Exhibit 10.2
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement is made as of June 30, 2004
("Effective Date") by and between PeopleSoft USA, Inc. ("PeopleSoft"), a
Colorado corporation having a principal place of business at 4460 Hacienda
Drive, P.O. Box 8018, Pleasanton, California 94588-8618 and ("Licensee"), a
Delaware corporation having a principal place of business at 16115 Northwest
52nd Avenue; Miami, FL 33014.
1. LICENSE
1.1 PeopleSoft grants Licensee a perpetual (except as otherwise stated in
Section 6), irrevocable (except as otherwise stated in Section 6),
nonexclusive, nontransferable license to:
(a) make and run copies of the Software for Licensee's internal
data processing operations on one or more servers and/or
workstations located at facilities owned or leased by Licensee
or its Designates in the Territory;
(b) access and use the Software and provide access to Designates;
(c) modify or merge the Software with other software, and use such
modified or merged software;
(d) make and use copies of, and modify, the Documentation and use
such Documentation as modified;
(e) provide access to the Software to third parties that have a
need to access the Software in the course of providing
services to Licensee concerning Licensee's use of the Software
subject to the terms and conditions specified herein,
including, without limitation, Section 9.4
No modification or merger of the Software with other software or modification of
the Documentation, however extensive, shall diminish PeopleSoft's or its
licensors' right, title or interest in the Software and Documentation.
1.2 PeopleSoft shall provide Licensee with the number of copies of the
Software as specified in the applicable Schedule(s), and shall provide Licensee
with an equal number of copies of the Documentation.
2. LIMITATIONS ON LICENSE
2.1 Except as otherwise specified in this Agreement, Licensee
shall not:
a. Intentionally access or use any portion of the Software
delivered by PeopleSoft but not expressly licensed and paid
for by Licensee;
b. Intentionally access or use any Software, except through
enterprise integration points documented by PeopleSoft;
c. Cause or permit decompilation or reverse assembly of all or
any portion of the Software, except as expressly permitted by
applicable law;
d. Disclose or publish performance benchmark results for Software
(as delivered or subsequently modified) without PeopleSoft's
prior written consent;
e. Transfer the Software to a different software database
platform or operating system, except as may be specifically
provided for in the Schedule;
f. Export or use the Software or Documentation in violation of
U.S., Canadian, or other applicable laws or regulations,
including the U.S. Department of Commerce export
administration regulations;
g. Use or authorize the use of, the Software except as expressly
permitted herein;
h. Use Third Party Software except solely in conjunction with the
Software;
i. Delete, fail to reproduce or modify, any patent, copyright,
trademark or other proprietary rights notices which appear on
or in the Software or Documentation;
j. Directly or indirectly, sublicense, relicense, distribute,
disclose, use, rent or lease the Software or Documentation, or
any portion thereof, for third party use, third party
training, facilities management, time-sharing, use as an
application service provider, or service bureau use; or
k. Use the Software to create new applications, modules, products
or services.
2.2 PeopleSoft reserves all rights not expressly granted in this Agreement.
3. FEES AND PAYMENT TERMS
3.1 Except as otherwise specified in a Schedule and/or this Agreement,
Licensee shall pay, or cause a third party to pay, PeopleSoft one hundred
percent (100%) of Total Fees (as specified on the applicable Schedule) on or
before that date which is thirty (30) calendar days after the receipt of
PeopleSoft's invoice. Unless explicitly stated in this Schedule
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and/or the Agreement, all fees specified herein: (i) are non-cancelable,
non-refundable and non-contingent; (ii) are payable in U.S. dollars; and (iii)
shall be sent to the attention of PeopleSoft's Accounts Receivable Department.
Payments which are not received on the due date shall bear interest at the
lesser of eighteen percent (18%) per annum or the maximum rate allowed under
applicable law.
3.2 Excluding taxes based on PeopleSoft's income, Licensee is liable for
all taxes relating to the Software, Documentation, and/or Services whether or
not PeopleSoft invoices Licensee for such taxes, duties or customs fees, unless
Licensee has provided PeopleSoft with a valid tax exemption or direct pay
certificate which exempts Licensee from such payments.
3.3 PeopleSoft reserves the right to withhold performance of any
obligations, whether arising under this Agreement or otherwise, and/or change
its credit terms, in the event of Licensee's nonpayment when due of any amounts
owed to PeopleSoft and such nonpayment remains uncured for more than thirty (30)
days after written notice thereof.
3.4 If Licensee's internal procedures require that a purchase order be
issued as a prerequisite to payment of any amounts due to PeopleSoft, it will
timely issue such purchase order and inform PeopleSoft of the number and amount
thereof. Licensee agrees that the absence of a purchase order, other ordering
document or administrative procedure may not be raised as a defense to avoid or
impair the performance of any of Licensee's obligations hereunder, including
payment of amounts owed to PeopleSoft.
4. TITLE AND PROTECTION
4.1 The Software and Documentation contain valuable intellectual property
rights and proprietary information. PeopleSoft (or its licensors) retains title
to the Software and Documentation, and all copyright and other rights to all
portions of the Software and Documentation, and all modifications and
alterations thereto, and all copies thereof. Licensee is not obligated to notify
or disclose PeopleSoft of its modifications.
Except as specified herein, Licensee does not acquire any rights, express or
implied, in the Software and Documentation, and has no right to commercialize or
transfer any Software or Documentation, in whole or in part, or any
modifications or alterations thereto. No license, right, or interest in any
PeopleSoft trademark, trade name, or service mark is granted pursuant to this
Agreement.
4.2 Title to the physical media for the Software and the Documentation
vests in Licensee upon PeopleSoft's shipment to Licensee.
4.3 The Software was developed at private expense, is commercial, and is
published and copyrighted. The Software may be transferred to the U.S.
government only with the prior written consent of an officer of PeopleSoft and
solely with "Restricted Rights" as that term is defined in FAR 52.227-19(c)(2)
(or DFAR 252.227-202.32 (c)(1) if the transfer is to a defense-related agency)
or subsequent citation. If Licensee is an agency of the United States government
or licensing the Software for operation on behalf of the United States
government, the Software is licensed to Licensee with rights no greater than
those set forth in Federal Acquisition Regulation 52.227-19(c)(2) [or DFAR
252.227-7202.32 (c)(1) if the Licensee is a defense-related agency] or
subsequent citation.
5. INDEMNITIES
5.1 PeopleSoft will defend and indemnify (including the associated legal
expenses) Licensee, its Affiliates and their respective officers, directors,
employees, agents, successors and assigns against any claims by third parties
for damages incurred by such third parties alleging that the Software infringes
the third party's intellectual property rights ("Indemnified Claim"). Licensee
will give PeopleSoft prompt written notice of such claim, and information,
reasonable assistance, and the sole authority to defend or settle such claim.
In addition to the obligations stated above, in the event that PeopleSoft
becomes aware of an actual or potential Indemnified Claim, PeopleSoft shall, in
its reasonable judgment and in a commercially reasonable timeframe, and at its
option and expense either: (i) obtain for Licensee the right to continue using
the allegedly infringing Software; or (ii) replace or modify the allegedly
infringing Software so that it becomes noninfringing while providing
substantially similar functionality.
PeopleSoft will have no obligation to defend or indemnify Licensee in the event
that Licensee agrees to settle any infringement claim without the prior written
consent of the General Counsel for PeopleSoft, Inc. (which shall not be
unreasonably withheld) or for any liability arising out of or relating to any
allegations or claims of infringement, to the extent the alleged infringement is
based on: (a) a modification of the Software by anyone other than PeopleSoft or
its
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agents that is not an Update; (b) use of the Software other than in accordance
with the Documentation or the terms of this Agreement; (c) use of a release of
the Software no longer supported by PeopleSoft because PeopleSoft has replaced
or modified the Software so as to make it non-infringing; provided Licensee was
notified by PeopleSoft of the potential infringement and the availability of
such replacement or modification, and given a reasonable opportunity to
implement the replacement or modification prior to the use which serves as the
basis for the claim of infringement; (d) use of a release of the Software
without having implemented all Updates provided by PeopleSoft, the use of which
would have cured the alleged infringement; (e) exclusively on any Third Party
Software, unless otherwise specified in a Schedule; (f) use of the Software in
combination with any other hardware, software (other than Third Party Software)
or material where, absent such combination, the Software would not be
infringing, or (g) Software or Services for which PeopleSoft has not been paid
in accordance with the terms of this Agreement. This Section states PeopleSoft's
entire liability for actual or alleged infringements and Licensee's sole and
exclusive remedy in relation thereto.
5.2 Licensee will defend and indemnify PeopleSoft against any claims by
third parties for damages incurred by such third parties, alleging that any data
or materials produced and/or distributed and/or received in any media resulting
from use of the Software: (i) are factually inaccurate, misleading or deceptive;
(ii) infringe or misappropriate any intellectual property rights any third
party; (iii) are libelous, defamatory, obscene or pornographic, (iv) comprise
unsolicited commercial e-mail or spam, or (v) violate civil or criminal laws or
regulations, including those regulating the use and distribution of content on
the Internet and protection of personal privacy, provided that such claims are
not solely attributable to a nonconformity of the Software to perform
substantially in accordance with the Documentation or to the Software violating
any civil or criminal laws or regulations. PeopleSoft will give Licensee prompt
written notice of such claim and information, reasonable assistance, and the
sole authority to defend or settle such claim.
5.3 EXCEPT FOR LICENSEE'S INFRINGEMENT OF PEOPLESOFT'S INTELLECTUAL
PROPERTY RIGHTS, THE FOREGOING PROVISIONS OF THIS SECTION ENTITLED "INDEMNITIES"
STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF THE PARTIES, AND THE EXCLUSIVE
REMEDY OF THE INDEMNIFIED PARTY, WITH RESPECT TO ANY ACTUAL OR ALLEGED
INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY OR OTHER
PROPRIETARY RIGHTS.
6. TERM AND TERMINATION
6.1 This Agreement will remain in effect perpetually unless and until
terminated pursuant to this Section entitled "Term and Termination".
6.2 Either party may terminate this Agreement in the event of the other
party's failure to materially comply with any term of this Agreement and such
noncompliance remains uncured for more than thirty (30) days after written
notice thereof.
6.3 Upon termination, Licensee shall immediately cease using and destroy or
return to PeopleSoft all copies of PeopleSoft's Confidential Information,
including, without limitation, Software and Documentation in any form, including
partial copies and modified versions, and shall certify in writing to PeopleSoft
that all such copies have been destroyed or returned.
6.4 Except as expressly provided otherwise in this Agreement, (i) all
remedies available to either party are cumulative and not exclusive; and (ii)
termination of this Agreement or any license shall not limit either party from
pursuing other remedies available to it, including injunctive relief. Upon
termination, all amounts owed under this Agreement and all Schedules shall
immediately become due and payable.
7. LIMITED WARRANTY
7.1 PeopleSoft warrants that the Software, as delivered to Licensee, for a
period of eighteen (18) months from the applicable Schedule Effective Date will
perform substantially in accordance with the Documentation, provided that: (a)
Licensee remains a compliant, continuous subscriber to Support Services and has
installed all maintenance Updates provided by PeopleSoft, which would have cured
the alleged nonconformity to perform in accordance with the Documentation; (b)
Licensee is using the Software in accordance with the Documentation; (c) any
error or defect detected is reproducible by PeopleSoft; (d) the performance
issue, error or defect does not relate exclusively to Third Party Software; and
(e) Licensee notifies PeopleSoft of such nonconformance within the warranty
period or within thirty days following expiration of the warranty period.
PeopleSoft warrants that it has title to, or the authority to grant a license
to, the Software, excluding Third Party Software, to Licensee in accordance with
the terms of this Agreement. As to Third Party Software, PeopleSoft warrants
that it is licensed by the third party that has licensed the Third Party
Software to PeopleSoft, to sublicense such Third Party
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Software to Licensee pursuant to the terms of this Agreement. Licensee's sole
and exclusive remedy for any breach of the foregoing warranties shall be the
remedy set forth in Section 7. of this Agreement.
PEOPLESOFT DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT THE SOFTWARE
WILL RUN UNINTERRUPTED, OR THAT ALL SOFTWARE ERRORS CAN OR WILL BE CORRECTED.
PeopleSoft warrants that the execution, delivery and performance of this
Agreement has been duly and validly authorized by all necessary corporate action
of the part of PeopleSoft (none of which actions have been modified or
rescinded, and all of which actions are in full force and effect), and that this
Agreement constitutes a valid and binding obligation of PeopleSoft enforceable
in accordance with its terms.
Licensee warrants that the execution, delivery and performance of this Agreement
has been duly and validly authorized by all necessary corporate action of the
part of Licensee (none of which actions have been modified or rescinded, and all
of which actions are in full force and effect), and that this Agreement
constitutes a valid and binding obligation of Licensee enforceable in accordance
with its terms.
7.2 PeopleSoft warrants that the Services will be performed consistent with
generally accepted industry standards, provided that Licensee notifies
PeopleSoft within one (1) month of performance of the Services that Licensee
believes such Services were not performed consistent with generally accepted
industry standards. PeopleSoft warrants that the Support Services will be
performed in accordance with PeopleSoft's Support Services Terms and Conditions
as specified in the Exhibit attached hereto. No specific result from the
provision of such Services is assured or guaranteed.
7.3 For any breach of the warranties contained in this Agreement,
PeopleSoft shall, in addition to any and all other remedies available at law or
in equity:
7.3.1 For Services, at PeopleSoft's sole option, (i) the reperformance of the
Services which were not as warranted at no additional charge by PeopleSoft to
Licensee, or (ii) refund of the fees paid to PeopleSoft for the Services which
were not as warranted.
7.3.2 For Software which does not conform to the warranties contained in this
Agreement, PeopleSoft will, at its sole option, and provided Licensee otherwise
complies with the terms of this Agreement: repair or replace the nonconforming
Software within a commercially reasonable period of time after receiving notice
from Licensee of such nonconformance.
7.4 Licensee accepts sole responsibility for (i) Licensee's system
configuration, design and requirements, (ii) the selection of the Software to
achieve Licensee's intended results, and (iii) modifications, changes or
alterations to the Software by anyone other than PeopleSoft or its agents that
is not an Update. Licensee acknowledges that it has had an opportunity to review
the Documentation, it understands the functionality of the Software and its
ability to work with Licensee's systems and to support Licensee's business, and
that it has made its own evaluation in deciding to license the Software.
7.5 PeopleSoft will pass through to Licensee, to the fullest extent
possible, the warranties from PeopleSoft's licensors as they relate to Third
Party Software.
7.6 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT (INCLUDING, WITHOUT
LIMITATION, ANY SCHEDULE HERETO), NEITHER PARTY MAKES ANY WARRANTIES OR
CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS
AGREEMENT, THE SOFTWARE, DOCUMENTATION, OR ANY SERVICES PROVIDED HEREUNDER
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND
EACH PARTY EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES AND CONDITIONS.
8. LIMITATION OF LIABILITY
EXCEPT FOR CLAIMS: (I) ALLEGEDLY ARISING OUT OF INFRINGEMENT, OR MISUSE OF
EITHER PARTY'S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OR THEIR USE IN A
MANNER WHICH IS INCONSISTENT WITH THE TERMS OF THIS AGREEMENT; (II) ALLEGEDLY
ARISING OUT OF EITHER PARTY'S VIOLATION OF UNITED STATES OR OTHER LAWS
APPLICABLE TO THE SOFTWARE OR DOCUMENTATION, INCLUDING U.S. DEPARTMENT OF
COMMERCE EXPORT ADMINISTRATION REGULATIONS; AND (III) BY THIRD PARTIES
RECOVERABLE BY LICENSEE UNDER THE SECTION ENTITLED, "INTELLECTUAL PROPERTY
INDEMNITY";, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
OR CONSEQUENTIAL DAMAGES, OR DAMAGES RESULTING FROM LOST DATA OR LOST PROFITS,
HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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EXCEPT FOR CLAIMS: (I) ALLEGEDLY ARISING OUT OF INFRINGEMENT, OR MISUSE OF
EITHER PARTY'S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OR THEIR USE IN A
MANNER WHICH IS INCONSISTENT WITH THE TERMS OF THIS AGREEMENT; (II) ALLEGEDLY
ARISING OUT OF EITHER PARTY'S VIOLATION OF UNITED STATES OR OTHER LAWS
APPLICABLE TO THE SOFTWARE OR DOCUMENTATION, INCLUDING U.S. DEPARTMENT OF
COMMERCE EXPORT ADMINISTRATION REGULATIONS; (III) BY THIRD PARTIES RECOVERABLE
BY LICENSEE UNDER THE SECTION ENTITLED, "INTELLECTUAL PROPERTY INDEMNITY"; AND
(IV) NONPAYMENT OF AMOUNTS OWED TO EITHER PARTY, NEITHER PARTY'S LIABILITY FOR
DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THE
RELATIONSHIP OF THE PARTIES, THIS AGREEMENT, ITS NEGOTIATION OR TERMINATION, OR
THE PROVISION OR NON-PROVISION OF SOFTWARE, DOCUMENTATION OR SERVICES (WHETHER
IN CONTRACT, TORT, OR OTHERWISE) SHALL EXCEED TWO (2) TIMES THE AGGREGATE AMOUNT
PAID BY LICENSEE TO PEOPLESOFT UNDER THE APPLICABLE SCHEDULE FROM WHICH THE
CLAIM AROSE. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS
SECTION ENTITLED "LIMITATION OF LIABILITY". LICENSEE ACKNOWLEDGES THAT WITHOUT
ITS AGREEMENT TO THE LIMITATIONS CONTAINED HEREIN, THE FEES CHARGED FOR THE
SOFTWARE AND SERVICES WOULD BE HIGHER.
9. NONDISCLOSURE OBLIGATIONS
9.1 Definitions.
(a) PeopleSoft's Confidential Information includes, without limitation, the
Software, object and source code for the Software, and any associated
documentation; information concerning PeopleSoft's plans for products or
functionality, or service offerings; business polices or practices; information
identified as proprietary or confidential to PeopleSoft; any agreements and the
terms, conditions, and pricing contained in the agreement(s); information
received from others that PeopleSoft has agreed to keep confidential or to not
disclose; PeopleSoft's research activities and plans, marketing and sales plans,
strategic plans, forecasts, training materials, pricing and pricing strategies,
methods of operation, internal controls, security procedures, licensee lists;
unpublished financial information; and information presented to Licensee in
focus groups, guide groups, or other advisory groups sponsored by PeopleSoft or
its customers.
(b) Licensee's Confidential Information means any and all information disclosed
by Licensee to PeopleSoft which is identified as confidential or proprietary,
including information concerning Licensee's plans for products or service
offerings; business polices or practices; information identified as proprietary
or confidential to Licensee; Licensee's research activities and plans, marketing
and sales plans, strategic plans, forecasts, methods of operation, internal
controls, security procedures, Licensee customer lists; and unpublished
financial information;
(c) Discloser is the party that is disclosing Confidential Information.
(d) Recipient is the party that is receiving Confidential Information.
9.2 During the course of the parties' relationship, they may have access to
Confidential Information of the other. Recipient will not disclose Discloser's
Confidential Information, orally or in writing, to any third party without the
prior written consent of Discloser, except as provided below. The parties will
protect each other's Confidential Information with at least the same degree of
care and confidentiality, but not less than a reasonable standard of care, which
the Recipient utilizes for its own information that it does not wish disclosed
to others. Recipient shall use Discloser's Confidential Information only to the
extent necessary to exercise its rights or perform its obligations hereunder.
9.3 The Agreement imposes no obligation on Recipient with respect to
Discloser's Confidential Information that Recipient can establish by legally
sufficient evidence: (a) was, prior to receipt from Discloser, in the possession
of, or rightfully known by Recipient, without an obligation to Discloser to
maintain its confidentiality; (b) is or becomes generally known to the public or
comes into the public domain without violation of the Agreement or without a
violation of an obligation of confidentiality owed to the Discloser; or (c) is
obtained by Recipient in good faith from a third party having the right to
disclose it without an obligation of confidentiality to Discloser. For purposes
of this Section, a disclosure of Confidential Information will not render the
Confidential Information "generally known to the public" when the (i) disclosure
is enjoined by Discloser, (ii) disclosure is the subject of a written settlement
agreement between Discloser and a third party resolving a dispute between
Discloser and such third party as to the alleged wrongful disclosure of the
Confidential Information, provided that such information remains confidential
pursuant to the terms of the settlement, or (iii) disclosing party is held
liable to Discloser for damages in an action alleging wrongful disclosure or
misappropriation of the Confidential Information.
9.4 Recipient may provide access to and use of the Discloser's Confidential
Information only to those third parties that have a need to use and access the
Confidential Information in the course of providing services to Recipient
concerning
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Licensee's use of the Software and have agreed to non-disclosure obligations
substantially similar to those contained herein. Disclosure of Discloser's
Confidential Information by any such third party will be deemed a breach by
Recipient hereunder. To the extent Recipient may be required to disclose
Confidential Information in a legal proceeding, Recipient may make such
disclosure provided that Recipient notifies Discloser of such requirement prior
to disclosure and makes diligent efforts to avoid and/or limit disclosure, and
cooperates with Discloser in seeking a protective order.
9.5 The Recipient will not obtain, by virtue of the Agreement, any right,
title, or interest in any Confidential Information of the Discloser, except as
expressly provided herein. Immediately on termination of the Agreement, each
party will certify in writing to the other that all copies of Confidential
Information in any form, including partial copies, have been destroyed or
returned to the Discloser, unless explicitly permitted in writing otherwise by
the Discloser.
9.6. ALL CONFIDENTIAL INFORMATION PROVIDED TO THE RECIPIENT IS "AS-IS" AND
WITHOUT WARRANTY OR CONDITION OF ANY KIND, UNLESS EXPRESSLY PROVIDED OTHERWISE
IN THIS AGREEMENT.
10. NOTICE
All notices required by this Agreement shall be in writing and sent by regular
mail, certified mail, overnight courier, personal delivery, or facsimile (if
confirmed by regular mail, certified mail, overnight courier, or personal
delivery) 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
attention of PeopleSoft's General Counsel. Notice will be effective on the date
shown on the delivery receipt or facsimile confirmation or, if sent by regular
mail or where there is no written evidence of delivery, on actual receipt or
refusal of receipt.
11. ASSIGNMENT
Licensee may not assign or transfer this Agreement (by operation of law, as a
result of a change of control, or otherwise), grant a security interest in the
Software, or sublicense the Software without the prior written consent of
PeopleSoft (such consent not to be unreasonably withheld or delayed), and any
such assignment, grant or sublicense without such consent shall be null and
void. Notwithstanding the foregoing, in the event of a merger, consolidation or
acquisition of all or substantially all of the assets or stock of Licensee,
Licensee may assign its rights under this Agreement to the resulting entity upon
written notice to PeopleSoft, provided that such entity: (a) is not a PeopleSoft
competitor; (b) is not an entity that has failed to, or is unable or unwilling
to, protect the confidentiality of the Software or PeopleSoft's intellectual
property and proprietary rights; (c) possesses sufficient resources (financial
or otherwise) to perform Licensee's obligations under this Agreement; (d) is not
a Licensee of PeopleSoft Software; and (e) signs an amendment with PeopleSoft
assuming all of the obligations of Licensee under this Agreement. In addition,
Licensee understands and agrees that a condition of assignment shall be the
payment of additional license fees in accordance with PeopleSoft's pricing in
effect at the time of the assignment, including any fees owed to expand the
scope of use for this Agreement and the applicable Schedule(s) beyond the scope
of use of the original licensing entity.
12. SURVIVABILITY
The terms of Sections herein entitled "Title and Protection", "Term and
Termination", "Limited Warranty", "Limitation of Liability", "Nondisclosure
Obligations", "Indemnities" (with respect to claims arising from use of the
Software during the term of the Agreement) "Notice", "Survivability", "General",
and "Definitions" shall survive termination of this Agreement.
13. GENERAL
The Agreement is made in and will be governed by the laws of the State of
California, without regard to its choice of law principles, and without regard
to the provisions of any state Uniform Computer Information Transactions Act or
similar federal or state laws or regulations. The parties expressly disclaim the
application of the United Nations Convention on Contracts for the International
Sale of Goods. Exclusive jurisdiction and venue of any actions arising out of,
or relating to or in any way connected with the Agreement, its negotiation or
termination, or Software, Documentation or Services provided or to be provided
by PeopleSoft, will be in Santa Clara County, California if in state court, and
in the Northern District of California if in Federal Court. In any litigation in
which the parties are adverse, the parties agree to waive their respective
rights to a trial by jury. The section headings herein are provided for
convenience only and have no substantive effect on the construction of the
Agreement. The Agreement may be amended only by a written document executed by a
duly authorized representative of each of the parties, unless expressly provided
otherwise herein. No purchase order or other document that purports to modify or
supplement the Agreement or any Schedule will add to or vary the terms of the
Agreement or Schedule, and all proposed variations or additions (whether
submitted by PeopleSoft or Licensee) are deemed material and objected to unless
otherwise agreed to in a writing signed by both parties. Except for (i)
Licensee's failure to assume its obligations for taxes; (ii) nonpayment of
amounts owed to either party; or (iii) breach of PeopleSoft's or its licensors'
rights in the Software or Documentation or either party's Confidential
Information obligations, neither party
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will be liable for any failure to perform due to causes beyond its reasonable
control. If any provision of the Agreement is held to be unenforceable, the
Agreement will be construed without such provision. The failure by a party to
exercise or enforce any right hereunder will not operate as a waiver of such
party's right to exercise or enforce such right or any other right in the
future. Except for actions for: (i) Licensee's failure to assume its obligations
for taxes; (ii) nonpayment of amounts owed to either party; or (iii) breach of
PeopleSoft's or its licensors' rights in the Software or Documentation or either
party's Confidential Information obligations, no action, regardless of form,
arising out of, relating to or in any way connected with the Agreement,
Software, Documentation or Services provided or to be provided by PeopleSoft may
be brought by either party more than one (1) year after the cause of action has
accrued. For a period of six (6) months from the Effective Date and each
Schedule Effective Date, either party may individually issue a press release
discussing Licensee's plans to use, or the use of, PeopleSoft's Software or
Services, and/or any publicly available information describing Licensee's or
PeopleSoft's businesses, products or services. Licensee consents to the use of
its name on PeopleSoft customer lists. The Agreement constitutes the entire
agreement between the parties concerning the subject matter hereof and may not
be modified by custom and usage. The Agreement replaces and supersedes any prior
verbal or written understandings, communications, and representations between
the parties, except for confidentiality agreements between the parties. To the
extent there is any conflict between the terms of the Agreement and any
previously executed confidentiality agreement, the terms providing the most
protection to PeopleSoft's confidential information will control. Transmitted
copies are considered documents equivalent to original documents. PeopleSoft
reserves the right to audit Licensee's use of the Software no more frequently
than once annually at PeopleSoft's expense. All audits shall be conducted during
regular business hours at Licensee's facilities and shall not unreasonably
interfere with Licensee's business activities. PeopleSoft shall schedule any
such audits at least fifteen (15) days in advance.
The prevailing party in any legal proceeding related to this Agreement shall be
entitled to recover from the other party reasonable attorneys fees and costs.
14. DEFINITIONS
"Affiliates" shall mean those legal entities which Licensee has the ability to
bind to the terms and conditions of this Agreement and in which Licensee owns or
controls, directly or indirectly, more than fifty percent (50%) of such entity's
outstanding shares or securities (representing the right to vote for the
election of directors or other managing authority).
"Agreement" means this Agreement, and any exhibits and amendments thereto, in
combination with a Schedule(s). Each Schedule with the terms of this Agreement,
and any exhibits and amendments thereto, is a separate and independent
contractual obligation of PeopleSoft from any other Schedule.
"Designates" means Licensee's customers, suppliers, vendors, benefits providers
and other such third parties providing goods or services to Licensee that
Licensee may provide with a right to access the Software to facilitate
Licensee's use of the Software consistent with the terms of this Agreement. In
no event shall a Designate have the right to (i) install the Software on a
server, workstation or other computer, (ii) access or use the Software to run
its internal data or support its internal operations except as such access or
use relates to Licensee's use of the Software consistent with the terms of this
Agreement, or (iii) access the source code for the Software. A breach by a
Designate will be considered a breach by Licensee.
"Documentation" means the technical publications relating to the Software, such
as reference, user, installation, systems administrator and technical guides,
delivered by PeopleSoft to Licensee as of the applicable Schedule Effective Date
and incorporated herein by reference.
"Insolvency" means (i) Licensee's general failure or inability to pay its debts
as they become due, cessation of its business, or admission of its inability to
pay its debts, (ii) the commencement of a case, by or against Licensee, under
Title 11 of the United States Code (or any other similar proceeding for the
arrangement, adjustment or composition of debts under any state, federal or
foreign law providing for the relief of debtors), (iii) the appointment of,
assignment to, or the taking of possession by, a receiver, trustee, assignee,
custodian, liquidator, sequestrator or other similar agent or officer of
Licensee, or of all or a substantial part of its property, or (iv) any corporate
action by Licensee to authorize any of the actions in clauses (ii) and (iii)
hereof.
"Schedule(s)" means the schedule(s) or amendment executed by the parties and
which references this Agreement.
"Services" means installation, Support Services and/or training provided by
PeopleSoft or its subcontractors to Licensee.
Page 7 of 9
"Software" means all or any portion of the binary computer software programs and
related source code (except as otherwise provided in a Schedule), listed on the
applicable Schedule as being licensed by Licensee, or otherwise indicated in the
Agreement as being licensed by Licensee, available as of the Schedule Effective
Date, which is delivered by PeopleSoft to Licensee, including Tools and Third
Party Software. Software does not include source code for Third Party Software
or Tools. Software also includes Updates, if any. Unless specifically stated
otherwise, all Software is delivered to Licensee only if and when generally
commercially available.
"Support Services" means the particular services offered by PeopleSoft and
selected by Licensee which are designed to support the Supportable Modules and
the standard terms and conditions thereto, in effect on the date services are
rendered. Different levels of Support Services may be offered.
"Supportable Modules" are those Software modules for which PeopleSoft offers
Support Services, and are comprised of (i) Software excluding the Third Party
Software modules; (ii) Tools; and (iii) those Third Party Software modules
specifically designated in the Schedule as "Supportable Modules".
"Territory" means the geographic area set forth in the applicable Schedule in
which Licensee may install and run the Software on servers for use by Licensee.
Notwithstanding anything in the Agreement to the contrary, Territory shall not
include any country to which export is prohibited by United States, Canadian or
other applicable laws and regulations.
"Third Party Software" means that portion of the Software sublicensed and
delivered by PeopleSoft to Licensee and actually used by Licensee, designated in
a Schedule as having a manufacturer other than PeopleSoft.
"Tools" means the software application programming tools in object code form,
from which the Software, excluding Third Party Software, is designed, which is
delivered by PeopleSoft to Licensee. Tools includes PeopleTools, but does not
include source code or software application programming tools for Third Party
Software.
"Transmitted Copies" means this Agreement, including any Schedules and other
ordering documents which are (i) copied or reproduced and transmitted via
photocopy, facsimile or process that accurately transmits the original
documents; and (ii) accepted by PeopleSoft.
"Updates" means those subsequent releases of the Software and Documentation
which are generally made available to licensees of the Software, as part of
Support Services at no additional charge, other than the fees for Support
Services, media and handling charges. Updates shall not include any releases,
enhancements, functionality or products which PeopleSoft licenses separately or
charges for separate from Support Services. The use of an Update may be subject
to additional terms and Licensee may be required to agree to such terms in
writing prior to receiving an Update. Updates are delivered only if and when
available.
Page 8 of 9
The undersigned represent and warrant that they are authorized as
representatives of the party on whose behalf they are signing to sign this
Software License and Services Agreement and to bind their respective party
thereto.
ALL AMERICAN SEMICONDUCTOR, INC. PEOPLESOFT USA, INC.
/s/ HOWARD L. FLANDERS /s/ ROBERT DICRISTINA
- ------------------------------------ -------------------------------------
authorized Signature Authorized Signature
Howard L. Flanders, EVP & CFO
- ------------------------------------ -------------------------------------
Printed Name and Title Printed Name and Title
Page 9 of 9
Software Support Services Terms and Conditions Exhibit
to
Software License and Services Agreement, Dated June 30, 2004
by and between
PeopleSoft USA, Inc. and All American Semiconductor, Inc.
(Attached hereto and made a part hereof)
Software Support Services Terms and Conditions
Standard Support Services
Standard Support Services Coverage. PeopleSoft will provide the following
services to Licensees who have subscribed to Standard Support Services, provided
Licensee fulfills the Licensee Obligations.
1. Software Maintenance-PeopleSoft will periodically issue Fixes to
Errors and Updates to Software.
2. Designated Employees-Licensee may designate a maximum of four (4)
employees who are responsible for resolving user issues, and only such
designated employees may contact PeopleSoft for the provision of
Support Services.
3. Priority Level of Errors-Errors will be addressed in accordance with
the following protocols:
Priority l Errors - PeopleSoft shall make reasonable attempts to
acknowledge Priority 1 cases within two (2) hours from the time
that the case was placed and to initiate the following procedures:
(1) assign PeopleSoft specialists to commence correction of the
Error; (2) provide ongoing communication on the status of the
corrections; and (3) commence to provide a Workaround or a Fix.
Priority 2 Errors-PeopleSoft shall make reasonable attempts to
acknowledge Priority 2 cases within six (6) hours from the time
that the case was placed and to initiate the following procedures:
(1) assign a PeopleSoft specialist to commence correction of the
Error; (2) commence to provide a Workaround or a Fix; and (3)
provide escalation procedures as reasonably determined by
PeopleSoft support staff.
Priority 3 Errors-PeopleSoft shall make reasonable attempts to
acknowledge Priority 3 cases within twenty four (24) hours from
the time the case was placed.
4. Escalation Process - If Licensee's attempts to have an Error resolved
are not successful or have not proven satisfactory, or if there are
extenuating circumstances which change the priority of an Error, the
following escalation procedures shall apply:
During Business Hours - If circumstances cause the Error to be
more critical, Licensee will contact the assigned PeopleSoft
application support specialist. If by discussing the Error with
the assigned support specialist, Licensee believes the assigned
support specialist is not providing an appropriate response likely
to resolve the Error, Licensee may request that the support
specialist escalate the case to a PeopleSoft application support
manager.
The on-call support specialist will refer cases to the after-hours
support line. If the Error is critically affecting the License's
production system, the on-call support specialist will work to the
best of his ability to resolve it. This may include:
a. Contacting the backup on-call specialist;
b. Contacting a member of the application support group;
c. Calling the application support manager who will then,
d. Escalate the Error to the attention of the development
product manager, who may
e. Call the individual developer on their team having the
skill to resolve coding Errors.
If the case is not critical in nature, the specialist will inform
Licensee that the Error will be handled during the next business
day. The on-call specialist will not help resolve problems
resulting solely from Licensee's procedures and operating methods.
Licensee will be responsible for problems caused by its own
actions, and the associated time spent by PeopleSoft. The terms of
this Section set forth Licensee's sole and exclusive remedy
regarding response times and escalation of issues.
5. Telephone Support -PeopleSoft provides telephone support concerning
use of the Software. Except for designated holidays, PeopleSoft's
standard United States Global Support Center telephone hours are
Monday through Friday, 4:00 a.m. to 6:00 p.m., Pacific Time.
PeopleSoft's Customer Services Guide identifies other Global Support
Center locations and local operating hours. Telephone Support is also
available 24-hours-a-day, 7-days-a-week for in-production customers
who need to resolve Priority 1 Errors outside of standard support
hours.
6. PeopleSoft Customer ConnectionSM
a. PeopleSoft Customer ConnectionSM is an on-line system that
permits Licensee to log cases to PeopleSoft and features
postings by PeopleSoft and customers regarding technical and
non-technical topics of interest. Licensee may access
PeopleSoft Customer ConnectionSM via internet access at its
own expense. Licensee assumes all risk related to and
arising out of accessing PeopleSoft Customer ConnectionSM.
b. Updates and Fixes may be delivered to Licensee through
PeopleSoft Customer ConnectionSM, or by mail from PeopleSoft
upon Licensee's written request. PeopleSoft information
posted to Customer ConnectionSM is confidential and
proprietary and shall only be used in connection with
Licensee's use of the Software and informational
communications with other PeopleSoft Customer ConnectionSM
participants. PeopleSoft shall have the right to publish,
modify and distribute any information or software provided
by Licensee to Customer ConnectionSM in all languages.
Licensee shall not use PeopleSoft Customer ConnectionsSM for
advertising or public relations purposes and shall only
submit information to PeopleSoft Customer ConnectionSM that
Licensee owns or has permission to use in such manner.
c. To diminish exposure to software viruses, PeopleSoft uses
commercially reasonable efforts to test and scan all
information entered by PeopleSoft for software viruses prior
to submitting it to PeopleSoft Customer ConnectionSM. In
consideration of Licensee's being provided access to
PeopleSoft Customer ConnectionSM, Licensee shall also use a
reliable virus detection system on any software or
information posted to PeopleSoft Customer ConnectionSM,
utilize back-up procedures, monitor access to PeopleSoft
Customer ConnectionSM, promptly notify PeopleSoft of any
virus detected within Licensee's systems associated with
PeopleSoft Customer ConnectionSM and generally exercise a
reasonable degree of caution when utilizing information from
PeopleSoft Customer ConnectionSM. PeopleSoft does not
warrant that PeopleSoft Customer ConnectionSM will operate
without interruption or without errors or without viruses.
PeopleSoft reserves the right to modify or suspend
PeopleSoft Customer ConnectionSM service in connection with
PeopleSoft's provision of Support Services. PeopleSoft
assumes no responsibility for anything posted by anyone
other than PeopleSoft, including, but not limited to,
information about PeopleSoft software, modification code, or
portions thereof.
7. Customer Care - Customer Care will help locate general product
information, will place orders for Updates upon Licensee request, and
will address business inquiries.
8. Customer Contact-PeopleSoft shall designate a non-exclusive contact
for the limited purpose of identifying the status of logged or
initiated cases that Licensee has previously escalated in accordance
with the terms of these Support Services. PeopleSoft reserves the
right to replace and/or reassign such contact.
SCHEDULE
TO THE
SOFTWARE LICENSE AND SERVICES AGREEMENT
This independent Schedule to the Software License and Services Agreement
("Schedule") is made as of June 30, 2004 ("Schedule Effective Date") by and
between PeopleSoft USA, Inc. ("PeopleSoft") and ("Licensee"). This Schedule is
part of the Software License and Services Agreement between the parties dated
June 30, 2004 ("Agreement").
--------------------------------------------------------------------------------------------------------------------------------
SOFTWARE LICENSE AND SERVICES FEES
--------------------------------------------------------------------------------------------------------------------------------
Total License fees from Exhibit A - Enterprise Software: [*]
--------------------------------------------------------------------------------------------------------------------------------
Total License fees from Exhibit B - Enterprise One Software: [*]
--------------------------------------------------------------------------------------------------------------------------------
TOTAL: SOFTWARE LICENSE FEES: [*]
--------------------------------------------------------------------------------------------------------------------------------
PEOPLESOFT TRAINING UNITS
--------------------------------------------------------------------------------------------------------------------------------
Theatre Regions Designated Number of Fee
------- ------- ---------- --------- ---
Region Training Units
------ --------------
--------------------------------------------------------------------------------------------------------------------------------
North America United States and Canada United States 231 units [*]
------------- ------------------------ ------------- ---------
--------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL: TRAINING UNIT FEES [*]
----------------------------
--------------------------------------------------------------------------------------------------------------------------------
SERVICES
--------
--------------------------------------------------------------------------------------------------------------------------------
Services Mfr. Units Fee
--------------------------------------------------------------------------------------------------------------------------------
Standard Support Services for the Initial Services Term o PeopleSoft, Inc. N/A [*]
--------------------------------------------------------------------------------------------------------------------------------
TOTAL: SERVICES FEES: [*]
--------------------------------------------------------------------------------------------------------------------------------
TOTAL FEES: [*]
--------------------------------------------------------------------------------------------------------------------------------
1. Specific Licensed Use: Licensee's use of the Software is limited to
each of the following restrictions.
--------------------------------------------------------------------------------------------------------------------------------
Territory WorldWide
--------------------------------------------------------------------------------------------------------------------------------
Version Global Version(1) (indicate the country specific global version for each country United States
for which the Software will be used) functionality /
English language
--------------------------------------------------------------------------------------------------------------------------------
Base Base Employee Count
Metrics
--------------------------------------------------------------------------------------------------------------------------------
Technical Database Version DB2
Information ------------------------------------------------------------------------------------------------------------
Operating System Windows
------------------------------------------------------------------------------------------------------------
Hardware Model Intel
--------------------------------------------------------------------------------------------------------------------------------
2. Payment Terms: Payment terms shall be as specified in Section 3 of the
underlying Agreement.
3. Services Terms and Conditions:
3.1 Support Services Terms: Support Services Terms: For a period commencing
upon the Schedule Effective Date and terminating one (1) year thereafter
("Initial Services Term"), Licensee shall receive Support Services for the
- -----------------------------
(1) Notwithstanding anything in the Agreement to the contrary, Licensee is
licensed to use and access only those licensed languages and licensed country
specific features/functionalities of the global Software version that are
available as of the Schedule Effective Date. Any additional licensed languages
or licensed country specific features/functionalities that may become available
after the Schedule Effective Date as part of the global version of the Software
module(s) licensed pursuant to this Schedule may be used and accessed by
Licensee only as may be provided pursuant to Support Services, provided Licensee
is a current, compliant subscriber to Support Services.
* This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 1 of 10
Supportable Modules licensed pursuant to this Schedule for the version which
meets the technical environment set forth in section entitled "Specific Licensed
Use" for the fees set forth above.
[*]
Thereafter, in the event Support Services are to be provided for the Supportable
Modules licensed pursuant to this Schedule, and Licensee has been a compliant,
continuous subscriber to Support Services, Licensee shall pay PeopleSoft, on or
before the applicable Anniversary Date (defined as the annually recurring month
and date of the Schedule Effective Date), the Support Services fee in effect at
the time such Support Services are renewed. In the event Support Services are
not renewed and Licensee subsequently requests Support Services, PeopleSoft may,
in its sole discretion, reinstate Support Services but only after Licensee pays
PeopleSoft the annual Support Services fee in effect at the time of such
reinstatement, plus a reinstatement fee equal to the number of years or portion
thereof during which Licensee was not a subscriber to Support Services
multiplied by the annual Support Services fee in effect at the time of such
reinstatement.
Notwithstanding anything to the contrary, PeopleSoft agrees that the Minimum
Period of Support for Release 8.x of the Software, other than Third Party
Software licensed pursuant to a Schedule(s), will be four (4) years from the
Date of General Availability of such Software provided that (i) the database,
operating systems and hardware with which the Software is compatible remain
supported by the respective manufacturers during such period, and (ii) Licensee
remains a complaint, continuous subscriber to Support Services and has applied
all Updates. For purposes of this Section, "Date of General Availability" means
the date on which PeopleSoft began to ship such release, version or Update, and
"Release 8.x" means any sequential release of Series 8 of the Software licensed
hereunder that has a number or character to the right of the decimal in place of
the "x".
Attached hereto as an Exhibit is a copy of PeopleSoft's Software Support
Services Terms and Conditions as of the Schedule Effective Date. On each
anniversary of the Schedule Effective Date and upon reasonable notice,
PeopleSoft has the right to change the terms and conditions of Support Services.
3.2 Purchase, Use and Limitations of PeopleSoft Training Units.
3.2.1. Training Unit Definitions.
"Designated Region" means the Region selected by Licensee for each Training Unit
purchased in this Schedule as identified in the "Designated Region" column in
the Training Unit section in the table above. A Training Unit will have only one
associated Designated Region.
"Region" means one of the smaller geographic regions that make up each Theatre
as set forth in the Training Unit section in the table above. For example,
within the North American Theatre, the United States is one Region and Canada is
the other Region.
"Theatre" means one of the four (4) geographic areas designated in the Training
Unit section in the table above, each of which contains a group of Regions.
"Training" means: (a) PeopleSoft education products and services offered: (i) in
a PeopleSoft classroom; (ii) in Licensee's classroom; (iii) over the Internet;
or (iv) on a compact disc; and (b) certain other education-related services that
PeopleSoft makes available to its licensees.
"Training Unit" means a unit that may be purchased by Licensee and redeemed by
Licensee for Training in the Designated Region in accordance with the terms and
conditions of this Schedule.
3.2.2. Upon receipt of the fees set forth in this Schedule, PeopleSoft will
credit Licensee's account with the number and type of Training Units set forth
in the table above.
3.2.3. Licensee must select a Designated Region for each Training Unit at the
time of purchase. Licensee may only redeem a Training Unit purchased herein for
Training provided in the Designated Region, unless Licensee transfers Training
Units as follows. Licensee may change the Designated Region for a Training Unit
to a different Region within the same Theatre (e.g., Licensee may change the
Designated Region from a Region in the EMEA Theatre to any other Region in the
EMEA Theatre), provided that for each request: (i) Licensee must transfer a
minimum of ten (10) Training
o * This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 2 of 10
Units to the new Region; and (ii) Licensee must make such request in writing
(which may be via e-mail) to Licensee's designated training representative.
Licensee may not change the Designated Region for a Training Unit to a Region in
another Theatre. In no event shall Licensee be entitled to a refund as a result
of changing the Designated Region for applicable Training Units.
3.2.4. The number of Training Units that must be redeemed for each registrant to
attend a particular class offered as part of Training will be as reflected on
the PeopleSoft Training site of PeopleSoft.com at the time the registrant
registers for the class. Licensee may use Training Units for training at
Licensee's site only as the parties mutually agree in writing.
3.2.5. Taxes. Licensee will fully reimburse PeopleSoft for all associated taxes,
including, but not limited to, any taxes triggered by the initial purchase, and
any taxes triggered by the transfer of Training Units from one Region to
another.
3.2.6. Training Unit Expiration. Licensee must use Training Units within one (1)
year from the Schedule Effective Date. Training Units are non-returnable, and
except as explicitly set forth in this Schedule, non-transferable, and except as
explicitly set forth on PeopleSoft's training site on PeopleSoft.com, cannot be
used as a credit toward any other type of training unit, license or service.
[*]
5. Option to License Additional Software Modules: Provided Licensee has
been a continuous, compliant subscriber to Support Services and is not in breach
of the terms of the Agreement, PeopleSoft grants Licensee the option for a
period of one year from this Schedule Effective Date, to license PeopleSoft
software modules which are generally available on the date the option is
exercised ("Exercise Date"), at the list license fee less a discount of [*]
Licensee can exercise the option by doing the following on the earlier of the
date payment is due under PeopleSoft's invoice or the expiration of the option:
(i) executing and delivering to PeopleSoft a mutually acceptable Schedule to
this Agreement for such software modules, or (ii) paying the license fee due.
Licensee acknowledges that license fees for certain software modules currently
are not, and may not be, subject to any discount and no discount will apply to
any software modules which are not licensed directly from PeopleSoft. This
option does not apply to third party software, or software licensed pursuant to
a process involving a Request for Proposal, or where PeopleSoft expended
significant additional sales effort, by for example, conducting multiple
demonstrations of the functionality of the Software. This option is not a
guarantee that such software modules will be made available.
6. Separate Agreement: PeopleSoft may provide services regarding the
Software licensed hereunder pursuant to an independent Consulting Services
Agreement executed between the parties. Licensee understands and agrees that
such Consulting Services Agreement and associated Statements of Services that
may be signed are separate and independent contractual obligations from any
Schedule or amendment thereto relating to the license of Software. Licensee
shall not withhold payments that are due and payable pursuant to this Schedule
or any other Schedule(s) or amendment(s) thereto because of the status of work
performed under any executed Consulting Services Agreement and associated
Statement of Services. In addition, the parties acknowledge that the ability to
provide such services: (i) are not exclusive or specific to PeopleSoft; and (ii)
are commercially available from a variety of third party service providers.
7. Definitions: Unless otherwise set forth herein, capitalized terms used
herein shall have the same meaning ascribed to them in the Agreement.
o
o
o
o
o
o
o
o
o
o
o * This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 3 of 10
"Accessory Products" mean third party software delivered with the Software as a
convenience to Licensee, but not licensed under this Agreement. They are
licensed to Licensee pursuant to individual end user license agreements that are
contained in the software. Accessory Products are not Supportable Modules.
"Base Metric" means that Metric limit for which Licensee and related entities
are licensed to use or benefit from the use of the Software.
"Metric" means that size measurement utilized to: (i) measure the size of
Licensee and related entities licensed to use or benefit from the use of the
Software; and (ii) define the limitations of the license granted pursuant to the
Agreement; and includes Employee Count, Reported Revenues, Student Count,
Customer Count and Funds Raised .
"Support Services" means that particular package of services as may be offered
by PeopleSoft and selected by Licensee and which are designed to support the
Supportable Modules, and the standard terms and conditions thereto, in effect on
the later of the following: (i) the date fees are received for such services
offered by PeopleSoft which are designed to support the Supportable Modules, and
(ii) the first date of the period for which services offered by PeopleSoft which
are designed to support the Supportable Modules are provided.
"Supportable Modules" are those Software modules for which PeopleSoft offers
some sort of maintenance services, and are comprised of: (i) Software excluding
the Third Party Software modules; (ii) Tools; and (iii) those Third Party
Software modules specifically designated in the Schedule as "Supportable
Modules".
8. Expiration of Offer: The offer set forth in this Schedule and the
Agreement is valid only through June 30, 2004 and if the Schedule and the
Agreement are not executed by both parties by such date, the offer is rescinded,
all terms are null and void, and neither party shall have any obligation in
relation thereto.
9. Miscellaneous Information:
9.1 Title to Physical Media: Notwithstanding anything in the Agreement to
the contrary, (i) in the event physical media for the Software is shipped, title
to the physical media for the Software vests in Licensee upon shipment thereof
to Licensee and (ii) upon Licensee's reasonable request, PeopleSoft will provide
a reasonable number of additional copies of the Software at no additional cost.
- -------------------------------------------------------------------------------------------------------------------------------
SHIPPING INFORMATION BILLING INFORMATION SITE INFORMATION TRAINING ADMINISTRATOR
- -------------------- ------------------- ---------------- ----------------------
- -------------------------------------------------------------------------------------------------------------------------------
Contact: Bruce DeMarco Contact: Bruce DeMarco Contact: Bruce DeMarco Contact: Bruce DeMarco
- -------------------------------------------------------------------------------------------------------------------------------
Address: 16115 NW 52cd Ave. Address: 16115 NW 52cd Ave. Address: 16115 NW 52cd Ave. Address: 16115 NW 52cd Ave.
- -------------------------------------------------------------------------------------------------------------------------------
Miami, Fl 33014 Miami, FL 33014 Miami, FL 33014 Miami, FL 33014
- -------------------------------------------------------------------------------------------------------------------------------
Phone: 305-621-8282 Phone: 305-621-8282 Phone: 305-621-8282 Phone: 305-621-8282
- -------------------------------------------------------------------------------------------------------------------------------
Fax: 305-925-0637 Fax: 305-925-0637 Fax: 305-925-0637 Fax: 305-925-0637
- -------------------------------------------------------------------------------------------------------------------------------
[*]
11. Order of Precedence:
In the event of any conflicts or inconsistencies between the provisions of this
Schedule and the Agreement, the provisions of the Agreement shall prevail.
o * This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 4 of 10
The undersigned represent and warrant that they are authorized as
representatives of the party on whose behalf they are signing to sign this
Schedule and to bind their respective party thereto.
ACCEPTED BY: ACCEPTED BY:
LICENSEE PEOPLESOFT USA, INC.
/s/ HOWARD L. FLANDERS /s/ ROBERT A. DICRISTINA
- ----------------------------------- -----------------------------------
authorized Signature Authorized Signature
Howard L. Flanders, EVP & CFO
- ----------------------------------- -----------------------------------
Printed Name and Title Printed Name and Title
Page 5 of 10
EXHIBIT A
ENTERPRISE SOFTWARE MODULES
----------------------------------------------------------------------------------------------------
SOFTWARE(2)
----------------------------------------------------------------------------------------------------
Software Modules Mfr. Provided Fee
Copies
----------------------------------------------------------------------------------------------------
PEOPLESOFT GLOBAL VERSION APPLICATION SOFTWARE MODULES
----------------------------------------------------------------------------------------------------
[*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
[*]
----------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
----------------------------------------------------------------------------------------------------
* This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
- -----------------------------
(2) All Software modules licensed on this Exhibit are PeopleSoft Enterprise
Software modules. Unless otherwise explicitly indicated in this Exhibit, all
references to Software modules in this Exhibit, including all footnotes, are to
PeopleSoft Enterprise Software modules.
Page 6 of 10
--------------------------------------------------------------------------------------------------------------
[*]
--------------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
--------------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
--------------------------------------------------------------------------------------------------------------
SUBTOTAL PEOPLESOFT ENTERPRISE SOFTWARE LICENSE FEES: [*]
--------------------------------------------------------------------------------------------------------------
TOTAL LICENSE FEES ON THIS EXHIBIT: [*]
--------------------------------------------------------------------------------------------------------------
* This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 7 of 10
EXHIBIT B
ENTERPRISEONE SOFTWARE MODULES
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
Software Modules Mfr. Provided Copies Fee
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*] 1. PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
* This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 8 of 10
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
[*]
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
* This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 9 of 10
-----------------------------------------------------------------------------------------------------------
[*] PeopleSoft, Inc. 1 [*]
-----------------------------------------------------------------------------------------------------------
TOTAL LICENSE FEES: [*]
-----------------------------------------------------------------------------------------------------------
* This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 10 of 10
Software Support Services Terms and Conditions Exhibit
to
Software License and Services Agreement, Dated June 30, 2004
by and between
PeopleSoft USA, Inc. and All American Semiconductor, Inc.
(Attached hereto and made a part hereof)
Software Support Services Terms and Conditions
Standard Support Services
Standard Support Services Coverage. PeopleSoft will provide the following
services to Licensees who have subscribed to Standard Support Services, provided
Licensee fulfills the Licensee Obligations.
9. Software Maintenance-PeopleSoft will periodically issue Fixes to
Errors and Updates to Software.
10. Designated Employees-Licensee may designate a maximum of four (4)
employees who are responsible for resolving user issues, and only such
designated employees may contact PeopleSoft for the provision of
Support Services.
11. Priority Level of Errors-Errors will be addressed in accordance with
the following protocols:
Priority l Errors - PeopleSoft shall make reasonable attempts to
acknowledge Priority 1 cases within two (2) hours from the time
that the case was placed and to initiate the following procedures:
(1) assign PeopleSoft specialists to commence correction of the
Error; (2) provide ongoing communication on the status of the
corrections; and (3) commence to provide a Workaround or a Fix.
Priority 2 Errors-PeopleSoft shall make reasonable attempts to
acknowledge Priority 2 cases within six (6) hours from the time
that the case was placed and to initiate the following procedures:
(1) assign a PeopleSoft specialist to commence correction of the
Error; (2) commence to provide a Workaround or a Fix; and (3)
provide escalation procedures as reasonably determined by
PeopleSoft support staff.
Priority 3 Errors-PeopleSoft shall make reasonable attempts to
acknowledge Priority 3 cases within twenty four (24) hours from
the time the case was placed.
12. Escalation Process - If Licensee's attempts to have an Error resolved
are not successful or have not proven satisfactory, or if there are
extenuating circumstances which change the priority of an Error, the
following escalation procedures shall apply:
During Business Hours - If circumstances cause the Error to be
more critical, Licensee will contact the assigned PeopleSoft
application support specialist. If by discussing the Error with
the assigned support specialist, Licensee believes the assigned
support specialist is not providing an appropriate response likely
to resolve the Error, Licensee may request that the support
specialist escalate the case to a PeopleSoft application support
manager.
The on-call support specialist will refer cases to the after-hours
support line. If the Error is critically affecting the License's
production system, the on-call support specialist will work to the
best of his ability to resolve it. This may include:
a. Contacting the backup on-call specialist;
b. Contacting a member of the application support group;
c. Calling the application support manager who will then,
d. Escalate the Error to the attention of the development
product manager, who may
e. Call the individual developer on their team having the
skill to resolve coding Errors.
If the case is not critical in nature, the specialist will inform
Licensee that the Error will be handled during the next business
day. The on-call specialist will not help resolve problems
resulting solely from Licensee's procedures and operating methods.
Licensee will be responsible for problems caused by its own
actions, and the associated time spent by PeopleSoft. The terms of
this Section set forth Licensee's sole and exclusive remedy
regarding response times and escalation of issues.
13. Telephone Support -PeopleSoft provides telephone support concerning
use of the Software. Except for designated holidays, PeopleSoft's
standard United States Global Support Center telephone hours are
Monday through Friday, 4:00 a.m. to 6:00 p.m., Pacific Time.
PeopleSoft's Customer Services Guide identifies other Global Support
Center locations and local operating hours. Telephone Support is also
available 24-hours-a-day, 7-days-a-week for in-production customers
who need to resolve Priority 1 Errors outside of standard support
hours.
14. PeopleSoft Customer ConnectionSM
a. PeopleSoft Customer ConnectionSM is an on-line system that
permits Licensee to log cases to PeopleSoft and features
postings by PeopleSoft and customers regarding technical and
non-technical topics of interest. Licensee may access
PeopleSoft Customer ConnectionSM via internet access at its
own expense. Licensee assumes all risk related to and
arising out of accessing PeopleSoft Customer ConnectionSM.
b. Updates and Fixes may be delivered to Licensee through
PeopleSoft Customer ConnectionSM, or by mail from PeopleSoft
upon Licensee's written request. PeopleSoft information
posted to Customer ConnectionSM is confidential and
proprietary and shall only be used in connection with
Licensee's use of the Software and informational
communications with other PeopleSoft Customer ConnectionSM
participants. PeopleSoft shall have the right to publish,
modify and distribute any information or software provided
by Licensee to Customer ConnectionSM in all languages.
Licensee shall not use PeopleSoft Customer ConnectionsSM for
advertising or public relations purposes and shall only
submit information to PeopleSoft Customer ConnectionSM that
Licensee owns or has permission to use in such manner.
c. To diminish exposure to software viruses, PeopleSoft uses
commercially reasonable efforts to test and scan all
information entered by PeopleSoft for software viruses prior
to submitting it to PeopleSoft Customer ConnectionSM. In
consideration of Licensee's being provided access to
PeopleSoft Customer ConnectionSM, Licensee shall also use a
reliable virus detection system on any software or
information posted to PeopleSoft Customer ConnectionSM,
utilize back-up procedures, monitor access to PeopleSoft
Customer ConnectionSM, promptly notify PeopleSoft of any
virus detected within Licensee's systems associated with
PeopleSoft Customer ConnectionSM and generally exercise a
reasonable degree of caution when utilizing information from
PeopleSoft Customer ConnectionSM. PeopleSoft does not
warrant that PeopleSoft Customer ConnectionSM will operate
without interruption or without errors or without viruses.
PeopleSoft reserves the right to modify or suspend
PeopleSoft Customer ConnectionSM service in connection with
PeopleSoft's provision of Support Services. PeopleSoft
assumes no responsibility for anything posted by anyone
other than PeopleSoft, including, but not limited to,
information about PeopleSoft software, modification code, or
portions thereof.
15. Customer Care - Customer Care will help locate general product
information, will place orders for Updates upon Licensee request, and
will address business inquiries.
16. Customer Contact-PeopleSoft shall designate a non-exclusive contact
for the limited purpose of identifying the status of logged or
initiated cases that Licensee has previously escalated in accordance
with the terms of these Support Services. PeopleSoft reserves the
right to replace and/or reassign such contact.
SCHEDULE
TO THE
SOFTWARE LICENSE AND SERVICES AGREEMENT
This independent Schedule to the Software License and Services Agreement
("Schedule") is made as of June 30, 2004 ("Schedule Effective Date") by and
between PeopleSoft USA, Inc. ("PeopleSoft") and All American Semiconductor, Inc.
("Licensee"). This Schedule is part of the Software License and Services
Agreement between the parties dated June 30, 2004 ("Agreement").
-------------------------------------------------------------------------------------------------------------------------
SOFTWARE / SERVICES
-------------------------------------------------------------------------------------------------------------------------
Software Modules Mfr. Provided Fee
Copies
-------------------------------------------------------------------------------------------------------------------------
Third Party Software
-------------------------------------------------------------------------------------------------------------------------
MicroStrategy Web Professional User Packs for 5 Named MicroStrategy, Inc. 1 [*]
Users for PeopleSoft EnterpriseOne and World Analytics(3)
-------------------------------------------------------------------------------------------------------------------------
MicroStrategy Foundation for PeopleSoft EnterpriseOne and MicroStrategy, Inc. 1 [*]
World Analytics(4)
-------------------------------------------------------------------------------------------------------------------------
MicroStrategy Web Analyst User Packs for 5 Named Users MicroStrategy, Inc. 1 [*]
for PeopleSoft EnterpriseOne and World Analytics(5)
-------------------------------------------------------------------------------------------------------------------------
MicroStrategy Web Reporter User Packs for 5 Named Users MicroStrategy, Inc. 1 [*]
for PeopleSoft EnterpriseOne and World Analytics(6)
-------------------------------------------------------------------------------------------------------------------------
TOTAL LICENSE FEES: [*]
=========================================================================================================================
Services Mfr. Units Fee
-------------------------------------------------------------------------------------------------------------------------
Other Services
-------------------------------------------------------------------------------------------------------------------------
Standard Support Services for the Initial Services Term 5. PeopleSoft, Inc. N/A [*]
-------------------------------------------------------------------------------------------------------------------------
TOTAL OTHER SERVICES FEES: [*]
-------------------------------------------------------------------------------------------------------------------------
TOTAL FEES: [*]
=========================================================================================================================
1. Specific Licensed Use: Licensee's use of the Third Party Software is
limited to each of the following restrictions.
--------------------------------------------------------------------------------------------------------------------------------
Territory WorldWide
--------------------------------------------------------------------------------------------------------------------------------
Version Global Version(7) (indicate the country specific global version for each country United States
within the Territory in which or for which the Third Party Software will be used) functionality /
English language
--------------------------------------------------------------------------------------------------------------------------------
- -----------------------------
(3) Comprised of (i) Five (5) Named Users of MicroStrategy Intelligence Server
Enterprise Edition; (ii) Five (5) Named Users of MicroStrategy Web Professional
and (iii) Five (5) Named Users of MicroStrategy OLAP Services. Requires
MicroStrategy Foundation for PeopleSoft EnterpriseOne and World Analytics.
(4) MicroStrategy Foundation for PeopleSoft EnterpriseOne and World Analytics is
comprised of (i) One (1) Named User of MicroStrategy Architect and (ii) Two (2)
Named Users of MicroStrategy Desktop Designer. This Third Party Software module
is a Supportable Module.
(5) Comprised of (i) Five (5) Named Users of MicroStrategy Intelligence Server
Enterprise Edition; (ii) Five (5) Named Users of MicroStrategy Web Analyst and
(iii) Five (5) Named Users of MicroStrategy OLAP Services. Requires
MicroStrategy Foundation for PeopleSoft EnterpriseOne and World Analytics.
(6) Comprised of (i) Five (5) Named Users of MicroStrategy Intelligence Server
Enterprise Edition; (ii) Five (5) Named Users of MicroStrategy Web Reporter and
(iii) Five (5) Named Users of MicroStrategy OLAP Services. Requires
MicroStrategy Foundation for PeopleSoft EnterpriseOne and World Analytics.
* * This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 1 of 6
----------------------------------------------------------------------------
Database Version DB2
------------------------------------------------------------
Operating System Windows
Technical ------------------------------------------------------------
Information Hardware Model Intel
----------------------------------------------------------------------------
2. License Restrictions:
[*]
2.1 Restrictions on Use: [*]
2.2 Additional Restrictions: [*]
2.3 Limitation of Liability: [*]
3. Limited Warranty: [*]
3.1 [*]
3.2 [*]
3.3 [*]
- --------------------------------------------------------------------------------
(7) Notwithstanding anything in the Agreement to the contrary, Licensee is
licensed to use and access only those licensed languages and licensed country
specific features/functionalities of the global Third Party Software version
that are available as of the Schedule Effective Date. Any additional licensed
languages or licensed country specific features/functionalities that may become
available after the Schedule Effective Date as part of the global version of the
Third Party Software module(s) licensed pursuant to this Schedule may be used
and accessed by Licensee only as may be provided pursuant to Support Services,
provided Licensee is a current, compliant subscriber to Support Services.
* * This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 2 of 6
3.4 [*]
3.5 [*]
4. Indemnities:
4.1 [*]
4.2 [*]
4.3 [*]
* * This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 3 of 6
5. Payment Terms: [*]
6. Services Terms and Conditions:
6.1 Support Services Terms: [*]
6.2 MicroStrategy Support: [*]
6.3 [*]
6.4 [*]
6.4.1 [*]
7. Separate Agreement: PeopleSoft may provide services regarding the Third
Party Software licensed hereunder pursuant to an independent Consulting Services
Agreement executed between the parties. Licensee understands and agrees that
such Consulting Services Agreement and associated Statements of Services that
may be signed are separate and independent contractual obligations from any
Schedule or amendment thereto relating to the license of Third Party Software.
Licensee shall not withhold payments that are due and payable pursuant to this
Schedule or any other Schedule(s) or amendment(s) thereto because of the status
of work performed under any executed Consulting Services Agreement and
associated Statement of Services. In addition, the parties acknowledge that the
ability to provide such services: (i) are not exclusive or specific to
PeopleSoft; and (ii) are commercially available from a variety of third party
service providers.
8. Definitions: Unless otherwise set forth herein, capitalized terms used
herein shall have the same meaning ascribed to them in the Agreement.
"Named User" means one (1) identified user who may access the Third Party
Software or reports or messages generated by the Third Party Software. Licensee
may permanently replace one Named User with another if the original Named User
no longer has access to the Third Party Software or to reports or messages
generated by the Third Party Software.
"Project" means a single reporting application residing in the MicroStrategy
metadata.
"Standard Data Model" means the data model created by PeopleSoft which may be
modified by Licensee as long as such modifications do not expand the analytic
scope of the data model.
* * This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 4 of 6
"Support Services" means that particular package of services as may be offered
by PeopleSoft and selected by Licensee and which are designed to support the
Supportable Modules, and the standard terms and conditions thereto, in effect on
the later of the following: (i) the date fees are received for such services
offered by PeopleSoft which are designed to support the Supportable Modules, and
(ii) the first date of the period for which services offered by PeopleSoft which
are designed to support the Supportable Modules are provided.
"Supportable Modules" are those Software modules for which PeopleSoft offers
some sort of maintenance services, and are comprised of: (i) Software excluding
the Third Party Software modules; (ii) Tools; and (iii) those Third Party
Software modules specifically designated in the Schedule as "Supportable
Modules".
9. Expiration of Offer: The offer set forth in this Schedule and in the
Agreement is valid only through June 30, 2004, and if the Schedule and
Agreement, if applicable, are not executed by such date, the offer is rescinded,
all terms are null and void, and neither party shall have any obligation in
relation thereto.
10. Miscellaneous Information:
10.1 Title to Physical Media: Notwithstanding anything in the Agreement to
the contrary, (i) in the event physical media for the Third Party Software is
shipped, title to the physical media for the Third Party Software vests in
Licensee upon shipment thereof to Licensee and (ii) upon Licensee's reasonable
request, PeopleSoft will provide a reasonable number of additional copies of the
Third Party Software at no additional cost.
10.2
- ----------------------------------------------------------------------------------------------------------------------------------
SHIPPING INFORMATION BILLING INFORMATION SITE INFORMATION TRAINING ADMINISTRATOR
- -------------------- ------------------- ---------------- ----------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Contact: Bruce DeMarco Contact: same Contact: same Contact: same
- ----------------------------------------------------------------------------------------------------------------------------------
Address: 16115 NW 52cd Ave. Address: same Address: same Address: same
- ----------------------------------------------------------------------------------------------------------------------------------
Miami, FL 33014
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Phone: 305-621-8282 Phone: same Phone: same Phone: same
- ----------------------------------------------------------------------------------------------------------------------------------
Fax: 305-925-0637 Fax: same Fax: same Fax:
- ----------------------------------------------------------------------------------------------------------------------------------
email: demarco@allamerican.com email: same email: same email: same
- ----------------------------------------------------------------------------------------------------------------------------------
11. Order of Precedence:
In the event of any conflicts or inconsistencies between the provisions of this
Schedule and the Agreement, the provisions of this Schedule shall prevail.
Page 5 of 6
The undersigned represent and warrant that they are authorized as
representatives of the party on whose behalf they are signing this Schedule and
to bind their respective party thereto.
ACCEPTED BY: ACCEPTED BY:
ALL AMERICAN SEMICONDUCTOR, INC. PEOPLESOFT USA, INC.
/s/ HOWARD L. FLANDERS /s/ ROBERT DICRISTINA
- --------------------------------------- ----------------------------------
authorized Signature Authorized Signature
Howard L. Flanders, EVP & CFO
- --------------------------------------- ----------------------------------
Printed Name and Title Printed Name and Title
Page 6 of 6
Software Support Services Terms and Conditions Exhibit
to
Software License and Services Agreement, Dated June 30, 2004
by and between
PeopleSoft USA, Inc. and All American Semiconductor, Inc.
(Attached hereto and made a part hereof)
Software Support Services Terms and Conditions
Standard Support Services
Standard Support Services Coverage. PeopleSoft will provide the following
services to Licensees who have subscribed to Standard Support Services, provided
Licensee fulfills the Licensee Obligations.
17. Software Maintenance-PeopleSoft will periodically issue Fixes to
Errors and Updates to Software.
18. Designated Employees-Licensee may designate a maximum of four (4)
employees who are responsible for resolving user issues, and only such
designated employees may contact PeopleSoft for the provision of
Support Services.
19. Priority Level of Errors-Errors will be addressed in accordance with
the following protocols:
Priority l Errors - PeopleSoft shall make reasonable attempts to
acknowledge Priority 1 cases within two (2) hours from the time
that the case was placed and to initiate the following procedures:
(1) assign PeopleSoft specialists to commence correction of the
Error; (2) provide ongoing communication on the status of the
corrections; and (3) commence to provide a Workaround or a Fix.
Priority 2 Errors-PeopleSoft shall make reasonable attempts to
acknowledge Priority 2 cases within six (6) hours from the time
that the case was placed and to initiate the following procedures:
(1) assign a PeopleSoft specialist to commence correction of the
Error; (2) commence to provide a Workaround or a Fix; and (3)
provide escalation procedures as reasonably determined by
PeopleSoft support staff.
Priority 3 Errors-PeopleSoft shall make reasonable attempts to
acknowledge Priority 3 cases within twenty four (24) hours from
the time the case was placed.
20. Escalation Process - If Licensee's attempts to have an Error resolved
are not successful or have not proven satisfactory, or if there are
extenuating circumstances which change the priority of an Error, the
following escalation procedures shall apply:
During Business Hours - If circumstances cause the Error to be
more critical, Licensee will contact the assigned PeopleSoft
application support specialist. If by discussing the Error with
the assigned support specialist, Licensee believes the assigned
support specialist is not providing an appropriate response likely
to resolve the Error, Licensee may request that the support
specialist escalate the case to a PeopleSoft application support
manager.
The on-call support specialist will refer cases to the after-hours
support line. If the Error is critically affecting the License's
production system, the on-call support specialist will work to the
best of his ability to resolve it. This may include:
a. Contacting the backup on-call specialist;
b. Contacting a member of the application support group;
c. Calling the application support manager who will then,
d. Escalate the Error to the attention of the development
product manager, who may
e. Call the individual developer on their team having the
skill to resolve coding Errors.
If the case is not critical in nature, the specialist will inform
Licensee that the Error will be handled during the next business
day. The on-call specialist will not help resolve problems
resulting solely from Licensee's procedures and operating methods.
Licensee will be responsible for problems caused by its own
actions, and the associated time spent by PeopleSoft. The terms of
this Section set forth Licensee's sole and exclusive remedy
regarding response times and escalation of issues.
21. Telephone Support -PeopleSoft provides telephone support concerning
use of the Software. Except for designated holidays, PeopleSoft's
standard United States Global Support Center telephone hours are
Monday through Friday, 4:00 a.m. to 6:00 p.m., Pacific Time.
PeopleSoft's Customer Services Guide identifies other Global Support
Center locations and local operating hours. Telephone Support is also
available 24-hours-a-day, 7-days-a-week for in-production customers
who need to resolve Priority 1 Errors outside of standard support
hours.
22. PeopleSoft Customer ConnectionSM
a. PeopleSoft Customer ConnectionSM is an on-line system that
permits Licensee to log cases to PeopleSoft and features
postings by PeopleSoft and customers regarding technical and
non-technical topics of interest. Licensee may access
PeopleSoft Customer ConnectionSM via internet access at its
own expense. Licensee assumes all risk related to and
arising out of accessing PeopleSoft Customer ConnectionSM.
b. Updates and Fixes may be delivered to Licensee through
PeopleSoft Customer ConnectionSM, or by mail from PeopleSoft
upon Licensee's written request. PeopleSoft information
posted to Customer ConnectionSM is confidential and
proprietary and shall only be used in connection with
Licensee's use of the Software and informational
communications with other PeopleSoft Customer ConnectionSM
participants. PeopleSoft shall have the right to publish,
modify and distribute any information or software provided
by Licensee to Customer ConnectionSM in all languages.
Licensee shall not use PeopleSoft Customer ConnectionsSM for
advertising or public relations purposes and shall only
submit information to PeopleSoft Customer ConnectionSM that
Licensee owns or has permission to use in such manner.
c. To diminish exposure to software viruses, PeopleSoft uses
commercially reasonable efforts to test and scan all
information entered by PeopleSoft for software viruses prior
to submitting it to PeopleSoft Customer ConnectionSM. In
consideration of Licensee's being provided access to
PeopleSoft Customer ConnectionSM, Licensee shall also use a
reliable virus detection system on any software or
information posted to PeopleSoft Customer ConnectionSM,
utilize back-up procedures, monitor access to PeopleSoft
Customer ConnectionSM, promptly notify PeopleSoft of any
virus detected within Licensee's systems associated with
PeopleSoft Customer ConnectionSM and generally exercise a
reasonable degree of caution when utilizing information from
PeopleSoft Customer ConnectionSM. PeopleSoft does not
warrant that PeopleSoft Customer ConnectionSM will operate
without interruption or without errors or without viruses.
PeopleSoft reserves the right to modify or suspend
PeopleSoft Customer ConnectionSM service in connection with
PeopleSoft's provision of Support Services. PeopleSoft
assumes no responsibility for anything posted by anyone
other than PeopleSoft, including, but not limited to,
information about PeopleSoft software, modification code, or
portions thereof.
23. Customer Care - Customer Care will help locate general product
information, will place orders for Updates upon Licensee request, and
will address business inquiries.
24. Customer Contact-PeopleSoft shall designate a non-exclusive contact
for the limited purpose of identifying the status of logged or
initiated cases that Licensee has previously escalated in accordance
with the terms of these Support Services. PeopleSoft reserves the
right to replace and/or reassign such contact.