Exhibit 10.4



STRATEGIC ALLIANCE AGREEMENT AMENDMENT No. 6



 

 

 The Strategic Alliance Agreement by and among SAP AG, SAP
Markets, Inc. (collectively "SAP") and Commerce One, Inc. (now named Commerce
One Operations, Inc.) ("C1" and collectively with SAP, the "Parties") dated
September 18, 2000, including all amendments (collectively, the "SAA"), is
further amended by the addition of this Amendment No. 6 ("Amendment"), which is
effective September 29, 2003 ("Effective Date"). As of the Effective Date, this
Amendment shall become part of and subject to the terms and conditions of the
Agreement, which, except as expressly modified by this Amendment, remains
unchanged and in full force and effect. In the event of a conflict between the
terms of this Amendment and the Agreement, the terms of this Amendment shall
govern. All terms not otherwise defined herein shall have the meanings ascribed
to them in the Agreement.

In consideration for the terms of this Amendment, the
sufficiency of which both Parties acknowledge, the Parties agree as follows:




I.Preparation for continued customer support
after termination of Parties' SAA support obligations



Both Parties acknowledge and agree that any of their
respective support obligations as agreed in the SAA toward each other shall
lapse as of December 31, 2003. Consequently, as of January 1, 2004 each Party
shall be solely responsible for the provision of support services to Joint
Offering customers under a valid and individual support agreement with the
respective Party. Both Parties hereby agree to engage in a series of activities
required to allow both Parties to achieve said responsibility, as follows:





1.Cross licensing of Technology



a.SAP Source Code License to C1 Technology


By reference to Section 14.1 of the SAA and Section 5.1
of the Joint Development Agreement (JDA) entered into by and between the Parties
effective as of September 18, 2000, C1 hereby grants to SAP a fully paid-up,
non-exclusive, worldwide license, limited to a term of three (3) years following
the date of termination of the SAA, non-transferable, internal right to use,
display, perform and modify (in accordance with the provisions of the SAA and
the JDA including without limitation those relating to SAP's confidentiality
obligations and Commerce One's intellectual property ownership in such source
code, including without limitation the provisions of sections 16.2.1 of the JDA
and 18.2.1 of the SAA) the Commerce One-developed source code to any C1
Technology contained in all releases of the Joint Offering made commercially
available by the Parties as of the termination of the SAA ("C1 Source Code") as
specifically set forth in Appendix 1. SAP's right and license to the C1 Source
Code shall be limited to use only for support and maintenance provision to any
customers having acquired a license to the Joint Offering as of the date of
termination of the SAA and up to ten (10) additional customers acquiring a
license to the Joint Offering within the three year restricted OEM license
period following the date of
termination of the SAA as stipulated in Section
15.1 of the SAA.  SAP understands









that the source code licensed hereunder shall
be maintained as Commerce One's "Confidential Information" in accordance with
the terms of section 23 of the SAA.





b.C1 Source Code License to SAP Technology
C1 has chosen not to invoke its right to receive a
reciprocal source code license for SAP Applications within the Joint Offering as
originally foreseen by the SAA, such decision being final and binding on the
part of C1. In the event that C1 customers of the Joint Offering would require
support for such SAP Applications and to the extent SAP makes support services
for such SAP Applications generally available to its own customer base at the
same time, C1 has the right to request in writing and SAP in such case would
have an obligation to deliver Level 3 support for up to 10 C1 customers on the
terms agreed for the provision of support services between the Parties during
the term of the SAA (excluding, however, the right to receive Upgrades and
Updates to such SAP Applications as well as the provision of any support
services relating to third party technology embedded in such SAP Applications,
for which C1 shall be required to secure support services from the respective
third party provider independently) and subject to an annual support fee of the
greater of 35% of the total support fees received by C1 from such C1 customers
or EUR 50,000.- per each such customer, payable by C1 to SAP in equal quarterly
installments on the 1st day of each calendar quarter following C1's
request for a maximum period of three (3) years following the date of
termination of the SAA.





c.Representations / Warranties / Indemnification /
Liability


(i) Commerce One agrees that solely the covenants set
forth in section 20.1 of the SAA shall apply to the license of source code to
SAP set forth hereunder.  

(ii)Commerce One further agrees that solely the
indemnification provision of section 21.1 of the SAA shall apply to the license
of source code set forth hereunder and such indemnification obligation shall
only apply to the unmodified and uncustomized version of the source code in the
form provided by Commerce One to SAP hereunder and solely to the extent that SAP
has not breached the terms of the license set forth hereunder.  Similarly,
solely SAP's indemnification obligation set forth in section 21.2 of the SAA
shall apply to any claims against Commerce One arising out of SAP's
modifications or customizations to the Commerce One source code licensed to SAP
hereunder.   

(iii)  C1 and SAP agree that, except as expressly stated
otherwise in this section 1(c) of this Amendment: 1)  the license to the C1
Source Code granted herein shall be granted solely as determined during the
formal source code handover procedure described in Appendix 3, C1 Source Code
handover, item 10., without warranty of any kind, and Commerce One hereby
expressly disclaims all other warranties related to such source code, express or
implied, including without limitation the implied warranties of merchantability,
non-infringement and fitness for a particular purpose; and 2) no other warranty
or
indemnification provisions of the SAA or the Joint Development Agreement
shall apply to SAP's source code license hereunder.












2.Third Party Technology 


C1 has provided a complete and accurate list of third
party technology embedded in (i.e. provided to customers of the Joint Offering
as a bundle without additional charges) or required for operation (i.e. to be
licensed by customers of the Joint Offering separately) of C1 Technology as set
forth in Appendix 2A, Appendix 2B and Appendix 2C for the various
releases of C1 Technology. SAP understands that it will be required to enter
into agreements with such third parties as necessary to obtain support and
maintenance from such third parties. Each party agrees to maintain
license rights with applicable third parties for technology embedded in that party's
products which comprise the Joint Offering to allow the other party to license the
Joint Offering through December 31, 2003.  Thereafter, neither party shall be
obligated to maintain license rights for any third party technology embedded in that
party's products or otherwise necessary for license of that party's products which
comprise the Joint Offering, and each party shall be solely responsible for directly
obtaining such rights from the applicable third parties as necessary.
To enable C1 to obtain such third
party rights with respect to SAP Technology should it desire to license the
Joint Offering to customers after December 31, 2003, SAP will provide a complete
and accurate list of third party technology embedded in (i.e. provided to
customers of the Joint Offering as a bundle without additional charges) or
required for operation (i.e. to be licensed by customers of the Joint Offering
separately) of SAP Technology to C1 without undue delay upon C1's written
request.





3.         Mutual Close-Out Activities and Assistance
Services 


C1 and SAP agree that the C1 Source Code and mutual
support handover process agreed per this Amendment may require certain mutual
assistance services as described in Appendix 3. Both parties agree, to
the extent services as described in Appendix 3 should be explicitly
requested by a Party from the other Party via this agreement or subsequently in
writing or e-mail form during the C1 Source Code and mutual support handover
process, to provide such services to the other Party at the service rates
depicted in Appendix 3.  Any services provided by the parties shall be
subject to the terms and conditions of the Professional Services Agreement (PSA)
valid as of September 18, 2000 entered into by and between C1 and SAP Markets,
Inc..





II.Information on SAA termination to press and
customers


In order to foster uniform communication to press and
customers about the termination of the SAA and its effect on the Parties and
their respective Joint Offering customers, C1 and SAP agree that the official
statement attached to this Amendment as Appendix 4 is to be used by both
Parties in their respective communications. Usage of the statement attached as
Appendix 4 in whatever context by a Party shall not
require any
additional approval by the other Party; any additional and/or deviating
official, written communication to the press or customers by both Parties
pertaining to the termination of the SAA and its effect shall require the other
Party's express prior approval in writing, which shall not be unreasonably
withheld or delayed.  Notwithstanding the foregoing, nothing herein shall be
construed to preclude either party from disclosing any information relating to
the SAA or the parties' relationship, the termination thereof or other related
information as may be necessary to comply











with applicable laws or regulations,
including without limitation U.S. federal and state securities laws.


 




III.Mutual royalty obligations for Q3, 2003; Royalty
obligations from date of termination of SAA





1.Mutual royalty obligations for Q3, 2003


Both Parties represent to each other that the Royalty
Calculation Sheet listing both Parties' royalty payment obligations from the
receipt of license fees, support services fees and revenue share relating to
Joint Offering customers as agreed in the SAA for the period from July 1 to
September 30, 2003 as well as any additional payment obligations by one Party to
the other existing at the Effective Date of this Amendment provided in
Appendix 5 is complete and accurate as of the Effective Date of this
Amendment. 





2.Jointly Owned Trademarks


In accordance with the provisions of section 6.8 of the
JDA, the parties agree as follows with respect to the jointly owned trademarks
as set forth on Attachment 4 to the JDA:  The parties shall continue to jointly
own an undivided one half (1/2) interest in said marks and any applicable
registrations, and either party may continue to use the appropriate trademarks
in connection with the marketing, sale and use of the Joint Offering in
accordance with the terms of the SAA and JDA.  Neither party may market new
products or services under the joint marks.  The parties hereby agree that, in
view of the termination of the SAA, the parties each desire to reduce expenses
associated with registration and protection of the jointly owned marks and
accordingly agree as follows with respect to any expenses that are currently shared by
the parties: a) where the marks are not yet registered in a particular region, the parties
shall immediately abandon all registration efforts and take all reasonable steps to
reduce related expenses associated with such efforts; and 2) to the extent the marks
are registered in a particular region, the parties shall allow such registration to lapse
and shall not incur any additional expenses associated with such marks without the
other party's consent.  To the extent that one party desires to continue the registration
efforts associated with a jointly owned mark or otherwise incur expenses associated
with maintenance or protection of the marks, it shall advise the other party of such
action.  If the other party does not agree to share such expense, the initiating party
may incur such costs on its own.  Notwithstanding the foregoing, nothing
herein shall affect the parties' continued undivided ownership right and
interest in and to the marks.  




3.Termination of license, support and revenue sharing
royalty obligations 


For purposes of clarification, SAP agrees that it will
pay Commerce One a fee of U.S. $500,000 for support and maintenance by Commerce
One relating to Marketset 2.1-3.0 for the period from October 1, 2003 through
December 31, 2003.  C1 and SAP agree that pursuant to the separation of support
responsibilities agreed herein both parties shall be fully relieved from any of
their respective license, support fee and revenue share royalty obligations
stipulated in the SAA as of December 31, 2003,










save as expressly provided
otherwise in this paragraph and in Appendix 3.  SAP hereby agrees
that any prepaid royalties paid by SAP to Commerce One during the term of the
SAA are non-refundable, and SAP shall not be entitled to seek recovery for any
reason of any remaining prepaid amounts which have not yet been drawn down as of
December 31, 2003.  
To the extent that either party licenses the Joint
Offering to a customer during the three-year OEM term set forth in section 15 of
the SAA, the parties shall pay each other the following royalties:

The parties shall each pay each other 10% of any License Fees
for the Joint Offering.  





IV.Waiver of claims and liabilities


Each Party (on its own behalf and on behalf of its
respective subsidiaries and affiliates) hereby agrees to release and forever
discharge the other Party, its respective directors, officers, employees,
subsidiaries, affiliates, assigns and successors-in-interest from any and all
claims, demands, or causes of action of any kind, known or unknown, solely
relating to any acts, omissions and obligations of such Party in performance of
the stipulations of the SAA, the JDA or the PSA having occurred up and until the
Effective Date of this Amendment ("Claims") and each party expressly waives any
and all such Claims. Both Parties agree that the foregoing waiver of claims and
liabilities shall in no event be construed to limit either Party's liability
relating to any acts, omissions and obligations of such Party in performance of
the stipulations of the SAA or any amendment thereto including without
limitation this Amendment No. 6, the JDA or the PSA occurring after the
Effective Date of this Amendment.





(Remainder Of Page Intentionally Left Blank - Signature Page
Follows)











IN WITNESS WHEREOF, the Parties have caused their duly
authorized representatives to enter into this Amendment effective on the
Effective Date.



COMMERCE ONE, INC:                     SAP AG:



 

By: ____________________________By:
_____________________________



Name: __________________________Name:
___________________________



Title: ___________________________Title:
____________________________



 

 

By:
_____________________________



Name:
___________________________



Title:
____________________________



 









Appendix 1

C1 Source Code

C1 Source Code* to be provided to the full extent of the C1
Technology as delivered on the CD's shipped to Joint Offering customers:

MarketSet 3.0 (MarketSite 4.6)



[**]




MarketSet 2.5 (MarketSite 4.0/4.1)



[**]




 


* For each product listed in Appendix 1, Commerce One will
provide C1 Source Code consisting of the following Commerce One-developed items.
Commerce One shall not provide any source code developed or owned by third
parties.


[**]





 

 





[**] Confidential treatment requested










Appendix 2

List Of Third Party Technology Embedded In Or Required For
Operation Of C1 Technology

[**]


 
 

 



[**] Confidential treatment requested









Appendix 2A




CMRC Third Party Bundled Software


MarketSet 2.5 Public GA

3rd Party CD
3rd Party CD
3rd Party CD




MarketSet 3.0b GA

3rd Party CD
3rd Party CD
3rd Party CD
3rd Party CD
3rd Party CD
3rd Party CD



 

 



[**] Confidential treatment requested









Appendix 2B
	 	 	 	 
	 	 	 	 
	
MarketSet 3.0b Windows NT/2000 (128 bit)
GA
	
 
	
 
	
 

	
PRE-REQUISITE Third-Party Software
	
 
	
 
	
 

	
Type
	
Third Party Manufacturer
	
Third-Party Package Name
	
Version

	
 
	
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PRE-REQUISITE Commerce One Software
	
 
	
 
	
 

	
Type
	
Third Party Manufacturer
	
Third-Party Package Name
	
Version

	
 
	
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[**] Confidential treatment requested











 

Appendix 2C

	
MarketSet 2.5 Windows NT/2000
	
 

	 	 
	
Pre-Requiste Software
(Windows)
	 
	 	 
	
Summary of all required pre-requisite
software for the Solution/Product Kit:
	 
	 	 
	
Prerequisite Software (NOT
Provided by Commerce One)
	 
	
[**]
	
Pre-req 

	
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Pre-req 

	
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Pre-req 

	
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Pre-req 

	
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Pre-req 

	
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Pre-req 

	
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Pre-req 

	
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Pre-req 

	
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Pre-req for ACP 1.2 NTW2K

	
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Pre-req for ACP 1.2 NTW2K

	
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Pre-req 

	
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Pre-req for XPC 3.2 NT

	
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Pre-req for PIMs

	
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Pre-req 

	
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Pre-req 

	
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Pre-req 

	
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Pre-req for PIMs

	
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Pre-req 

	
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Pre-req 

	 	 
	
Pre-reqs by Product (Not
Provided by Commerce One)
	 
	 	 
	
MarketSite Platform 4.0 Windows
NT/2000
	 
	
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MarketSite Builder 4.0 Windows NT/2000

	 
	
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MarketSite Builder 4.0 Windows NT/2000 SDK

	 
	
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Calculator Sample Service
	 
	
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XDK Pro 4.0 Windows NT/2000
Version
	 
	
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XPC 3.2 NT 
	 
	
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XPC 4.0 for Windows NT/2000
	 
	
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Round Trip Broker 1.5 Windows
NT/2000
	 
	
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xCBL Mailbox 1.0 Windows NT/2000

	 
	
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Transaction Event Collector 1.2 Windows
NT/2000 
	 
	
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MarketSite Utility Services 1.0 for Windows
NT/2000
	 
	
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Product ID Mapping Service 1.0 Windows
NT/2000 
	 
	 	 
	
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xCBL 3.0
	 
	
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ACP 1.2 Windows NT/2000
	 
	
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XCC 1.1
	 
	
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XCC 3.2.1 (40 Bit)
	 
	
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Auction 4.1 SP1
	 
	
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MSB 4.1 Service Pack 2
	 
	
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MarketSite 4.1 Service Pack 1 (Copy
Service)
	 
	
None
	
 






[**] Confidential treatment requested










 

 

	
MarketSet 2.5 Solaris
	
 

	 	 
	
Pre-Requiste Software
(Solaris)
	 
	 	 
	
Summary of all required pre-requisite software for the
Solution/Product Kit:
	 
	
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Pre-reqs by Product (Not
Provided by Commerce One)
	 
	
MarketSite Platform 4.1:
	
 

	
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MarketSite Builder 4.1:
	
 

	
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MarketSite Builder 4.1 SDK:
	
 

	
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TEC 1.2.1 SDK:
	
 

	
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XDK Pro 4.1:
	
 

	
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XPC 4.1:
	
 

	
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Round Trip Broker 1.5.1:
	
 

	
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xCBL Mailbox 1.1:
	
 

	
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Transaction Event Collector 1.2.1:
	
 

	
(TEC)
	
 

	
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xCBL 3.0:
	
 

	
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Utility Services 1.1:
	
 

	
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Product ID Mapping Service 1.0:
	
 

	
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Auto Content Publisher 1.2
	
 

	
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XPC  3.2
	
 

	
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Auction 4.1 SP1
	
 

	
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[**] Confidential treatment requested










 

	
MarketSet 3.0b Solaris (128 bit)
GA
	
 
	
 
	
 

	 	 	 	 
	
PRE-REQUISITE Third-Party Software
	
 
	
 
	
 

	
Type
	
Third Party Manufacturer
	
Third-Party Package Name
	
Version

	
 
	
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PRE-REQUISITE Commerce One Software
	
 
	
 
	
 

	
Type
	
Third Party Manufacturer
	
Third-Party Package Name
	
Version

	
 
	
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[**] Confidential treatment requested










 

Appendix 3

Agreed Close-out Activities And Assistance Services

C1 Source Code handover



[**]






Support handover


1.Name project managers for support handover (C1 &
SAP)

2.Onyx export of MOE and CCP related incidents (C1)

3.Status check for open support messages and open
customer escalations (C1 & SAP)

4.Agree on responsibility and handover for each open
support message / escalation (C1 & SAP)

5.Agree on a text for automated notifications concerning
the support handover to SAP's and C1's support customers (C1 & SAP)

6.Provide a transition period for a period of no longer
than one month from the date of execution of this Amendment for both
organizations where occasional mutual help will still be provided and customers
reporting to wrong organization will still be handled (C1 & SAP)

7.Delete affected accounts in call tracking systems (C1
& SAP)




Commerce One shall provide the assistance services agreed
above for a total of no more than 240 hours for a flat fee of USD $40,000.00 due
and payable by SAP on the date of execution of this Amendment.  Such amount
shall be paid by SAP in cash via wire transfer and shall not be drawn down from
any prepaid amounts previously paid by SAP to Commerce One pursuant to the SAA.
Both parties believe that such services are likely to be completed within the
time period provided; however, if such services require more than 240 hours of
work on the part of Commerce One, the parties shall cooperate in good faith to
agree upon the effort and if appropriate an additional reasonable fee for any
remaining work.



[**] Confidential treatment requested











 

Appendix 4

Agreed End Of SAA Statement Of The Parties

The strategic alliance between SAP and Commerce
One to address the e-marketplace demands of enterprises will expire the end
of September, 2003, as was originally planned at the outset of the agreement


This agreement helped Commerce One and SAP shape an important
chapter in the history of eBusiness solutions. Working together, the two
companies brought to market a succession of four e-marketplace solutions and
quickly become recognized global leaders in e-marketplace solutions.

While the technical termination of the alliance agreement is
the 30th of September,  the parties will continue to work together as partners
as necessary to support their joint customers and to minimize any impact on any
marketplace customers.  

While both companies go forward with independent strategies
with related development and marketing plans based on their own respective
technologies, both SAP and Commerce One will have the opportunity to offer the
current marketplace solution through September of 2006 to new
customers.  





[**] Confidential treatment requested









 

Appendix 5

Agreed Royalty Calculation And Other Compensation Sheet For
Q3, 2003

Amounts Due to CMRC by SAP


CMRC Invoices 


Inv #14812 $35,294.88

Inv #18092 $11,109.05

Inv #18827 $27,972.55

Inv #19205         $510.00


Total:$74,886.48


 

Amounts Due to SAP by CMRC


TBD 



 




[**] Confidential treatment requested