\n[*] [*]
\n<\/c><\/s><\/caption>\n<\/table>\n[*]<\/p>\n
Corio Hosting Confidential Page 7 of 10
\nAmendment One
\n23 August 1999<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.
\n 8
\n EXHIBIT B
\n STATEMENT OF WORK<\/p>\n
CUSTOM CO-LOCATION AND NETWORK SERVICES<\/p>\n
In accordance with the specifications & requirements provided in this Exhibit,
\nConcentric will be a networking and hosting partner for Customer. Concentric
\nwill manage a Customer specific hosting environment and provide various forms
\nof data connectivity to the hosted environment. Concentric will manage Customer
\nservers, provide Customer specific reports on: server, bandwidth, tape
\nbackup and assets. Concentric will also manage the complete data backup
\nprocedures. The Concentric support center will provide helpdesk to helpdesk
\nincident identification, escalation and management of server and network events.<\/p>\n
1) SECTION ONE: CO-LOCATION SERVICES<\/p>\n
a) Corio provided components:<\/p>\n
i) Hardware:<\/p>\n
(1) If Corio procures and owns their own equipment it may
\n consist of a combination of Approximately 20 Sun E250,
\n E450, D1000 and Ultra servers for Infrastructure (WWW, mail,
\n ftp, etc.), Implementation (staging of new Corio customers
\n before production), and Production.<\/p>\n
(2) Corio can supply tape backup equipment for a dedicated
\n backup application. Additionally, acquisition of backup
\n systems can be transferred to Concentric if required. <\/p>\n
ii) Application level software (People soft, Oracle database server,
\n mail server and FTP server)<\/p>\n
iii) Corio staff to be present at Concentric Network for the first 10
\n installs of production systems for Corio co-located services.<\/p>\n
iv) Ownership, installation and management of the Operating Systems
\n and patches until otherwise requested. At some point, it may
\n become advantageous for Corio to transfer this responsibility to
\n Concentric Network.<\/p>\n
v) Corio can provide management of all access lists on the router
\n gateway to and from the co-located service. This includes the
\n routers and switches associated with defining the data path of
\n all Corio customers. This means that Corio will construct all
\n changes to the access lists for each customer site and each
\n internal VLAN.<\/p>\n
vi) Management software for a “Manager of Management Tools”
\n application. Concentric can provide monitoring feeds to Corio.
\n Corio will provide a software environment where those feeds are
\n assembled and reported.<\/p>\n
b) Concentric provided components:<\/p>\n
i) Space within the Concentric Network HQ for a Corio
\n representative to work while the initial set (10) of
\n installations takes place.<\/p>\n
ii) Hardware and associated services.<\/p>\n
(1) 16 X 16 Co-location cage<\/p>\n
(2) Up to 19 open Telco racks and associated switches and
\n cables. At least one of the racks will be dedicated to
\n network equipment.<\/p>\n
(3) Power, fire detection and suppression systems, environmental
\n controls, and 7 X 24 site security including online cameras,
\n breach alarms, automated police notification and limited
\n card key access to all secure zones.<\/p>\n
(4) CNC may lease to Corio, A Router, switch and associated
\n cabling for incoming network connections both from
\n Concentric and alternate service providers.<\/p>\n
(5) Firewall and encryption boxes plus configuration and
\n management of these services can be supplied by Concentric
\n if required by Corio.<\/p>\n
(6) Concentric can procure and lease to Corio the Hardware for
\n the production co-located services if required.<\/p>\n
Corio Hosting Confidential Page 8 of 10
\nAmendment One
\n23 August 1999<\/p>\n
9
\n (7) Tape backup service components to include:<\/p>\n
(a) Can include the procurement of equipment to perform
\n backup where Concentric Network will bill Corio back for
\n the dedicated hardware.
\n (b) Physical tape swapping once a week
\n (c) Off site storage of tapes
\n (d) Tape rotation
\n (e) Coding of tapes for retrieval of backup
\n (f) Administration of the backup servers
\n (g) Tape backup equipment
\n (h) Retrieval and loading of tapes for restoration.
\n (i) Legato Tape data identification library.<\/p>\n
iii) Software
\n (1) Legato Software and management thereof for tape backup
\n systems
\n (2) Micromuse software for the retrieval of data to facilitate
\n monitoring of the co-located server environment as well as
\n Corio end users CPE. The service provided by the use of this
\n software allows for Concentric to send a simple “ping” to a
\n port of a Co-located machine or to an end customer site and
\n report the status of that machine to a log where it can then
\n be fed to an agreed upon monitoring tool. This will allow
\n Concentric Network to determine the status of the machines
\n and escalate to Corio if there is a non-response. This will
\n also allow Corio a “view” into the status of all the above
\n mentioned devices.<\/p>\n
iv) Server Staging and Installation:
\n (1) Installation of all hardware for Corio co-located
\n environment whether procured by Concentric Network or Corio.
\n (2) Auto install of base software\/operating systems from a Corio
\n provided master can be provided by Concentric. As a
\n benchmark for an installation process the first 10 machines
\n (approximately) will be staged and installed by a
\n collaborative effort between Concentric Network and Corio.
\n If an auto installation can be mutually agreed upon
\n Concentric will provide auto loading of master systems onto
\n the Corio production servers.
\n (3) Asset Management system to distinguish between and manage
\n Concentric and Corio hardware components. Components to
\n include:
\n (a) Tagging
\n (b) Tracking
\n (c) Update reports provided either via email or an updated
\n web site.<\/p>\n
2) SECTION TWO: NETWORK SERVICE<\/p>\n
a) Concentric Provided Components:
\n i) Network design specification and diagram of proposed LAN, WAN,
\n and VPN components to be provided by Concentric. Corio and
\n Concentric Network to jointly develop the final versions of the
\n network design specification and diagram once the overall
\n concepts are agreed upon.
\n ii) Cross Connections of Corio customer dedicated access from
\n alternate network service providers into the Corio custom
\n co-location server environment. Components of this service
\n include;
\n (1) Acceptance of the alternate provider demarcation in the
\n Concentric Network Telco room and patching of that line into
\n the Corio designated server port.
\n (2) Monitoring of the cross connected patch panels and cables.
\n iii) Concentric network Dedicated Access Facilities service to Corio
\n customers for access to the Corio co-located server environment.
\n iv) Installation and management of the Corio custom router
\n environment excluding the management of the actual access lists.
\n v) Security Services:
\n (1) Firewall configuration, installation, monitoring and
\n management to be provided if required.
\n (2) VPNet Encryption configuration, installation, monitoring and
\n management for both the co-location environment and for
\n customer sites (CNC DAF and alternate provider sites) if
\n required.
\n vi) Network Monitoring of all co-located devices.
\n vii) Monitoring of all customer premise sites.
\n viii) Proactive notification of outages.<\/p>\n
Corio Hosting Confidential Page 9 of 10
\nAmendment One
\n23 August 1999
\n 10
\n3) SECTION THREE: SUPPORT SERVICE<\/p>\n
Parties will mutually agree upon Corio specific support and escalation
\n procedures to address all of the following components:<\/p>\n
a) Data Center Support provided by Concentric:<\/p>\n
i) Managed server support for Corio co-located servers to include:<\/p>\n
(1) Tape backup management
\n (2) Full backups in time frames to be provided by Corio.
\n (3) Server installation and upkeep
\n (4) Router and switch installation and upkeep
\n (5) Cross-connection of alternate providers into the co-located
\n server environment
\n (6) Power cycle of downed machines
\n (7) Loading of base applications if required.
\n ii) Varying levels of escalation of detected outages of Corio servers
\n (all escalation notification to be provided to Corio. Corio to
\n then escalate to their customers if needed). Notification to
\n include:
\n (1) Infrastructure outages
\n (2) Implementation server outages
\n (3) Corio customer production server outages (of the highest
\n priority)
\n (4) Customer premise outages
\n iii) Direct intervention in error correction of Corio server outages
\n up to the basic OS level
\n iv) Reporting on bandwidth usage, backup usage and status, outages
\n and errors. Reports to include:
\n (1) MRTG online report tool for bandwidth usage out of the
\n co-location facility
\n (2) Micromuse reports and logs
\n (3) A Read Only view into Open View of the Corio servers and
\n customers.
\n b) Network Operations Center support services
\n i) Concentric Network to provide direct access (read only) to
\n systems monitoring tools for their co-location and end customer
\n sites.
\n ii) Concentric Network to provide, in accordance to mutually agreed
\n upon support procedures, monitoring down to the customer premise
\n router for Corio customers cross connected to the co-location
\n servers via Alternate Provider access, and reporting to Corio
\n when Concentric is unable to “ping” remote devices.
\n iii) Concentric Network to provide monitoring down to the customer
\n premise router for all Concentric Provided DAF lines to Corio
\n customers.
\n iv) Concentric to provide a dedicated contact for access into the
\n trouble tracking system for the Corio systems and their customer
\n connections.
\n c) Operations Desk support service
\n i) Concentric to provide help desk to help desk escalation of
\n problems to the first tier Corio support staff for escalation to
\n Corio customers and vice versa. Ops desk would be the mouth-piece
\n and trouble ticket contact for both co-location and DAF\/Alternate
\n provider escalation services.
\n ii) Maintenance policies to be defined to Corio and any possible
\n customer effecting maintenance service notifications to be
\n provided proactively to Corio.<\/p>\n
Corio Hosting Confidential Page 10 of 10
\nAmendment One
\n23 August 1999
\nEX-10.11
\n13
\nEXHIBIT 10.11<\/p>\n 1
\n EXHIBIT 10.11<\/p>\n
OUTSOURCER ALLIANCE AGREEMENT
\n WITH
\n CORIO, INC.<\/p>\n
This Outsourcer Alliance Agreement (“Agreement”) is made as of the Effective
\nDate by and between PeopleSoft USA, Inc., a California corporation having its
\nprincipal place of business at 4305 Hacienda Drive, Pleasanton, CA 94588
\n(“PeopleSoft”) and Corio, Inc., a Delaware corporation with offices at 700 Bay
\nRoad, Suite 210, Redwood City, CA 94063 (“Service Provider”). As used herein,
\nthe term “Parties” shall refer to PeopleSoft and Service Provider collectively,
\nand the term “Party” shall refer to PeopleSoft or Service Provider.<\/p>\n
Whereas, the Parties intend to develop a business relationship to provide
\nService Provider with rights to leverage its expertise in the outsourcing
\nservice business by remotely hosting the Software to provide a solution within
\nits outsourcing business to offer the Software under sublicense as provided in
\nthis Agreement as part of an integrated solution (the “Solution Offering”);<\/p>\n
Whereas, in every situation with a Designated Customer, the Designated Customer
\nwill procure, or will have procured, either a license to use the Software from
\nService Provider pursuant to a Sublicense Agreement;<\/p>\n
Whereas, the Parties intend that this Agreement be entirely independent of other
\nagreements between the Parties or that may be contemplated by the Parties, and
\nthat any payments under this Agreement be non-refundable and non-cancelable; and<\/p>\n
Whereas, the Parties intend that this Agreement shall replace and supersede in
\nits entirety that certain Outsourcer Alliance Agreement dated as of September
\n30, 1998 by and between the Parties (the “Prior Agreement”).<\/p>\n
Therefore, the Parties agree as follows:<\/p>\n
1. DEFINITIONS<\/p>\n
“ACTIVE USER” means a Designated User to whom a user identification number and
\npassword has been assigned, which permits that user to access and use the
\nSoftware on a designated Service Provider server, and that is not a Casual User
\n(as defined below).<\/p>\n
“APPLICATION MANAGEMENT” (“AM”) means Service Provider’s management of Software
\nfor a Designated Customer on Service Provider’s owned, leased, or subcontracted
\nfor premises or premises otherwise under Service Provider’s control, such that
\nService Provider manages the Designated Customer’s Software, applications
\nupgrades, performs routine maintenance, applies fixes, performance tuning, and
\nsystem enhancements, using PeopleTools, and other functions typically performed
\nby an in-house IT staff. These services may also include the performance of such
\nfunctions as DBA and OS administration, in connection with the Software and
\nbusiness processes supported by the Software.<\/p>\n
“CASUAL USER” means a Designated Customer who is authorized to use the Software
\nsolely to complete a limited group of functional tasks, which will change from
\ntime to time and initially includes the following tasks: report execution,
\ninquiry and remote order entry.<\/p>\n
* Certain information on this page has been omitted and filed
\n separately with the Commission. Confidential treatment has
\n been requested with respect to the omitted portions.
\n Page 1 of 33<\/p>\n
2
\n“COMMERCIAL ENTERPRISE” means only enterprises within the Market Segments with
\nannual revenues of not more than [*], as reported on a consolidated basis in (1)
\nsuch enterprise’s most recent fiscal year end audited financials, or if not
\navailable, (2) by the One Source database, or comparable database, with the
\nexception of enterprises in the higher education and government (public sector
\nand federal) segments where only a right of first refusal to a third party is in
\neffect.<\/p>\n
“COMPETITIVE ASP” means any company that offers ERP Software on a hosted and
\nsubscription basis delivered over the World Wide Web or a private network to
\nCommercial Enterprises.<\/p>\n
“DESIGNATED CUSTOMER(S)” means only End Users which, at the date of execution of
\nan Outsourcing Agreement with Service Provider, is a Commercial Enterprise which
\nhas corporate headquarters in North America.<\/p>\n
“DEVELOPMENT CENTER” means the location(s) of facilities owned, leased,
\nsubcontracted for, or otherwise under Service Provider’s control, including a
\nDesignated Customer’s location where Service Provider uses or utilizes the
\nSoftware pursuant to the subsections entitled Internal Use License or
\nDevelopment License.<\/p>\n
“DOCUMENTATION” means the user guides and manuals for installation and use of
\nthe Software in computer readable or bound hard copy form, if computer readable
\nform is unavailable.<\/p>\n
“EFFECTIVE DATE” means January 1, 1999.<\/p>\n
“END USER” means a third party sublicensee of the Software that acquires rights
\nfrom PeopleSoft through a sublicense from Service Provider pursuant to section
\n2(d) to use the Software solely for such party’s own internal business purposes
\nand not for distribution, further sublicensing, or other commercial purposes.<\/p>\n
“FEES” means the fees set forth on Exhibit A hereto.<\/p>\n
“INTELLECTUAL PROPERTY RIGHTS” means any patent, patent application, copyright,
\nmoral right, trade name, trademark, trade secret, copyright, and any
\napplications or right to apply for registration therefor, know-how, mask work,
\nschematics, computer software programs or applications, tangible or intangible
\nproprietary information, or any other intellectual property right or proprietary
\ninformation or technology, whether registered or unregistered and whether first
\nmade or created before or after the Effective Date.<\/p>\n
“MARKET SEGMENTS” are limited under this agreement to all industries within the
\nTerritory, with the exception of the higher education and government (public
\nsector and federal) segments where only a right of first refusal is in effect.<\/p>\n
“OUTSOURCING AGREEMENT” means a separate agreement between Service Provider and
\na Designated Customer for the provision by Service Provider to the Designated
\nCustomer of Outsourcing Services, which includes a Sublicense Agreement.<\/p>\n
“OUTSOURCING CENTER” means the location(s) under Service Provider’s control,
\nowned, leased, subcontracted for or otherwise, including at which Service
\nProvider may perform Outsourcing Services.<\/p>\n
“OUTSOURCING SERVICES” means the provision of Applications Management (AM)
\nservices to a Designated Customer.<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n
Page 2 of 33<\/p>\n
3
\n“PREFERRED ASP PARTNER” shall mean an applications service provider that has
\nbeen granted the following preferential rights by PeopleSoft: (i) the right to
\nbe referenced as a “Preferred ASP Partner” and (ii) the right to freely and
\nindependently market, sell and host the Software without PeopleSoft
\nparticipation.<\/p>\n
“SOFTWARE” means the then current release or version of the products listed in
\nExhibit A as “Software, and includes updated or enhanced versions of such
\nprograms that PeopleSoft provides only as part of Support Services. Software
\ndoes not include any third party software or new software or technology for
\nwhich PeopleSoft generally charges a separate fee, but does include left of
\ndecimal changes to the current Software products. Software shall include any
\nthird party software components to which PeopleSoft has certain ongoing rights
\npursuant to the terms of an existing specific written license agreement between
\nPeopleSoft and the third party developer of such components, and which third
\nparty software components shall be provided to Service Provider only to the
\nextent provided by PeopleSoft pursuant to the terms of the standard PeopleSoft
\nLicense Agreement then in effect to any licensee licensing any commercially
\navailable software programs and products from PeopleSoft. Software includes
\nDocumentation.<\/p>\n
“SUBLICENSE” means a non-exclusive, non-transferable, term (non-perpetual) right
\ngranted by Service Provider under a Sublicense Agreement to a Designated
\nCustomer or End User, as the case maybe, to use the Software solely for such
\nDesignated Customer’s or End User’s internal business purposes, in accordance
\nwith the Documentation, and pursuant to a Sublicense Agreement.<\/p>\n
“SUBLICENSE ADDENDUM” shall mean an addendum to this Agreement specifying
\nadditional Sublicense terms and which may be granted by Service Provider.<\/p>\n
“SUBLICENSE AGREEMENT” means a written agreement between Service Provider and an
\nEnd User whereby a Sublicense is granted, and that complies with the provisions
\nof Section 2(d).<\/p>\n
“SUPPORT SERVICES” means PeopleSoft’s then current technical support services
\nfor Service Provider. A statement of Support Services offered as of the
\nEffective Date is attached hereto as Exhibit B.<\/p>\n
“TERRITORY” means [*]. The prior written consent of PeopleSoft shall be required
\nto provide Outsourcing Services to any Designated Customers headquartered
\noutside of the Territory.<\/p>\n
“USER FEE(S)” means the aggregate Active User Fee and Casual User Fee.<\/p>\n
2. LICENSE GRANTS<\/p>\n
(A) OUTSOURCING SERVICES LICENSE.<\/p>\n
Subject to the terms and conditions of this Agreement (including Service
\nProvider’s obligation to pay PeopleSoft Fees), PeopleSoft hereby grants to
\nService Provider a worldwide, non-exclusive (except in accordance with section
\n3(b)(1)), non-transferable, restricted license during the term of this Agreement
\nto use the Software solely to perform the Outsourcing Services at an Outsourcing
\nCenter and to make a reasonable number of laptop (single user) and server
\n(multi-user) copies solely for demonstration purposes. Service Provider may
\ncopy, distribute and\/or electronically distribute the Software within Service
\nProvider for the purposes set forth in this subsection. For the fees set forth
\nin section 1 of Exhibit A, Service Provider shall have the right to make a
\nreasonable number of copies of the Software for such purposes. Service Provider
\nshall reproduce all titles, trademarks, and copyright and restricted rights
\nnotices in the Software in all such copies. Except as set forth above, Service
\nProvider may not transfer or duplicate the Software except for (i) temporary
\ntransfer in the event of a CPU malfunction and (ii) a single backup and archival
\ncopy. Service Provider will not<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n
Page 3 of 33<\/p>\n
4
\nallow any third party, including an employee or other representative of a
\nDesignated Customer, to use the Software under this license grant. Service
\nProvider further agrees to use the Software only in accordance with the
\nDocumentation, on a computer and operating system configuration specified in the
\nDocumentation and in accordance with the obligations imposed by this Agreement.
\nService Provider warrants to PeopleSoft that it will perform the Outsourcing
\nServices with due care and skill and in accordance with generally accepted
\nprofessional standards for providing similar services. Service Provider will not
\ndisclose or publish to any third party any results of benchmark tests run on the
\nSoftware.<\/p>\n
(B) RESTRICTIONS ON USE.<\/p>\n
Service Provider agrees not to translate the Software into another computer
\nlanguage, in whole or in part. Except as set forth above, Service Provider shall
\nnot make copies or make media translations of the Software or the Documentation,
\nin whole or in part without PeopleSoft’s prior written approval. Service
\nProvider agrees that if, for any reason, it comes into possession of any
\nSoftware source code, or portion thereof, for any PeopleSoft product, which it
\nknows or reasonably should know is source code not generally provided by
\nPeopleSoft as a part of the Software or provided under the terms of a license
\ngrant in this Agreement, it will immediately deliver all copies of such source
\ncode to PeopleSoft. Service Provider acknowledges PeopleSoft’s representation
\nthat the Software and its structure, organization and source code constitute
\nvaluable trade secrets that belong to PeopleSoft. Service Provider agrees that
\nit shall not reverse compile, disassemble or otherwise reverse engineer the
\nSoftware and that it shall not use the Software or Documentation except as
\nexpressly permitted by this Agreement.<\/p>\n
(C) MARKETING AS PART OF OUTSOURCING SERVICES<\/p>\n
PeopleSoft hereby grants to Service Provider the non-exclusive, nontransferable
\nright to market and distribute the Software to End Users solely as part of
\nService Provider’s provision of Outsourcing Services.<\/p>\n
(D) SUBLICENSE TRANSACTIONS.<\/p>\n
As further set forth in the applicable Sublicense Addendum and subject to the
\nterms and conditions of this Agreement (including Service Provider’s obligation
\nto pay PeopleSoft the Fees), PeopleSoft hereby grants to Service Provider a
\nworldwide, non-exclusive, non-transferable license during the term of this
\nAgreement to market and grant Sublicenses to the Software to sublicensees (each
\na “Sublicensee”) as set forth in such Sublicense Addendum (“Sublicense
\nTransaction”). Service Provider shall only have the right to Sublicense the
\nSoftware pursuant to a written Sublicense Agreement, for such term as the
\nparties will mutually agree from time to time and, which is substantially in the
\nform of the Alliance Partner License Agreement attached hereto as Exhibit C.
\nService Provider shall have to right to (i) notify any Designated Customer of a
\nmigration option that would permit a Designated Customer who has been a Service
\nProvider Designated Customer for at least three (3) years to migrate from
\nService Provider’s Outsourcing Services to licensing the Software pursuant to a
\nperpetual license at a discounted rate; and (ii) sell the Software to that
\nDesignated Customer for a discounted rate not to be less than [*] of the
\nthen-current standard PeopleSoft perpetual license list price. If Service
\nProvider executes any such sales transactions, Service Provider shall remit to
\nPeopleSoft an amount equal to [*] of the then-current standard PeopleSoft
\nperpetual license price and any additional amount received by Service Provider
\nfrom the Designated Customer shall be retained by Service Provider.<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n
Page 4 of 33<\/p>\n
5
\n3. EXCLUSIVITY<\/p>\n
(A) BY SERVICE PROVIDER.<\/p>\n
For [*] following the Effective Date, Service Provider shall not market, sell,
\nhost, or otherwise provide access to, any software in connection with the
\nOutsourcing Services which could compete or does compete directly with
\nPeopleSoft’s core current Software products. The Parties agree that they will
\nmeet as necessary to discuss the scope of the products included in this
\nexclusivity section prior to Service Provider marketing, selling, hosting, or
\notherwise providing access to, any software in connection with the Outsourcing
\nServices. This exclusivity applies solely to the Software and not to any new
\nproducts PeopleSoft may introduce which are beyond the scope of PeopleSoft’s
\nSoftware offerings as of the Effective Date.<\/p>\n
(B) BY PEOPLESOFT.<\/p>\n
(1) For [*] following the Effective Date, PeopleSoft shall not start, fund,
\n or otherwise invest in any Competitive ASP. If PeopleSoft breaches the
\n provision of this section 3 (b)(1), as the sole and exclusive remedy of
\n Service Provider, Service Provider’s obligations under section 3(a)
\n shall immediately cease to apply and to have effect, and Service
\n Provider shall only be free to offer any other software, including,
\n without limitation, software products that are competitive with the
\n Software, in connection with its provision of outsourcing services. For
\n the avoidance of doubt, this subsection shall not in any event apply in
\n any way to PeopleSoft’s right to start, fund or invest in any
\n technology, software or services that is not based upon PeopleSoft’s
\n PeopleTools architecture.<\/p>\n
(2) Notwithstanding anything to the contrary in this Agreement, as
\n consideration for the Technology Access Fee set forth in Exhibit A, for
\n [*] following the Effective Date, PeopleSoft grants Service Provider a
\n worldwide, exclusive, non-transferable, restricted license during the
\n term of this Agreement to use the Software solely to perform outsourcing
\n services at Outsourcing Centers; provided, however that exceptions to
\n the foregoing exclusive license and exclusivity rights and obligations
\n shall be: (a) the PeopleSoft\/Usinternetworking outsourcing agreement as
\n amended during March 1999; and (b) PeopleSoft’s right, in its sole
\n discretion to grant during such period of exclusivity licenses for
\n outsourcing services to not more than three (3) new third party entities
\n that are not Preferred ASP Partners. All non-conflicting terms and
\n conditions of section 2(c) shall apply and govern with respect to this
\n license grant.<\/p>\n
(3) If PeopleSoft breaches either section 3(b)(1) or (b)(2), as the sole and
\n exclusive remedies of Service Provider, (i) Service Provider’s
\n obligations under section 3(a) shall immediately cease to apply and to
\n have effect, and Service Provider shall only be free to offer any other
\n software, including, without limitation, software products that are
\n competitive with the Software, in connection with the its provision of
\n outsourcing services, and (ii) Service Provider may cease making any
\n quarterly payments as set forth in Section 2 of Exhibit A for amounts
\n due for the period after the effective date of breach by PeopleSoft;
\n provided, however, that Service Provider shall remain obligated to make
\n any payments due to PeopleSoft for the period up to and including such
\n effective date of termination.<\/p>\n
4. TECHNICAL SERVICES<\/p>\n
(A) SOFTWARE INSTALLATION.<\/p>\n
PeopleSoft shall ship the Software for installation at Service Provider’s Santa
\nClara Outsourcing Center at the prevailing rates for installations taking up to
\nfive days. Additional installations will occur at the other Service<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n
Page 5 of 33<\/p>\n
6
\nProvider Outsourcing Centers thereafter as the parties agree in writing. Under
\nany other circumstance, installation will be at PeopleSoft’s then current
\nstandard commercial time and materials hourly or daily rates.<\/p>\n
(B) TRAINING.<\/p>\n
PeopleSoft shall provide Software training to Service Provider at a PeopleSoft
\ntraining center on a mutually agreeable date(s) during the first year following
\nthe Effective Date at the rates set forth in Exhibit A hereto. At the Designated
\nCustomer’s request, Software training for the Designated Customer will be
\nprovided as part of the implementation either Service Provider, a third party,
\nor PeopleSoft at their respective then-current prevailing rates.<\/p>\n
(C) IMPLEMENTATION.<\/p>\n
Service Provider shall be responsible for the Designated Customer’s Software
\nimplementation efforts. Service Provider may choose to subcontract some or all
\nof the implementation to PeopleSoft but in that event, PeopleSoft, as a
\nsubcontractor, shall be contractually obligated only to Service Provider
\npursuant to the terms of the relevant subcontract, and not to any third party.
\nThe fees for any such implementation by PeopleSoft shall be as set forth in
\nExhibit A hereto.<\/p>\n
(D) SUPPORT SERVICES.<\/p>\n
Service Provider will provide Designated Customers with the first level of
\nsoftware support to the Designated Customers. In consideration of the fees set
\nforth in Exhibit A, PeopleSoft will provide Service Provider with Support
\nServices as set forth in Exhibit A. With respect to support, the Parties agree
\nto meet bi-annually for engineering\/architecture meetings. The appropriate
\npersonnel and topics of discussion for each meeting shall be determined on a
\nmeeting-by-meeting basis.<\/p>\n
(E) CONSULTING.<\/p>\n
Service Provider will provide ongoing consulting to Designated Customers which
\nwill include the application of Software fixes and upgrades.<\/p>\n
(F) INCIDENTAL EXPENSES.<\/p>\n
For any on-site services requested by Service Provider, Service Provider shall
\nreimburse PeopleSoft for actual, reasonable travel and out-of-pocket expenses
\nincurred.<\/p>\n
5. DELIVERY<\/p>\n
All Software and Documentation for which delivery from PeopleSoft is required
\nunder this Agreement shall be shipped by PeopleSoft FOB PeopleSoft’s
\nmanufacturing facility. Software and Documentation will be deemed accepted upon
\nshipment by PeopleSoft.<\/p>\n
6. TERMS<\/p>\n
(A) LICENSE FEES.<\/p>\n
Service Provider shall pay PeopleSoft the applicable fees as set forth in
\nExhibit A.<\/p>\n
(B) MINIMUM FEES<\/p>\n
Page 6 of 33<\/p>\n
7
\nDuring years 3, 4, 5 and 6 of the term of this Agreement, if applicable, Service
\nProvider shall pay annual fees to PeopleSoft equal to the greater of: (i) the
\ntotal amount of User Fees attributable to its Designated Customers or (ii) [*]
\n(the “Annual Minimum”). During years 7, 8, 9 and 10 of the term of this
\nAgreement, if applicable, Service Provider shall pay annual fees to PeopleSoft
\nequal to the greater of: (i) the total amount of User Fees attributable to its
\nCustomers or (ii) [*] (the “Annual Minimum”). Upon the anniversary of the
\nEffective Date during these aforementioned contract term years, if Service
\nProvider has not paid PeopleSoft the applicable Annual Minimum in User Fees.
\nwithin thirty (30) days of the applicable anniversary of the Effective Date,
\nService Provider shall pay to PeopleSoft the difference between the Annual
\nMinimum and the actual amount of User Fees paid to PeopleSoft in the previous
\ntwelve (12) month period.<\/p>\n
(C) REPORTING.<\/p>\n
Within ten (10) days after the end of each month, Service Provider shall provide
\nPeopleSoft with a written report in a form to be agreed by the Parties within a
\nreasonable time after the Effective Date. Such reports shall, at a minimum,
\ncontain Service Provider information detailing: operational information, service
\ncustomer data and demographics, software modules licensed for service, customer
\nsupport operational information, customer performance information, and all other
\ninformation tracked by Service Provider and needed, in PeopleSoft’s sole, but
\nreasonable discretion, to calculate and verify the Fees owed to PeopleSoft
\nduring such reporting period, including without limitation break down by month,
\nproduct and on a cumulative basis. The Parties agree that they will specify such
\ninformation to be included in such reports on an on-going basis during the term
\nof the Agreement.<\/p>\n
(D) TIMING OF PAYMENTS.<\/p>\n
All User Fees shall be due and payable within thirty (30) days of the end of a
\nmonth and shall be made without deductions based on any taxes or withholdings,
\nexcept where such deduction is based on PeopleSoft’s net income.<\/p>\n
(E) PAYMENT MECHANICS.<\/p>\n
All payments made by Service Provider shall be in United States Dollars and
\ndirected to:<\/p>\n
\n
\nWire Instructions: Lockbox<\/p>\nWells Fargo Bank Regular Mail: PeopleSoft USA, Inc.
\nABA# 121000248 Dept. CH10699
\nCommercial Banking Office Palatine, IL 60055-0699
\nOne Kaiser Plaza, Suite 850
\nOakland, CA 94612 FEDEX: PeopleSoft USA, Inc.
\nFor Account of: PeopleSoft, Inc. c\/o Mellon Financial Svcs
\nAccount # 4103-135729 5505 N. Cumberland, #307
\n(*Please reference PeopleSoft name and invoice Chicago, IL 60656-60656
\non the reference line of the wire) (Pls ref. Invoice # on check)
\n<\/c><\/s><\/table>\n
(F) OVERDUE AMOUNTS AND TAXES.<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n
Page 7 of 33<\/p>\n
8
\nAny amounts not paid within thirty (30) days will be subject to interest accrued
\nat the lower of the prime rate as published by Bank of America, NT & SA (or
\nsuccessor) or twelve percent (12%) p.a. compounded quarterly, which interest
\nwill be immediately due and payable from the due date for payment until the date
\nof actual receipt of the amount in cleared funds by PeopleSoft. In addition to
\nany other payments due under this Agreement, Service Provider agrees to pay,
\nindemnify and hold PeopleSoft harmless from, any sales, use, excise, import or
\nexport, value added or similar tax or duty, and any other tax not based on
\nPeopleSoft’s net income, including penalties and interest and all government
\npermit fees, license fees, customs fees and similar fees levied upon the
\ndelivery of the Software or other deliverables which PeopleSoft may incur in
\nrespect of this Agreement, and any costs associated with the collection or
\nwithholding of any of the foregoing items.<\/p>\n
(G) NEW VERSIONS.<\/p>\n
PeopleSoft may, at its sole discretion, modify the Software. For purposes of
\nthis Agreement, PeopleSoft shall have sole discretion as to whether a product is
\ndeemed to be a new version of an existing Software program to be provided to
\nService Provider under the terms of this Agreement, or a new product. Once a new
\nversion of an existing Software program begins shipping but before PeopleSoft
\nceases support of said prior version in accordance with its Support Services,
\nService Provider shall cease to use the prior version and will remove the prior
\nversions from its servers and destroy such prior version; provided, however,
\nthat in no event shall the foregoing obligate or commit PeopleSoft in any way
\nregarding the availability of new versions.<\/p>\n
7. MARKETING OBLIGATIONS.<\/p>\n
(A) PARTIES OBLIGATIONS.<\/p>\n
(1) Service Provider shall use its all commercially reasonable efforts to
\n promote, market and offer Outsourcing Services to potential Designated
\n Customers.<\/p>\n
(2) Each Party shall promptly refer all sales or outsourcing leads, as
\n applicable, to the other Party’s designated sales contact.<\/p>\n
(3) Upon execution of this Agreement, and thereafter on each anniversary
\n date of the Effective Date of this Agreement, Service Provider shall
\n provide a business plan for the ensuing year containing at least the
\n minimum information specified in the initial business plan. PeopleSoft
\n acknowledges and agrees that such information is Confidential
\n Information (as defined in section 11 below) and agrees to protect such
\n information in accordance with the provisions of section 11.<\/p>\n
(4) Preferred ASP Partner. During the 18 month exclusivity period set forth
\n in Section (3)(b)(2) above, PeopleSoft shall designate Service Provider
\n as its “Preferred ASP Partner” and each Party shall refer to Service
\n Provider as such in all applicable public communications, including
\n announcements, press releases, marketing materials, trade shows and
\n product brochures.<\/p>\n
(5) The Parties agree that during the term of this Agreement, Service
\n Provider or PeopleSoft may periodically issue press releases or other
\n marketing statements indicating that: (i) PeopleSoft is an equity
\n investor in Service Provider, (ii) Mr. Aneel Bhusri is seated on the
\n Service Provider Board of Directors, and (iii) Service Provider has the
\n option to offer Outsourcing Services under a long term agreement between
\n the Parties. The Parties agree that during the eighteen month (18)
\n period of exclusivity set forth in section 3(b) hereof, Service Provider
\n or PeopleSoft may periodically issue press releases or other marketing
\n statements indicating that Service Provider is a Preferred ASP Provider.
\n Notwithstanding anything to the contrary contained in this Agreement, to
\n ensure correct usage of trademarks and accuracy of content, each<\/p>\n
Page 8 of 33<\/p>\n
9
\n Party shall allow the other Party to review all public communications,
\n announcements, press releases, marketing materials and product brochures
\n pertaining to the other Party’s products prior to their release to the
\n public or press, and shall incorporate all changes that the other Party
\n may reasonably request. A Party’s failure to respond to the submission
\n of material with either approval or with any recommended changes within
\n three (3) business days of the other Party’s verified receipt shall be
\n deemed an approval of the submitted material as submitted. Any repeated
\n or willful violations of this Section 7(a)(5) shall be deemed a material
\n breach of this Agreement as set forth in the section entitled
\n TERMINATION FOR CAUSE below, and shall permit termination of this
\n Agreement in accordance with that Section.<\/p>\n
(6) Alliance Governance. PeopleSoft and Service Provider agree to allocate
\n the appropriate resources for ensuring the success and constant
\n improvement of the strategic alliance by establishing an Alliance
\n Steering Committee. With respect to Outsourcing Services transactions,
\n components of the Alliance Steering Committee will include, but not be
\n limited to:<\/p>\n
(a) Equal representation from PeopleSoft and Service Provider
\n management; and<\/p>\n
(b) Annual face-to-face reviews covering the following topics (at a
\n minimum): (1) Market assessment; (2) Client acquisition
\n progress; (3) Pricing evaluation, (4) Implementation progress
\n review; and (5) Review of business terms.<\/p>\n
(B) SALES OBLIGATIONS<\/p>\n
(1) PeopleSoft and Service Provider agree to compensate PeopleSoft sales
\n representatives for Designated Customers reported to PeopleSoft by
\n Service Provider for which Service Provider has executed a Sublicense
\n Agreement and paid to PeopleSoft the Fees as set forth in Exhibit A.
\n This compensation will be consistent with PeopleSoft’s then-current
\n standard sales compensation policies.<\/p>\n
(2) If Service Provider desires to offer Outsourcing Services to a potential
\n customer that is not a Commercial Enterprise because it has annual
\n revenues greater than [*], Service Provider must receive PeopleSoft’s
\n prior written consent to pursue such customer, which request shall be
\n reviewed on a case by case basis Service Provider may continue to
\n provide Outsourcing Services for any Designated Customer that: (i) after
\n the date of signing an Outsourcing Agreement, is no longer a Commercial
\n Enterprise because its annual revenues are greater than [*]; or (ii) is
\n acquired by an acquiring entity, that is not a Commercial Enterprise
\n because it has annual revenues greater than [*]; provided, however, that
\n Service Provider must obtain PeopleSoft’s prior written consent to
\n provide Outsourcing Services to the entity acquiring the Designated
\n Customer, which request shall be reviewed on a case by case basis.
\n PeopleSoft’s General Manager of PeopleSoft Middle Market and
\n PeopleSoft’s Regional Vice President of Middle Market Sales will be
\n jointly responsible for granting any written consents required by this
\n section. PeopleSoft agrees it shall not unreasonably withhold its
\n consent and shall respond to Service Provider with respect to any
\n written consent within four (4) business days of receipt of Service
\n Provider’s notice of a potential customer. PeopleSoft’s failure to
\n respond to the request for consent within this four (4) business day
\n period shall be deemed an approval of Service Provider’s request.<\/p>\n
(3) PeopleSoft and any third parties that have entered into outsourcer
\n alliance agreements with PeopleSoft shall retain the right to continue
\n to market and distribute the Software to the Market Segments. Any
\n potential channel conflict arising therefrom should be brought
\n immediately to the attention of PeopleSoft’s General Manager of
\n PeopleSoft Select for resolution.<\/p>\n
(4) PeopleSoft and Service Provider agree not to market, sell or otherwise
\n distribute the Software or<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.
\n Page 9 of 33<\/p>\n
10
\n Outsourcing Services to existing end user customers of the other Party
\n without the prior written consent of such other Party, which consent
\n shall not be unreasonably withheld.<\/p>\n
(C) USE OF TRADEMARKS.<\/p>\n
(1) Trademarks. PeopleSoft hereby grants to Service Provider and Service
\n Provider hereby grants to PeopleSoft a non-exclusive, limited license to
\n use the PeopleSoft or Service Provider trademarks and logos,
\n respectively and any other applicable trademarks of each Party
\n (collectively, the “Trademarks” and singularly the “PeopleSoft
\n Trademarks” and the “Service Provider Trademarks”) solely on the
\n Software and in advertising and printed materials for the Software or
\n Outsourcing Services in connection with the Software. All
\n representations of the other Party’s Trademarks that a Party intends to
\n use shall be exact copies of those used by the owning Party or shall
\n first be submitted to the owning Party for approval, which shall not be
\n unreasonably withheld, of design, color and other details. Each party
\n acknowledges that utilization of the other Party’s Trademarks will not
\n create in it, nor will it represent it has any right, title or interest
\n in or to the other Party’s Trademarks. Each Party acknowledges the other
\n Party’s exclusive ownership of, or right to use, its own Trademarks and
\n agrees not to do anything to impair or dilute the other Party’s rights
\n in its own Trademarks. Each Party agrees to display the acknowledgment
\n of the other Party’s trademark ownership of the Trademark clearly the
\n first time it is used in any advertising. Service Provider agrees to
\n include the PeopleSoft Trademarks on all copies, advertisements,
\n brochures, manuals, and other appropriate uses made in the promotion,
\n license or use of the Software.<\/p>\n
(2) Quality. Each party agrees that the nature and quality of any products
\n or services it supplies in connection with the Trademarks shall conform
\n to the standards set by the owner of the Trademark. Each Party agrees to
\n cooperate with the other Party in facilitating monitoring and control of
\n the nature and quality of such products and services.<\/p>\n
8. SERVICE PROVIDER OBLIGATIONS<\/p>\n
(A) RECORDS.<\/p>\n
Each Party agrees to maintain a complete, clear and accurate record for three
\n(3) years relating to its use and marketing of the Software and Documentation
\nunder this Agreement in accordance with generally accepted accounting
\nprinciples.<\/p>\n
(B) AUDIT.<\/p>\n
Service Provider shall permit an independent certified public accountant agreed
\nto by Service Provider, who has executed a nondisclosure agreement and who is
\nnot compensated based on the outcome of the audit,, to inspect records
\npertaining solely to the Software and any other materials provided to Service
\nProvider by PeopleSoft to ensure compliance by Service Provider with its payment
\nobligations to PeopleSoft. Any such inspection and audit shall be conducted not
\nmore frequently than annually, during regular business hours, upon reasonable
\nprior written notice, and in such a manner as not to interfere with normal
\nbusiness activities of Service Provider. If an audit reveals that Service
\nProvider has underpaid applicable Fees to PeopleSoft, Service Provider shall be
\ninvoiced directly for such underpaid applicable Fees, which shall be due and
\npayable within thirty (30) days of receipt of such invoice. If the underpaid
\napplicable Fees are in excess of five percent (5%), the Service Provider shall
\npay PeopleSoft’s reasonable costs of conducting the audit. If an audit reveals
\nthat Service Provider has overpaid applicable Fees to PeopleSoft, PeopleSoft
\nshall refund any overpayments within thirty (30) days. At PeopleSoft’s written
\nrequest, not more frequently than annually, Service Provider shall furnish<\/p>\n
Page 10 of 33<\/p>\n
11
\nPeopleSoft with a signed certification verifying that the Software and
\nDocumentation are being used it accordance with the provisions of this
\nAgreement.<\/p>\n
(C) NOTIFICATION OF INFRINGEMENT.<\/p>\n
Service Provider shall promptly inform PeopleSoft by telephone, telex or
\nfacsimile, with written confirmation by mail, if it becomes aware of any facts
\nindicating that any person is infringing any Intellectual Property Rights of
\nPeopleSoft or is engaging in unauthorized distribution of any Software or
\nDocumentation.<\/p>\n
(D) COMPLIANCE WITH LAWS.<\/p>\n
In exercising its rights and performing its obligations under this Agreement,
\neach Party will comply with all applicable international, national and local
\nlaws and regulations. Each Party further agrees not to violate any provisions of
\nthe U.S. Foreign Corrupt Practices Act of 1977 as amended, which generally
\nprohibits the payment of moneys or anything of value to government officials in
\norder to obtain benefits from such government officials or their governments.
\nWithout limiting the generality of the foregoing, neither Party will use or
\nre-export, or permit any person to use or re-export the Software or
\nDocumentation, without all required licenses, and each Party will comply, and
\nwill require all of the Designated Customers to comply, with all applicable
\nexport and import control laws. Each Party will defend, indemnify and hold
\nharmless the other Party and its successors, agents, officers, directors and
\nemployees from and against any violation of any laws or regulations by such
\nParty or any of its agents, officers, directors, employees or customers.<\/p>\n
9. MODIFICATIONS<\/p>\n
The Parties agree and acknowledge, subject to PeopleSoft’s underlying
\nproprietary rights, that Service Provider may create Software modifications for
\na certain Designated Customers at such Designated Customer’s request which
\nmodifications would not compete with any of PeopleSoft’s product offerings
\nsolely and exclusively for Service Providers’ Designated Customers’ internal
\nbusiness operations (“Modifications”). As between Service Provider and
\nPeopleSoft, subject to PeopleSoft’s underlying proprietary rights in PeopleTools
\nand\/or PepperTools, Service Provider shall own all right, title, and interest in
\nand to any such Modification developed by Service Provider and all Intellectual
\nProperty Rights therein and thereto. Service Provider agrees to use such
\nModification only for Service Provider’s internal business operations and\/or the
\ninternal use by its Designated Customers. Further, Service Provider shall not
\nsell, distribute or license such Modification to any other third parties.<\/p>\n
To the extent that Service Provider desires to have PeopleSoft provide support
\nfor such Modification consistent with PeopleSoft’s Support Services, Service
\nProvider will notify PeopleSoft and deliver to PeopleSoft the source and object
\ncode versions of such Modification, and any updates or further modifications
\nthereto, and if PeopleSoft accepts the Modification for the provision of Support
\nServices, PeopleSoft shall then have a perpetual, irrevocable, worldwide,
\nroyalty free license from Service Provider to use, enhance, distribute,
\nsublicense and incorporate such Modification into PeopleSoft’s software
\nproducts.<\/p>\n
If Service Provider elects to undergo development during the term of this
\nAgreement of a technical or functional addition to the Software, designed to
\nimprove functionality and\/or operations, which is not a Modification
\n(“Enhancement”), Service Provider and PeopleSoft shall negotiate in good faith a
\nseparate software development and license agreement which would provide for, at
\na minimum, ownership of and licenses to any such Enhancement as well as
\nintellectual property indemnification with respect to such Enhancements. For the
\navoidance of doubt, all Modifications and Enhancements that include PeopleTools
\nor<\/p>\n
Page 11 of 33<\/p>\n
12
\nPepperTools shall be subject to PeopleSoft’s underlying proprietary interests in
\nPeopleTools and PepperTools.<\/p>\n
10. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS<\/p>\n
(a) Service Provider acknowledges that the structure, organization and code of
\nthe Software are proprietary to PeopleSoft and that PeopleSoft retains exclusive
\nownership of the Software, Documentation and Trademarks Service Provider will
\ntake reasonable measures to protect PeopleSoft’s Intellectual Property Rights in
\nthe Software, Documentation and Trademarks, including such assistance and
\nmeasures as are reasonably requested by PeopleSoft from time to time. Except as
\nprovided herein, Service Provider is not granted any other Intellectual Property
\nRights, or any other rights, franchises or licenses, with respect to the
\nSoftware. Documentation or Trademarks.<\/p>\n
(b) Except as provided in the Section entitled Modifications, any Intellectual
\nProperty Rights developed by Service Provider with PeopleSoft’s direct
\nassistance in connection with the license grants shall be owned by PeopleSoft,
\nand therefore Service Provider irrevocably assigns to PeopleSoft all right,
\ntitle and interest worldwide in and to such Intellectual Property Rights. If
\nService Provider has any rights to such Intellectual Property Rights that cannot
\nbe assigned to PeopleSoft, Service Provider unconditionally and irrevocably
\nwaives the enforcement of such rights, and all claims and causes of action of
\nany kind against PeopleSoft with respect to such rights, and agrees, at
\nPeopleSoft’s request and expense, to consent in writing to and join in any
\naction to enforce such rights. If Service Provider has any rights to such
\nIntellectual Property Rights that cannot be assigned to PeopleSoft or waived by
\nService Provider, Service Provider unconditionally and irrevocably grants to
\nPeopleSoft during the term of such rights, an exclusive, (subject to Service
\nProvider’s own right to use as set forth above) irrevocable, perpetual,
\nworldwide, fully paid and royalty-free license, with rights to sublicense
\nthrough multiple levels of sublicense, to reproduce, create derivative works of,
\ndistribute, publicly perform and publicly display by all means now known or
\nlater developed, such rights.<\/p>\n
(c) Service Provider shall indemnify and hold harmless PeopleSoft from and
\nagainst any suits, actions, losses, damages and other expenses arising out of or
\nin connection with any claim that any Software Modifications, as delivered by
\nService Provider to a Designated Customer infringes or violates a U.S. or
\nCanadian patent, copyright, trademark, trade secret or other proprietary right
\nof any third party; provided PeopleSoft (i) notifies Service Provider in writing
\nwithin ten (10) days of such claim, suit or proceeding, (ii) gives Service
\nProvider the right to control and direct the investigation, preparation, defense
\nand settlement of any claim, suit or proceeding; and (iii) gives assistance and
\nfull cooperation for the defense of same. If PeopleSoft’s use of the
\nModifications is prevented in any way by an injunction or court order because of
\nany claim of infringement or misappropriation, Service Provider shall, at its
\nsole expense, use reasonable commercial efforts to: (a) replace or modify such
\nsoftware so that it is no longer subject to a claim of infringement; or (b)
\nprocure for the benefit of PeopleSoft the right to use such software. Service
\nProvider shall have liability under this Section 10(c) for the claim of
\ninfringement based only on the percentage or portion the infringement claim is
\n(or alleged to be) attributable to such software. The provisions of the
\nforegoing indemnity shall not apply with respect to any instances of alleged
\ninfringement based upon or arising out of the use of such Modification in any
\nmanner for which the Modification was not designed, or for use of Modification
\nfor other than the uses and distributions designated by Service Provider, for
\nuse of any Modification which has been modified by PeopleSoft or any third
\nparty, or for use of any Modification in connection with or in combination with
\nany equipment, devices or software which have not been approved by Service
\nProvider, where such alleged infringement would not have occurred but for the
\nuse of such Modification in connection with or in combination with such
\nequipment devices or software.<\/p>\n
11. CONFIDENTIALITY<\/p>\n
Page 12 of 33<\/p>\n
13
\nDuring the term of this Agreement, Service Provider and PeopleSoft may be
\nexposed to certain information. including know-how and trade secrets, proposed
\nnew products and services, and\/or the business or affairs which are the
\nconfidential and proprietary information of the other Party and not generally
\nknown to the public (herein “Confidential Information”). The Parties agree that
\nduring and after the term of this Agreement, they will not use or disclose any
\nConfidential Information to any third party without the prior written consent of
\nthe other Party. The Parties hereby consent to the disclosure of its
\nConfidential Information to the employees, contractors or consultants of the
\nother Party as is reasonably necessary in order to allow the other Party to
\nperform its obligations under this Agreement and to obtain the benefits hereof,
\nprovided that each such employee, contractor or consultant who will have access
\nto any Confidential Information has executed a non-disclosure agreement which
\nprohibits the unauthorized use or disclosure of any such Confidential
\nInformation. This section shall not apply, or shall cease to apply, to data and
\ninformation supplied by a Party if the other party can establish that such data
\nor information: (a) was already known to it, (b) has come into the public domain
\nwithout a breach of confidence by that party, (c) was received by that party
\nfrom a third party without restrictions on its use in favor of the other party,
\n(d) was developed independently by that party without reliance on or any
\nreference to the other party’s Confidential Information or (e) is required to be
\ndisclosed pursuant to any statutory or regulatory provision or court order,
\nprovided, however, that the party provides notice thereof to the other party,
\ntogether with the statutory or regulatory provision, or court order, on which
\nsuch disclosure, is based, as soon as practicable prior to such disclosure so
\nthat the other party has the opportunity to obtain a protective order or take
\nother protective measures as it may deem necessary with respect to such
\ninformation.<\/p>\n
12. WARRANTY AND INDEMNITY<\/p>\n
(A) SOFTWARE WARRANTY.<\/p>\n
For each copy of Software that Service Provider licenses and receives Support
\nServices hereunder, PeopleSoft warrants to Service Provider that for a period of
\none (1) year from the date on which, such Software is shipped by PeopleSoft that
\nthe Software, unless modified by Service Provider, will perform the functions
\ndescribed in the associated Documentation in all material respects when operated
\non a system which meets the requirements specified by PeopleSoft in the
\nDocumentation. PeopleSoft will undertake to correct any reported error condition
\nin accordance with its technical support policies. Provided that Service
\nProvider gives PeopleSoft written notice of a breach of the foregoing warranty
\nduring the warranty period, Service Provider’s sole and exclusive remedy shall
\nbe for PeopleSoft to correct any reproducible errors pursuant to the Support
\nServices terms and conditions.<\/p>\n
(B) MEDIA WARRANTY.<\/p>\n
PeopleSoft warrants the Software media to be free of defects in materials and
\nworkmanship under normal use for ninety (90) days from the date the Software is
\nshipped by PeopleSoft. In any breach of the foregoing warranty, and provided
\nthat Service Provider gives written notice thereof during the warranty period,
\nService Provider’s sole and exclusive remedy shall be to require PeopleSoft to
\nreplace defective media returned within such warranty period.<\/p>\n
(C) SERVICES WARRANTY.<\/p>\n
PeopleSoft warrants any services provided hereunder shall be performed in a
\nprofessional and workmanlike manner in accordance with generally accepted
\nindustry practices. PeopleSoft’s sole and exclusive obligation pursuant to this
\nwarranty shall be to re-perform any work not in compliance with this warranty
\nthat is brought to its attention by written notice within thirty (30) days after
\nsuch services are performed.<\/p>\n
Page 13 of 33<\/p>\n
14
\n(D) YEAR 2000 WARRANTY<\/p>\n
PeopleSoft warrants for a period beginning with the Effective Date and ending on
\nJanuary 31, 2001 that, provided that Service Provider continuously receives
\nSoftware Support Services through January 31, 2001 and is utilizing a
\nthen-supported release of the Software, the Software shall operate in accordance
\nwith the Documentation with respect to date calculations before, during, and
\nafter the Year 2000 in that it will be Compliant to correctly address and
\noperate accurately: (1) the change of the century in a standard compliant
\nmanner, including both the Year 2000 and beyond; (2) the existence and absence
\nof leap years; and (3) date related operations. Compliant means that the
\nSoftware operates and correctly processes in a manner that: (i) calculations
\nusing dates execute utilizing a four digit year; (ii) the Software
\nfunctionality, including but not limited to, entry, inquiry, maintenance and
\nupdate (whether on-line, batch or otherwise) supports four digit year
\nprocessing; (iii) successful transition to the Year 2000 using the correct
\nsystem date occurs without human intervention; (iv) after the transition to the
\nYear 2000, processing with a four digit year shall occur without human
\nintervention; (v) all leap years shall be calculated correctly; and (vi) correct
\nresults shall be produced in forward and backward date calculation spanning
\ncentury boundaries (there are no years stored as two digits).<\/p>\n
(E) DISCLAIMER OF WARRANTIES.<\/p>\n
EXCEPT AS SET FORTH IN SECTIONS ENTITLED SOFTWARE WARRANTY, MEDIA WARRANTY,
\nSERVICES WARRANTY, YEAR 2000 WARRANTY ABOVE, PEOPLESOFT EXPRESSLY DISCLAIMS TO
\nTHE EXTENT PERMITTED BY LAW ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR
\nSTATUTORY BY ANY TERRITORY OR JURISDICTION, RELATING TO THE SOFTWARE,
\nDOCUMENTATION OR RELATED SERVICES AND FURTHER EXPRESSLY EXCLUDES TO THE EXTENT
\nPERMITTED BY LAW ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR
\nPURPOSE OR MERCHANTABILITY.<\/p>\n
PeopleSoft does not warrant that the Software will operate in combinations other
\nthan as specified in the Documentation or that the operation of the Software
\nwill be uninterrupted or error-free. Pre-production releases of Software are
\ndistributed “AS IS.”<\/p>\n
SERVICE PROVIDER DOES NOT WARRANT ANY OF THE ENHANCEMENTS OR MODIFICATIONS AND
\nEXPRESSLY DISCLAIMS TO THE EXTENT PERMITTED BY LAW ALL WARRANTIES, WHETHER
\nEXPRESS, IMPLIED OR STATUTORY BY ANY TERRITORY OR JURISDICTION, RELATING TO THE
\nENHANCEMENTS, MODIFICATIONS, DOCUMENTATION OR RELATED SERVICES AND FURTHER
\nEXPRESSLY EXCLUDES TO THE EXTENT PERMITTED BY LAW ANY WARRANTY OF
\nNONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
\nMODIFICATIONS AND ENHANCEMENTS, IF ANY, ARE PROVIDED “AS IS.”<\/p>\n
(F) INDEMNITY.<\/p>\n
Subject to the limitations set forth herein below, PeopleSoft shall indemnify
\nand defend Service Provider with respect to all claims, suits, losses,
\nliabilities, damages, costs and expenses (inclusive of Service Provider’s
\nreasonable attorney’s fees) or proceedings with respect to any claim that the
\nSoftware, as designed and licensed to Service Provider in furtherance of this
\nAgreement, infringe upon any U.S. and Canadian patent, trademark or copyright
\ntrade secret or other proprietary right; provided, however, that Service
\nProvider (i) notifies PeopleSoft in writing within ten (10) days of such claim,
\nsuit or proceeding, (ii) gives PeopleSoft the right to control and direct the
\ninvestigation, preparation, defense and settlement of any claim, suit or
\nproceeding; and (iii) gives assistance and full cooperation for the defense of
\nsame and further provided that PeopleSoft’s liability with respect to third
\nparty software embedded in the Software will be limited to the extent PeopleSoft
\nis indemnified<\/p>\n
Page 14 of 33<\/p>\n
15
\nby such third parties. PeopleSoft shall pay any resulting damages, costs and
\nexpenses finally awarded to a third party but PeopleSoft is not liable for
\nsettlements incurred by Service Provider without PeopleSoft’s written
\nauthorization. If such claim, suit or proceeding has occurred or, in
\nPeopleSoft’s opinion, is likely to occur, PeopleSoft may, at its election and
\nexpense, either obtain for Service Provider the right to continue distributing
\nsuch allegedly infringing Software or replace or modify the Software so it is
\nnot infringing.<\/p>\n
(G) EXCLUSIONS.<\/p>\n
The provisions of the foregoing indemnity shall not apply with respect to any
\ninstances of alleged infringement based upon or arising out of the use of such
\nSoftware in any manner for which the Software were not designed, or for use of
\nSoftware for other than the uses and distributions designated by PeopleSoft, for
\nuse of any Software which has been modified by Service Provider or any third
\nparty, or for use of any Software in connection with or in combination with any
\nequipment, devices or software which have not been approved by PeopleSoft, where
\nsuch alleged infringement would not have occurred but for the use of such
\nSoftware in connection with or in combination with such equipment devices or
\nsoftware.<\/p>\n
(H) ENTIRE LIABILITY.<\/p>\n
THE FOREGOING SECTIONS ENTITLED INDEMNITY AND EXCLUSIONS STATE THE SOLE AND
\nEXCLUSIVE REMEDY OF SERVICE PROVIDER AND THE ENTIRE LIABILITY AND OBLIGATION OF
\nPEOPLESOFT WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY
\nINTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE, BUNDLED SOFTWARE, DOCUMENTATION,
\nRELATED SERVICES OR ANY PART THEREOF.<\/p>\n
(I) LIMITATIONS AND DISCLAIMER.<\/p>\n
Service Provider shall make no warranty, express or implied, on behalf of
\nPeopleSoft. Nothing contained in this Agreement shall prejudice the statutory
\nrights of any party dealing as a consumer.<\/p>\n
(J) INDEMNITY BY SERVICE PROVIDER.<\/p>\n
Service Provider agrees to indemnify and hold PeopleSoft harmless from any
\nclaims, suits, proceedings, losses, liabilities, damages, costs and expenses
\n(inclusive of PeopleSoft’s reasonable attorneys’ fees) made against or incurred
\nby PeopleSoft as a result of negligence, misrepresentation, error or omission on
\nthe part of Service Provider or representatives of Service Provider. Service
\nProvider shall be solely responsible for, and shall indemnify and hold
\nPeopleSoft harmless from, any claims, warranties or representations made by
\nService Provider or Service Provider’s employees or agents that differ from the
\nwarranty provided by PeopleSoft in its then current PeopleSoft License
\nAgreement; provided, however, that PeopleSoft (i) notifies Service Provider in
\nwriting within ten (10) days of such claim, suit or proceeding, (ii) gives
\nService Provider the right to control and direct the investigation, preparation,
\ndefense and settlement of any claim suit or proceeding; and (iii) gives
\nassistance and full cooperation for the defense of same. Service Provider shall
\npay any resulting damages, costs and expenses finally awarded to a third party
\nbut Service Provider is not liable for settlements incurred by PeopleSoft
\nwithout Service Provider’s written authorization.<\/p>\n
13. TERM AND TERMINATION<\/p>\n
(A) TERM.<\/p>\n
Page 15 of 33<\/p>\n
16
\nThe term of this Agreement shall commence as of the Effective Date of this
\nAgreement and continue for an initial term of [*] unless sooner terminated as
\nset forth below. This Agreement shall be reviewed annually (the “Annual Review”)
\nby the Parties. The Annual Review shall include such criteria as performance in
\nthe marketplace (as determined by comparison against PeopleSoft’s standard
\nsupport, quality and referencability guidelines, which guidelines shall be made
\nreasonably available to Service Provider) and a review of the business terms
\nherein. This Agreement will automatically renew for eight (8) successive one (1)
\nyear terms unless Service Provider gives the other Party written notice of its
\nintent to allow the Agreement to terminate at its expiration. Such notice shall
\nbe given not less than twelve (12) months prior to the end of the Agreement’s
\nterm.<\/p>\n
(B) TERMINATION WITH CAUSE.<\/p>\n
Any of the following shall constitute an event of default:<\/p>\n
(1) Either Party fails to perform any of its material obligations
\n under this Agreement and such failure remains uncured for
\n forty-five (45) days after receipt of written notice thereof; or<\/p>\n
(2) Either Party ceases to conduct business, becomes or is declared
\n insolvent or bankrupt, is the subject of any proceeding relating
\n to its liquidation or insolvency which is not dismissed within
\n ninety (90) days or makes an assignment for the benefit or its
\n creditors.<\/p>\n
If an event of default occurs, the non-defaulting Party in addition to any other
\nrights available to it under law or equity, may withhold its performance
\nhereunder or may terminate this Agreement and the licenses granted hereunder by
\nwritten notice to the defaulting Party. Unless otherwise provided in this
\nAgreement, remedies shall be cumulative and there shall be no obligation to
\nexercise a particular remedy.<\/p>\n
(C) RIGHTS UPON TERMINATION.<\/p>\n
Upon termination of this Agreement pursuant to Section 13(b) or by expiration of
\nthis Agreement, all Service Provider’s rights to market Outsourcing Services and
\nuse the Software as set forth in this Agreement shall cease, except that Service
\nProvider shall be permitted to continue to use the Software solely to fulfill
\nexisting contractual obligations for the greater of: (a) eighteen (18) months;
\nor (b) PeopleSoft’s then current standard Support Services cycle for supporting
\nthe then-current release (the “Migration Period”) and PeopleSoft agrees and
\nacknowledges its obligations to honor such Sublicense Agreements for such
\nMigration Period. The intent of this section is not to force Designated
\nCustomers to migrate from Service Provider’s support in a manner that unduly
\ndisrupts a Designated Customer’s business operations, rather the intent of this
\nsection to dramatically limit the likelihood that Service Provider will take
\nactions that materially breach this Agreement and then fail to satisfactorily
\ncure the material breach in a timely manner.<\/p>\n
(D) PAYMENT UPON TERMINATION.<\/p>\n
If Service Provider terminates this Agreement, the payment date of all moneys
\ndue to PeopleSoft shall automatically be accelerated so that they shall become
\ndue and payable on the effective date of termination, even if longer terms had
\nbeen provided previously; provided, however, that in no event shall the
\nforegoing obligate Service Provider to accelerate and make payments to
\nPeopleSoft for obligations beyond the end of the Migration Period. If PeopleSoft
\nterminates this Agreement, Service Provider shall immediately pay PeopleSoft all
\npayments due as of the date of termination.<\/p>\n
(E) LIABILITY UPON TERMINATION.<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n
Page 16 of 33<\/p>\n
17
\nADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. EXCEPT FOR DAMAGES
\nINCURRED BY SERVICE PROVIDER UNDER SECTION 12(f), AND EXCEPT FOR DAMAGES
\nINCURRED BY PEOPLESOFT UNDER SECTION 10(c), OR SECTION 2(B), IN NO EVENT WILL
\nEITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY CLAIMS
\nARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID TO
\nPEOPLESOFT BY SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.<\/p>\n
16. NON-SOLICITATION<\/p>\n
During the Term and for a period of one year subsequent to the expiration or
\ntermination of this Agreement, neither Service Provider nor PeopleSoft shall,
\nwithout the prior written consent of the other engage for recruitment, either
\ndirectly or indirectly as an employee, consultant, or independent contractor any
\nof the personnel of the other who is directly involved in the provision of
\nOutsourcing Services or the support of such Outsourcing Services at the time of
\nsuch expiration or termination; provided, however, that the foregoing
\nprohibitions of this section shall apply only to recruitment conducted or
\ndirected by personnel of Service Provider or PeopleSoft who have directly or
\nindirectly acquired knowledge of recruitment prospects by reason of such
\nprospects’ involvement in such activities; and provided further that the sole,
\nexclusive remedy for violations of this provision shall be monetary and shall be
\nequal to 20% of any such person’s annual salary plus twenty percent (20%) of any
\nguaranteed bonus.<\/p>\n
17. GENERAL.<\/p>\n
(A) NOTICES.<\/p>\n
All notices or reports permitted or required under this Agreement shall be in
\nwriting and shall be by personal delivery, telegram, telex, telecopier,
\nfacsimile transmission, or by certified or registered mail, return receipt
\nrequested, and shall be deemed given upon personal delivery, five (5) days after
\ndeposit in the mail, or upon acknowledgment of receipt of electronic
\ntransmission. Notices shall be sent to the addresses set forth at the beginning
\nof this Agreement or such other address as either Party may specify in writing.
\nNotices shall be sent to the person bearing the title set forth below the
\nParty’s signature to this Agreement.<\/p>\n
(B) FORCE MAJEURE.<\/p>\n
Neither Party shall be liable hereunder by reason of any failure or delay in the
\nperformance of its obligations hereunder (except for the payment of money) on
\naccount of strikes, shortages, riots, insurrection, fires, flood, storm,
\nexplosions, acts of God, war governmental action, labor conditions, earthquakes,
\nmaterial shortages or any other cause which is beyond the reasonable control of
\nsuch Party; provided however, that problems resulting from PeopleSoft’s failure
\nto be Year 2000 Compliant shall not be deemed to be a force majeure event.<\/p>\n
(C) ASSIGNMENT.<\/p>\n
Service Provider may not assign this Agreement, delegate any duty or assign any
\nright hereunder without the prior written consent of PeopleSoft, which shall not
\nbe unreasonably withheld or delayed. Any assignment in violation of this section
\nshall be void and of no effect.<\/p>\n
(D) WAIVER.<\/p>\n
Page 18 of 33<\/p>\n
18
\nThe failure of either Party to require performance by the other Party of any
\nprovision hereof shall not affect the full right to require such performance at
\nany time thereafter; nor shall the waiver by either Party of a breach of any
\nprovision hereof be taken or held to be a waiver of the provision itself.<\/p>\n
(E) SEVERABILITY.<\/p>\n
In the event that any provision of this Agreement shall be unenforceable or
\ninvalid under any applicable law or be so held by applicable court decision,
\nsuch unenforceability or invalidity shall not render this Agreement
\nunenforceable or invalid as a whole and, in such event, any such provision shall
\nbe changed and interpreted so as to best accomplish the objectives of such
\nunenforceable or intended provision within the limits of applicable law or
\napplicable court decisions.<\/p>\n
(F) INJUNCTIVE RELIEF.<\/p>\n
It is understood and agreed that notwithstanding any other provisions of this
\nAgreement, a breach by Service Provider of Section 2 (“License Grants”) or by
\neither Party of Section 11 (“Confidentiality”), may cause either Party
\nirreparable damage for which recovery of money damages would be inadequate, and
\nthat, in addition to any and all remedies available at law, either Party shall
\nbe entitled to seek timely injunctive relief to protect its rights under this
\nAgreement.<\/p>\n
(G) CONTROLLING LAW.<\/p>\n
This Agreement shall be governed in all respects by the laws of the United
\nStates of America and the State of California as such laws are applied to
\nagreements entered into and to be performed entirely within California between
\nCalifornia residents. The Parties agree that the United Nations Convention on
\nContracts for the International Sale of Goods is specifically excluded from
\napplication to this Agreement.<\/p>\n
(H) NO AGENCY.<\/p>\n
Nothing contained herein shall be construed as creating any agency, partnership
\nor other form of joint enterprise between the Parties.<\/p>\n
(I) HEADINGS.<\/p>\n
The section headings appearing in this Agreement are inserted only as a matter
\nof convenience and in no way define, limit, construe or describe the scope or
\nextent of such section or in any way affect such section.<\/p>\n
(J) WARRANTY.<\/p>\n
Each Party warrants that it has full power and authority to enter into and
\nperform this Agreement, and that the person signing this Agreement on such
\nParty’s behalf has been duly authorized and empowered to enter into this
\nAgreement. Each Party further acknowledges that it has read this Agreement,
\nunderstands it and agrees to be bound by it.<\/p>\n
(K) CHOICE OF FORUM AND VENUE.<\/p>\n
The Superior Court of Alameda County and the United States District Court for
\nthe Northern District of California shall together have non-exclusive
\njurisdiction over disputes under this Agreement. Service Provider consents to
\npersonal jurisdiction of the above courts.<\/p>\n
Page 19 of 33<\/p>\n
19
\n(L) CONFIDENTIALITY OF AGREEMENT.<\/p>\n
Neither Party will disclose any terms, conditions, or pricing of this Agreement,
\nexcept: (i) pursuant to a mutually agreeable press release; (ii) to its
\naccountants, legal, business, financial advisors and\/or potential investors, all
\nunder non-disclosure; or (iii) as otherwise required by law.<\/p>\n
(M) COUNTERPARTS.<\/p>\n
This Agreement may be executed simultaneously in two or more counterparts, each
\nof which will be considered an original, but all of which together will
\nconstitute one and the same instrument.<\/p>\n
(N) DISCLAIMER.<\/p>\n
The Software is not specifically developed or licensed for use in any nuclear,
\naviation, mass transit or medical application or in any other inherently
\ndangerous applications. Service Provider agrees that PeopleSoft and its
\nsuppliers shall not be liable for any claims or damages arising from Service
\nProvider’s use of the Software for such applications. Service Provider agrees to
\nindemnify and hold PeopleSoft harmless from any claims for losses, costs,
\ndamages or liability arising out of or in connection with its use of the
\nSoftware in such applications.<\/p>\n
(O) ENTIRE AGREEMENT.<\/p>\n
This Agreement, together with any schedules, exhibits and addenda completely and
\nexclusively states the agreement of the Parties regarding Service Provider’s
\nrights to provide Outsourcing Services. In the event of any conflict between the
\nterms of this Agreement and an addendum hereto, the terms of the addendum shall
\ncontrol with respect to the subject matter of the addendum only. This Agreement
\nsupersedes, and its terms govern, all prior proposals, agreements or other
\ncommunications between the Parties, oral or written, regarding the subject
\nmatter of this Agreement. The Parties agree that this Agreement shall replace
\nand supersede in its entirety the Prior Agreement. This Agreement shall not be
\nmodified except by a subsequently dated written amendment signed on behalf of
\nPeopleSoft and Service Provider by their duly authorized representatives, and
\nany purchase order or other document purporting to supplement the provisions
\nhereof shall be void.<\/p>\n
In Witness Whereof, the Parties hereto have caused this Agreement to be executed
\nby their duly authorized representatives as of the Effective Date.<\/p>\n
Corio, Inc. PeopleSoft USA, Inc.<\/p>\n
Authorized Signature Authorized Signature<\/p>\n
\/s\/ Signature Illegible \/s\/ Signature Illegible<\/p>\n
Printed Name Jonathan Printed Name Ken Horowitz<\/p>\n
Title EVP & ?? Title Vice President<\/p>\n
Page 20 of 33<\/p>\n
20
\n EXHIBIT A<\/p>\n
FEES AND USE<\/p>\n
1. ASP MONTHLY USER FEES.<\/p>\n
For each Active User or Casual User of each Designated Customer, Service
\nProvider shall pay to PeopleSoft the monthly per-user fee set forth below:<\/p>\n
1a. Active Users. During the first [*] of the term of the Agreement, Service
\nProvider shall pay to PeopleSoft a monthly Active User Fee in the amount of [*]
\nper Active User, unless otherwise mutually agreed. Following the [*] after the
\nEffective Date, and throughout the remaining months of the term of this
\nAgreement, Service Provider shall pay to PeopleSoft a monthly Active User Fee
\nnot to exceed [*] per Active User unless otherwise mutually agreed.<\/p>\n
1b. Casual Users. During the term of the Agreement, Service Provider shall
\npay to PeopleSoft a monthly Casual User Fee not to exceed [*] per Casual User,
\nunless otherwise mutually agreed.<\/p>\n
2. TECHNOLOGY ACCESS FEE.<\/p>\n
In consideration for the market access, distribution, Preferred ASP Partner
\nstatus and bundled back-end user services provided by PeopleSoft to Service
\nProvider under the Agreement, Service Provider shall pay to PeopleSoft a
\nnon-refundable, non-cancelable aggregate fee of [*], which shall be payable on a
\nPeopleSoft fiscal quarterly basis for the term of the [*] exclusivity period set
\nforth in section 3(b). In the event that the exclusivity period is terminated
\npursuant to section 3(b) prior to the expiration of such [*] exclusivity period,
\nService Provider shall not be responsible for payments hereunder for fees
\npayable for periods after such termination; provided, however that Service
\nProvider shall continue to be responsible to pay PeopleSoft all fees payable up
\nto and including such termination date, including any prorata payment, as
\napplicable, for the quarter in which such termination occurs.<\/p>\n
3. USER FEE ADJUSTMENTS.<\/p>\n
3a. Review. PeopleSoft and Service Provider agree to re-evaluate the User
\nFees on no less than an annual basis to ensure the User Fees and pricing model
\nare competitive in the market and consistent with changes in PeopleSoft pricing.
\nAny changes shall be agreed to in writing by the Parties.<\/p>\n
3b. Effect of PeopleSoft Increases. PeopleSoft agrees that in no event shall
\na User Fee increase effect any existing Designated Customers. Any User Fee
\nincreases will only be applied to new Designated Customers as of the effective
\ndate of the User Fee increase.<\/p>\n
3c. Effect of Service Provider Increases. Service Provider shall
\nproportionately increase the fee payable to PeopleSoft in situations whereby
\nService Provider has increased the pricing of the User Fees at any time after
\nexecution of an Outsourcing Agreement with a Designated Customer (whether in
\naccordance with the terms of such Outsourcing Agreement or by amendment of such
\nOutsourcing Agreement) due to an increase in the application component. In such
\nsituations, Service Provider shall pay PeopleSoft the pro-rata share increase
\nfor<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n
Page 21 of 33<\/p>\n
21
\nthe Software increase.<\/p>\n
For the avoidance of doubt, the Parties agree that any renewals of any
\nOutsourcing Agreement with a Designated Customer shall be priced at then current
\nUser Fees.<\/p>\n
4. TRAINING FEES.<\/p>\n
PeopleSoft shall provide up to two hundred (200) standard training units at no
\nadditional fees to Service Provider for the first fifteen months after the
\nEffective Date. Thereafter, Service Provider shall receive Software training at
\na rate of $350 per standard unit for the first year after the Effective Date.
\nFor each year thereafter, PeopleSoft shall have the discretion to amend the rate
\napplicable for such year; provided the new rates are consistent with the changes
\nto PeopleSoft’s standard training fees.<\/p>\n
5. PROFESSIONAL SERVICES GROUP.<\/p>\n
Service Provider shall receive services from Professional Service Group at a [*]
\nprice reduction from the rates set forth in Addendum 1 hereto for the first
\nfifteen months after the Effective Date. For each year thereafter, PeopleSoft
\nshall have the discretion to amend the rates applicable for such year.<\/p>\n
6. DEFINITIONS.<\/p>\n
The following definition shall apply to the Agreement and all exhibits thereto.<\/p>\n
“SOFTWARE” consists of the following products:<\/p>\n
PEOPLESOFT HRMS
\n HUMAN RESOURCES
\n PAYROLL
\n BENEFITS ADMINISTRATION
\n FSA ADMINISTRATION
\n PAYROLL INTERFACE
\n TIME AND LABOR
\n EXPENSES (FINANCIALS PRODUCT)
\nPEOPLESOFT FINANCIALS
\n GENERAL LEDGER
\n RECEIVABLES
\n PAYABLES
\n ASSET MANAGEMENT
\n PROJECTS
\n BUDGETS (EMBEDDED ESSBASE IN 7.5)
\n TREASURY – CASH MANAGEMENT
\nPEOPLESOFT DISTRIBUTION
\n ORDER MANAGEMENT
\n REMOTE ORDER ENTRY
\n ORDER PROMISING
\n BILLING
\n PURCHASING
\n INVENTORY
\n ENTERPRISE PLANNING
\n PRODUCT CONFIGURATOR
\nPEOPLESOFT MANUFACTURING
\n ENGINEERING
\n BILLS AND ROUTINGS<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n
Page 22 of 33<\/p>\n
22
\n QUALITY
\n PRODUCTION MANAGEMENT
\n COST MANAGEMENT
\nPRODUCTION PLANNING<\/p>\n
ACCEPTED BY: ACCEPTED BY:<\/p>\n
CORIO, INC. PEOPLESOFT USA, INC.<\/p>\n
\/s\/ Signature Illegible \/s\/ Signature Illegible
\n————————— ————————–
\nAuthorized Signature Authorized Signature<\/p>\n
Jonathan Lee, EVP Ken Horowitz Vice President
\n————————— ————————–
\nPrinted Name and Title Printed Name and Title<\/p>\n
Page 23 of 33<\/p>\n
23
\n Addendum 1<\/p>\n
PSG Rates<\/p>\n
\n\n CONSULTING RESOURCE LEVEL STANDARD HOURLY RATE
\n
\n Associate Consultant $150.00<\/p>\n Consultant $190.00<\/p>\n
Senior Consultant $225.00<\/p>\n
Project Manager $250.00<\/p>\n
Practice Manager $250.00<\/p>\n
Process\/Product Specialist $250.00<\/p>\n
Systems Engineer $250.00<\/p>\n
Senior Project Manager $275.00<\/p>\n
Senior Systems Engineer $275.00<\/p>\n
Enterprise Solutions Specialist $275.00<\/p>\n
Enterprise Implementation Manager $300.00
\n<\/c><\/s><\/caption>\n<\/table>\n
ACCEPTED BY: ACCEPTED BY:
\nCORIO, INC. PEOPLESOFT USA, INC.<\/p>\n
\/s\/ Signature Illegible \/s\/ Signature Illegible
\n————————— ————————–
\nAuthorized Signature Authorized Signature<\/p>\n
Jonathan Lee, EVP Ken Horowitz – Vice President
\n————————— ————————–
\nPrinted Name and Title Printed Name and Title<\/p>\n
Page 24 of 33<\/p>\n
24
\n EXHIBIT B<\/p>\n
SOFTWARE SUPPORT SERVICES TERMS AND CONDITIONS<\/p>\n
Software Support Services Terms and Conditions (“SUPPORT SERVICES”) are
\nreferenced in and incorporated into the Outsourcer Alliance Agreement
\n(“Agreement”) between PeopleSoft and Corio, Inc. (“Service Provider”).
\nCapitalized terms have the same meaning as they do in the Agreement. Upon
\nreasonable notice, PeopleSoft reserves the right to modify the terms and
\nconditions of Support Services on an annual basis to reflect current market
\nconditions.<\/p>\n
1. COVERAGE<\/p>\n
PeopleSoft provides Service Provider with Support Services for the Software for
\nthe Outsourcing Center at __________ in exchange for payment of the applicable
\nSupport Services fees. Only designated Service Provider employees may contact
\nPeopleSoft for the provision of Support Services in exchange for payment of the
\napplicable Support Services fees.<\/p>\n
2. SOFTWARE MAINTENANCE<\/p>\n
PeopleSoft will periodically issue the following technical and functional
\nimprovements to Software:<\/p>\n
(1) Fixes to Errors; (2) Updates; and (3) Enhancements<\/p>\n
3. PRIORITY LEVEL OF ERRORS<\/p>\n
PeopleSoft shall address Errors in accordance with the following protocols:<\/p>\n
Priority 1-Critical Level: PeopleSoft promptly: (1) designates PeopleSoft
\nspecialist(s) to correct Error; (2) provides expanded communication on
\ncorrection status; and (3) escalates troubleshooting a Workaround or Fix.<\/p>\n
Priority 2-Urgent Level: PeopleSoft promptly: (1) designates PeopleSoft
\nspecialist(s) to correct Error; (2) provides ongoing communication on correction
\nstatus; and (3) initiates troubleshooting a Workaround or Fix.<\/p>\n
Priority 3-Standard Level: PeopleSoft: (1) assigns PeopleSoft specialist(s) to
\ncommence correction of Error; and (2) exercises all commercially reasonable
\nefforts to include the Fix for Error in the next Update.<\/p>\n
Priority 4-Base Level: PeopleSoft: (1) assigns Error to case management and
\ntracking; and (2) may include the Fix for Error in the next Update.<\/p>\n
4. TELEPHONE SUPPORT<\/p>\n
PeopleSoft provides telephone support concerning Software installation and use.
\nExcept for designated holidays, PeopleSoft’s standard Global Support Center
\ntelephone hours are Monday through Friday, 4:00 a.m. to 6:30 p.m., Pacific Time.
\nConsult PeopleSoft’s then-current Customer Services Guide for Global Support
\nCenter locations and local operating hours. Telephone Support is also available
\n24-hours-a-day, 7-days-a-week for in-production customers who need to resolve
\ncritical production problems outside of standard support hours.<\/p>\n
5. PEOPLESOFT CUSTOMER CONNECTION SM<\/p>\n
a. PeopleSoft Customer Connection is an on-line, self-service system that
\n features postings by PeopleSoft and customers regarding technical and
\n non-technical topics of interest. Service Provider may access PeopleSoft
\n Customer Connection via Internet access at its own expense.<\/p>\n
b. Software Updates, Enhancements, and Fixes may be delivered to Service
\n Provider through PeopleSoft Customer Connection, or by mail from
\n PeopleSoft on Service Provider’s written request. PeopleSoft information
\n posted to Customer Connection is confidential and proprietary and shall
\n only be used in<\/p>\n
Page 25 of 33<\/p>\n
25
\n connection with Service Provider’s use of the Software and informational
\n communications with other PeopleSoft Customer Connection participants.
\n PeopleSoft shall have the right to publish, modify and distribute any
\n information or software provided by Service Provider to Customer
\n Connection in all languages. Service Provider shall not use PeopleSoft
\n Customer Connection for advertising or public relations purposes and
\n shall only submit information to PeopleSoft Customer Connection that
\n Service Provider owns or has permission to use in such manner.<\/p>\n
c. To diminish exposure to software viruses, PeopleSoft tests and scans all
\n information entered by PeopleSoft for software viruses prior to
\n submitting it to PeopleSoft Customer Connection. Service Provider shall
\n also use a reliable virus detection system on any software or
\n information posted to PeopleSoft Customer Connection, utilize back-up
\n procedures, monitor access to PeopleSoft Customer Connection, promptly
\n notify PeopleSoft of any virus detected within Service Provider’s
\n systems associated with PeopleSoft Customer Connection and generally
\n exercise a reasonable degree of caution when utilizing information from
\n PeopleSoft Customer Connection. PeopleSoft does not warrant that
\n PeopleSoft Customer Connection will operate without interruption or
\n without errors. PeopleSoft reserves the right to modify or suspend
\n PeopleSoft Customer Connection service in connection with PeopleSoft’s
\n provision of Support Services. PeopleSoft assumes no responsibility for
\n anything posted by anyone other than PeopleSoft, including, but not
\n limited to, information about PeopleSoft software, modification code, or
\n portions thereof.<\/p>\n
6. FEES<\/p>\n
PeopleSoft shall provide Service Provider with Support Services for the Software
\nfor the Outsourcing Center set forth in the section 1 above in consideration of
\nService Provider’s payment to PeopleSoft of the applicable fees in Exhibit A. In
\nthe event Service Provider elects to receive Support Services outside of the
\nscope of the foregoing, Service Provider shall pay PeopleSoft fees to be agreed
\nupon by the Parties. Unless Service Provider has provided proof of tax-exempt
\nstatus, Service Provider shall be responsible for all taxes associated with
\npayment for Support Services, exclusive of taxes based on PeopleSoft’s income.
\nIn the event Service Provider elects not to renew Support Services and
\nsubsequently request Support Services, PeopleSoft shall reinstate Support
\nServices only after Service Provider pays PeopleSoft the annual then current fee
\nplus all cumulative fees that would have been payable had Service Provider not
\nsuspended Support Services.<\/p>\n
7. TERM AND TERMINATION<\/p>\n
Unless otherwise expressly set forth in the Agreement or Schedule, Support
\nServices shall be provided for a period of [*] from the Schedule Effective Date,
\nand shall be extended each additional year unless terminated by either Party.
\nEach one (1) year term shall commence on the anniversary of the Schedule
\nEffective Date.<\/p>\n
Either Party may terminate the Support Services provisions at the end of any
\nsupport term by giving the other Party written notice at least ninety (90) days
\nprior to the end of the term.<\/p>\n
In the event Service Provider fails to make payment pursuant to the section 6 of
\nthe Agreement, or in the event Service Provider breaches the Support Services
\nprovisions and such breach has not been cured within thirty (30) days of written
\nreceipt of notice of breach, PeopleSoft may suspend or cancel Support Services.<\/p>\n
8. EXCLUSIONS<\/p>\n
PeopleSoft shall have no obligation to support:<\/p>\n
a. Substantially altered, damaged or modified Software;<\/p>\n
b. Software that is not the then-current release, or a Previous
\n Sequential Release;<\/p>\n
Page 26 of 33<\/p>\n
26
\n c. Errors caused by Service Provider’s negligence, hardware
\n malfunction, or other causes beyond PeopleSoft’s reasonable
\n control;<\/p>\n
d. Software installed in a hardware or operating environment not
\n supported by PeopleSoft; and<\/p>\n
e. Third party software not licensed through PeopleSoft.<\/p>\n
9. GENERAL<\/p>\n
All Updates, Enhancements and Fixes provided to Service Provider are subject to
\nthe terms and conditions of the Agreement. PeopleSoft may modify Support
\nServices on an annual basis to reflect current market condition upon reasonable
\nnotice.<\/p>\n
10. DEFINITIONS<\/p>\n
“ENHANCEMENT” means a technical or functional addition to the Software delivered
\nwith a new Software release to improve functionality and\/or operations.
\nEnhancements are delivered to Service Provider only on an if and when available
\nbasis.<\/p>\n
“ERROR” means a Software malfunction that degrades the use of the Software.<\/p>\n
“FIX” means the repair or replacement of source, object or executable code
\nSoftware versions to remedy an Error.<\/p>\n
“PREVIOUS SEQUENTIAL RELEASE” means a Software release for a particular
\noperating environment that has been replaced by a subsequent Software release in
\nthe same operating environment. PeopleSoft will support a Previous Sequential
\nRelease for a period of eighteen (18) months after release of the subsequent
\nrelease. Multiple Previous Sequential Releases may be supported at any given
\ntime.<\/p>\n
“PRIORITY 1” means an Error that renders the Software inoperative or causes the
\nSoftware to fail catastrophically.<\/p>\n
“PRIORITY 2” means an Error that affects performance of the Software and
\ndegrades Service Provider’s use of the Software.<\/p>\n
“PRIORITY 3” means an Error that affects performance of the Software, but does
\nnot degrade Service Provider’s use of the Software.<\/p>\n
“PRIORITY 4” means an Error that causes only a minor impact on the use of the
\nSoftware.<\/p>\n
“UPDATE” means all published revisions to the Documentation and one (1) copy of
\nthe new Software release not designated by PeopleSoft as new products or
\nfunctionality for which it charges separately. Updates are delivered to Service
\nProvider only on an if and when available basis.<\/p>\n
“WORKAROUND” means a change in the procedures followed or data supplied to avoid
\nan Error without significantly impairing Software performance.<\/p>\n
Page 27 of 33<\/p>\n
27
\n EXHIBIT C<\/p>\n
FORM OF ALLIANCE PARTNER LICENSE AGREEMENT<\/p>\n
This Software License and Services Agreement (“Agreement”) is made as of the
\nEffective Date, by and between the PeopleSoft entity (“PeopleSoft”) and the
\nLicensee entity (“Licensee”) set forth below.<\/p>\n
1. LICENSE<\/p>\n
1.1 PeopleSoft grants Licensee a non-exclusive, non-transferable license to
\nuse the Software during the Term on one or more servers at Licensee’s facilities
\nlocated in the Named Country, solely for Licensee’s internal data processing
\noperations (including PeopleSoft’s extended enterprise capabilities) per the
\nOperating Metrics specified in the Schedule(s). Licensee shall use any third
\nparty Software products or modules provided by PeopleSoft solely with PeopleSoft
\nSoftware. Licensee may modify or merge the Software with other software,
\nprovided, however, that no modification, however extensive, shall diminish
\nPeopleSoft’s title or interest in the Software or constitute a waiver of moral
\nrights in the Software.<\/p>\n
1.2 PeopleSoft grants Licensee the right, solely for Licensee’s internal
\ndata processing operations, to permit Software access to a Designate, provided
\nsuch access does not include permitting Designate to copy the Software or access
\nthe source code.<\/p>\n
1.3 PeopleSoft shall provide Licensee with the number of Software copies as
\nspecified in the Schedule. Licensee may make a reasonable number of copies of
\nthe Software solely for Licensee’s internal use, including back-up and archive
\npurposes, in accordance with the terms of this Agreement, provided all copyright
\nand proprietary notices are reproduced.<\/p>\n
2. LICENSE EXCLUSIONS<\/p>\n
2.1 Except as otherwise provided here, Licensee shall not:<\/p>\n
a. Cause or permit reverse compilation or assembly of all or any portion of
\n the Software;<\/p>\n
b. Distribute, disclose, market, rent, lease or transfer to any third party
\n any portion of the Software (including Tools) or use the Software in any
\n service bureau arrangement, facility management, or third party
\n training;<\/p>\n
c. Disclose the results of Software performance benchmarks to any third
\n party without PeopleSoft’s prior written consent;<\/p>\n
d. Transfer the Software to a different database platform or operating
\n system, or use the Software outside the Named Country, without Notice to
\n PeopleSoft and payment of any additional fees that may be due;<\/p>\n
e. Export Software in violation of U.S. Dept. of Commerce, Canadian, or
\n applicable export administration regulations; or,<\/p>\n
f. Use Tools except with the licensed PeopleSoft applications.<\/p>\n
2.2 No license, right, or interest in any PeopleSoft trademark, trade name,
\n or service mark is granted.<\/p>\n
3. FEES AND PAYMENT<\/p>\n
3.1 Licensee shall pay PeopleSoft the fees as specified in each Schedule.
\nUnless Licensee provides PeopleSoft with a valid tax exemption or direct pay
\ncertificate, Licensee is responsible for all taxes, duties and customs fees
\nconcerning the Software and\/or services, excluding taxes based on PeopleSoft’s
\nincome. Overdue payments shall be subject to a finance charge equal to the
\nlesser of twelve percent per year or the maximum rate allowed under applicable
\nlaw.<\/p>\n
3.2 Software license fees are based on Operating Metrics. Expansion of
\nLicensee’s level of use requires payment of additional fees to PeopleSoft, as
\nset forth in the Schedule.<\/p>\n
3.4 PeopleSoft shall provide Licensee with annual statements of its
\nOperating Metrics. Licensee agrees to certify its then-current Operating Metrics
\nto PeopleSoft. If Licensee’s then-current Operating Metrics are such that an
\nadditional fee is required for Licensee’s then-current level of use, PeopleSoft
\nshall invoice Licensee for the applicable fee. Any failure to pay such
\napplicable fee and continued utilization of the Software above or beyond the
\nlicensed level of use is unauthorized.<\/p>\n
4. TITLE AND PROTECTION<\/p>\n
4.1 PeopleSoft (or its third-party providers) retains title to all portions
\nof the Software, derivative works, and any copies thereof. If Licensee creates a
\nSoftware modification (“Licensee Modification”), Licensee shall have a
\nperpetual, royalty-free license to use Licensee Modification in accordance with
\nthis Agreement. Licensee may, at its option, disclose Licensee Modification to
\nPeopleSoft or PeopleSoft customers through PeopleSoft Customer Connection.
\nPeopleSoft shall have no obligation to support Licensee Modification.<\/p>\n
4.2 Title to Software physical media vests in Licensee upon delivery.
\nPeopleSoft represents that Software contains valuable proprietary information.
\nSoftware has been developed at private expense and is provided to U.S.
\nGovernment agencies\/ subcontractors subject to applicable restrictions of FAR
\n52.227-19(c) or DFAR 227.7202-32, for defense-related agencies.<\/p>\n
The parties’ authorized representatives have signed this Agreement:<\/p>\n
[LICENSEE] PEOPLESOFT USA, INC.
\nADDRESS: ADDRESS:<\/p>\n
\/s\/ Signature Illegible \/s\/ Signature Illegible<\/p>\n
Authorized Signature Authorized Signature
\n————————— ————————–<\/p>\n
————————— ————————–
\nPrinted Name and Title Printed Name and Title<\/p>\n
Page 28 of 33<\/p>\n
28
\n PSFT LEGAL<\/p>\n
EFFECTIVE DATE: [MONTH] [DAY], 1998 APPROVAL:<\/p>\n
Page 29 of 4<\/p>\n
29
\n5. INDEMNITY<\/p>\n
PeopleSoft shall indemnify and defend Licensee against any claims that the
\nSoftware infringes any United States or Canadian patent or copyright, provided
\nthat PeopleSoft is given prompt Notice of such claim and is given information,
\nreasonable assistance, and sole authority to defend or settle the claim. In the
\ndefense or settlement of the claim, PeopleSoft may, in its reasonable judgment
\nand at its option and expense: (1) obtain for Licensee the right to continue
\nusing the Software; or (2) replace or modify the Software so that it becomes
\nnoninfringing while giving equivalent performance. PeopleSoft shall have no
\nliability to indemnify or defend Licensee to the extent the alleged infringement
\nis based on any Software: (a) modification by anyone other than PeopleSoft; or
\n(b) use other than in accordance with the Documentation or this Agreement.<\/p>\n
6. DEFAULT AND TERMINATION<\/p>\n
6.1 Default is either party’s failure to comply with any material obligation
\nof this Agreement where such non-compliance remains uncured for more than 30
\ndays after Notice.<\/p>\n
6.2 If a default occurs, the nondefaulting party, in addition to any other
\nrights available to it under law or equity, may terminate this Agreement and all
\nlicenses granted here by giving Notice to the defaulting party. Except as
\notherwise specifically stated herein, remedies shall be cumulative and there
\nshall be no obligation to exercise a particular remedy.<\/p>\n
6.3 Within fifteen days after termination of this Agreement, Licensee shall
\ncertify in writing to PeopleSoft that all Software copies in any form, including
\npartial copies within modified versions, have been destroyed or returned to
\nPeopleSoft.<\/p>\n
7. LIMITED WARRANTY<\/p>\n
7.1 PeopleSoft warrants that it has title to the Software and\/or the
\nauthority to grant licenses to use the Software.<\/p>\n
7.2 PeopleSoft warrants that the Software will perform substantially in
\naccordance with the Documentation for a period of one year from the date of
\ninitial installation and that the Software media is free from material defects.
\nPeopleSoft does not warrant that the Software is error-free.<\/p>\n
7.3 PeopleSoft’s sole obligation is limited to repair or replacement of the
\ndefective Software, provided Licensee notifies PeopleSoft of the deficiency
\nwithin the one-year period and provided Licensee has installed all Software
\nupdates provided pursuant to PeopleSoft’s Support Services.<\/p>\n
7.4 PEOPLESOFT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
\nBUT NOT LIMITED TO THE WARRANTIES OF MERCHANT-ABILITY AND FITNESS FOR A
\nPARTICULAR PURPOSE.<\/p>\n
8. LIMITATION OF LIABILITY<\/p>\n
PEOPLESOFT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
\nCONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS,
\nHOWEVER ARISING, EVEN IF PEOPLESOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
\nDAMAGES. EXCLUDING DAMAGES INCURRED BY LICENSEE UNDER THE SECTION ENTITLED,
\n“INDEMNITY,” PEOPLESOFT’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (WHETHER IN
\nCONTRACT OR TORT) SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY LICENSEE TO
\nPEOPLESOFT FOR THE SOFTWARE OR SERVICES FROM WHICH THE CLAIM AROSE. THE PARTIES
\nAGREE TO THE LIABILITY RISK ALLOCATION SET FORTH HERE.<\/p>\n
9. SUPPORT SERVICES<\/p>\n
PeopleSoft shall provide Licensee with Support Services as set forth in the
\nSchedule.<\/p>\n
10. INSTALLATION SUPPORT<\/p>\n
At no additional charge, PeopleSoft shall provide Licensee with installation
\nsupport for one copy of the Software in accordance with PeopleSoft’s
\nthen-current standard installation procedures, up to the number of installation
\nhours set forth in the Schedule. Licensee must use this installation support
\nwithin six months from the Schedule Effective Date. Any additional installation
\nsupport requested by Licensee shall be provided at PeopleSoft’s then-current
\nProfessional Services hourly rate. Licensee shall reimburse PeopleSoft for all
\nreasonable travel and living expenses associated with any installation support.<\/p>\n
11. TRAINING<\/p>\n
PeopleSoft shall provide Licensee with the number of training units set forth in
\nthe Schedule for use at a PeopleSoft training facility. Licensee may use
\ntraining units for training at Licensee’s site only as the parties mutually
\nagree in writing. Licensee must use these training units within one year from
\nthe Schedule Effective Date.<\/p>\n
12. NOTICES<\/p>\n
All notices shall be made in advance, in writing, and sent by registered mail,
\novernight mail, courier, or facsimile (if confirmed by mailing), to the
\naddresses above (“NOTICE”). Notice to PeopleSoft shall be sent “Attn: PeopleSoft
\nLegal” with a copy to Licensee’s assigned PeopleSoft account manager.<\/p>\n
13. ASSIGNMENT<\/p>\n
Licensee may not assign this Agreement (by operation of law or otherwise) or
\nsublicense the Software without the prior written consent of PeopleSoft, and any
\nprohibited assignment or sublicense shall be null and void.<\/p>\n
14. NONDISCLOSURE OBLIGATION<\/p>\n
14.1 Each party (“RECIPIENT”) shall protect the other party’s (“DISCLOSER”)
\nConfidential Information with at least the same degree of care and
\nconfidentiality, but not less than a reasonable standard of care, that Recipient
\nuses for its own Confidential Information. Licensee may provide Software access
\nand use to third parties that: (1) need to use and access the Software to
\nprovide services to Licensee for its<\/p>\n
30<\/p>\n
30
\nSoftware use; and (2) have agreed to Licensee’s non-disclosure obligations
\nsubstantially similar to those contained in these sections.<\/p>\n
14.2 Notwithstanding the foregoing, this Agreement and its terms, conditions
\nand pricing are confidential and shall not be disclosed orally or in writing by
\nLicensee to any third party without PeopleSoft’s prior written consent. If
\nLicensee is a government entity subject to disclosure obligations under a public
\nrecords statute or similar regulation, Licensee agrees that the terms,
\nconditions, and pricing under this Agreement shall be disclosed only pursuant to
\nrequests made in accordance with such statute or regulation, and that any other
\ninformation marked “confidential” under this Agreement, including the Software,
\nshall be treated as confidential, trade secret, and commercially sensitive, and
\nshall not be disclosed without affording PeopleSoft a full opportunity to
\nestablish such information’s exemption from disclosure.<\/p>\n
14.3 Recipient has no confidentiality obligation with respect to information
\nit establishes by legally sufficient evidence: (1) was in the possession of, or
\nwas rightfully known by Recipient without a confidentiality obligation prior to
\nreceipt from Discloser; (2) is or becomes generally known to the public without
\nthis Agreement’s violation; (3) is obtained by Recipient in good faith from a
\nthird party having the right to disclose it without a confidentiality
\nobligation; (4) is independently developed by Recipient without the
\nparticipation of individuals who have had access to the Confidential
\nInformation; or (5) is required to be disclosed by court order or applicable
\nlaw, provided Recipient (a) ensures a proper request has been made in accordance
\nwith the relevant statute and promptly notifies Discloser, (b) diligently
\nundertakes to limit disclosure providing Discloser a full opportunity to
\nestablish such information as exempt from any disclosure obligation.<\/p>\n
15. GENERAL<\/p>\n
Section headings are provided for convenience and do not affect this Agreement’s
\nconstruction. No purchase order or other ordering document that purports to
\nmodify or supplement this Agreement’s printed text or a Schedule shall add to or
\nvary this Agreement’s terms. All such proposed variations or additions are
\nobjected to and deemed material unless agreed to in writing. Except for
\nLicensee’s obligation to pay PeopleSoft, neither party shall be liable for any
\nfailure to perform due to causes beyond its reasonable control. Sections 3 (Fees
\nand Payment), 4 (Title and Protection), 5 (Indemnity), 8 (Limitation of
\nLiability), 14 (Nondisclosure Obligation), 15 (General), and 16 (Definitions),
\nshall survive this Agreement’s termination. This Agreement shall be construed
\nwithout any provision held to be unenforceable. A party’s failure to exercise
\nany right hereunder shall not operate as a waiver of that right or any other
\nright in the future. Except for actions for non-payment or breach of
\nPeopleSoft’s proprietary rights in the Software, no action, regardless of form,
\narising out of this Agreement may be brought by either party more than one year
\nafter the cause of action has accrued. PeopleSoft reserves the right to audit
\nLicensee’s Software use no more frequently than once annually at PeopleSoft’s
\nexpense. All audits shall be conducted during regular business hours at
\nLicensee’s site and shall not unreasonably interfere with Licensee’s business
\nactivities. PeopleSoft shall schedule any such audits at least fifteen days in
\nadvance. This Agreement and the Schedule(s) constitute the entire agreement
\nbetween the parties concerning Licensee’s Software use. This Agreement replaces
\nand supersedes any prior verbal or written understandings, communications, and
\nrepresentations between the parties. This Agreement may be amended only by a
\nwritten document executed by each party’s duly authorized representative. Copies
\nunder this Agreement shall be considered original documents. Les parties ont
\nconvenu a ce que ce Contrat soit redige en anglais. (The parties have agreed
\nthat this Agreement be written in English.) This Agreement shall be governed by
\nthe laws of the State of California, without regard to its choice of law rules.
\nVenue shall be in San Francisco, California.<\/p>\n
16. DEFINITIONS<\/p>\n
“CONFIDENTIAL INFORMATION” includes, but is not limited to, trade secrets,
\ncomputer programs, documentation, formulas, data, inventions, techniques,
\nmarketing plans, strategies, forecasts, customer lists, employee information,
\nfinancial information, and information concerning Discloser’s organization,
\nproducts or methods, research, development, engineering, purchasing,
\nmanufacturing, accounting, marketing, selling, leasing, Software (including
\nthird party software), or any other information that is marked as confidential:<\/p>\n
“DESIGNATES” means those Licensee customers, suppliers, vendors, students,
\nbenefits providers, PeopleSoft Certified Outsourcing Partners, and other
\nexternal parties, with whom Licensee interfaces to conduct Licensee’s business
\nand whose access to the Software is necessary to effect Licensee’s internal data
\nprocessing operations.<\/p>\n
“DOCUMENTATION” means technical publications such as reference, user, install,
\nsystems administration and\/or technical guides, relating to the use and
\ndocumented functionality of the Software, delivered by PeopleSoft to Licensee as
\npart of the Software on CD-ROM.<\/p>\n
“NAMED COUNTRY” means the software language(s), functionality, and territory as
\nset forth in the Schedule and in accordance with the Documentation, for which
\nLicensee is authorized to use the Software.<\/p>\n
“OPERATING METRICS” means Licensee’s current operating figures such as employee
\nor student\/faculty count, annual revenue or budget, and the like, as set forth
\nin the Schedule and as Licensee certifies annually in writing to PeopleSoft.<\/p>\n
“SCHEDULE(S)” means the applicable, independent Software module schedule(s)
\nsigned by the parties and referencing this Agreement. Each Schedule is a
\nseparate and independent contractual obligation from any other Schedule.<\/p>\n
“SOFTWARE” means all or any portion of the global version of the binary computer
\nsoftware programs and updates and enhancements thereto, (including corresponding
\nsource code, unless specifically excluded elsewhere in the Agreement) and
\nDocumentation delivered by PeopleSoft to Licensee as listed in the Schedule.
\nSoftware includes the third-party software delivered by PeopleSoft as specified
\nin the Schedule, and modifications made to the Software. Software does not
\ninclude source code to: (1) Tools; (2) third party Software; (3) PeopleSoft’s
\nSupply Chain Software; or (4) PeopleSoft’s Intrepid Software. Unless
\nspecifically stated otherwise, all Software is delivered<\/p>\n
31<\/p>\n
31
\nto Licensee only if and when generally commercially available.<\/p>\n
“TERM” means the term of Software use as set forth in the attached Schedule.<\/p>\n
“TOOLS” mean the Software’s underlying design architecture, called PeopleTools
\nand\/or PepperTools, and include application programming tools and code.<\/p>\n
32<\/p>\n
32
\n EXHIBIT D<\/p>\n
BENEFICIARY ACKNOWLEDGEMENT FOR ESCROW AGREEMENT<\/p>\n
The Beneficiary Acknowledgement for Escrow Agreement can be found attached as
\nExhibit B to the Software Source Code Escrow Agreement between PeopleSoft and
\nSourceFile, Inc. Such Escrow Agreement (with exhibits) can be found at the
\nfollowing web site for Sourcefile:<\/p>\n
http:\/\/www.sourcefile.com\/private\/index.html.<\/p>\n
The PeopleSoft Escrow Account number is 7339. The USER ID IS Sourceweb. The
\nPASSWORD IS ps97. Note that both the ID and password are case-sensitive.<\/p>\n
Please print out Exhibit B of the Software Source Code Escrow Agreement entitled
\n“Form of Acknowledgement by Beneficiary” and complete and return per the
\ninstructions on such Form.<\/p>\n
33<\/p>\n
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