Software Licensing Agreement

GENERAL MOTORS CORPORATION





GM Logo



SOFTWARE LICENSING



CATEGORY AGREEMENT

















GENERAL MOTORS CORPORATION



SOFTWARE LICENSING



TABLE OF CONTENTS



PAGE

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BACKGROUND ..................................................... -1-



THE AGREEMENT .................................................. -1-



1 SCOPE OF SERVICES .......................................... -1-

1.1 Existing Agreements ............................... -1-

1.2 Software Available from Supplier .................. -1-



2. TERM ....................................................... -1-

2.1 Initial Term ...................................... -1-

2.2 Renewal ........................................... -1-



3. PAYMENT .................................................... -2-

3.1 Payment Terms ..................................... -2-

3.2 Invoices .......................................... -2-

3.3 License Fee ....................................... -2-

3.4 Maintenance Invoices .............................. -2-

3.5 Trade-In Credit ................................... -2-

3.6 Conversion ........................................ -3-



4. LICENSE .................................................... -3-

4.1 Grant of License .................................. -3-

4.2 License Fee ....................................... -4-

4.3 Source Code ....................................... -4-

4.4 Restriction on Use ................................ -4-



5. AUTHORIZED USERS ........................................... -4-

5.1 Authorized Users .................................. -4-

5.2 Number of Users ................................... -4-



6. PLATFORM SPECIFICATIONS .................................... -4-

6.1 Program Sets ...................................... -4-

6.2 Multiple Platforms ................................ -5-



7. DELIVERY AND INSTALLATION .................................. -5-

7.1 Delivery and Risk of Loss ......................... -5-

7.2 Shipments ......................................... -5-

7.3 Installation by Supplier .......................... -5-

7.4 Installation by Customer .......................... -6-





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GENERAL MOTORS CORPORATION



SOFTWARE LICENSING



TABLE OF CONTENTS



PAGE

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8. DIVESTITURE OF A RELATED ENTITY ............................ -6-

8.1 ................................................... -6-

8.2 ................................................... -6-



9. ACCEPTANCE TESTING ......................................... -7-

9.1 Live Environment Testing .......................... -7-

9.2 Correction of Specification Non-Conformities ...... -7-

9.3 Acceptance Testing ................................ -7-

9.4 Maintenance During Acceptance Testing ............. -9-

9.5 Failure to Successfully Complete Acceptance Testing -9-

9.6 Use Shall Not Constitute Acceptance .............. -10-



10 DOCUMENTATION AND TRAINING .................................. -10-

10.1 Documentation ..................................... -10-

10.2 User Group, Bulletin Boards and Internet Sites .... -11-

10.3 Training .......................................... -11-



11 MAINTENANCE SERVICES ........................................ -11-

11.1 Availability of Maintenance ....................... -11-

11.2 Maintenance Services .............................. -12-

11.3 Response Times .................................... -12-

11.4 Service Tracking and Reporting .................... -13-

11.5 Maintenance Fee (Customer Error) .................. -13-

11.6 Maintenance Fees/Cap .............................. -13-

11.7 Revision Levels ................................... -14-

11.8 Inoperability ..................................... -14-

11.9 Reinstatement ..................................... -14-



12 SUPPLIER'S WARRANTIES ....................................... -15-

12.1 Title ............................................. -15-

12.2 Platform .......................................... -15-

12.3 Environmental Specifications ...................... -15-

12.4 Completeness and Requisite Rights ................. -15-

12.5 Media Defects ..................................... -15-

12.6 Function and Features ............................. -16-

12.7 Performance ....................................... -16-

12.8 Compatibility ..................................... -16-

12.9 Ninety-Day Warranty ............................... -16-

12.10 Conformance to Specifications ..................... -16-

12.11 Equipment Configuration ........................... -17-

12.12 Pass-Through of Warranties ........................ -17-

12.13 Free and Clear Title .............................. -17-

12.14 Future Support .................................... -17-

12.15 Defect-Free ....................................... -17-

12.16 Illicit Code ...................................... -17-



13 MODIFICATIONS AND PROPRIETARY RIGHTS ........................ -18-

13.1 Supplier Modifications ............................ -18-

13.2 Customer Modifications ............................ -18-



14 ASSIGNMENT AND TRANSFER ..................................... -19-

14.1 Assignment ........................................ -19-

14.2 Transfer of Software .............................. -19-

14.3 Transfer of Maintenance ........................... -19-



Exhibit 1.1 .................................................... -22-





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GENERAL MOTORS CORPORATION



SOFTWARE LICENSING

CATEGORY AGREEMENT





THIS SOFTWARE LICENSING CATEGORY AGREEMENT (Software Licensing Agreement) is made to be effective as of the 8th day of June, 1998 (Effective Date) by and between General Motors Corporation, with offices at 100 Renaissance Center, Detroit, Michigan, and FreeMarkets OnLine, Inc., Supplier with offices at 130 Seventh Street, Century Building, Suite 500, Pittsburgh, PA 15222.







Terms used with initial capital letters in this Software Licensing Agreement are defined in Appendix A or herein or in the other Agreements.









The Parties have entered into the Framework Agreement governing their overall relationship regarding the provision to Customer and its Related Entities by Supplier of Products and Services. The Parties intend that upon full execution of this Sof tware Licensing Agreement, the terms hereof shall be incorporated into and made a part of the Framework Agreement. The terms of this Software Licensing Agreement are intended to supplement the Framework Agreement by further defining the Parties' rights an d obligations with respect to the licensing by Supplier of Software to Customer. The Parties further intend to enter into specific Transaction Agreements further defining their agreement with respect to the licensing of such Software.







THE AGREEMENT



1. SCOPE OF SERVICE



1.1 EXISTING AGREEMENTS. If Software is currently being provided by Supplier, the agreement(s) pursuant to which Supplier has licensed such Software to Customer shall remain in effect, except for those agreement(s) set forth in Exhibit 1.1



1.2 SOFTWARE AVAILABLE FROM SUPPLIER. Upon request by Customer, through an RFP or otherwise, Supplier may submit to Customer one or more Proposals to furnish Products in a manner that meets Custome r's objectives as stated in its RFP and during the Term, Supplier will furnish Products to Customer pursuant to this Equipment Agreement.



2. TERM



2.1 INITIAL TERM. The initial term of this Software Licensing Agreement is three (3) years from the Effective Date.



2.2 RENEWAL. This Software Licensing Agreement may be renewed as set forth in Section 18.2 (B) of the Framework Agreement.









3. PAYMENT



3.1 PAYMENT TERMS. The payment terms will be as set forth in Section 9.5 of the Framework Agreement.



3.2 INVOICES. Supplier shall prepare the invoices as set forth in Section 9.1 of the Framework Agreement.



3.3 LICENSE FEE.





(A) In consideration of the license granted to Customer under this Software Licensing Agreement upon the execution of an appropriate Transaction Agreement and in consideration of the Services to be performed by Supplier hereunder, and except as otherwise expressly set forth in the applicable Transaction Agreement, Customer shall pay Supplier for each purchase made under this Software Licensing Agreement amounts determined as follows, which amounts shall be paid in accordance with the terms of this Software Licensing Agreement:





Payment Event Percentage of Total License Fee Payable

------------- ---------------------------------------

Delivery 25.0

Installation 25.0

Preliminary Testing 25.0

Acceptance Date 25.0





(B) The license fee for ea ch Product is calculated by multiplying the number of Product(s) licenses purchased by the purchase price for each Product as set forth in the applicable Transaction Agreement. The total license fee for each purchase is calculated by adding the individual Product license fees.





3.4 MAINTENANCE INVOICES. Invoices for maintenance will be delivered to Customer by Supplier no later than sixty (60) days prior to the expiration of the Warranty Period and each subsequent maintenance period that is offered on an annual basis pursuant to Article 11 of this Software Licensing Agreement. Failure to deliver said invoice at least sixty (60) days prior to the expiration date will have the effect of extending the current warranty or maintenance period to sixty (6 0) days after receipt of Supplier's invoice by Customer and all notification periods for renewal of maintenance will be extended for thirty (30) days after receipt of Supplier's invoice.



3.5 TRADE-IN CREDIT. Except as otherwise expressly set forth in the applicable Transaction Agreement, at any time during the three (3) year period commencing with the Acceptance Date, Customer may elect to return the Licensed Software and any Equ i pment or other Products to Supplier for a credit that may be applied against future acquisitions of Software or other Products or Services from Supplier. This credit will be calculated by reducing the original license fee by one-thirty-sixth (1/36) for ea ch month or partial month elapsing between the Acceptance Date and Customer's return of the Licensed Software to Supplier.



3.6 CONVERSION. For the purpose of changing the Licensed Software from one (1) Operating System environment to a different O perating System environment, Supplier will extend the rights of the applicable license to the new Operating System environment, on a month-by-month













basis, during the Conversion Period by having Customer pay a per-month fee not to exceed two percent ( 2%) of the per-annum (or equivalent) license fee for the new Licensed Software. After the Conversion Period, Customer may use the Licensed Software on the new Operating System without further charge, except as otherwise expressly set forth in the applicab le Transaction Agreement.



4. LICENSE



4.1 GRANT OF LICENSE. Except as otherwise expressly set forth in the applicable Transaction Agreement, and in addition to the grant set forth in Section 13.2 (C) of the Framework Agreement, Supplier here by grants to Customer, and Customer hereby accepts from Supplier, a worldwide, nonexclusive, irrevocable, perpetual license to use, copy, execute and display the object code version of the Licensed Software at one or more specified Licensed Sites (a "Site Software License"), on a Designated CPU (a "CPU Software License") or for Customer-wide use ("Corporate Software License") and such other use or license as agreed to by the Parties in the Transaction Agreement and to the extent that the license includes C u stomer access to the Source Code of the Licensed Software, a license to produce derivative works therefrom, all in accordance with the terms and conditions of this Software Licensing Agreement and any applicable Transaction Agreement. The applicable Trans a ction Agreement shall designate whether the Licensed Software is to be provided pursuant to a Site Software License, a CPU Software License, or a Corporate Software License, each as defined later in this Section 4.1. If the applicable Transaction Agreemen t fails to designate the type of software license desired, then such software license shall be deemed to be a Corporate Software License.





(A) With respect to each Site Software License, the Licensed Software may be used at the Licensed Si tes designated in the applicable Transaction Agreement and Customer may only copy the Licensed Software as necessary for use and dissemination at the Licensed Site and for archival, maintenance or back-up purposes. Notwithstanding the foregoing, the Licen s ed Software may be used at other than the designated Licensed Site, if: (i) the designated Licensed Site cannot be used; (ii) the designated Licensed Site is replaced or changed by Customer; or (iii) Customer provides Supplier with prior written notice. I f Customer desires to run parallel operations in the process of transferring operations from one (1) Licensed Site to another Site, Customer may operate the Licensed Software at two (2) Sites for the period of time reasonably necessary to complete the tran sfer. The Customer shall notify the Supplier if the Licensed Software is being used at a Site other than the designated Licensed Site.







(B) With respect to each CPU Software License, the Licensed Software may be used on any Designated CPU, and Customer may only copy the Licensed Software as necessary for archival, maintenance or back-up purposes. If Customer desires to run parallel operations in the process of transferring operations from one (1) Designated CPU to another Designated CPU, C u stomer may operate the Licensed Software on two (2) Designated CPU's for the period of time reasonably necessary to complete the transfer. The Customer shall notify the Supplier if the Licensed Software is being transferred from one Designated CPU to anot her Designated CPU.







(C) With respect to each Corporate Software License, the Licensed Software may be used at any Site and on any items of Equipment and Customer may make and use unlimited copies of the Licensed Software.













4.2 LICENSE FEE. In consideration of the license granted to Customer hereunder, Customer shall agree to pay to Supplier a license fee as provided in the applicable Transaction Agreement.



4.3 SOURCE CODE. If access (other than pursuant to the escrow in Article 14 of the Framework Agreement) to the Source Code of the Licensed Software is specified in the applicable Transaction Agreement, Customer's rights to utilize the Licensed Software shall include a worldwide, nonexclusive, irrevocable, perpetual license to use, copy, display and produce derivative works of the Source Code of the Licensed Software.



4.4 RESTRICTION ON USE. Customer is authorized to use the Licensed Software on a Designated CPU, Site or Customer-wide basis as specified in the applicable Transaction Agreement.



5. AUTHORIZED USERS



5.1 AUTHORIZED USERS. Except as otherwise expressly set forth in an applicable Transaction Agreement, Customer shall not permit any Licensed Software to be used by any other person, except for it and its Related Entities' employees, agents, consultants, Outsourcing Companies or contrac tors who need to use the Licensed Software in the performance of their duties on behalf of Customer and who are authorized and enabled by Customer to access and utilize the Licensed Software (Authorized User).



5.2 NUMBER OF USERS. Except as otherw ise expressly set forth in the applicable Transaction Agreement, there shall be no limit on the number of units of Equipment or CPUs, number of users, number of locations, the Platform or size of CPU on which Customer can operate the Licensed Software. As specified in the Transaction Agreement and for the charges set forth therein, Customer shall have the right to receive additional copies of the Licensed Software and Documentation as required by it for use on additional or alternate units of Equipment or CPUs.



6. PLATFORM SPECIFICATIONS



6.1 PROGRAM SETS.





(A) Supplier shall deliver to Customer copies of the Licensed Software and Documentation for each Platform as set forth in the applicable Transaction Agreement. At t he request of Customer, Supplier shall deliver to Customer copies, as set forth in the applicable Transaction Agreements, of the Licensed Software in CD-ROM or other media format as set forth in the Transaction Agreement, from which Customer may make copi es for its use consistent with all limitations of this Software Licensing Agreement and the applicable Transaction Agreement.







(B) In connection with any Licensed Software provided under this Software Licensing Agreement, Supplier agrees a nd acknowledges that, by executing the Transaction Agreement, it has been advised of Customer's current Platform.













6.2 MULTIPLE PLATFORMS. Except as otherwise expressly set forth in the applicable Transaction Agreement, Customer shall have the right pursuant to Section 4.1 (A) and (B) of this Software Licensing Agreement, with no additional fee payable to Supplier, to operate simultaneously for a reasonable temporary period and to move the Software to other Platforms on which the Licensed Soft ware may operate. Customer shall notify the Supplier of such parallel operations and moves to other platforms.



7. DELIVERY AND INSTALLATION



7.1 DELIVERY AND RISK OF LOSS. All deliveries pursuant to this Software Licensing Agreement shall be F.O.B. destination. Risk of loss of all Licensed Software and media on which Licensed Software is delivered shall remain at all times with Supplier until the Acceptance Date.



7.2 SHIPMENTS. Within twenty (20) days following execution of the appl icable Transaction Agreement by Customer, Supplier shall ship the Licensed Software to the designated place of business set forth therein. Customer, in its sole discretion, may delay delivery for up to ninety (90) days after execution of the applicable Tr ansaction Agreement. Shipments shall be prepared and packed at Supplier's expense and shall be delivered via air or other express transportation to minimize delay. Customer shall pay all reasonable shipping charges for shipments requested by Customer.



7.3 INSTALLATION BY SUPPLIER. If the Transaction Agreement specifies installation by Supplier, then the following terms shall apply.





(A) Within thirty (30) days following execution of the applicable Transaction Agreement by Cust omer, Supplier shall install the Licensed Software on Customer's Platform at the Customer's designated place of business and make it ready for productive use pursuant to the terms set forth in Section 7.3(C) hereof. If delivery is delayed pursuant to Sect ion 7.2 of this Software Licensing Agreement, installation shall occur not less than ten (10) days after delivery of the Licensed Software to Customer.







(B) Customer, in its sole discretion, may delay installation for up to ninety (90) day s after delivery of the Licensed Software but shall make reasonable efforts to provide as much notice as possible to Supplier about such delay.







(C) Supplier shall conduct its standard diagnostic evaluation at the designated Customer Site to determine that the Licensed Software is properly installed and fully ready for productive use subject to Acceptance Testing as provided in Article 9 of this Software Licensin ...