OEM Software License & Distribution

CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.





OEM SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT





This OEM Software License and Distribution Agreement ("Agreement") is entered into on this 5th day of June, 1999 ("Effective Date") by and between Commerce One, a California corporation ("Commerce One"), with principal offices at 1600 Riviera Ave, Walnut Creek, California, 94596 and PeopleSoft, Inc., a Delaware corporation ("PeopleSoft"), with principal offices at 4460 Hacienda Drive, Pleasanton, California 94588-8615.





A. PeopleSoft markets and distributes certain software products; and



B. Commerce One wishes to grant to PeopleSoft rights to distribute certain of Commerce One's products, both as standalone products and as integrated within certain of PeopleSoft's products, and PeopleSoft desires to obtain such rights, all as more particularly described below, in accordance with the terms and conditions of this Agreement; and



C. Each of Commerce One and PeopleSoft agree to grant certain exclusivity in consideration for the rights and obligations set forth herein; and



D. The parties are concurrently entering into a Joint Development Agreement under which Commerce One and PeopleSoft have agreed to perform certain development activities as further set forth therein.



In consideration of the mutual covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties, and obligations of the parties.



ARTICLE 1.





All references in this Agreement to "ARTICLES," "ARTICLE," "ATTACHMENTS," "SECTION" and "SECTIONS" refer to the articles, sections and exhibits of this Agreement. As used in this Agreement, neutral pronouns and any variations thereof shall be deemed to include the feminine and masculine and all terms used in the singular shall be deemed to include the plural, and vice versa, as the context may require. The words "HEREOF," "HEREIN" and "HEREUNDER" and other words of similar import refer to this Agreement as a whole, as the same may from time to time be amended or supplemented, and not to any subdivision contained in this Agreement. The word "INCLUDING" when used herein is not intended to be exclusive and means "INCLUDING, WITHOUT LIMITATION." The words "SELL" or "SOLD" when used herein is not intended as a sale of goods pursuant to the terms of the U.N. Convention on Contracts for the International Sale of Goods and when used with respect to software shall be considered a license and no transfer of title to software shall be implied thereby.

ARTICLE 2.





For purposes of this Agreement, the following terms shall have the following meanings:



Section 2.1. "ATTACHMENT(S)" means the attachments to this Agreement which are attached hereto and incorporated herein.



Section 2.2. "BUY SITE PRODUCT(S)" means the computer software products listed or described in Attachment A, Major and Minor Updates thereof, and Connectors. BuySite Products shall also include the associated documentation which shall include the software user manuals, reference manuals and installation guides, or portions thereof, delivered by Commerce One under this Agreement and which Commerce One may update from time to time as to the general customer base.



Section 2.3. "CODE" means computer programming code. "Object Code" means the binary machine-executable form of Code, including object files, libraries, executable program, scripts, and HTML pages. "Source Code" means the human-readable form of Code including but not limited to annotations, flow charts, use cases, ERDs and design guides



Section 2.4. "CONNECTOR" means the interfaces developed pursuant to the Joint Development Agreement.



Section 2.5. "DERIVATIVE WORK(S)" means a revision, modification, translation, abridgment, condensation or expansion of a BuySite Product, PeopleSoft Product or any form in which a BuySite Product or PeopleSoft Product may be recast, transferred, or adapted, and which, if prepared without the consent of Commerce One or PeopleSoft, as the case may be, would be a copyright infringement.



Section 2.6. "DISTRIBUTE" or "DISTRIBUTION" means selling, sublicensing, transmitting, marketing, or otherwise distributing the Products or the MarketSite Services. For the avoidance of doubt, where applicable, PeopleSoft shall be enabled to operate a hosted version of the BuySite Product either directly or indirectly.



Section 2.7. "DISTRIBUTOR" means any entity that acquires or reproduces the BuySite Products or PeopleSoft Products for Distribution by such entity directly to End Users and not for such entity's own use.



Section 2.8. "END USER" means any third party licensed to use, but not to further Distribute, the BuySite Products and/or the PeopleSoft Products.



Section 2.9. "JOINT DEVELOPMENT AGREEMENT" means the Joint Development Agreement entered into by the parties of even date herewith.



Section 2.10. "MAJOR AND MINOR UPDATES" mean updates, if any, to the BuySite Products to the general customer base. Major Updates include additions of substantial functionality while Minor







Updates do not. Major Updates are designated by a change in the number to the left of the decimal point of the number appearing after the product name, while Minor Updates are designated by a change in such number to the right of the decimal point. Commerce One is the sole determiner of the availability and designation of an update as a Major or Minor Update. Major Updates exclude software releases which are reasonably designated by Commerce One as new products. Where used herein "Updates" shall mean Major Updates or Minor Updates interchangeably.



Section 2.11. "MARKETSITE DIRECT SERVICES" means any MRO Portal electronic commerce service operated by Commerce One.



Section 2.12. "MARKETSITE INDIRECT SERVICES" means a MarketSite electronic commerce service hosted by a third party licensee of Commerce One's MarketSite software.



Section 2.13. "MARKETSITE SERVICES" means the MarketSite Direct Services and MarketSite Indirect Services.



Section 2.14. "MRO PORTAL" means a multisupplier and multiproduct line merchant portal designed to facilitate trading for operating resources (goods or services which are used to operate a business, excluding goods or services which are primarily used to directly contribute to products, services or other revenue generating activities which a business provides to its customers). Operating resources shall include, but not be limited to, industrial parts and supplies, computer equipment and peripherals, goods and services required to maintain plant, property and equipment, and contract and temporary employment services. Without limiting the foregoing, such multisupplier and multiproduct line merchant portal shall not include any and all portals which are not: (1) multisupplier; (2) multiproduct line; (3) do not offer both (a) goods; and (b) services for the purposes set forth above; and (4) directed to government markets.



Section 2.15. "NAMED ACCOUNTS" means the list of named accounts as described on Attachment G being "Commerce One Named Account," "PeopleSoft Named Accounts" (to be provided within fourteen (14) days of the Effective Date) and "Telco Named Accounts."



Section 2.16. "PEOPLESOFT DISTRIBUTION CHANNELS" means the list of Distributors designated within two (2) weeks of the Effective Date, attached hereto as Attachment J and as existing as of the Effective Date. Future Distribution Channels require Commerce One's prior written approval.



Section 2.17. "PEOPLESOFT PRODUCT(S)" or "PEOPLESOFT PSBN PRODUCT" means PeopleSoft's software product, as described in Attachment F which product may include any or all of the BuySite Product Source Code.



Section 2.18. "PRODUCTS" means the BuySite Products and the PeopleSoft Products collectively.



Section 2.19. "PROGRAM ERRORS" means one or more reproducible deviations in the BuySite Products from the applicable specifications shown in the associated documentation.







Section 2.20. "SPECIFIED COMPANIES" means the list of entities as set out on Attachment H. "Commerce One Specified Company" means the list of entities as set forth in Attachment H as Commerce One Specified Companies. "PeopleSoft Specified Companies" means the list of entities as set forth in Attachment H as PeopleSoft Specified Companies.



Section 2.21. "TELCO INDUSTRY" means only those entities which carry out business in the telecommunication industry sub-segments as set forth with SIC code number 4813 (telecommunications) as they exist on the Effective Date. The named sub-segments shall be limited to facilities-based telecommunication carriers (except wireless), local telephone carriers (except wireless), long-distance telephone carriers (except wireless), telecommunications carriers (wired), telecommunications networks (wired) and telephone carriers facilities based (except wireless).



Section 2.22. "UPGRADE" means the right to use BuySite or the PeopleSoft PSBN Product on a designated computer with increased processing power or an increase in the number of users to the next pricing increment and generally in each case a requirement for a payment of applicable Upgrade fees to PeopleSoft.



ARTICLE 3.



GRANT OF LICENSES AND RIGHTS TO PEOPLESOFT



Section 3.1. LICENSES.



(a) BUYSITE PRODUCTS (ENTERPRISE) LICENSE. Subject to the terms and conditions of this Agreement, Commerce One hereby grants and PeopleSoft hereby accepts, a non-exclusive (except as set forth herein), nontransferable, worldwide right and license to (i) reproduce, without change, the BuySite Product (in Object Code only) including all Major and Minor Updates (except as set forth herein) and (ii) Distribute directly or by sublicense, through the PeopleSoft Distribution Channels to End Users for use in either direct or indirect procurement of goods and services.



(b) BUYSITE PRODUCTS (HOSTED) LICENSE. Subject to the terms and conditions of this Agreement, Commerce One hereby grants and PeopleSoft hereby accepts, a non-exclusive (except as set forth herein), nontransferable, worldwide right and license to (i) reproduce, without change, the hosted BuySite Products (in Object Code only) and (ii) Distribute directly or by sublicense through the PeopleSoft Distribution Channels only for use by End Users who will use such hosted BuySite Products to provide purchasing capabilities for direct or indirect goods and services.



(c) BUYSITE PRODUCTS (SOURCE CODE) LICENSE. Subject to the terms and conditions of this Agreement, Commerce One hereby grants and PeopleSoft hereby accepts, a non-exclusive (except as set forth herein), nontransferable, worldwide right and license to (i) reproduce, use, modify and create Derivative Works of the BuySite Products including all Major and Minor Updates (in Object and Source Code) and (ii) Distribute by sublicense such BuySite Product copies including all Major and Minor Updates to Distributors and End Users only as part of and integrated into a PeopleSoft Product. PeopleSoft may grant Distributors the right to grant further sublicenses to Distribute (but not reproduce) such copies of the BuySite Products integrated into PeopleSoft Products to other







Distributors regardless of tier and PeopleSoft and all Distributors shall have the right to Distribute such BuySite Products to End Users.



(d) SOURCE CODE FREEZE. Commencing on the effective date of termination of the Joint Development Agreement, PeopleSoft's right and license to the Source Code to the BuySite Products under Section 3.1(c) shall be limited to the commercial release or version of BuySite Products that is commercially available as of the effective date of termination of the Joint Development Agreement and Minor Updates thereof and such right and license to the Source Code shall be limited to use only for support, maintenance and development of the PeopleSoft Products. As of the effective date of termination of the Joint Development Agreement, Commerce One shall be relieved of its obligations to deliver any further Source Code for Major and Minor Updates of the BuySite Products which may become commercially available after the effective date of termination of the Joint Development Agreement. For the avoidance of doubt, PeopleSoft shall continue to have the right and license granted in Section 3.1(c) as modified by this Section 3.1(d) to the Source Code of the BuySite Products, including all Major and Minor Updates and Derivative Works thereof made solely by PeopleSoft, up to and including the release or version of BuySite Products that is commercially available as of the effective date of termination of the Joint Development Agreement and any Minor Updates to such release or version of BuySite Products.



(e) LOCALIZED CODE. Subject to the terms and conditions of this Agreement, Commerce One hereby grants and PeopleSoft hereby accepts, a non-exclusive (except as set forth herein), nontransferable worldwide right and license to (i) reproduce, use, modify and create Derivative Works of any localized version of BuySite Products (in Object and Source Code) and (ii) Distribute by sublicense such localized version of BuySite Product copies to Distributors and End Users only as part of and integrated into a PeopleSoft Product. PeopleSoft may grant Distributors the right to grant further sublicenses to Distribute such copies of the localized version of BuySite Products integrated into PeopleSoft Products to other Distributors regardless of distribution tier, and all Distributors shall have the right to Distribute such localized version of BuySite Products to End Users.



(f) COMMERCE ONE RESELLERS. During the term of the Agreement, Commerce One shall ensure that all reseller agreements entered into between Commerce One and a third party reseller, on or after the Effective Date shall exclude a grant of any right or license to Distribute the BuySite Product to the PeopleSoft Named Accounts consistent with Section 5.1 of this Agreement. Notwithstanding the foregoing and the provisions of Section 5.1 of this Agreement, any reseller agreements entered into between Commerce One and a third party reseller (a "Grandfathered Reseller") prior to the Effective Date shall not be required to exclude a grant of any right or license to Distribute the BuySite Product to the PeopleSoft Named Accounts. Notwithstanding Section 5.1 of this Agreement, Grandfathered Resellers shall have the right to Distribute the BuySite Products to PeopleSoft Named Accounts; provided, however, that Commerce One shall attempt to amend any reseller agreement with a Grandfathered Reseller to eliminate such distribution rights to PeopleSoft Named Accounts if it is both reasonable and practical to do so. Commerce One shall designate to PeopleSoft all Grandfathered Resellers within two (2) weeks of the Effective Date as existing as of the Effective Date.







(g) COMMERCE ONE MARKETSITE DIRECT SERVICES (ACCESS) LICENSE. Subject to the terms and conditions of this Agreement, Commerce One hereby grants and PeopleSoft and its Distributors hereby accepts, a non-exclusive (except as set forth herein), nontransferable worldwide right and license to Distribute subscriptions for access to MarketSite Direct Services during the term, to Distributors and End Users for use in procurement of either direct or indirect goods and services. During the period of eighteen (18) months from the Effective Date, Commerce One agrees that it shall be a condition of any MarketSite Indirect Service provider agreement that PeopleSoft shall be granted equally favorable reseller rights as those granted to Commerce One by the MarketSite Indirect Service provider. Additionally, throughout the term of the Agreement, Commerce One will negotiate in good faith with any and all subsequent MarketSite Indirect Service operators to provide PeopleSoft with the ability to resell access to such MarketSite Indirect Service.



(h) COMMERCE ONE MARKETSITE LICENSE. Upon written request by PeopleSoft, Commerce One agrees to negotiate in good faith to grant PeopleSoft a license to Distribute the MarketSite software (in Object Code) provided that the further terms of such license shall be negotiated in good faith. If the parties do not enter into a definitive agreement within ninety (90) days after PeopleSoft's requests, subject to Section 18.13(c), neither party shall have any further obligations under this Section 3.1(h).



Section 3.2. REPRODUCTION RIGHTS. PeopleSoft shall notify Commerce One, in writing, of the name and address of all Distributors granted the right to reproduce the BuySite Product and PeopleSoft shall ensure that all such Distributors are required to provide PeopleSoft with a report of the number of copies of BuySite Product made or licensed, which report shall include the information as set forth in Section 8.4 of this Agreement. Such reproduction shall occur only at the location of Distributor's principal office unless an alternate location is otherwise specified in writing to Commerce One. PeopleSoft shall require such Distributors to authorize PeopleSoft, or Commerce One on PeopleSoft's behalf, to audit its records which audit rights shall be consistent with the rights set forth in Section 8.5 of this Agreement. PeopleSoft shall require such Distributors to provide a warranty to PeopleSoft and its licensors that the copies made are free from defects and to provide indemnification of PeopleSoft and its licensors for any breach of such warranty.



Section 3.3. NO RESTRICTIONS. Subject to the terms of Article 5 of this Agreement, Commerce One reserves all rights not expressly granted in this Agreement in and to the BuySite Products and the MarketSite Services.



ARTICLE 4.



GRANT OF LICENSES AND RIGHTS TO COMMERCE ONE



Section 4.1. LICENSE.



(a) PEOPLESOFT PSBN PRODUCT LICENSE. Upon written request by Commerce One within ninety (90) days of commercial availability of the PeopleSoft PSBN Product, PeopleSoft agrees to negotiate in good faith to grant Commerce One a license to Distribute the PeopleSoft PSBN Product provided that the further terms of such license shall be negotiated in good faith between the parties.







If the parties do not enter into a definitive agreement within ninety (90) days after Commerce One's request, subject to Section 18.13(c), neither party shall have any further obligations under this Section 4.1(a).



(b) NO RESTRICTIONS. Subject to the terms of Article 5 of this Agreement, PeopleSoft reserves all rights not expressly granted in this Agreement in and to the PeopleSoft Products.



ARTICLE 5.





Section 5.1. PEOPLESOFT EXCLUSIVITY. For a period commencing on the Effective Date and ending on January 1, 2001, PeopleSoft shall not enter into an agreement with Commerce One Specified Companies to Distribute or develop products similar to the BuySite Products, the MarketSite Services and the associated software. PeopleSoft shall use the MarketSite Services as its exclusive MRO Portals and PeopleSoft shall not Distribute or develop any other hosted MRO Portals or enter into any agreement with any third party with respect to any MRO Portal during the period of this exclusivity. For the term of this Agreement, PeopleSoft shall not provide a Source Code or Object Code license to the BuySite Products to a Commerce One Specified Company. If, at any time commencing on the Effective Date and ending on January 1, 2001 , PeopleSoft is in breach of the exclusivity provisions of this Section 5.1 or assigns this Agreement through operation of law, merger or acquisition of all or substantially all of its assets to a Commerce One Specified Company, without limiting any other rights or remedies of Commerce One, Commerce One shall be entitled to change the exclusivity set forth in Sections 5.1 (a) and 5.3 below to non-exclusive by providing PeopleSoft with written notice thereof. Nothing in this Section 5.1 shall be construed as terminating this Agreement or the licenses granted herein.



(a) PEOPLESOFT EXCLUSIVE ACCOUNTS. During the term of the Agreement and subject to Section 5.3(a) and (b) below, PeopleSoft shall have the sole and exclusive right, (except as to Grandfathered Resellers) to market and Distribute the Products to the PeopleSoft Named Accounts other than PeopleSoft Named Accounts within the Telco Industry.



Section 5.2. PEOPLESOFT MINIMUMS. Commencing on the Effective Date, and subject to the potential extended period under Section 5.6 below, PeopleSoft shall enter into licenses for the Products either directly or indirectly through Distributors, with the projected cumulative sales targets set forth on Attachment I (the "Minimum Targets"). For the purpose of this Section 5.2, any license entered into by PeopleSoft or Commerce One with a Commerce One Named Account pursuant to Section 5.3(a) below shall be considered a license by PeopleSoft for the purpose of calculating the Total Customers as defined in Attachment B. In the event that the Total Customers are not, at a minimum, equal to the cumulative Minimum Target for any two consecutive calendar quarters, Commerce One shall be entitled to demand and receive a change to the grant of exclusivity set forth in Section 5.1(a) above to non-exclusive by written notice to PeopleSoft; provided, however, that PeopleSoft shall first have the opportunity to cure the possible loss of exclusivity as follows:







If PeopleSoft does not meet the cumulative Minimum Target as of the end of any two consecutive calendar quarters, PeopleSoft may, by the thirtieth (30th) day ("Cure Date") of the calendar quarter immediately following the second consecutive calendar quarter in which the cumulative Minimum Target was missed (the "Cure Quarter"), pay a prepaid nonrefundable royalty creditable against future licenses entered into by PeopleSoft in an amount equal to the average PeopleSoft Net Fees received per End User for licenses entered into (not including access agreements to MarketSite Services) by PeopleSoft for the twelve (12) months preceding the beginning of the Cure Quarter, multiplied by "X", where "X" is the Minimum Target as of the expiration of the second consecutive calendar quarter, less the actual number of Total Customers licensed or sold access to MarketSite Services, as applicable, as of the expiration of the second consecutive calendar quarter ("Cure Cost"). It is understood and agreed that if at the end of the Cure Quarter, PeopleSoft has entered into sufficient licenses or access agreements to meet the Minimum Target as of end of the Cure Quarter and paid the Cure Cost to Commerce One, then PeopleSoft shall be entitled to retain the right of exclusivity under Section 5.1 above.



By way of numerical example only, if, the Minimum Target for the tenth (10th), eleventh (11th) and twelfth (12th) quarters are ninety-five (95), one hundred and five (105) and one hundred and twenty (120) licenses or access agreements for MarketSite Services, respectively, and the average PeopleSoft Net Fees received per End User for licenses (but not including access agreements for MarketSite Services) over the twelve (12) months prior to the beginning of the Cure Quarter is equal to $500,000 ("X" = $500,000); and, PeopleSoft does not meet the cumulative Minimum Target in the tenth (10th) quarter and enters into only one hundred (100) licenses or access agreements to MarketSite Services by the end of the eleventh (11th) quarter ("Total Customer" as defined in Section 14 of Attachment B herein), PeopleSoft will have missed the cumulative Minimum Target for two (2) consecutive calendar quarters. The Cure Cost shall be equal to the product obtained by multiplying $500,000 by five (5) (where five shall have been calculated by subtracting the Total Customers at the end of the eleventh quarter (100) from the cumulative Minimum Target as of the end of the eleventh quarter (105)), or $2,500,000. If at the end of the twelfth quarter, PeopleSoft shall have met the Minimum Target (120) and paid the Cure Cost of $2,500,000, then PeopleSoft shall continue to retain its exclusivity.



Section 5.3. COMMERCE ONE EXCLUSIVITY. For a period commencing on the Effective Date and ending on January 1, 2001, Commerce One shall not enter into an agreement with PeopleSoft Specified Companies to Distribute, sell or develop products similar to the Products or MarketSite Services. Notwithstanding the foregoing, Commerce One may enter into an Agreement with SAP only for the purpose of becoming ISV certified and with Oracle for the purpose of database development. If, at any time during the eighteen (18) months from the Effective Date, Commerce One is in breach of the exclusivity provisions of this Section 5.3 or assigns this Agreement through operation of law, merger or acquisition of all or substantially all of its assets to a Specified Company, without limiting any other rights or remedies of PeopleSoft, PeopleSoft shall be entitled to change the exclusivity set forth in Section 5.1 above or 5.3(a) below to non-exclusive by providing Commerce One with written notice thereof. Nothing in this Section 5.3 shall be construed as terminating this Agreement or the licenses granted herein.







(a) COMMERCE ONE EXCLUSIVE ACCOUNT. Notwithstanding Section 5.1(a) above, for a period of [ * ] after the Effective Date, Commerce One shall have the exclusive right to Distribute the Products to the Commerce One Named Accounts. In the event any of the Commerce One Named Accounts enters into a license during such [ * ] period, such license may be between either Commerce One or PeopleSoft and such individual Commerce One Named Account. Such Commerce One Named Account shall pay fees to either Commerce One or PeopleSoft, who shall then allocate the fees as set forth in Attachment B. Nothing in this Section shall prohibit or discourage PeopleSoft from cooperatively engaging with Commerce One with respect to Commerce One Named Accounts.



(b) COMMERCE ONE EXCLUSIVE ACCOUNT. Notwithstanding Section 5.1 (a) above, for a period of [ * ] after the Effective Date, Commerce One shall have the exclusive right to market and Distribute the BuySite Products to the Telco Named Accounts.



(c) TELCO NAMED ACCOUNTS. From the Effective Date, PeopleSoft has a non-exclusive right to Distribute the Products to the Telco Industry, excluding the Telco Named Accounts. Commencing at the beginning of the [ * ] after the Effective Date, PeopleSoft shall be at liberty to Distribute to the Telco Named Accounts.



Section 5.4. LIMITED RIGHT TO WORK WITH SPECIFIED COMPANIES FOR END USER CUSTOMER-REQUESTED IMPLEMENTATIONS.



(a) The parties contemplate that only on a rare case-by-case basis both parties may, due to an insistent End User customer request, need to work on such End User-requested implementations with respect to Specified Company's products and each party may, for such rare cases, provide services to such End User notwithstanding the provisions of Sections 5.1 and 5.3. Prior to undertaking or so agreeing to such an implementation effort, the requested party must first use all reasonable efforts to direct the customer to an external independent third party implementor to conduct the work for the End User. The parties shall also use all reasonable efforts, primarily expected to be conducted through their alliance personnel, to provide advance written notice (which shall include by electronic mail) of at least five (5) business days to the other of a situation whereby the requested party has attempted and failed to persuade the End User to use an independent third party implementor and that the party is considering entering into an End User agreement to provide the future direct implementation services to the End User for the Specified Company product.



(b) The intent of this Section is that implementations for a Specified Company conducted by the Parties shall be the rare exception rather than the rule, and in the event such End User requested implementations occur on at least two occasions within any ...