1
Exhibit 10.1
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 shall be known as the Momentum Products, and which may be based
on PeopleSoft's PeopleTools technology as set forth herein;
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 the Services Agreement ("Services
Agreement") as of the Effective Date whereby PeopleSoft will provide Momentum
various services, primarily of an administrative nature, as more completely
specified therein;
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 Two Hundred and Fifty Million dollars ($250,000,000)
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 (inlcuding
expenses under the Services Agreement).
"Contract Developer" shall mean PeopleSoft, or a third party developer, either
of which may be contracted by Momentum to develop a particular Momentum Product.
"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 a Contract
Developer for the purpose of developing a Momentum Product. Such development
costs shall include all reasonable development related expenses including: i)
the salaries, benefits, occupancy, and information technology costs incurred by
personnel performing development activities defined under the work plan; ii)
other reasonable out of pocket expenses, including third party consulting
expenses incurred by the Contract Developer in the normal course of performing
the development activities defined under the work plan; iii) the salaries,
benefits, occupancy and information technology costs of full time development
management; and iv) the allocated costs of development support activities such
as testing and release management. "Developed Technology" means development
tools or other core technologies (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 all or any part
of the 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.
Page 1 of 12
2
"Net License Fees" means the actual amount of license fees charged 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.
"Net Revenues" means the aggregate amount of Net License Fees received by
PeopleSoft during any calendar quarter less the actual fully burdened
development costs related to the Developed Technology which are incurred by
PeopleSoft during the same quarter.
"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. 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, and 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, or subsequently approved in
writing by PeopleSoft, 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
Page 2 of 12
3
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
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 financing. 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.
Page 3 of 12
4
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 Except with respect to Contributed Technology, 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. Such
payments shall constitute an authorized use of Available Funds, and
shall be included in the determination of the total cost to develop
Momentum Products.
4. FEES AND PAYMENT TERMS / DEVELOPMENT COSTS
4.1 Unless agreed otherwise by the parties with respect to Contributed
Technology, 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 Revenues on products (other than Momentum
Products) sold or licensed by PeopleSoft that were developed by
PeopleSoft using Developed Technology. If products for which a
Developed Technology Royalty are due and products for which a
Developed Technology Royalty are not due, are licensed under the same
license agreement as a packaged solution for use by an End User, the
Net License Fee computation will be appropriately pro-rated based on
the associated weight of each product's respective list price .
Developed Technology royalties shall be paid on a quarterly basis
forty five (45) days after the end of each quarter.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 PeopleSoft will invoice Momentum monthly for amounts due under section
3.2(a) and Momentum shall pay PeopleSoft such amounts within 30 days
of invoice date.
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 as more
specifically defined in Exhibit C.
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.
6.2 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.
6.3 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
Page 4 of 12
5
PeopleSoft Technology made by Momentum, all copyright and proprietary
information notices as affixed to the original.
6.4 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.
6.5 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 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. 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
Page 5 of 12
6
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.
9.3.1 Any expenditure of funds by Momentum to protect or defend its
intellectual property against third parties other than PeopleSoft
shall be considered an authorized use of Available Funds.
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.
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.
Page 6 of 12
7
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.
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
Page 7 of 12
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: Based on input from sales personnel,
customers, business partners and industry analysts, PeopleSoft will identify and
prioritize product opportunities and present such opportunities to Momentum. For
each product opportunity, high level business requirements are defined and
documented. This initial product scope is reviewed and discussed with internal
and external business process functional experts in an iterative review process
that confirms a product's conceptual framework. Once the initial product scope
is defined, the individual product features are identified and prioritized. In
addition, new technologies that would be required to build and deploy the
product are identified. For each product feature or new technology, a written
summary of its business requirements is prepared and is reviewed with
appropriate development personnel. Based on this review, product strategy and
development personnel reach an initial agreement on the product's content and
priorities for the initial release. Functional and technical designs are
developed for each planned feature. Design reviews are held with teams comprised
of product strategy, release testing, documentation, sample data and training
personnel. During the design review process, this group ensures not only that
the functional requirements are complete but also that the technical design
meets the business needs
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
In developing a new product, the development team will code and unit
test every feature in the products to ensure that the product created complies
with the functional and technical requirements. These tasks are conducted using
a reference development platform, and the functionality is designed to provide
global capabilities based on requirements from a proxy set of countries around
the world. All development issues are identified and addressed. At the same
time, system test requirements and procedures are developed. Test strategies,
product test plans, feature test requirements and test procedures are completed.
During the development and port phase, documentation and curriculum development
personnel work closely with the developers to design documentation and training
courses. Upon substantial completion of development, the developed product is
ported to support multiple hardware, database and operating system platforms,
and release platforms are certified.
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 XXXXXX XXXXX 0 The product is delivered to a select group
of Pre-General Availability customers for limited use. Pre-General Availability
customers provide feedback on the features and functions as well as ease of use.
Issues identified during this phase are generally resolved prior to the product
being released as Generally Available. In addition, the combined product
features are system tested on the primary development platform. These tests
validate that the product and its features perform according to the specified
business and functional requirements. All test failures are logged, reviewed and
addressed. Release test requirements, plans and processes are developed and
finalized. During this phase, the product is tested to validate it is
operational on all supported platforms. The product is tested for (i) ease of
use, (ii) ease of installation, (iii) ease of upgrade, (iv) volume and (v)
performance. All incidents reported during release test are logged, reviewed and
addressed. Once the product has met system and release test exit criteria, all
sample data and documentation are finalized and incorporated into the master
production product. Final validation and acceptance tests are performed.
Page 8 of 12
9
EXHIBIT B
MOMENTUM PRODUCT DEVELOPMENT PLAN
Product Name:
-----------------------------------------------------------------
Description of Product:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Target Market Indication:
Targeted geography: Targeted industries:
------------------ ------------------
Current Year market size $ CAGR # of entities
-------- ------- -----------
Estimated Development costs and Timetable:
Yr # of FTEs Direct Costs Indirect Costs Total Costs
----- ------------ -------------- -------------- ------------------
----- ------------ -------------- -------------- ------------------
----- ------------ -------------- -------------- ------------------
----- ------------ -------------- -------------- ------------------
----- ------------ -------------- -------------- ------------------
Totals ============== -------------- ------------------
Detailed list of features, functions, business processes and reports to be
included in the Generally Available Version:
Agreed to by: Momentum Business Applications, Inc. PeopleSoft, Inc.
------------------------------- ----------------------------------
Page 9 of 12
10
EXHIBIT C
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
Page 10 of 12
11
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.
Page 11 of 12
12
"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.
Page 12 of 12
