Exhibit 10.7
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
This Master Software License and Services Agreement (the "Agreement") is
entered into as of this 16th day of April, 1999 (the "Effective Date"), by and
between Commerce One, Inc. a California corporation with offices located at 0000
Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 ("Commerce One") and Nippon
Telegraph and Telephone Corporation, a Japanese corporation with offices located
at 0-00-0, Xxxxx-Xxxxxxxx, Xxxxxxxx, Xxxxx 000-0000, Xxxxx ("NTT").
BACKGROUND
WHEREAS, Commerce One is developing or has the rights to the software and
documentation described in Section 1 below and desires to license NTT to use
such software on the terms and conditions stated herein; and
WHEREAS, NTT is interested in receiving a license from Commerce One to such
software and documentation on the terms and conditions stated herein, and
further desires to retain Commerce One to perform certain services specific to
Commerce One's software products as set forth herein; and
WHEREAS, Commerce One desires to perform such services for NTT; and
WHEREAS, NTT is interested in establishing an electronic commerce service
in Japan enabling businesses to buy and sell products over the Internet; and
WHEREAS, NTT and Commerce One intend to enter into an initial agreement
covering a pilot project and subsequently enter into a partnership agreement
with the intent to bring to market an internet based open trading community
connecting trading partners across Japan; and
WHEREAS, Commerce One and NTT wish to discuss the possibility of the
marketing of a localized version of the Software in Japan and the provision of
certain electronic commerce services using the localized Software in Japan.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions stated herein, the parties agree as follows:
1. DEFINITIONS.
1.1 "COMMERCE ONE TECHNOLOGY" shall mean (i) the Deliverables and any
and all technology, information, data, know-how, ideas, designs, software,
inventions, documentation, resources and all other tangible and intangible items
made, conceived or reduced to practice by Commerce One alone or jointly with
others hereunder, and (ii) all Intellectual Property rights in (i).
1.2 "DELIVERABLE" shall mean an item identified as a deliverable in
the Statement of Work.
1.3 "DOCUMENTATION" shall mean any instructions, manuals or other
materials provided to NTT by Commerce One in connection with the Software.
1.4 "INTELLECTUAL PROPERTY" means any and all (by whatever name or
term known or designated) tangible and intangible and now known or hereafter
existing: copyrights (including derivative works, as defined by the United
States Copyright Act, thereof), trademarks, trade names, trade secrets, mask
work rights, know-how, patents and any other intellectual and industrial
property and proprietary rights, of every kind and nature throughout the
universe and however designated, and including all registrations, applications,
renewals and extensions thereof.
1.5 "PHASE II" shall have the meaning set forth in the Statement of
Work.
1.6 "SOFTWARE" shall mean the computer program(s) set forth in
EXHIBIT A in machine executable object code format and the Documentation,
together with Updates thereto and Deliverables provided to NTT in accordance
with the terms and conditions hereof.
1.7 "Specifications" means the technical specifications for the
Deliverables which will be developed in conjunction with the Statement of Work
in accordance with Section 4.5.
1.8 "STATEMENT OF WORK" shall mean a document setting forth in detail
the services and Deliverables to be performed and delivered by Commerce One
under this Agreement and an estimated schedule therefor. A preliminary version
of the Statement of Work is attached as EXHIBIT B. The Statement of Work may be
amended by the parties from time to time in accordance with this Agreement. Each
separate Statement of Work shall be sequentially numbered as EXHIBIT B
(e.g., EXHIBIT X-0, X-0, etc.).
1.9 "UPDATES" shall mean new versions of the Software that Commerce
One makes available generally to customers of the Software as part of the
support described in Section 3 below.
2. SCOPE.
2.1 RIGHT TO USE. Subject to the terms and conditions of this
Agreement, Commerce One grants NTT a limited, nontransferable license, without
right of sublicense, to install the Software at the Designated Sites (as
defined below) and to use the Software for internal business purposes only.
Additionally, NTT can provide access to MarketSite services to up to five (5)
external business partners during Phase II of this project. Further, it is
understood and agreed that beta versions of the Software provided hereunder to
NTT are still under development and are provided for
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experimental, evaluation purposes only. Accordingly beta versions of the
Software shall not be used in a production or commercial environment. Unless
otherwise specified herein, NTT shall install the double byte enabled version
of the Software, if any, solely at the locations in Japan set forth in
EXHIBIT D (collectively, the "Designated Sites"). Commerce One will use
reasonable efforts to timely complete the development of the double byte
enabled version of the Software. NTT agrees that it will not itself, or
through any third party, modify the Software or reverse engineer,
disassemble, decompile or otherwise attempt to derive source code from the
Software; use the Software to provide services to third parties, whether in
commercial timesharing, rental or sharing arrangements, or otherwise use the
Software on a "service bureau" basis.
2.2 COPIES. NTT shall not copy the Software, in whole or in part,
except for one (1) copy as necessary to archive such Software.
2.3 INSTALLATION. NTT shall install or, where applicable, shall allow
Commerce One to install, the Software at the Designated Sites for use in
accordance with Section 2.1 above.
2.4 INFORMATION. NTT shall provide information, including NTT
Confidential Information, as reasonably requested by Commerce One to ensure
compliance by NTT with the terms of this Agreement. In addition, and as a
condition of the grant of the license set forth in Section 2.1 above, NTT shall
permit Commerce One to operate "polling software" which monitors transactions
associated with the Software, and NTT shall at all times cooperate with Commerce
One to ensure that Commerce One has remote access to NTT's computers for such
purpose and that Commerce One's polling software operates correctly on NTT's
computers.
2.5 EVALUATION. NTT will participate in a pilot program for the
Software in accordance with the criteria set forth in EXHIBIT D ("Pilot
Program"). NTT shall designate a test coordinator (the "Coordinator" as the
primary contact for Commerce One during the term of this Agreement with respect
to the Pilot Program). NTT will cooperate and consult with Commerce One in the
evaluation of the Software based on NTT's operation, use, and testing of the
Software pursuant to the Pilot Program Criteria set forth in EXHIBIT D. During
the term of the Pilot Program, if NTT discovers errors or bugs in the Software,
the Coordinator will promptly call Commerce One to report such problems.
Commerce One shall, at any time and in its sole discretion replace, modify,
alter, improve, enhance or change the Software and in such event the replaced
version shall be deemed part of the Software. If Commerce One provides NTT with
a corrected or updated Software, NTT shall promptly install such Software solely
as a version replacement and erase from memory any and all copies of the
previous Software. It is understood that any corrected or updated versions of
the Software shall be used solely as version replacements and shall not expand
the number or scope of licenses granted herein.
2.6 EXCLUSIVITY. During the period commencing on the Effective Date
and expiring on the later of (a) December 31, 1999 or (b) the expiration of
three (3) months following Commerce One's release of the MarketSite 3.0
version and the BuySite 6.0 version of the Software ("Exclusivity Period"),
Commerce One agrees that except for the entities listed in EXHIBIT E, Commerce
One will not license the localized Japanese language version of the BuySite
Software and/or the MarketSite Software, to third parties for use within the
Field of Use. For purposes of this Agreement, "Field of Use" shall mean use by
the licensee of the MarketSite and/or BuySite Software to provide services to
third parties having their principal place of business in Japan which services
are for the procurement of Indirect Materials for use by such third parties in
Japan. "Indirect Materials" means materials used in the day-to-day operation
of a buyer entity's business and which are more commonly referred to as
maintenance, repair and operations materials or "MRO" (e.g., desks, paper,
pencils, chairs) and specifically excluding materials that are directly
incorporated into the ultimate product or service
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sold by such buyer entity to its customers. For the avoidance of doubt, it is
further understood and agreed that nothing in this Agreement or any of the
attachments hereto shall restrict Commerce One's ability to license the
Software to third parties for their own internal use in procuring goods or
services electronically on their own behalf for fulfillment of their own
internal business needs. Prior to entering into a definitive agreement during
the Exclusivity Period to license a localized Japanese language version of the
Software to a third party with its principal place of business in Japan for
use not within the Field of Use in Japan, Commerce One agrees to discuss with
NTT its possibility of participating with Commerce One in the sales process for
such Software. If the parties do not reach an agreement within ten (10)
business days of notice of such transaction by Commerce One, Commerce One
shall have no further obligation under this Section, and Commerce One may
grant rights to or license the Software to third parties for use not within
the Field of Use. Upon the expiration of the Exclusivity Period, Commerce One
shall have the right to negotiate with any third parties regarding licensing
the Software, provided that Commerce One grants NTT the first right of
negotiation. Such first right of negotiation shall not preclude Commerce One
from negotiating with other third parties. This first right of negotiation
period shall expire three months from the date of the expiration of the
Exclusivity Period.
3. SUPPORT. During Phase II, Commerce One will make available to NTT,
without charge, such Software support including on-site and off-site support
as Commerce One makes available generally to its customers of the Software
located in Japan.
4. CONSULTING SERVICES.
4.1 SERVICES. Commerce One shall use reasonable best efforts to
provide those services and/or deliver any Deliverables to NTT as set forth in
the applicable Statement of Work and NTT shall use reasonable efforts to
provide, or make available to Commerce One, free of charge, any information,
hardware or software resources or other materials of NTT, and assistance
reasonably required for the performance of such services and reasonable access
to NTT's facilities. Without limiting the foregoing, NTT shall use reasonable
efforts to perform those tasks and assume those responsibilities set forth in
the Statement of Work. The Statement of Work may also set forth certain
assumptions related to the services, and to the extent such assumptions are not
met or are inaccurate, the cost and schedule of the services may be affected.
NTT acknowledges and agrees that Commerce One's performance is dependent on
NTT's timely and effective satisfaction of all of NTT's responsibilities
hereunder and timely decisions and approvals by NTT. Commerce One is entitled to
rely on all decisions and approvals of NTT in connection with the services
provided hereunder. The information NTT has provided to Commerce One is true,
accurate and complete.
4.2 PERFORMANCE. Commerce One warrants that the Services shall be
performed in a professional and workmanlike manner using persons with skills and
experience appropriate to their function.
4.3 DELAYS. If NTT, or any third party acting on NTT's behalf, does
not provide any required item or service to Commerce One on a timely basis in
accordance with the applicable Statement of Work, then the dates set forth in
such Statement of Work which have been directly or indirectly affected by such
delay, shall be extended as reasonably necessary to account for such delay.
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4.4 PROGRESS REPORTS; REVIEW MEETINGS. Commerce One will provide
to NTT progress reports regarding its work progress during development as set
forth in a Statement of Work or otherwise by mutual agreement. In addition,
the Project Managers (as defined below) shall participate in project review
meetings as set forth in a Statement of Work or otherwise by mutual
agreement. Any agreement reached among the parties at such meeting to modify
a Statement of Work shall be prepared in writing and duly signed by the
Project Manager of each party, and such revised Statement of Work shall be
binding upon the parties with respect to the subject matter thereof.
4.5 SPECIFICATIONS. The parties will work in good faith to
complete the Specifications for each Deliverable within thirty (30) days
prior to the delivery date for such Deliverable specified in the Statement of
Work. Upon written approval of both parties to the final version of the
Specifications for a Deliverable, such final version shall be deemed the
"Specifications" for such Deliverable for purposes of this Agreement. If
after such good faith discussions, the parties do not agree upon the
Specifications for a Deliverable within such thirty (30) day period, either
may terminate this Agreement with respect to such Deliverable by forty-five
(45) days prior written notice to the other party within thirty (30) days
after the expiration of such time period.
4.6 PROJECT MANAGERS. NTT and Commerce One shall each designate a
project manager who will be responsible for, and authorized to: (i) make
decisions regarding the Statement of Work; (ii) give any necessary approvals
in conjunction with the Statement of Work; and (iii) provide Commerce One
personnel with information and support for performance of the Statement of
Work.
4.7 MODIFICATIONS TO STATEMENT OF WORK. Should NTT desire to
change the services specified in the Statement of Work, or request additional
services not included in the Statement of Work, NTT shall submit the proposed
modification in writing to Commerce One. Commerce One may, as determined by
Commerce One, elect to perform such modification or additional services, and
if Commerce One elects to perform such modifications or additional services,
Commerce One will provide NTT with a cost estimate and schedule impact for
performing the modifications and/or additional services in a revised
Statement of Work. Upon NTT's written acceptance of the revised Statement of
Work, Commerce One will proceed to perform the modifications mutually agreed
to by the parties.
4.8 COMMENCEMENT CONDITION OF PHASE II: It is hereby understood and
agreed that Phase II shall be (i) commenced on or after NTT shall enter into a
certain letter of intent with its potential customer who desires to receive an
electronic procurement services from NTT by utilizing the localized Japanese
language version of the Software, and (ii) pursued by taking the needs and
requirements of the potential customer into due consideration. In case where
said letter of intent shall not be entered into between NTT and its potential
customer on or before xxx xxx xx Xxxxx, 0000, XXX and Commerce One shall
discuss in good faith and determine how to commence Phase II.
4.9 PREFERRED STATUS. NTT will have the right to participate in
Commerce One's program for third party participation in periodic design
review meetings with Commerce
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One's collaboration partners for the Software. In addition, Commerce One will
provide a dedicated Commerce One liaison to be located in Japan during Phase
II.
4.10 All members of Commerce One Resource (as set forth on EXHIBIT
F) shall, while working at the Designated Sites, observe and abide by the
laws and regulations of the country having jurisdiction over such location,
and all rules and regulations applicable at the Designated Sites, as well as
any and all instructions given by NTT, provided that such instructions are
reasonable. Commerce One shall at its sole discretion provide all members of
Commerce One Resource with appropriate guidance and otherwise cause them to
observe the provisions of this Agreement including the preceding paragraph.
NTT shall not be liable to Commerce One for any act or
omission of any member of Commerce One or for any accident while they are
staying at the Designated Sites or on the way to and from the Designated
Sites or to such personnel's home country. Commerce One, at its own cost,
shall subscribe to and maintain an insurance policy or policies covering any
accident referred to above, and any other appropriate property and liability
insurance for all members of Commerce One during their stay in the Designated
Sites.
Nothing contained herein shall be construed as creating or
requiring any employment or labor relationship between NTT and any member of
Commerce One .
When the services in each week are furnished, Commerce One
shall present a compiled weekly work sheet to NTT specifying works and dates
worked by each member of Commerce One Resource. Within seven (7) days after
receipt of the weekly work sheet, NTT shall verify the work sheet and issue
the accepted weekly work sheet to Commerce One. Should NTT fail to verify a
weekly work sheet, the services provided by Commerce One during the week in
question shall be deemed to have been accepted by NTT on the passage of said
seven (7) days. Should any defect or incorrectness be found in the work sheet
presented and so is pointed out by NTT, and agreed to as a defect or
incorrectness by Commerce One, Commerce One shall revise such defect or
incorrectness immediately and NTT shall verify and accept the revised work
sheet in the same way. It is hereby understood and agreed that NTT will not
accept any time stated in the work sheet as spent by a particular member of
Commerce One, if such work is not performed in accordance with this Agreement.
5. DELIVERY AND ACCEPTANCE.
5.1 DELIVERABLES. Upon completion of each Deliverable, Commerce
One shall deliver such Deliverable to NTT.
5.2 ACCEPTANCE PROCEDURE. Within twenty (20) days after receipt of
each Deliverable, NTT shall review, test and evaluate the Deliverable for
conformity with the Specifications and shall provide Commerce One with a
written acceptance of the Deliverable, or a written statement of defects to
be corrected. Commerce One shall promptly correct such defects, if any, and
return the Deliverable to NTT for retesting, review and reevaluation, and NTT
shall, within twenty (20) days of such redelivery, again provide Commerce One
with a list of defects which need to be corrected, if any. Failure of NTT to
provide Commerce One with a statement of acceptance or defects within the
applicable acceptance period shall be deemed
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acceptance by NTT of the Deliverable. The foregoing procedure shall be
repeated until acceptance of each Deliverable by NTT; provided that if a
Deliverable is rejected five or more times by NTT and Commerce One has used
all reasonable efforts to correct the rejected Deliverable to bring it into
conformity with the Specifications, NTT will accept the Deliverables.
Notwithstanding the foregoing, Commerce One agrees to discuss with NTT the
possibility of redefining the specifications for the Deliverable.
5.3 FINAL ACCEPTANCE. Upon NTT's acceptance of each Deliverable,
Commerce One shall promptly provide NTT with one (1) master copy of the
Deliverable for use in accordance with the terms of this Agreement. NTT shall
not remove any copyright, trademark or other Intellectual Property rights notice
placed by Commerce One on the master copies.
6. MARKETING. The parties agree to negotiate in good faith a definitive
agreement describing the commercial relationship between the parties for
establishment of an electronic procurement service utilizing the Software for
use within the Field of Use (as defined above) on pricing terms as favorable
as those pricing terms offered by Commerce One to any similarly situated third
party under a Comparable Marketing Agreement. For purposes of this Section,
"Comparable Marketing Agreement" means a marketing agreement that (i) exists
as of the effective date of the definitive agreement between NTT and Commerce
One, (ii) is for the same products and services and (iii) has substantially
the same scope, terms and conditions as the definitive agreement entered into
between NTT and Commerce One. It is understood that such definitive agreement
will contain an exclusivity provision as broad as that set forth in Section
2.6 above, subject to the parties' agreement on the scope of NTT's performance
obligations, as well as other terms and conditions to be negotiated in good
faith by the parties. If the parties do not enter into such a definitive
agreement by December 15, 1999 (the "Marketing Date"), neither party will be
under any further obligation to negotiate such an agreement and Commerce One
may grant rights to or license any or all of the Software to third parties
with no further obligations under this Section 6.
7. OWNERSHIP OF PROPRIETARY RIGHTS.
7.1 SOFTWARE. The Software is protected by both United States
copyright law and international copyright treaty provisions. NTT agrees to
reproduce the Commerce One Intellectual Property rights notices and all other
legal notices, including but not limited to other proprietary notices and
notices mandated by governmental entities, on all complete or partial copies or
transmissions, if any, of the Software. As between Commerce One and NTT,
Commerce One or its licensors, as applicable, retain sole and exclusive
ownership of all right, title and interest in and to the Software and all
Intellectual Property rights relating thereto. In addition, Commerce One shall
own all rights in any copy, translation, modification, adaptation or derivative
work of the Software, and NTT hereby assigns all rights in them to Commerce One.
Without limiting the foregoing, NTT shall own all Intellectual Property rights
directly related to any additional features to the Software that NTT develops
independently and without input from Commerce Once, provided that the software
developed by NTT has a substantial use that does not infringe any Commerce One
patent rights. Without limiting the obligations set forth in Section 2.6 above,
if NTT files any patents or patent applications whose claims read on the
manufacture, sale or use of the Software, then NTT shall promptly give notice to
Commerce One in writing of such application or filing, and negotiate in good
faith a license grant to Commerce
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One related to such claims made by NTT, including the right for Commerce One
to grant sublicenses to its customers and distributors, on reasonable and
customary terms and conditions to be negotiated in good faith between NTT and
Commerce One. NTT further agrees to assign all other modifications and
customizations to Commerce One that NTT develops in the exercise of all other
rights granted by Commerce One to NTT under this Agreement. NTT shall
physically identify the Software and any related materials as owned by
Commerce One. All rights not expressly granted hereuner are reserved by
Commerce One and its licensors. NTT shall physically identify the Software
and any related materials as owned by Commerce One. All rights not expressly
granted hereunder are reserved by Commerce One and its licensors.
7.2 COMMERCE ONE TECHNOLOGY. As between NTT and Commerce One,
Commerce One shall own all right, title and interest in and to the Commerce
One Technology. NTT hereby irrevocably assigns, and agrees to assign, to
Commerce One all of its right, title and interest in and to the Commerce One
Technology. NTT agrees to, and to cause its employees, agents and consultants
to, execute such documents and perform such acts, as may be reasonably
necessary to perfect Commerce One's rights as set forth in this Section 7 and
to obtain, enforce and defend Intellectual Property rights in and to the
Commerce One Technology.
7.3 DELIVERABLES INCLUDING NTT CONFIDENTIAL INFORMATION. If NTT
provides Commerce One with any NTT Confidential Information as defined in
Section 11 below, Commerce One and NTT agree to discuss in good faith the
ownership of any Deliverables containing such NTT Confidential Information:
Provided however, NTT shall have no obligation to provide any NTT
Confidential Information if the parties cannot resolve such ownership to the
mutual satisfaction of both parties.
7.4 RIGHT TO DEVELOP INDEPENDENTLY. Without limiting the intent of
Section 2.6 above, NTT understands and acknowledges that Commerce One is in
the business of developing products and providing consulting services similar
to those provided for NTT for other parties based upon the same tools and
knowledge base, and NTT agrees that nothing in this Agreement will impair
Commerce One's right to provide the same services or develop for itself or
others deliverables substantially similar to, or performing the same or
similar functions as, the Deliverables under this Agreement.
7.5 USER GROUP. During the term of this Agreement, NTT will have
the right to participate in any "user group" forums which Commerce One may
establish from time to time for the purpose of exchanging information and
ideas regarding the establishment of similar electronic procurement services.
8. COMPENSATION.
8.1 LICENSE FEE. NTT shall pay Commerce One the nonrefundable,
noncreditable license fees ("License Fees") set forth in EXHIBIT F.
8.2 SERVICE FEES. In consideration for performing the services
listed in the Statement of Work, NTT shall pay Commerce One the
nonrefundable, noncreditable service fees
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("Service Fees") set forth on EXHIBIT F. All fees quoted and payments made
shall be in U.S. Dollars. Invoices shall be due and payable within forty-five
(45) days days of the receipt date of invoice. NTT shall reimburse Commerce
One for any out-of-pocket expenses, if accompanied by the payment evidence,
that are actually incurred by Commerce One in performing under each Statement
of Work.
8.3 LATE PAYMENT AND TAXES.
(a) Any amounts due hereunder and not paid within forty-five
(45) days of the receipt date of invoice shall accrue interest at the rate of
one and one-half percent (1.5%) per month or the maximum rate permitted by
applicable law, whichever is less, determined and compounded on a daily basis
from the date due until the date paid. NTT shall be responsible for all sales
taxes, use taxes and similar taxes and charges of any kind imposed by any
federal, state or local governmental entity for products and/or services
provided under this Agreement, excluding only taxes based solely upon Commerce
One's net income.
(b) All payments by NTT specified hereunder are expressed as net
amounts and shall be made free and clear of, and without reduction for, any
withholding taxes. Any such taxes which are otherwise imposed on payments to
Commerce One shall be the sole responsibility of NTT. NTT shall provide Commerce
One with official receipts issued by the appropriate taxing authority or such
other evidence as is reasonably requested by Commerce One to establish that such
taxes have been paid. If Commerce One uses a foreign tax credit received by
Commerce One as a result of the payment of withholding taxes by NTT and thereby
reduces the amount of U.S. income tax that Commerce One otherwise would have
paid, Commerce One shall refund to NTT the amount of such reduction with respect
to such foreign tax credit.
9. INDEMNIFICATION.
9.1 COMMERCE ONE INDEMNIFICATION. If an action is brought against NTT
claiming that the Software infringes any United States patent, or any copyright
or trade secret rights of a third party, Commerce One shall defend NTT and shall
pay the damages and costs finally awarded against NTT, or settlements entered
into by Commerce One on NTT's behalf, in the action, but only if (a) NTT
notifies Commerce One promptly and in writing upon learning that the claim might
be asserted, (b) Commerce One has sole control over the defense of the claim and
any negotiation for its settlement or compromise, and (c) NTT cooperates and
assists in the defense or settlement of the claim, as reasonably requested by
Commerce One. The indemnity set forth herein will not apply if and to the extent
that the infringement claim results from (a) a correction, modification or
unauthorized merged portion of the Software not provided by Commerce One, (b)
the failure to promptly install an update, (c) the combination of the Software
with items not provided by Commerce One, or (d) the performance of services or
development of customizations to the Software by Commerce One pursuant to a
specific design submitted by NTT.
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If NTT's use of the Software is enjoined by a court of competent
jurisdiction, or if Commerce One wishes to minimize its liability hereunder,
Commerce One may, at its option and expense, either (a) substitute a
substantially equivalent non-infringing item, (b) modify the infringing item
so that it no longer infringes but remains functionally equivalent, (c)
obtain for NTT the right to continue using such item, or (d) terminate the
licenses set forth herein with respect to the allegedly infringing Software
and refund the portion of the License Fees attributable to such Software.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THE FOREGOING
STATES THE ENTIRE LIABILITY AND OBLIGATION OF COMMERCE ONE AND ITS LICENSORS
WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY PATENT,
COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE,
OR OTHERWISE ARISING OUT OF THIS AGREEMENT.
9.2 NTT INDEMNIFICATION. NTT shall indemnify and hold harmless
Commerce One from and against any damages and costs finally awarded against
Commerce One, or settlements entered into by NTT on Commerce One's behalf, in
connection with any claims, actions, suits or proceedings brought by third
parties arising out of or relating to the use by NTT of the Software, but
only if (a) Commerce One notifies NTT promptly and in writing upon learning
that the claim might be asserted, (b) NTT has sole control over the defense
of the claim and any negotiation for its settlement or compromise, and (c)
Commerce One cooperates and assists in the defense or settlement of the
claim, as reasonably requested by NTT. The indemnity set forth herein will
not apply if and to the extent that: (i) the claim, action, suit or
proceeding results from the negligence or willful misconduct of Commerce One
or any officer, director, employee, affiliate, agent, consultant or
representative of Commerce One, or breach of the Agreement by Commerce One or
any officer, director, employee, affiliate, agent, consultant or
representative of Commerce One; or (ii) it would be inconsistent with
Commerce One's indemnification obligations to NTT under Section 9.1.
10. LIMITATION OF LIABILITY.
If either party shall sustain any damage due to any willful
misconduct or negligence by the other party or breach by the other party of
its obligations under this Agreement, the damage-sustained party shall be
entitled to claim, against the other party, recovery of actually proven
damage but only to the extent of damage which shall arise as direct
consequences thereof and to such limit not exceeding the total amount of fees
set forth in Section 8.1 and 8.2 above.
IN NO EVENT WILL COMMERCE ONE OR ANY OF ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER
(INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE,
BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION
WITH OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR THE USE
OR INABILITY TO USE THE SOFTWARE, OR THE FURNISHING, PERFORMANCE OR USE OF
THE DELIVERABLES OR SERVICES PERFORMED HEREUNDER, WHETHER BASED UPON
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, INCLUDING NEGLIGENCE,
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EVEN IF COMMERCE ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION SHALL APPLY NOT WITHSTANDING ANY FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
IN NO EVENT WILL NTT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION WITH OR ARISING OUT OF
OR RELATED TO THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, INCLUDING NEGLIGENCE, EVEN IF NTT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
11. CONFIDENTIALITY.
"Confidential Information" of Commerce One means the Software, this
Agreement, including the Statements of Work, the Deliverables, any trade
secrets, data, documentation or other information relating to or used in the
Software or Deliverables, or any other information relating to the work
performed under the Statement of Work or Commerce One's business or product
plans, marketing information, finances, or other similar information of a
proprietary or confidential nature. "Confidential Information" of NTT means this
Agreement, including the Statement of Work information of a nontechnical nature
concerning NTT's business plans, finances, marketing information, or other
similar information of a proprietary or confidential nature. NTT will not
provide Commerce One with any NTT Confidential Information, including the
information which will be acquired through the remote access to NTT's computers
pursuant to Section 2.4 without Commerce One's prior written approval. In the
event Commerce One shall require access to technical information considered
confidential to NTT, Commerce One agrees to enter into a mutually acceptable
confidentiality agreement with NTT for the limited purpose of the required
disclosure. Confidential Information that is in written, graphic, machine
readable or other tangible form shall be marked "Confidential," "Proprietary" or
in some other manner to indicate its confidential nature. If Confidential
Information is disclosed orally, it shall be confirmed at the time of disclosure
as confidential and be reduced to written summary and delivered to the receiving
party within forty-five (45) days after disclosure and marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential nature. Each
party shall not use Confidential Information of the other party except as
authorized herein or otherwise authorized in writing, shall implement reasonable
procedures to prohibit the disclosure, unauthorized duplication, misuse or
removal of the other party's Confidential Information, shall not disclose such
Confidential Information to any third party, and shall only disclose the
Confidential Information to those of its directors, employees, subsidiaries and
advisors who need access to such information to exercise the rights and fulfill
the obligations set forth herein. Without limiting the foregoing, each of the
parties shall protect the Confidential Information using at least the same
procedures and degree of care that it uses to prevent the disclosure of its own
confidential information of like importance, but in no event less than
-11-
reasonable care. Should any portion of the Confidential Information be
disclosed or used, the receiving party shall cooperate fully with the
disclosing party to enforce its proprietary rights.
The parties understand, however, that any of the following information is
not subject to this confidentiality requirement:
(1) information which at the time of disclosure was or thereafter becomes
in the public domain through no act or omission of the recipient;
(2) information which prior to disclosure was already in the recipient's
possession either without limitation on disclosure to others or
subsequently becoming free of such limitation;
(3) information obtained by the recipient from a third party having an
independent right to disclose the information;
(4) information which is independently developed by the recipient without
using the Confidential Information; or
(5) information that the receiving party is required to disclose by any
court order or government action; provided that the receiving party
gives the disclosing party at least 30 days' advance written notice to
seek a protective order relating to any such disclosure and, provided,
further, that the receiving party will only furnish the portion of the
Confidential Information that it is required to disclose.
12. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
12.1 LIMITED WARRANTY. Commerce One warrants to NTT that for a
period of twelve (12) months from the date of acceptance (the "Warranty
Period"), the Software and/or Deliverable, as applicable, will perform
substantially in accordance with the applicable Specifications when operated
on a system which meets the requirements specified by Commerce One in such
Specifications.
In case where the Software and/or Deliverable does not function as
warranted due to any cause not attributable to NTT, Commerce One shall use
commercially reasonable efforts to repair or replace such malfunction without
any charge to NTT, and in case where said repair or replacement is not
completed by Commerce One within a reasonable period of time, the License Fees
or Service Fees set forth in Sections 8.1 and 8.2, respectively, shall be
refunded by Commerce One as applicable. In case of the License Fees, such
refund shall be in full during the first six (6) months of the Warranty
Period. During the final six months of the Warranty Period, Commerce One will
refund the portion of License Fees attributable to such Software less a
reasonable amount for use based on straight line depreciation over a five (5)
year period. In case of the Service Fees, such refund shall be as determined
by the parties in good faith.
-12-
12.2 DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN
THIS SECTION 12, COMMERCE ONE AND ITS LICENSORS MAKE NO WARRANTIES EXCEPT AS
SPECIFICALLY PROVIDED IN THIS SECTION 12, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, THE SERVICES PERFORMED
UNDER THIS AGREEMENT OR THE STATEMENT OF WORK, OR THE DELIVERABLES, AND
COMMERCE ONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
13. TERM AND TERMINATION.
13.1 TERM. This Agreement shall commence on the Effective Date and
shall be terminated on the end of the Pilot Period or the day otherwise agreed
to by both parties hereto, unless earlier terminated as follows: (a) if NTT
fails to make any payment due within forty-five (45) days after receiving
written notice from Commerce One that such payment is delinquent, Commerce One
may terminate this Agreement on written notice to NTT at any time following
the end of such forty-five (45) day period; or (b) if either party materially
breaches any term or condition of this Agreement and fails to cure that breach
within forty-five (45) days after receiving written notice of the breach
stating the notifying party's intent to terminate, the nonbreaching party may
terminate this Agreement on written notice at any time following the end of
such forty-five (45) day period.
13.2 EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement for any reason NTT shall immediately pay to Commerce One all amounts
due and outstanding as of the date of such termination or expiration, and the
parties shall return or destroy, at the other parties discretion, all originals
and all copies of such Confidential Information, including all copies of the
Software or portions thereof and any related materials, and if destroyed,
provide written certification of destruction. The following sections shall
survive the expiration or termination, for any reason, of this Agreement: 7.1,
7.2, 8, 9, 10, 11, 12, 13.2 and 14.
14. MISCELLANEOUS.
14.1 FORCE MAJEURE. Neither party will incur any liability to the
other party on account of any loss or damage resulting from any delay or failure
to perform all or any part of this Agreement, except for the failure to meet any
financial obligation, if such delay or failure is caused, in whole or in part,
by events, occurrences, or causes beyond the control and without negligence of
the parties; provided that NTT shall be excused from payment for monies due and
owing by NTT to Commerce One for a period not to exceed 10 days during the
period of such impossibility, which period may be extended by mutual agreement.
Such events, occurrences, or causes will include, without limitation, acts of
God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions.
-13-
14.2 INDEPENDENT CONTRACTORS. The relationship between NTT and
Commerce One hereunder is that of independent contractors and nothing herein
will be deemed to create a joint venture, partnership or agency relationship
between the parties for any purpose.
14.3 SUBCONTRACTORS. Commerce One may use subcontractors in
connection with the performance of services hereunder, subject to NTT's prior
written consent which consent shall not be unreasonably withheld.
14.4 NO SOLICITATION. During the term of this Agreement and for one
(1) year thereafter, NTT agrees not to solicit the employment of any employee
or consultant of Commerce One.
14.5 WAIVER. Any waiver of the provisions of this Agreement or of a
party's rights or remedies under this Agreement must be in writing to be
effective. Failure, neglect, or delay by a party to enforce the provisions of
this Agreement or its rights or remedies at any time will not be construed
and will not be deemed to be a waiver of such party's rights under this
Agreement and will not in any way affect the validity of the whole or any
part of this Agreement or prejudice such party's right to take subsequent
action.
14.6 SEVERABILITY. If any term, condition, or provision in this
Agreement is found to be invalid, unlawful or unenforceable to any extent,
the parties shall endeavor in good faith to agree to such amendments that
will preserve, as far as possible, the intentions expressed in this
Agreement. If the parties fail to agree on such an amendment, such invalid
term, condition or provision will be severed from the remaining terms,
conditions and provisions, which will continue to be valid and enforceable to
the fullest extent permitted by law.
14.7 AMENDMENT. This Agreement may not be amended, except by a
writing signed by both parties.
14.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed to be an original and such counterparts together
will constitute one and the same agreement.
14.9 GOVERNING LAW. This Agreement will be interpreted and
construed in accordance with the laws of the State of California, without
regard to conflict of law principles or the 1980 UN Convention on Contracts
for the International Sale of Goods.
14.10 ARBITRATION.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement, including whether either or both of the parties
have satisfied their obligation to negotiate in good faith under Section 6 or
Section 12 of this Agreement, shall be determined by final and binding
arbitration: (i) in Santa Clara, California, in accordance with the
commercial rules of the American Arbitration Association ("AAA"), in case NTT
requests an arbitration; and (ii) in Tokyo, in accordance with the commercial
arbitration rules of the Japan Commercial Arbitration Association ("JCAA"),
in case Commerce One requests an arbitration. The arbitration
-14-
shall be conducted in the English language and by three arbitrators appointed
in accordance with said rules. Each party shall bear its own expenses in
connection with such arbitration.
(b) Notification of any claim that a party has not fulfilled its
obligation under Section 6 or Section 12 of this Agreement ("Notice") must be
delivered within thirty (30) calendar days after the expiration of the Marketing
Date or the conclusion of the Warranty Period as applicable. Each party shall
prepare a written report setting forth its position within thirty (30) calendar
days of receipt of the Notice.
14.11 NONASSIGNMENT/BINDING AGREEMENT. Neither this Agreement nor
any rights under this Agreement may be assigned or otherwise transferred by NTT,
in whole or in part, whether voluntary or by operation of law, including by way
of sale of assets, merger or consolidation, without the prior written consent of
Commerce One, which consent will not be unreasonably withheld. Notwithstanding
the foregoing, at the time of NTT's reorganization (the "Reorganization") as
prescribed in the Supplementary Provisions to the Law Concerning Partial
Amendment to the Nippon Telegraph and Telephone Corporation Law (Law Xx. 00 xx
0000 xx Xxxxx), XXX may assign this Agreement to one of the entities (the
"Replacing Entity") to be established pursuant to such Reorganization. Upon
prior written notice to Commerce One, the Replacing Entity shall replace NTT as
a party to this Agreement and assume all of NTT's rights and obligations
hereunder in writing, and in such event, Commerce One agrees to release and
discharge NTT from any further obligations under this Agreement. Subject to the
foregoing, this Agreement will be binding upon and will inure to the benefit of
the parties and their respective successors and assigns.
14.12 ENTIRE AGREEMENT. This Agreement (including the Exhibit(s)
and any addenda hereto signed by both parties) contains the entire agreement of
the parties with respect to the subject matter of this Agreement and supersedes
all previous communications, representations, understandings and agreements,
whether oral or written, between the parties with respect to said subject
matter.
-15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMMERCE ONE, INC. NTT
By:__________________________________ By:_______________________________
Name:________________________________ Name:_____________________________
Title:_______________________________ Title:____________________________
EXHIBIT A
SOFTWARE
English language version of BuySite
English language version of MarketSite
Double byte version of BuySite, if and when available
Double byte version of MarketSite, if and when available
EXHIBIT B
STATEMENT OF WORK
Statement of Work for Phase II consists of (i) Project Schedule, (ii) Roles
and Responsibilities, (iii) Activities and (iv) Deliverables Descriptions.
(i) Project Schedule
The general time frame for the implementation work steps is illustrated in
the diagram below. The actual time frame and resource requirements will be
confirmed at the end of each phase for the next phase.
Task Name May Jun Jul Aug Sep Oct Nov Dec Jan
E B M E B M E B M E B M E B M E B M E B M E B M E B M E
--- --------------------------------------------- -------------------------------------------------------
1 Project Management XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
2 Ongoing Project Management XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
3 Project Status Reports and Meetings XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
77 Project Organization XXXXXXX
78 Determine Meeting Locations and Times X
82 Assessment XXXXXXX
102 NTTJ Market Site Infrastructure Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
103 Hardware Strategy XXXXXXX
116 Software Strategy XXXXXXX
118 Architecture Planning XXXXXXX
122 Business Planning XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
126 Build Marketsite Environments XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
146 NTTJ Supplier Adoption Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
147 Supplier Adoption Development I (Partial) XXXXXXXXXXXXXXXXXXXXX
155 Supplier Adoption Development II (Full) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
161 NTTJ Catalog Development Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
172 NTTJ Internal Buysite Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
173 Business and Technical Assessment XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
174 Business Process Assessment XXXXX
200 IT Operations Assessment X
215 Installation & Operation XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
218 BuySite Pre - Installation X
233 NTTJ Buysite Installation Japanese XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
245 Catalog Development Program XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
246 Develop Overall Content Strategy XXXXXXXXXXXXXXXXXXX
248 Knowledge transfer XXXXXXXXXXXXX
250 Local Content Management XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
252 NTTJ Phase III Planning XXXXXXXXXXXXX
2
(ii) Roles and Responsibilities
Commerce One will provide to NTT the project management, product
and technical consultation and guidance necessary to achieve a
successful project implementation. The roles and
responsibilities that are required to meet the defined goals
under the given time constraints are discussed in this section.
NTTJ MARKET SITE INFRASTRUCTURE PROGRAM
Resources
Commerce One (0.8) 5/1/99 - 1/15/00
NTT (6) - Manager (1), Technical (5)
DB, SysAdmin, Webmaster,Network Admin, Tech
NTTJ SUPPLIER ADOPTION PROGRAM
------------------------------
Resources
Commerce One (0.5) 6/1/99 - 8/1/99
NTT (4) - Manager (1), Associate (3)
NTTJ CATALOG DEVELOPMENT PROGRAM
--------------------------------
Resources
Commerce One (0.5) 6/1/99 - 8/1/99
NTT (4) - Manager (1), Associate (3)
NTTJ INTERNAL BUYSITE PROGRAM
-----------------------------
Resources
Commerce One (0.8) 5/1/99 - 12/1/99
NTT (5)
NTTJ SOFTWARE LOCALIZATION PROGRAM
----------------------------------
Resources
To Be Determined
To Be Determined
NTTJ JAPAN CONSULTING OPERATIONS
--------------------------------
Resources
To Be Determined
To Be Determined
NTTJ BUSINESS INFRASTRUCTURE PROGRAM
------------------------------------
3
To Be Determined
PROJECT MANAGEMENT
------------------
Resources
Commerce One (1) 5/1/99 - 1/15/00
(iii) Activities
The focus of Phase II is to develop the infrastructure and "go to market"
plans for NTT Japan and to enhance the Commerce One Commerce Chain Solution
for the Japanese marketplace. The project team will be working very closely
with both the Commerce One implementation consultants and the Commerce One
product marketing and engineering teams.
The activities for Phase II begin in early May, 1999 to leverage the working
relationship that has started between the two companies. The system that is
operational at NTT America will play a critical role in this phase by
providing both a referenceable site and a working solution to assist in the
functional design for the Japanese marketplace.
The Phase II activities are described below:
1. PROJECT MANAGEMENT - The overall project management responsibility will
reside with NTT, but Commerce One would provide management support at the
Steering Committee level with representation by one of Commerce One's
corporate executives and at the project team level with its account
management/executive support. Team leadership would also be NTT's
responsibility with Commerce One product consultants supporting each
team. Monthly status reports would be required, as well as quality
assurance monthly meetings.
SERVICES: Project Management Support to NTT Project Team
Monthly Quality Assurance Meeting
DELIVERABLES: Monthly Status Report
FINAL PHASE II DETAILED PROJECT PLAN
2. MARKETING AND BUSINESS PLAN - The Marketing and Business Plan has three
major components that have been identified to be included to support
NTT's Electronic Commerce Services vision. This plan is expected to
provide the initial framework and will be updated as NTT moves closer to
executing against the vision. Commerce One is expecting to provide
consulting support to the development of this plan, leveraging its
experience and market knowledge.
- The first component is the definition of the actual business goals.
This includes the business vision for Japan, an initial analysis of a
few short-term business opportunities that will offer proof points in
Japan, and the revenue models for these opportunities with milestones.
- The second component is a clear definition of roles and
responsibilities within NTT. It is important to define product
ownership issues, the required organizational structure to support the
business model, and the estimated funding required to support the
rollout of the solution.
- A third component is a more complete market analysis that will clearly
define the three to five year revenue objectives. This analysis will
also be supported by the identification of the key suppliers and
trading partners for the NTT Electronic Commerce Services Solution.
4
Once the plan has been completed, Commerce One would welcome the
opportunity to co-present the plan to NTT Japan as a further example of our
working partnership.
3. JAPANESE MARKETSITE - Due to the significant long term revenue goals
that will be generated through the Japanese MarketSite hosted by NTT, it
is imperative that the right resources are available to address the
planning, design, and implementation. It is also imperative that this
activity starts on time. Commerce One will work closely with NTT during
this major activity from definition through implementation and into
production.
- THE PLANNING TASKS ARE EXPECTED TO AGAIN LEVERAGE COMMERCE ONE'S
EXPERIENCE AND TOOLS. AN EXAMPLE IS THE TASK ASSOCIATED WITH CONTENT
MANAGEMENT. NTT WILL BE EXPECTED TO WORK WITH THE COMMERCE ONE
CONTENT MANAGEMENT GROUP TO UNDERSTAND ITS METHODOLOGIES AND TOOLS.
THIS KNOWLEDGE TRANSFER WILL ENABLE THE NTT CONTENT TEAM TO BEGIN
WORKING WITH ITS TARGETED SUPPLIERS TO ACQUIRE CONTENT, MAP IT TO THE
PROPER CATEGORIES AND STRUCTURES, AND BEGIN TO PUBLISH IT IN THE
REQUIRED FORMAT TO MAKE IT "TRANSACTIVE CONTENT."
- THIS APPROACH IS ALSO EXPECTED TO TAKE PLACE WITH THE SUPPLIER
ADOPTION METHODOLOGY DEFINITION TASK. NTT IS EXPECTED TO ADOPT THE
METHODOLOGY THAT COMMERCE ONE HAS DEVELOPED FOR THE JAPANESE
MARKETPLACE. THIS WOULD INCLUDE MARKETING PROGRAMS, COMMUNICATION AND
INCENTIVE PROGRAMS.
- ANOTHER AREA IS SUPPLIER INTEGRATION. NTT WOULD DEVELOP THEIR
TECHNICAL STRATEGY TO FULLY INTEGRATE KEY SUPPLIERS OR TO OFFER THE
WEB-BASED SUPPLIER MANAGEMENT SOLUTION TO SUPPLIERS. THE TECHNICAL
STRATEGY WILL IMPACT THE TECHNICAL PLATFORM DESIGNS AND IMPLEMENTATION
PLANS.
- A KEY COMPONENT OF A COMPLETE TECHNICAL PLAN WILL BE THE EXPECTED
BENCHMARKS AND PERFORMANCE CRITERIA THAT NTT WANTS TO PUT IN PLACE TO
MEASURE THEIR SERVICE STANDARDS. THE OUTPUT WILL BECOME INPUT INTO
THE OVERALL PROJECT FUNDING.
Once the planning is complete, the NTT project team can begin the
implementation of its Japanese MarketSite. This process will need to be
coordinated with Commerce One's MarketSite product management team to
ensure that the installation in Japan starts with the latest release.
The implementation process will include the establishment of the
environment, the delivery of the software and testing, the loading of the
adopted suppliers' content, and the training of the support staff.
DELIVERABLES: JAPANESE MARKETSITE DESIGN DOCUMENT
JAPANESE MARKETSITE PRE LAUNCH CERTIFICATION
Supplier Systems Integration Training
4. JAPANESE LOCALIZATION - This activity will start very early in the
project with the initial focus on completing a detailed design document
that will be turned over to the NTT translator. The design will include
the user interface, documentation, online help, error messages, test
scenarios, and training materials. After review of the above, the
project team would then focus on defining any unique functional
requirements, changes to reflect the Japanese operating system and
database requirements, and changes to the Commerce One support
tools/products (e.g., catalog administration, SupplyOrder).
The design would then be followed by the development and testing
activities for each of the above sections. NTT's involvement in these
activities will provide the required detailed product knowledge that will
allow NTT to rapidly become self-sufficient. Commerce One's primary role
would be in assisting in the design activities around functional
enhancements.
5. JAPANESE BUYSITE - This is the activity that will install Commerce One's
BuySite product at NTT Japan connected to NTT's MarketSite to conduct
electronic commerce between a selected internal department
5
and a minimal set of Japanese suppliers. The key contingencies are the
translation efforts, conversion to the Japanese operation system and
database requirements, and having a fully functioning MarketSite. With
these tasks in place the actual implementation effort will be very
similar to the one that took place at NTT America. It is expected that
the NTT project team will be in a position to manage and perform the
majority of the implementation tasks with Commerce One providing product
consulting and project oversight.
SERVICES: Integration Design Assistance
Onsite End User and Technical Supports
DELIVERABLES: JAPANESE BUYSITE DESIGN DOCUMENT
JAPANESE BUYSITE PRELAUNCH CERTIFICATION
Unlike the implementation of the NTT America BuySite, this implementation
will require the project team to actively engage in the supplier adoption
and content management activities. The plan is based upon the initial
Japanese suppliers for the internal BuySite to also be key suppliers that
will be a part of the initial NTT Hosted BuySite rollout. NTT will
utilize the supplier adoption programs developed by Commerce One as the
basis for its own programs. These will be adapted for the Japanese
marketplace and NTT will take the lead on bringing the identified
suppliers on board. NTT and Commerce One will work together on utilizing
the content management tools and building the content processes to
convert the supplier catalog information into transactive content format.
One of the tasks under this activity that will require Commerce One
participation will be integration analysis and design to NTT's selected
procurement/financial system (e.g., SAP, Baan). The goal is to first
implement the BuySite product in a stand-alone environment as part of
Phase II and then develop and implement the integration processes as part
of the early part of Phase III. This is done to ensure that NTT can
begin to realize their return on investment as early as possible. The
development and implementation effort will not require Commerce One's
participation.
Commerce One has included in its resource plans onsite "help desk"
assistance for the first two months of production and onsite technical
support for the first two months of production. These resources will be
supported by Commerce One's Customer Service Center that delivers 7 by 24
hour support for level two and level three problems.
6. HOSTED BUYSITE (DESIGN AND DEVELOPMENT) -- Commerce One will be
responsible for the design and development of its Hosted BuySite product.
This effort will be driven by solid engineering methodology, which will
include organizational modeling, focus group input, and customer design
review sessions. NTT is welcomed to actively participate in the Commerce
One Design Program. This group meets on a regular basis to receive
detailed work through from product development team and the group
receives design materials for review and input. A couple of the areas
that NTT may be able to offer valuable insight in the design: security,
system management, reporting and supplier ERP integration. At a minimum,
as part of the product consulting support, Commerce One will keep the NTT
project team well informed on the design and development timelines and
will share design documentation to ensure that any unique NTT
requirements can be analyzed against the expected delivered product.
Hosted BuySite functions will be integrated into BuySite 6.0.
7. HOSTED BUYSITE (IMPLEMENTATION) - One of the advantages of the strategy
that has been jointly developed is NTT will have become self-sufficient
with the supplier adoption and content management activities through
their efforts in the implementation of the NTT BuySite solution.
Commerce One and NTT will have worked together to put in place the
robust content management processes that simplifies the process for
suppliers to deliver content updates that contain items and
6
content that is relevant to NTT internal use as well as content for the
commercial use in the Hosted NTT Solution. The Commerce One methodology
includes a set of administrative tools that allow NTT to create a
"catalog profile" for each supplier and a "catalog profile" for the
individual groups of users. This process is greatly simplified if the
Supplier maintains their content within MarketSite, as the tools are also
available for the suppliers to establish "customer profiles" to provide a
first filtering step before the new content is pulled to NTT. These
integrated suppliers are also able to provide on-going updates on price
and availability as their products are being checked prior to an order or
as their products are being ordered.
The Supplier Adoption program focuses on educating NTT suppliers on the
value of electronic procurement and how they can participate with NTT. As
part of this program, each strategic supplier's ability to adopt the NTT
Electronic Commerce Services Solution is evaluated and rated to confirm
their ability to be a part of the NTT implementation. They are
prioritized and individual plans are prepared and agreed to.
8. SUPPLIER ADOPTION AND CONTENT MANAGEMENT PROGRAMS - The Supplier Adoption
and Content Management program focuses on building organizations and
processes to support these efforts and also to assist educating NTT
suppliers on the value of electronic procurement and how they can
participate with NTT. As part of this program, each strategic
suppliers's ability to adopt the NTT Electronic Commerce Services
Solution is evaluated and rated to confirm their ability to be a part of
the NTT implementation. They are prioritized and individual plans are
prepared and agreed to.
SERVICES: Support for Content Development
DELIVERABLES: SUPPLIER ADOPTION LOCALIZATION PLAN
CONTENT LOCALIZATION PLAN
SUPPLIER ADOPTION TRAINING
CONTENT MANAGEMENT TRAINING
(iv) Deliverables Descriptions
FINAL PHASE II DETAILED PROJECT PLAN
The deliverable will provide the final detailed plan for execution of Phase
II of the project. the deliverable will require NTT input and resource
commitments.
SUPPLIER ADOPTION LOCALIZATION PLAN
This deliverable will provide the planning and structure for developing a
Supplier Adoption Program for the Japanese market.
CONTENT LOCALIZATION PLAN
This deliverable will provide the planning and structure for developing a
Content Management Program for the Japanese market.
SUPPLIER ADOPTION TRAINING
This deliverable will consist of primarily instructor led training by a
dedicated Commerce One resource. These programs will take place in the US and
Japan between 6/1/99 and 8/1/99 and will enable NTT to build a successful
Supplier Adoption organization in Japan.
CONTENT MANAGEMENT TRAINING
This deliverable will consist of primarily instructor led training by a
dedicated Commerce One resource. These programs will take place in the US and
Japan between 6/1/99 and 8/1/99 and will enable NTT to build a successful
Content Management organization in Japan.
JAPANESE INTERNAL BUYSITE DESIGN DOCUMENT
This deliverable will provide the detailed functional and technical
specifications for the Internal BuySite implementation and will include the
specifications addressing procurement processes, architecture, and user
adoption.
JAPANESE INTERNAL MARKETSITE DESIGN DOCUMENT
This deliverable will provide the detailed functional and technical
specifications for addressing architecture and operations of a MarketSite
implementation in Japan.
JAPANESE BUYSITE PRE LAUNCH CERTIFICATION
The deliverable will provide pre-production testing and system acceptance
prior to launch of the NTT'S internal BuySite.
JAPANESE MARKETSITE PRE LAUNCH CERTIFICATION
The deliverable will provide pre-production testing and system acceptance
prior to launch of the NTT Japan Business.
7
EXHIBIT C
Intentionally Omitted
8
EXHIBIT D
DESIGNATED SITES
Japan:
Address: 0-0-0, Xxxxx, Xxxxxx-xx, Xxxxx 000-0000
--------------------------------------------------------
PILOT PROGRAM CRITERIA
TERM: As currently defined, the Pilot Program will begin on May 1, 1999 and
continue through January 15, 2000 which, may be extended by mutual agreement.
SCOPE: The objective of the Pilot Program is to refine Commerce One's
business model for an installation of the Software in Japan in Phase III. The
efforts of both parties in Japan will give Commerce One an opportunity to
create the initial infrastructure for electronic procurement service in Japan.
TESTS TO BE PERFORMED BY NTT: Commerce One expects that NTT and other
localization partners will provide the opportunity and make efforts to fully
evaluate the success of Commerce One's localization efforts, and to identify
additional functional changes that would be required in order to meet the
specific business requirements of the Japanese market.
OTHER:
9
EXHIBIT E
EXCLUDED ENTITIES
To comply with the terms of certain of Commerce One's pre-
existing relationships, the following entities shall be deemed
Excluded Entities:
Ricoh
Nihon Unisys
Mitsubishi
MCI
Price WaterhouseCoopers
10
EXHIBIT F
FEES
License Fees: One Million Seven Hundred Thousand Dollars (US$1,700,000)
payable within forty-five (45) days of the receipt of invoice.
Services and Deliverables: To be provided on a fixed fee basis totaling
US$770,000 payable according to the following schedule upon the delivery of
certain Deliverables by each payment date.
Payment Payment Payment Amount Deliverables
Number Date
-------- ------------ ------------------- -------------------------------------------
1 6/15 $140,000 - FINAL PHASE II DETAILED PROJECT PLAN
-------- ------------ ------------------- -------------------------------------------
2 8/15 $215,000 - SUPPLIER ADOPTION LOCALIZATION PLAN
- CONTENT LOCALIZATION PLAN
- SUPPLIER ADOPTION TRAINING
- CONTENT MANAGEMENT TRAINING
-------- ------------ ------------------- -------------------------------------------
3 10/15 $165,000 - JAPANESE BUYSITE DESIGN DOCUMENT
- JAPANESE MARKETSITE DESIGN DOCUMENT
-------- ------------ ------------------- -------------------------------------------
4 12/15 $250,000 - BUYSITE PRE LAUNCH CERTIFICATION
- MARKETSITE PRE LAUNCH CERTIFICATION
-------- ------------ ------------------- -------------------------------------------
Program Title Commerce One Resource Person Month
--------------------------------- ----------------------------- ---------------------------
Project Manager Project Manager 8.5
(1) 5/1/99-1/15/00
--------------------------------- ----------------------------- ---------------------------
MarketSite Infrastructure Program MarketSite Lead 6.8
(0.8) 5/1/99-1/15/00
--------------------------------- ----------------------------- ---------------------------
Supplier Adoption Program Supplier Adoption Lead 1.0
(0.5) 6/1/99-8/1/99
--------------------------------- ----------------------------- ---------------------------
Content Management Program Content Management Lead 1.0
(0.5) 6/1/99-8/1/99
--------------------------------- ----------------------------- ---------------------------
Internal BuySite Program Internal BuySite Program 6.8
(0.8) 5/1/99-1/15/00
--------------------------------- ----------------------------- ---------------------------
Total 24.1
--------------------------------- ----------------------------- ---------------------------
Total Service Fee=
$200.00 (Service Fee : one person per hour]
x 8 hours (Working Time : hours per day [9:00-18:00 with one hour break])
x 20 days (Working Days : days per month)
x 24.1 person month
= $770,000
11
