Exhibit 10.16
FIRST AMENDMENT TO OUTSOURCER ALLIANCE AGREEMENT
BETWEEN
USINTERNETWORKING, INC.
AND
PEOPLESOFT USA, INC.
(NON-EXCLUSIVE DISTRIBUTION TERMS)
This First Amendment ("First Amendment") to the Outsourcer Alliance Agreement
between PeopleSoft USA, Inc. and USINTERNETWORKING, INC. ("Service Provider")
dated September 28, 1998 ("Agreement") is effective as of 21 March 1999 ("First
Amendment Effective Date"). This Amendment is created pursuant to Section 14 (o)
of the Agreement. The parties agree that the Sections of the Agreement set forth
below are modified as follows:
1. DEFINITIONS
Unless otherwise defined herein, capitalized terms shall have the same meaning
as those referenced in the Agreement.
"COMMERCIAL ENTERPRISE" means only enterprises within the Market Segments
with annual revenues of not more than, [CONFIDENTIAL TREATMENT] as reported
on a consolidated basis in (1) such enterprise's most recent fiscal year end
audited financials, or if not available, (2) by the One Source database, with
the exception of enterprises in the higher education and government (public
sector and federal) segments where only a right of first refusal to a third
party is in effect.
"MINIMUM QUARTERLY ROYALTY GUARANTEE (MQRG)" means the minimum amount of
non-cancelable, non-refundable Software license fees that Service Provider is
obligated to pay PeopleSoft each applicable independent calendar quarter for
Service Provider's right to distribute Software, in the amounts as specifically
stated in the subsection entitled MINIMUM YEARLY ROYALTY GUARANTEES.
2. LICENSE GRANTS
THE FOLLOWING PARAGRAPH IS ADDED:
(a) INTERNAL USE LICENSE, (B) DEVELOPMENT LICENSE (C) END USER TRAINING LICENSE
In connection with Service Provider's enhanced rights under this First Amendment
to act as a distributor of the Software, PeopleSoft grants Service Provider: (1)
a personal, internal use license and development license to the Software listed
in Exhibit B hereto and which is commercially available as of the First
Amendment Effective Date; and (2) a personal End User Training license to the
software listed in Exhibit C hereto and which is commercially available as of
the First Amendment Effective Date.
Page 1 of 13
_______________________
[CONFIDENTIAL TREATMENT] means that certain confidential
information has been deleted from this document and filed
separately with the Securities and Exchange Commission.
For these two new license rights, Service Provider shall pay PeopleSoft a
noncancelable, nonrefundable [CONFIDENTIAL TREATMENT] license fee on or
before 31 March 1999.
THE FOLLOWING NEW SUBSECTION IS ADDED:
(g) MINIMUM QUARTERLY ROYALTY GUARANTEES ("MQRG")
PeopleSoft grants Service Provider a non-exclusive right to distribute Software
solely to Commercial Enterprises in the Territory.
Service Provider shall pay PeopleSoft the following MQRGs for the period from 1
April 1999 until 31 December 2000 ("MQRG Term"):
DATE PAYMENT DUE AMOUNT
---------------- ------
30 June 99 the greater of actual Software license fees paid to PSFT (including the
addition of Software or Services paid by Service Provider to PeopleSoft under
the Software License and Service Agreement made as of March 31, 1999, to
process the internal data of [CONFIDENTIAL TREATMENT]) or [CONFIDENTIAL TREATMENT]
cumulative to date;
30 Sept 99 the greater of actual Software license fees paid to PSFT or [CONFIDENTIAL TREATMENT]
cumulative to date;
31 Dec 99 the greater of actual Software license fees paid to PSFT or [CONFIDENTIAL TREATMENT]
cumulative to date;
31 March 00 the greater of actual Software license fees paid to PSFT or [CONFIDENTIAL TREATMENT]
cumulative to date;
30 June 00 the greater of actual Software license fees paid to PSFT or [CONFIDENTIAL TREATMENT]
cumulative to date;
30 Sept 00 the greater of actual Software license fees paid to PSFT or [CONFIDENTIAL TREATMENT]
cumulative to date; and
31 Dec 00 the greater of actual Software license fees paid to PSFT or [CONFIDENTIAL TREATMENT]
cumulative to date.
Unless the Agreement is properly terminated by Service Provider under Section 12
(b) or by PeopleSoft under Section 12 (b) or 12 (c), during the MQRG Term,
Service Provider's total MQRG to PeopleSoft shall be a non-cancelable,
non-refundable [CONFIDENTIAL TREATMENT].
Page 2 of 13
For each Software license distributed, Service Provider shall pay PeopleSoft a
non-cancelable, non-refundable payment of [CONFIDENTIAL TREATMENT] of the
then-current list Software license fee charged to the End User or Designated
Customer as set forth in PeopleSoft's then-current price calculator or price
list. Service Provider has no rights to return Software licenses reported by
Service Provider from PeopleSoft.
A hypothetical example for illustrative purposes only is set forth in Exhibit A
hereto.
The accounting for and reporting of each MQRG payment shall be made by Service
Provider to PeopleSoft by the last day of each calendar quarter, with a
contemporaneous payment on that last day of the calendar quarter as well.
PeopleSoft shall have the right to adjust the list prices for the Software from
time to time and will provide Service Provider with at least ninety (90) days
prior written notice of such price increases and all such price increases shall
be general market price increases for all other third party providers of
Software or Support Services.
Service Provider shall Sublicense the Software only to Commercial Enterprise End
Users and only pursuant to sublicense agreements substantially in the form as
the PeopleSoft License Agreement, which includes all applicable increased
license fee payments based on an End User's growth.
In addition to the pertinent Software sublicense fee payable by Service
Provider to PeopleSoft, Service Provider shall also pay PeopleSoft Support
Services fees at the rate of [CONFIDENTIAL TREATMENT] of the then-current
value based multi-pricing model Software fee charged to of the Commercial
Enterprise End User license fee. Since the first year of Support Services is
included in the Software license fee, Service Provider's payment obligation
to PeopleSoft for Support Services arises one (1) year after the specific
Software modules are sublicensed to End Users. Service Provider has first
line Support Service obligations and PeopleSoft has second line Support
Service Obligations.
Service Provider shall have the right to transfer the right to use the
Software to a successor-in-interest to a specific End User with appropriate
growth clause payments payable to PeopleSoft less the [CONFIDENTIAL TREATMENT]
price reduction retained by Service Provider.
Service Provider shall have the right to provide End User's with access to
Service Provider's financing programs and offer any financing entity the right
to retain a security interest solely in the Software license, with limited
remarketing capabilities vesting in the Service Provider's financing entity for
the specific End User Software license only upon the prior written consent of
PeopleSoft (which consent shall not be unreasonably withheld or delayed). Title
to the Software shall not transfer to Service Provider, the End User or any
other entity.
After the First Amendment Effective Date, all payments under the Agreement and
the Select Partner Agreement between Service Provider (as a Select Partner) and
PeopleSoft,
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dated June 30, 1998, (except the Annual Select Partner Program Fee) may be
credited towards satisfying the MQRG. Service Provider's payments under the
Agreement shall be credited towards satisfying the MQRG in the full amount of
the licensing fee that would have been paid by Service Provider but for the
revenue sharing model of aggregate Fees under Exhibit A of the Agreement.
On a limited case by case basis by separate written amendment to the
Agreement, PeopleSoft, may authorize Service Provider to distribute or
Sublicense the Software to enterprises with annual revenues of more than
[CONFIDENTIAL TREATMENT]. Distribution outside of the Commercial Enterprise
parameter will be the exception rather than the rule and PeopleSoft shall
have complete discretion to make the decision in that regard. Service
Provider commits to the [CONFIDENTIAL TREATMENT]MQRG above based on a
distribution model solely to Commercial Enterprises, however, in the event
distribution outside of the Commercial Distribution model is granted by
PeopleSoft in its discretion, amounts thereby received by Service Provider
shall then be applied against the MQRG.
5. TERMS
THE FOLLOWING NEW SENTENCE IS ADDED AT THE END OF THE CURRENT SUBSECTION
ENTITLED REPORTING:
Service Provider shall also provide PeopleSoft with reports as set forth above
for Software licenses acquired and distributed pursuant to Section 1 (g).
6. MARKETING OBLIGATIONS
THE FOLLOWING NEW SUBSECTION IS ADDED:
(a) PARTIES' OBLIGATIONS.
(3) Service Provider shall contribute not less than [CONFIDENTIAL TREATMENT]
in co-marketed print advertising campaigns with PeopleSoft over a two
year period commencing on the First Amendment Effective Date, with the
condition that Service Provider shall not contribute any more money
for a particular advertising campaign than that contributed by any
other Outsourcing Alliance Partner mentioned in the same campaign.
PeopleSoft has no financial contribution responsibility under this
subsection. The contributions shall be amortized over the two year
period as the parties mutually agree in writing, but in the absence of a
written agreement, the amounts shall be [CONFIDENTIAL TREATMENT]
accumulated quarter per calendar quarter. Service Provider's contribution
obligation under this Section shall cease immediately upon notification
by PeopleSoft of its notice to terminate the Agreement pursuant to
Section 12 (b) or 12 (c).
Page 4 of 13
7.5 PEOPLESOFT OBLIGATIONS
THE FOLLOWING NEW SUBSECTION IS ADDED:
(a) PEOPLESOFT SALES FORCE COMPENSATION PLAN
When Service Provider Sublicenses Software licenses pursuant to Section 2
(g), PeopleSoft shall pay its direct sales force employees commissions in the
same amounts as if [CONFIDENTIAL INFORMATION]. In no event shall the
commissions payable by PeopleSoft to its sales force be less than PeopleSoft
otherwise commissions its sales force for Software licenses marketed through
any other Outsource Alliance Partner.
Within five (5) business days of the First Amendment Effective Date, PeopleSoft
shall communicate immediately to its sales force that it may conduct business
and market with Service Provider. Within thirty (30) days of signing, PeopleSoft
shall have in full force and effect a PeopleSoft Sales Force Compensation Plan,
as described in the preceding paragraph.
12. TERM AND TERMINATION
THE FOLLOWING NEW SUBSECTION (C)REPLACES THE EXISTING SUBSECTION:
(i) Either party may terminate this Agreement for any reason or no reason at
all, not less than ninety (90) days after giving the other party written notice
of intent to so terminate.
Such a convenience termination by Service Provider will not diminish or
eliminate Service Provider's obligation to pay PeopleSoft all past, current
and future MQRGs. For the avoidance of doubt all [CONFIDENTIAL TREATMENT]
MQRG obligations of Service Provider shall survive termination of this
Agreement for convenience by Service Provider; provided, however, that all
future MQRG's due and owing at the time of termination for convenience by
Service Provider shall not be accelerated but shall be paid according to the
MQRG Term schedule set forth in Section 1 (g) above.
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14. GENERAL
THE FOLLOWING NEW SUBSECTION IS ADDED:
(p) In any action to enforce the terms of the Agreement, the prevailing party
shall be entitled to its reasonable attorney's fees, costs and expenses.
In addition to the terms of this First Amendment, all other terms and conditions
of the Agreement remain in full force and effect. In the event any term
contained in this First Amendment conflicts with any term in the Agreement, the
term set forth in this First Amendment shall take precedence. The parties hereto
have caused this First Amendment to be executed by their duly authorized
representatives as of the First Amendment Effective Date.
USINTERNETWORKING, INC. PEOPLESOFT USA, INC.
--------------------------------- -----------------------------
Authorized Signature Authorized Signature
--------------------------------- -----------------------------
Printed Name Printed Name
--------------------------------- ----------------------------
Title Title
Page 6 of 13
EXHIBIT A
Actual Qtr.Activity MQRG Payments
6/30/99 [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] activity is paid along with
[CONFIDENTIAL TREATMENT] shortfall
9/30/99 [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] activity is paid along with
[CONFIDENTIAL TREATMENT] cumulative shortfall is paid to
reach the [CONFIDENTIAL TREATMENT] cumulative MQRG
12/31/99 [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] activity is paid; Cumulative
actual of [CONFIDENTIAL TREATMENT] against
[CONFIDENTIAL TREATMENT] cumulative MQRG
3/31/00 [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] is paid; Cumulative actual of
[CONFIDENTIAL TREATMENT] against [CONFIDENTIAL TREATMENT]
MQRG
6/30/00 [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT] is paid, Cumulative actual of
[CONFIDENTIAL TREATMENT] against [CONFIDENTIAL TREATMENT]
cumulative MQRG, therefore additional [CONFIDENTIAL TREATMENT]
is paid
Page 7 of 13
EXHIBIT B
SOFTWARE / SERVICES
------------------------------------------------------------------ --------------------------- ---------------- ----------------
SOFTWARE MODULES MFR. PROVIDED COPIES FEE
---------------- ---- --------------- ---
------------------------------------------------------------------ --------------------------- ---------------- ----------------
HRMS SOFTWARE MODULES
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Human Resources PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Benefits Administration PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Payroll(1) PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Payroll Interface PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Time & Labor(2) PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
FSA Administration PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
FINANCIALS SOFTWARE MODULES
------------------------------------------------------------------ --------------------------- ---------------- ----------------
General Ledger PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Budgets(3) PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Asset Management(4) PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Payables PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Receivables PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Billing PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Projects(5) PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Expenses PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Cash Management, Deal Management and Risk Management PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
DISTRIBUTION SOFTWARE MODULES
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Purchasing PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Inventory PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Order Management(6) PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Product Configurator PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Order Promising PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Remote Order Entry PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
MANUFACTURING SOFTWARE MODULES(7)
------------------------------------------------------------------ --------------------------- ---------------- ----------------
----------------------
(1) The license for the Payroll Software module includes a restricted use
license for the Human Resources Software module. Such restricted use
license means that the Human Resources Software module shall only be
used in order to access the features and functions of the Payroll
Software module.
(2) The license for the Time and Labor Software module includes a
restricted use license for the Human Resources Software module. Such
restricted use license means that the Human Resources Software module
shall only be used in order to access the features and functions of
the Time and Labor Software module.
(3) The license for the Budgets Software module includes a restricted use
license for the General Ledger Software module. Such restricted use
license means that the General Ledger Software module shall only be
used in order to access the features and functions of the Budgets
Software module.
(4) The server version of SQR MUST be licensed.
(5) The license for the Projects Software module includes a restricted use
license for General Ledger. Such restricted use license means that the
General Ledger Software module shall only be used in order to access
the features and functions of the Projects Software module.
(6) The license for the Order Management Software module includes a
restricted use license for the Inventory Software module. Such
restricted use license means that the Inventory Software module shall
only be used in order to access the features and functions of the
Order Management Software module.
(7) The license for any Manufacturing Software module includes a
restricted use license for the Inventory Software module. Such
restricted use license means that the Inventory Software module shall
only be used in order to access the
Page 8 of 13
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Engineering PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Bills and Routing PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Production Planning - Basic PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Production Planning - Advanced PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Production Management PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Cost Management PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Quality PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
OTHER SOFTWARE
------------------------------------------------------------------ --------------------------- ---------------- ----------------
PeopleTools - Restricted Development(8) PeopleSoft, Inc. 1 Included
------------------------------------------------------------------ -------------------------- ----------------- ----------------
Workstation Access for "n"(9) users (includes base application PeopleSoft, Inc. Sybase, Included Included
access, PeopleSoft Workflow, Workstation SQR, QueryLink, Inc./SQRIBE
Crystal, nVision). Technologies Crystal
Computer Services
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Server SQR for "n" servers(10) Sybase, Inc./ SQRIBE 1 Included
Technologies.
------------------------------------------------------------------ --------------------------- ---------------- ----------------
PowerPlay 5 user pack(11) Cognos Corp. 1 Included
------------------------------------------------------------------ --------------------------- ---------------- ----------------
PeopleTools - General Dev.(12) PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
Test and Development License PeopleSoft, Inc. 1
------------------------------------------------------------------ --------------------------- ---------------- ----------------
------------------------------------------------------------------ --------------------------- ---------------- ----------------
SUBTOTAL LICENSE FEES: $
---------------------------------------------------------------------------------------------------------------- ---------------
1. SPECIFIC LICENSED USE: Licensee's use of the Software is limited to
each of the following restrictions.
------------------------------------------------------------------------------------------------ -------------------------------
TERRITORY United States of America
------------------------------------------------------------------------------------------------ -------------------------------
SOFTWARE(13) (indicate the country specific global version or local version(14) for each American English language
country within the Territory in which or for which the Software will be used) with U.S. functionality
------------------------------------------------------------------------------------------------ -------------------------------
---------------------
features and functions of such licensed Manufacturing Software
modules.
(8) PeopleTools for Restricted Development shall be used by Licensee to
develop interfaces and modification only to the licensed PeopleSoft
Software application modules.
(9) "n" is that number necessary to effect the purpose for which the
Software is licensed in accordance with this Agreement.
(10) Licensee must license one (1) copy of Server SQR for each server upon
which it has installed the Software.
(11) PowerPlay shall be licensed for each named user.
12) PeopleTools for General Development shall be used solely to develop
applications for Licensee's internal systems. Licensee shall not
market or distribute such applications. Any third party software
required by Licensee must be licensed directly from PeopleSoft or the
software manufacturer.
(13) PeopleSoft makes no representations regarding any functionality
contained in the Software versions to which Licensee has rights as set
forth in this table except as set forth in the Documentation. Except
as otherwise explicitly set forth in this Schedule, Licensee shall not
be entitled to: (i) local country Support Services, including without
limitation, account management; or (ii) local country installation.
Page 9 of 13
2. TECHNICAL ENVIRONMENT:
--------------------------- ------------------------ -------------------------- --------------------------- ----------------------
DATABASE VERSION HARDWARE MODEL OPERATING SYSTEM CLIENTS TOPOLOGY/NETWORK
--------------------------- ------------------------ -------------------------- --------------------------- ----------------------
HP HP UX Windows Ethernet
Oracle
--------------------------- ------------------------ -------------------------- --------------------------- ----------------------
3. INCREMENTAL LICENSE FEES: Licensee may use the Software licensed pursuant
to this Schedule to process its data, provided that Licensee's employee count
does not exceed [CONFIDENTIAL TREATMENT] employees. Each year on the
Anniversary Date (defined as the month and date of the Schedule Effective
Date), Licensee shall report to PeopleSoft the number of employees ("REPORTED
EMPLOYEES") when the number of employees exceeds [CONFIDENTIAL TREATMENT],
Licensee shall pay PeopleSoft an additional non-refundable, non-cancelable
license fees equal to the then current Incremental expansion fee as set forth
in PeopleSoft's then current price list for each incremental increase in
employee count Licensee shall pay additional license fees in accordance with
the terms set forth herein upon each Report.
--------------------
(14) Local support services must be purchased for each country in which or
for which a local version of the Software will be used.
Page 10 of 13
EXHBIT C
SCHEDULE
TO THE
FIRST AMENDMENT TO OUTSOURCER ALLIANCE AGREEMENT
This independent Schedule ("SCHEDULE") is made as of 21 March 1999 ("SCHEDULE
EFFECTIVE DATE") by and between PeopleSoft USA, Inc. ("PEOPLESOFT") and
USINTERNETWORKING, INC. ("LICENSEE"). This Schedule is part of the First
Amendment to the Outsource Alliance Agreement between the parties dated 21 March
1999 ("AGREEMENT"). Capitalized terms used herein shall have the same meaning
ascribed to them in the Agreement.
1. LICENSE GRANT: PeopleSoft grants to Licensee a non-exclusive,
nontransferable, perpetual license to use those PeopleSoft End-User Training
products for the application(s) listed below ("MATERIALS") and to make an
unlimited number of copies of the Materials only as necessary to provide
End-User Training solely to Licensee's employees and Designated Customers and
End Users for the Software, subject to the terms and conditions set forth in the
Agreement for such Software, provided all copyright notices are reproduced as
provided on the original. Licensee is prohibited from reselling or distributing
the Materials to any other party, or using the Materials other than as
explicitly permitted herein or in the Agreement. PeopleSoft represents that the
Materials contain valuable proprietary information. PeopleSoft (or its
third-party Software providers) retains title to all portions of the Materials
and any copies thereof. If Licensee creates a modification to the Materials,
Licensee shall only have title in such modification that remains after the
Developer's Kit has been separated from the modification ("LICENSEE
MODIFICATION"). Licensee shall use Materials modifications created by Licensee
solely for its internal use in accordance with the terms of this Agreement. In
the event Licensee provides Licensee Modifications to PeopleSoft, PeopleSoft
shall have a perpetual, royalty-free license from Licensee to use, enhance and
incorporate such modifications into PeopleSoft's software products for use and
distribution. Licensee may provide access to and use of the Materials only to
those third parties that: (i) provide services to Licensee concerning Licensee's
use of the Materials; (ii) have a need to use and access the Materials; and
(iii) have agreed to substantially similar non-disclosure obligations imposed by
Licensee as those contained in the Agreement.
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Materials(15) MFR. PROVIDED COPIES FEE
---------------------------------------------------------- ------------------------------- -------------------- ----------------
---------------------------------------------------------- ------------------------------- -------------------- ----------------
MATERIALS THAT SUPPORT HRMS SOFTWARE MODULES
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Human Resources Version 6 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Human Resources Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Human Resources Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Human Resources for Canada Version 6 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Human Resources for Canada Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Human Resources for Canada Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Human Resources for Global Functionality Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Human Resources for Education and Gov't Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Benefits Administration Version 6 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Benefits Administration Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Benefits Administration Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Benefits Administration for Education and PeopleSoft, Inc. 1 $
Gov't Version 7
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Payroll Version 6 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Payroll Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Payroll Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Payroll for Canada Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
-----------------
(15) The license for any Materials includes a limited use license for the
Single User version of the associated Software module. Such limited
use license means that the Single User version shall only be used in
order to access the features and functions of such licensed Materials.
All Materials are in English and support the American English global
Software module functionality only, unless explicitly stated
otherwise.
Page 11 of 13
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Payroll for Education and Gov't Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Time & Labor Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
MATERIALS THAT SUPPORT FINANCIALS SOFTWARE MODULES
---------------------------------------------------------- ------------------------------- -------------------- ----------------
General Ledger Version 6 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
General Ledger Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
General Ledger Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Payables Version 6 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Payables Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Payables Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Receivables Version 6 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Receivables Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Receivables Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Billing Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
MATERIALS THAT SUPPORT DISTRIBUTION SOFTWARE MODULES
--------------------------------------------------------------------------------------------------------------------------------
Purchasing Version 6 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Purchasing Version 7 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Purchasing Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Inventory Version 7.5 PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Other Materials
--------------------------------------------------------------------------------------------------------------------------------
Developer's Kit - Customization Development(16) PeopleSoft, Inc. 1 Included
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Developer's Kit - Customization Development Including PeopleSoft, Inc. 1 Included
Translation Rights(17)
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Developer's Kit - New Dev.(18) for PeopleSoft's HRMS PeopleSoft, Inc. 1 $
Software Modules
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Developer's Kit - New Dev.(19) for PeopleSoft's Financials PeopleSoft, Inc. 1 $
Software Modules
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Developer's Kit - New Dev.(20) for PeopleSoft's PeopleSoft, Inc. 1 $
Distribution Software Modules
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Developer's Kit - New Dev.(21) for PeopleSoft's PeopleSoft, Inc. 1 $
Manufacturing Software Modules
---------------------------------------------------------- ------------------------------- -------------------- ----------------
---------------
(16) Developer's Kit for Customization Development shall be used by
Licensee only to develop minor customizations including upgrades to
the licensed Materials set forth above. Licensee shall NOT have the
right to translate the licensed version of the Materials to another
language.
(17) Developer's Kit for Customization Development Including Translation
Rights shall be used by Licensee only to develop minor customizations
including upgrades and translations to the licensed Materials set
forth above, provided however, Licensee shall have the right to
translate to a different country language only within the associated
Territory.
(18) Developer's Kit for New Development shall be used solely to develop
end user training products which are not available from PeopleSoft for
the exclusive benefit of Licensee to support those Software modules
licensed by Licensee. Licensee shall not market or distribute such end
user training products.
(19) Developer's Kit for New Development shall be used solely to develop
end user training products which are not available from PeopleSoft for
the exclusive benefit of Licensee to support those Software modules
licensed by Licensee. Licensee shall not market or distribute such end
user training products.
(20) Developer's Kit for New Development shall be used solely to develop
end user training products which are not available from PeopleSoft for
the exclusive benefit of Licensee to support those Software modules
licensed by Licensee. Licensee shall not market or distribute such end
user training products.
(21) Developer's Kit for New Development shall be used solely to develop
end user training products which are not available from PeopleSoft for
the exclusive benefit of Licensee to support those Software modules
licensed by Licensee. Licensee shall not market or distribute such end
user training products.
Page 12 of 13
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Developer's Kit - New Dev.(22) for PeopleSoft's Supply PeopleSoft, Inc. 1 $
Chain Software Modules
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Developer's Kit - New Dev.(23) for PeopleSoft's Student PeopleSoft, Inc. 1 $
Administration Software Modules
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Reporting 7.5 - HRMS PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
Reporting 7.5 - Financials and Distribution PeopleSoft, Inc. 1 $
---------------------------------------------------------- ------------------------------- -------------------- ----------------
TOTAL FEES: $
--------------------------------------------------------------------------------------------------------------- ----------------
2. HOTLINE SUPPORT: Notwithstanding anything to the contrary, the Materials are
NOT covered under the terms and conditions of PeopleSoft's Software Support
Services program. Licensee shall be eligible to receive only hotline support for
the Materials for a period of two years commencing on the Schedule Effective
Date, at no additional support fee. The support number for the Materials for
Licensee is ▇▇▇-▇▇▇-▇▇▇▇ ex.222, toll free if Licensee is located in the U.S.
and Canada is ▇-▇▇▇-▇▇▇-▇▇▇▇. (PLEASE NOTE THAT THIS NUMBER IS DIFFERENT FROM
THAT OF PEOPLESOFT'S GLOBAL SUPPORT CENTER, USED FOR SUPPORT ON OTHER PEOPLESOFT
PRODUCTS.)
----------------------------------- --------------------------------- --------------------------------
SHIPPING INFORMATION BILLING INFORMATION TRAINING ADMINISTRATOR
----------------------------------- --------------------------------- --------------------------------
Contact: SAME AS ORIGINAL Contact: Contact: ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- --------------------------------- --------------------------------
Address: Address: Address:
----------------------------------- --------------------------------- --------------------------------
----------------------------------- --------------------------------- --------------------------------
----------------------------------- --------------------------------- --------------------------------
Phone: Phone: Phone:
----------------------------------- --------------------------------- --------------------------------
Fax: Fax: Fax:
----------------------------------- --------------------------------- --------------------------------
------------------------
(22) Developer's Kit for New Development shall be used solely to develop
end user training products which are not available from PeopleSoft for
the exclusive benefit of Licensee to support those Software modules
licensed by Licensee. Licensee shall not market or distribute such end
user training products.
(23) Developer's Kit for New Development shall be used solely to develop
end user training products which are not available from PeopleSoft for
the exclusive benefit of Licensee to support those Software modules
licensed by Licensee. Licensee shall not market or distribute such end
user training products.
Page 13 of 13
OUTSOURCER ALLIANCE AGREEMENT
WITH
USINTERNETWORKING, INC.
This Outsourcer Alliance Agreement ("Agreement") is made as of the Effective
Date by and between PeopleSoft USA, Inc., a California corporation having
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("PeopleSoft") and USINTERNETWORKING, INC., a Delaware corporation having its
principal place of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
("Service Provider"). This Agreement shall delete and supersede in their
entirety all prior contractual provisions or understandings between the
parties relating to any service bureau arrangements or any of the subject
matter relating to Outsourcing Services contemplated by this Agreement
excluding the customers of Service Provider listed on Schedule A attached
hereto; PROVIDED, HOWEVER, this this Agreement shall not have any effect upon
any contractual provisions relating to the status of Service Provider as a
Select Partner pursuant to that certain Select Partner Agreement dated as of
June 30, 1998 by and between the parties.
Whereas, the parties intend to develop a business relationship to provide
Service Provider with rights to leverage its expertise in the outsourcing
service business by hosting the Software to provide a solution within its
outsourcing business by offering the Software under sublicense as provided in
this Agreement as part of an integrated solution (the "Solution Offering");
and
Whereas, in every situation with a Designated Customer, the Designated
Customer will procure, or will have procured, either a license to use the
Software from Service Provider pursuant to a Sublicense Agreement with
payment of applicable fees indirectly to PeopleSoft, or directly from
PeopleSoft pursuant to a PeopleSoft License Agreement with payment of
applicable fees directly to PeopleSoft. Therefore, the parties agree as
follows:
1. DEFINITIONS
"APPLICATION MANAGEMENT" ("AM") means Service Provider's management of
Software for a Designated Customer on Service Provider's owned, leased, or
subcontracted for premises or premises otherwise under Service Provider's
control, such that Service Provider manages the Designated Customer's
Software, applications upgrades, performs routine maintenance, applies fixes,
performance tuning, and system enhancements, using PeopleTools, and other
functions typically performed by an in-house function and IT staff. These
services may also include the performance of such functions as DBA and OS
administration, in connection with the Software and business processes
supported by the Software. For the avoidance of doubt, Applications
Management shall not include Business Process Outsourcing.
"BUSINESS PROCESS OUTSOURCING" ("BPO") includes the functions typically
performed by staff in, for example, human resources or payroll department,
an accounting department, or
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[CONFIDENTIAL TREATMENT] means that certain confidential information has been
deleted from this document and filed separately with the Securities and
Exchange Commission.
purchasing department, on a daily basis, adding, changing, deleting, or
viewing data. BPO displaces performance of this work by the Designated
Customer to premises owned or leased by Service Provider or under Service
Provider's control within a multi-client service center such that the
Designated Customers share a common infrastructure and support staff and the
Service Provider is responsible for maintenance and management of the
systems, processes, and staff using the Service Provider's systems.
"COMMERCIAL ENTERPRISE" means all enterprises within the Market Segments,
with the exception of enterprises in the higher education and government
(public sector and federal) segments where only a right of first refusal to a
third party is in effect.
"DESIGNATED CUSTOMER(S)" means only End Users which, at the date of
execution of an Outsourcing Agreement with Service Provider, is a Commercial
Enterprise.
"DEVELOPMENT CENTER" means the location(s) of facilities owned, leased,
subcontracted for, or otherwise under Service Provider's control where
Service Provider uses or utilizes the Software pursuant to the subsections
entitled INTERNAL USE LICENSE or DEVELOPMENT LICENSE.
"DOCUMENTATION" means the user guides and manuals for installation and use of
the Software in CD-ROM and bound hard copy form.
"EFFECTIVE DATE" means September 28, 1998.
"END USER" means a third party sublicensee of the Software that acquires
rights from PeopleSoft either through a sublicense from Service Provider
pursuant to section 2(f) hereof or from PeopleSoft directly, to use the
Software solely for such party's own internal business purposes and not for
distribution, further sublicensing, or other commercial purposes.
"FEES" means the Software license fee and any all other fees including, but
not limited to, implementation fees (including fit analysis, data conversion,
minor customizations, testing, reports, interfaces and any and all other
actions necessary to migrate an End User to a production environment),
infrastructure (including, but not limited to, the operations, the
connectivity, the database and the hardware), Software Maintenance and
Support and On-going fees (including, but not limited to, the application of
fixes, enhancements, releases, upgrades, call center support, and
database/performance tuning) received by Service Provider for the provision
of Outsourcing Services or Solution Offering, as the case may be.
"INTELLECTUAL PROPERTY RIGHTS" means any patent, patent application,
copyright, moral right, trade name, trademark, trade secret, copyright, and
any applications or right to apply for registration therefor, know-how, mask
work, schematics, computer software programs or applications, tangible or
intangible proprietary information, or any other intellectual property right
or proprietary information or technology, whether registered or unregistered
and whether first made or created before or after the Effective Date.
"MARKET SEGMENTS" are limited under this agreement to all industries in the
Territory, with the exception of the higher education and government (public
sector and federal) segments where only a right of first refusal to a third
party is in effect.
"OUTSOURCING AGREEMENT" means a separate agreement between Service Provider and
a Designated Customer for the provision by Service Provider to the Designated
Customer of Outsourcing Services, which includes a Sublicense Agreement or
PeopleSoft License Agreement.
"OUTSOURCING CENTER" means the location(s) under Service Provider's control,
owned, leased, subcontracted for or otherwise, at which Service Provider may
perform Outsourcing Services.
"OUTSOURCING SERVICES" means the provision of Applications Management (AM)
services to a Designated Customer.
"PEOPLESOFT LICENSE AGREEMENT" means a written agreement between PeopleSoft and
an End User whereby the End User has been granted the non-exclusive,
non-transferable right to use the Software solely for such End User's internal
business purposes and in accordance with the Documentation. A PeopleSoft
License Agreement can be a binding agreement which commenced operation before
the Effective Date or PeopleSoft's pro forma standard End User license and
services agreement which is executed by an End User after the Effective Date.
"PRICE LIST" means Peoplesoft's standard commercial fee schedule that is in
effect when a software sublicense is ordered by the Designated Customer.
"SOFTWARE" means the current release or version of any and all commercially
available PeopleSoft HRMS, Financial, and Distribution and any other PeopleSoft
commercially available software programs and products, and includes updated or
enhanced versions of such programs that PeopleSoft may provide to a Designated
Customer or End User. Software does not include any third party software.
Software includes Documentation.
"SUBLICENSE" means a non-exclusive, a non-transferable right granted by
Service Provider under a Sublicense Addendum to a Designated Customer or End
User, as the case may be, to use the Software solely for such Designated
Customer's or End User's internal business purposes, in accordance with the
Documentation, and pursuant to a Sublicense Agreement.
"SUBLICENSE ADDENDUM" shall mean an addendum to this Agreement specifying
additional Sublicense terms and Sublicense rates and fees for the various types
of Sublicenses which may be granted by Service Provider.
"SUBLICENSE AGREEMENT" means a written agreement between Service Provider and
an End User whereby a Sublicense is granted, and that complies with the
provisions of Section 2(f) ("Sublicense Agreement").
"SUPPORT SERVICES" means PeopleSoft's then current technical support services
for Service Provider. A statement of Support Services offered as of the
Effective Date is attached hereto as Exhibit B.
"TERRITORY" means the United States of America only.
2. LICENSE GRANTS
(a) INTERNAL USE LICENSE.
Subject to the terms and conditions of this Agreement (including Service
Provider's obligation to pay the fees), PeopleSoft grants to Service Provider a
worldwide, royalty-free, non-exclusive, non-transferable license during the term
of this Agreement to use and display the Software only for the following
non-production, marketing purposes in connection with the Outsourcing Services
contemplated hereby; demonstrations; technical promotion activities; and
internal education and training of employees of Service Provider. Service
Provider may copy and distribute and/or electronically distribute the Software
within Service Provider for the purposes set forth in this subsection. Service
Provider shall reproduce all titles, trademarks, and copyright and restricted
rights notices in the Software in all such copies. Except as set forth above,
Service Provider may not transfer or duplicate the Software under this grant
except for (i) temporary transfer in the event of a CPU malfunction and (ii) a
single backup and archival copy. With the exception of the limited and
restricted use license granted pursuant to this section, all other terms and
conditions of PeopleSoft's License Agreement shall govern and apply.
(b) DEVELOPMENT LICENSE.
Subject to the terms and conditions of this Agreement (including Service
Provider's obligation to pay the fees), PeopleSoft hereby grants to Service
Provider a worldwide, non-exclusive, non-transferable license during the term of
this Agreement to use the Software at one (1) Development Center per development
license for the sole purpose of providing Software development, customization
and integration services for (i) a Designated Customer or (ii) End Users who
have already entered into (a) a PeopleSoft License Agreement, and (b) a
maintenance and support agreement with PeopleSoft.
(c) OUTSOURCING SERVICES LICENSE.
Subject to the terms and conditions of this Agreement (including Service
Provider's obligation to pay the fees). PeopleSoft hereby grants to Service
Provider a worldwide, non-exclusive, non-transferable restricted license during
the term of this Agreement to use the Software solely to perform the Outsourcing
Services at at Outsourcing Center. Service Provider may copy, distribute and/or
electronically distribute the Software within Service Provider for the purposes
set forth in this subsection. Service Provider shall reproduce all titles,
trademarks, and copyright and restricted rights notices in the Software in all
such copies. Except as set forth above, Service Provider may not transfer or
duplicate the Software except for (i) temporary transfer in the event of a CPU
malfunction and (ii) a single backup and archival copy. Except as set forth
above, Service Provider will not use the Software licensed under this grant for
the processing of Service Provider's internal administrative data. If Service
Provider wishes to use the Software licensed under this grant for the processing
of Service Provider's internal administrative data. Service Provider may do so
only at PeopleSoft's then current Price List rates. Service Provider will not
allow any third party, including an employee or other representative of a
Designated Customer, to use the Software Product under this license grant.
Service Provider further agrees to use the Software only in accordance with the
Documentation, on a computer and operating system.
configuration specified in the Documentation and in accordance with the
obligations imposed by this Agreement. Service Provider warrants to
PeopleSoft that it will perform the Outsourcing Services with due care and
skill and in accordance with generally accepted professional standards for
providing similar services. Service Provider will not disclose or publish to
any third party any results of benchmark tests run on the Software.
(d) RESTRICTIONS ON USE.
Service Provider agrees not to translate the Software into another computer
language, in whole or in part. Except as set forth above, Service Provider
shall not make copies or make media translations of the Software or the
Documentation, in whole or in part without PeopleSoft's prior written
approval. Service Provider agrees that if, for any reason, it comes into
possession of any Software source code, or portion thereof, for any
PeopleSoft product, which it knows or reasonably should know is source code
not generally provided by PeopleSoft as a part of the Software or provided
under the terms of a license grant in this Agreement, it will immediately
deliver all copies of such source code to PeopleSoft. Except as specifically
provided in this Agreement, Service Provider shall not (i) rent,
electronically distribute or timeshare the Software; or (ii) distribute the
Software including without limitation by interactive cable or remote
processing service. Service Provider acknowledges PeopleSoft's representation
that the Software and its structure, organization and source code constitute
valuable trade secrets that belong to PeopleSoft. Service Provider agrees
that it shall not reverse compile, disassemble or otherwise reverse engineer
the Software and that it shall not use the Software or Documentation except
as expressly permitted by this Agreement.
(e) MARKETING AS PART OF OUTSOURCING SERVICES
PeopleSoft hereby grants to Service Provider the non-exclusive,
nontransferable right to co-market the Software with PeopleSoft to End Users
solely as part of Service Provider's provision of Outsourcing Services.
Within this context, co-marketing does NOT mean that Service Provider will
have any rights to distribute, ship, Sublicense or otherwise convey any
rights or interest to any third party to use the Software except as otherwise
expressly set forth in this Agreement.
(f) SUBLICENSE TRANSACTIONS.
(1) SUBLICENSE RIGHT. As further set forth in the applicable Sublicense
Addendum and subject to the terms and conditions of this Agreement
(including Service Provider's obligation to pay the Fees), PeopleSoft
hereby grants to Service Provider a worldwide, non-exclusive, non-
transferable license during the term of this Agreement to market and grant
Sublicenses to the Software to a sublicensee (the "Sublicensee") as set
forth in such Sublicense Addendum and at the rates and fees set forth
therein ("Sublicense Transaction"). Service Provider shall only have the
right to Sublicense the Software pursuant to an effective Sublicense
Addendum between the parties hereto. PeopleSoft shall have sole authority
to set any and all rates and fees, including, but not limited to, pricing
of the Software and maintenance fees, in any Sublicense Addendum for any
Sublicense Transaction. PeopleSoft reserves the right to amend any
Sublicense Addendum as PeopleSoft, in its sole discretion, deems
reasonably necessary in the event
of, inter alia, price increases for the Software or Designated User or End
User growth pursuant to PeopleSoft's then-current growth methodology.
PeopleSoft shall make available to, and Service Provider shall notify any
Sublicensee of, a migration option such that in the event that a
Sublicensee migrates from sublicensing Software from Service Provider at
the end of the term of the relevant Sublicense Agreement to licensing
Software directly from PeopleSoft pursuant to a perpetual PeopleSoft
License Agreement, such Sublicensee shall be entitled to a [CONFIDENTIAL
TREATMENT] discount from PeopleSoft's then-current license fees pursuant to
such PeopleSoft License Agreement.
(2) SUBLICENSE AGREEMENT. Service Provider shall Sublicense the Software
solely through a written Sublicense Agreement substantially in the form
of the Alliance Partner License Agreement to be provided by PeopleSoft
after the Effective Date ______; PROVIDED, HOWEVER, that in no instance
shall Service Provider execute and enter into any Sublicense Agreement
unless and until PeopleSoft has given its prior written consent to the
final draft of such proposed Sublicense Agreement. In the event that
Service Provider enters into any Sublicense Agreement in a form not
expressly consented to by PeopleSoft pursuant to the terms of this
subsection, such Sublicense Agreement shall be void AB INITIO.
3. TECHNICAL SERVICES
(a) SOFTWARE INSTALLATION.
PeopleSoft shall install the Software at a single authorized Service
Provider Outsourcing Center, at the prevailing rates for installations
taking up to five days. Under any other circumstance, installation will be at
PeopleSoft's then current standard commercial time and materials hourly or
daily rates.
(b) TRAINING.
PeopleSoft to provide Software training to Service Provider at a PeopleSoft
training center on a mutually agreeable date(s) during the first calendar year
after the Effective Date at Peoplesoft's prevailing rates. A training unit is
equivalent to one eight-hour day of training. At the Designated Customer's
request, Software training for the Designated Customer will be provided as
part of the implementation by either Service Provider, a third party, or
PeopleSoft at their respective then-current prevailing rates.
(c) IMPLEMENTATION.
Service Provider shall be responsible for the Designated Customer's Software
implementation efforts. Service Provider may choose to subcontract some or
all of the implementation to PeopleSoft but in that event, PeopleSoft, as a
subcontractor, shall be contractually obligated only to Service Provider
pursuant to the terms of the relevant subcontract, and not to any third party
and PeopleSoft's fees for such subcontract shall not be Fees as defined above
in Section 1.
(d) SUPPORT SERVICES.
Service Provider will provide Designated Customers with the first level of
Support Services to the Designated Customers. At no additional fee to Service
Provider, PeopleSoft will provide Service Provider with Support Services and
account management as outlined in Exhibit B.
(e) CONSULTING
Service Provider will provide ongoing consulting to Designated Customers
which will include the application of Software fixes and upgrades.
(f) INCIDENTAL EXPENSES
For any on-site services requested by Service Provider, Service Provider
shall reimburse PeopleSoft for actual, reasonable travel and out-of-pocket
expenses incurred; PROVIDED, HOWEVER, that any expenses over one
thousand U.S. dollars ($1,000.00) will require the prior written approval of
Service Provider, which prior written approval shall not be unreasonably
withheld.
4. DELIVERY
All Software and Documentation for which delivery from PeopleSoft is required
under this Agreement shall be shipped by PeopleSoft FOB Peoplesoft's
manufacturing facility. Software and Documentation will be deemed accepted
upon shipment by PeopleSoft.
5. TERMS
(a) LICENSE FEES.
Service Provider shall pay Peoplesoft the applicable fees as set forth in
Exhibit A.
(b) REPORTING.
Within ten (10) days after the end of each month, Service Provider shall
provide PeopleSoft with a written report in a form reasonably acceptable to
Peoplesoft within a reasonable time after the Effective Date. Such reports
shall, at a minimum, contain information detailing (i) the number of
Development Centers and the location of each; (ii) the name, location and
number of employees for each Designated Customer and the location of the
Outsourcing Center for each such Designated Customer; and (iii) all other
information needed to calculate and verify the Fees owed to PeopleSoft during
such reporting period, broken down by month, product breakdown and on a
cumulative basis.
(c) INVOICING.
All invoiced fees shall be due and payable within thirty (30) days of receipt
of an invoice and shall be made without deductions based on any taxes or
withholdings, except where such deduction is based on PeopleSoft's net income.
(d) PAYMENTS
All payments made by Service Provider shall be in United States Dollars and
directed to:
Lockbox or Wire Instructions:
(e) OVERDUE AMOUNTS AND TAXES.
Any amounts not paid within thirty (30) days of the due date will be subject
to interest of the lower of the prime rate as published by Bank of America,
NT &SA (or successor) or twelve per cent (12%) p.a. compounded quarterly,
which interest will be immediately due and payable from the due date for
payment until the date of actual receipt of the amount in cleared funds by
PeopleSoft. In addition to any other payments due under this Agreement,
Service Provider agrees to pay, indemnify and hold Peoplesoft harmless from,
any sales, use, excise, import or export, value added or similar tax or duty,
and any other tax not based on PeopleSoft's net income, including penalties
and interest and all government permit fees, license fees, customs fees and
similar fees levied upon the delivery of the Software or other deliverables
which PeopleSoft may incur in respect of this Agreement, and any costs
associated with the collection or withholding of any of the foregoing items.
(f) NEW VERSIONS.
PeopleSoft may, at its sole discretion, modify the Software. For purposes of
this Agreement, PeopleSoft shall have sole discretion as to whether a product
is deemed to be a new version of an existing Software program to be provided
to Service Provider under the terms of this Agreement, or a new product. Once
a new version of an existing Software program begins shipping, Service
Provider shall return to PeopleSoft, at Service Provider's expense, copies of
the prior version of the Software in Service Provider's inventory that were
replaced by PeopleSoft's new version installed within thirty (30) days from
the later of the first PeopleSoft shipment date of the new version to Service
Provider and the written notification date; PROVIDED, HOWEVER that
if any Designated Customers express the intent not to migrate to the new
version within such thirty (30) day time period, then Service Provider shall
not be so obligated by the foregoing and shall return such prior version
within thirty (30) days from the date PeopleSoft ceases it support of said
prior version.
6. MARKETING OBLIGATIONS.
(a) PARTIES OBLIGATIONS.
(1) PeopleSoft and Service Provider shall use their best efforts to promote,
market and offer Outsourcing Services to potential Designated Customers.
(2) Service Provider shall (i) promptly refer all Software sales leads to
PeopleSoft's designated sales contact, and (ii) provide to PeopleSoft upon
execution of this Agreement, and thereafter on each anniversary date of
this Agreement, a business plan for the ensuing year containing at least
the minimum information specified in the initial business plan.
(b) JOINT MARKETING OBLIGATIONS.
(1) JOINT MARKETING. PeopleSoft and Service Provider will cooperate and
jointly invest in the marketing of the Software only for use in conjunction
with Outsourcing Services pursuant to the joint business plan adopted by
the parties within sixty (60) days of the Effective Date, including but not
limited to (a) prospecting, mailings, telemarketing, seminars, user group
meetings and trade show events, (b) joint account strategy development, and
(c) joint proposal development. Each Party shall allow the other to review
all announcements, press releases, marketing materials and product brochures
pertaining to the others products prior to their release to the public or
the press, and shall incorporate all changes that the other may reasonably
request to ensure correct usage of their trademarks and accuracy of content.
A party's failure to respond to the submission of material for approval
with any recommended changes within three (3) business days shall be an
approval of the material submitted.
(2) CO-MARKETING. Each party will provide the other with information
necessary for a mailing to the other's customer base when requested and
at their own expense.
(3) MARKETING LIAISONS. PeopleSoft and Service Provider will each appoint an
individual to act as the representative for such party in respect to
each party (the "Marketing Liaisons"). Each Marketing Liaison will have
the authority to act for and on behalf of the party which appointed it
and to make binding decisions with respect to the marketing activities
described herein. The Marketing Liaisons will meet via telephone
conferences on an ongoing basis as may be necessary to discuss the status
and implementation of such marketing activities. The Marketing Liaisons
shall have authority for approval of any material submitted pursuant to
sub-section (b)(1), above of this Section 7.
(4) ALLIANCE GOVERNANCE. PeopleSoft and Service Provider agree to allocate
the appropriate resources for ensuring the success and constant improvement
of the strategic alliance. Components will include, but not be limited to:
(a) Equal representation from PeopleSoft and Service Provider management;
and
(b) Quarterly face-to-face reviews covering the following topics (at a
minimum): (1)
Market Assessment; (2) Client Acquisition Progress; (3) Pricing
Evaluation and (4) Implementation Progress Review.
(c) USE OF TRADEMARKS.
(1) TRADEMARKS. PeopleSoft hereby grants to Service Provider and Service
Provider hereby grants to PeopleSoft a non-exclusive, limited license to
use the PeopleSoft and Service Provider trademarks respectively and the
PeopleSoft and Service Provider logo respectively and the other
applicable trademarks of each party (collectively, the "Trademarks" and
singularly the "PeopleSoft Trademarks" and the "Service Provider
Trademarks") solely on the Software and in advertising and printed
materials for the Software. Each party acknowledges that utilization of
the other parties' Trademarks will not create in it, nor will it
represent it has any right, title or interest in or to the other parties'
Trademarks. Each party acknowledges the other parties' exclusive
ownership or right to use of its own Trademarks and agrees not to do
anything to impair or dilute the other party's rights in its own
Trademarks. Each party agrees to display the acknowledgment of the other
party's trademark ownership of the Trademark clearly the first time it is
used in any advertising. Service Provider agrees to include the
PeopleSoft Trademarks on all copies, advertisements, brochures, manuals,
and other appropriate uses made in the promotion, license or use of the
Software.
(2) QUALITY. Each party agrees that the nature and quality of any products
or services it supplies in connection with the Trademarks shall conform to
the standards set by the owner of the Trademark. Each party agrees to
cooperate with the other party in facilitating monitoring and control of
the nature and quality of such products and services.
7. SERVICE PROVIDER OBLIGATIONS
(a) RECORDS.
Each party agrees to maintain a complete, clear and accurate record for at
least three (3) years relating to its use and marketing of the Software and
Documentation under this Agreement in accordance with generally accepted
accounting principles.
(b) AUDIT.
Service Provider shall permit PeopleSoft or persons designated by PeopleSoft
to inspect records pertaining to the Software and any other materials
provided to Service Provider by PeopleSoft to ensure compliance by Service
Provider with its obligations to PeopleSoft. Any such inspection and audit
shall be conducted upon at least five (5) days prior written notice and not
more frequently than annually, during regular business hours and in such a
manner as not to interfere with normal business activities of Service
Provider. If an audit reveals that Service Provider has underpaid Fees to
PeopleSoft, Service Provider shall be invoiced directly for such underpaid
Fees. If the underpaid Fees are in excess of five percent (5%), the Service
Provider shall pay
PeopleSoft's reasonable costs of conducting the audit. If an audit reveals
that Service Provider has overpaid Fees to PeopleSoft, PeopleSoft shall
refund any overpayments within thirty (30) days. At PeopleSoft's written
request, not more frequently than annually, Service Provider shall furnish
PeopleSoft with a signed certification verifying that the Software and
Documentation are being used pursuant to the provisions of this Agreement and
applicable Purchase Orders.
(e) NOTIFICATION OR INFRINGEMENT.
Service Provider shall immediately inform Peoplesoft by telephone, telex or
facsimile, with written confirmation by mail, if it becomes aware of any
facts indicating that any person is infringing any Intellectual Property
Rights of PeopleSoft or is engaging in unauthorized distribution of any
Software or Documentation.
(d) COMPLIANCE WITH LAWS.
In exercising its rights and performing its obligations under this Agreement,
Service Provider will comply with all applicable international, national and
local laws and regulations. Service Provider further agrees not to violate
any provisions of the U.S. Foreign Corrupt Practices Act of 1977 as amended,
which generally prohibits the payment of moneys or anything of value to
government officials in order the obtain benefits from such government
officials or their governments. Without limiting the generality of the
foregoing, Service Provider will not use or re-export, or permit any person
to use or re-exports the Software or Documentation, without all required
licenses, and Service Provider will comply, and will require all of its
customers to comply, with all applicable export and import control laws.
Service Provider will defend, indemnify and hold harmless PeopleSoft and its
successors, agents, officers, directors and employees from and against any
violation of any laws or regulations by Service Provider or any of its
agents, officers, directors, employees or customers.
8. MODIFICATIONS
The parties agree and acknowledge, subject to PeopleSoft's underlying
proprietary rights, that Service Provider may create certain Software
modifications which have no cross-industry application and apply exclusively
to Service Provider's Designated Customer's internal business
("Modifications"). Any Modification developed solely by Service Provider
shall be the property of Service Provider. To the extent that Service
Provider desires to have PeopleSoft provide support for the term of this
Agreement for such Modification, Service Provider will promptly deliver to
PeopleSoft the source and object code versions of such Modification, and any
updates or further modifications thereto, and hereby grants PeopleSoft for
the term of this Agreement an irrevocable, worldwide, fully-paid,
royalty-free, non-exclusive, non-transferable license to use and to
distribute and sublicense, directly and indirectly, through multiple tiers of
sublicensees, such Modification. For any Modification developed by Service
Provider with the assistance of PeopleSoft or any modification developed by
Service Provider, with or without the assistance of PeopleSoft, which are not
Modifications, Service Provider will promptly deliver to PeopleSoft the
source and object code versions of such modification, and any updates or
further modifications thereto, and hereby grants PeopleSoft a perpetual,
irrevocable, worldwide, fully-paid, royalty-free, non-exclusive,
non-transferable license to use and to distribute and sublicense,
directly and indirectly, through multiple tiers of sublicensees, such
modification. Any modification, including without limitation Modification
developed solely by PeopleSoft shall be the property of PeopleSoft.
9. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
Servicer Provider acknowledges that the structure, organization and code of
the Software are proprietary to PeopleSoft and that PeopleSoft retains
exclusive ownership of the Software, Documentation and Trademarks. Service
Provider will take reasonable measures to protect PeopleSoft's Intellectual
Property Rights in the Software, Documentation and Trademarks, including such
reasonable assistance and measures as are requested by PeopleSoft from time
to time at reasonable cost to Service Provider. Except as provided herein,
Service Provider is not granted any other Intellectual Property Rights, or
any other rights, franchises or licenses, with respect to the Software,
Documentation or Trademarks.
Except as provided in the Section entitled MODIFICATIONS, any intellectual
Property Rights developed by Service Provider in connection with the license
grants under this Agreement shall be owned by PeopleSoft, and therefore
Service Provider irrevocably assigns to PeopleSoft all right, title and
interest worldwide in and to such Intellectual Property Rights. If Service
Provider has any rights to such Intellectual Property Rights that cannot be
assigned to PeopleSoft, Service Provider unconditionally and irrevocably
waives the enforcement of such rights, and all claims and causes of action of
any kind against PeopleSoft with respect to such rights, and agrees, at
PeopleSoft's request and expense, to consent to and join in any action to
enforce such rights. If Service Provider has any rights to such Intellectual
Property Rights that cannot be assigned to PeopleSoft or waived by Service
Provider, Service Provider unconditionally and irrevocably grants to
PeopleSoft during the term of such rights, an exclusive, irrevocable,
perpetual, worldwide, fully paid and royalty-free license, with rights to
sublicense through multiple levels of sublicense, to reproduce, create
derivative works of, distribute, publicly perform and publicly display by all
means now known or later developed, such rights.
Service Provider shall indemnify and hold harmless PeopleSoft from and
against any suits, actions, losses, damages and other expenses arising out of
or in connection with any claim that any software modifications, as delivered
by Service Provider infringes or violates a U.S. patent, copyright,
trademark, trade secret or other proprietary right of any third party;
provided PeopleSoft promptly notifies Service Provider of such claim and
gives Service Provider sole control and all reasonable assistance in the
settlement of the claim. If PeopleSoft's use of the modifications is
prevented in any way by an injunction or court order because of any claim of
infringement or misappropriation, Service Provider shall, at its sole
expense, use reasonable commercial efforts to: (a) replace or modify such
software so that it is no longer subject to a claim of infringement; or (b)
procure for the benefit of PeopleSoft the right to use such software. Service
Provider shall have liability for the claim of infringement based only on the
percentage or portion the infringement claim is (or alleged to be)
attributable to such software.
10. CONFIDENTIALITY
During the term of this Agreement, Service Provider and PeopleSoft may be
exposed to certain information, including know-how and trade secrets,
proposed new products and services, and/or the business or affairs which are
the confidential and proprietary information of the other party and not
generally known to the public (herein "Confidential Information"). The parties
agree that during and after the term of this Agreement, they will not use or
disclose any Confidential Information to any third party without the prior
written consent of the other party. The parties hereby consent to the
disclosure of its Confidential Information to the employees, contractors or
consultants of the other party as is reasonably necessary in order to allow
the other party to perform its obligations under this Agreement and to obtain
the benefits hereof, provided that each such employee, contractor or
consultant who will have access to any confidential Information has executed
a non-disclosure agreement which prohibits the unauthorized use or disclosure
of any such Confidential Information. This section shall not apply, or shall
cease to apply, to data and information supplied by a party if the other
party can establish that such data or information: (a) were already known to
it, (b) have come into the public domain without a breach of confidence by
that party, (c) were received by that party from a third party without
restrictions on their use in favor of the other party, or (d) are required to
be disclosed pursuant to any statutory or regulatory provision or court
order, provided, however, that the party provides notice thereof to the other
party, together with the statutory or regulatory provision, or court order,
on which such disclosure, is based, as soon as practicable prior to such
disclosure so that the other party has the opportunity to obtain a protective
order to take other protective measures as it may deem necessary with respect
to such information.
11. WARRANTY AND INDEMNITY
(a) SOFTWARE WARRANTY.
For each copy of Software that Service Provider licenses and receives Support
Services hereunder, PeopleSoft warrants to Service Provider that for a period
of one year from the date on which, such Software is shipped by PeopleSoft
that the Software, unless modified by Service Provider, will perform the
functions described in the associated Documentation in all material respects
when operated on a system which meets the requirements specified by
PeopleSoft in the Documentation. PeopleSoft will undertake to correct any
reported error condition in accordance with its technical support policies.
Provided that Service Provider gives PeopleSoft written notice of a breach of
the foregoing warranty during the warranty period, Service Provider sole and
exclusive remedy shall be for PeopleSoft to correct any reproducible errors
pursuant to the Support Services terms and conditions.
(b) MEDIA WARRANTY.
PeopleSoft warrants the tapes, diskettes or other media to be free of defects
in materials and workmanship under normal use for ninety (90) days from the
date of Software is shipped by PeopleSoft. In any breach of the foregoing
warranty, and provided that Service Provider gives written notice thereof
during the warranty period, Service Provider' sole and exclusive remedy shall
be to require PeopleSoft to replace defective media returned within such
warranty period.
(c) SERVICES WARRANTY.
PeopleSoft warrants any services provided hereunder shall be performed in a
professional and workmanlike manner in accordance with generally accepted
industry practices. PeopleSoft's sole and exclusive obligation pursuant to
this warranty shall be to re-perform any work not in compliance with this
warranty that is brought to its attention by written notice within thirty
(30) days after such services are performed.
(d) DISCLAIMER OF WARRANTIES.
EXCEPT AS SET FORTH IN SECTIONS ENTITLED SOFTWARE WARRANTY, MEDIA WARRANTY,
SERVICES WARRANTY, ABOVE, PEOPLESOFT EXPRESSLY DISCLAIMS TO THE EXTENT
PERMITTED BY LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY BY ANY
TERRITORY OR JURISDICTION, RELATING TO THE SOFTWARE, DOCUMENTATION OR RELATED
SERVICES AND FURTHER EXPRESSLY EXCLUDES TO THE EXTENT PERMITTED BY LAW ANY
WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR
MERCHANT ABILITY.
PeopleSoft does not warrant that the Software will operate in combinations
other than as specified in the Documentation or that the operation of the
Software will be uninterrupted or error-free. Pre-production releases of
Software are distributed "AS IS."
(e) INDEMNITY.
Subject to the limitations set forth herein below, PeopleSoft shall indemnify
and defend Service Provider with respect to all claims, suits or proceedings
with respect to any claim that the Software, as designed and licensed to
Service Provider in furtherance of this Agreement, infringe upon any U.S. and
Canadian patent, trademark, copyright or other proprietary right; provided,
however, that Service Provider (i) notifies PeopleSoft in writing within ten
(10) days of the receipt of notice of such claim, suit or proceeding, (ii)
gives PeopleSoft the right to control and direct investigation, preparation,
defense and settlement of any claim, suit or proceeding; and (iii) gives
assistance and full cooperation for the defense of same and further provided
that PeopleSoft's liability with respect to third party software embedded in
the Software will be limited to the extent PeopleSoft is indemnified by such
third parties. PeopleSoft shall pay any resulting damages, costs and expenses
finally awarded to a third party but PeopleSoft is not liable for settlements
incurred by Service Provider without Peoplesoft's written authorization. If
such claim, suit or proceeding has occurred or, in PeopleSoft's opinion, is
likely to occur, PeopleSoft may, at its election and expense, either obtain
for Service Provider the right to continue distributing such allegedly
infringing Software or replace or modify the Software so it is not infringing.
(f) EXCLUSIONS.
The provisions of the foregoing indemnity shall not apply with respect to any
instances of alleged infringement based upon or arising out of the use of
such Software in any manner for which the Software were not designed, or for
use of Software for other than the uses and
distributions designated by PeopleSoft, for use of any Software which has
been modified by Service Provider or any third party, or for use of any
Software in connection with or in combination with my equipment, devices or
software which have not been supplied by PeopleSoft, where such alleged
infringement would not have occurred but for the use of such Software in
connection with or in combination with such equipment devices or software.
Notwithstanding any other provisions hereof, the foregoing indemnity shall
not apply with respect to any infringement based on Service Provider's
activities occurring subsequent to its receipt of notice of any claimed
infringement unless PeopleSoft shall have given Service Provider written
permission to continue to market and distribute the allegedly infringing
Software.
(g) ENTIRE LIABILITY.
THE FOREGOING SECTIONS ENTITLED INDEMNITY AND EXCLUSIONS STATE THE SOLE AND
EXCLUSIVE REMEDY OF SERVICE PROVIDER AND THE ENTIRE LIABILITY AND OBLIGATION
OF PEOPLESOFT WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE, BUNDLED SOFTWARE, DOCUMENTATION,
RELATED SERVICES OR ANY PART THEREOF.
(h) LIMITATIONS AND DISCLAIMER.
Service Provider shall make no warranty, express or implied, on behalf of
PeopleSoft. Nothing contained in this Agreement shall prejudice the statutory
rights of any party dealing as a consumer.
(i) INDEMNITY BY SERVICE PROVIDER.
Service Provider agrees to indemnify and hold PeopleSoft harmless from any
claims, suits, proceedings, losses, liabilities, damages, costs and expenses
(inclusive of PeopleSoft's reasonable attorneys' fees) made against or
incurred by PeopleSoft as a result of negligence, misrepresentation, error or
omission on the part of Servicer Provider or representatives of Service
Provider. Service Provider shall be solely responsible for, and shall
indemnify and hold PeopleSoft harmless from, any claims, warranties or
representations made by Service Provider or Service Provider's employees or
agents that differ from the warranty provided by PeopleSoft in its End User
Agreement; provided, however, that PeopleSoft (i) notifies Service
Provider in writing within ten (10) days of such claim, suit or proceeding,
(ii) gives Service Provider the right to control and direct the
investigation, preparation, defense and settlement of any claim suit or
proceeding; and (iii) gives assistance and full co-operation for the
defense of same. Service Provider shall pay any resulting damages, costs and
expenses finally awarded to a third party but Service Provider is not liable
for settlements incurred by PeopleSoft without Service Provider's written
authorization.
12. TERM AND TERMINATION
(a) TERM.
The term of this Agreement shall commence as of the Effective Date of this
Agreement and continue for a term of three (3) years unless sooner terminated
as set forth below. This Agreement shall be reviewed annually (the "Annual
Review") by the parties. The Annual Review shall include such criteria as
performance in the marketplace (as determined by comparison against
PeopleSoft's standard support, quality and referencability guidelines) and a
review of the business terms herein. This Agreement will renew for successive
one (1) year terms unless either party gives the other party written notice
of its intent to allow the Agreement to terminate at its expiration. Such
notice shall be given not less than twelve (12) months prior to the end of
the Agreements' term.
(b) TERMINATION WITH CAUSE.
Any of the following shall constitute an event of default:
(1) Either party fails to perform any of its material obligations
under this Agreement and such failure remains uncured for
forth-five (45) days after receipt of written notice thereof; or
(1) Either party ceases to conduct business, becomes or is declared
insolvent or bankrupt, is the subject of any proceeding relating
to its liquidation or insolvency which is not dismissed within
ninety (90) days or makes an assignment for the benefit or its
creditors.
If an event of a default occurs, the non-defaulting party in addition to any
other rights available to it under law or equity, may withhold its
performance hereunder or may terminate this Agreement and the licenses
granted hereunder by written notice to the defaulting party. Unless otherwise
provided in this Agreement, remedies shall be cumulative and there shall be
no obligation to exercise a particular remedy.
(c) TERMINATION WITHOUT CAUSE
Either party may terminate this agreement without cause not less than ninety
(90) days after giving written notice of intent to so terminate to the other
party.
(d) RIGHTS UPON TERMINATION.
Upon any termination of this Agreement by PeopleSoft pursuant to Section 12(b)
hereof, all Service Provider's rights to market Outsourcing Services, to use
the Software, and grant Sublicense Agreements and any and all other rights
as provided in this Agreement shall cease immediately. Upon termination of
this Agreement by Service Provider pursuant to Section 12(b) or Section 12(c)
hereof or by expiration of this Agreement, all Service Provider's rights to
market Outsourcing Services and use the Software as set forth in this
Agreement shall cease,
except that Service Provider shall be permitted to continue to use the
Software solely to fulfill existing contractual obligations for a reasonable
period of time (the "Migration Period") and PeopleSoft agrees and
acknowledges its obligations to honor such Sublicense Agreements for such
Migration Period; PROVIDED, HOWEVER, that in no event shall such Migration
Period be more than twenty four (24) months from the date of the termination
of this Agreement pursuant to Section 12(b) hereof. Upon termination of this
Agreement by PeopleSoft pursuant to Section 12(c) hereof, all Service
Provider's rights to market Outsourcing Services and use the Software as set
forth in this Agreement shall cease, except that Service Provider shall be
permitted to continue to use the Software solely to fulfill existing
contractual obligations for the term of such existing contractual
arrangements.
(c) PAYMENT UPON TERMINATION.
The payment date of all moneys due to PeopleSoft shall automatically be
accelerated as of the date of termination so that they shall become due and
payable on the effective date of termination, even if longer terms had been
provided previously. All credits previously issued to Service Provider will
be canceled as of the date of termination.
(f) LIABILITY UPON TERMINATION.
Each party understands that the rights of termination or expiration hereunder
are absolute. Neither party shall incur any liability whatsoever for any
damage, loss or expenses of any kind suffered or incurred by the other
arising from or incident to any termination of this Agreement by such party
or any expiration hereof which complies with the terms of the Agreement,
whether or not such party is aware of any such damage, loss or expenses. In
particular, without in any way limiting the foregoing, neither party shall be
entitled to any damages on account of prospective profits or anticipated
sales. Service Provider agrees to waive the benefit of any law or regulation
providing compensation to Service Provider arising from the termination or
failure to renew this Agreement and Service Provider hereby represents and
warrants that such waiver is irrevocable and enforceable by PeopleSoft.
Service Provider also indemnifies and holds harmless PeopleSoft from any and
all claims for compensation arising from the termination or failure to renew
this Agreement asserted by Service Provider's employees or any third parties
including without limitation prospective Designated Customers.
(g) SURVIVAL.
The provisions of the sections entitled CONFIDENTIALITY, WARRANTY AND
INDEMNITY, TERM AND TERMINATION, LIMITATION OF LIABILITY, and GENERAL shall
survive the expiration or termination of this Agreement by either party for
any reason.
(h) RETURN OF SOFTWARE UPON TERMINATION.
If a license granted under this Agreement expires or otherwise terminates,
Service Provider shall (a) cease using the applicable Software or
Documentation, and (b) certify to PeopleSoft within one (1) month after
expiration or termination that Service Provider has destroyed or has returned
to PeopleSoft such Software and Documentation and all copies in all forms,
partial and complete, in all types of media and computer memory, and whether
or not modified or merged into other materials; PROVIDED, HOWEVER that in the
instance of a termination pursuant to Section 12(b) hereof, Service Provider
shall, at the end of the Migration Period defined in Section 12(d) hereof,
cease using the applicable Software or Documentation, and (b) certify to
PeopleSoft within one (1) month after the end of the Migration Period that
Service Provider has destroyed or has returned to PeopleSoft such Software
and Documentation under its control and all copies in all forms, partial and
complete, in all types of media and computer memory, and whether or not
modified or merged into other materials.
13. LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, COST
OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES AND ANY INDIRECT,
SPECIAL, INCIDENTAL, ECONOMIC OR CONSEQUENTIAL LOSS OR DAMAGE, LOSS OF
PROFITS, LOSS OF GOODWILL, LOSS OF OPPORTUNITIES OR SAVINGS, REGARDLESS OF
THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF THEY HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT WILL
PEOPLESOFT'S AGGREGATE CUMULATIVE LIABILITY TO SERVICE PROVIDER FOR ANY
CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID TO
PEOPLESOFT BY SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.
14. GENERAL.
(a) 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 at the
beginning of this Agreement or such other address as either party may
specify in writing. Notices shall be sent to the person bearing the title set
forth below the parties' signature to this Agreement.
(b) FORCE MAJEURE.
Neither party shall be liable hereunder by reason of any failure or delay in
the performance of its obligations hereunder (except for the payment of
money) on account of strikes, shortages, riots, insurrection, fires, flood,
storm, explosions, acts of God, war governmental action, labor
conditions, earthquakes, material shortages or any other cause which is
beyond the reasonable control of such party.
(c) ASSIGNMENT.
Service Provider may not assign this Agreement, delegate any duty or assign
any right hereunder without the prior written consent of PeopleSoft. Any
assignment in violation of this section shall be void and of no effect.
(d) 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.
(e) 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.
(f) INJUNCTIVE RELIEF.
It is understood and agreed that notwithstanding any other provisions of this
Agreement, a breach by Service Provider of Section 2 ("License Grants") or by
either party of Section 10 ("Confidentiality"), will cause either party
irreparable damage for which recovery of money damages would be inadequate,
and that, in addition to any and all remedies available at law, either party
shall be entitled to seek timely injunctive relief to protect its rights
under this Agreement.
(g) CONTROLLING LAW.
This Agreement shall be governed in all respects by the laws of the United
States of America and the State of California as such laws are applied to
agreements entered into and to be performed entirely within California between
California 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.
(h) NO AGENCY.
Nothing contained herein shall be construed as creating any agency,
partnership or other form of joint enterprise between the parties.
(i) HEADINGS.
The section headings appearing in this Agreement are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or extent of such section or in any way affect such section.
(j) WARRANTY.
Each party warrants that it has full power and authority to enter into and
perform this Agreement, and that the person signing this Agreement on such
party's behalf has been duly authorized and empowered to enter into this
Agreement. Each party further acknowledges that it has read this Agreement,
understands it and agrees to be bound by it.
(k) CHOICE OF FORUM AND VENUE.
The Superior Court of Alameda County and the United States District Court for
the Northern District of California shall together have non-exclusive
jurisdiction over disputes under this Agreement. Service Provider consents to
personal jurisdiction of the above courts.
(l) CONFIDENTIALITY OF AGREEMENT.
Neither party will disclose any terms, conditions, pricing of this Agreement,
except to its employees, directors, agents and professional advisors with a
need to know or pursuant to a mutually agreeable press release or as otherwise
required by law.
(m) 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.
(n) DISCLAIMER.
The Software is not specifically developed or licensed for use in any nuclear,
aviation, mass transit or medical application or in any other inherently
dangerous applications. Service Provider agrees that PeopleSoft and its
suppliers shall not be liable for any claims or damages arising from Servicer
Provider's use of the Software for such applications. Service Provider agrees
to indemnify and hold PeopleSoft harmless from any claims for losses, costs,
damages or liability arising out of or in connection with its use of the
Software in such applications.
(o) ENTIRE AGREEMENT.
This Agreement, together with any schedules, exhibits and addenda completely
and exclusively defines the agreement of the parties regarding Service
Providers' rights to host the Software to provide Outsourcing Services. In
the event of any conflict between the terms of this Agreement and an addendum
hereto, the terms of the addendum shall control with respect to the subject
matter of the addendum only. This Agreement supercedes, 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 PeopleSoft and Service Provider by their duly
authorized representatives, and any purchase order or other document
purporting to supplement the provisions hereof shall be void.
In Witness Whereof, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date.
USINTERNETWORKING, INC. PeopleSoft USA, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------ -----------------------------
Authorized Signature Authorized Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
Printed Name Printed Name
Vice President General Counsel Vice President
Title Title
Exhibit A
Fees
REVENUE SPLITS
PeopleSoft and Service Provider agree to a sharing of aggregate Fees under
this Agreement. The Fees per End User/Designated Customer shall be allocated
as follows:
PeopleSoft shall be entitled to [CONFIDENTIAL TREATMENT] of Fees received
by Service Provider from such End User or Designated Customer, as the case
may be; PROVIDED, HOWEVER, that from time to time, in the case of
certain End Users or Designated Customers, as the case may be, PeopleSoft
and Service Provider may agree to a different sharing of Fees received
from such End User or Designated Customer only, by executing an Addendum
to Exhibit A. Any such Addenda to Exhibit A shall govern over the
sharing of Fees as set forth in this Exhibit A SOLELY in the instance of
the End User or Designated Users set forth therein and not for any other
End Users or Designated Customers.
Addendum to Exhibit A
With regard to the End User(s) or Designated Customer(s) listed in the table
below only, PeopleSoft and Service Provider agrees to a sharing of Fees from
such End User or Designated Customer, as the case may be, as is set forth
across from the name of such End User or Designated User in the table below:
End User or Designated Customer Percentage of Fees payable to PeopleSoft*
------------------------------- ----------------------------------------
*The percentages listed in this column shall mean the percentage of Fees
received by Service Provider from the relevant End User or Designated
Customer, as the case may be, that PeopleSoft is entitled to.
For the avoidance of doubt, this Addendum to Exhibit A shall govern only in
the instances of the End Users or Designated Customers listed herein. In the
case of all other End Users or Designated Customers not expressly covered in
any Addenda to Exhibit A, Exhibit A shall continue to govern.
In Witness Whereof, the parties hereto have caused this Addendum to Exhibit A
to be executed by their duly authorized representatives as of
________________, ______.
USINTERNETWORKING, INC. PeopleSoft USA, Inc.
Authorized Signature Authorized Signature
Printed Name Printed Name
Title Title
Exhibit B
Software Support Services Terms and Conditions
Software Support Services Terms and Conditions ("Support Services") are
referenced in and incorporated into the Agreement between PeopleSoft and
USINTERNETWORKING, INC. ("Service Provider"). Upon reasonable notice,
PeopleSoft reserves the right to modify the terms and conditions of Support
Services on an annual basis to reflect current market conditions.
1. Coverage
PeopleSoft provides Service Provider with Support Services for the Software
for the appropriate sites set forth in the applicable Schedule in
consideration of Service Provider's payment to PeopleSoft of the applicable
fees in exhibit A. Only designated Service Provider employees may contact
PeopleSoft for the provision of Support Services. Service Provider may
acquire Support Services for additional Service Provider sites by paying to
PeopleSoft the applicable annual fee. Support Services may be provided to
additional locations for additional fees.
2. Software Maintenance
The following technical and functional improvements will be issued
periodically by PeopleSoft to improve Software operations:
a. Fixes to Errors;
b. Updates; and
c. Enhancements contained within new releases.
3. Priority Level of Errors
PeopleSoft shall reasonably determine the priority level of Error in
accordance with the following protocols:
Priority A:
PeopleSoft promptly initiates the following procedures: (1) assign
PeopleSoft specialist(s) to correct the Error; (2) provide ongoing
communication on the status of the correction; and (3) immediately begin
to provide a Workaround or a Fix.
Priority B:
(1) PeopleSoft assigns a PeopleSoft specialist to commence correction of
Error; and (2) provide escalation procedures as reasonably determined by
PeopleSoft support staff. PeopleSoft exercises all commercially
reasonable efforts to include the Fix for the Error in the next Software
maintenance release.
Priority C:
PeopleSoft may include the Fix for the Error in the next major Software
release.
4. Telephone Support
PeopleSoft provides telephone support concerning installation and use of the
Software. Except for designated holidays, standard telephone support hours
are Monday through Friday, 4:00 a.m.
to 6:30 p.m., Pacific Time. Telephone Support is also available 24-hours a
day, 7-days a week to resolve critical production problems outside of normal
support hours.
5. Account Manager
PeopleSoft assigns an account manager to assist with the on-going support
relationship between PeopleSoft and Service Provider. Service Provider will
reimburse PeopleSoft for the reasonable travel and living expenses of the
account manager for on-Site support activity.
6. PeopleSoft Customer Connection
c. The PeopleSoft Customer Connection system ("PCC") is an on-line,
self-service system which features postings by PeopleSoft and PeopleSoft
Software users regarding technical and non-technical topics of interest.
Service Provider may access PCC via the Internet. At Service Provider's
expense, Service Provider is responsible for independently acquiring
appropriate Internet access.
a. All Software maintenance releases and Fixes to the Software may be
delivered to Service Provider through PCC or by mail from PeopleSoft upon
written request by Service Provider. All information specified in PCC by
PeopleSoft is confidential and proprietary to PeopleSoft and shall only
be used in connection with Service Provider's use of the software and
informational communications with other PCC participants. PeopleSoft
reserves the right to modify information posted to PCC. PeopleSoft shall
have the right to publish and distribute only through PCC in all
languages and in association with Service Provider's name any material or
software programs provided by Service Provider to PCC. Service Provider
shall not use PCC for advertising or public relations purposes and shall
only submit information to PCC which is owned by Service Provider or
which Service Provider has third party permission to submit to PC for use
by all other PCC users.
a. In the interest of diminishing exposure to software viruses, PeopleSoft
tests and scans for software viruses all information entered by
PeopleSoft prior to submission of information to PCC. Service Provider
shall also use a reliable virus detection system on any software or
information posted to PCC, utilize backup procedures; monitor access to
PCC promptly notify PeopleSoft of any virus detected within Service
Provider's systems associated with PCC and generally exercise a
reasonable degree of caution when utilizing information from PCC. PeopleSoft
does not warrant that PCC will operate without interruption or without
errors. PeopleSoft reserves the right to modify or suspend PCC service in
connection with PeopleSoft's provision for Support Services.
7. Fees
PeopleSoft shall provide Service Provider with Support Services for the
Software for the appropriate sites set forth in the applicable Schedule in
consideration of Service Provider's payment to PeopleSoft of the applicable
fees in exhibit A. In the event Service Provider elects to receive Support
Services outside of the scope of the foregoing, Service Provider shall pay
PeopleSoft the annual fees, as set forth in Exhibit A. Service Provider shall
be responsible for all taxes associated with Support Services, exclusive of
taxes based on PeopleSoft's income. In the event Service Provider elects not
to renew Support Services and subsequently request Support
Services, PeopleSoft shall reinstate Support Services only after Service
Provider pays PeopleSoft the annual then current fee plus all cumulative fees
that would have been payable had Service Provider not suspended Support
Services.
8. Term and Termination
Support Services shall be provided for the Initial Support Services Term as
set forth in the applicable Schedule, and shall be extended each additional
year unless terminated by either party. Each one (1) year term shall commence
on the anniversary of the Schedule Effective Date.
Either party may terminate the support Services provisions at the end of the
original term or at the end of any renewal term by giving the other party
written notice at least ninety (90) days prior to the end of any term.
In the event Service Provider fails to make payment pursuant to the section
titled "Fees", or in the event Service Provider breaches the support Services
provisions and such breach has not been cured within thirty (30) days of
written receipt of notice of breach, PeopleSoft may suspend or cancel Support
Services.
9. Exclusions
PeopleSoft shall have no obligation to support:
a. Altered, damaged or substantial modified Software;
b. Software that is not the then-current release, or a Previous
Sequential Release;
c. Errors caused by Service Provider's negligence, hardware malfunction,
or other causes beyond the reasonable control of PeopleSoft;
d. Software installed in a hardware or operating environment not
supported by PeopleSoft; and
e. Third party software not licensed through PeopleSoft.
10. General
All Upgrades provided to Service Provider are subject to the terms and
conditions of the Agreement.
11. Definitions
Unless otherwise defined herein, capitalized terms used herein shall have the
same meaning as set forth in the Agreement and applicable Schedule.
"Enhancement" means technical or functional additions to the Software to
improve software functionality and/or operations. Enhancements are delivered
with new releases of the Software.
"Error" means a malfunction in the Software which degrades the use of the
Software.
"Fix" means the repair or replacement of source of object or executable code
versions of the Software to remedy an Error.
"Previous Sequential Release" means a release of Software for use in a
particular operating environment which has been replaced by a subsequent
release of the Software in the same operating environment. PeopleSoft will
support a Previous Sequential Release for a period of eighteen (18) months
after release of the subsequent release. Multiple Previous Sequential
Releases may be supported at any given time.
"Priority A" means an Error that: (1) renders the Software inoperative; or
(2) causes the Software to fail catastrophically.
"Priority B" means an Error that affects performance of the Software, but
does not prohibit Service Provider's use of the Software.
"Priority C" means an Error that causes only a minor impact of the use of
Software.
"Update" means all published revisions to the Documentation and one (1) copy
of the new release of the Software which are not designated by PeopleSoft as
new products for which it charges separately.
"Workaround" means a change in the procedures followed or data supplied, to
avoid an Error without significantly impairing performance of the Software.
Schedule A
Prospect List and Terms
The following list represents the set of prospects that USINTERNETWORKING,
INC. may pursue under certain Select Partner Agreement dated as of June 30,
1998 by and between the parties.
Service Provider shall not directly or indirectly contact or otherwise engage
in marketing and sales activities directed at the potential Designated
Customers listed below without obtaining PeopleSoft's prior written consent:
[CONFIDENTIAL TREATMENT]