1
EXHIBIT 10.37
DEVELOPMENT AND LICENSE AGREEMENT
This Development and License Agreement ("Agreement") is entered into as of
__________, 1998 ("Effective Date") by and between PEOPLESOFT, INC.
("PEOPLESOFT"), a Delaware corporation with a place of business at 0000 Xxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000 and MOMENTUM BUSINESS APPLICATIONS, INC.
("MOMENTUM"), a Delaware corporation with a principal place of business at 0000
Xxxxxx Xxx Xxxx., Xxxxxxx, Xxxxxxxxxx 00000. PeopleSoft and Momentum shall be
collectively referred to herein as the "Parties."
Whereas, the Parties intend to work together to develop software application
products which may be based on PeopleSoft's PeopleTools technology as set forth
herein which shall be known as the Momentum Products;
Whereas, the Parties also entered into the Marketing and Distribution Agreement
("Marketing Agreement") on the Effective Date for PeopleSoft's possible
distribution of the proposed Momentum Products;
Whereas, the Parties have also entered into an agreement for PeopleSoft services
to Momentum ("Services Agreement") as of the Effective Date whereby PeopleSoft
will provide Momentum various services as specified in the Services Agreement;
Whereas, this Agreement, the Services Agreement and the Marketing Agreement are
separate, yet interdependent agreements in the context of the
PeopleSoft/Momentum business relationship; and
Whereas, this Agreement sets forth the manner in which Momentum can use
Available Funds.
The Parties agree as follows:
DEFINITIONS
"Available Funds" means the three hundred million dollars ($300,000,000) in cash
funding that PeopleSoft contributed to Momentum in furtherance of the formation
of Momentum plus any accrued investment income, less any amounts expended under
this Agreement and for related administrative expenses (including expenses under
the Services Agreement).
"Contributed Technology" means any PeopleSoft software products or other
technology that PeopleSoft agrees to provide to Momentum during the work plan
and cost estimate approval process.
"Development Costs" means the fully burdened costs incurred by PeopleSoft
(including costs incurred for third party contractors hired by PeopleSoft) in
developing a Momentum Product.
"Developed Technology" means development tools (other than PeopleTools) which
are developed or otherwise acquired by Momentum for the purpose of developing
Momentum Products.
"Developed Technology Royalties" mean the royalties that PeopleSoft will pay to
Momentum on any software product (other than a Momentum Product) licensed by
PeopleSoft to end users that was developed by PeopleSoft using Developed
Technology.
"Documentation" means only technical publications relating to the use of the
PeopleSoft Technology, such as reference, user, installation, systems
administrator and technical guides, and training curriculum delivered by
PeopleSoft to Momentum.
"Momentum Products" means the software applications, including pre-release
versions, and associated documentation that are proposed by PeopleSoft and
accepted by Momentum for development under this Agreement.
"Net License Fees" means the actual amount of license fees received by
PeopleSoft for an end user's use of any product containing Developed Technology,
net of sales, technology witholding or VAT taxes, imputed fees for Support
Services (such as bundled maintenance), consulting, and any third party
royalties less PeopleSoft's actual fully burdened development costs related to
the Developed Technology.
"PeopleSoft Technology" means PeopleTools, Documentation and all other
Contributed Technology provided by PeopleSoft to Momentum and all corrections or
updates thereto. PeopleSoft Technology includes all third-party software
included in PeopleTools and any Contributed Technology that PeopleSoft has the
right to provide and agrees to provide to Momentum.
CONFIDENTIAL Page 1 of 11
2
Technology acquired by PeopleSoft after the date of this Agreement shall not be
considered PeopleSoft Technology unless such technology is expressly included in
PeopleTools or provided to Momentum as Contributed Technology.
"PeopleTools" means all or any portion of the underlying technology in object or
source code format, tools and documentation delivered by PeopleSoft to Momentum
under this Agreement and any related extensions or future enhancements all of
which serves as the foundation for all PeopleSoft software products.
"Purchase Option" means PeopleSoft's option to acquire all (but not less than
all) of the outstanding callable Class A common stock of Momentum as set forth
in Momentum's Restated Certificate of Incorporation.
"Support Services" means PeopleSoft's then current technical support and
maintenance services for the PeopleSoft Technology. Support Services for general
customers as of the Effective Date are as set forth in Exhibit B attached
hereto. The Support Services initially provided by PeopleSoft to Momentum under
this Agreement shall be substantially similar to those specified in Exhibit B
and may be modified as required for purposes consistent with this Agreement.
1. LICENSE GRANTS
1.1 PeopleSoft grants Momentum a perpetual (subject to the section entitled
"Default and Termination"), worldwide, non-exclusive, nontransferable
license to use a reasonable number of copies of the PeopleSoft
Technology solely for internal use purposes connected with this
Agreement and solely in conjunction with Momentum's development,
support, demonstration, testing (and any related tasks) of the Momentum
Products; In addition, Momentum may, with PeopleSoft's consent,
sublicense third parties to use the PeopleSoft Technology for the same
purposes.
1.2 To the extent that it has, or in the future obtains, the right to do so,
Momentum hereby grants PeopleSoft a perpetual, non-exclusive,
irrevocable, unrestricted, worldwide right to use, market, manufacture,
reproduce, copy, sublicense, distribute through PeopleSoft's then
current worldwide channel distribution system (under the PeopleSoft name
or otherwise pursuant to PeopleSoft's then current general licensing
policies and methodologies), create derivative works, enhance and modify
the Developed Technology.
1.3 PeopleSoft shall provide Momentum with one copy of PeopleSoft
Technology, with rights to make additional copies as reasonably
necessary for the uses set forth in section 1.1. PeopleSoft shall also
provide Momentum with one printed set of Documentation and Momentum
shall have the option to acquire additional sets of Documentation at
PeopleSoft's then current rates
2. LICENSE EXCLUSIONS
2.1 Except as expressly authorized herein, Momentum shall not:
a. copy or modify the PeopleSoft Technology other than as set forth
in section 1.1;
b. use PeopleSoft Technology to develop any software application
products that compete with PeopleSoft Technology;
c. cause or permit reverse compilation or reverse assembly of all
or any portion of the PeopleSoft Technology;
d. distribute, disclose, market, rent, lease or transfer to any
third party any portion of the PeopleSoft Technology or the
Documentation, or use the PeopleSoft Technology or Documentation
in any service bureau arrangement or third party training other
than to third party consultants under agreement and
non-disclosure as mutually agreed upon between the Parties in
writing;
e. disclose the results of PeopleSoft Technology performance
benchmarks to any third party without PeopleSoft's prior written
notice;
f. export PeopleSoft Technology in violation of U.S. Department of
Commerce export administration regulations; and
g. invoke support libraries other than through documented API
calls.
2.2 No license, right, or interest in any PeopleSoft trademarks, trade name,
or service xxxx is granted hereunder.
3. DEVELOPMENT OF MOMENTUM PRODUCTS
CONFIDENTIAL Page 2 of 11
3
3.1 Defining development projects: PeopleSoft shall propose the development
of certain Momentum Products to Momentum and shall submit work plans and
cost estimates for such development initiatives using Exhibit A as a
general outline. Momentum may approve all or any portion of a proposed
work plan and cost estimate or may determine not to approve any proposed
work plan and cost estimate. Notwithstanding the foregoing, Momentum
shall not be obligated to fund development of Momentum Products in
excess of amounts reflected in approved work plans and cost estimates.
3.2 (a) Situations wherein PeopleSoft develops:
If Momentum and PeopleSoft agree that PeopleSoft will do research and
development work with respect to a Momentum Product, Momentum will pay
PeopleSoft 110% of PeopleSoft's Development Costs incurred with respect
to such product. PeopleSoft shall not be required to undertake
activities that would result in Development Costs exceeding those
reflected in approved work plans and cost estimates. Except as agreed to
by the Parties, PeopleSoft shall not be required to devote any specific
amount of time or resources to research and development activities under
this Agreement.
(b) Situations wherein Third Parties develop:
The Parties intend that they will discuss and agree upon the possible
use of third parties to develop Momentum Products during the budget
proposal and approval process. Any agreements between Momentum and third
parties relating to Momentum Products or Developed Technology must
include appropriate provisions for the protection of PeopleSoft
Technology and PeopleSoft's rights under this Agreement, the Marketing
Agreement, and the Services Agreement and as a holder of the Momentum
Class B Common Stock. Subject to the foregoing, the amount and nature of
work to be performed by third parties will be determined by Momentum.
3.3 Momentum hereby grants PeopleSoft a right of first refusal with respect
to any future financing proposed to be conducted by Momentum. If at any
time, Momentum intends to raise more than $100,000 of capital in a
transaction or series of transactions, Momentum shall provide PeopleSoft
with notice of the proposed transaction including a summary of terms of
the proposed transaction. If PeopleSoft desires to provide Momentum with
the financing on the terms proposed by Momentum, it may do so by giving
Momentum notice within 15 days of its receipt of the notice of the
proposed by Momentum. If PeopleSoft does not exercise its rights
hereunder, Momentum shall have 60 days from the expiration of the
foregoing 15 day period to complete the financing on the terms contained
in the notice provided to PeopleSoft. If Momentum does not complete the
financing within said 60 day period, PeopleSoft's rights hereunder shall
be deemed to be revived.
3.4 Momentum shall use diligent efforts to research and develop Momentum
Products in accordance with approved work plans and cost estimates
agreed to by the Parties pursuant to this Agreement. As of the Effective
Date, the Parties contemplate the development of the following Momentum
Products: electronic business, analytic applications and
industry-specific software applications.
3.5 The Parties intend to discuss and agree upon the use of Available Funds
during the work plan and cost estimate approval process. Momentum may
use the Available Funds only to develop or acquire Momentum Products and
related technologies and for related administrative expenses. There are
no restrictions on Momentum's use of its funds other than Available
Funds to conduct its business as it determines.
3.6 Momentum will invest the Available Funds in high quality marketable
securities. Momentum may not encumber, pledge or otherwise take any
action with respect to the Available Funds that could prevent the full
expenditure of such funds under this Agreement. If PeopleSoft reasonably
believes Momentum has or intends to use the Available Fund for purposes
other than those allowed by this Agreement, PeopleSoft will have the
right to require Momentum to make an affirmative pledge of the Available
Funds to performance under this Agreement.
3.7 PeopleSoft agrees to sublicense to Momentum any required third party
software in which PeopleSoft has applicable distribution rights.
Momentum shall be responsible for the payment of any technology access
fees or royalties due third parties for the use of such third party
software.
4. FEES AND PAYMENT TERMS/DEVELOPMENT COSTS
CONFIDENTIAL Page 3 of 11
4
4.1 PeopleSoft Technology shall be provided by PeopleSoft to Momentum under
this Agreement at no license fee or royalty obligation.
4.2 PeopleSoft shall pay Developed Technology Royalties to Momentum equal to
one percent (1%) of Net License Fees on products (other than Momentum
Products) sold or licensed by PeopleSoft that were developed by
PeopleSoft using Developed Technology. PeopleSoft's obligation to pay
Developed Technology Royalties to Momentum shall cease ten (10) years
after the Developed Technology is acquired or first identified as part
of a work plan related to the development of a Momentum Product.
4.3 Momentum shall reimburse PeopleSoft for its Development Costs under
section 3.2(a) on a monthly basis.
5. SUPPORT SERVICES
5.1 During the period that this Agreement and the Marketing Agreement are in
effect and provided that Momentum is current on all payment obligations
under the Services Agreement, at no fee to Momentum, PeopleSoft shall
provide Momentum with Support Services.
6. TITLE AND PROTECTION/NON-DISCLOSURE
6.1 PeopleSoft (or its third-party providers) retains title to all portions
of the PeopleSoft Technology. Any modifications to the PeopleSoft
Technology made by Momentum or any of its subcontractors (including
PeopleSoft) to develop a Momentum Product in accordance with this
Agreement shall be owned by PeopleSoft. PeopleSoft will not be obligated
to make any royalty or other payments with respect to such PeopleSoft
Technology or modifications.
Title to the Momentum Products shall vest in Momentum, subject to
PeopleSoft's underlying right, title and interest to PeopleSoft
Technology. Title to the Developed Technology shall vest in Momentum,
subject to PeopleSoft's license to use the Developed Technology as set
forth in section 1.2 herein. Except as may be otherwise expressly set
forth in this Agreement, title to any technology developed pursuant to
this Agreement will vest in both PeopleSoft and Momentum and each will
have full right to make, use, license and sublicense such technology
without any obligation to the other.
6.2 Title to the physical media for the PeopleSoft Technology vests in
Momentum upon delivery. The PeopleSoft Technology contains valuable
proprietary information, and Momentum shall not disclose the PeopleSoft
Technology to anyone other than those of its employees or consultants
under nondisclosure obligations who have a need to know for purposes
consistent with this Agreement. Momentum shall affix, to each full or
partial copy of PeopleSoft Technology made by Momentum, all copyright
and proprietary information notices as affixed to the original.
6.3 All information clearly marked "confidential" or which should be
reasonably understood to be confidential by either party under this
Agreement and provided to the other party shall be treated as
confidential and shall not be disclosed, orally or in writing by the
receiving party to any third party without the prior written consent of
the disclosing party.
6.4 The obligations set forth in this section entitled "Title and Protection
/Non-disclosure" shall survive termination of this Agreement.
7. LIMITED WARRANTY
7.1 PeopleSoft represents that the PeopleSoft Technology does not infringe
any patent, copyright or other third party intellectual property rights
when used in accordance with the published specifications. PeopleSoft
represents that the PeopleSoft Technology and all subsequent major
releases thereon will perform substantially in accordance with the
corresponding documentation for a period of one (1) year from the date
of installation. PeopleSoft does not represent that the PeopleSoft
Technology is error-free. In the event the PeopleSoft Technology does
not perform substantially in accordance with the published
specifications, PeopleSoft's sole obligation is limited to repair or
replacement of the defective PeopleSoft Technology in accordance with
its then current Support Services terms and
CONFIDENTIAL Page 4 of 11
5
conditions, provided Momentum notifies PeopleSoft of the deficiency
within the one-year period and provided Momentum has installed all
PeopleSoft Technology updates provided by PeopleSoft's Support Services.
7.2 PEOPLESOFT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8. DISCLAIMER OF CONSEQUENTIAL DAMAGES/LIMITATION OF LIABILITY
8.1 PEOPLESOFT WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST
PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
8.2 EXCLUDING DAMAGES INCURRED UNDER THE ARTICLE ENTITLED "INDEMNIFICATION",
PeopleSoft's liability for damages under this Agreement shall in no
event exceed the then current standard list price for a license to
peopletools by Momentum. the parties agree to the allocation OF
LIABILITY RISK THAT is set forth in this Section.
9. INDEMNIFICATION
9.1 PeopleSoft shall indemnify and defend Momentum against any claims that
the PeopleSoft Technology infringes any patent, copyright or trade
secret; provided that PeopleSoft is given prompt notice of such claim
and is given information, reasonable assistance, and authority to defend
or settle the claim. In the defense or settlement of the claim,
PeopleSoft may obtain for Momentum the right to continue using the
PeopleSoft Technology or replace or modify PeopleSoft Technology so that
it becomes noninfringing while giving substantially equivalent
performance. PeopleSoft shall have no liability if the alleged
infringement is based on: (i) a modification of PeopleSoft Technology by
anyone other than PeopleSoft; or (ii) the use of PeopleSoft Technology
other than in accordance with the Documentation.
9.2 Momentum shall indemnify and defend PeopleSoft against any claims that
the components of the Momentum Products or Developed Technology, that
are developed by Momentum in furtherance of this Agreement and the
Marketing Agreement infringes any patent, copyright or trade secret;
provided that Momentum is given prompt notice of such claim and is given
information, reasonable assistance, and authority to defend or settle
the claim. In the defense or settlement of the claim, Momentum may
obtain for PeopleSoft the right to continue using and marketing the
Momentum Products or Developed Technology or replace or modify the
Momentum Products or Developed Technology so that it becomes
noninfringing while giving substantially equivalent performance.
Momentum shall have no liability if the alleged infringement is based
on: (i) a modification of the Momentum Product or Developed Technology
by anyone other than Momentum or its subcontractors, if any; or (ii) the
use of the Momentum Product or Developed Technology other than in
accordance with the documentation provided by Momentum. To the extent
Momentum elects to provide PeopleSoft with modifications to the
PeopleSoft Technology, in every case and simultaneous with the delivery
of such PeopleSoft Technology modifications, Momentum shall provide
written notice to PeopleSoft that such PeopleSoft Technology
modifications are provided "as-is" and "without any indemnification for
third party infringement claims."
9.3 The obligations set forth in this section entitled "Indemnification"
shall survive the termination of this Agreement.
10. DEFAULT AND TERMINATION
10.1 Any of the following shall constitute an event of default:
a. Momentum fails to perform any of its obligations under the
sections entitled "License Exclusions" or "Title and Protection
/Non-disclosure"; or
b. Either party fails to perform any other material obligation
under this Agreement and such failure remains uncured for more
than thirty (30) days after receipt of written notice thereof.
CONFIDENTIAL Page 5 of 11
6
10.2 If an event of default occurs, the nondefaulting party, in addition to
any other rights available to it under law or equity, may terminate this
Agreement and all licenses granted hereunder by written notice to the
defaulting party. Remedies shall be cumulative and there shall be no
obligation to exercise a particular remedy. In the event this Agreement
is terminated by PeopleSoft in connection with Momentum's breach of a
material obligation under this Agreement, PeopleSoft shall be entitled
to receive, as liquidated damages, the Available Funds. If PeopleSoft
reasonably believes that such liquidated damages are inadequate, then
PeopleSoft will be entitled to specific performance of Momentum's
obligations under this Agreement in connection with such breach.
10.3 This Agreement will automatically terminate upon the expiration of the
Purchase Option; provided, however that PeopleSoft's obligation to pay
Developed Technology Royalties will continue until the expiration of the
respective royalty terms, even if the Purchase Option expires
unexercised.
10.4 Within fifteen (15) days after termination of this Agreement, except for
copies of PeopleSoft Technology for use solely in connection with an
agreed upon transition plan, Momentum shall certify in writing to
PeopleSoft that all copies of the PeopleSoft Technology in any form,
including partial copies within modified versions, have been destroyed
or returned to PeopleSoft. The Parties shall also meet, discuss in good
faith and agree to a transition plan (which shall not exceed two (2)
years) to enable Momentum to transition the Momentum Products and
customers using Momentum Products from PeopleTools technology to a
different technology.
11. NOTICES
All notices shall be in writing and hand-delivered or sent by first
class mail, overnight mail, courier, or transmitted by facsimile (if
confirmed by such mailing), to the addresses indicated on the first page
of this Agreement, or such other address as either party may indicate by
at least ten (10) days prior written notice to the other party. Notices
to PeopleSoft shall be addressed to the Legal Department.
12. ASSIGNMENT
Momentum may not assign this Agreement (by operation of law or
otherwise) or sublicense PeopleSoft Technology without the prior written
consent of PeopleSoft or as set forth in the event of certain
contingencies as expressed in the Marketing Agreement, and any
prohibited assignment or sublicense shall be null and void.
13. GENERAL
13.1 This Agreement is made in and shall be governed by the laws of the State
of California, excluding choice of law principles. Any actions brought
to enforce any of the provisions of this Agreement shall be fully and
finally resolved by binding arbitration conducted by a mutually
acceptable independent third party. Except for actions for breach of
PeopleSoft's proprietary rights in PeopleSoft Technology or Momentum's
proprietary rights in the Momentum Products, no action regardless of
form, arising out of this Licensing Agreement may be brought by either
party more than one year after the cause of action has accrued.
13.2 The section headings herein are provided for convenience only and have
no substantive effect on the construction of this Agreement. If any
provision of this Agreement is held to be unenforceable, this Agreement
shall be construed without such provision.
13.3 The failure by a party to exercise any right hereunder shall not operate
as a waiver of such party's right to exercise such right or any other
right in the future. Neither party shall be liable to the other for any
failure to perform due to causes beyond its reasonable control.
13.4 No agency, partnership or employment is created by this Agreement.
Momentum shall not use the name of PeopleSoft in any advertising, public
relations or media release without the prior written consent of
PeopleSoft.
13.5 This Agreement replaces and supersedes any prior verbal understandings,
written communications, and constitutes the entire agreement between the
Parties concerning this subject matter. This Agreement may be amended
only by a written document executed by a duly authorized representative
of each of the Parties. This Agreement may be executed in counterparts.
CONFIDENTIAL Page 6 of 11
7
This Agreement is made as of the Effective Date.
MOMENTUM BUSINESS APPLICATIONS, INC. PEOPLESOFT, INC.
----------------------------------- ------------------------------------
Authorized Signature Authorized Signature
----------------------------------- ------------------------------------
Printed Name and Title Printed Name and Title
CONFIDENTIAL Page 7 of 11
8
EXHIBIT A
OVERVIEW OF THE DEVELOPMENT EFFORT TO CREATE MOMENTUM PRODUCTS
PHASE 1. PROJECT INITIATION/GENERAL ARCHITECTURE.
(a) DURATION. The approximate duration of Phase 1 shall be the first several
months commencing on the Effective Date.
(b) OBJECTIVES DURING PHASE 1:
(1) defining the project requirements as mutually agreed.
(2) Establish and maintain the development environment.
(3) Evaluate possible future beta sites.
(4) Generally determine the requirements and costs of documentation.
(5) Preparation of the project plans which are expected to include
detailed deliverables, and development milestones.
(6) Preparation of the test plans.
(7) Determination of an appropriate database to be used as a starting
point for the Momentum Product.
PHASE 2. DETAILED DESIGN AND PROTOTYPING.
(a) DURATION. The Parties anticipate that Phase 2 may overlap with Phase 1
and shall commence during the __________ month of the Project and end, depending
on Momentum Product within __________ months of the commencement of the project.
(b) OBJECTIVES DURING PHASE 2
(1) Create all databases.
(2) Develop or create functional prototypes of all modules and
listed functions.
(3) Participate in ongoing beta sites review and feedback. (4)
Refinement of project plans, including definition of detailed
requirements for all functions.
(5) Refinement of test plans.
PHASE 3. DEVELOPMENT.
(a) DURATION. The Parties anticipate that Phase 3 shall commence in the
_________ month of the project and end upon General Availability of the
Momentum Product.
(b) OBJECTIVES DURING PHASE 3
(1) Complete, as set forth in the project plans, the interfaces
between the PeopleSoft Technology and Momentum Products..
(2) Provide the publication expertise reasonably necessary to turn
the Documentation and training guide drafts into final documents
ready for delivery to customers. This effort contemplates limited
textual editing, document formatting and other minor preparations
which are typically expected prior to publication, and which will
otherwise conform the Documentation to PeopleSoft's then current
style guides.
(3) Undertake final testing.
CONFIDENTIAL Page 8 of 11
9
EXHIBIT B
SOFTWARE SUPPORT SERVICES TERMS AND CONDITIONS
Software Support Services Terms and Conditions ("SUPPORT SERVICES") are
referenced in and incorporated into the Software License and Services Agreement
("Agreement") between PeopleSoft and Licensee. Capitalized terms have the same
meaning as they do in the Agreement.
1. COVERAGE
PeopleSoft provides Licensee with Support Services for the Software at the Site
in exchange for payment of the applicable Support Services fees. Only designated
Licensee employees may contact PeopleSoft for the provision of Support Services.
Licensee may acquire Support Services for additional Licensee sites by paying
PeopleSoft the applicable annual secondary site Support Services fee.
2. SOFTWARE MAINTENANCE
PeopleSoft will periodically issue the following technical and functional
improvements to Software:
(1) Fixes to Errors; (2) Updates; and (3) Enhancements
3. PRIORITY LEVEL OF ERRORS
PeopleSoft shall address Errors in accordance with the following protocols:
Priority 1-Critical Level: PeopleSoft promptly: (1) designates PeopleSoft
specialist(s) to correct Error; (2) provides expanded communication on
correction status; and (3) escalates troubleshooting a Workaround or Fix.
Priority 2-Urgent Level: PeopleSoft promptly: (1) designates PeopleSoft
specialist(s) to correct Error; (2) provides ongoing communication on
correction status; and (3) initiates troubleshooting a Workaround or Fix.
Priority 3-Standard Level: PeopleSoft: (1) assigns PeopleSoft specialist(s) to
commence correction of Error; and (2) exercises all commercially reasonable
efforts to include the Fix for Error in the next Update.
Priority 4-Base Level: PeopleSoft: (1) assigns Error to case management and
tracking; and (2) may include the Fix for Error in the next Update.
4. TELEPHONE SUPPORT
PeopleSoft provides telephone support concerning Software installation and use.
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 for in-production customers who need to
resolve critical production problems outside of standard support hours.
5. ACCOUNT MANAGER
PeopleSoft assigns an account manager to assist with the support relationship
between PeopleSoft and Licensee. Licensee will reimburse PeopleSoft for the
reasonable travel and living expenses of the account manager for on-site support
activity.
6. PEOPLESOFT CUSTOMER CONNECTION
a. PeopleSoft Customer Connection is an on-line, self-service system that
features postings by PeopleSoft and customers regarding technical and
non-technical topics of interest. Licensee may access PeopleSoft Customer
Connection via Internet access at its own expense.
b. Software Updates, Enhancements, and Fixes may be delivered to Licensee
through PeopleSoft Customer Connection, or by mail from PeopleSoft on
Licensee's written request. PeopleSoft information posted to Customer
Connection is confidential and proprietary and shall only be used in
connection with Licensee's use of the Software and informational
communications with other PeopleSoft Customer Connection participants.
PeopleSoft shall have the right to publish, modify and distribute any
information or software provided by Licensee to Customer Connection in all
languages. Licensee shall not use PeopleSoft Customer Connection for
advertising or public relations purposes and shall only submit information
to PeopleSoft Customer Connection that Licensee owns or has permission to
use in such manner.
c. To diminish exposure to software viruses, PeopleSoft tests and scans all
information entered by PeopleSoft for software viruses prior to submitting
it to PeopleSoft Customer Connection. Licensee shall also use a reliable
virus detection system on any software or information posted to PeopleSoft
Customer Connection, utilize back-up procedures, monitor access to
PeopleSoft Customer Connection, promptly notify PeopleSoft of any virus
detected within Licensee's systems associated with PeopleSoft Customer
Connection and generally exercise a reasonable degree of caution when
utilizing information from PeopleSoft Customer Connection. PeopleSoft does
not warrant that PeopleSoft Customer Connection will operate without
interruption or without errors. PeopleSoft reserves the right to modify or
suspend PeopleSoft
CONFIDENTIAL Page 9 of 11
10
Customer Connection service in connection with PeopleSoft's provision of
Support Services. PeopleSoft assumes no responsibility for anything posted
by anyone other than PeopleSoft, including, but not limited to, information
about PeopleSoft software, modification code, or portions thereof.
7. FEES
The initial period of Support Services for the Site is indicated in the Schedule
and included in the Software license fee; thereafter, in the event Licensee
elects to continue to receive Support Services, Licensee shall pay PeopleSoft
the annual Support Services fee as set forth in the Schedule. Support Services
are billed on an annual basis, payable in advance. Unless Licensee has provided
proof of tax-exempt status, Licensee is responsible for all taxes associated
with Support Services, excluding taxes based on PeopleSoft's income. Licensee's
payment shall be due within thirty (30) days of receipt of the PeopleSoft
invoice. Should Licensee elect not to renew Support Services and subsequently
requests Support Services, PeopleSoft shall reinstate Support Services only
after Licensee pays PeopleSoft the annual then-current fee plus all cumulative
fees that would have been payable had Licensee not suspended Support Services.
8. TERM AND TERMINATION
Unless otherwise expressly set forth in the Agreement, Support Services shall be
provided for a period of one (1) year from the Schedule Effective Date, 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 any
support term by giving the other party written notice at least ninety (90) days
prior to the end of the term.
If Licensee fails to make payment pursuant to the section titled "Fees", or
Licensee breaches the Support Services provisions and such breach has not been
cured within thirty (30) days of receipt of written notice of breach, PeopleSoft
may suspend or cancel Support Services.
9. EXCLUSIONS
PeopleSoft shall have no obligation to support:
a. Substantially altered, damaged or modified Software;
b. Software that is not the then-current release, or a Previous Sequential
Release;
c. Errors caused by Licensee's negligence, hardware malfunction, or other
causes beyond PeopleSoft's reasonable control;
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 Updates, Enhancements and Fixes provided to Licensee are subject to the
terms and conditions of the Agreement. PeopleSoft may modify Support Services on
an annual basis to reflect current market condition upon reasonable notice.
11. DEFINITIONS
"ENHANCEMENT" means a technical or functional addition to the Software delivered
with a new Software release to improve functionality and/or operations.
"ERROR" means a Software malfunction that degrades the use of the Software.
"FIX" means the repair or replacement of source, object or executable code
Software versions to remedy an Error.
"PREVIOUS SEQUENTIAL RELEASE" means a Software release for a particular
operating environment that has been replaced by a subsequent Software release 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 1" means an Error that renders the Software inoperative or causes the
Software to fail catastrophically.
"PRIORITY 2" means an Error that affects performance of the Software and
prohibits Licensee's use of the Software.
"PRIORITY 3" means an Error that affects performance of the Software, but does
not prohibit Licensee's use of the Software.
CONFIDENTIAL Page 10 of 11
11
"PRIORITY 4" means an Error that causes only a minor impact on the use of the
Software.
"UPDATE" means all published revisions to the Documentation and one (1) copy of
the new Software release not designated by PeopleSoft as new products or
functionality for which it charges separately.
"WORKAROUND" means a change in the procedures followed or data supplied to avoid
an Error without significantly impairing Software performance.
CONFIDENTIAL Page 11 of 11
