Oracle Corporation et al v. SAP AG et al

Filing 988

UPDATED OBJECTIONS AND DEFENDANTS RESPONSES RE CUSTOMER TESTIMONY AND RELATED EXHIBITS re 943 Objections by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Howard, Geoffrey) (Filed on 11/15/2010) Modified on 11/16/2010 (kc, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 988 Att. 7

EXHIBIT G
Dockets.Justia.com

A-0546

Message From: Sent: To: CC: SUbject: "Steve M o o r e " <[e-mail]:> 10/13/20052:34:17 PM '''Spencer Phillips'" <[e-mail]> "Robert Wasson" <[e-mail]> RE: TomorrowNow & McLennan County, TX - Revised Agreement Attached

Spencer, The County j u d g e does not feel the need for any presentations by TomorrowNow for himself or the Comm Court will be necessary. They seem to be happy to go with the recommendations o f Robert & I. Robert & I j u s t need to find lime to sit down and go o v e r Bob's comments in relation to our Attorney's comments hopefully earty next week. Just at first blush, I don't think we will have any major slicking points. Steve

F r o m : Spencer Phillips [mailto:[e-mail]] S e n t : Thursday, O c t o b e r ! 3 , 2 0 0 5 2 : 3 3 PM T o : [e-mail] S u b j e c t : Fw: TomorrowNow & McLennan County, TX -- Revised Agreement Attached HI Steve, Please let me know if you have some time for u s to speak tomorrow. I would like touch base with you o n next steps we had discussed eartier this month. I know for sure that we need to follow-up a f t e r your attorney has had a chance to review Bob's comments, but also there is a need to either meet with Jim Lewis o r the Commissioners Court as a whole. Thanks, Steve. I look forward to catching up. Regards, Spencer Spencer Phillips Senior Account Executive T e l / C e l l / F a x : + 1 9 7 2 992 3 4 3 3 w w w . t o m o r r o w n o w . c o m <http://www.tomorrownow.com/>
----- Forwarded by Spencer PhillipsrromorrowNow on 101131200502:27 PM .. ---"Steve M o o r e " <[e-mail]> 101071200510:51 AM To '''Spencer Phillips'· <[e-mail]> cc Subject RE: TomorrowNow & McLennan County. TX -- Revised A g r e e m e n t Attached

Spencer, Yes I have received it. Unfortunately I have some other hot issues vying for my attention. On first glance, I think we are looking good. Get with you next week. Steve

F r o m : Spencer Phillips [mailto:[e-mail]] S e n t : Friday, October 07, 2005 10:44 AM T o : [e-mail] S u b j e c t : Fw: TomorrowNow & McLennan County, TX - - Revised Agreement Attached Steve, Just ensuring that you have received Bob Geib's response (my VP). Please let me know if we need to have a call to discuss any o f these points in the email below after you and/or Mr. Dixon have had a chance to review. Thanks, and have a great weekend. Spencer Spencer Phillips Senior Account Executive UNITED STATES DISTRICT COURT 72 992 3433
NORTHERN DISTRICT OF CALIFRONIA Case No. 4:07-cv-01658 PJH/EDL _ _

DEFENDANT E x h i b i t No. DateAdmitted:

FORMATION
By: ----,-",.---,--~-----=--___=--,--- Nicole Heuerman, Deputy Clerk

TN-OR04494185

www.tomorrownow.com <http://www.tomorrownow.com/>
.---. Forwarded by Spencl1r Pl1illipslTornorrowNow on 10/07/2005 10:42 AM ----B o b G e l b / T o m o r r o w N o w 10/06/200512:13 AM To Spencer Phillips/TomorrowNow cc [e-mail] Subject TomorrowNow & McLennan County, TX -- Revised Agreement AltachedLink <Noles:1II86256FEA005EFAEB/38D46BF5E8F08834852564B500129B2C/93B4AD5AF69FCE048625709000796A7D>

Spencer - I have reviewed the suggestions and comments by the client. I am forwarding to you to submit to Client with my comments below. I noted that there were several items on the PDF file that were questions, and I have addressed below. Almost all o f the suggested changes were accepted, with the exception o f Item 9 which is required by TomorrowNow. Please submit to client for final approval o f the agreement. Here are my comments and a summary o f the changes. 1) Section 3(B) Taxes - A c c e p t e d . 2) Section 3(C) Travel & Living Expenses - C o m m e n t . We do not anticipate travel to be required in support o f this agreement. However, in the unlikely event we do provide for payment o f expenses. I see no objection from legal, only a question to the business. 3) Section 4(B) P e r s o n n e l - - C o m m e n t . We expect that the Client will have it's own internal team whom will report issues, and apply and test any fixes and/or tax/regulatory updates. This is the same expectation and teaming that is expected by Oracle today and should have no new operational impacts upon Client. 4) Section 4(F) Final Testing o f Updates & Fixes -- C o m m e n t . Same as above. We expect that the Client will continue with operation disciplines as standard with any PeopleSoft deployment to test code changes prior to migration to production systems. Again, this is the same expectation and teaming as the services you receive from Oracle today. 5) Section 7(A) Work Product / Ownership -- C o m m e n t . The reviewer is correct, the "perpetual" grant provides for the Related to the question County to use and modify any deliverables both during and after the agreement's termination. o f data and reports, there is no claim o r implied claim to the software reports and/or data, only to the Work Product created by TomorrowNow which is licensed perpetually to the customer. 6 ) Section 9(A) Client Indemnity - Rejected. This indemnity is directly related to the fact that the County is representing to TomorrowNow that you have a license to the PeopleSoft product that we are being asked to perform work against. 7) Section 9(C) General Indemnity - A c c e p t e d w i t h M o d i f i c a t i o n . This mutual indemnity is related to standard personal injury o r property damage. However, there may be specifics o f Texas law that make this a problem This was an issue we resolved in the State o f Texas DIR contract by adding language to the effect o f "to the extent allowed by Texas law" which I have added to this section. 8) Section 10(B) Remedies -- A c c e p t e d w i t h M o d i f i c a t i o n . As a standard services agreement it is Important that the Client provide notice o f any warranty issues to TomorrowNow, and we feel that a 30 d a y period if fair and reasonable based upon the nature o f the service. Without notice, it would be virtually impossible to TornorrowNow to have a cure o r have a cure period. We ask that the County accept this language. We did add add "reasonable discretion" on options for cure. 9) Section 11 Limitation o f Liability - C o m m e n t . There was a notation about intentional and/or gross negligence, and this protection is covered in 9(C) General Indemnity. 10) Section 12(G) Entire Agreement - C o m m e n t . TomorrowNow does not accept general marketing and/or web materials to be included in agreement as they are not designed to appropriate legal forms. 11) Section 12(1) Jurisdiction - Accepted with Modification. Accepted State o f Texas, and modified with Austin a s venue. 12) Section 12(G) Governing Law - A c c e p t e d . 13) Appendix, Section 2(A)i - Serious Issues - C o m m e n t . A serious issue is a reported problem that impacts the Client's ability to process (e.g., operate the software as designed) and that causes a failure o f a substantial feature o r function o f the prodUCt. We have intentionally left this definition open to the benefit o f the client based upon the nature o f the clients usage o f the software. TomorrowNow did not limit definition o f what the client considers serious o r substantial. We do, however, expect that client will use reasonable business discretion, and for avoidance o f doubt example o f non-serious issues would be spelling errors, columns out o f alignment in reports, o r other elements that impact how the system operates. 13) Appendix, Section 3 Total Fees - C o m m e n t . It is the customary and current practice for support services to be paid in one up-front fee, and this is the basis by which the County currently pays for support services. 13) Appendix, Section 4 R e n e w a l - A c c e p t e d . Revised language to allow for mutual agreement to renew by Parties. 14) Appendix, Section 5 Delivery o f Software Maintenance - Rejected. For Texas, there should be no tax ramifications for a service delivera