CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
AMENDMENT ONE
TO THE
OEM SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This Amendment One ("Amendment One") to the OEM Software License and
Distribution Agreement between Commerce One, a California corporation ("Commerce
One"), with principal offices at 0000 Xxxxxxx Xxx, Xxxxxx Xxxxx, Xxxxxxxxxx,
00000 and PeopleSoft, Inc., a Delaware corporation ("PeopleSoft"), with
principal offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000-0000
dated as of June 5, 1999 (the "Agreement"), is effective as of January 22, 2000
(the "Amendment Effective Date").
Now therefore the parties hereby agree as follows:
Capitalized terms defined in the Agreement shall have the same meaning in this
Amendment One as in the Agreement.
1. AS OF THE AMENDMENT EFFECTIVE DATE, THE FOLLOWING PROVISIONS ARE
HEREBY AMENDED, MODIFIED OR ADDED TO SECTION 2 AS FOLLOWS:
2.6 "Distribute" or "Distribution" means selling,
sublicensing, transmitting, marketing, or otherwise
distributing the Products, XxxxxxXxxx.Xxx, Branded
MarketSite, MarketSite Auction Services, Enterprise
Portal Service or the MarketSite Services.
2.8 "End User" shall include, in addition to any third
party licensed to use, but not to further Distribute,
the BuySite Products and/or the PeopleSoft Products,
an end user customer who accesses the MarketSite
Software for the electronic procurement of products
and/or services from one or more Suppliers for use in
the day-to-day operation of such end user's business.
"Auction Site End Users" means all end users of the
Auction Site, including without limitation, bidders
and sellers.
2.13 "MarketSite Services" means the MarketSite Direct and
MarketSite Indirect Services and shall include
XxxxxxXxxx.Xxx operated using the MarketSite
Software.
2.14 "MRO Portal" means a multisupplier and multiproduct
line merchant portal designed primarily to facilitate
trading for operating resources (goods or services
which are used to operate a business, excluding goods
or services which are primarily used to directly
contribute to products, services or other
revenue generating activities which a business
provides to its customers or uses to support its
internal administrative operations). Operating
resources shall include, but not be limited to,
industrial parts and supplies, computer equipment and
peripherals, goods and services required to maintain
plant, property and equipment. Without limiting the
foregoing, such multisupplier and multiproduct line
merchant portal shall not include any and all portals
which are not: (1) multisupplier; (2) multiproduct
line; (3) do not offer both (a) goods; and (b)
services for the purposes set forth above; or (4)
directed to government markets.
2.17 "PeopleSoft Product" shall mean PeopleSoft's
software product, as described in Attachment F as
amended.
2.20 "Specified Companies" means the list of entities set
out on Attachment H, as amended.
2.23 "Enterprise BuySite" means the license granted to
PeopleSoft by Commerce One in Section 3.1 (l).
2.24 "First Commercial Shipment" or "FCS" of a product or
service shall mean the first commercial release of
the PeopleSoft Product to third party customers. For
the avoidance of doubt, First Commercial Shipment, or
FCS, shall not include trial, "Beta," or similar
shipments that are not commonly considered commercial
release on a general basis to third party customers.
2.25 "Hosted BuySite" shall mean offering the BuySite
Products in Object Code only in a hosted manner for
use by End Users.
2.26 "MarketSite Software" means the computer software
programs licensed in Section 3.1 (h) and 3.1(m).
2.27 "XxxxxxXxxx.Xxx " means any electronic commerce
service operated by PeopleSoft that includes as a
component the MarketSite Software provided by
agreement to third parties but hosted by PeopleSoft
or Commerce One.
2.28 "Branded MarketSite Service" shall mean the service
offered by PeopleSoft to End Users via the MarketSite
Software operated by PeopleSoft but which is
separately branded with a third party's identifying
marks. Commerce One currently anticipates changing
the name of Branded MarketSite service to `Commerce
Portal'.
2.29 "Transaction Revenues" shall mean all revenues
received by PeopleSoft which have been derived
directly from transactions performed by End Users
using the MarketSite Software.
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2.30 "Blended Transaction Rate" shall mean the average
transaction fee for each transaction type during the
same period, for transactions performed using the
MarketSite Software or the MarketSite Auction
Software. The Blended Transaction Rate shall be
calculated quarterly based on contracts entered into
by both parties in the prior quarter and shall be
subject to adjustment by mutual agreement of the
parties. In the event that the parties are unable to
agree on an adjustment to the Blended Transaction
Rate, the prior quarter's Blended Rate shall govern
until such time as the parties are able to resolve
their dispute.
2.31 "Blended License Fee" shall mean the average of
Commerce One Net Fees and PeopleSoft Net Fees (during
the same period), for the BuySite Products and
PeopleSoft Products, respectively. The Blended
License Fee shall be calculated on a quarterly basis
and shall compare license fees for substantially
equivalent license grants, including comparisons of
number of seats licensed, to the extent applicable.
2.32 "Documentation" means any on-line help files or
written instruction manuals regarding the use of the
MarketSite Software and MarketSite Auction Software.
2.33 "Supplier" means an entity that provides or offers to
provide products and/or services to End Users.
2. As of the Amendment Effective Date, the following
provisions of Article 3 shall be amended as follows and all of
the amendments in this Section 3 shall be subject to the terms
and conditions of this Agreement, as amended.:
(a) Section 3.1(f) shall be deleted in its entirety and
replaced with the words "intentionally omitted."
(b) Section 3.1(h) is hereby deleted in its entirety and shall
be replaced with the following:
3.1(h)(i) COMMERCE ONE MARKETSITE LICENSE. (i) Commerce One
hereby grants to PeopleSoft, a non-exclusive,
non-transferable, worldwide right and license to use the
MarketSite Software, including any and all localizations and
translations thereto which Commerce One owns or has a right to
license and PeopleSoft shall reimburse any license fees
associated with such localizations or translations owed by
Commerce One to any unrelated third parties as a result of
PeopleSoft's use, to: (a) install the MarketSite Software on
computer hardware servers owned or operated by PeopleSoft or a
related entity (each such physical location (which may include
one or more adjacent buildings) an "Installation"); (b)
provide an unlimited number of End Users and Suppliers with
remote access to the MarketSite Software via such servers; and
(c) use the Documentation in connection with such use of the
MarketSite Software. The scope of the MarketSite Software
license grant in this Section 3.1(h) shall include the
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right to integrate independently developed business services
in the MarketSite Software using Commerce One XML Commerce
Connectors licensed to PeopleSoft as part of the MarketSite
Software license. This license transfers to PeopleSoft neither
title nor any proprietary or intellectual property rights to
the MarketSite Software, Documentation, or any copyrights,
patents, or trademarks, embodied or used in connection
therewith, except for the rights expressly granted herein.
PeopleSoft shall have the right to an unlimited number of
Installations, provided that no Installations outside the
United States (the "International Installations") shall be
installed prior to January 1, 2001. and provided further that
none of the International Installations shall be located in
any Territory which is set forth in EXHIBIT B of Amendment One
("Territory") until the later to occur of January 1, 2001 or
the expiry of such Global Trading Web Partner's exclusivity in
such Territory. Notwithstanding the foregoing, such
International Installations may be located in the United
Kingdom beginning any time after August 1, 2000. For all
International Installations installed by PeopleSoft in excess
of two (2) International Installations, PeopleSoft shall be
required to pay to Commerce One a licensing fee as set forth
in Section 12.2 of Attachment B.
3.1(h)(iii) Commerce One shall issue to PeopleSoft, as soon as
practicable, one (1) machine-readable copy of the MarketSite
Software and MarketSite Auction Software, along with one (1)
copy of the on-line Documentation. Commerce One will provide
PeopleSoft with written copies of the Documentation at
Commerce One's standard charges. PeopleSoft may copy the
Documentation.
3.1(h)(iv) PeopleSoft will be entitled to make a reasonable
number of machine-readable copies of the MarketSite Software
and MarketSite Auction Software for backup or archival
purposes and for the Installations as permitted by Section 3.1
above. PeopleSoft shall maintain accurate and up-to-date
records of the number and location of all copies of the
MarketSite Software and inform Commerce One in writing of such
location(s). All copies of the MarketSite Software will be
subject to all terms and conditions of this Agreement.
Whenever PeopleSoft is permitted to copy or reproduce all or
any part of the MarketSite Software, all titles, trademark
symbols, copyright symbols and legends, and other proprietary
markings must be reproduced.
3.1(h)(v) The parties shall have good faith discussions
regarding reasonable End User license language for the
protection of both Commerce One and PeopleSoft. Commerce One
hereby grants PeopleSoft a nontransferable, nonexclusive,
worldwide right and license under Commerce One's Trademarks as
defined in Section 10 of the Agreement, as amended, and set
forth in Attachment C of the Agreement to display the Commerce
One icon in connection with the provision and promotion of the
MarketSite Service.
2. Section 3.1(i) shall be added as follows:
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3.1(i) BRANDED MARKETSITE DISTRIBUTION LICENSE. Commerce One
hereby grants and PeopleSoft hereby accepts, a non-exclusive,
nontransferable, worldwide right and license to Distribute the
Branded MarketSite Service to or for use by End Users.
Section 3.1(j) shall be added as follows:
3.1(j) COMMERCE ONE MARKETSITE AUCTION SERVICES LICENSE.
Commerce One grants to PeopleSoft during the term of this
Agreement, a non-exclusive, non-transferable, worldwide right
and license to use the MarketSite Auction Software, including
any and all localizations and translations thereto which
Commerce One owns or has a right to license and PeopleSoft
shall reimburse any license fees associated with such
localizations or translations owed by Commerce One to any
unrelated third parties as a result of PeopleSoft's use, for
use in conjunction with the MarketSite Software for the
purpose of providing Auction Services and to Distribute
directly or by sublicense the MarketSite Auction Service.
Within sixty (60) days of the FCS of the MarketSite Auction
Software, Commerce One shall deliver the MarketSite Auction
Software to PeopleSoft. As of the Amendment Effective Date and
until the delivery of the MarketSite Auction Software to
PeopleSoft, Commerce One shall host the Auction Sites on
servers owned or controlled by Commerce One, for PeopleSoft's
use and Distribution. As soon as technically and commercially
practical after the delivery of the MarketSite Auction
Software to PeopleSoft, PeopleSoft shall assume control of
hosting the Auction Sites on servers owned or controlled by
PeopleSoft or its related entities. The MarketSite Auction
Software shall contain an Administrative Module for the
Auction Site through which PeopleSoft can control the Auction
Services parameters. PeopleSoft will determine the look and
feel of the User Interfaces for the Auction Sites. PeopleSoft
shall be responsible to utilize the Administrative Module to
program all HTML code to create and/or customize the User
Interface. Commerce One will use commercially reasonable
efforts to assist PeopleSoft in developing the User Interface
for the Auction Site. As used in this section, the following
definitions shall apply:
"Auction Services" mean services using the MarketSite Auction
Software where bidders set the ultimate sales price of the
goods or services offered for sale on the Auction Sites,
including without limitation, auctions of all types (e.g.,
traditional, Dutch, English, reverse, quick-win).
"Auction Site" means the web site operated by Commerce One or
PeopleSoft and created by Commerce One on behalf of PeopleSoft
pursuant to this Agreement where, among other things,
AuctionSite End Users can buy and sell items through Auction
Services.
"MarketSite Auction Software" means the computer software
programs, to be developed by Commerce One.
"User Interface" means the area where the overall site
navigation, banner advertising and look and feel associated
with each Auction Site is displayed.
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Section 3.1(k) shall be added as follows:
3.1(k) ENTERPRISE PORTAL DISTRIBUTION LICENSE. Commerce One
hereby grants and PeopleSoft hereby accepts, a non-exclusive,
nontransferable, worldwide right and license to Distribute the
Enterprise Portal Service (as defined below) to or for use by
End Users. Enterprise Portal Service shall be defined as a
Branded MarketSite Service which is restricted by the terms of
the associated license to permit only the licensee's own
direct or indirect procurement of goods and services through
XxxxxxXxxx.Xxx or any other MarketSite Service.
Section 3.1(l) shall be added as follows:
3.1(l) ENTERPRISE BUYSITE LICENSE. Commerce One hereby grants,
and PeopleSoft hereby accepts, a non-exclusive,
non-transferable, world-wide license to operate BuySite
Products internally in Object Code format for PeopleSoft's own
direct or indirect procurement of goods and services through
XxxxxxXxxx.Xxx or any other MarketSite Service.
Section 3.1(m) shall be added as follows:
3.1(m) The licenses granted in Subsections 3.1(g) to 3.1(l)
above shall include the most current version of the MarketSite
Software, MarketSite Auction Software or software related to
MarketSite Software. Modifications, enhancements or versions
(which contain substantially equivalent functionality) shall
be offered to PeopleSoft on terms comparable to those offered
to third parties, when such modifications, enhancements or
versions are offered to two or more third parties for license
or use. In addition, Commerce One shall provide all updates
and upgrades made available to Commerce One customers under
Support and Maintenance agreements to PeopleSoft. The parties
shall enter into a MarketSite Software Source Code Escrow
Agreement and a MarketSite Auction Software Escrow Agreement
(which MarketSite Auction Software source code will not be
required to be deposited until within thirty (30) days after
FCS) within thirty (30) days of the Amendment Effective Date.
If the parties are unable to agree on terms and conditions of
such Source Code Escrow Agreement, the parties will agree to
be bound by Commerce One's outside escrow agent's standard
terms and conditions. At a minimum, MarketSite Software and/or
MarketSite Auction Software Source Code release shall be
triggered upon bankruptcy or failure to support and maintain
the MarketSite Software and/or MarketSite Auction Software.
4. AS OF THE AMENDMENT EFFECTIVE DATE, THE FOLLOWING PROVISIONS OF
ARTICLE 4 SHALL BE AMENDED AS FOLLOWS:
Section 4.1 shall be replaced in its entirety with the following:
4.1 XXXXXXXXXX.XXX ACCESS DISTRIBUTION LICENSE. Subject to
the terms and conditions of this Agreement, as amended,
and commencing with the First Commercial
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Shipment of XxxxxxXxxx.Xxx, PeopleSoft hereby grants to
Commerce One and Commerce One accepts a non-exclusive
nontransferable, worldwide right and license to
Distribute access to XxxxxxXxxx.Xxx.
5. AS OF THE AMENDMENT EFFECTIVE DATE, THE FOLLOWING PROVISIONS OF
ARTICLE 5 SHALL BE AMENDED AS FOLLOWS:
Section 5.1.
(a) All references in this Section to January 1, 2001
shall be replaced with the words "one (1) year from
the First Commercial Shipment of the PeopleSoft
Product."
(b) Section 5.1(a) shall cease to be of further force and
effect.
(c) Add the words "other than the Branded MarketSite
Service and Auction Service or as otherwise necessary
for PeopleSoft to exercise its rights hereunder."
immediately after the words "shall use the MarketSite
Services as its exclusive MRO Portals and PeopleSoft
shall not Distribute or develop any other hosted MRO
Portals" in lines 4 and 5. In addition, add the words
" Notwithstanding the foregoing, PeopleSoft has the
right to connect XxxxxxXxxx.Xxx and any other
PeopleSoft portal to any other MRO Portal in order to
conduct business and can enter into any agreement to
reasonably facilitate connection to such other
portal." immediately after the words "during the
period of this exclusivity." in lines 6 and 7.
Section 5.2
(a) Section 5.2 shall cease to be of further force and
effect.
Section 5.3
(a) All references in this Section to January 1, 2001
shall be replaced with the words "one (1) year from
the First Commercial Shipment of the PeopleSoft
Product."
As of the Amendment Effective Date, Section 5.5 shall be
amended in its entirety as follows:
5.5(a) Commerce One agrees to promote the PeopleSoft
consulting services as a preferred implementor of Commerce One
Products in the PeopleSoft Named Accounts, as amended.
Commerce One agrees to include PeopleSoft, at no additional
fee, as a member of Commerce One's Preferred Global Consulting
Partner program. This program is currently referred to as the
Premier Alliance Partner program.
5.5(b) The parties agree to negotiate in good faith to make
the PeopleSoft Product the only procurement product that
Commerce One directly Distributes following the First
Commercial Release of the PeopleSoft Product and following
product due diligence
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by Commerce One of the features and functionality of
PeopleSoft Product and its applicability to Commerce One
End Users, which due diligence will not be unreasonably
delayed. If the parties do not enter into a definitive
agreement regarding the foregoing within ninety (90) days
after the commencement of negotiations, subject to
Section 18.13(c), neither party shall have any further
obligations under this Section 5.5(b).
6. AS OF THE AMENDMENT EFFECTIVE DATE, ARTICLE 7 SHALL BE AMENDED BY DESIGNATING
THE FIRST PARAGRAPH OF ARTICLE 7 AS SECTION "7.1" AND THE FOLLOWING NEW
PARAGRAPH IS ADDED AS SECTION 7.2:
7.2 PEOPLESOFT LOCKUP RELEASE AND INCLUSION IN REGISTERED
OFFERING. Commerce One hereby releases PeopleSoft from, and shall
obtain a release from Credit Suisse First Boston to release PeopleSoft
from, the market stand-off provisions of Section 6.1 of that certain
Share Purchase and Master Strategic Relationship Agreement, dated June
5, 1999, by and between Commerce One and PeopleSoft and any "lock-up"
agreement executed by PeopleSoft in connection with Commerce One's
initial public offering. In the event that, prior to June 5, 2000,
Commerce One files a registration statement with the Securities and
Exchange Commission to register a public, underwritten public offering
of its common stock for cash, Commerce One shall, at such time, use all
reasonable efforts to obtain the approval of its registration rights
holders and the underwriters of such offering to PeopleSoft's sale of
up to fifteen percent of the secondary shares of Commerce One common
stock offered as part of the offering. In the event such approvals are
obtained, if required, PeopleSoft shall be permitted to participate in
the offering to the extent described above, subject to the same general
terms and conditions applicable to other selling stockholders
participating in the offering (including, without limitation, terms and
conditions relating to the right of the underwriters to cutback the
number of shares of common stock to be sold by selling stockholders in
the offering).
7. AS OF THE AMENDMENT EFFECTIVE DATE, ARTICLE 9 SHALL BE AMENDED BY ADDING
THE FOLLOWING IN ITS ENTIRETY AS SECTION 9.7:
9.7 TARGET XXXXXXXXXX.XXX LAUNCH DATE. Commerce One and
PeopleSoft shall establish a target date of sixty (60) days from the
Amendment Effective Date for the launch of XxxxxxXxxx.Xxx on the
MarketSite Software platform (the "Target Date"). Each party shall use
all reasonable efforts to achieve such date, including the allocation
of technical and business resources and personnel. Notwithstanding the
foregoing, Commerce One shall be obligated to contribute professional
services equal to [*] dollars ([*]) in value (calculated
using Commerce One's standard professional services rates) based on
work performed consistent with the workplan described below and as
otherwise reasonably requested by PeopleSoft. All additional
professional services charges on the part of Commerce One shall be
reimbursable at Commerce One's standard professional services rates.
Commerce One agrees to staff such professional services with
individuals with Commerce One implementation experience and Commerce
One shall use reasonable efforts to ensure that the majority of such
professional services individuals are Commerce One employees.
PeopleSoft shall have the right to reasonably request that Commerce One
remove
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
-8-
and replace particular service professionals provided under this
subsection. In the event the parties are unable to achieve the Target
Date, the parties shall agree to complete the launch no later than
one-hundred and twenty (120) days from the Amendment Effective Date,
provided however, the foregoing dates are contingent upon the parties
mutually agreeing to a workplan. For each day that the launch is
delayed beyond one hundred twenty (120) days of the Amendment Effective
Date and such delay is attributable to Commerce One, the duration of
the effectiveness of Section 5.1 shall be reduced by a like number of
days. If the parties do not agree upon a reasonable workplan within
fourteen (14) days of the Amendment Effective Date, the foregoing dates
are moved out by one full day for each full day in excess of fourteen
(14) days that it takes to complete the workplan, subject to Section
18.13(c).
8. As of the Amendment Effective Date, Article 10 shall be
amended in its entirety by adding the following as Section 10.3:
10.3. COMMERCE ONE LOGO. PeopleSoft shall have the
right but not the obligation to place the Commerce One
Trademark or logo on the PeopleSoft Product.
9. As of the Amendment Effective Date, Section 11.1 shall be
amended by designating the first paragraph of Section 11.1 as Section
"11.1(a)" and the following new paragraph is added as Section 11.1(b):
(b) COMMERCE ONE PROPRIETARY RIGHTS. Title to and ownership of
all copies of the Enterprise BuySite, Hosted BuySite,
MarketSite Software, Branded MarketSite Service, Auction
Software and Auction Service and associated software whether
in machine-readable or printed form, and including, without
limitation, Derivative Works thereof provided by Commerce One
hereunder, compilations, or collective works thereof and all
related technical know-how and all intellectual property
rights therein (including without limitation rights in
patents, copyrights, and trade secrets applicable thereto),
are and shall remain the exclusive property of Commerce One
and its suppliers. PeopleSoft shall not take any action to
jeopardize, limit or interfere in any manner with Commerce
One's ownership of and rights with respect to the Enterprise
BuySite, Hosted BuySite, MarketSite Software, Branded
MarketSite Service, MarketSite Auction Software and Auction
Service. PeopleSoft shall have only those rights in or to the
Enterprise BuySite, Hosted BuySite, MarketSite Software,
Branded MarketSite Service, MarketSite Auction Software and
MarketSite Auction Service and associated software granted to
it pursuant to this Agreement. Notwithstanding the foregoing,
title to and ownership of (i) all software, documentation,
data and other intellectual property, and all rights therein
(including without limitation rights in patents, copyrights,
know-how and trade secrets applicable thereto) developed by
PeopleSoft or for PeopleSoft or licensed by PeopleSoft (other
than from Commerce One) are and shall remain the exclusive
property of PeopleSoft and its licensors and suppliers, as
applicable. In addition, and notwithstanding the foregoing,
PeopleSoft will own all rights in and to the XxxxxxXxxx.Xxx
after removal of the MarketSite Software.
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10. As of the Amendment Effective Date, Article 18 shall be amended by
adding the following new paragraphs as Section 18.17 and 18.18
respectively:
18.17 As of the Amendment Effective Date, the provisions of
sections 11.2, 13.1, 13.1, 13.3, 14.2, 14.3, 14.5, 15.1, and
17.1 shall apply MUTATIS MUTANDIS to Enterprise BuySite,
Hosted BuySite, MarketSite Software, Branded MarketSite
Service, MarketSite Auction Software and Auction Service.
18.18 As of the Amendment Effective Date, the provisions of
sections 14.1, 14.4, 14.5, and 17.1 shall apply MUTATIS
MUTANDIS to XxxxxxXxxx.Xxx.
AMENDMENTS TO ATTACHMENT B
1. AS OF THE AMENDMENT EFFECTIVE DATE, SECTION 6 IN ATTACHMENT B SHALL BE
AMENDED AS FOLLOWS:
(c) Section 1 of Attachment B shall be amended in its entirety
as follows:
"PeopleSoft Net Fees" means the actual amount of license fees,
royalties or other consideration received by PeopleSoft with respect to
the BuySite Products or PeopleSoft Products, or with respect to the
licensing, sublicensing, or other Distribution of the BuySite Products
or the PeopleSoft Product. In each case set forth above, PeopleSoft Net
Fees shall exclude sales, use and value-added taxes, third party
software royalty payments (excluding royalties owed herein), imputed
fees for bundled maintenance, and training and consulting services (not
to exceed PeopleSoft's standard published prices for such services). In
addition, barter, equity or other noncash consideration received shall
be valued at fair market value; provided however, PeopleSoft's internal
Use of the BuySite Product shall not be included in the calculation of
PeopleSoft Net Fees.
"Commerce One Net Fees" means the actual amount of license
fees, royalties or other consideration received by Commerce One with
respect to the BuySite Products, or with respect to the licensing,
sublicensing, or other Distribution of the BuySite Products. In each
case set forth above, Commerce One Net Fees shall exclude sales, use
and value-added taxes, third party software royalty payments (excluding
royalties owed herein), imputed fees for bundled maintenance, and
training and consulting services (not to exceed Commerce One's standard
published prices for such services). In addition, barter, equity or
other noncash consideration received shall be valued at fair market
value.
(d) Section 6. ADVANCE ROYALTY. The second and third sentences
of Section 6 in Attachment B shall be amended in its entirety as follows:
6.1 Beginning on the Amendment Effective Date, PeopleSoft's
right to credit against prepaid Product Royalties shall expire at the
following rate: (a)$[*] upon the expiration of the first half of
the calendar year of 2000 (b) an additional $[*] upon the
expiration of the third calendar quarter of 2000, and (c) the remaining
advance prepaid royalty at the end of the fourth calendar quarter of
2000. PeopleSoft has paid total advance
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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Product royalties of [*] dollars ([*]) and Commerce One
acknowledges receipt of such payment. For greater clarity, royalties
due and payable by PeopleSoft to Commerce One pursuant to Section 6.2
shall be set-off against any prepaid royalties remaining. Only in the
event that such royalties payable by PeopleSoft are less than the
amounts set forth above during the corresponding period, then such
prepaid royalties shall expire in accordance with the expiration
schedule as set forth above.
6.2 The following payments shall be credited against the
advanced royalty payment described in paragraph 6.1 above: PeopleSoft
Net Fees from: BuySite Products, PeopleSoft Product, Branded
MarketSite, the first year of the MarketSite license Maintenance Fee
and royalties based on Transaction Revenues.
6.3 PeopleSoft and Commerce One shall use good faith efforts
to work cooperatively to manage sales activities including, when
requested by the other, providing reasonable sales support, on a time
and materials basis, and coordinating sales activities.
Subsections (b) and (c) of Section 6 in Attachment B shall be deleted
in their entirety and shall be of no further force or effect.
2. AS OF THE AMENDMENT EFFECTIVE DATE, SECTION 7 OF ATTACHMENT B
SHALL BE AMENDED IN ITS ENTIRETY AS FOLLOWS:
(a) "ROYALTIES FOR BUYSITE PRODUCTS. PeopleSoft shall pay
Commerce One a royalty of [*] percent ([*]) of all
PeopleSoft Net Fees received solely for the license or
sublicense of the BuySite Product beginning on the Effective
Date of this Amendment and continuing one year from the date
of PeopleSoft Product FCS. Commerce One shall pay PeopleSoft a
royalty of [*] percent ([*]) of all Commerce One Net Fees
received solely for the Distribution of the BuySite Product to
a PeopleSoft Named Account beginning on the Effective Date of
this Amendment and continuing one year from the date of
PeopleSoft Product FCS. Neither party shall be entitled to any
royalty on revenues received by the other from sharing in
Hosted BuySite subscription revenues generated by third party
licensees or any other subscription revenue from any other
products. In addition, Commerce One will not be entitled to a
share of any revenue received by PeopleSoft for providing
hosting services to licensees of Hosted BuySite.
Notwithstanding the foregoing, any Commerce One Net. Fees
received from a Grandfathered Reseller as a result of a
license into a PeopleSoft Named Account, as amended, shall not
be subject to such royalty split, and in such case, Commerce
One shall not owe a royalty to PeopleSoft in relation thereto.
(b) BRANDED MARKETSITE LICENSE ROYALTY. PeopleSoft shall pay
to Commerce One a royalty for each Branded MarketSite Services
license entered into by and between PeopleSoft and third party
licensees equal to the greater of [*] percent ([*]) of the
actual sales price for the Branded MarketSite Services license
or [*] percent ([*]) of the Average Sales Price (ASP) for
substantially equivalent Branded MarketSite
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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Services licensed by either Commerce One or its Distributors
in the prior fiscal quarter. Notwithstanding the foregoing,
PeopleSoft shall have the right to request a report
summarizing the license fees paid to Commerce One and
Distributors by third party licensees of the Branded
MarketSite Services during the prior fiscal quarter. For
purposes of determining ASP, factors such as geography,
size of entity licensed and scope of other service offerings
shall be considered in evaluating similar transactions.
(c) MARKETSITE AUCTION SERVICES ROYALTY. PeopleSoft agrees to
pay a royalty to Commerce One during the term of the Agreement
equal to [*] percent ([*]) of all Blended Transaction
Revenues generated using the MarketSite Auction Services.
3. AS OF THE AMENDMENT EFFECTIVE DATE, SECTION 8 OF ATTACHMENT B
SHALL BE AMENDED IN ITS ENTIRETY AS FOLLOWS:
(a) ROYALTIES FOR PEOPLESOFT PRODUCTS. Subject to Section 14.2
of Attachment B, the royalties payable by PeopleSoft to
Commerce One for licensing or sublicensing the PeopleSoft
Products pursuant to Section 3 of the Agreement shall be equal
to only [*] percent ([*]) of all PeopleSoft Net Fees
beginning on the Effective Date of this Amendment and
continuing one year from the date of the PeopleSoft Product
FCS. For the avoidance of doubt, Commerce One shall not
receive any royalty on revenues received by PeopleSoft from
sharing in Hosted PeopleSoft Product subscription revenues
generated by third party licensees or any revenue received by
PeopleSoft for providing hosting services to licensees of the
PeopleSoft Product.
2. AS OF THE AMENDMENT EFFECTIVE DATE, SECTION 12 IN ATTACHMENT B
SHALL BE AMENDED BY ADDING THE FOLLOWING:
PEOPLESOFT NET ACCESS FEE
Commerce One shall pay to PeopleSoft a royalty equal to [*]
percent ([*]) of all consideration received by Commerce One for
Distribution of access to XxxxxxXxxx.Xxx
MARKETSITE ROYALTIES: For purposes of clarity, where a royalty shall be
payable to Commerce One under Section 12 (d)-(f) below, the royalty shall be
determined by reference to only one of the following calculations and no single
transaction shall be subject to more than one royalty calculation.
(d) PeopleSoft shall pay to Commerce One [*] percent ([*])
of all Transaction Revenues (calculated using the appropriate Blended
Transaction Rate) received through operation of XxxxxxXxxx.Xxx
including all International Installations.
(e) PeopleSoft shall pay to Commerce One [*] percent ([*])
of all Transaction Revenues (calculated using the appropriate
Blended Transaction Rate) received from third party licensees
of the Branded MarketSite Service or the Enterprise Portal
Services.
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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(f) For customers that connect to the MarketSite Services
through the PeopleSoft Product, Commerce One shall pay a
royalty to PeopleSoft of [*] percent ([*]) of all
Transaction Revenues (calculated using the appropriate Blended
Transaction Rate).
(g) The International Installation licensing fee shall be
calculated as follows: [*]percent ([*]) off of the mean
price charged by Commerce One for all similar installations
of MarketSite Software licensed by Commerce One in the prior
quarter. In the event there are no similar installations of
MarketSite Software licensed by Commerce One in the prior
quarter, the licensing fee shall be based on, at PeopleSoft's
sole option, either the mean price charged by Commerce One
for all installations of MarketSite Software licensed by
Commerce One in the prior quarter or a fee to be negotiated
in good faith by the parties.
All other provisions of Section 12 shall cease to be of any further
force and effect.
3. As of the Amendment Effective Date, Section 13 in Attachment B shall
be amended in its entirety to read as follows:
PeopleSoft shall pay to Commerce One for support and
maintenance of the MarketSite Software an annual maintenance fee (the
"Maintenance Fee"). The Maintenance Fee shall be [*]
dollars ([*]) annually; provided, however, the parties
agree to review the Maintenance Fee on an annual basis on or before the
anniversary of the Amendment Effective Date. Notwithstanding the
foregoing, in the event the parties do not agree on the Maintenance Fee
prior to the anniversary of the Amendment Effective Date for any given
year, the Maintenance Fee shall remain at [*] dollars ([*]) per
annum. The Maintenance Fee shall be due annually within thirty (30)
days of the anniversary of the Amendment Effective Date.
PeopleSoft shall report the Maintenance Fee in the first quarterly
royalty report, as required under this Agreement, of each
year. Commerce One and PeopleSoft shall within thirty (30) days of the
Amendment Effective Date execute a maintenance agreement with terms and
conditions at least as favorable as those offered to others.
4. As of the Amendment Effective Date, Section 14 in Attachment B shall
be amended by adding the following:
14.2 Minimum Royalties for BuySite Products and PeopleSoft
Products. The minimum royalty payable to either Commerce One or
PeopleSoft under Sections 7 and 8 of Attachment B shall be equal to
[*] percent ([*]) of the Blended License Fee. The minimum royalty
shall be subject to review and if necessary adjustment by mutual
agreement of the parties. In the event that the parties are unable to
agree that the [*] percent ([*]) of the Blended License Fee is the
appropriate minimum royalty for any particular quarter, the prior
quarter's minimum royalty shall govern until such time as the parties
are able to resolve their dispute.
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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5. As of the Amendment Effective Date, the following shall be added to
the end of Attachment B as Section 17:
17 With respect to Blended Transaction Rate, Blended License
Fee, or other similar provisions, the Parties recognize that the
products and services included herein are typically Distributed in
complex transactions involving multiple products, services and
occasionally other consideration. In determining amounts attributable
to equivalent products or services the Parties shall make fair and
reasonable allocations of the fees received or to be received to all of
the elements included in the transaction.
AMENDMENTS TO ATTACHMENT C
AS OF THE AMENDMENT EFFECTIVE DATE ATTACHMENT C SHALL BE
AMENDED BY ADDING THE FOLLOWING:
MARKETSITE AUCTION SERVICES
AMENDMENTS TO ATTACHMENT F
AS OF THE AMENDMENT EFFECTIVE DATE, EXHIBIT F AMENDED IN ITS ENTIRETY
BY ADDING THE FOLLOWING:
The PeopleSoft Product is what is currently known as PeopleSoft
eProcurement in its current form or as subsequently modified, (and
shall include subsequent versions thereof), which offers web-based
procurement capabilities designated to enable companies to reduce their
indirect goods purchasing costs while increasing their overall supply
chain efficiency. Cost reductions are achieved through user-friendly
application functionality designed to reduce off-contract, or "rogue,"
purchases, automate manual processes, improve leverage with suppliers
and provide links to a dynamic trading community.
The PeopleSoft Product currently incorporates parts of the BuySite
Product Source Code or Derivative Works thereof. Future versions of the
PeopleSoft Product may also be developed without any such BuySite
Product Source Code or Derivative Works thereof. PeopleSoft shall be
entirely free to determine the features and functionality of the
PeopleSoft Product using internal resources, contracted resources or
through acquisition either in whole or in part.
For the avoidance of doubt, PeopleSoft Product shall not include the
PeopleSoft Purchasing product, or any versions, modifications, or
updates thereof, provided such PeopleSoft Purchasing product is
primarily targeted at purchasing professional and not directed at
casual users and provided that PeopleSoft's eProcurement product is
marketed as the preferred procurement/purchasing solution directed at
casual users and non-purchasing professionals within an organization.
For greater clarity, nothing in this definition of the PeopleSoft
Product shall include any and all other PeopleSoft products developed
by or on behalf of
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PeopleSoft including but not limited to PeopleSoft ERP products,
analytic products and other products not explicitly defined above.
The PeopleSoft Product, as it is currently known and as it may be
further developed and enhanced, is distinct from the BuySite product,
which is a Commerce One marketed and sold product and PeopleSoft shall
not owe a royalty both under Sections 2(a) and 3(a) of Section 7, as
amended, for the same product.
5. As of the Amendment Effective Date, Attachment I of the Agreement
shall be deleted in its entirety and replaced by the words "Intentionally
Omitted."
6. As of the Amendment Effective Date, Attachment G of the Agreement
shall be amended by deleting the list of PeopleSoft Named Accounts in its
entirety and replacing such list of PeopleSoft Named Accounts with the list set
forth in EXHIBIT A to this Amendment One. Commerce One accepts the list of
PeopleSoft Named Accounts set forth in EXHIBIT A to this Amendment One provided
that PeopleSoft shall, within thirty (30) days of the Amendment Effective Date,
provide further information to Commerce One detailing the scope of the license
grant contained in the accounts agreements with PeopleSoft and the names of the
entity entitled to such license within the thirty (30) PeopleSoft Named Accounts
set forth in EXHIBIT C and provided further that the scope of the licenses
granted and the names of the entity entitled to such license within the thirty
(30) PeopleSoft Named Accounts shall be used for the purposes of defining
PeopleSoft Named Accounts in Section 7(a) of Attachment B, as amended.
7. Except as provided below PeopleSoft hereby acknowledges that no fees
or royalties or payments of any kind are due and payable from Commerce One to
PeopleSoft based on the license of BuySite and/or MarketSite to General Motors
and its affiliates (which shall be defined as any company in which General
Motors has a forty-nine percent (49%) interest) and to Banacci. Notwithstanding
the foregoing, both parties acknowledge and agree that any other distribution
made pursuant to this Agreement which were completed and effective on or before
the Amendment Effective Date shall be governed by the Agreement as it existed
prior to the execution of this Amendment One. Notwithstanding the foregoing, on
revenues received by Commerce One from Banacci for the Distribution of BuySite
into the PeopleSoft Named Accounts, Commerce One shall pay to PeopleSoft a [*]
percent ([*]) royalty on revenues received by Commerce One.
8. As of the Amendment Effective Date, Attachment H of the Agreement
shall be amended by adding the names "XXX.xxx, Xxxxxxxx.xxx, and Aspect
Development" to the end of the list of Commerce One Specified Companies and
adding the name "XX Xxxxxxx, Evolve, Icarian" to the end of the list of
PeopleSoft Specified Companies.
9. Commerce One agrees to grant PeopleSoft a membership in the Global
Trade Web (GTW) and PeopleSoft agrees to become a member of the GTW, which seat
shall at a minimum be equivalent to that granted to any other counsel member,
and to abide by the revenue sharing and global cooperation policies of the GTW.
PeopleSoft shall have the right to withdraw from the GTW at any time.
Notwithstanding the foregoing, PeopleSoft agrees to use commercially reasonable
efforts work with the GTW members to establish technical and business
relationships.
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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10. As of the Amendment Effective Date, Commerce One shall grant
PeopleSoft a seat on the Global Trading Web Counsel.
11. In the event of any inconsistency or conflict between this
Amendment One and the Agreement, the terms, conditions and provisions of this
Amendment One shall govern and control.
12. This Amendment One and the Agreement constitute the entire and
exclusive agreement between the parties with respect to this subject matter. All
previous discussions and agreements with respect to this subject matter are
superceded by the Agreement and Amendment One.
IN WITNESS WHEREOF, the parties hereto have caused duly authorized
representatives to sign this Amendment One as of the Amendment Effective Date.
PEOPLESOFT COMMERCE ONE
By:_________________________ By:_______________________
Title:______________________ Title:____________________
Date:_______________________ Date:_____________________
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EXHIBIT A
PEOPLESOFT NAMED ACCOUNTS
[See Attached Page]
[*]
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
EXHIBIT B
GLOBAL TRADING WEB PARTNERS
[*]
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
EXHIBIT C
SPECIFIC PEOPLESOFT NAMED ACCOUNTS
[*]
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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