
(c) PERSONNEL. Each party shall provide engineers to support each
other in the development efforts required under this Agreement.
-3-
<PAGE>
(d) DISCLOSURE OF INFORMATION NECESSARY FOR PERFORMANCE OF
DEVELOPMENT. Each party shall disclose such information as is in the possession
of such party and that such party has the right to disclose to the extent
reasonably necessary for the other party to perform the Development Task.
2.2 DELIVERY AND ACCEPTANCE.
(a) Each party shall use commercially reasonable efforts to complete
the Development Task and to deliver to the other party all applicable
Deliverables, in accordance with the Development Schedule. Upon completion of
each Deliverable, each party shall deliver to the other party all applicable
Deliverables, including documentation, for evaluation by the other party
pursuant to Section 2.2(b) below. In the event that either PeopleSoft or
Commerce One delays in the delivery of a Deliverable attributable to it as set
forth in the Development Exhibit, the schedule for the next Deliverable of the
other party hereto shall be determined by the Joint Development Committee.
(b) Upon delivery to Commerce One of the PeopleSoft Deliverables,
including related documentation, the parties shall evaluate such Deliverables
for conformity to the Acceptance Criteria. Commerce One shall provide PeopleSoft
within ten (10) business days after delivery of such materials with written
acceptance thereof, or a statement of defects to be corrected. PeopleSoft shall
promptly correct such defects and return the corrected PeopleSoft Deliverables
for retesting and reevalu tion, and Commerce One shall within ten (10) business
days after such redelivery provide PeopleSoft with written acceptance or a
statement of defects.
(c) Upon delivery to PeopleSoft of the Commerce One Deliverables,
including related documentation, PeopleSoft shall evaluate such Commerce One
Deliverables for conformity to the Acceptance Criteria. PeopleSoft shall provide
Commerce One within ten (10) business days after delivery of such materials with
written acceptance thereof, or a statement of defects to be corrected. Commerce
One shall promptly correct such defects and return the corrected Commerce One
Deliverables for retesting and reevaluation, and PeopleSoft shall within ten
(10) business days after such redelivery provide Commerce One with written
acceptance or a statement of defects.
-4-
<PAGE>
ARTICLE 3 a
OWNERSHIP
3.1 COMMERCE ONE OWNERSHIP. Commerce One retains all of its right, title,
and interest in and to the Commerce One Deliverables. For the avoidance of
doubt, "Commerce One Deliverables" shall include all portions of inbound and
outbound connectors, and components thereof, that interface with any Commerce
One software which connectors are developed soley by Commerce One and
accordingly, such connectors will be soley owned by Commerce One. It is
currently anticipated that portions of inbound and outbound connectors that
interface with the BuySite Products will be developed solely by Commerce One
and accordingly, owned by Commerce One. Commerce One shall have the exclusive
right to apply for or register patents, mask work rights, copyrights, and such
other proprietary protections as it wishes with respect to Commerce One
Deliverables. PeopleSoft agrees to, and shall have its consultants, agents and
employees, execute such documents, render such assistance, and take such other
action as may be necessary or convenient to apply for, register, perfect,
confirm, enforce, defend and protect Commerce One's Intellectual Property
Rights in and to the Commerce One Deliverables. Patent applications to be
filed with respect to inventions first conceived or reduced to practice
hereunder by PeopleSoft shall be provided to Commerce One prior to filing to
afford a reasonable opportunity to review and comment.
3.2 PEOPLESOFT OWNERSHIP. PeopleSoft retains all of its right, title, and
interest in and to the PeopleSoft Deliverables. For the avoidance of doubt,
"PeopleSoft Deliverables" shall include all inbound and outbound connectors
and components thereof, to the PeopleSoft software which connectors are
developed solely by PeopleSoft, and accordingly such connectors will be solely
owned by PeopleSoft. It is currently anticipated that portions of the inbound
and outbound connectors that interface with the PeopleSoft software will be
developed solely by PeopleSoft and accordingly owned by PeopleSoft. It is
further anticipated that the connector between Commerce One's MarketSite
software and the Purchasing module of the PeopleSoft software product shall
be a PeopleSoft Deliverable developed solely by PeopleSoft and accordingly
owned by PeopleSoft. In the event that the Joint Development Committee agrees
otherwise, the parties agree that such connector would be included under the
license granted pursuant to Section 3.1(a), (b) and (c) of the OEM Agreement
subject to negotiation in good faith of and agreement upon royalties payable
to Commerce One with respect to such connector. PeopleSoft shall have the
exclusive right to apply for or register patents, mask work rights,
copyrights, and such other proprietary protections as it wishes with respect
to the PeopleSoft Deliverables. Commerce One agrees to, and shall have its
consultants, agents and employees, execute such documents, render such
assistance, and take such other action as may be necessary or convenient to
apply for, register, perfect, confirm, enforce, defend and protect
PeopleSoft's Intellectual Property Rights in and to the PeopleSoft
Deliverables. Patent applications to be filed with respect to inventions
first conceived or reduced to practice hereunder by Commerce One shall be
provided to PeopleSoft prior to filing for review and comment to afford a
reasonable opportunity to review and comment.
3.3 OWNERSHIP OF BUYSITE CONNECTOR. For purposes of this Agreement, the
"BuySite Connector" shall mean those inbound and outbound connectors between
the BuySite Products and the PeopleSoft software as further described in the
Development Exhibit. It is currently anticipated that Commerce One will solely
develop those portions of the BuySite Connector that interface with the
BuySite Products and PeopleSoft will solely develop those portions of the
BuySite Connector that interface with the PeopleSoft software. Accordingly,
each party shall retain their respective rights to those portions of the
BuySite Connector developed by such party in accordance with Section 3.1
above.
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3.4 JOINT OWNERSHIP. Any subject matter other than Commerce One
Deliverables or PeopleSoft Deliverables that are made, conceived or reduced to
practice jointly by Commerce One and PeopleSoft shall be jointly owned ("JOINTLY
OWNED SUBJECT MATTER"). Subject to the payment obligations expressly set forth
in Section 6 of Attachment B of the OEM Agreement, each party shall have the
right to use, license, distribute and otherwise exploit the Jointly Owned
Subject Matter without any duty to account for profits and without obtaining
consent of the other party. The application, prosecution and maintenance of
Intellectual Property Rights with respect to Jointly Owned Subject Matter shall
be subject to the mutual written agreement of the parties.
3.5 WAIVER OF MORAL RIGHTS. To the extent permitted by applicable law, each
party hereby waives any and all moral rights, including any right to
identification of authorship or limitation on subsequent modification, that such
party (or its employees, agents or consultants) has or may have in any
Technology.
3.6 LICENSE OF BUYSITE CONNECTOR. Subject to the terms and conditions of
this Agreement, PeopleSoft hereby grants to Commerce One a worldwide,
royalty-free, fully paid up, perpetual right and license, including the right
to grant and authorize sublicenses, to (i) make, use, sell, offer for sale,
import, license, have licensed and otherwise distribute (directly or
indirectly) the BuySite Connector, the PeopleSoft Purchasing to MarketSite
Connector (as defined in the Development Exhibit), Underlying Technology and
Derivative Works thereof solely to the Telco Industry: and (ii) copy, modify,
have modified, and create and have created Derivative Works of the BuySite
Connector, Underlying Technology and Derivative Works thereof solely for the
purposes set forth in (i) above. For the avoidance of doubt, the foregoing
license grants with respect to Derivative Works relate only to Derivative
Works of the BuySite Connector and the PeopleSoft Purchasing to MarketSite
Connector and not to derivative works of any other technology or products.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Each party (the "Warranting Party") warrants to the other party as of
the date hereof and with respect to Sections 4.1(d), (e) and (f), on a
continuing basis that:
(a) CORPORATE AUTHORITY. The Warranting Party has the right to enter
this Agreement, is a corporation duly organized, validly existing, and in good
standing under the laws of the state of its incorporation set forth on page one
hereof, has the power and authority, corporate and otherwise, to execute and
deliver this Agreement and to perform its obligations hereunder, and has by all
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necessary corporate action duly and validly authorized the execution and
delivery of this Agreement and the performance of its obligations hereunder.
(b) BINDING OBLIGATION. This Agreement is the valid and legally
binding obligation of the Warranting Party in accordance with its terms, subject
to bankruptcy, reorganization, insolvency, moratorium and similar laws and to
general principles of equity which are within the discretion of courts of
applicable jurisdiction.
(c) NO CONFLICTS. The execution, delivery and performance by the
Warranting Party of this Agreement and each other agreement, document, or
instrument now or hereafter executed and delivered by the Warranting Party
pursuant thereto or in connection herewith will not: (i) conflict with or
violate the articles or certificate of incorporation or by-laws of the
Warranting Party or any provision of any law, rule, regulation, authorization or
judgment of any governmental authority having applicability to the Warranting
Party or its actions; or (ii) conflict with or result in any breach of, or
constitute a default under, any note, security agreement, commitment, contract
or other agreement, instrument or undertaking to which the Warranting Party is a
party or by which any of its property is bound.
(d) OWNERSHIP. Except for Technology that is in the public domain or
developed by the other party hereunder, the Warranting Party will have the right
and power to make the assignments and other rights granted to the other party
hereunder.
(e) INDEPENDENT WORK. Except for the Underlying Technology and
Technology that is in the public domain or developed by the other party
hereunder, the Technology will have been independently created by the Warranting
Party's employees, agents, and consultants, and to the knowledge of the
Warranting Party, use of the Technology by the other party as contemplated
herein will not depend on the acquisition of rights from any third party.
(f) AGREEMENTS WITH EMPLOYEES. The Warranting Party has and will
maintain with all the Warranting Party's employees, agents, and consultants,
written agreements sufficient to enable the Warranting Party to perform its
obligations hereunder, including without limitation the obligations set forth in
Article 3 above. The Warranting Party shall furnish to the other party copies of
such written agreements upon request and shall cause such subcontractors,
employees and agents to execute and deliver such further certificates,
acknowledgements, waivers and assignments as may be appropriate to give effect
to the foregoing.
4.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH
IN THIS ARTICLE 4 ABOVE, NEITHER PARTY MAKES ANY WARRANTIES UNDER THIS
AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE
SUBJECT MATTER HEREOF, AND EACH PARTY SPECIFICALLY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 5
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PAYMENTS
Except as expressly set forth in this Agreement and the OEM Agreement, each
party shall perform its obligations hereunder without payment of any kind to the
other party and each party shall bear its own costs and expenses.
ARTICLE 6
CONFIDENTIAL INFORMATION AND DISCLOSURE
6.1 CONFIDENTIAL INFORMATION. Each party agrees to maintain all
Confidential Information in confidence to the same extent that it protects
its own similar Confidential Information and to use such Confidential
Information only as permitted under this Agreement. For purposes of this
Agreement "Confidential Information" shall mean information including,
without limitation, computer programs, code, algorithms, names and expertise
of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other technical,
business, financial and product development plans, forecasts, strategies and
information marked "Confidential" or if disclosed verbally, reduced to
writing and marked "Confidential," or which should reasonably be understood
by the receiving party to be confidential information of the disclosing
party, within thirty (30) days after the date of disclosure. Each party
agrees to take all reasonable precautions to prevent any unauthorized
disclosure or use of Confidential Information including, without limitations
disclosing Confidential Information only to its employees (a) with a need to
know to further permitted uses of such information and (b) who are parties to
appropriate agreements sufficient to comply with this Article 6, and (c) who
are informed of the nondisclosure/ non-use obligations imposed by this
Article 6 and both parties shall take appropriate steps to implement and
enforce such non-disclosure/non-use obligations. The foregoing restrictions
on disclosure and use shall survive for three (3) years following termination
of this Agreement but shall not apply with respect to any Confidential
Information which (i) was or becomes publicly known through no fault of the
receiving party; (ii) was rightfully known or becomes rightfully known to the
receiving party without confidential or proprietary restriction from a source
other than the disclosing party; (iii) is independently developed by the
receiving party without the participation of individuals who have had access
to the Confidential Information; (iv) is approved by the disclosing party for
disclosure without restriction in a written document which is signed by a
duly authorized officer of such disclosing party; (v) by the receiving party
in connection with the securities filings with the Securities and Exchange
Commission or as otherwise required by government regulation, or (vi) the
receiving party is legally compelled to disclose; provided, however, that
prior to any such compelled disclosure, the receiving party will (a) assert
the privileged and confidential nature of the Confidential Information
against the third party seeking disclosure and (b) cooperate fully with the
disclosing party in protecting against any such disclosure and/or obtaining a
protective order narrowing the scope of such disclosure and/or use of the
Confidential Information. In the event that such protection against
disclosure is not obtained, the receiving party will be entitled to disclose
the Confidential Information, but only as and to the extent necessary to
legally comply with such compelled disclosure. Notwithstanding the provisions
set forth in this Section 6.1 above, each party may disclose the terms of
this Agreement (i)
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in connection with the requirements of an initial public offering or securities
filing; (ii) in confidence, to accountants, banks, and financing sources and
their advisors; (iii) in confidence, in connection with the enforcement of this
Agreement or rights under this Agreement; or (iv) in confidence, in connection
with a merger or acquisition or proposed merger or acquisition, or the like.
6.2 SOURCE CODE. With respect to the BuySite Product Source Code disclosed
by Commerce One to PeopleSoft hereunder, the following additional provisions
shall apply:
(a) PeopleSoft agrees to use the BuySite Product Source Code under
carefully controlled conditions in accordance with and for the purposes of this
Agreement, and to inform those employees who are given access to the BuySite
Product Source Code that such materials are the confidential and proprietary
information of Commerce One and disclosed to PeopleSoft as such. PeopleSoft
agrees to limit access to the BuySite Product Source Code strictly to those
employees, agents or contractors who require access in order to carry out the
Development Task, and PeopleSoft agrees to use reasonable care in selecting such
personnel. PeopleSoft shall be fully responsible for the conduct of all its
employees, agents and representatives. PeopleSoft will use same degree of care
with respect to the BuySite Product BuySite Product Source Code as PeopleSoft
uses for PeopleSoft PeopleTools Source Code, but in no event less than
reasonable care.
(b) Without limiting the foregoing, PeopleSoft, prior to any
individual's access to the BuySite Product Source Code, shall enter into a
confidentiality agreement with each such individual, if it has not done so
already with such individual, which shall afford substantially similar
protections to those afforded herein. Commerce One shall have the right to
reasonably request to review such confidentiality agreements. Nothing in this
Article 6 shall be construed to permit access to the BuySite Product Source Code
by anyone other than PeopleSoft' employees, contractors, or agents.
ARTICLE 7
TERM AND TERMINATION
7.1 TERM. This Agreement shall commence on the Effective Date and shall
terminate upon the earlier of (1) the delivery of Buysite 6.0P by Commerce One
and acceptance of Buysite 6.0P by PeopleSoft, and (2) the expiration or
termination of the OEM Agreement, unless the parties mutually agree to extend
the term of this Agreement.
7.2 FOR CAUSE. Either party may terminate this Agreement effective upon
written notice to the other if the other party materially breaches this
Agreement which breach is not cured within thirty (30) days after written notice
thereof from the non-breaching party stating its intention to terminate this
Agreement by reason thereof.
7.3 FOR BANKRUPTCY. Either party may terminate this Agreement in the event
the other party files for bankruptcy under Chapter 7 of the U.S. Bankruptcy Act
or an involuntary petition in bankruptcy is filed against a party which is not
dismissed within ninety (90) days.
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7.4 SURVIVAL. The parties' rights and obligations with respect to the
following Sections and Articles shall survive any termination of this Agreement:
Articles 3, 4, 5, 6, 8, and 9.
ARTICLE 8
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR
ANY LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF USE OR DATA, OR FOR
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN), OR FOR
ANY CLAIM AGAINST SUCH PARTY BY ANY THIRD PARTY.
IN ANY EVENT, BOTH PARTIES LIABILITY TO THE OTHER SHALL BE LIMITED IN THIS
AGREEMENT TO THE AMOUNTS AND IN THE MANNER AS THAT SET FORTH IN THE OEM
AGREEMENT.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 INDEPENDENT CONTRACTORS. The relationship of Commerce One and
PeopleSoft established by this Agreement is that of independent contractors, and
neither party is an employee, agent, partner or joint venturer of the other. All
financial obligations associated with each party's business are the sole
responsibility ofsuch party. All sales and other agreements between a party and
third parties are such party'sexclusive responsibility and will have no effect
on such party's obligations under this Agreement.
9.2 ASSIGNMENT. Except as set forth in this Section 9.2 below, neither
party shall transfer or assign its rights or obligations under this Agreement
without the prior written consent of the other party and any purported
assignment in violation of the foregoing shall be null and void. Either party
shall have the right to assign this Agreement, or any of its rights or
obligations hereunder, to any wholly owned subsidiary or any successor in
interest to all or substantially all of such party's business or assets related
to this Agreement, whether by merger, reorganization, asset sale or otherwise.
Subject to the foregoing, this Agreement will be binding upon and inure to the
benefit of the parties hereto, their successors and assigns.
9.3 NO IMPLIED WAIVERS. The failure of either party at any time to require
performance by the other of any provision hereof shall not affect the right of
such party to require performance at any time thereafter, nor shall the waiver
of either party of a breach of any provision hereof be taken or held to be a
waiver of a provision itself.
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9.4 SEVERABILITY. If any provision of this Agreement is held to be invalid
by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The parties agree to renegotiate
in good faith those provisions so held to be invalid to be valid, enforceable
provisions which provisions shall reflect as closely as possible the original
intent of the parties, and further agree to be bound by the mutually agreed
substitute provision.
9.5 FORCE MAJEURE. Except for payment of monies, neither party shall be
liable for failure to fulfill its obligations under this Agreement or any
purchase order issued hereunder or for delays in delivery due to causes beyond
its reasonable control, including, but not limited to, acts of God, man-made or
natural disasters, earthquakes, fire, riots, flood, material shortages, strikes,
delays in transportation or inability to obtain labor or materials through its
regular sources. The time for performance of any such obligation shall be
extended for the time period lost by reason of the delay.
9.6 CONFLICTING TERMS. The parties agree that the terms and conditions of
this Agreement shall prevail, notwithstanding contrary or additional terms, in
any purchase order, sales acknowledgment, confirmation or any other document
issued by either party effecting the purchase and/or sale of the BuySite
Products.
9.7 HEADINGS. Headings of Sections and Articles herein are inserted for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
9.8 NOTICE. Any notice required or permitted to be given under this
Agreement shall be delivered (i) by hand, (ii) by registered or certified mail,
postage prepaid, return receipt requested, to the address of the other party
first set forth above, or to such other address as a party may designate by
written notice in accordance with this Section 9.8, (iii) by overnight courier,
or (iv) by fax with confirming letter mailed under the conditions described in
(ii) above. Notice so given shall be deemed effective when received, or if not
received by reason of fault of addressee, when delivered.
9.9 GOVERNING LAW. This Agreement shall be governed by and construed under
the law of the State of California, U.S.A., without regard to conflict of laws
principles.
9.10 DISPUTES. If Commerce One and PeopleSoft, are unable to resolve any
dispute, controversy or claim arising out of this Agreement between them, either
Commerce One or PeopleSoft may, by written notice to the other, first have such
dispute referred to the Vice President, Engineering (or equivalent) of Commerce
One and PeopleSoft, for attempted resolution by good faith negotiations within
five (5) business days after such notice is received. If not resolved within
such five (5) business day period, the parties shall escalate the dispute their
respective Presidents for resolution within fifteen (15) business days after
expiration of the initial five day period. Unless otherwise mutually agreed, the
negotiations between the designated officers shall be conducted by telephone or
otherwise, within three (3) days and at times within the period stated above
offered by the designated officer of PeopleSoft to the designated officer of
Commerce One for consideration. If the parties are unable to resolve such
dispute in accordance with the aforementioned procedure or within such thirty
(30) day period, either party shall have the right to pursue settlement of such
dispute by arbitration as set forth in Section 9.11.
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9.11 ARBITRATION. Any dispute or claim arising out of or in relation to
this Agreement, or the interpretation, making, performance, breach or
termination thereof, shall be finally settled by binding arbitration under the
Rules of the American Arbitration Association as presently in force ("Rules")
and by one (1) arbitrator mutually agreed upon the parties or if not agreed,
than appointed in accordance with said Rules; provided however that either party
may elect to have the dispute resolved by three (3) arbitrators in which event
each party shall appoint one of the arbitrators and the third arbitrator will be
appointed by the first two arbitrators. Judgment on the award rendered may be
entered in any court having jurisdiction thereof. The place of arbitration shall
be San Francisco, California, U.S.A. Any monetary award shall be in U.S. dollars
and the arbitration shall be conducted in the English language. The parties may
apply to any court of competent jurisdiction for temporary or preliminary
injunctive relief, without breach of this Section 9.11 and without any
abridgment of the powers of the arbitrator. In the event that the parties are
deadlock on the Acceptance Criteria, the parties shall submit the dispute to
binding arbitration pursuant to this Section 9.11, and the arbitrator shall have
thirty days to resolve the dispute after submission of the issue to arbitration
and appointment of the arbitrator(s) as set forth above. The arbitrator shall be
directed to resolve all other disputes submitted to arbitration in an
expeditious fashion.
9.12 ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes all prior
agreements relating thereto, written or oral, between the parties. Amendments to
this Agreement must be in writing, signed by the duly authorized officers of the
parties. The terms of any purchase order are expressly excluded.
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COMMERCE ONE, INC. PEOPLESOFT, INC.
By: /s/ Robert M. Tarkoff By: /s/ Craig Conway
------------------------------------ ---------------------------------
Print Name: Robert M. Takoff Print Name Craig Conway
---------------------------- -------------------------
Title: Vice President & General Counsel Title: President, CEO
--------------------------------- -----------------------------
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EXHIBIT A
DEVELOPMENT EXHIBIT
-------------------
DELIVERABLES
PEOPLESOFT DELIVERABLES
PeopleSoft will perform necessary changes to the base Commerce One documentation
and produce necessary CD's. No hard-copy documentation will be delivered.
PeopleSoft will package and ship software.
PeopleSoft will incorporate BuySite demos into existing PeopleSoft sales demos.
Connector between the 7.5 Purchasing module of the PeopleSoft software and
Commerce One's MarketSite software ("PeopleSoft Purchasing to MarketSite
Connector"). Delivery Date: Same as BuySite 6.0.
The portion of the BuySite Connector (as further defined below) consisting of
the inbound and outbound connectors that interface to the PeopleSoft 7.5
software. Delivery Date: Same as BuySite 6.0
COMMERCE ONE DELIVERABLES:
(a) BuySite 5.0P Demo: Customized version of Commerce One's BuySite 5.0 Demo
incorporating the following changes:
Commerce One will put agreed-upon branding on end user screens.
Commerce One will remove all Travel and Expense-related information and
functionality from BuySite 5.0P Demo.
Approximate Delivery Date: June 7, 1999
(b) BuySite 5.0P: Customized version of Commerce One's BuySite 5.0 incorporating
the following changes:
Shippable standalone product.
Commerce One will put agreed-upon branding in BuySite.
Commerce One will remove all Travel and Expense-related information and
functionality from BuySite 5.0P.
Approximate Delivery Date: June 30
(c) BuySite 6.0
Approximate Delivery Date for BuySite 6.0 is December 31, 1999
PeopleSoft and Commerce One agree that the following changes will need to be
implemented in concurrence with the BuySite 6.0 release.
Commerce One will modify BuySite to support isolation of User Interface and
business objects (e.g., cascading style sheets) in order to enable BuySite 6.0
to serve as the basis for the future PeopleSoft Product (as defined in the OEM
Agreement).
Commerce One will modify BuySite to support the Oracle DBMS to meet the DBMS
platform testing criteria set forth below. PeopleSoft will specify the
appropriate releases of Oracle 7 and 8 that were certified with PeopleSoft 7.5
software.
Commerce One will deliver an upgrade computer program for upgrading BuySite 5.0P
customers from BuySite 5.0P to 6.0P. This upgrade program shall be
substantially similar to upgrades delivered by Commerce One for upgrades from
BuySite 5.0 to 6.0.
Commerce One will provide the ability to configure BuySite 6.0 based on
installation options. This will include the prevention of redundant transaction
entry when integrated with PeopleSoft 7.5 software (i.e., if receipts are
entered via PeopleSoft 7.5 Purchasing module, receipt entry in BuySite should be
turned off), and will dictate the flow of Purchase Orders (i.e., to merchant in
standalone, to PeopleSoft 7.5 Purchasing module when integrated).
Commerce One will modify the installation script to accommodate different
BuySite settings depending on which PeopleSoft modules are present.
The portion of the BuySite Connector (as defined above) consisting of the
inbound and outbound connectors that interface to the BuySite Product,
(collectively, the "BuySite Connectors") shall mean the connector between the
PeopleSoft 7.5 software and BuySite 6.0, which will include but not be limited
to the following:
PeopleSoft HR to BuySite: User Populator including net change (we will decide
if this is necessary)
PeopleSoft Purchasing to and from BuySite
Chart of accounts and other control tables synchronization
Push purchase requisition from BuySite to PeopleSoft Purchasing
Push status and Purchase Order Number from PeopleSoft Purchasing to BuySite
Push Purchase Orders from PeopleSoft Purchasing to MarketSite
Push receipts from BuySite to PeopleSoft purchasing
(d) BuySite 6.0P
The release of BuySite 6.0 and 6.0P shall be linked to PeopleSoft acceptance
of BuySite 6.0P, which acceptance shall not be unreasonably withheld.
Commerce One will release to PeopleSoft BuySite 6.0P on the same date as
BuySite 6.0. BuySite 6.0P is the same base code line as BuySite 6.0 with a
separate branding.
Commerce One will remove all Travel and Expense related information and
functionality from BuySite 6.0P (potentially a part of the installation
configurability discussed above).
Quality Assurance for BuySite 6.0P is a joint effort between PeopleSoft and
Commerce One.
TERMS OF ACCEPTANCE
BuySite 6.0P will be considered an accepted release by both parties upon the
completion of development, Quality Assurance testing, and Performance testing
of the following items:
Support for Features and Functions identified in the Commerce One BuySite 6.0
Product Plan and BuySite 6.0 and BuySite 6.0P features identified above. The
feature list may be changed during the course of development by the Joint
Development Committee.
Meeting of mutually agreed performance criteria related to number of concurrent
users and transaction execution time as required by our mutually agreed target
customer.
Meeting of mutually agreed outstanding defect levels, using mutually agreed
defect categorization rules.
This list of items may be changed by the Joint Development Committee during the
project.
Acceptance Criteria:
Detailed acceptance criteria including Quality Assurance for System and DBMS
Platform testing and Performance testing will be jointly developed and signed
off by `The Committee' and Sr. VP's of engineering. The Quality Assurance test
plans will list the target features, will include test scripts for identified
features, and will executed during the release cycle until the exit criteria for
both System Test and DBMS Platform Test phases have been met. Exit criteria for
both of these phases includes the following:
100% test scripts/procedures are executed.
All incidents have been reviewed.
Incident trend is going down.
No known open application critical or urgent incidents (priority one or two)
remain, however there may be standard and low (priority three or four) incidents
open.
UPGRADES
Commerce One will carry the risk for transition from MarketSite.Net 2.0 to 3.0.
COMMERCE ONE, INC. PEOPLESOFT, INC.
By: By:
Print Name: Print Name:
Title: Title:
