Systems Integrator Agreement - PeopleSoft Inc. and Shared Medical Systems Corp.
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[*]
SYSTEMS INTEGRATOR AGREEMENT
(Non-Exclusive Appointment)
This Agreement ("Agreement") is made as of the Effective Date by and between
PeopleSoft, Inc. ("PEOPLESOFT") a Delaware corporation having a place of
business at 1331 North California Boulevard, Walnut Creek, California 94596 and
Shared Medical Systems Corporation ("SMS") a Delaware corporation having a place
of business at 51 Valley Stream Parkway, Malvern, Pennsylvania 19355
1. APPOINTMENT / GRANT OF LICENSES
a) PeopleSoft hereby appoints SMS as its (i) non-exclusive systems
integrator for the sub-licensing of the PeopleSoft HRMS Software, under
the SMS label, throughout the Territory to End Users solely in
conjunction with SMS's simultaneous distribution of SMS's Core
Applications and (ii) exclusive (except for PeopleSoft's distributor,
ADP, and as otherwise stated herein, including, Sections 2.c and 2.d)
systems integrator for the sub-licensing of the PeopleSoft HRMS
Software, under the SMS label, throughout the Territory to SMS End
Users.
b) PeopleSoft hereby appoints SMS as its (i) non-exclusive systems
integrator for the sub-licensing of the PeopleSoft Financial Software,
under the SMS label, throughout the Territory to End Users solely in
conjunction with SMS's simultaneous distribution of SMS's Core
Applications and (ii) exclusive (except as otherwise stated herein,
including, Sections 2.c and 2.d) systems integrator for the
sub-licensing of the PeopleSoft Financial Software, under the SMS
label, throughout the Territory to SMS End Users.
c) PeopleSoft hereby grants to SMS (i) a non-exclusive and nontransferable
license to sub-license the PeopleSoft HRMS Software, under the SMS
label, throughout the Territory solely to End Users in conjunction with
SMS's simultaneous distribution of SMS's Core Applications and (ii) an
exclusive (except for PeopleSoft's distributor, ADP, and as otherwise
stated herein, including, Sections 2.c and 2.d) and nontransferable
license to sub-license the PeopleSoft HRMS Software, under the SMS
label, throughout the Territory solely to SMS End Users, for
installation and use on a Server located in the Territory subject to
the terms and conditions of a License Agreement.
d) PeopleSoft hereby grants to SMS (i) a non-exclusive and nontransferable
license to sub-license the PeopleSoft Financial Software, under the SMS
label, solely to End Users throughout the Territory in conjunction with
SMS's simultaneous distribution of SMS's Core Applications and (ii) an
exclusive (except as otherwise stated herein, including, Sections 2.c
and 2.d) and nontransferable license to sub-license the PeopleSoft
Financial Software, under the SMS label, throughout the Territory
solely to SMS End Users, for installation and use on a Server located
in the Territory subject to the terms and conditions of a License
Agreement.
e) PeopleSoft hereby grants to SMS a perpetual, non-exclusive and
nontransferable license to use the PeopleSoft Software, including third
party software specified on Exhibit C, for its own internal use subject
to the terms and conditions of the PeopleSoft License Agreement
attached hereto as Exhibit E. With regards to SMS's internal use
license only, SMS shall have the right, at no additional PeopleSoft
license fee, to distribute the PeopleSoft manufactured components of
the Software (which excludes third party software identified in
PeopleSoft's then-current Hardware and Software Requirements Document,
a copy of such document as of the Effective Date is attached hereto as
Exhibit H) to multiple other Servers located either inside or outside
the Territory ("Distributed Sites") for the purpose of load balancing
SMS's data volumes and for performance efficiency purposes. SMS shall
support all Distributed Sites through SMS's central site. Support items
such as hotline support and distribution of maintenance Releases will
be conducted and distributed through SMS's central site. SMS is
responsible for obtaining, at its expense, any third party software
necessary to process at the Distributed Sites.
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
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f) SMS's internal use license for PeopleTools for general development, as
specified on Exhibit C, shall be used solely to (i) develop
applications for SMS's internal systems and/or (ii) develop
modifications and/or enhancements to the PeopleSoft Software. SMS shall
not market or distribute the applications developed with PeopleTools
for SMS's internal systems without executing a mutually acceptable
amendment to this Agreement authorizing such extended use and
specifying the royalty associated with such usage. SMS shall have the
right to market or distribute the modifications and/or enhancements to
the PeopleSoft Software developed with PeopleTools to End Users,
provided such modifications and enhancements do not compete with any
application offered by PeopleSoft.
g) Except for the third party software, specified in Section 1.h below,
that is embedded in the application programming code for the PeopleSoft
Software, any third party software required by End Users to operate the
PeopleSoft Software must be licensed directly from the manufacturer or
an authorized dealer. As of the Effective Date, PeopleSoft represents
that the third party software identified in the Hardware and Software
Requirements Document is the third party software necessary to operate
the PeopleSoft Software. The Hardware and Software Requirements
Document as of the Effective Date is attached hereto as Exhibit H.
PeopleSoft agrees to notify SMS of any changes regarding such third
party software in accordance with PeopleSoft's standard notification
procedures for its early release customer base which includes
notification via PS/Forum. The early release customer program is
described in Section 5.a.
h) As of the Effective Date, PeopleSoft represents that the third party
software embedded in the application programming code for the
PeopleSoft Software is as follows:
Halo Image Library
Two MicroSoft DLL Files: XLCALL.DLL and CTL3D.DLL
One 123DLL file from Lotus.
PeopleSoft agrees to notify SMS of any changes regarding such embedded
third party software in accordance with PeopleSoft's standard
notification procedures for its early release customer base which
includes notification via PS/Forum. The early release customer program
is described in Section 5.a.
i) PeopleSoft hereby grants to SMS a non-exclusive and nontransferable
license to use the PeopleSoft Software in the Territory to provide
technical support, training, and sales support, including
demonstrations, to End Users subject to the terms and conditions of the
PeopleSoft License Agreement attached hereto as Exhibit E.
j) PeopleSoft hereby grants to SMS the right to copy or reproduce the
PeopleSoft Software and Documentation or any part thereof only as is
required for the sublicense and distribution purposes as outlined
herein and as otherwise permitted under Section 3(c). SMS shall
reproduce the PeopleSoft Software and Documentation only in the
Territory.
k) PeopleSoft hereby grants SMS the right to sublicense the PeopleSoft
Software under a SMS trade name. However, any such "private labeling"
shall in no way (i) diminish PeopleSoft's rights, title or interest in
the PeopleSoft Software and PeopleTools, (ii) alter SMS's obligation
under this Agreement or (iii) use any part of PeopleSoft trademark or
trade name, including the word "People".
l) In the event PeopleSoft develops and licenses additional PeopleSoft
HRMS Software Modules and/or PeopleSoft Financials Software Modules,
and SMS and PeopleSoft desire to expand the scope of this Agreement to
cover such additional modules, PeopleSoft agrees that the additional
fees (distribution, royalties and maintenance, including telephone
support) shall be proportionate to the fees specified in Exhibit B. The
calculation shall compare PeopleSoft's list price for such additional
modules to the list price for the modules specified in Exhibit A. An
example for illustrative purposes only: if the list price for the
PeopleSoft Software Modules listed on Exhibit A is $1,000,000 and the
list price for a future
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PeopleSoft HRMS Software Module is $100,000, the royalties stated in
Section 4.b of Exhibit B shall increase by ten percent (10%) which is
100,000 divided by $1,000,000.
2. LICENSE VARIATIONS
a) If, after a Substantial "Selling" Effort by SMS, a Health Care Industry
prospect in the Territory that is not a SMS End User decides to license
only the PeopleSoft Software and not SMS's Core Applications,
PeopleSoft agrees that, upon PeopleSoft's prior written approval, which
approval shall not be unreasonably withheld, SMS shall have the right
to license the PeopleSoft HRMS Software and PeopleSoft Financial
Software, respectively, to such prospect for installation and use on a
Server located in the Territory subject to the terms and conditions of
a License Agreement; provided SMS pays PeopleSoft the applicable
royalty specified in Exhibit B. SMS understands and agrees that
notwithstanding anything to the contrary, PeopleSoft may withhold its
consent if PeopleSoft is competing with SMS in order to license the
PeopleSoft Software to the prospect.
b) SMS may not grant any rights or licenses to distribute the PeopleSoft
Software to any computer equipment manufacturers, value added
resellers, sub-distributors or other third party without the separate
prior written approval of PeopleSoft, which approval may be withheld by
PeopleSoft for any reason or may be subject to such conditions as
determined by PeopleSoft in its discretion. In the event PeopleSoft
allows SMS to grant any such sub-distribution rights, SMS shall submit
a copy of the proposed sub-distribution agreement to PeopleSoft for
review and approval prior to appointment of the sub-distributor.
c) PeopleSoft retains the right to distribute the PeopleSoft Software
directly in the Territory by itself or through other then-current
distributors, oems, vars and other channel partners. Except as stated
in Section 2.d below, SMS shall not be entitled to any compensation or
credit for such PeopleSoft related transactions. However, with respect
to SMS End Users, PeopleSoft agrees that PeopleSoft and its
then-current distributors, oems, vars and other channel partners (with
the specific exclusion of ADP as to PeopleSoft HRMS Software) shall
only market the PeopleSoft Software (i) to the SMS End Users listed on
Exhibit L on which PeopleSoft has expended a Substantial "Selling"
Effort and (ii) with SMS's prior written permission, which permission
shall not be unreasonably withheld, to other SMS End Users upon direct
solicitation by such entities. SMS understands and agrees that during
the nine (9) month period following the Effective Date, PeopleSoft has
the exclusive right to market, distribute and license the PeopleSoft
Software to the SMS End Users listed on Exhibit L. PeopleSoft
understands and agrees that after the expiration of the nine (9) month
period following the Effective Date, PeopleSoft must cease to market
the PeopleSoft Software to SMS End Users listed on Exhibit L unless
such SMS End Users directly solicit PeopleSoft and SMS grants
PeopleSoft SMS's prior written permission, which permission shall not
be unreasonably withheld.
SMS understands and agrees that during the twelve (12) month period
following the Effective Date, PeopleSoft has the exclusive marketing,
distribution and licensing rights for the prospects listed on Exhibit L
and SMS shall not market or distribute the PeopleSoft Software to such
prospects during such twelve month period.
SMS understands and agrees that during the Term of this Agreement,
including all subsequent renewals, PeopleSoft has the right to market,
distribute and license the PeopleSoft Software to the entities listed
on Exhibit L that are current PeopleSoft customers and SMS End Users.
With regards to the SMS End Users described in this Section, PeopleSoft
is not obligated to pay royalty or issue any credit to SMS in
conjunction with a license of the PeopleSoft Software to such entities
by PeopleSoft.
d) If, after a Substantial "Selling" Effort by SMS, a SMS End User decides
to license the PeopleSoft Software directly from PeopleSoft, SMS agrees
that, upon SMS's prior written approval, which approval shall not be
unreasonably withheld, PeopleSoft shall have the right to license the
PeopleSoft HRMS Software and
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PeopleSoft Financial Software, respectively, to such SMS End User;
provided PeopleSoft credits to the royalties SMS is obligated to pay
PeopleSoft the amounts specified in Exhibit B. Notwithstanding anything
to the contrary, the credit obligation shall not apply to the SMS End
Users listed on Exhibit L on which PeopleSoft has expended a
Substantial "Selling" Effort. PeopleSoft understands and agrees that
notwithstanding anything to the contrary, SMS may withhold its consent
if PeopleSoft is competing with SMS in order to license the PeopleSoft
Software to the SMS End User.
3. LICENSE EXCLUSIONS
a) SMS shall not license or distribute the Software outside the Territory,
except as expressly provided herein. SMS has no right to exploit
PeopleSoft's intellectual property except as specifically set forth in
this Agreement.
b) Except as otherwise stated herein, SMS shall not license or distribute
the PeopleSoft Software to any entity that (i) is not simultaneously
licensing SMS's Core Applications in conjunction with the PeopleSoft
Software or (ii) is not a SMS End User.
c) SMS shall not (or permit any third party to) copy, translate or modify
the PeopleSoft Software and Documentation, except for sublicense
distribution purposes, normal back-up, disaster recovery testing,
disaster recovery operation, archival copies or as otherwise stated in
this Agreement and/or the License Agreement. Notwithstanding anything
to the contrary in this Agreement, SMS shall have the right to enable
End Users to cause additional facilities and affiliated entities under
contract with End User to access the PeopleSoft Software provided that
PeopleSoft's intellectual property rights are protected.
d) SMS shall not permit any third party to license, sublicense,
distribute, assign, transfer or use the PeopleSoft Software, except as
specifically permitted under this Agreement.
e) SMS warrants that SMS will not export or disclose directly or
indirectly: (i) the PeopleSoft Software or related technical
information, documents or materials; or (ii) any direct product
produced from the PeopleSoft Software or related technical information,
documents, or materials without the prior written consent, if required,
of the Office of Export Administration of the US Department of
Commerce, Washington DC. In the event SMS elects to operate
internationally as specified in Section 8 of Exhibit B, SMS shall use
its best endeavors to ensure its international customers abide by the
terms contained in this clause. Such obligation shall be satisfied by
the inclusion in SMS's License Agreement of a warranty similar to that
contained herein.
f) Neither party shall knowingly make any false or misleading
representations concerning the other party or the other party's
Software.
4. SMS'S OBLIGATIONS
During the Term, SMS agrees to do each of the following :
a) Use all reasonable efforts commensurate with market demand to solicit
licenses of the PeopleSoft Software and provision of Maintenance, as
distributor for PeopleSoft, from End Users located within the
Territory.
b) Enter into, in its own name and not that of PeopleSoft, licenses of the
PeopleSoft Software directly with End Users, pursuant to a License
Agreement. SMS warrants that all end user license agreement shall
contain (i) confidentiality and scope of use provisions substantially
similar to the form attached hereto as Exhibit I and (ii) a third party
beneficiary rights provision that shall allow PeopleSoft the right to
enforce the confidentiality and scope of use provisions.
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c) Offer Maintenance to all End Users pursuant to a Maintenance Agreement.
It is expressly agreed by SMS that all Maintenance Agreements executed
by SMS pursuant to this Agreement are executed by SMS as principal and
not as agent for PeopleSoft.
d) Perform or cause to be performed, the following: (i) the installation
of the PeopleSoft Software, if elected by End User, (ii) the training
of End User personnel in the use of the PeopleSoft Software, (iii) the
provision of Maintenance required under any Maintenance Agreement. Any
expenses associated with such activities shall be paid by SMS and/or
the End User. In no event shall PeopleSoft be responsible for such
activities and the associated expenses.
e) Except as otherwise provided in this subsection 4.e, not directly or
indirectly market or distribute any products in the Territory which
compete with the PeopleSoft Software. As of the Effective Date,
products from Oracle (financials), Dun & Bradstreet Software, SAP, JD
Edwards, Ross Systems (excluding licensees existing on the Effective
Date and additional licenses and/or license extensions to SMS's Allegra
customer base), Integral, Cyborg and Tesseract are competing products.
Notwithstanding anything to the contrary, this restriction shall not
apply to SMS's marketing or distribution (i) to SMS End Users that, on
the Effective Date, have an existing license with SMS for a Ross
Systems application, (ii) of any new license(s) and/or license
extension(s) between SMS and SMS's Allegra customer base for a Ross
Systems application, (iii) of any new license(s) between SMS and SMS's
Allegra prospects for a Ross Systems application during the twelve (12)
month period after the Effective Date, provided SMS has expended a
Substantial "Selling" Effort on such prospect(s) prior to the Effective
Date, and (iv) of SMS's current legacy applications for Human Resources
and Financials, such as UNITY, INVISION, MS4. SMS represents that SMS
does not intend to proliferate the Ross Systems application within
SMS's Allegra customer base. This list may be updated during the Term
to include other products reasonably understood in the marketplace to
be competitors of PeopleSoft's products. This obligation shall not
survive termination of this Agreement. In the event SMS has paid
PeopleSoft the total amount of all the fees specified in Sections 4.a,
4.c and 4.d SMS may elect to market or distribute products in the
Territory which compete with the PeopleSoft Software.
f) Distribute the PeopleSoft Software to End Users properly licensed to
use the PeopleSoft Software.
g) Distribute Releases to End Users properly licensed to use the
PeopleSoft Software and under a current Maintenance Agreement with SMS.
h) Bear and be liable for all costs and expenses initiated and incurred by
SMS in fulfilling its responsibilities under this Agreement.
i) Bear and be liable for all reasonable travel and living expenses
incurred by PeopleSoft personnel performing services pursuant to this
Agreement at the request of SMS. Such expenses shall be reimbursed in
accordance with SMS's then current expense reimbursement policy for its
employees. At copy of such policy as of the Effective Date is attached
hereto as Exhibit M.
j) Be responsible for acquiring the right to distribute and sublicense, or
requiring that End Users acquire, any third party software products or
modules normally provided by PeopleSoft in conjunction with a license
of the PeopleSoft Software. Such third party software products are
described in PeopleSoft's Hardware and Software Requirements Guide, a
copy of such document as of the Effective Date is attached hereto as
Exhibit H. PeopleSoft shall update such guide periodically to identify
the then-current third party software products or modules associated
with the PeopleSoft Software.
k) To oversee the parties relationship under this Agreement, create with
PeopleSoft an Executive Team comprised of one senior management
representative from each organization. The Executive Team will meet at
least twice a year throughout the term of this Agreement and be
responsible for monitoring the progress of the relationship,
recommending and causing improvements to be implemented, and discussing
mutual strategy as it relates to the Agreement. The meetings shall
alternate between PeopleSoft's corporate
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headquarters and SMS's corporate headquarters. In the event of a
deadlock, the Executive Team will submit to dispute escalation
procedures pursuant to Section 19.
5. PEOPLESOFT'S OBLIGATIONS
During the Term, PeopleSoft agrees to do each of the following:
a) Provide SMS with reasonable prior notice concerning PeopleSoft's
release of new or updated software. PeopleSoft agrees that SMS shall be
treated as an "early release" customer, provided SMS has paid the
Software Support Services fee for the then-current year. Accordingly,
SMS shall receive pre-release beta versions of the PeopleSoft Software
to assist SMS with planning its direction. The pre-release beta
PeopleSoft Software is provided "as is" without any Software Support
Services. Provided SMS is a then-current participant in PeopleSoft's
Software Support Services and Maintenance Program as specified in
Sections 4.f and 4.g of Exhibit B and specifically excluding Sections
4.h and 4.i of Exhibit B, PeopleSoft shall deliver to SMS the generally
available Release of the PeopleSoft Software if or when such Releases
are available.
b) Provide SMS with membership in PeopleSoft's Healthcare Advisory Group.
Such group meets periodically to discuss the direction of PeopleSoft's
efforts in the healthcare market. In addition, PeopleSoft agrees to
provide SMS with access to PeopleSoft's strategic marketing group for
the healthcare industry. Such access shall be available based upon a
mutually agreeable schedule.
c) Provide SMS with a copy of software marketing materials, price lists
and updates thereto for SMS's use solely in connection with this
Agreement. For certain software marketing materials, PeopleSoft may
charge SMS PeopleSoft's cost associated with producing and delivering
such marketing materials.
d) Provide SMS with Secondline Support and reasonable access to
PeopleSoft's standard Lotus Notes database or successor database.
PeopleSoft shall have no obligation to directly support SMS's
customers. In the event an End User is experiencing a Priority A Error,
as defined in Exhibit D, within the twelve month period following the
Effective Date (and such period shall continue for as long as SMS has
paid the applicable Software Support Services fee as specified in
Sections 4.f, 4.g, 4.h and 4.i of Exhibit B) and SMS is unable to
correct such error after utilizing all reasonable efforts, PeopleSoft
agrees that such End User may directly contact PeopleSoft for
assistance with such error, provided SMS notifies the PeopleSoft
support representative of the situation.
e) Provide other technical support, as reasonably requested by SMS on a
time and material basis. As of the Effective Date, PeopleSoft's
consulting rates are as follows:
<TABLE>
<S> <C>
Consultant $175/hour
Senior Consultant $200/hour
Manager $225/hour
Product Specialist $225/hour
</TABLE>
On-site consulting services are charged at a minimum increment of four
(4) hours per day.
f) Provide SMS with Releases in accordance with PeopleSoft's then current
commercial practices.
g) For the PeopleSoft Software used exclusively for SMS's internal use,
provide SMS with Maintenance as described in Exhibit F.
h) Provide SMS with [*] training units for use at any PeopleSoft training
facility in order for SMS to become a certified instructor and for
SMS's internal use. The fee for such training units are included in the
fees specified in Sections 4.a, 4.c and 4.d of Exhibit B. SMS must use
these training units within two years from the Effective Date. During
the first year of this Agreement, SMS may only utilize
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
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[*] training units which is sixty percent (60%) of the total number of
training units. During the second year of this Agreement, SMS must
utilize the remainder of the training units. One training unit is the
equivalent of one student day of training in a PeopleSoft training
class. As of the Effective Date, the fee associated with on-site
training is as follows: $1,500 per day instructor fee plus the
applicable number of training units per day per on-site training class
plus the reasonable travel and living expenses incurred by PeopleSoft
personnel in association with such training.
i) Provide SMS with [*] site support days to be used during the initial
installation of the PeopleSoft Software. During the first year of this
Agreement, SMS may only utilize nine (9) support days which is
approximately sixty percent (60%) of the total number of support days.
During the second year of this Agreement, SMS must utilize the
remainder of the support days. The fee for such on-site support days
are included in the fees specified in Sections 4.a, 4.c and 4.d of
Exhibit B. The services to be performed during the on-site days will be
the services reasonably requested by SMS.
j) Provide SMS with [*] hours of consulting services to assist with the
installation and/or implementation of the PeopleSoft Software at SMS or
End-User sites. The fee for such consulting services are included in
the fees specified in Sections 4.a, 4.c and 4.d of Exhibit B. SMS must
use these consulting hours within two years from the Effective Date.
During the first year of this Agreement, SMS may only utilize [*] which
is approximately sixty percent (60%) of the total number of consulting
hours. During the second year of this Agreement, SMS must utilize the
remainder of the consulting hours.
k) During the term of this Agreement, not to enter into substantially
similar marketing and distribution agreements for the PeopleSoft
Software in the Territory and in the Healthcare Industry with any SMS
Competitor that markets and/or licenses applications that compete with
SMS's Core Applications. The provisions of this Section 5.k shall be
construed to prevent an SMS Competitor, whether directly under contract
with PeopleSoft, or indirectly through any ownership, management or
contractual relationship, from marketing, distributing and licensing
the PeopleSoft Software in the Territory and in the Healthcare
Industry. One possible example, for illustrative purposes only, of a
permitted marketing and distribution agreement: PeopleSoft may enter
into a substantially similar marketing and distribution agreements for
the PeopleSoft Software in the Territory outside the Healthcare
Industry with an entity whose primary source of revenue is derived
outside the Healthcare Industry from a decision support services
application.
Except as otherwise provided in this Agreement, if SMS elects to market
or distribute products in the Territory which compete with the
PeopleSoft Software (as specified in Section 4.e), the restriction
contained in this Section 5.i shall no longer apply, provided
PeopleSoft gives SMS written notice at least ten (10) days prior to
PeopleSoft removing the restriction contained in this Section 5.i.
l) Bear and be liable for all costs and expenses initiated and incurred by
PeopleSoft in fulfilling its responsibilities under this Agreement,
except for travel and living expenses incurred by PeopleSoft personnel
performing services pursuant to this Agreement at the request of SMS.
m) To oversee the parties relationship under this Agreement, create with
SMS an Executive Team comprised of one senior management representative
from each organization. The Executive Team will meet at least twice a
year throughout the term of this Agreement and be responsible for
monitoring the progress of the relationship, recommending and causing
improvements to be implemented, and discussing mutual strategy as it
relates to the Agreement. The meetings shall alternate between
PeopleSoft's corporate headquarters and SMS's corporate headquarters.
In the event of a deadlock, the Executive Team will submit to dispute
escalation procedures pursuant to Section 19.
6. COMMERCIAL TERMS
a) SMS shall pay PeopleSoft the following amounts: (i) all amounts due to
PeopleSoft in accordance with Exhibit B; and (ii) all related shipping
charges and customs duties. Unless SMS provides PeopleSoft with
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
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a valid tax exemption or direct pay certificate, SMS is responsible for
all taxes, duties and customs fees concerning this Agreement and/or
services, excluding taxes based on PeopleSoft's income.
b) SMS is free to set its own prices for the licensing and Maintenance of
the PeopleSoft Software in the Territory. PeopleSoft shall provide SMS
with thirty days prior notice concerning any revisions to the
PeopleSoft price list. As of the Effective Date, PeopleSoft's intent is
to revise the PeopleSoft price list on an annual basis. All outstanding
SMS proposals will be valid for ninety (90) days from SMS's receipt of
PeopleSoft written notice of a revision to the PeopleSoft price list.
c) In the event SMS requires special technical or sales assistance, the
parties shall mutually agree in writing on payment of costs and
compensation on a case by case basis.
7. NOTIFYING AND SHIPMENT OF SOFTWARE
a) SMS shall, no later than fifteen (15) days following the end of each
quarter, inform PeopleSoft of the delivery of any PeopleSoft Software
sublicensed by SMS and shall provide to PeopleSoft a SMS quarterly
report, in the form attached as Exhibit K, containing sufficient
information to allow PeopleSoft to invoice SMS for such licenses. Such
quarterly report shall also contain an update for Exhibit G that
specifies all the entities that executed a license agreement with SMS
for any and all SMS's Core Application during the reporting period.
b) For the purposes of this Agreement, the quarters shall end on the
following dates:
February 28 (or February 29, if applicable)
May 31
August 31
November 30
c) The preprinted terms and conditions of any SMS order shall not
supersede the terms and conditions set forth herein.
d) Unless otherwise agreed, PeopleSoft Software shall be shipped to End
Users by SMS.
8. LIMITED USE OF TRADEMARKS AND TRADENAMES
a) All trademarks, service marks, trade names, logos or other words or
symbols identifying the PeopleSoft Software or PeopleSoft's business
(the "Marks") are and will remain the exclusive property of PeopleSoft,
whether or not specifically recognized or perfected under the laws of
the Territory. SMS will not take any action that jeopardizes
PeopleSoft's proprietary rights or acquire any rights in the Marks,
except the limited use rights specified in paragraph (c) below. Except
as otherwise agreed in writing, SMS will not register, directly or
indirectly, any trademark, service mark, trade name, copyright, company
name or other proprietary or commercial right which is identical or
confusingly similar to the Marks or which are translations thereof in
any other language(s). Upon PeopleSoft's request, SMS will execute such
instruments and take such actions that may be appropriate to register,
maintain or renew the registration of the Marks in PeopleSoft's name in
the Territory and/or protect PeopleSoft's interest in the Marks.
b) All trademarks, service marks, trade names, logos or other words or
symbols identifying SMS Products or SMS's business and specified on
Exhibit N (the " SMS Marks") are and will remain the exclusive property
of SMS, whether or not specifically recognized or perfected under the
laws of the Territory. PeopleSoft will not take any action that
jeopardizes SMS's proprietary rights or acquire any rights in the SMS
Marks, except the limited use rights specified in paragraph (c) below.
Except as otherwise agreed in writing, PeopleSoft will not register,
directly or indirectly, any trademark, service mark, trade name,
copyright, company name or other proprietary or commercial right which
is identical or confusingly similar to the SMS Marks or which are
translations thereof in any other language(s).
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c) SMS may use PeopleSoft's Marks which relate to the PeopleSoft Software
solely in connection with SMS's activities under this Agreement,
provided SMS clearly identifies PeopleSoft's ownership of such Marks.
PeopleSoft may use SMS's Marks solely in connection with PeopleSoft's
activities under this Agreement, provided PeopleSoft clearly identifies
SMS's ownership of such Marks. Each party shall submit to the other all
advertising and marketing material using the other party's trademarks,
service marks, trade names, logos or other words or symbols identifying
such party to the owner of such marks for review and approval prior to
release by the non-owner. Such consent shall not be unreasonably
withheld. Furthermore, such consent shall be deemed to have been
obtained if the party seeking approval has not received any objection
to the submitted materials within thirty (30) days after the submission
of the material. Both parties also reserve the right to require the
other party to discontinue use of any advertising and marketing
materials related to the subject matter of this transaction that such
party reasonably believes will have a detrimental effect on its
business.
9. PAYMENTS
a) All payments shall be made in U.S. dollars by payment to PeopleSoft's
bank account specified in Exhibit B or as changed by PeopleSoft from
time to time upon notice to SMS. Unless otherwise specified herein, all
payments are due within thirty (30) days of SMS's receipt of a correct
invoice Overdue payments shall accrue interest at the lesser of twelve
per cent (12%) per annum or the maximum rate permitted by applicable
law. However, if SMS pays PeopleSoft an amount which SMS disputes and
upon settlement of such dispute, it is determined that PeopleSoft is
not entitled to such amounts, PeopleSoft shall pay the amounts to which
it is found not to be entitled to SMS together with interest thereon
payable at a rate of twelve percent (12%) per annum or the maximum rate
permitted by applicable law from the date such amounts were paid to
PeopleSoft through the date of refund of such payments to SMS. SMS
shall pay all taxes and duties associated with this Agreement, other
than taxes based on PeopleSoft's net income.
b) All amounts payable by SMS under this Agreement are exclusive of any
tax, levy or similar governmental charge that may be assessed within
the Territory, whether based on gross revenue, the delivery, possession
or use of the PeopleSoft Software, the execution, delivery and
performance of this Agreement or otherwise. If SMS is legally required
to withhold any income or remittance tax from amounts payable to
PeopleSoft, then (i) SMS will promptly notify PeopleSoft, (ii) the
amount payable will be automatically increased to the full extent
required to offset such tax, so that the amount remitted to PeopleSoft,
net of all taxes, equals the amount stated in the invoice, and (iii)
SMS will promptly furnish PeopleSoft with the official receipt of
payment of such tax to the appropriate taxing authority. SMS agrees to
assume all responsibility for collection and payment of any value added
or sales taxes applicable in the Territory.
10. TERM
This Agreement shall commence on the Effective Date and, unless
otherwise sooner terminated as provided herein, shall terminate and
expire at the end of the Term.
Upon expiration of the Term, this Agreement shall be extended
automatically for a renewal term(s) of one (1) year unless SMS notifies
PeopleSoft, in writing at least thirty days prior to the anniversary of
the Effective Date, of its intention not to renew this Agreement.
PeopleSoft may only terminate this Agreement in accordance with the
terms and conditions of this Agreement, including Sections 16 and 17,
Default and Termination, respectively.
In the event SMS has a Paid Up License as defined in Section 4.e of
Exhibit B and this Agreement is not renewed, SMS may continue to
distribute the PeopleSoft Software as outlined in this Agreement;
however, PeopleSoft shall have no obligation to provide any new
Releases or the like.
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<PAGE> 10
11. RECORDS AND REPORTS
a) SMS shall keep full, true and accurate records and accounts in
accordance with generally accepted accounting practices to show all
amounts payable by SMS to PeopleSoft. These records and accounts shall
be retained for a period of at least two (2) years and shall include,
at a minimum, for each License and Maintenance Agreement executed: (i)
the name and address of the End User; (ii) the date of shipment; and
(iii) a copy of each License Agreement and Maintenance Agreement.
b) SMS shall keep all records at SMS's principal place of business. On an
annual basis and with sixty days prior notice to SMS, PeopleSoft shall
have the right to conduct audits of the records to determine SMS's
compliance with this Agreement. PeopleSoft shall bear the expenses of
the audit, however, in the event any such audit reveals that SMS has
understated the amount that SMS is obligated to pay PeopleSoft under
this Agreement by an amount of more than five percent (5%) of the
amount paid to PeopleSoft during the period audited, SMS shall pay, in
addition to the amounts due, all reasonable costs associated with the
audit.
c) PeopleSoft shall keep all records at PeopleSoft's principal place of
business. On an annual basis and with sixty days prior notice to
PeopleSoft, SMS shall have the right to conduct audits of the records
to determine PeopleSoft 's compliance with this Agreement. SMS shall
bear the expenses of the audit, however, in the event any such audit
reveals that PeopleSoft has understated the amount that PeopleSoft is
obligated to credit to SMS under this Agreement in accordance with
Section 5 of Exhibit B by an amount of more than five percent (5%) of
the amount to be credited to SMS during the period audited, PeopleSoft
shall pay, in addition to the amounts due, all reasonable costs
associated with the audit.
12. COMPLIANCE WITH LAWS
a) Each party will, at its expense, obtain and maintain the governmental
and other authorizations, registrations and filings that may be
required under the laws of the Territory to execute or perform this
Agreement. Each party will otherwise comply with all laws, regulations
and other legal requirements that apply to this Agreement, including
tax and foreign exchange legislation.
b) At the expense of the requesting party, either party to this Agreement
may request that the other party provide the requesting party with
assurances and official documents to verify the other party's
compliance with this Section.
13. TITLE AND PROTECTION OF SOFTWARE AND CONFIDENTIAL INFORMATION
a) PeopleSoft retains ownership of all intellectual property rights
(including copyright and trademarks) in and relating to the PeopleSoft
Software. If an enhancement, improvement or other modification is
created with PeopleTools, SMS shall have all right, title and interest
only in such enhancement, improvement or other modification that
remains after PeopleTools has been removed from such enhancement,
improvement or other modification.
b) Each party agrees to take the necessary precautions to maintain the
confidentiality of Confidential Information pertaining to or disclosed
in connection with this Agreement by using at least the same degree of
care as such party employs with respect to its own Confidential
Information of a like-kind or nature, but in no case less than
reasonable care to maintain confidentiality. Each party shall only use
such Confidential Information in connection with its performance of
this Agreement. Confidential Information does not include information
which is generally available to the public on an unrestricted basis;
previously known or independently developed outside this Agreement; or
lawfully disclosed by a third party without restriction.
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<PAGE> 11
14. REPRESENTATIONS / LIMITATION OF LIABILITY
a) Each party represents that it has the right to enter into this
Agreement. SMS warrants that it has the authority to bind its
affiliates, subsidiaries and operating divisions to the terms and
conditions of this Agreement.
b) PeopleSoft warrants that it has the authority to grant to SMS all the
rights contained herein, including the right to grant licenses to use
and sublicense the PeopleSoft Software and the third party software
specified in Section 1.h that is embedded in the application
programming code for the PeopleSoft Software. In the event, PeopleSoft
embeds additional third party software in the application programming
code for the PeopleSoft Software, PeopleSoft shall extend this warranty
to cover such additional third party software.
c) PeopleSoft warrants that (i) PeopleSoft uses a reliable virus detection
system, therefore, PeopleSoft represents that to the best of its
knowledge that the PeopleSoft Software contains no computer viruses of
any kind or form and (ii) the PeopleSoft Software does not contain any
procedures or programs which can disable or destroy the PeopleSoft
Software. In addition, PeopleSoft warrants that the PeopleSoft Software
does not and shall not contain any lock, clock, timer, counter, copy
protection feature, replication device or defect ("virus" or "worm" as
such terms are commonly used in the computer industry), CPU serial
number reference, or other device which: (i) might lock, disable or
erase the PeopleSoft Software; (ii) prevent SMS from fully utilizing
the PeopleSoft Software; or (iii) require action or intervention by
PeopleSoft or any other person or entity to allow SMS to utilize the
PeopleSoft Software.
d) PeopleSoft represents that it has the right to enter into this
Agreement. PeopleSoft represents that the PeopleSoft Software does not
infringe any patent, copyright or other third party intellectual
property rights under the laws of any country within the Territory when
used in accordance with the published specifications. PeopleSoft
represents that the PeopleSoft Software will perform substantially in
accordance with PeopleSoft's published specifications for a period of
one (1) year from delivery to SMS and such warranty shall continue for
as long as SMS has paid the applicable Software Support Services fee.
The initial one (1) year warranty is provided at not cost to SMS.
PeopleSoft shall have no responsibility for any modifications or
alterations carried out by the SMS or any party other than PeopleSoft
PeopleSoft's sole obligation to remedy any breach of this warranty
shall be to provide Secondline Support in an effort to remedy the
defect. PeopleSoft does not represent that the PeopleSoft Software is
error-free. SMS shall make no representation or warranty concerning the
PeopleSoft Software which would expand the scope of the representations
made by PeopleSoft in this Agreement.
e) PEOPLESOFT DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
f) Except for the indemnification provided in the section entitled
"Indemnification" below and except for claims for bodily injury or
tangible property damage to extent caused by the proven fault of
PeopleSoft, PeopleSoft's liability for damages under this Agreement
(whether in contract or tort) shall not exceed the amounts paid by SMS
to PeopleSoft. EXCEPT FOR LIABILITY RELATING TO THE BREACHES OF
INTELLECTUAL OR PROPRIETARY RIGHTS, NEITHER PARTY WILL BE LIABLE FOR
ANY LOST DATA, LOST PROFITS, INCIDENTAL, CONSEQUENTIAL OR INDIRECT
DAMAGES OR ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
15. INDEMNIFICATION
a) PeopleSoft shall indemnify and defend SMS against any claim that the
PeopleSoft Software infringes patent, copyright or other third party
intellectual property rights under the laws of any country within the
Territory when used by SMS or its End Users in accordance with the
terms of this Agreement; provided
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<PAGE> 12
SMS gives PeopleSoft prompt notice of such claim and is given
information, reasonable assistance and authority to defend or settle
the claim. Notwithstanding anything to the contrary herein,
PeopleSoft's liability under this Section 15.a is limited to the
amounts award against SMS by a court or agreed to in settlement by
PeopleSoft. PeopleSoft shall have the right, at its option, either to
obtain for SMS the right to continue using the product, substitute
other software with equivalent functional capabilities or modify the
product so that it is no longer infringing while retaining equivalent
functions. If such options are not reasonably available, SMS's remedy
shall be to terminate this Agreement, to cease using and return to
PeopleSoft all infringing copies of the PeopleSoft Software in SMS's
possession and receive the amount of fees paid to PeopleSoft for such
copies depreciated on a five year straight-line method. Notwithstanding
the foregoing, PeopleSoft shall have no obligation or liability for any
claim for infringement of the intellectual property rights of any party
which is based on or arises out of (i) any act or omission on the part
of the SMS, (ii) compliance with designs or specifications provided by
or on behalf of the SMS or any third party, (iii) modifications or
alterations carried out by the SMS or any party other than PeopleSoft,
(iv) the use in connection with the PeopleSoft Software of any software
not supplied by PeopleSoft, (v) the use of the PeopleSoft Software in a
manner not authorized or contemplated by this Agreement, or (vi) the
failure to promptly install any Release. The foregoing states the
entire liability and obligation of PeopleSoft to the SMS for
infringement of the intellectual property rights of any third party.
b) SMS shall indemnify and defend PeopleSoft against any damage, loss,
liability or expense that PeopleSoft may incur (i) with respect to the
acts or omissions of any of SMS's employees or agents while at
PeopleSoft's facilities or (ii) as a result of (1) any modification or
amendment of the prescribed terms of the License Agreement or
Maintenance Agreement that PeopleSoft did not specifically approve, (2)
any warranty, condition, representation, indemnity or guarantee granted
by SMS with respect to the PeopleSoft Software in addition to or in
lieu of the limited warranties specified in the Section of this
Agreement titled "Representations and Limitations of Liability", (3)
any omission or inaccuracy in SMS's advertisements and promotional
materials that relate to PeopleSoft or the PeopleSoft Software, (4) any
customization or other modification of the PeopleSoft Software by SMS
or its employees or agents, including, without limitation, any
customization or other modification made with PeopleTools, or (5) SMS's
failure to comply with the Sections of this Agreement titled "License
Exclusions", "Compliance with Laws" or "Title and Protection of
Software and Confidential Information"; provided PeopleSoft gives SMS
prompt notice of such claim and is given information, reasonable
assistance and authority to defend or settle the claim. Notwithstanding
anything to the contrary herein, SMS's liability under this Section
15.b is limited to the amounts award against PeopleSoft by a court or
agreed to in settlement by SMS. This Section will not be construed to
limit or exclude any other claims or remedies which PeopleSoft may
assert under this Agreement or by law.
16. DEFAULT
a) Any of the following shall constitute an Event of Default: (i) SMS
fails to pay any sum due under this Agreement within thirty (30) days
after the time period specified in this Agreement; or (ii) either party
fails to perform any of its other material obligations under this
Agreement and such failure remains uncured for thirty (30) days after
receipt of written notice thereof.
b) In any Event of Default occurs, the nondefaulting party, in addition to
any other rights available to it under law or equity, may withhold its
performance (other than payment of sums due and owing to the other
party) under and/or may immediately terminate this Agreement and any
rights granted hereunder by written notice to the defaulting party.
Unless otherwise provided in this Agreement, remedies shall be
cumulative and there shall be no obligation to exercise a particular
remedy.
17. TERMINATION
a) All licenses properly granted by SMS to End Users pursuant to this
Agreement shall survive termination of this Agreement. Furthermore,
SMS's internal use license shall survive termination of this Agreement
unless PeopleSoft has terminated the internal use license pursuant to
the terms and conditions of Exhibit E
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<PAGE> 13
attached hereto. In such event, PeopleSoft, in addition to any other
rights available to it under law or equity, may terminate this
Agreement and the internal use licenses granted hereunder by written
notice to SMS.
b) In the event one party hereto merges with, or sells substantially all
of its assets to, or undergoes a Change of Control involving, a
competitor (as the term competitor is described in Section 4.e for
PeopleSoft competitor and Section 18 for SMS Competitor) of the other
party hereto, such other party may terminate this Agreement. An example
for illustrative purposes only: in the event of a Change of Control of
PeopleSoft to an SMS competitor, SMS (not PeopleSoft) may terminate
this Agreement.
c) Except if this Agreement is terminated due to an Event of Default by
PeopleSoft, immediately upon termination of this Agreement, all sums
that are outstanding under this Agreement shall be paid to the
appropriate party, and the due dates of all payments shall be
automatically accelerated to the date of termination.
In the Event of Default by PeopleSoft, SMS may terminate this Agreement
as specified in Section 16.b above and SMS shall immediately cease to
distribute the PeopleSoft Software and shall return all copies of the
PeopleSoft Software except for the copy required to provide support
services to End Users as specified in the paragraph below. The
preceding sentence shall not apply if SMS has a Paid-Up License and
elects to continue to distribute the PeopleSoft Software as outlined in
this Agreement; however, PeopleSoft shall have no obligation to provide
any new Releases or the like.
Except in the event of default by SMS, if this Agreement is terminated,
SMS shall have the right to continue using the PeopleSoft Software to
provide support services to End Users for the remaining of the
then-current term of the SMS End User License Agreement and PeopleSoft
will continue to provide support services to SMS in accordance with
PeopleSoft's then-current rate structure. If the Agreement was
terminated due to SMS's default or if SMS is unable or does not elect
to provide support services to End Users, PeopleSoft agrees, except as
otherwise stated herein, to offer support services to affected End
Users subject to PeopleSoft's then current, generally applicable
support terms and fees, including, without limitation, the requirement
to be on PeopleSoft's current Release of the PeopleSoft Software. SMS
understands and agrees that PeopleSoft's support service offer does not
extend to SMS's Timeshare Operation and the affected End Users.
Except for perpetual licenses specified herein, SMS shall return to
PeopleSoft or its designee, or certify in writing to PeopleSoft that
all copies or partial copies of the PeopleSoft Software in SMS's
possession or control have been destroyed.
d) Upon termination of this Agreement, SMS shall immediately (i) cease to
use any documentation or advertising identifying it as a PeopleSoft
distributor or representative of PeopleSoft, and (ii) remove promptly
all signs, cancel all business listings, and take such other reasonable
action as may be necessary to remove its identification as such a
PeopleSoft distributor or representative.
Upon termination of this Agreement, PeopleSoft shall immediately (i)
cease to use any materials or advertising identifying SMS as a
PeopleSoft distributor, and (ii) remove promptly all signs, cancel all
business listings, and take such other reasonable action as may be
necessary to remove any identification of SMS as a PeopleSoft
distributor.
e) In addition to this section, the sections entitled 'License
Exclusions', 'Title and Protection of Software and Confidential
Information,' and 'Representations / Limitation of Liability', and
'Indemnification', shall survive termination of this Agreement.
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18. DEFINITIONS
"Change of Control" means that a person, firm, company or entity
acquires more than fifty percent (50%) or more of the voting shares or
equity interest in one of the parties to this Agreement.
"Confidential Information" means all written and/or oral information
identified by a party as confidential or otherwise reasonably
understood as confidential by its nature.
"Current Financials ICO User" means any person, firm, company or entity
identified on Exhibit G who is using SMS's General Financials Product
at such entity's in-house computer operation on an IBM or IBM
compatible mainframe.
"Current Financials Non-ICO User" means any person, firm, company or
entity identified on Exhibit G who is using SMS's General Financials
Product in a non- IBM or non-IBM compatible mainframe in-house computer
operation (i.e.: such product is used in a time sharing operation or at
user's in-house computer operation on an non- IBM or non-IBM compatible
mainframe).
"Current HRMS ICO User" means any person, firm, company or entity
identified on Exhibit G who is using SMS's Human Resources Product at
such entity's in-house computer operation on an IBM or IBM compatible
mainframe.
"Current HRMS Non-ICO User" means any person, firm, company or entity
identified on Exhibit G who is using SMS's Human Resources Product in a
non- IBM or non-IBM compatible mainframe in-house computer operation
(i.e.: such product is used in a time sharing operation or at user's
in-house computer operation on an non- IBM or non-IBM compatible
mainframe).
"Designated European Countries" means the countries of the United
Kingdom, France, Germany and the Netherlands.
"Distribution Fee" means the fee paid by SMS to PeopleSoft for the
right to have access to the PeopleSoft Software for purposes of
distribution and sublicensing as set forth in this Agreement. Such fee
does not include royalties associated with SMS's sublicensing of the
PeopleSoft Software.
"Documentation" means only technical publications relating to the use
of the PeopleSoft Software, such as reference, user, installation,
systems administrator and technical guides, delivered by PeopleSoft to
SMS.
"Effective Date" means the date set forth in Exhibit B as the effective
date of this Agreement.
"End User(s)" means any person, firm, company or entity in the Health
Care Industry who is located in the Territory and who acquires a
license to use the PeopleSoft Software from SMS for internal production
end user purposes and not for redistribution in accordance with the
terms and conditions of this Agreement.
"Health Care Industry" means any person, firm, company or entity which
is engaged in the business of providing health services through
entities, including, but not limited to, hospital, infirmary or clinic.
"License Agreement" means a form of end user license agreement
containing (i) confidentiality and scope of use provisions
substantially similar to the form attached hereto as Exhibit I and (ii)
a third party beneficiary rights provision that shall allow PeopleSoft
the right to enforce the confidentiality and scope of use provisions.
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"Maintenance" means support services provided by SMS to End Users as
described in the Maintenance Agreement.
"Maintenance Agreement" means a form of end user support services
agreement substantially in the form attached hereto as Exhibit J. SMS
may unilaterally modify Exhibit J as deemed necessary by SMS. SMS shall
provide to PeopleSoft copies of all such changes that affect the
provision of Software support by SMS.
"New Financials ICO User" means (a) an entity who is not a SMS End User
that executes a license with SMS for PeopleSoft Financial Software or
(b) an entity who is a SMS End User but is not a Current Financials ICO
User and such entity executes a license with SMS for PeopleSoft
Financial Software. All such licenses must be issued in accordance with
the terms and conditions of this Agreement and are for use at such
entity's in-house computer operation on an IBM or IBM compatible
mainframe.
"New Financials Non-ICO User" means (a) an entity who is not a SMS End
User that executes a license with SMS for PeopleSoft Financial Software
or (b) an entity who is a SMS End User but is not a Current Financials
Non-ICO User executes a license with SMS for PeopleSoft Financial
Software. All such licenses must be issued in accordance with the terms
and conditions of this Agreement and are for use in a non- IBM or
non-IBM compatible mainframe in-house computer operation (i.e.: such
product is used in a time sharing operation or at user's in-house
computer operation on an non- IBM or non-IBM compatible mainframe).
"New HRMS ICO User" means (a) an entity who is not a SMS End User that
executes a license with SMS for PeopleSoft HRMS or (b) an entity who is
a SMS End User but is not a Current HRMS ICO User executes a license
with SMS for PeopleSoft HRMS Software. All such licenses must be issued
in accordance with the terms and conditions of this Agreement and are
for use at such entity's in-house computer operation on an IBM or IBM
compatible mainframe.
"New HRMS Non-ICO User" means (a) an entity who is not a SMS End User
that executes a license with SMS for PeopleSoft HRMS Software or (b) an
entity who is a SMS End User but is not a Current HRMS Non-ICO User
that executes a license with SMS for PeopleSoft HRMS Software. All such
licenses must be issued in accordance with the terms and conditions of
this Agreement and are for use in a non- IBM or non-IBM compatible
mainframe in-house computer operation (i.e.: such product is used in a
time sharing operation or at user's in-house computer operation on an
non- IBM or non-IBM compatible mainframe).
"PeopleSoft Financial Software" means all or any portion of the
machine-readable and executable source code software programs
identified in Exhibit A as Financial Software and all corrections,
Releases and associated Documentation and updates thereto.
"PeopleSoft HRMS Software" means all or any portion of the
machine-readable and executable source code software programs
identified in Exhibit A as HRMS Software and all corrections, Releases
and associated Documentation and updates thereto.
"PeopleSoft Software" means all or any portion of the machine-readable
and executable source code PeopleSoft HRMS Software and PeopleSoft
Financial Software programs identified in Exhibit A and all
corrections, Releases and associated Documentation and updates thereto;
excluding third party software products remarketed by PeopleSoft.
Software does not include source code to PeopleTools.
"Release" means one (1) copy of all published revisions to the printed
Documentation and one (1) copy of new versions, Releases and other
enhancements to the PeopleSoft Software which enhances the existing
functionality of the PeopleSoft Software but does not create a new
module with separate and distinct functionality to satisfy another
business operation that are designated by PeopleSoft as new products
for which it charges separately.
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<PAGE> 16
"Secondline Support" means technical support in accordance with the
terms and conditions of Exhibit D provided by PeopleSoft solely to
SMS's technical support organization.
"Server" means a database or file server which may be accessed by a
network of personal computers.
"SMS Competitor" shall mean any entity in the Territory and in the
Healthcare Industry whose primary source of revenue is derived from
applications that compete with SMS's Core Applications in the Territory
and in the Healthcare Industry.
"SMS's Core Applications" are any of the following SMS application
functionality: human resources, general financial services, provider
billing services, patient management systems, order processing systems,
master patient index repositories, clinical repositories, nursing and
results reporting, electronic data interchange services and decision
support services as such functionality is marketed and distributed by
SMS to the Healthcare Industry.
"SMS End User" means any person, firm, company or entity listed on
Exhibit G (as such Exhibit is revised each quarter) who has acquired
from SMS a license to use SMS's Core Applications for production end
user purposes and not for redistribution.
"Substantial "Selling" Effort" as used herein shall be mutually and
reasonably determined by PeopleSoft and SMS, in writing as evidenced by
the submittal and acceptance of a form substantially similar to Exhibit
O, on a case by case basis based upon industry recognized factors
involved in a software "sales" cycle.
"Term" means the period defined in Exhibit B.
"Territory" means the geographic area(s) listed in Exhibit B and other
countries in which PeopleSoft has granted distribution rights to SMS
pursuant to a mutually agreed upon written amendment to this Agreement.
"Timeshare Operation" means SMS's timeshare business utilizing Human
Resources and General Financial applications (i.e.: multiple clients
operating from a single copy of the Software installed at SMS's
Information Systems Center).
"Release" means one (1) copy of all published revisions to the printed
Documentation and one (1) copy of new versions of the PeopleSoft
Software which enhances the existing functionality of the PeopleSoft
Software but does not create a new module with separate and distinct
functionality to satisfy another business operation that are designated
by PeopleSoft as new products for which it charges separately.
19. DISPUTE ESCALATION PROCEDURES:
During the Term, the parties shall use reasonable efforts and act in
good faith to resolve disputes arising out of the Agreement in an
efficient and amicable manner, as follows. At each level of escalation,
five (5) business days are provided in which to resolve a dispute, and
if the dispute remains unresolved after five (5) business days, the
issue will be raised to the next level.
First notification will be made to:
PeopleSoft SMS
---------- ---
Account Manager GFS Product Owner
If resolution of the dispute cannot be reached at this level, further
escalation will be made to:
PeopleSoft SMS
---------- ---
Regional Vice President of Services Solutions Manager
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<PAGE> 17
If resolution of the dispute cannot be reached at this level, further
escalation will be made to:
PeopleSoft SMS
---------- ---
Regional General Manager Vice President
- Health Solutions
If resolution of the dispute cannot be reached at this level, further
escalation will be made to:
PeopleSoft SMS
---------- ---
President President
PeopleSoft and SMS may change the above stated contacts by providing
written notice to the other party.
In addition, legal and technical resources of each party necessary to
resolve the dispute will be contacted and utilized as required.
20. MANDATORY ARBITRATION
a) General: After the Dispute Escalation Procedures set forth in Section
19 have been exhausted and excluding a claim for injunctive relief, any
remaining controversy or claim arising out of or relating to this
Agreement or the existence, validity, breach or termination thereof,
whether during or after its term shall be finally determined by
compulsory arbitration. The arbitration shall be conducted in
accordance with the Commercial Arbitration Rules and Supplementary
Procedures of the American Arbitration Association ("AAA") as modified
or supplemented under this Section, notwithstanding any choice of law
provision in this Agreement.
b) Proceeding: The arbitration proceeding will take place in San
Francisco, California. Each party shall comply with a single request
for production of documents. If disputes arise concerning these
requests, the arbitrators shall have sole and complete discretion to
determine the disputes. The Arbitration panel shall consist of three
arbitrators, each qualified in the distribution of computer products
field. Each party shall have the right to appoint a single Arbitrator,
with the third Arbitrator appointed by mutual agreement between the two
previously appointed arbitrators. The arbitrators shall give effect to
statutes of limitation in determining any claim, and any controversy
concerning whether an issue is arbitrable shall be determined by the
arbitrators. The arbitration panel shall deliver a written opinion
setting forth findings of fact and the rationale for the decision. The
arbitrator shall reconsider the decision once upon the motion and at
the expense of the party requesting reconsideration. The parties
expressly agree that the arbitrators will be empowered to, at
PeopleSoft' request, (i) to issue an interim order or award requiring
SMS to cease distributing and using the PeopleSoft Software pending the
outcome or the arbitration or (ii) grant injunctive relief. The Section
of this Agreement entitled "Confidentiality" shall apply to the
arbitration proceeding, all evidence taken and the opinion. The
institution and maintenance of an action for judicial relief or pursuit
of a provisional or ancillary remedy shall not constitute a waiver of
the right of any party, including the plaintiff, to submit the
controversy or claim to arbitration if any other party contests such
action for judicial relief.
c) Award: The arbitral award will be the exclusive remedy of the parties
for all claims, counterclaims, issues or accountings presented or plead
to the arbitrators. The award will (i) be granted and paid in U.S.
Dollars exclusive of any tax, deduction or offset and (ii) include
interest from the date of breach or other violation of the Agreement
until the award is fully paid, computed at the then-prevailing LIBOR
rate. Judgment upon the decision rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
d) Fees and Expenses: The fees of the arbitrators and the expenses
incident to the arbitration proceedings shall be borne equally by the
parties to such arbitration. All other expenses shall be borne by
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<PAGE> 18
the party incurring such expenses. Any additional costs, fees or
expenses incurred in enforcing the arbitral award will be charged
against the party resisting its enforcement.
e) Notification: The party which intends to initiate an arbitration
proceeding shall notify the other party or parties of such intention by
registered mail, return receipt requested, describing the matter in
dispute, naming its arbitrator and demanding that the other party name
its arbitrator within four weeks from the date of such notification.
f) Failure to Name Arbitrator: If the other party fails to name its
arbitrator within the above period after the giving of such notice, or
if the two arbitrators do not appoint the third arbitrator within four
weeks after the selection of the second arbitrator, then the American
Arbitrator Association shall at the request of one of the parties,
appoint the second or third arbitrator, as the case may be.
21. GENERAL
a) All notices or demands shall be in writing and sent to the address set
forth above by registered mail, return receipt requested or sent by fax
along with a copy sent by US mail posted on the same date as the fax
(SMS fax number 610/219-1931 or PeopleSoft fax number 510/274-9700, as
appropriate) or express courier if delivery is confirmed by such form
of transmission. Either party may change its address by giving ten days
prior written notice. Notices to PeopleSoft shall be sent to the
attention of Vice President and General Counsel. Notices to SMS shall
be sent to the attention of Vice President, Finance.
b) Neither party may assign this Agreement (by operation of law or
otherwise) without the prior written consent of the other party, and
any prohibited assignment shall be null and void. Notwithstanding the
foregoing, either party may assign its rights to (i) its wholly owned
affiliates or subsidiaries or (ii) in the event of a merger,
consolidation or acquisition of all or substantially all of the assets
of a party hereto, to the resulting entity, provided that such entity
is not a competitor (as the term competitor is described in Section 4.e
for PeopleSoft competitor and Section 18 for SMS Competitor) of the
other party.
In the event one party hereto assigns this Agreement or acquires
another entity or merges, consolidates or is acquired by a third party
or undergoes a Change of Control or the like, the scope of this
Agreement, including, without limitation, the rights granted herein, is
not expanded beyond the scope originally intended as of the Effective
Date. An example for illustrative purposes only: if SMS acquires
another entity, the definition of SMS End User shall not be expanded to
include the customers of such acquired entity.
If SMS desires to expand the scope of this Agreement to cover such
Change of Control and the like, PeopleSoft agrees that the add-on
distribution fee shall be proportionate to the initial Distribution Fee
specified in Exhibit B. The calculation shall compare the market
potential of the expanded customer base to the customer base specified
on Exhibit G.
c) Neither party shall be liable for any failure to perform due to causes
beyond its reasonable control.
d) The relationship of the parties is that of independent contractors.
Except as set out in this Agreement nothing shall constitute the
parties as partners, joint venturers or co-owners, constitute SMS as
the agent, employee or representative of PeopleSoft, or empower SMS to
act for, bind or otherwise create or assume any obligation on behalf of
PeopleSoft or any of its parents subsidiaries or affiliates or any
other companies whose business is managed or controlled by PeopleSoft.
e) This Agreement constitutes the entire agreement between the parties and
may only be modified by a written instrument signed by each party's
authorized officers. This Agreement supersedes and replaces any prior
proposals, communications or agreements between the parties concerning
the subject matter hereof.
Page 18 of 51
<PAGE> 19
f) Systems Integrator and PeopleSoft agree that during the term of this
Agreement, except with the prior approval of the other party, neither
party will solicit for employment any employee of the other party who
shall have performed activities under this Agreement.
g) Except as provided in Sections 2.a, 2.b and 2.d, any other consent
and/or approval that is required to be given under this Agreement shall
not be unreasonably withheld by the other party.
The parties have executed this Agreement by their duly authorized
representatives as of the Effective Date.
Shared Medical Systems Corporation PEOPLESOFT, INC.
/s/ Marvin S. Cadwell /s/ Ken Horowitz
------------------------------------ ----------------------------
Authorized Signature Authorized Signature
Marvin S. Cadwell, President and CEO Ken Horowitz, Vice President
------------------------------------ ----------------------------
Printed Name and Title Printed Name and Title
Page 19 of 51
<PAGE> 20
EXHIBIT A
DISTRIBUTION USE
PEOPLESOFT SOFTWARE
A. PeopleSoft HRMS Software:
PeopleSoft Human Resources
PeopleSoft Benefits Administration
PeopleSoft FSA Administration
PeopleSoft Payroll
PeopleSoft Payroll Interface
PeopleSoft Time and Labor -- If or when such module becomes
commercially available
B. PeopleSoft Financial Software:
PeopleSoft General Ledger
PeopleSoft Accounts Receivable
PeopleSoft Accounts Payable
PeopleSoft Asset Management
PeopleSoft Purchasing
PeopleSoft Inventory -- PeopleSoft shall deliver the pre-release Beta
version of the Software. Such Beta version shall be delivered "as-is".
If or when the module is commercially available, PeopleSoft shall
provide such version to SMS.
Page 20 of 51
<PAGE> 21
EXHIBIT B
TERRITORY, PERFORMANCE AND COMPENSATION SCHEDULE
This document is an Exhibit to the PeopleSoft SMS Agreement ("Agreement")
between PeopleSoft, Inc. ("PeopleSoft") and SMS ("SMS"). Capitalized terms used
herein shall have the same meaning as set forth in the Agreement unless
otherwise defined herein.
1. EFFECTIVE DATE.
The Effective Date of the Agreement is August 25, 1995
2. TERM.
The Term of the Agreement is ten (10) years. Upon the fifth anniversary,
PeopleSoft and SMS agree that the royalties and Software maintenance fee stated
herein shall be adjusted in accordance with the adjustments to such items in
PeopleSoft's Price List. An example for illustrative purposes only: On August
15, 2000, if the license fee for PeopleSoft HRMS Software has increased by
twelve percent (12%), the royalties specified herein for PeopleSoft HRMS
Software shall increase by twelve percent (12%).
Upon the commencement of each renewal term, PeopleSoft and SMS agree that the
royalties and Software maintenance fee stated herein shall be adjusted in
accordance with the adjustments to such items in PeopleSoft's Price List. An
example for illustrative purposes only: On August 15, 2000, if the license fee
for PeopleSoft HRMS Software has increased by twelve percent (12%), the
royalties specified herein for PeopleSoft HRMS Software shall increase by twelve
percent (12%).
3. TERRITORY.
The Territory shall consist only of the following countries as constituted as of
the Effective Date: United States and Puerto Rico.
4. AMOUNTS PAYABLE TO PEOPLESOFT.
a) For SMS's appointment as system integrator pursuant to this Agreement,
SMS shall pay PeopleSoft a one-time Distribution Fee of one million six
hundred thousand dollars ($1,600,000) as shown below. SMS understands
that $1,400,000 of the total $1,600,000 is non-refundable and
non-cancelable.
$1,400,000 within thirty (30) days following the Effective Date;
$200,000 upon commercial availability of the Inventory Software. In the
event PeopleSoft does not deliver the commercial release of the
Inventory Software, SMS may retain this $200,000 as liquidated damages.
b) For each copy of the PeopleSoft Software licensed or copied by SMS
during the Term, SMS shall also pay PeopleSoft a royalty fee per
license as follows:
PeopleSoft HRMS Software licensed by SMS
[*] per each license to a Current HRMS Non-ICO User or a New HRMS
Non-ICO User;
[*] per each license to a Current HRMS ICO User; and
Fifty percent (50%) of PeopleSoft's then current list license fee per
each license to a New HRMS ICO User unless PeopleSoft agrees to lesser
amount.
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
Page 21 of 51
<PAGE> 22
PeopleSoft Financial Software licensed by SMS
[*] per each license to a Current Financials Non-ICO User or a New
Financials Non-ICO User;
[*] per each license to a Current Financials ICO User ; and
Fifty percent (50%) of PeopleSoft's then current list license fee per
each license to a New Financials ICO User unless PeopleSoft agrees to a
lesser amount.
c) In addition to any and all amounts due hereunder, SMS shall pay to
PeopleSoft the non-cancelable and non-refundable guaranteed minimum
royalty amounts shown below:
i) On June 30, 1996, the difference, if any, between [*] and the
royalties paid to PeopleSoft by SMS under Section 4.b above during the
first year of the Agreement.
ii) On June 30, 1997, the difference, if any, between [*] and the
royalties paid to PeopleSoft by SMS under Section 4.b above during the
Term of the Agreement.
iii) On June 30, 1998, the difference, if any, between [*] and the
royalties paid to PeopleSoft by SMS under Section 4.b above during the
Term of the Agreement.
iv) On June 30, 1999, the difference, if any, between [*] and the
royalties paid to PeopleSoft by SMS under Section 4.b above during the
Term of the Agreement.
v) On June 30, 2000, the difference, if any, between [*] and the
royalties paid to PeopleSoft by SMS under Section 4.b above during the
Term of the Agreement.
If, after the twenty-four (24) month period from the Effective Date,
SMS continues to operate the PeopleSoft Software in SMS's Timeshare
Operation, PeopleSoft and SMS agree that the guaranteed minimum
royalties specified in Section 4(c)(iv) above shall be increased to [*]
from [*] and in Section 4(c)(v) above shall be increased to [*] from
[*]. Unless SMS notifies PeopleSoft in writing, within the twenty-four
(24) month period from the Effective Date, that SMS has made an
irrevocable decision not continue to use the PeopleSoft Software in
SMS's Timeshare Operation, it shall be deemed that SMS has elected to
continue to operate the PeopleSoft Software in SMS's Timeshare
Operation.
d) In addition to any and all amounts due hereunder, SMS shall pay to
PeopleSoft the non-cancelable and non-refundable (except for the
[*] specified in Section 4.d.i below) guaranteed minimum royalty
amounts shown below:
i) On June 30, 1996, SMS shall pay PeopleSoft the amount of [*]. In the
event PeopleSoft has not delivered the commercial release of the
Inventory Software on or before June 30, 1996 SMS may retain this [*]
as liquidated damages until PeopleSoft's delivery of the Inventory
Software;
ii) On June 30, 1997, SMS shall pay PeopleSoft the amount of [*]
iii) On June 30, 1998, SMS shall pay PeopleSoft the amount of [*] and
iv) On June 30, 1999, SMS shall pay PeopleSoft the amount of [*].
e) After SMS has paid to PeopleSoft, pursuant to Sections 4.b and 4.c
above and/or a separate lump sum royalty payment, an amount equal to or
in excess of [*] for PeopleSoft HRMS Software and/or PeopleSoft
Financial Software royalties which amount does not include the
royalties associated with (i) New Financials ICO User, New HRMS ICO
User and (ii) Current Financials and HRMS ICO End User after the first
forty (40) Current Financials and HRMS ICO End User that license the
PeopleSoft HRMS Software and/or PeopleSoft Financial Software ("Paid Up
License"), SMS shall not be obligated to pay
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
Page 22 of 51
<PAGE> 23
PeopleSoft any additional royalties associated only with future
licenses of the PeopleSoft HRMS Software and/or PeopleSoft Financial
Software to SMS End Users with a license to use SMS's Human Resources
and/or General Financial products in a Non-ICO environment (ie: such
product is used in a Timeshare Operation or at user's in-house computer
operation on a non- IBM or non-IBM compatible mainframe) In other
words, after SMS has paid PeopleSoft the amount of the Paid Up License,
SMS shall only incur royalties in association with licenses to:
(i) New Financials Non-ICO User, excluding SMS End Users
(ii) New HRMS Non-ICO User, excluding SMS End Users
(iii) New Financials ICO User,
(iv) New HRMS ICO User,
(v) Current Financials ICO User, and
(vi) Current HRMS ICO User
SMS may continue licensing the PeopleSoft HRMS Software and/or
PeopleSoft Financial Software as specified in this Agreement.
Notwithstanding the above, SMS may license the PeopleSoft HRMS Software
and/or PeopleSoft Financial Software to more than forty (40) Current
Financials and HRMS ICO End Users; however, the additional ICO License
Agreements shall not be included in the calculation referenced in this
Section 4.e. SMS shall have a period of seven (7) years (the initial
Term of five years plus the first two years of any applicable renewal
term) to pay PeopleSoft the amounts stated in this Section 4.e.
If, after the twenty-four (24) month period from the Effective
Date, SMS continues to operate the PeopleSoft Software in SMS's
Timeshare Operation, PeopleSoft and SMS agree that the amount stated in
Line 2 in the first paragraph of this Section shall be increased to [*]
from [*]. Unless SMS notifies PeopleSoft in writing, within the
twenty-four (24) month period from the Effective Date, that SMS has
made an irrevocable decision not continue to use the PeopleSoft
Software in SMS's Timeshare Operation, it shall be deemed that SMS has
elected to continue to operate the PeopleSoft Software in SMS's
Timeshare Operation.
f) The first year of PeopleSoft HRMS Software Maintenance (as set forth in
Exhibit D, specifically excluding Section 4 of Exhibit D) is included
in the Software license fees, thereafter, in the event Licensee elects
to continue to receive Software Maintenance, Licensee shall pay
PeopleSoft the annual Software Maintenance fee as set forth in this
Agreement. Should Licensee elect not to renew Software Maintenance and
subsequently request Software Maintenance, PeopleSoft shall reinstate
Software Maintenance only after Licensee pays PeopleSoft the annual fee
due in accordance with this Agreement plus all cumulative fees that
would have been payable had Licensee not suspended Software
Maintenance.
For the PeopleSoft HRMS Software Maintenance provided to SMS by
PeopleSoft as set forth in Exhibit D, excluding Section 4 thereof, SMS
shall pay PeopleSoft, on the first through fourth anniversaries of the
Effective Date, the amounts shown below based upon the number of HRMS
End Users licensed by SMS.
<TABLE>
<CAPTION>
Number of HRMS End First Anniversary -
Users Fourth Anniversary
<S> <C> <C>
0 - 75 [*] per year
76 - 150 [*] per year
151 - 250 [*] per year
Over 250 [*] per year
</TABLE>
g) The first year of PeopleSoft Financials Software Maintenance (as set
forth in Exhibit D, specifically excluding Section 4 of Exhibit D) is
included in the Software license fees, thereafter, in the event
Licensee elects to continue to receive Software Maintenance, Licensee
shall pay PeopleSoft the annual Software Maintenance fee as set forth
in this Agreement. Should Licensee elect not to renew Software
Maintenance and subsequently request Software Maintenance, PeopleSoft
shall reinstate Software Maintenance only
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
Page 23 of 51
<PAGE> 24
after Licensee pays PeopleSoft the annual fee due in accordance with
this Agreement plus all cumulative fees that would have been payable
had Licensee not suspended Software Maintenance.
For the PeopleSoft Financial Software Maintenance provided to SMS as
set forth in Exhibit D , excluding Section 4 thereof, SMS shall pay
PeopleSoft, on the first through fourth anniversaries of the Effective
Date, the amounts shown below based upon the number of Financial End
Users licensed by SMS.
<TABLE>
<CAPTION>
Number of Financial End First Anniversary -
Users Fourth Anniversary
<S> <C> <C>
0 - 75 [*] per year
76 - 150 [*] per year
151 - 250 [*] per year
Over 250 [*] per year
</TABLE>
h) The first year of PeopleSoft HRMS Software Maintenance pursuant to
Section 4 of Exhibit D is included in the Software license fees,
thereafter, in the event Licensee elects to continue to receive such
Section 4 Software Maintenance, Licensee shall pay PeopleSoft the
annual Software Maintenance fee as set forth in this Agreement.
For the PeopleSoft HRMS Software Maintenance provided to SMS by
PeopleSoft pursuant to Section 4 as set forth in Exhibit D (telephone
consultation/hotline support), SMS shall pay PeopleSoft, on the first
through fourth anniversaries of the Effective Date, the amounts shown
below based upon the number of HRMS End Users licensed by SMS.
<TABLE>
<CAPTION>
Number of HRMS End Users First Anniversary -
Fourth Anniversary
<S> <C> <C>
0 - 75 [*] per year
76 - 150 [*] per year
151 - 250 [*] per year
Over 250 [*] per year
</TABLE>
i) The first year of PeopleSoft Financials Software Maintenance pursuant
to Section 4 of Exhibit D is included in the Software license fees,
thereafter, in the event Licensee elects to continue to receive such
Section 4 Software Maintenance, Licensee shall pay PeopleSoft the
annual Software Maintenance fee as set forth in this Agreement.
For the PeopleSoft Financial Software Maintenance provided to SMS by
PeopleSoft pursuant to Section 4 as set forth in Exhibit D (telephone
consultation/hotline support), SMS shall pay PeopleSoft, on the first
through fourth anniversaries of the Effective Date, the amounts shown
below based upon the number of Financial End Users licensed by SMS.
<TABLE>
<CAPTION>
Number of Financial End First Anniversary -
Users Fourth Anniversary
<S> <C> <C>
0 - 75 [*] per year
76 - 150 [*] per year
151 - 250 [*] per year
Over 250 [*] per year
</TABLE>
j) Consulting, training and/or other services beyond those provided
pursuant to License and Maintenance Agreements shall be independently
negotiated with customers. The party providing such efforts shall
retain one hundred percent (100%) of the proceeds therefrom. On such
occasions as SMS and PeopleSoft shall together provide such services,
the allocation between SMS and PeopleSoft of the revenues therefrom
shall be agreed upon in advance.
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
Page 24 of 51
<PAGE> 25
5. AMOUNTS CREDITED TO SMS.
If, after a Substantial "Selling" Effort by SMS, a SMS End User decides
to license the PeopleSoft Software directly from PeopleSoft, SMS agrees
that, upon SMS's prior written approval, which approval shall not be
unreasonably withheld, PeopleSoft shall have the right to license the
PeopleSoft HRMS Software and PeopleSoft Financial Software,
respectively, to such SMS End User; provided PeopleSoft credits to the
royalties SMS is obligated to pay PeopleSoft the amounts specified in
below:
For each such PeopleSoft HRMS license, the credit is fifty percent
(50%) of PeopleSoft's then current list license fee; and For each such
PeopleSoft Financials license, the credit is fifty percent (50%) of
PeopleSoft's then current list license fee .
Notwithstanding anything to the contrary, this credit obligation shall
not apply to the SMS End Users listed on Exhibit L on which PeopleSoft
has expended a Substantial "Selling" Effort.
6. PEOPLESOFT BANK ACCOUNT FOR PAYMENT.
WestAmerica Bank, Walnut Creek Branch
ABA # 121-140-218
Account Number: 0704006964
Account Name PeopleSoft, Inc.
7. CURRENCY FOR PAYMENT.
The currency for all payments to PeopleSoft shall be U.S. Dollars.
8. INTERNATIONAL OPTION.
a) If, during the two (2) year period following the Effective Date, SMS elects
to extend its non-exclusive system integration and licensing rights for the
PeopleSoft Software from the United States to also include the Designated
European Countries, SMS and PeopleSoft must enter into a mutually acceptable
amendment to this Agreement authorizing such extended use for the Designated
European Countries.
PeopleSoft and SMS agree that SMS shall pay PeopleSoft a one-time entry Global
Distribution Fee of [*] upon execution of the Amendment and for each copy of the
PeopleSoft Software licensed by SMS in the Designated European Countries during
the term of the Amendment, SMS shall pay to PeopleSoft a royalty fee per license
as specified below:
[*] per each PeopleSoft International HRMS Software license
excluding a New HRMS ICO User;
[*] per each PeopleSoft International Financial Software license
excluding a New Financials ICO User;
Fifty percent (50%) of PeopleSoft's then current list license fee
per each license to a New HRMS ICO User unless PeopleSoft agrees to
lesser amount; and
Fifty percent (50%) of PeopleSoft's then current list license fee per
each license to a New Financials ICO User unless PeopleSoft agrees to
lesser amount.
If, during the two (2) year period following the Effective Date, PeopleSoft
creates a localized version of the PeopleSoft Software for countries outside of
the Territory and the Designated European Countries, upon SMS's request,
PeopleSoft shall have the unilateral right to expand the option stated in this
Section 8.a to cover such additional localized version of the PeopleSoft
Software. If this option is expanded SMS and PeopleSoft must enter into a
mutually acceptable amendment to this Agreement authorizing such extended use
and specifying the additional distribution fee which shall be proportional to
the distribution fee for the Designated European Countries.
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
Page 25 of 51
<PAGE> 26
SMS understands that (i) the PeopleSoft Software for the Designated European
Countries differs from, and may not contain all the features and functions as,
the PeopleSoft Software for the U.S. market; and (ii) in the Designated European
Countries, SMS will have to work through, and in conjunction with, PeopleSoft's
distributors and channel partners, if any, in such countries. PeopleSoft agrees
to facilitate the introductions between SMS and PeopleSoft's distributors and
channel partners, if any, in such countries.
Software Maintenance under the option specified in this Section 8.a is:
(i) The first year of PeopleSoft HRMS Software Maintenance (as set forth in
Exhibit D, specifically excluding Section 4 of Exhibit D) is included
in the Software license fees, thereafter, in the event Licensee elects
to continue to receive Software Maintenance, Licensee shall pay
PeopleSoft the annual Software Maintenance fee as set forth in this
Agreement. Should Licensee elect not to renew Software Maintenance and
subsequently request Software Maintenance, PeopleSoft shall reinstate
Software Maintenance only after Licensee pays PeopleSoft the annual fee
due in accordance with this Agreement plus all cumulative fees that
would have been payable had Licensee not suspended Software
Maintenance.
For the PeopleSoft HRMS Software Maintenance provided to SMS by
PeopleSoft as set forth in Exhibit D, excluding Section 4 thereof, SMS
shall pay PeopleSoft, on the first through fourth anniversaries of the
Effective Date, the amounts shown below based upon the number of HRMS
End Users licensed by SMS.
<TABLE>
<CAPTION>
Number of HRMS End First Anniversary -
Users Fourth Anniversary
<S> <C> <C>
0 - 25 [*] per year
26 - 50 [*] per year
51 - 100 [*] per year
Over 100 [*] per year
</TABLE>
(ii) The first year of PeopleSoft Financials Software Maintenance (as set
forth in Exhibit D, specifically excluding Section 4 of Exhibit D) is
included in the Software license fees, thereafter, in the event
Licensee elects to continue to receive Software Maintenance, Licensee
shall pay PeopleSoft the annual Software Maintenance fee as set forth
in this Agreement. Should Licensee elect not to renew Software
Maintenance and subsequently request Software Maintenance, PeopleSoft
shall reinstate Software Maintenance only after Licensee pays
PeopleSoft the annual fee due in accordance with this Agreement plus
all cumulative fees that would have been payable had Licensee not
suspended Software Maintenance.
For the PeopleSoft Financial Software Maintenance provided to SMS as
set forth in Exhibit D , excluding Section 4 thereof, SMS shall pay
PeopleSoft, on the first through fourth anniversaries of the Effective
Date, the amounts shown below based upon the number of Financial End
Users licensed by SMS.
<TABLE>
<CAPTION>
Number of Financial End First Anniversary -
Users Fourth Anniversary
<S> <C> <C>
0 - 25 [*] per year
26 - 50 [*] per year
51 - 100 [*] per year
Over 100 [*] per year
</TABLE>
(iii) The first year of PeopleSoft HRMS Software Maintenance pursuant to
Section 4 of Exhibit D is included in the Software license fees,
thereafter, in the event Licensee elects to continue to receive such
Section 4 Software Maintenance, Licensee shall pay PeopleSoft the
annual Software Maintenance fee as set forth in this Agreement.
For the PeopleSoft HRMS Software Maintenance provided to SMS by
PeopleSoft pursuant to Section 4 as set forth in Exhibit D (telephone
consultation/hotline support), SMS shall pay PeopleSoft, on the first
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
Page 26 of 51
<PAGE> 27
through fourth anniversaries of the Effective Date, the amounts shown
below based upon the number of HRMS End Users licensed by SMS.
<TABLE>
<CAPTION>
Number of HRMS End Users First Anniversary -
Fourth Anniversary
<S> <C> <C>
0 - 25 [*] per year
26 - 50 [*] per year
51 - 100 [*] per year
Over 100 [*] per year
</TABLE>
(iv) The first year of PeopleSoft Financials Software Maintenance pursuant
to Section 4 of Exhibit D is included in the Software license fees,
thereafter, in the event Licensee elects to continue to receive such
Section 4 Software Maintenance, Licensee shall pay PeopleSoft the
annual Software Maintenance fee as set forth in this Agreement.
For the PeopleSoft Financial Software Maintenance provided to SMS by
PeopleSoft pursuant to Section 4 as set forth in Exhibit D (telephone
consultation/hotline support), SMS shall pay PeopleSoft, on the first
through fourth anniversaries of the Effective Date, the amounts shown
below based upon the number of Financial End Users licensed by SMS.
<TABLE>
<CAPTION>
Number of Financial End First Anniversary -
Users Fourth Anniversary
<S> <C> <C>
0 - 25 [*] per year
26 - 50 [*] per year
51 - 100 [*] per year
Over 100 [*] per year
</TABLE>
b) If, during the two (2) year period following the Effective Date, SMS elects
to extend its non-exclusive system integration and licensing rights for the
PeopleSoft Software from the United States to the twelve countries specified
below with SMS modifying the United States version of the PeopleSoft Software to
create localized versions of the PeopleSoft Software for such twelve countries,
SMS and PeopleSoft must enter into a mutually acceptable amendment to this
Agreement authorizing such extended use.
Additionally, if, during the two (2) year period following the Effective Date,
SMS elects to extend its non-exclusive system integration and licensing rights
for the PeopleSoft Software from the United States to the twelve countries
specified below with SMS modifying the PeopleSoft Designated European Countries
version(s) of the PeopleSoft Software referenced in Section 8.a of this Exhibit
B to create localized versions of the PeopleSoft Software for such twelve
countries, SMS must (i) enter into a mutually acceptable amendment to this
Agreement authorizing such extended use and (ii) exercise the option specified
in Section 8.a of this Exhibit B and pay PeopleSoft the distribution fee of
[*] specified in such Section 8.a.
COUNTRIES
---------
Belgium United Kingdom
The Czech Republic
France
Germany
Hungary
Ireland
Italy
Luxembourg
Netherlands
Poland
Spain
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
Page 27 of 51
<PAGE> 28
PeopleSoft and SMS agree that (i) SMS shall not pay any additional distribution
fee associated with this Section 8.b (the additional distribution fee is
required if the option specified in Section 8.a of this Exhibit B is exercised)
and (ii) SMS shall pay to PeopleSoft a royalty fee per each modified copy of the
PeopleSoft Software licensed by SMS as specified below:
PeopleSoft HRMS Software licensed by SMS
[*] per each license to a Current HRMS Non-ICO User or a New HRMS
Non-ICO User;
[*] per each license to a Current HRMS ICO User; and
Fifty percent (50%) of PeopleSoft's then current list license fee per
each license to a New HRMS ICO User unless PeopleSoft agrees to lesser
amount.
PeopleSoft Financial Software licensed by SMS
[*] per each license to a Current Financials Non-ICO User or a New
Financials Non-ICO User;
[*] per each license to a Current Financials ICO User ; and
Fifty percent (50%) of PeopleSoft's then current list license fee per
each license to a New Financials ICO User unless PeopleSoft agrees to
a lesser amount.
SMS understands that (i) PeopleSoft will not provide SMS with any maintenance
for licenses granted outside the U.S. pursuant to the option specified in this
Section 8.b and (ii) in the specified twelve countries, PeopleSoft recommends
that SMS works through, and in conjunction with, PeopleSoft's distributors and
channel partners, if any, in such countries. PeopleSoft agrees to facilitate the
introductions between SMS and PeopleSoft's distributors and channel partners, if
any, in such countries.
Upon mutual agreement of the parties, the list of twelve countries specified
herein may be expanded. However, PeopleSoft shall have the right to refuse to
expand the list to any country that PeopleSoft either currently has or is
intending to have an exclusive distributor relationship.
* Certain information on this page has been ommitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the ommitted portions.
Page 28 of 51
<PAGE> 29
EXHIBIT C
INTERNAL USE
<TABLE>
<CAPTION>
PART 1 PRODUCTION TEST & DEVELOPMENT
COPIES COPIES
------ ------
HRMS SOFTWARE
<S> <C> <C>
Human Resources 1 1
- -
Benefits Administration 1 1
- -
FSA Administration 1 1
- -
Payroll 1 1
- -
Payroll Interface 1 1
- -
Time and Labor 1 1
- -
If or when such module becomes
commercially available
FINANCIALS SOFTWARE
General Ledger (incl. PS/nVision) 1 1
- -
Accounts Receivable 1 1
- -
Accounts Payable 1 1
- -
Asset Management 1 1
- -
Purchasing 1 1
- -
Inventory 1 1
- -
If or when such module becomes
commercially available
</TABLE>
Database Version:Oracle Operating System: Hardware Model:
FOR THE ORACLE DATABASE VERSION LICENSED, LICENSEE RECEIVES THE APPLICABLE ITEMS
LISTED BELOW:
<TABLE>
<CAPTION>
QTY. ORACLE
---- ------
<S> <C> <C>
DATABASE 1 N/A
PEOPLETOOLS - RESTRICTED DEV 1 included
DOCUMENTATION 2 included
</TABLE>
ADDITIONAL SOFTWARE/SERVICES / PART TWO
SOFTWARE/SERVICE MANUFACTURER QUANTITY
Workstation Access (includes PeopleSoft, Inc. unlimited
base application access, Sybase, Inc./MITI
Workstation SQR, QueryLink, Crystal Computer Services
Crystal, nVision)
Server SQR Sybase, Inc./MITI 1
-
PeopleTools - General Dev.(1) PeopleSoft, Inc. 10 Seats
--------
--------
(1) PeopleTools for general development for the internal use license shall be
used solely to develop applications for Licensee's internal systems. Licensee
shall not market or distribute such applications without executing a mutually
acceptable amendment to this Agreement authorizing such extended use and
specifying the royalty associated with such usage. Any third party software
required by Licensee must be licensed directly from PeopleSoft or the
manufacturer.
Page 29 of 51
<PAGE> 30
<TABLE>
----------------------------------------- ------------------------------------- ------------------------------------
<S> <C> <C>
LICENSEE SITE ADDRESS BILL-TO-ADDRESS SHIP-TO-ADDRESS
contact name: contact name: contact name:
Phone No. Phone No. Phone No.
Fax No. Fax No. Fax No.
----------------------------------------- ------------------------------------- ------------------------------------
</TABLE>
<TABLE>
--------------------------------------------------------- ----------------------------------------------------------
<S> <C>
LICENSEE TRAINING ADMINISTRATOR CORRESPONDENT
Contact Name: Contact Name:
Phone No. Phone No.
Fax No.
--------------------------------------------------------- ----------------------------------------------------------
</TABLE>
Page 30 of 51
<PAGE> 31
EXHIBIT D
SECONDLINE SUPPORT
TERMS AND CONDITIONS
Secondline Support Services Terms and Conditions ("Support Services") are
outlined herein. PeopleSoft reserves the right to modify the terms and
conditions of Support Services on an annual basis to reflect current market
conditions.
1. COVERAGE
PeopleSoft provides SMS with Support Services for the PeopleSoft Software in
consideration for SMS's payment of the applicable fees to PeopleSoft as stated
in Sections 4.f, 4.g, 4.h and 4.i of Exhibit B. SMS is solely responsible for
the provision of Support Services to End Users.
2. SOFTWARE MAINTENANCE
The following technical and functional improvements will be issued periodically
by PeopleSoft to improve PeopleSoft Software operations:
a. Fixes to Errors;
b. Updates; and
c. Enhancements contained within new releases.
3. PRIORITY LEVEL OF ERRORS
PeopleSoft shall reasonably determine the priority level of Error. PeopleSoft
uses the following protocols:
Priority A Errors:
PeopleSoft promptly initiates the following procedures: (1) assign
PeopleSoft specialists to correct the Error; (2) provide ongoing
communication on the status of the corrections; and (3) immediately
commence to provide a Workaround or a Fix.
Priority B Errors:
(1) PeopleSoft assigns a PeopleSoft specialist to commence correction of
Error and (2) Provide escalation procedures as reasonably determined by
PeopleSoft support staff. PeopleSoft exercises all commercially reasonable
efforts to include the Fix for the Error in the next PeopleSoft Software
maintenance release.
Priority C Errors:
PeopleSoft may include the Fix for the Error in the next major PeopleSoft
Software release.
4. TELEPHONE SUPPORT
PeopleSoft provides telephone technical support concerning installation and use
of the PeopleSoft Software. Except for designated holidays, standard telephone
support hours are Monday through Friday, 6:00 a.m. to 6:30 p.m. Pacific Time.
Telephone Support is available 24-hour, 7-days a week for in-production
customers who need to resolve critical production problems outside of normal
support hours.
5. ACCOUNT MANAGER
PeopleSoft assigns an account manager to assist the on-going support
relationship. A reasonable amount of account manager on-Site time is included in
the annual Support Services fee. Prior to an account manager conducting an
on-Site visit, such account manager shall obtain SMS's prior approval SMS will
reimburse PeopleSoft for the reasonable travel and living expenses of the
account manager for on-Site activity.
6. PS/FORUM
a. PS/Forum on-line bulletin board system features postings by PeopleSoft
and PeopleSoft Software users regarding technical and non-technical
topics of interest. SMS shall access PS/Forum solely through SMS's
CompuServe services account. At SMS's own expense, SMS shall acquire
the CompuServe service and a license to use Lotus Notes.
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<PAGE> 32
b. All maintenance releases and program fixes to the PeopleSoft Software
may be delivered to SMS through PS/Forum. All information specified in
PS/Forum by PeopleSoft is confidential and proprietary to PeopleSoft
and shall only be used in connection with SMS's use of the PeopleSoft
Software and informational communications with other PS/Forum
participants. PeopleSoft reserves the right to modify information
posted to PS/Forum. PeopleSoft shall have the right to publish and
distribute only through PS/Forum in all languages and in association
with SMS's name any material or software programs provided by SMS to
PS/Forum. SMS shall not use PS/Forum for advertising or public
relations purposes and shall only submit information to PS/Forum which
is owned by SMS or which SMS has third party permission to submit to
PS/Forum for use by all other PS/Forum users.
c. In the interest of diminishing exposure to software viruses, PeopleSoft
tests and scans for software viruses all information entered by
PeopleSoft prior to submission of information to PS/Forum. SMS shall
also use a reliable virus detection system on any software or
information posted to PS/Forum, utilize back-up procedures, monitor
access to PS/Forum, promptly notify PeopleSoft of any virus detected
within SMS's systems associated with PS/Forum and generally exercise a
reasonable degree of caution when utilizing information from PS/Forum.
PeopleSoft does not warrant that PS/Forum will operate without
interruption or without errors. PeopleSoft reserves the right to modify
or suspend PS/Forum service in connection with PeopleSoft's provision
for Support Services.
7. EXCLUSIONS
PeopleSoft shall have no obligation to support:
a. Altered, damaged or substantially modified PeopleSoft Software;
b. PeopleSoft Software that is not the then-current or Previous Sequential
Release;
c. Errors caused by SMS's negligence, hardware malfunction or other causes
beyond the reasonable control of PeopleSoft;
d. PeopleSoft Software installed in a hardware or operating environment
not supported by PeopleSoft; and
e. Third party software not licensed through PeopleSoft.
8. GENERAL
All Updates provided to SMS are subject to the terms and conditions of the
Agreement.
PeopleSoft shall not be liable for any failure or delay in performance of the
Support Services due to causes beyond its reasonable control. Any illegal or
unenforceable provision shall be severed from these Terms and Conditions. SMS
agrees that any information received pursuant to these Terms and Conditions
shall be deemed subject to the non-disclosure obligations set forth in the
Agreement. The Support Services Terms and Conditions states the entire agreement
of PeopleSoft's provision of Support Services to SMS and may only be amended by
a written amendment executed by both parties.
9. DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein shall have the
same meaning as set forth in the Agreement and applicable Schedule.
"Enhancement" means technical or functional additions to the PeopleSoft Software
to improve software functionality and/or operations. Enhancements are delivered
with new releases of the PeopleSoft Software.
"Error" means a malfunction in the PeopleSoft Software which significantly
degrades the use of the PeopleSoft Software.
"Fix" means the repair or replacement of source or object or executable code
versions of the PeopleSoft Software to remedy an Error.
"Previous Sequential Release" means the release of PeopleSoft Software for use
in a particular operating
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<PAGE> 33
environment. A Previous Sequential Release will be supported by PeopleSoft for a
period of fifteen (15) months after release of the subsequent release.
"Priority A" means an Error that: (1) renders the PeopleSoft Software
inoperative; or (2) causes the PeopleSoft Software to fail catastrophically.
"Priority B" means an Error that significantly degrades performance of the
PeopleSoft Software or materially restricts SMS's use of the PeopleSoft
Software.
"Priority C" means an Error that causes only a minor impact of the use of the
PeopleSoft Software.
"Update" means all published revisions to the printed documentation and one (1)
copy of the new release of the PeopleSoft Software which are not designated by
PeopleSoft as new products for which it charges separately.
"Workaround" means a change in the procedures followed or data supplied to avoid
an Error without significantly impairing performance of the PeopleSoft Software.
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<PAGE> 34
EXHIBIT E
The terms and conditions of the Systems Integrator Agreement shall apply to
SMS's internal use license. Unless otherwise provided in the Systems Integrator
Agreement, the terms and conditions of this Exhibit E shall apply.
SOFTWARE END USER LICENSE AND SERVICES AGREEMENT
This agreement ("Agreement") is made as of____________ , 1995 ("Effective Date")
by and between PeopleSoft, Inc. ("PEOPLESOFT"), a Delaware corporation having
its principal place of business at 1331 North California Boulevard, Walnut
Creek, California 94596 and
Name: __________________("LICENSEE")
Address:__________________
__________________
__________________
This Agreement and the Schedules constitute the entire agreement between the
parties concerning Licensee's use of the Software. This Agreement replaces and
supersedes any prior verbal or written understandings, communications, and
representations. No purchase order or other ordering document which purports to
modify or supplement the printed text of this Agreement or any Schedule shall
add to or vary the terms of this Agreement. All such proposed variations or
additions (whether submitted by PeopleSoft or Licensee) are objected to and
deemed material.
THE TERMS AND CONDITIONS HEREIN ARE ACCEPTED AS PART OF THIS AGREEMENT.
LICENSEE PEOPLESOFT, INC.
_____________________ _____________________
Authorized Signature Authorized Signature
_______________________ _______________________
Printed Name and Title Printed Name and Title
TERMS AND CONDITIONS
1. LICENSE
1.1 PeopleSoft grants Licensee a perpetual, non-exclusive, nontransferable
license to use the licensed number of copies of the Software, solely
for internal data processing operations, on each Server at the Site up
to the licensed number of workstations specified in the applicable
Schedule. Any third party software products or modules provided by
PeopleSoft to Licensee shall be used solely with PeopleSoft Software.
Licensee may use the Software temporarily on a machine other than the
Server in the event that the Server is inoperable. Licensee may make a
reasonable number of copies of the Software solely for technical
support, training and sales support, including demonstrations, and
archive or emergency back-up purposes and/or disaster recovery testing
purposes. Licensee may modify or merge the Software with other software
with the understanding that any modifications, however extensive, shall
not diminish PeopleSoft's title or interest in the Software.
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<PAGE> 35
1.2 PeopleSoft shall provide Licensee with the licensed number of copies of
the Software and Documentation as specified in the applicable Schedule.
Licensee may make a reasonable number of copies of Documentation solely
for Licensee's internal use with the Software provided all copyright
notices are reproduced.
2. LICENSE EXCLUSIONS
2.1 Except as expressly authorized herein, Licensee shall not:
a. Copy the Software;
b. Cause or permit reverse compilation or reverse assembly of all
or any portion of the Software;
c. distribute, disclose, market, rent, lease or transfer to any
third party any portion of the Software (including
PeopleTools) or the Documentation, or use the Software or
Documentation in any service bureau arrangement, facility
management, or third party training;
d. Disclose the results of Software performance benchmarks to any
third party without PeopleSoft's prior written consent;
e. Transfer the Software to a different Server platform without
the prior written consent of PeopleSoft (such consent not
unreasonably withheld) and payment of any additional fees
which may be due;
f. Transfer the Software to a different Site without prior
written notice to PeopleSoft;
g. Export the Software in violation of U.S. Department of
Commerce export administration regulations;
h. Invoke support libraries other than through documented API
calls; and
i. Use PeopleTools except in conjunction with the licensed
PeopleSoft applications.
2.2 No license, right, or interest in any PeopleSoft trademark, trade name,
or service mark is granted hereunder.
3. FEES AND PAYMENT TERMS
3.1 Licensee shall pay PeopleSoft the fees as specified in each applicable
Schedule and all associated shipping costs.
3.2 Unless Licensee provides PeopleSoft with a valid tax exemption or
direct pay certificate, Licensee is responsible for all taxes, duties
and customs fees concerning the Software and/or services, excluding
taxes based on PeopleSoft's income. Overdue payments shall bear
interest at the lesser of twelve percent (12%) per annum or the maximum
rate allowed under applicable law.
4. TITLE AND PROTECTION
4.1 PeopleSoft (or its third-party providers) retains title to all portions
of the Software, any modifications to the Software developed with
PeopleTools, and any copies thereof. Title to the physical media for
the Software vests in Licensee upon delivery. PeopleSoft represents
that the Software contains valuable proprietary information, and
Licensee shall not disclose the Software to anyone other than those of
its employees or consultants under nondisclosure obligations who have a
need to know for purposes consistent with this Agreement. Licensee
shall affix, to each full or partial copy of the Software made by
Licensee, all copyright and proprietary information notices as affixed
to the original. The obligations set forth in this paragraph shall
survive termination of this Agreement.
4.2 The Software may be transferred to the U.S. government only with the
separate prior written consent of PeopleSoft and solely with
"Restricted Rights" as that term is defined in FAR 52.227-19(c)(2) (or
DFAR 252.227-7013(c)(1) if the transfer is to a defense-related agency)
or subsequent citation.
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<PAGE> 36
5. PATENT AND COPYRIGHT INDEMNITY
PeopleSoft shall indemnify and defend Licensee against any claims that
the Software infringes any United States or Canadian patent or
copyright; provided that PeopleSoft is given prompt notice of such
claim and is given information, reasonable assistance, and sole
authority to defend or settle the claim. In the defense or settlement
of the claim, PeopleSoft may obtain for Licensee the right to continue
using the Software, replace or modify the Software so that it becomes
noninfringing while giving equivalent performance. PeopleSoft shall
have no liability to indemnify or defend Licensee if the alleged
infringement is based on: (i) a modification of the Software by anyone
other than PeopleSoft, or (ii) the use of the Software other than in
accordance with the Documentation.
6. DEFAULT AND TERMINATION
6.1 Any of the following shall constitute an event of default:
a. Licensee fails to perform any of its obligations under the
sections entitled "License Exclusions" or "Title and
Protection"; or
b. Either party fails to perform any other material obligation
under this Agreement and such failure remains uncured for more
than thirty (30) days after receipt of written notice thereof.
6.2 If an event of default occurs, the nondefaulting party, in addition to
any other rights available to it under law or equity, may terminate
this Agreement and all licenses granted hereunder by written notice to
the defaulting party. Remedies shall be cumulative and there shall be
no obligation to exercise a particular remedy.
6.3 Within fifteen (15) days after termination of this Agreement, Licensee
shall certify in writing to PeopleSoft that all copies of the Software
in any form, including partial copies within modified versions, have
been destroyed or returned to PeopleSoft.
7. LIMITED WARRANTY
PeopleSoft warrants that it has title to the Software and the authority
to grant licenses to use the Software. PeopleSoft warrants that the
Software will perform substantially in accordance with the
Documentation for a period of one (1) year from the date of
installation. PeopleSoft's sole obligation is limited to repair or
replacement of the defective Software, provided Licensee notifies
PeopleSoft of the deficiency within the one-year period and provided
Licensee has installed all Software updates provided by PeopleSoft's
Software Support Services. PEOPLESOFT DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY
PEOPLESOFT WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST
PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EXCLUDING DAMAGES INCURRED UNDER THE
ARTICLE ENTITLED "PATENT AND COPYRIGHT INDEMNITY", PEOPLESOFT'S
LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (WHETHER IN CONTRACT OR
TORT) SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY LICENSEE TO
PEOPLESOFT FOR THE SOFTWARE OR THE SERVICES FROM WHICH THE CLAIM AROSE.
THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK WHICH IS SET
FORTH IN THIS SECTION.
9. SOFTWARE SUPPORT SERVICES TERMS AND CONDITIONS
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<PAGE> 37
On the Schedule Effective Date, PeopleSoft shall provide Licensee with
one (1) year of software support services as described in PeopleSoft's
standard Software Support Services Terms and Conditions (receipt of
which is hereby acknowledged). After the first year, Licensee may elect
to acquire Software Support Services by paying PeopleSoft the then
current applicable fees.
10. ON-SITE SUPPORT DAYS
PeopleSoft shall provide Licensee with support at the Site for the
Software as set forth in the Schedule. For a period of six (6) months
from the Schedule Effective Date, support days not used during the
installation phase may be used for other implementation support.
Licensee shall reimburse PeopleSoft for all reasonable travel and
living expenses associated with any installation and support.
11. TRAINING
PeopleSoft shall provide Licensee with the number of training units set
forth in the Schedule for use at a PeopleSoft Training Facility.
Licensee may use training units for Site training as the parties
mutually agree in writing. Licensee must use these training units
within one (1) year from the Schedule Effective Date.
12. NOTICES
All notices shall be in writing and sent by first class mail, overnight
mail, courier, or transmitted by facsimile (if confirmed by such
mailing), to the addresses indicated on the first page of this
Agreement, or such other address as either party may indicate by at
least ten (10) days prior written notice to the other party. Notices to
PeopleSoft shall be sent to the Legal Department.
13. ASSIGNMENT
Licensee may not assign this Agreement (by operation of law or
otherwise) or sublicense the Software without the prior written consent
of PeopleSoft, and any prohibited assignment or sublicense shall be
null and void.
14. NONDISCLOSURE OBLIGATION
14.1 The terms, conditions, pricing and any other information clearly marked
"confidential" under this Agreement are confidential and shall not be
disclosed, orally or in writing by Licensee to any third party without
the prior written consent of PeopleSoft.
14.2 Licensee shall protect the Software with at least the same degree of
care and confidentiality which Licensee utilizes for similar Licensee
information which it does not wish disclosed to the public. Licensee
may provide access to and use of the Software only to those third
parties, (undertaking similar nondisclosure obligations), providing
services concerning Licensee's use of the Software.
15. GENERAL
This Agreement is made in and shall be governed by the laws of the
State of California, excluding choice of law principles. Venue shall be
in San Francisco, California. The section headings herein are provided
for convenience only and have no substantive effect on the construction
of this Agreement. Except for Licensee's obligation to pay PeopleSoft,
neither party shall be liable for any failure to perform due to causes
beyond its reasonable control. If any provision of this Agreement is
held to be unenforceable, this Agreement shall be construed without
such provision. The failure by a party to exercise any right hereunder
shall not operate as a waiver of such party's right to exercise such
right or any other right in the future. Except for actions for
nonpayment or breach of PeopleSoft's proprietary rights in the
Software, no action regardless of form, arising out of this Agreement
may be brought by either party more than one year after the cause of
action has accrued. This Agreement may be amended only by a written
document
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<PAGE> 38
executed by a duly authorized representative of each of the parties.
This Agreement may be executed in counterparts. To expedite order
processing, Transmitted Copies are considered documents equivalent to
original documents.
16. DEFINITIONS
"Documentation" means only technical publications relating to the use
of the Software, such as reference, user, installation, systems
administrator and technical guides, delivered by PeopleSoft to
Licensee.
"PeopleTools" means the underlying architecture from which the Software
is designed, and includes software application programming tools and
code.
"Schedules" means the product schedules which specifically reference
this Agreement and which have been executed by the parties.
"Server" means a single database or file server which may be accessed
by a network of personal computers as set forth in the applicable
Schedule.
"Site" means a specific, physical location of Licensee's Server as set
forth in the applicable Schedule.
"Software" means all or any portion of the United States version of the
binary computer software programs (including corresponding source code)
provided by PeopleSoft or made by Licensee with PeopleSoft's prior
written consent, in machine-readable form and including all listed in
the applicable Schedule and all corrections or updates thereto.
Software includes the third-party software as identified in the
Schedule. Software does not include source code to PeopleTools.
"Transmitted Copies" means this Agreement, Schedules and other ordering
documents which (i) contain no modifications or amendments to this
Agreement; (ii) are copied or reproduced and transmitted via photocopy,
facsimile or process that accurately transmits the original documents;
and (iii) are accepted by PeopleSoft.
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<PAGE> 39
EXHIBIT F
The terms and conditions of the Systems Integrator Agreement shall apply to
support services described in this Exhibit F. Unless otherwise provided in the
Systems Integrator Agreement, the terms and conditions of this Exhibit E shall
apply.
SUPPORT SERVICES TERMS AND CONDITIONS
TERMS AND CONDITIONS
Software Support Services Terms and Conditions ("Support Services") are
referenced in and incorporated into the License Agreement between PeopleSoft and
Licensee. PeopleSoft reserves the right to modify the terms and conditions of
Support Services on an annual basis to reflect current market conditions.
1. COVERAGE
PeopleSoft provides Licensee with Support Services for the Software in
consideration for Licensee's payment of the applicable fees to PeopleSoft.
2. SOFTWARE MAINTENANCE
The following technical and functional improvements will be issued periodically
by PeopleSoft to improve Software operations:
a. Fixes to Errors;
b. Updates; and
c. Enhancements contained within new releases.
3. PRIORITY LEVEL OF ERRORS
PeopleSoft shall reasonably determine the priority level of Error. PeopleSoft
uses the following protocols:
Priority A Errors:
PeopleSoft promptly initiates the following procedures: (1) assign senior
PeopleSoft specialists to correct the Error; (2) provide ongoing
communication on the status of the corrections; and (3) immediately
commence to provide a Workaround or a Fix.
Priority B Errors:
(1) PeopleSoft assigns a PeopleSoft specialist to commence correction of
Error and (2) Provide escalation procedures as reasonably determined by
PeopleSoft support staff. PeopleSoft exercises all commercially reasonable
efforts to include the Fix for the Error in the next Software maintenance
release.
Priority C Errors:
PeopleSoft may include the Fix for the Error in the next major Software
release.
4. TELEPHONE SUPPORT
PeopleSoft provides telephone technical support concerning installation and use
of the Software. Except for designated holidays, standard telephone support
hours are Monday through Friday, 6:00 a.m. to 6:30 p.m. Pacific Time. Telephone
Support is available 24-hour, 7-days a week for in-production customers who need
to resolve critical production problems outside of normal support hours.
5. ACCOUNT MANAGER
PeopleSoft assigns an account manager to assist the on-going support
relationship. A reasonable amount of account manager on-Site time is included in
the annual Support Services fee. Licensee will reimburse PeopleSoft for the
reasonable travel and living expenses of the account manager for on-Site
activity.
6. PS/FORUM
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<PAGE> 40
a. PS/Forum on-line bulletin board system features postings by PeopleSoft
and PeopleSoft Software users regarding technical and non-technical
topics of interest. Licensee shall access PS/Forum solely through
Licensee's CompuServe services account. At Licensee's own expense,
Licensee shall acquire the CompuServe service and a license to use
Lotus Notes.
b. All maintenance releases and program fixes to the Software may be
delivered to Licensee through PS/Forum. All information specified in
PS/Forum by PeopleSoft is confidential and proprietary to PeopleSoft
and shall only be used in connection with Licensee's use of the
Software and informational communications with other PS/Forum
participants. PeopleSoft reserves the right to modify information
posted to PS/Forum. PeopleSoft shall have the right to publish and
distribute only through PS/Forum in all languages and in association
with Licensee's name any material or software programs provided by
Licensee to PS/Forum. Licensee shall not use PS/Forum for advertising
or public relations purposes and shall only submit information to
PS/Forum which is owned by Licensee or which Licensee has third party
permission to submit to PS/Forum for use by all other PS/Forum users.
c. In the interest of diminishing exposure to software viruses, PeopleSoft
tests and scans for software viruses all information entered by
PeopleSoft prior to submission of information to PS/Forum. Licensee
shall also use a reliable virus detection system on any software or
information posted to PS/Forum, utilize back-up procedures, monitor
access to PS/Forum, promptly notify PeopleSoft of any virus detected
within Licensee's systems associated with PS/Forum and generally
exercise a reasonable degree of caution when utilizing information from
PS/Forum. PeopleSoft does not warrant that PS/Forum will operate
without interruption or without errors. PeopleSoft reserves the right
to modify or suspend PS/Forum service in connection with PeopleSoft's
provision for Support Services.
7. FEES
The first year of Support Services is included in the Software license fees,
thereafter, in the event Licensee elects to continue to receive Support
Services, Licensee shall pay PeopleSoft the then-current annual Support Services
fee. Support Services are billed on an annual basis, payable in advance.
Licensee shall be responsible for all taxes associated with Support Services,
other than taxes based on PeopleSoft's income. Licensee's payment shall be due
within thirty (30) days of receipt of the PeopleSoft invoice.
Should Licensee elect not to renew Support Services and subsequently request
Support Services, PeopleSoft shall reinstate Support Services only after
Licensee pays PeopleSoft the annual then current fee plus all cumulative fees
that would have been payable had Licensee not suspended Support Services.
8. TERM AND TERMINATION
Unless a shorter term is agreed to in writing by both parties, Support Services
shall be provided for one (1) year from the Agreement Effective Date and shall
be extended each additional year unless terminated by either party. Each one (1)
year term shall commence on the anniversary of the Agreement Effective Date.
Either party may terminate the Support Services provisions at the end of the
original term or at the end of any renewal term by giving the other party
written notice at least ninety (90) days prior to the end of any term.
In the event Licensee fails to make payment pursuant to the section titled
"Fees", or in the event Licensee breaches the Support Services provisions and
such breach has not been cured within thirty (30) days of written receipt of
notice of breach, PeopleSoft may suspend or cancel Support Services.
9. EXCLUSIONS
PeopleSoft shall have no obligation to support:
a. Altered, damaged or substantially modified Software;
b. Software that is not the then-current or Previous Sequential Release;
c. Errors caused by Licensee's negligence, hardware malfunction or other
causes beyond the reasonable control of PeopleSoft;
d. Software installed in a hardware or operating environment not supported
by PeopleSoft; and
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<PAGE> 41
e. Third party software not licensed through PeopleSoft.
10. GENERAL
All Updates provided to Licensee are subject to the terms and conditions of the
Agreement.
PeopleSoft shall not be liable for any failure or delay in performance of the
Support Services due to causes beyond its reasonable control. Any illegal or
unenforceable provision shall be severed from these Terms and Conditions.
Licensee agrees that any information received pursuant to these Terms and
Conditions shall be deemed subject to the non-disclosure obligations set forth
in the Agreement. The Support Services Terms and Conditions states the entire
agreement of PeopleSoft's provision of Support Services to Licensee and may only
be amended by a written amendment executed by both parties.
11. DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein shall have the
same meaning as set forth in the Agreement and applicable Schedule.
"Enhancement" means technical or functional additions to the Software to improve
software functionality and/or operations. Enhancements are delivered with new
releases of the Software.
"Error" means a malfunction in the Software which significantly degrades the use
of the Software.
"Fix" means the repair or replacement of source or object or executable code
versions of the Software to remedy an Error.
"Previous Sequential Release" means the release of Software for use in a
particular operating environment which has been replaced by a subsequent release
of the Software in the same operating environment. A Previous Sequential Release
will be supported by PeopleSoft for a period of fifteen (15) months after
release of the subsequent release.
"Priority A" means an Error that: (1) renders the Software inoperative; or (2)
causes the Software to fail catastrophically.
"Priority B" means an Error that significantly degrades performance of the
Software or materially restricts Licensee's use of the Software.
"Priority C" means an Error that causes only a minor impact of the use of the
Software.
"Update" means all published revisions to the printed documentation and one (1)
copy of the new release of the Software which are not designated by PeopleSoft
as new products for which it charges separately.
"Workaround" means a change in the procedures followed or data supplied to avoid
an Error without significantly impairing performance of the Software.
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<PAGE> 42
SMS - CONFIDENTIAL
EXHIBIT - G
SMS ALLEGRA CUSTOMERS
AS REPORTED FROM THE [*]
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 43
SMS - CONFIDENTIAL
EXHIBIT - G
SMS ALLEGRA CUSTOMERS
AS REPORTED FROM THE [*]
HEALTHCARE ORGANIZATION CITY ST ROSS-HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 44
SMS - CONFIDENTIAL
EXHIBIT - G
SMS INVISION ICO CUSTOMERS
AS REPORTED FROM THE [*]
CORPORATION
SUBSIDIARY/ENTITY CITY STATE GL HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 45
SMS - CONFIDENTIAL
EXHIBIT - G
SMS INVISION ICO CUSTOMERS
AS REPORTED FROM THE [*]
CORPORATION
SUBSIDIARY/ENTITY CITY STATE GL HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 46
SMS - CONFIDENTIAL
EXHIBIT - G
SMS INVISION ICO CUSTOMERS
AS REPORTED FROM THE [*]
CORPORATION
SUBSIDIARY/ENTITY CITY STATE GL HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 47
SMS - CONFIDENTIAL
EXHIBIT - G
SMS INVISION ICO CUSTOMERS
AS REPORTED FROM THE [*]
CORPORATION
SUBSIDIARY/ENTITY CITY STATE GL HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 48
SMS - CONFIDENTIAL
EXHIBIT - G
SMS INVISION ICO CUSTOMERS
AS REPORTED FROM THE [*]
CORPORATION
SUBSIDIARY/ENTITY CITY STATE GL HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 49
SMS - CONFIDENTIAL
EXHIBIT - G
SMS INVISION ICO CUSTOMERS
AS REPORTED FROM THE [*]
CORPORATION
SUBSIDIARY/ENTITY CITY STATE GL HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 50
SMS - CONFIDENTIAL
EXHIBIT - G
SMS INVISION ICO CUSTOMERS
AS REPORTED FROM THE [*]
CORPORATION
SUBSIDIARY/ENTITY CITY STATE GL HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 51
SMS - CONFIDENTIAL
EXHIBIT - G
SMS MEDSERIES4 CUSTOMERS
AS REPORTED FROM THE [*]
HEALTHCARE ORGANIZATION CITY ST GL PP/HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 52
SMS - CONFIDENTIAL
EXHIBIT - G
SMS MEDSERIES4 CUSTOMERS
AS REPORTED FROM THE [*]
HEALTHCARE ORGANIZATION CITY ST GL PP/HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 53
SMS - CONFIDENTIAL
EXHIBIT - G
SMS MEDSERIES4 CUSTOMERS
AS REPORTED FROM THE [*]
HEALTHCARE ORGANIZATION CITY ST GL PP/HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 54
SMS - CONFIDENTIAL
EXHIBIT - G
SMS MEDSERIES4 CUSTOMERS
AS REPORTED FROM THE [*]
HEALTHCARE ORGANIZATION CITY ST GL PP/HR
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
<PAGE> 55
EXHIBIT H
PEOPLESOFT'S HARDWARE AND SOFTWARE REQUIREMENTS DOCUMENT
Pages 43 of 51
<PAGE> 56
EXHIBIT I
LANGUAGE TO BE INCLUDED IN SMS-END USER CONTRACTS
The following provisions are currently included in SMS' end user
license agreements. SMS will require End User agreements to include provisions
substantially as reproduced below. SMS agrees that no modification of such
provisions shall cause (i) PeopleSoft Software to be treated differently than
any SMS Product in such End User license agreement, or (ii) the PeopleSoft
Software to have less protection than as stated herein.
__. CONFIDENTIALITY. Each party shall retain in strict confidence the
terms and conditions of this Agreement and all information and data relating to
the other party's business, development plans, programs, documentation,
techniques, trade secrets, systems, and know-how, and shall not, unless
otherwise required by law, disclose such information to any third party without
the other's prior written consent; provided that SMS shall have the right to
compile and distribute statistical analyses and reports utilizing aggregated
data derived from information and data obtained from Customer, other SMS
customers, and other sources. Such reports and analyses will not identify
Customer or any physician or patient of Customer. Customer shall have the right
to disclose SMS information to Customer's employees, consultants, and agents on
a need-to-know basis, provided that all such consultants and agents have
executed a confidentiality agreement that is acceptable to SMS prior to such
disclosure. Upon SMS' request, Customer shall inform SMS in writing of the
number and location of the original and all copies of each of the Deliverables.
The following provision applies in ICO deals:
__. GRANT OF PERPETUAL LICENSE. SMS grants to Customer a perpetual
license to use one (1) copy of the Applications and the Deliverables to be
operated at the Facility by Customer's employees for the sole purpose of
processing data of the Facility. Customer shall also have the right to make
Modifications and Adaptations and to use them solely for the Facility. Customer
agrees that this Agreement shall bind all users of the System.
Customer may make one (1) copy of the Applications and OAS to be used
solely for emergency purposes at the Facility. Customer shall not transfer its
license nor sublicense the Deliverables. Customer shall not disassemble,
decompile, or otherwise reverse-engineer the Applications. OAS or other
software provided by SMS under this Agreement.
SMS or its suppliers shall have the exclusive title to, copyright and
trade secret right in, and the right to grant additional licenses to, the
Applications and Deliverables. If SMS incorporates the programs of any other
suppliers in the Applications, those suppliers shall be entitled to the benefit
of the obligations incurred by Customer in this Section and in the
Confidentiality Section.
The following provision applies in non-ICO deals:
__. REMOTE COMPUTING SERVICES. SMS shall process the Facility's data
on the System as selected by Customer in accordance with the Documentation.
Customer shall have the right to make Adaptations for use solely by the
Facility. Customer shall not transfer its rights hereunder nor sublicense the
Deliverables.
<PAGE> 57
SMS or its suppliers shall have the exclusive title to, copyright and
trade secret right in, and the right to grant additional licenses to, the
Lan-Based Applications and related Deliverables. If SMS incorporates the
programs of any other suppliers in the Applications, those suppliers shall be
entitled to the benefit of the obligations incurred by Customer in this Section
and in the Confidentiality Section.
<PAGE> 58
EXHIBIT J
SMS SERVICE PLUS PROGRAM
The provisions of this Exhibit may be modified by SMS as any time
during the Term.
SMS will provide a program of support for the SMS Applications and
Custom Programming listed in Exhibit A under the following terms and
conditions. This Support Program shall become effective on the date of this
Agreement and shall remain in force for an Initial Term of ______________ (__)
months from the Delivery Date of the first Application. This Program shall
continue in force thereafter until terminated by Customer or SMS upon six (6)
months' written notice.
1. SMS SUPPORT RESPONSIBILITIES:
(a) Correct, at no additional charge, any failure of the
Applications or SMS' architectural system to perform substantially in
accordance with the Documentation as specified in the warranty section of this
Agreement, and to provide remote telephone warranty support.
(b) Provide Customer with a Monthly Allowance of
______________ (__) hours of remote telephone non-warranty support at no
additional charge. The Monthly Allowance may be used for assistance and advice
on the operation and functions of the Applications, for help with diagnostics
and other problem determination procedures, and for advice and assistance in
problem situations. Any unused portion of this Monthly Allowance cannot be
carried forward to subsequent months.
(c) Initiate work on urgent issues within one hour of
Customer's call for assistance to the Customer Support Center ("CSC"), 24 hours
per day and 7 days per week. Generally urgent issues would be those involving
substantial Application failure or those which, in Customer's reasonable
judgment, are critical to Customer's overall operation. SMS will initiate work
on non-urgent issues, including the correction of non-urgent software problems,
during Customer's normal business hours from SMS' Corporate offices or the local
SMS office, either on a remote basis or on-site, as is most effective and
efficient.
(d) Provide a record in SMS' Events Tracking System ("EVTS")
of telephone requests received at the CSC from an employee or other
representative of Customer including a description of the request, the time
spent and the actions performed in satisfying the request, and the resolution
of the request. Customer may, at its option, access this information to review
the support effort being performed at Customer's request and the status of work
in process.
(e) Provide Customer, on a regular basis, Updates and Releases
to the standard SMS Application functions Customer has obtained and
Documentation of these items at no additional software charge. Updates are
packages of software corrections as well as revisions addressing common
functional and performance issues. Releases are a redistribution of licensed SMS
software containing an aggregation of Updates, and functional, operational
and/or performance improvements.
(f) Provide Customer, when made generally available by SMS,
with new Versions of previously delivered Application functions of UNITY FMS,
INVISION RCO, SIGNATURE RCO Applications or Applications licensed under a SMS
Term License Agreement for no additional software fee during the term of this
Support Program. New Versions of previously delivered Application functions of
SMS Applications licensed under a SMS Perpetual License Agreement will be
charged at SMS' then-current rates. A Version is a delivery of new features
packages as part of existing and/or new Applications.
<PAGE> 59
(g) Meet annually with Customer's management staff to (i) jointly
develop an annual support schedule, (ii) evaluate support performance, and
(iii) review Customer's utilization of the System. The annual support schedule
will state which support services will be provided at no additional charge and
which will be provided for an additional fee.
(h) Provide Customer with all generally applicable federally-mandated
regulatory changes and state-mandated billing changes. Federally-mandated
programming changes to the Payroll and Accounts Payable Applications and to the
Case Mix Groupers/Schemes will be provided at no additional charge. SMS'
charges, if any, for other generally applicable federally-mandated programming
changes or state-mandated billing changes are contingent on the scope of such
changes and are set on a multi-client/fair-share basis for programming. Changes
will be provided to Customer when made generally available to customers of this
System.
(i) Provide Customer with an allowance of thirty-two (32) hours of SMS
Education during the first twelve (12) months of the Initial Term. Thereafter,
the Annual Education Allowance will be as provided in the annual support
schedule developed by the parties.
2. CUSTOMER SUPPORT RESPONSIBILITIES:
(a) Ensure the appropriate Customer personnel have been trained in the
operation, support, and management of the SMS System.
(b) Appoint an SMS System Support Coordinator, a LAN Administrator,
establish a central Help Desk, and, if applicable, a Departmental Help Desk for
the effective support and operation of the SMS Applications and to ensure that
Customer Responsibilities are performed.
(c) During the term of this Support Program, provide SMS with both
on-site access to each Facility and remote access to the System through the SMS
approved network services (minimum 14,400 baud) obtained by Customer to enable
SMS to provide warranty assistance both on-site and remotely. Time spent in
remote telephone support activities will be calculated in minimum time
increments of one-half (1/2) hour.
(d) Maintain up-to-date SMS Documentation at the Facility, and, for
the SMS System located at the Facility, to be solely responsible for
maintaining all necessary backup and recovery procedures.
(e) Complete proper problem determination procedures, as specified in
the Documentation, before contacting SMS and then perform problem definition
activities and remedial actions, as reasonably requested by SMS.
(f) Implement all Updates within sixty (60) calendar days and all
Releases within six (6) months, unless a delay is mutually agreed upon by the
parties.
(g) Remain on the latest Release of either the then-current Version or
next-to-current Version of the SMS Applications covered by Customer's current
Agreement and made available by SMS.
(h) Obtain all additional equipment, operating system software,
third-party software, and professional services required to stay current with
third party changes, and changes made by SMS in response to federal and state
regulatory change.
<PAGE> 60
(i) Obtain all additional equipment, operating system
software, third-party software, and professional services (i) relating to
Updates and Releases provided hereunder, (ii) relating to Custom Programming;
and (iii) relating to any Versions and optional net new function.
(j) Remain on the latest Release and Version of all
third-party software as designated by SMS and obtain support for all
third-party software from the respective vendor.
3. MISCELLANEOUS. If the parties objectively determine a problem
is not an error in the Applications, OAS, or Documentation, or if Customer
elects not to perform the Customer's Responsibilities, any support efforts made
by SMS may result in additional charges which shall be pursuant to SMS'
then-current rates and terms.
Telecommunication services line charges, charges for remote telephone
support in excess of Customer's Monthly Allowance, travel and other expenses
associated with support provided by SMS shall be paid by Customer pursuant to
SMS' then-current rates and terms.
This program shall supersede any other support agreement between SMS
and Customer relating to the Applications listed in Exhibit A.
<PAGE> 61
EXHIBIT K
MONTHLY REPORT FORM
SMS shall, no later than fifteen (15) days following the end of each
quarter, inform PeopleSoft of the delivery of any PeopleSoft Software
sublicensed by SMS and shall provide to PeopleSoft a SMS quarterly
report, in the form shown below, containing sufficient information to
allow PeopleSoft to invoice SMS for such licenses.
For the purposes of this Agreement, the quarters shall end on the
following dates:
February 28 (or February 29, if applicable)
May 31
August 31
November 30
Information required for each End User that licensed PeopleSoft Software from
SMS:
Name:
Address:
PeopleSoft Software licensed:
Royalty due to PeopleSoft:
Type of SMS End User: (Current Financials ICO User, Current Financials Non-ICO
User, New Financials ICO User, New Financials Non-ICO User, etc.)
If new SMS End User, specify SMS's Core Application licensed simultaneous with
PeopleSoft Software:
Exhibit G Update:
Specify all the entities that have executed a license agreement with SMS for any
and all SMS's Core Applications during the reporting period.
Page 46 of 51
<PAGE> 62
EXHIBIT L
1. SMS End Users
SMS understands and agrees that during the nine (9) month period following the
Effective Date, PeopleSoft and its then-current distributors, oems, vars and
other channel partners have the exclusive marketing, distribution and licensing
rights for the PeopleSoft Software to the SMS End Users specified below:
[ * ]
2. Prospects
SMS understands and agrees that during the twelve (12) month period following
the Effective Date, PeopleSoft and its then-current distributors, oems, vars and
other channel partners have the exclusive marketing, distribution and licensing
rights for the prospects specified below and SMS shall not market or distribute
the PeopleSoft Software to such prospects during such twelve month period.
[ * ]
3. SMS End User and Current PeopleSoft Customer
SMS understands and agrees the entities specified below are current PeopleSoft
customers and during Term of this Agreement, including all subsequent renewals,
PeopleSoft and its then-current distributors, oems, vars and other channel
partners may market, distribute and license the PeopleSoft Software to such
entities.
[ * ]
Page 47 of 51
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 63
[ * ]
Page 48 of 51
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 64
EXHIBIT M
SUMMARY OF SMS TRAVEL AND LIVING POLICIES
The following is a summary of the principal provisions of SMS' present
policy for employee reimbursement for United States travel and living expenses.
SMS passes these charges through to Customer.
1. Commercial Air Fare. Coach class, except business class is
reimbursable on coast-to-coast flights if it is not more than twenty percent
(20%) more expensive than coach class.
2. Car Rental. Compact car (unless the number of people being
transported requires a larger car) from a car rental firm that provides SMS
special reduced rates.
3. Use of Personal Automobile. At a rate of $.29 per mile plus
tolls for the United States, except Puerto Rico which is reimbursed at the rate
of $.32 per mile plus tolls.
4. Other Commercial Travel. Coach class for trains and buses.
Airport vans are to be used in preference to taxi cabs for travel to and from
airports where practical.
5. Parking. The maximum amount which is reimbursable for parking
at any airport or train station is the standard per-day rate for remote
parking.
6. Lodging. Lowest-priced, satisfactory accommodation. The use of
hotels which provide SMS special reduced rates is encouraged.
7. Meals. An allowance for breakfast and dinner only Monday
through Friday and additionally for lunch on weekends. The rates for these
allowances are as follows:
<TABLE>
<CAPTION>
New York City Vicinity,
Puerto Rico, Alaska, All Other
Meal and Hawaii Locations
<S> <C> <C>
Breakfast $ 6.00 $ 6.00
Lunch $ 5.00 $ 5.00
Dinner $21.00 $16.00
</TABLE>
Receipts are required for commercial travel, car rental, parking, and
lodging. Where SMS employees visit more than one client on the same trip, the
expenses incurred are apportioned in relation to time spent with each client.
SMS' policy for employee reimbursement may be changed by SMS from time
to time to reflect changes in economic and business factors.
<PAGE> 65
EXHIBIT N
SMS MARKS
TO BE PROVIDED BY SMS AT A LATER DATE (WITHIN THIRTY DAYS OF THE EFFECTIVE DATE)
Page 50 of 51
<PAGE> 66
EXHIBIT O
SUBSTANTIAL SELLING EFFORT
Date:
[On applicable party's letterhead]
Send to: PeopleSoft, Inc. or SMS (as appropriate)
Attn: Regional General Manager or SMS contact (as appropriate)
ALL INFORMATION MUST BE COMPLETED AND SIGNATURE REQUIRED BY EACH PARTY'S
AUTHORIZED REPRESENTATIVE BEFORE ELIGIBILITY FOR CREDIT OF ROYALTY
List the Substantial Selling Effort provided by PeopleSoft or SMS (as
appropriate) to qualify for royalty credit under the Agreement (list all
significant details including end user customer name, dates and locations of
sales presentations, demonstrations, submittal of RFP Responses, etc.)
------------------------------
SMS
------------------------------
PeopleSoft
This form when executed by the parties authorized representative certifies that
PeopleSoft or SMS (as appropriate) provided the above Substantial Selling Effort
and this license is authorized and qualifies for royalty credit by PeopleSoft to
SMS as set forth in Section 5 of Exhibit B to the Agreement.
Agreed & Acknowledged:
PEOPLESOFT, INC.
-------------------------------------
Licensee
------------------------------------- -------------------------------------
Authorized signature of Sales Authorized signature of Sales
Management Management
------------------------------------- -------------------------------------
Printed name and title Printed name and title
Page 51 of 51