JOINT DEVELOPMENT AGREEMENT
This Joint Development Agreement (the "Agreement") is made and entered into as
of this 5th day of June, 1999 ("Effective Date") by and between Commerce One,
Inc., a California corporation, with offices at 0000 Xxxxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxxxxxxxxx 00000 ("Commerce One"), PeopleSoft, Inc., a California
corporation, with principal offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxx 00000-0000 ("PeopleSoft").
BACKGROUND
Commerce One and PeopleSoft desire that Commerce One perform development work on
behalf of PeopleSoft to develop PS products, on the terms and conditions set
forth herein. The intent of the parties is that Buysite 6.0 and Buysite 6.0P
source code baseline shall be componentized to support the isolation of user
interface and business objects to serve as the potential basis for a potential
future PeopleSoft procurement product.
The parties are concurrently entering into an OEM Software License
Agreement ("OEM Agreement").
In consideration of the mutual promises contained herein, Commerce One and
PeopleSoft agree as follows.
ARTICLE 1
DEFINITIONS
The following terms shall have the following meanings herein:
1.1 "ACCEPTANCE CRITERIA" means the acceptance criteria agreed upon by the
Joint Development Committee .
1.2 "CODE" means computer programming code. "Object Code" means the binary
machine-executable form of Code, including object files, libraries, executable
program, scripts and HTML pages. "Source Code" means the human-readable form of
Code, including but not limited to annotations, flow charts, use cases, ERDs and
design guides..
1.3 "DELIVERABLES" shall mean the items to be delivered by a party hereto
to the other party hereto in connection with the Development Task, as set forth
in the Development Exhibit.
1.4 "COMMERCE ONE DELIVERABLES" shall mean the Deliverables made, conceived
or reduced to practice solely by Commerce One, including all Technology and
Intellectual Property Rights therein.
1.5 "PEOPLESOFT DELIVERABLES" shall mean the Deliverables made, conceived
or reduced to practice solely by PeopleSoft, including all Technology and
Intellectual Property Rights therein.
1.6 "DERIVATIVE WORK(S)" means a revision, modification, translation,
abridgment, condensation or expansion of a BuySite Product, PeopleSoft Product
or Documentation, as the case may be, or any form in which a BuySite Product,
PeopleSoft Product or Documentation, as the case may be, may be recast,
transferred, or adapted, and which, if prepared without the consent of Commerce
One or PeopleSoft, as the case may be, would be a copyright infringement.
1.7 "BUYSITE PRODUCT(S)" means BuySite versions 5.0, 6.0 and all Major and
Minor Updates thereto released during the term of this Agreement.
1.8 "DEVELOPMENT EXHIBIT" shall mean Exhibit A hereto.
1.9 "DEVELOPMENT SCHEDULE" shall mean the schedule for completion of the
Development Task, as set forth in the Development Exhibit. 1.10 "DEVELOPMENT
TASK" shall mean the development work to be performed pursuant to this Agreement
and the Development Exhibit.
1.10 "Development Task" shall mean the development work to be performed
pursuant to this Agreement and the Development Exhibit.
1.11 "INTELLECTUAL PROPERTY RIGHTS" shall mean all current and future
worldwide patents and other patent rights, utility models, copyrights, mask work
rights, trade secrets, and all other intellectual property rights, including
without limitation all applications and registrations with respect thereto.
1.12 "OEM AGREEMENT" shall mean the OEM Agreement executed by the parties
on the Effective Date.
1.13 "PEOPLESOFT PRODUCT(S)" means PeopleSoft software products as
described in the Development Exhibit with which the BuySite Products are to be
interfaced hereunder.
1.14 "PRODUCTS" means the BuySite Products and the PeopleSoft
Products collectively.
1.15 "TECHNOLOGY" shall mean all tangible and intangible results and items
arising out of or constituting the results of the Development Task, including
without limitation all Deliverables, ideas, inventions, designs, know-how,
notes, memoranda, documentation, and copyrighted materials, and all Intellectual
Property Rights constituting, embodied in, or pertaining to any of the
foregoing.
1.16 "TELCO INDUSTRY" means only those entities which carry out business in
the following named telecommunication industry sub-segmentsas set forth within
SIC code number 4813 (telecommunications) as they exist on the Effective Date.
The named sub-segments are limited to Facilities-based telecommunication
carriers (except wireless), Local telephone carriers (except wireless),
Long-distance telephone carriers (except wireless), Telecommunications carriers
(wired), Telecommunications networks (wired), and Telephone carriers facilities
based (except wireless).
1.17 "UNDERLYING TECHNOLOGY" means any inventions, discoveries, ideas,
formulae, processes, methods, techniques, improvements, technology, know-how, or
information made, conceived or reduced to practice outside of this Agreement
that are owned or controlled by
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PeopleSoft and that PeopleSoft elects to include with the Deliverables
hereunder, and all patents and other patent rights (including utility models),
copyrights, trade secrets and other intellectual property rights in or relating
to any of the foregoing, to the extent such inventions, discoveries, ideas,
formulae, processes, methods, techniques, improvements, technology, know-how, or
information is incorporated by PeopleSoft into, or would be infringed by the use
of, the Technology. For purposes of this Section 1.17, "control" means the right
to grant the licenses set forth in Section 3.6. If royalties or other
consideration is payable to third parties, or any license is required, with
respect to any Technology, PeopleSoft shall notify Commerce One of such
Technology prior to incorporating such Technology within the PeopleSoft
Deliverables.
1.18 "MAJOR AND MINOR UPDATES" shall have the meaning set forth in the OEM
Agreement.
ARTICLE 2
DEVELOPMENT, DELIVERY AND ACCEPTANCE
2.1 DEVELOPMENT.
(a) JOINT DEVELOPMENT COMMITTEE. The parties shall establish a joint
development committee comprised of six (6) members to oversee the conduct of the
Development Task, monitor the progress of the Development Task, and ensure open
communications between the parties. Each party shall appoint three (3) members
to the Joint Development Committee. The Joint Development Committee further
shall develop Acceptance Criteria for the Deliverables in a manner consistent
with Exhibit A and requirements for ongoing technical support with respect to
the Deliverables. Decisions of the Joint Development Committee shall be made by
unanimous approval. Either party may change its members of the Joint Development
Committee by providing written notice thereof to the other party. Disputes with
respect to this Agreement which cannot be resolved by the Joint Development
Committee shall be subject to the provisions of Section 9.10 of this Agreement.
The Joint Development Committee shall meet at least once per calendar quarter to
monitor the progress of this Agreement and to manage issue resolution under this
Agreement. Upon acceptance of each Deliverable, the Joint Development Committee
will confirm that the designations of Deliverables as Commerce One Deliverables,
PeopleSoft Deliverables or jointly developed Deliverables as set forth in the
Development Exhibit are correct. Inclusion of Underlying Technology shall be
subject to approval of the Joint Development Committee, which approval shall not
be unreasonably withheld.
(b) EXCHANGE OF INFORMATION. Each party shall keep appropriate records
relating to the activities contemplated by this Agreement, and shall report to
the other party on the status of such activities on a regular basis.
(c) PERSONNEL. Each party shall provide engineers to support each
other in the development efforts required under this Agreement.
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(d) DISCLOSURE OF INFORMATION NECESSARY FOR PERFORMANCE OF
DEVELOPMENT. Each party shall disclose such information as is in the possession
of such party and that such party has the right to disclose to the extent
reasonably necessary for the other party to perform the Development Task.
2.2 DELIVERY AND ACCEPTANCE.
(a) Each party shall use commercially reasonable efforts to complete
the Development Task and to deliver to the other party all applicable
Deliverables, in accordance with the Development Schedule. Upon completion of
each Deliverable, each party shall deliver to the other party all applicable
Deliverables, including documentation, for evaluation by the other party
pursuant to Section 2.2(b) below. In the event that either PeopleSoft or
Commerce One delays in the delivery of a Deliverable attributable to it as set
forth in the Development Exhibit, the schedule for the next Deliverable of the
other party hereto shall be determined by the Joint Development Committee.
(b) Upon delivery to Commerce One of the PeopleSoft Deliverables,
including related documentation, the parties shall evaluate such Deliverables
for conformity to the Acceptance Criteria. Commerce One shall provide PeopleSoft
within ten (10) business days after delivery of such materials with written
acceptance thereof, or a statement of defects to be corrected. PeopleSoft shall
promptly correct such defects and return the corrected PeopleSoft Deliverables
for retesting and reevalu tion, and Commerce One shall within ten (10) business
days after such redelivery provide PeopleSoft with written acceptance or a
statement of defects.
(c) Upon delivery to PeopleSoft of the Commerce One Deliverables,
including related documentation, PeopleSoft shall evaluate such Commerce One
Deliverables for conformity to the Acceptance Criteria. PeopleSoft shall provide
Commerce One within ten (10) business days after delivery of such materials with
written acceptance thereof, or a statement of defects to be corrected. Commerce
One shall promptly correct such defects and return the corrected Commerce One
Deliverables for retesting and reevaluation, and PeopleSoft shall within ten
(10) business days after such redelivery provide Commerce One with written
acceptance or a statement of defects.
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ARTICLE 3 a
OWNERSHIP
3.1 COMMERCE ONE OWNERSHIP. Commerce One retains all of its right, title,
and interest in and to the Commerce One Deliverables. For the avoidance of
doubt, "Commerce One Deliverables" shall include all portions of inbound and
outbound connectors, and components thereof, that interface with any Commerce
One software which connectors are developed soley by Commerce One and
accordingly, such connectors will be soley owned by Commerce One. It is
currently anticipated that portions of inbound and outbound connectors that
interface with the BuySite Products will be developed solely by Commerce One
and accordingly, owned by Commerce One. Commerce One shall have the exclusive
right to apply for or register patents, mask work rights, copyrights, and such
other proprietary protections as it wishes with respect to Commerce One
Deliverables. PeopleSoft agrees to, and shall have its consultants, agents and
employees, execute such documents, render such assistance, and take such other
action as may be necessary or convenient to apply for, register, perfect,
confirm, enforce, defend and protect Commerce One's Intellectual Property
Rights in and to the Commerce One Deliverables. Patent applications to be
filed with respect to inventions first conceived or reduced to practice
hereunder by PeopleSoft shall be provided to Commerce One prior to filing to
afford a reasonable opportunity to review and comment.
3.2 PEOPLESOFT OWNERSHIP. PeopleSoft retains all of its right, title, and
interest in and to the PeopleSoft Deliverables. For the avoidance of doubt,
"PeopleSoft Deliverables" shall include all inbound and outbound connectors
and components thereof, to the PeopleSoft software which connectors are
developed solely by PeopleSoft, and accordingly such connectors will be solely
owned by PeopleSoft. It is currently anticipated that portions of the inbound
and outbound connectors that interface with the PeopleSoft software will be
developed solely by PeopleSoft and accordingly owned by PeopleSoft. It is
further anticipated that the connector between Commerce One's MarketSite
software and the Purchasing module of the PeopleSoft software product shall
be a PeopleSoft Deliverable developed solely by PeopleSoft and accordingly
owned by PeopleSoft. In the event that the Joint Development Committee agrees
otherwise, the parties agree that such connector would be included under the
license granted pursuant to Section 3.1(a), (b) and (c) of the OEM Agreement
subject to negotiation in good faith of and agreement upon royalties payable
to Commerce One with respect to such connector. PeopleSoft shall have the
exclusive right to apply for or register patents, mask work rights,
copyrights, and such other proprietary protections as it wishes with respect
to the PeopleSoft Deliverables. Commerce One agrees to, and shall have its
consultants, agents and employees, execute such documents, render such
assistance, and take such other action as may be necessary or convenient to
apply for, register, perfect, confirm, enforce, defend and protect
PeopleSoft's Intellectual Property Rights in and to the PeopleSoft
Deliverables. Patent applications to be filed with respect to inventions
first conceived or reduced to practice hereunder by Commerce One shall be
provided to PeopleSoft prior to filing for review and comment to afford a
reasonable opportunity to review and comment.
3.3 OWNERSHIP OF BUYSITE CONNECTOR. For purposes of this Agreement, the
"BuySite Connector" shall mean those inbound and outbound connectors between
the BuySite Products and the PeopleSoft software as further described in the
Development Exhibit. It is currently anticipated that Commerce One will solely
develop those portions of the BuySite Connector that interface with the
BuySite Products and PeopleSoft will solely develop those portions of the
BuySite Connector that interface with the PeopleSoft software. Accordingly,
each party shall retain their respective rights to those portions of the
BuySite Connector developed by such party in accordance with Section 3.1
above.
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3.4 JOINT OWNERSHIP. Any subject matter other than Commerce One
Deliverables or PeopleSoft Deliverables that are made, conceived or reduced to
practice jointly by Commerce One and PeopleSoft shall be jointly owned ("JOINTLY
OWNED SUBJECT MATTER"). Subject to the payment obligations expressly set forth
in Section 6 of Attachment B of the OEM Agreement, each party shall have the
right to use, license, distribute and otherwise exploit the Jointly Owned
Subject Matter without any duty to account for profits and without obtaining
consent of the other party. The application, prosecution and maintenance of
Intellectual Property Rights with respect to Jointly Owned Subject Matter shall
be subject to the mutual written agreement of the parties.
3.5 WAIVER OF MORAL RIGHTS. To the extent permitted by applicable law, each
party hereby waives any and all moral rights, including any right to
identification of authorship or limitation on subsequent modification, that such
party (or its employees, agents or consultants) has or may have in any
Technology.
3.6 LICENSE OF BUYSITE CONNECTOR. Subject to the terms and conditions of
this Agreement, PeopleSoft hereby grants to Commerce One a worldwide,
royalty-free, fully paid up, perpetual right and license, including the right
to grant and authorize sublicenses, to (i) make, use, sell, offer for sale,
import, license, have licensed and otherwise distribute (directly or
indirectly) the BuySite Connector, the PeopleSoft Purchasing to MarketSite
Connector (as defined in the Development Exhibit), Underlying Technology and
Derivative Works thereof solely to the Telco Industry: and (ii) copy, modify,
have modified, and create and have created Derivative Works of the BuySite
Connector, Underlying Technology and Derivative Works thereof solely for the
purposes set forth in (i) above. For the avoidance of doubt, the foregoing
license grants with respect to Derivative Works relate only to Derivative
Works of the BuySite Connector and the PeopleSoft Purchasing to MarketSite
Connector and not to derivative works of any other technology or products.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Each party (the "Warranting Party") warrants to the other party as of
the date hereof and with respect to Sections 4.1(d), (e) and (f), on a
continuing basis that:
(a) CORPORATE AUTHORITY. The Warranting Party has the right to enter
this Agreement, is a corporation duly organized, validly existing, and in good
standing under the laws of the state of its incorporation set forth on page one
hereof, has the power and authority, corporate and otherwise, to execute and
deliver this Agreement and to perform its obligations hereunder, and has by all
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necessary corporate action duly and validly authorized the execution and
delivery of this Agreement and the performance of its obligations hereunder.
(b) BINDING OBLIGATION. This Agreement is the valid and legally
binding obligation of the Warranting Party in accordance with its terms, subject
to bankruptcy, reorganization, insolvency, moratorium and similar laws and to
general principles of equity which are within the discretion of courts of
applicable jurisdiction.
(c) NO CONFLICTS. The execution, delivery and performance by the
Warranting Party of this Agreement and each other agreement, document, or
instrument now or hereafter executed and delivered by the Warranting Party
pursuant thereto or in connection herewith will not: (i) conflict with or
violate the articles or certificate of incorporation or by-laws of the
Warranting Party or any provision of any law, rule, regulation, authorization or
judgment of any governmental authority having applicability to the Warranting
Party or its actions; or (ii) conflict with or result in any breach of, or
constitute a default under, any note, security agreement, commitment, contract
or other agreement, instrument or undertaking to which the Warranting Party is a
party or by which any of its property is bound.
(d) OWNERSHIP. Except for Technology that is in the public domain or
developed by the other party hereunder, the Warranting Party will have the right
and power to make the assignments and other rights granted to the other party
hereunder.
(e) INDEPENDENT WORK. Except for the Underlying Technology and
Technology that is in the public domain or developed by the other party
hereunder, the Technology will have been independently created by the Warranting
Party's employees, agents, and consultants, and to the knowledge of the
Warranting Party, use of the Technology by the other party as contemplated
herein will not depend on the acquisition of rights from any third party.
(f) AGREEMENTS WITH EMPLOYEES. The Warranting Party has and will
maintain with all the Warranting Party's employees, agents, and consultants,
written agreements sufficient to enable the Warranting Party to perform its
obligations hereunder, including without limitation the obligations set forth in
Article 3 above. The Warranting Party shall furnish to the other party copies of
such written agreements upon request and shall cause such subcontractors,
employees and agents to execute and deliver such further certificates,
acknowledgements, waivers and assignments as may be appropriate to give effect
to the foregoing.
4.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH
IN THIS ARTICLE 4 ABOVE, NEITHER PARTY MAKES ANY WARRANTIES UNDER THIS
AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE
SUBJECT MATTER HEREOF, AND EACH PARTY SPECIFICALLY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 5
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PAYMENTS
Except as expressly set forth in this Agreement and the OEM Agreement, each
party shall perform its obligations hereunder without payment of any kind to the
other party and each party shall bear its own costs and expenses.
ARTICLE 6
CONFIDENTIAL INFORMATION AND DISCLOSURE
6.1 CONFIDENTIAL INFORMATION. Each party agrees to maintain all
Confidential Information in confidence to the same extent that it protects
its own similar Confidential Information and to use such Confidential
Information only as permitted under this Agreement. For purposes of this
Agreement "Confidential Information" shall mean information including,
without limitation, computer programs, code, algorithms, names and expertise
of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other technical,
business, financial and product development plans, forecasts, strategies and
information marked "Confidential" or if disclosed verbally, reduced to
writing and marked "Confidential," or which should reasonably be understood
by the receiving party to be confidential information of the disclosing
party, within thirty (30) days after the date of disclosure. Each party
agrees to take all reasonable precautions to prevent any unauthorized
disclosure or use of Confidential Information including, without limitations
disclosing Confidential Information only to its employees (a) with a need to
know to further permitted uses of such information and (b) who are parties to
appropriate agreements sufficient to comply with this Article 6, and (c) who
are informed of the nondisclosure/ non-use obligations imposed by this
Article 6 and both parties shall take appropriate steps to implement and
enforce such non-disclosure/non-use obligations. The foregoing restrictions
on disclosure and use shall survive for three (3) years following termination
of this Agreement but shall not apply with respect to any Confidential
Information which (i) was or becomes publicly known through no fault of the
receiving party; (ii) was rightfully known or becomes rightfully known to the
receiving party without confidential or proprietary restriction from a source
other than the disclosing party; (iii) is independently developed by the
receiving party without the participation of individuals who have had access
to the Confidential Information; (iv) is approved by the disclosing party for
disclosure without restriction in a written document which is signed by a
duly authorized officer of such disclosing party; (v) by the receiving party
in connection with the securities filings with the Securities and Exchange
Commission or as otherwise required by government regulation, or (vi) the
receiving party is legally compelled to disclose; provided, however, that
prior to any such compelled disclosure, the receiving party will (a) assert
the privileged and confidential nature of the Confidential Information
against the third party seeking disclosure and (b) cooperate fully with the
disclosing party in protecting against any such disclosure and/or obtaining a
protective order narrowing the scope of such disclosure and/or use of the
Confidential Information. In the event that such protection against
disclosure is not obtained, the receiving party will be entitled to disclose
the Confidential Information, but only as and to the extent necessary to
legally comply with such compelled disclosure. Notwithstanding the provisions
set forth in this Section 6.1 above, each party may disclose the terms of
this Agreement (i)
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in connection with the requirements of an initial public offering or securities
filing; (ii) in confidence, to accountants, banks, and financing sources and
their advisors; (iii) in confidence, in connection with the enforcement of this
Agreement or rights under this Agreement; or (iv) in confidence, in connection
with a merger or acquisition or proposed merger or acquisition, or the like.
6.2 SOURCE CODE. With respect to the BuySite Product Source Code disclosed
by Commerce One to PeopleSoft hereunder, the following additional provisions
shall apply:
(a) PeopleSoft agrees to use the BuySite Product Source Code under
carefully controlled conditions in accordance with and for the purposes of this
Agreement, and to inform those employees who are given access to the BuySite
Product Source Code that such materials are the confidential and proprietary
information of Commerce One and disclosed to PeopleSoft as such. PeopleSoft
agrees to limit access to the BuySite Product Source Code strictly to those
employees, agents or contractors who require access in order to carry out the
Development Task, and PeopleSoft agrees to use reasonable care in selecting such
personnel. PeopleSoft shall be fully responsible for the conduct of all its
employees, agents and representatives. PeopleSoft will use same degree of care
with respect to the BuySite Product BuySite Product Source Code as PeopleSoft
uses for PeopleSoft PeopleTools Source Code, but in no event less than
reasonable care.
(b) Without limiting the foregoing, PeopleSoft, prior to any
individual's access to the BuySite Product Source Code, shall enter into a
confidentiality agreement with each such individual, if it has not done so
already with such individual, which shall afford substantially similar
protections to those afforded herein. Commerce One shall have the right to
reasonably request to review such confidentiality agreements. Nothing in this
Article 6 shall be construed to permit access to the BuySite Product Source Code
by anyone other than PeopleSoft' employees, contractors, or agents.
ARTICLE 7
TERM AND TERMINATION
7.1 TERM. This Agreement shall commence on the Effective Date and shall
terminate upon the earlier of (1) the delivery of Buysite 6.0P by Commerce One
and acceptance of Buysite 6.0P by PeopleSoft, and (2) the expiration or
termination of the OEM Agreement, unless the parties mutually agree to extend
the term of this Agreement.
7.2 FOR CAUSE. Either party may terminate this Agreement effective upon
written notice to the other if the other party materially breaches this
Agreement which breach is not cured within thirty (30) days after written notice
thereof from the non-breaching party stating its intention to terminate this
Agreement by reason thereof.
7.3 FOR BANKRUPTCY. Either party may terminate this Agreement in the event
the other party files for bankruptcy under Chapter 7 of the U.S. Bankruptcy Act
or an involuntary petition in bankruptcy is filed against a party which is not
dismissed within ninety (90) days.
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7.4 SURVIVAL. The parties' rights and obligations with respect to the
following Sections and Articles shall survive any termination of this Agreement:
Articles 3, 4, 5, 6, 8, and 9.
ARTICLE 8
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR
ANY LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF USE OR DATA, OR FOR
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN), OR FOR
ANY CLAIM AGAINST SUCH PARTY BY ANY THIRD PARTY.
IN ANY EVENT, BOTH PARTIES LIABILITY TO THE OTHER SHALL BE LIMITED IN THIS
AGREEMENT TO THE AMOUNTS AND IN THE MANNER AS THAT SET FORTH IN THE OEM
AGREEMENT.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 INDEPENDENT CONTRACTORS. The relationship of Commerce One and
PeopleSoft established by this Agreement is that of independent contractors, and
neither party is an employee, agent, partner or joint venturer of the other. All
financial obligations associated with each party's business are the sole
responsibility ofsuch party. All sales and other agreements between a party and
third parties are such party'sexclusive responsibility and will have no effect
on such party's obligations under this Agreement.
9.2 ASSIGNMENT. Except as set forth in this Section 9.2 below, neither
party shall transfer or assign its rights or obligations under this Agreement
without the prior written consent of the other party and any purported
assignment in violation of the foregoing shall be null and void. Either party
shall have the right to assign this Agreement, or any of its rights or
obligations hereunder, to any wholly owned subsidiary or any successor in
interest to all or substantially all of such party's business or assets related
to this Agreement, whether by merger, reorganization, asset sale or otherwise.
Subject to the foregoing, this Agreement will be binding upon and inure to the
benefit of the parties hereto, their successors and assigns.
9.3 NO IMPLIED WAIVERS. The failure of either party at any time to require
performance by the other of any provision hereof shall not affect the right of
such party to require performance at any time thereafter, nor shall the waiver
of either party of a breach of any provision hereof be taken or held to be a
waiver of a provision itself.
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9.4 SEVERABILITY. If any provision of this Agreement is held to be invalid
by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The parties agree to renegotiate
in good faith those provisions so held to be invalid to be valid, enforceable
provisions which provisions shall reflect as closely as possible the original
intent of the parties, and further agree to be bound by the mutually agreed
substitute provision.
9.5 FORCE MAJEURE. Except for payment of monies, neither party shall be
liable for failure to fulfill its obligations under this Agreement or any
purchase order issued hereunder or for delays in delivery due to causes beyond
its reasonable control, including, but not limited to, acts of God, man-made or
natural disasters, earthquakes, fire, riots, flood, material shortages, strikes,
delays in transportation or inability to obtain labor or materials through its
regular sources. The time for performance of any such obligation shall be
extended for the time period lost by reason of the delay.
9.6 CONFLICTING TERMS. The parties agree that the terms and conditions of
this Agreement shall prevail, notwithstanding contrary or additional terms, in
any purchase order, sales acknowledgment, confirmation or any other document
issued by either party effecting the purchase and/or sale of the BuySite
Products.
9.7 HEADINGS. Headings of Sections and Articles herein are inserted for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
9.8 NOTICE. Any notice required or permitted to be given under this
Agreement shall be delivered (i) by hand, (ii) by registered or certified mail,
postage prepaid, return receipt requested, to the address of the other party
first set forth above, or to such other address as a party may designate by
written notice in accordance with this Section 9.8, (iii) by overnight courier,
or (iv) by fax with confirming letter mailed under the conditions described in
(ii) above. Notice so given shall be deemed effective when received, or if not
received by reason of fault of addressee, when delivered.
9.9 GOVERNING LAW. This Agreement shall be governed by and construed under
the law of the State of California, U.S.A., without regard to conflict of laws
principles.
9.10 DISPUTES. If Commerce One and PeopleSoft, are unable to resolve any
dispute, controversy or claim arising out of this Agreement between them, either
Commerce One or PeopleSoft may, by written notice to the other, first have such
dispute referred to the Vice President, Engineering (or equivalent) of Commerce
One and PeopleSoft, for attempted resolution by good faith negotiations within
five (5) business days after such notice is received. If not resolved within
such five (5) business day period, the parties shall escalate the dispute their
respective Presidents for resolution within fifteen (15) business days after
expiration of the initial five day period. Unless otherwise mutually agreed, the
negotiations between the designated officers shall be conducted by telephone or
otherwise, within three (3) days and at times within the period stated above
offered by the designated officer of PeopleSoft to the designated officer of
Commerce One for consideration. If the parties are unable to resolve such
dispute in accordance with the aforementioned procedure or within such thirty
(30) day period, either party shall have the right to pursue settlement of such
dispute by arbitration as set forth in Section 9.11.
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9.11 ARBITRATION. Any dispute or claim arising out of or in relation to
this Agreement, or the interpretation, making, performance, breach or
termination thereof, shall be finally settled by binding arbitration under the
Rules of the American Arbitration Association as presently in force ("Rules")
and by one (1) arbitrator mutually agreed upon the parties or if not agreed,
than appointed in accordance with said Rules; provided however that either party
may elect to have the dispute resolved by three (3) arbitrators in which event
each party shall appoint one of the arbitrators and the third arbitrator will be
appointed by the first two arbitrators. Judgment on the award rendered may be
entered in any court having jurisdiction thereof. The place of arbitration shall
be San Francisco, California, U.S.A. Any monetary award shall be in U.S. dollars
and the arbitration shall be conducted in the English language. The parties may
apply to any court of competent jurisdiction for temporary or preliminary
injunctive relief, without breach of this Section 9.11 and without any
abridgment of the powers of the arbitrator. In the event that the parties are
deadlock on the Acceptance Criteria, the parties shall submit the dispute to
binding arbitration pursuant to this Section 9.11, and the arbitrator shall have
thirty days to resolve the dispute after submission of the issue to arbitration
and appointment of the arbitrator(s) as set forth above. The arbitrator shall be
directed to resolve all other disputes submitted to arbitration in an
expeditious fashion.
9.12 ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes all prior
agreements relating thereto, written or oral, between the parties. Amendments to
this Agreement must be in writing, signed by the duly authorized officers of the
parties. The terms of any purchase order are expressly excluded.
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COMMERCE ONE, INC. PEOPLESOFT, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxx
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Print Name: Xxxxxx X. Xxxxxx Print Name Xxxxx Xxxxxx
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Title: Vice President & General Counsel Title: President, CEO
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EXHIBIT A
DEVELOPMENT EXHIBIT
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DELIVERABLES
PEOPLESOFT DELIVERABLES
PeopleSoft will perform necessary changes to the base Commerce One documentation
and produce necessary CD's. No hard-copy documentation will be delivered.
PeopleSoft will package and ship software.
PeopleSoft will incorporate BuySite demos into existing PeopleSoft sales demos.
Connector between the 7.5 Purchasing module of the PeopleSoft software and
Commerce One's MarketSite software ("PeopleSoft Purchasing to MarketSite
Connector"). Delivery Date: Same as BuySite 6.0.
The portion of the BuySite Connector (as further defined below) consisting of
the inbound and outbound connectors that interface to the PeopleSoft 7.5
software. Delivery Date: Same as BuySite 6.0
COMMERCE ONE DELIVERABLES:
(a) BuySite 5.0P Demo: Customized version of Commerce One's BuySite 5.0 Demo
incorporating the following changes:
Commerce One will put agreed-upon branding on end user screens.
Commerce One will remove all Travel and Expense-related information and
functionality from BuySite 5.0P Demo.
Approximate Delivery Date: June 7, 1999
(b) BuySite 5.0P: Customized version of Commerce One's BuySite 5.0 incorporating
the following changes:
Shippable standalone product.
Commerce One will put agreed-upon branding in BuySite.
Commerce One will remove all Travel and Expense-related information and
functionality from BuySite 5.0P.
Approximate Delivery Date: June 30
(c) BuySite 6.0
Approximate Delivery Date for BuySite 6.0 is December 31, 1999
PeopleSoft and Commerce One agree that the following changes will need to be
implemented in concurrence with the BuySite 6.0 release.
Commerce One will modify BuySite to support isolation of User Interface and
business objects (e.g., cascading style sheets) in order to enable BuySite 6.0
to serve as the basis for the future PeopleSoft Product (as defined in the OEM
Agreement).
Commerce One will modify BuySite to support the Oracle DBMS to meet the DBMS
platform testing criteria set forth below. PeopleSoft will specify the
appropriate releases of Oracle 7 and 8 that were certified with PeopleSoft 7.5
software.
Commerce One will deliver an upgrade computer program for upgrading BuySite 5.0P
customers from BuySite 5.0P to 6.0P. This upgrade program shall be
substantially similar to upgrades delivered by Commerce One for upgrades from
BuySite 5.0 to 6.0.
Commerce One will provide the ability to configure BuySite 6.0 based on
installation options. This will include the prevention of redundant transaction
entry when integrated with PeopleSoft 7.5 software (i.e., if receipts are
entered via PeopleSoft 7.5 Purchasing module, receipt entry in BuySite should be
turned off), and will dictate the flow of Purchase Orders (i.e., to merchant in
standalone, to PeopleSoft 7.5 Purchasing module when integrated).
Commerce One will modify the installation script to accommodate different
BuySite settings depending on which PeopleSoft modules are present.
The portion of the BuySite Connector (as defined above) consisting of the
inbound and outbound connectors that interface to the BuySite Product,
(collectively, the "BuySite Connectors") shall mean the connector between the
PeopleSoft 7.5 software and BuySite 6.0, which will include but not be limited
to the following:
PeopleSoft HR to BuySite: User Populator including net change (we will decide
if this is necessary)
PeopleSoft Purchasing to and from BuySite
Chart of accounts and other control tables synchronization
Push purchase requisition from BuySite to PeopleSoft Purchasing
Push status and Purchase Order Number from PeopleSoft Purchasing to BuySite
Push Purchase Orders from PeopleSoft Purchasing to MarketSite
Push receipts from BuySite to PeopleSoft purchasing
(d) BuySite 6.0P
The release of BuySite 6.0 and 6.0P shall be linked to PeopleSoft acceptance
of BuySite 6.0P, which acceptance shall not be unreasonably withheld.
Commerce One will release to PeopleSoft BuySite 6.0P on the same date as
BuySite 6.0. BuySite 6.0P is the same base code line as BuySite 6.0 with a
separate branding.
Commerce One will remove all Travel and Expense related information and
functionality from BuySite 6.0P (potentially a part of the installation
configurability discussed above).
Quality Assurance for BuySite 6.0P is a joint effort between PeopleSoft and
Commerce One.
TERMS OF ACCEPTANCE
BuySite 6.0P will be considered an accepted release by both parties upon the
completion of development, Quality Assurance testing, and Performance testing
of the following items:
Support for Features and Functions identified in the Commerce One BuySite 6.0
Product Plan and BuySite 6.0 and BuySite 6.0P features identified above. The
feature list may be changed during the course of development by the Joint
Development Committee.
Meeting of mutually agreed performance criteria related to number of concurrent
users and transaction execution time as required by our mutually agreed target
customer.
Meeting of mutually agreed outstanding defect levels, using mutually agreed
defect categorization rules.
This list of items may be changed by the Joint Development Committee during the
project.
Acceptance Criteria:
Detailed acceptance criteria including Quality Assurance for System and DBMS
Platform testing and Performance testing will be jointly developed and signed
off by `The Committee' and Sr. VP's of engineering. The Quality Assurance test
plans will list the target features, will include test scripts for identified
features, and will executed during the release cycle until the exit criteria for
both System Test and DBMS Platform Test phases have been met. Exit criteria for
both of these phases includes the following:
100% test scripts/procedures are executed.
All incidents have been reviewed.
Incident trend is going down.
No known open application critical or urgent incidents (priority one or two)
remain, however there may be standard and low (priority three or four) incidents
open.
UPGRADES
Commerce One will carry the risk for transition from XxxxxxXxxx.Xxx 2.0 to 3.0.
COMMERCE ONE, INC. PEOPLESOFT, INC.
By: By:
Print Name: Print Name:
Title: Title:
