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Exhibit 10.9
[ORACLE LOGO]
ORACLE ALLIANCE AGREEMENT
This Oracle Alliance Agreement (the "Agreement") is between Oracle Corporation
("Oracle") and the Alliance Member identified below. The terms of this Agreement
shall apply to each Program license granted and to all services provided by
Oracle under this Agreement, which will be identified on one or more Order
Forms.
1. DEFINITIONS
1.1 "COMMENCEMENT DATE" means the date on which the Programs are delivered by
Oracle, or if no delivery is necessary, the Effective Date set forth on the
relevant Order Form.
1.2 "DESIGNATED SYSTEM" shall mean the computer hardware and operating system
designated on the relevant Order Form or Sublicense report for use in
conjunction with a Sublicensed Program, Development License, or Marketing
Support License.
1.3 "DOCUMENTATION" means the user guides and manuals for installation and use
of the Program software. Documentation is provided in CD-ROM or bound form,
whichever is generally available.
1.4 "ORDER FORM" shall mean the document in hard copy or electronic form by
which the Alliance Member orders Program licenses, Sublicenses, and
services, and which is agreed to by the parties. The Order Form shall
reference the Effective Date of this Agreement.
1.5 "PROGRAM" shall mean the software in object code form distributed by Oracle
for which the Alliance Member is granted a license or grants a Sublicense
pursuant to this Agreement; and the media, Documentation, and Updates
therefor.
1.6 "SUBLICENSE ADDENDA" shall mean the addenda to this Agreement specifying
additional Sublicense terms and Sublicense rates and fees for the various
types of Sublicenses which may be granted by the Alliance Member.
1.7 "SUBLICENSE" shall mean a nonexclusive, nontransferable right granted by or
through the Alliance Member to an end user to use an object code copy of the
Programs with the Value-Added Package under authority of a Sublicense
Addendum. "Sublicensee" shall mean a third party who is granted a Sublicense
of the Programs with the Value-Added Package for such party's own internal
data processing purposes and not for purposes of any further distribution.
1.8 "TECHNICAL SUPPORT" means Program support provided under Oracle's policies
in effect on the date Technical Support is ordered.
1.9 "UPDATE" shall mean a subsequent release of a Program which Oracle makes
generally available for Program Licenses at no additional license fee other
than media and handling charges, provided the Alliance Member has ordered
Technical Support for such licenses for the relevant time period. Updates
shall not include any release, option or future product which Oracle
licenses separately.
1.10"VALUE-ADDED PACKAGE" shall mean the hardware or software products or
services having added value which are developed, sold, and/or licensed with
the Programs to a Sublicensee by the Alliance Member, as provided under the
applicable Sublicense Addenda.
2. RIGHTS GRANTED
2.1 DEVELOPMENT LICENSES AND TRIAL LICENSES
A. Oracle grants to the Alliance Member a nonexclusive license to use the
Development Licenses the Alliance Member obtains under this Agreement and
applicable Sublicense Addenda, as follows:
1. to develop or prototype the Value-Added Package on the Designated System
or on a backup system if the Designated System is inoperative, up to any
applicable maximum number of designated Users or other such limitation as
may be applicable;
2. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package;
3. to provide training and technical support to employees and to customers
solely in conjunction with the Value-Added Package;
4. to use the Documentation provided with the Programs in support of the
Alliance Member's authorized use of the Programs; and
5. to copy the Programs for archival or backup purposes; no other copies
shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be reproduced
in such copies. All archival and backup copies of the Programs are subject
to the terms of this Agreement.
B. The Alliance Member may order temporary trial licenses ("Trial Licenses")
for its evaluation purposes only, and not for development or prototype
purposes, for use during a period specified in the Order Form. Each Order
Form for Trial Licenses shall clearly state the trial period and shall
identify that the order is for a Trial License.
2.2 MARKETING SUPPORT LICENSES
Oracle grants to the Alliance Member a nonexclusive license to use the
Marketing Support Licenses the Alliance Member obtains under this Agreement
and applicable Sublicense Addenda, as follows:
A. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package, up to any applicable maximum
number of designated Users or other such limitation as may be applicable;
B. to develop customized prototypes of the Value-Added Package for
prospective Sublicensees on the Designated System if the Alliance Member
does not receive any fees related to the development of such customized
prototypes;
C. to use the Documentation provided with the Programs in support of the
Alliance Member's authorized use of the Programs; and
D. to copy the Programs for archival or backup purposes; no other copies
shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be reproduced
in such copies. All archival and backup copies of the Programs are subject
to the terms of this Agreement.
2.3 SUBLICENSING
A. LICENSE TO SUBLICENSE PROGRAMS
As further set forth in the applicable Sublicense Addenda, Oracle hereby
grants the Alliance Member a nonexclusive, nontransferable license to market
and grant
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Sublicenses as set forth in such Sublicense Addenda and at the rates and
fees set forth in such Sublicense Addenda. The Alliance Member shall only
have the right to Sublicense Programs pursuant to an effective Sublicense
Addendum between the parties hereto.
The Alliance Member shall Sublicense the Programs through a Sublicense
agreement, which may include an on-line version, as provided under Section
2.3.B. Upon Oracle's request, the Alliance Member shall provide Oracle with
a copy of the Alliance Member's standard Sublicense agreement.
B. SUBLICENSE AGREEMENT
Every Sublicense agreement shall include, at a minimum, contractual
provisions which:
1. Restrict use of the Programs to object code, subject to the restrictions
provided under the applicable Sublicense Addenda and consistent with the
Sublicense fees payable to Oracle;
2. Prohibit (a) transfer of the Programs except for temporary transfer in
the event of computer malfunction; (b) assignment, timesharing and rental of
the Programs; and (c) title to the Programs from passing to the Sublicensee
or any other party;
3. Prohibit the reverse engineering, disassembly or decompilation of the
Programs and prohibit duplication of the Programs except for a single backup
or archival copy;
4. Disclaim, to the extent permitted by applicable law, Oracle's liability
for any damages, whether direct, indirect, incidental or consequential,
arising from the use of the Programs;
5. Require the Sublicensee, at the termination of the Sublicense, to
discontinue use and destroy or return to the Alliance Member all copies of
the Programs and Documentation;
6. Prohibit publication of any results of benchmark tests run on the
Programs;
7. Require the Sublicensee to comply fully with all relevant export laws and
regulations of the United States to assure that neither the Programs, nor
any direct product thereof, are exported, directly or indirectly, in
violation of United States law; and 8. Specify Oracle as a third party
beneficiary of the Sublicense agreement to the extent permitted by
applicable law.
C. MARKETING/SUBLICENSING PRACTICES
In marketing and Sublicensing the Programs, the Alliance Member shall:
1. Not engage in any deceptive, misleading, illegal, or unethical practices
that may be detrimental to Oracle or to the Programs;
2. Not make any representations, warranties, or guarantees to Sublicensees
concerning the Programs that are inconsistent with or in addition to those
made in this Agreement or by Oracle; and
3. Comply with all applicable federal, state, and local laws and regulations
in performing its duties with respect to the Programs.
2.4 LIMITATIONS ON USE
The Alliance Member shall not use or duplicate the Programs (including
the Documentation) for any purpose other than as specified in this Agreement
or make the Programs available to unauthorized third parties. The Alliance
Member shall not (a) use the Programs for its internal data processing or
for processing customer data; (b) rent, electronically distribute, or
timeshare the Programs or market the Programs by interactive cable or remote
processing services or otherwise distribute the Programs other than as
specified in this Agreement; or (c) cause or permit the reverse engineering,
disassembly, or decompilation of the Programs, except to the extent required
to obtain interoperability with other independently created software or as
specified by law.
2.5 TITLE
Oracle shall retain all title, copyright, and other proprietary rights
in the Programs and any modifications or translations thereof. The Alliance
Member and its Sublicensees do not acquire any rights in the Programs other
than those specified in this Agreement.
2.6 TRANSFER OF PROGRAMS
The Alliance Member may transfer a Development License or Marketing
Support License within its organization upon notice to Oracle; transfers are
subject to the terms and fees specified in Oracle's transfer policy in
effect at the time of the transfer.
2.7 USE OF PROGRAMS BY THIRD PARTIES
The Alliance Member and each Sublicensee (as the case may be) shall have
the right to allow third parties to use each such party's licensed Programs
for the licensee's operations so long as the applicable licensee ensures
that use of the Programs is in accordance with the terms of this Agreement
or the applicable Sublicense agreement.
3. TECHNICAL SERVICES
3.1 TECHNICAL SUPPORT SERVICES
Technical Support services ordered by the Alliance Member will be
provided under Oracle's Technical Support policies in effect on the date
Technical Support is ordered.
3.2 TRAINING SERVICES
Oracle will provide training services agreed to by the parties under the
terms of this Agreement. For any on-site services requested by the Alliance
Member, the Alliance Member shall reimburse Oracle for actual, reasonable
travel and out-of-pocket expenses incurred.
4. FEES AND PAYMENTS
4.1 LICENSE FEES AND SUBLICENSE FEES
The Alliance Member may order Development Licenses or Marketing
Support Licenses at the standard Program license fees set forth in the Price
List or at the fees otherwise provided in a Sublicense Addendum. For each
Sublicense granted by the Alliance Member, the Alliance Member agrees to pay
Oracle a Sublicense fee as set forth in the applicable Sublicense Addenda.
The Alliance Member shall not be relieved of its obligation to pay
Sublicense fees owed to Oracle by the nonpayment of such fees by the
Sublicensee.
The Alliance Member is free to determine unilaterally its own license
fees to its Sublicensees. If the Alliance Member or a Sublicensee upgrades
the Programs to a larger computer, transfers the Programs outside the United
States and/or to another operating system, or increases the licensed number
of Users, the Alliance Member will pay additional Sublicense fees to Oracle
as provided under Oracle's transfer policies and rates in effect at the time
the Program is upgraded or transferred.
4.2 TECHNICAL SUPPORT FEES
Technical Support services ordered by the Alliance Member for
Development Licenses and Marketing Support Licenses will be provided under
Oracle's Technical Support policies and rates in effect on the date
Technical Support is ordered.
4.3 GENERAL PAYMENT TERMS
Except as otherwise provided in a Sublicense Addendum, all fees shall be
due and payable 30 days from
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the invoice date. Fees due by the Alliance Member shall not be subject to
set off for any claims against Oracle. All payments made shall be in United
States currency and shall be made without deductions based on any taxes or
withholdings, except where such deduction is based on Oracle's gross income.
Any amounts payable by the Alliance Member hereunder which remain unpaid
after the due date shall be subject to a late charge equal to 1.5% per month
from the due date until such amount is paid. The Alliance Member agrees to
pay applicable media and shipping charges. The Alliance Member shall issue a
purchase order, or alternative document acceptable to Oracle, on or before
the Effective Date of the applicable Order Form.
4.4 TAXES
The fees listed in this Agreement do not include taxes; if Oracle is
required to pay sales, use, property, value-added, or other taxes based on
the licenses, Sublicenses or services granted under this Agreement or on the
Alliance Member's or a Sublicensee's use of Programs or services, then such
taxes shall be billed to and paid by the Alliance Member. This shall not
apply to taxes based on Oracle's income.
5. RECORDS
5.1 RECORDS INSPECTION
The Alliance Member shall maintain adequate books and records in
connection with activity under this Agreement. Such records shall include,
without limitation, executed Sublicense agreements, the information required
in or related to the Sublicense reports required under a Sublicense
Addendum, the number of copies of Programs used or Sublicensed by the
Alliance Member, the computers on which the Programs are installed, and the
number of Users using the Programs. Oracle may audit the relevant books and
records of the Alliance Member and Alliance Member's use of the Programs.
Any such audit shall be conducted during regular business hours at the
Alliance Member's offices and shall not interfere unreasonably with the
Alliance Member's business activities. If an audit reveals that the Alliance
Member has underpaid fees to Oracle, the Alliance Member shall be invoiced
for such underpaid fees. Audits shall be made no more than once annually.
5.2 NOTICE OF CLAIM
The Alliance Member will notify the Oracle legal department promptly in
writing of: (a) any claim or proceeding involving the Programs that comes to
its attention; and (b) any material change in the management or control of
the Alliance Member.
6. TERM AND TERMINATION
6.1 TERM
This Agreement shall become effective on the Effective Date and shall be
valid until the expiration or termination of all Sublicense Addenda
hereunder, unless terminated earlier as set forth herein. If not otherwise
specified on the Order Form, each Program license granted under this
Agreement shall remain in effect perpetually under the terms of this
Agreement unless the license or this Agreement is terminated as provided in
this Article 6. The term of each Sublicense Addendum hereunder shall be as
set forth in each such Addendum.
6.2 TERMINATION FOR CONVENIENCE
Each party may terminate any Program license or any Sublicense Addenda
at any time; however, termination shall not relieve the Alliance Member's
obligations specified in Section 6.5.
6.3 TERMINATION FOR BREACH
Each party may terminate any Program license, any Sublicense Addenda, or
this Agreement upon written notice if the other party materially breaches
this Agreement and fails to correct the breach within 30 days following
written notice specifying the breach.
6.4 FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in the
performance of a required obligation if such failure or delay is caused by
strike, riot, fire, flood, natural disaster, or other similar cause beyond
such party's control, provided that such party gives prompt written notice
of such condition and resumes its performance as soon as possible, and
provided further that the other party may terminate this Agreement if such
condition continues for a period of one hundred eighty (180) days.
6.5 EFFECT OF TERMINATION
Upon expiration or termination of a Sublicense Addendum or this
Agreement, all of the Alliance Member's rights to market and Sublicense the
Programs as set forth in such Sublicense Addendum or this Agreement shall
cease.
The termination of this Agreement, a Sublicense Addendum, or any license
shall not limit either party from pursuing any other remedies available to
it, including injunctive relief, nor shall such termination relieve the
Alliance Member's obligation to pay all fees that have accrued or that are
owed by the Alliance Member under a Sublicense Addendum or any Order Form,
or that appear in a Sublicense report. The parties' rights and obligations
under Sections 2.4, 2.5, 2.6 and Articles 4, 5, 6, 7, and 8 shall survive
termination of this Agreement. Upon termination, the Alliance Member shall
cease using, and shall return or destroy, all copies of the applicable
Programs.
7. INDEMNITY, WARRANTIES, REMEDIES
7.1 INFRINGEMENT INDEMNITY
Oracle will defend and indemnify the Alliance Member against a claim
that Programs infringe a copyright or patent or other intellectual property
right, provided that: (a) the Alliance Member notifies Oracle in writing
within 30 days of the claim; (b) Oracle has sole control of the defense and
all related settlement negotiations; and (c) the Alliance Member provides
Oracle with the assistance, information and authority necessary to perform
Oracle's obligations under this Section. Reasonable out-of-pocket expenses
incurred by the Alliance Member in providing such assistance will be
reimbursed by Oracle. Oracle shall have no liability for any claim of
infringement based on use of a superseded or altered release of Programs if
the infringement would have been avoided by the use of a current unaltered
release of the Programs which Oracle provides to the Alliance Member.
In the event the Programs are held or are believed by Oracle to
infringe, Oracle shall have the option, at its expense, to (a) modify the
Programs to be noninfringing; or (b) obtain for the Alliance Member a
license to continue using the Programs. If it is not commercially reasonable
to perform either of the above options, then Oracle may terminate the
license for the infringing Programs and refund the license fees paid for
those Programs. This Section 7.1 states Oracle's entire liability and the
Alliance Member's exclusive remedy for infringement.
7.2 WARRANTIES AND DISCLAIMERS
A. PROGRAM WARRANTY
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Oracle warrants for a period of one year from the Commencement Date
that each unmodified Program will perform the functions described in the
Documentation.
B. MEDIA WARRANTY
Oracle warrants the tapes, diskettes or other media to be free of
defects in materials and workmanship under normal use for 90 days from the
Commencement Date.
C. SERVICES WARRANTY
Oracle warrants that its Technical Support and training services will be
performed consistent with generally accepted industry standards. This
warranty shall be valid for 90 days from performance of service.
D. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL OPERATE IN COMBINATIONS
OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT THE OPERATION OF THE
PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE. PRE-PRODUCTION RELEASES OF
PROGRAMS AND COMPUTER-BASED TRAINING PRODUCTS ARE DISTRIBUTED "AS IS."
The Alliance Member shall not make any warranty on Oracle's behalf.
7.3 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 7.2 above, the
Alliance Member's exclusive remedy, and Oracle's entire liability, shall be:
A. FOR PROGRAMS
The correction of Program errors that cause breach of the warranty, or
if Oracle is unable to make the Program operate as warranted, the Alliance
Member shall be entitled to recover the fees paid to Oracle for the Program
license.
B. FOR MEDIA
The replacement of defective media returned within 90 days of the
Commencement Date.
C. FOR SERVICES
The reperformance of the services, or if Oracle is unable to perform the
services as warranted, the Alliance Member shall be entitled to recover the
fees paid to Oracle for the unsatisfactory services.
7.4 INDEMNIFICATION OF ORACLE
The Alliance Member agrees to enforce the terms of its Sublicense
agreements required by this Agreement so as to effect a timely cure of any
Sublicense breach, and to notify Oracle of any known breach of such terms.
The Alliance Member will defend and indemnify Oracle against:
A. All claims and damages to Oracle arising from any use by the Alliance
Member or its Sublicensees of any product not provided by Oracle but used in
combination with the Programs if such claim would have been avoided by the
exclusive use of the Programs; and
B. All claims and damages to Oracle caused by the Alliance Member's failure
to include the required contractual terms set forth in Section 2.3.B hereof
in each Sublicense agreement.
7.5 EQUITABLE RELIEF
The Alliance Member acknowledges that any breach of its obligations with
respect to proprietary rights of Oracle will cause Oracle irreparable injury
for which there are inadequate remedies at law and that Oracle shall be
entitled to equitable relief in addition to all other remedies available to
it.
8. GENERAL TERMS AND CONDITIONS
8.1 NONDISCLOSURE
By virtue of this Agreement, the parties may have access to information
that is confidential to one another ("Confidential Information").
Confidential Information shall be limited to the Programs, the terms and
pricing under this Agreement, and all information clearly identified as
confidential.
A party's Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of
the other party; (b) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party either directly or
indirectly from the disclosing party; (c) is lawfully disclosed to the other
party by a third party without restriction on disclosure; or (d) is
independently developed by the other party. The Alliance Member shall not
disclose the results of any benchmark tests of the Programs to any third
party without Oracle's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two years
after termination of this Agreement. The parties agree, unless required by
law, not to make each other's Confidential Information available in any form
to any third party for any purpose other than the implementation of this
Agreement. Each party agrees to take all reasonable steps to ensure that
Confidential Information is not disclosed or distributed by its employees or
agents in violation of the terms of this Agreement.
8.2 COPYRIGHTS
The Programs are copyrighted by Oracle. The Alliance Member shall retain
all Oracle copyright notices on the Programs used by the Alliance Member
under its Development Licenses or Marketing Support Licenses. The Alliance
Member shall include the following on all copies of the Programs in software
Value-Added Packages incorporating the Programs distributed by the Alliance
Member:
A. A reproduction of Oracle's copyright notice; or
B. A copyright notice indicating that the copyright is vested in the
Alliance Member containing the following
1. A "c" in a circle and the word "copyright";
2. The Alliance Member's name;
3. The date of copyright; and
4. The words "All Rights Reserved."
Such notices shall be placed on the Documentation, the sign-on screen
for any software Value-Added Package incorporating the Programs, and the
diskette or tape labels. Notwithstanding any copyright notice by the
Alliance Member to the contrary, the copyright to the Program included in
any such application package shall remain in Oracle. Other than as specified
above, on any reproduction or translation of any Programs, Documentation, or
promotional material, the Alliance Member agrees to reproduce Oracle's
copyright notices intact.
8.3 TRADEMARKS
"Oracle" and any other trademarks and service marks adopted by Oracle to
identify the Programs and other Oracle products and services belong to
Oracle; the Alliance Member will have no rights in such marks except as
expressly set forth herein and as specified in writing
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from time to time. The Alliance Member's use of Oracle's trademarks shall
be under Oracle's trademark policies and procedures in effect from
time-to-time. The Alliance Member agrees not to use the trademark "ORACLE,"
or any mark beginning with the letters "Ora," or any other mark likely to
cause confusion with the trademark "ORACLE" as any portion of the Alliance
Member's tradename, trademark for the Alliance Member's Value-Added
Package, trademark for any other products of the Alliance Member, or
trademark for any portion of the Alliance Member's internet addresses or
domain names. The Alliance Member shall have the right to use the trademark
"ORACLE" and other Oracle trademarks solely to refer to Oracle's Programs,
products and services.
The Alliance Member agrees with respect to each registered trademark
of Oracle, to include in each advertisement, brochure, or other such use of
the trademark, the trademark symbol "circle R" and the following statement:
______is a registered trademark of Oracle Corporation, Redwood City,
California
Unless otherwise notified in writing by Oracle, the Alliance Member
agrees, with respect to every other trademark of Oracle, to include in each
advertisement, brochure, or other such use of the trademark, the symbol
"TM" and the following statement:
______is a trademark of Oracle Corporation, Redwood City, California
The Alliance Member shall not market the Oracle Programs in any way
which implies that the Oracle Programs are the proprietary product of the
Alliance Member or of any party other than Oracle. Oracle shall not have
any liability to the Alliance Member for any claims made by third parties
relating to the Alliance Member's use of Oracle's trademarks.
8.4 RELATIONSHIPS BETWEEN PARTIES
In all matters relating to this Agreement, the Alliance Member will
act as an independent contractor. The relationship between Oracle and the
Alliance Member is that of licensor/licensee. Neither party will represent
that it has any authority to assume or create any obligation, express or
implied, on behalf of the other party, nor to represent the other party as
agent, employee, franchisee, or in any other capacity. Nothing in this
Agreement shall be construed to limit either party's right to independently
develop or distribute software which is functionally similar to the other
party's product, so long as proprietary information of the other party is
not included in such software.
8.5 ASSIGNMENT
The Alliance Member may not assign or otherwise transfer any rights
under this Agreement without Oracle's prior written consent.
8.6 NOTICE
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given when
mailed by first class mail to the first address listed in the relevant
Order Form (if to the Alliance Member) or to the Oracle address on the
Order Form (if to Oracle).
To expedite order processing, the Alliance Member agrees that Oracle
may treat documents faxed by the Alliance Member to Oracle as original
documents; nevertheless, either party may require the other to exchange
original signed documents.
8.7 GOVERNING LAW/JURISDICTION
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the substantive and procedural laws of the
State of California and shall be deemed to be executed in Redwood City,
California. The parties agree that any legal action or proceeding relating
to this Agreement shall be instituted in any state or federal court in San
Francisco or San Mateo County, California. Oracle and the Alliance Member
agree to submit to the jurisdiction of, and agree that venue is proper in,
these courts in any such legal action or proceeding.
8.8 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force and effect.
8.9 EXPORT
The Alliance Member agrees to comply fully with all relevant export
laws and regulations of the United States ("Export Law") to assure that
neither the Programs, nor any direct product thereof, are (a) exported,
directly or indirectly, in violation of Export Laws; or (b) are intended to
be used for any purposes prohibited by the Export Laws, including, without
limitation, nuclear, chemical, or biological weapons proliferation.
8.10 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE'S LIABILITY FOR
DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY THE
ALLIANCE MEMBER UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM THE
ALLIANCE MEMBER'S OR SUBLICENSEE'S USE OF THE PROGRAM OR SERVICES, SUCH
LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE RELEVANT PROGRAM OR
SERVICES GIVING RISE TO THE LIABILITY.
The provisions of this Agreement allocate the risks between Oracle and
the Alliance Member. Oracle's pricing reflects this allocation of risk and
the limitation of liability specified herein.
8.11 FEDERAL GOVERNMENT SUBLICENSES
If the Alliance Member grants a Sublicense to the United States
government, the Programs, including documentation, shall be considered
commercial computer software and the Alliance Member will place a legend,
in addition to applicable copyright notices, on the documentation, and on
the media label, substantially similar to the following:
NOTICE OF RESTRICTED RIGHTS
"Programs delivered subject to the DOD FAR Supplement are `commercial
computer software' and use, duplication, and disclosure of the Programs,
including documentation, shall be subject to the licensing restrictions set
forth in the applicable Oracle license agreement. Otherwise, Programs
delivered subject to the Federal Acquisition Regulations are `restricted
computer software' and use, duplication, and disclosure of the Programs,
including documentation, shall be subject to the restrictions in FAR
52.227-19, Commercial Computer Software-Restricted
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Rights (June 1987). Oracle Corporation, 500 Oracle Parkway, Redwood City,
CA 94065."
8.12 GPL PROGRAMS
Oracle and Alliance Member each acknowledge that distribution and use
of certain programs ("GPL Programs") are subject to the terms of the GNU
General Public License ("GPL"). Under this Agreement, Oracle grants
Alliance Member the right to market and grant sublicenses of the Oracle
Programs only as an "independent and separate work" and not as "part of a
whole" with any GPL Program as such terms are used in the GPL. Alliance
Member shall not modify or combine the Oracle Programs and/or the GPL
programs in any manner that could cause, or could be interpreted or
asserted to cause, the Oracle Programs or any modifications thereto to
become subject to the terms of the GPL.
8.13 WAIVER
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or breach.
Except for actions for non-payment or breach of Oracle's proprietary rights
in the Programs, no action, regardless of form, arising out of this
Agreement may be brought by either party more than two years after the
cause of action has accrued.
8.14 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties
and supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document, usage
or custom shall be deemed to amend or modify this Agreement.
It is expressly agreed that the terms of this Agreement and any Order
Form shall supersede the terms in any Alliance Member purchase order or
other ordering document
The Effective Date of this Agreement shall be July 13, 2000
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EXECUTED BY THE ALLIANCE MEMBER:
EXECUTED BY ORACLE CORPORATION:
-------------------------------------
Authorized Signature: /s/ Eric Olafson Authorized Signature: /s/ Matt Mosman
----------------------- --------------------------------
Name: Eric Olafson Name: Matt Mosman
--------------------------------------- ------------------------------------------------
Title: CEO and President Title: Senior Vice President, Corporate Development
-------------------------------------- -----------------------------------------------
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Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(650) 506-7000
Oracle is a registered trademark of Oracle Corporation. 1-00
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CERTIFIED ADVANTAGE PROGRAM ADDENDUM
This Certified Advantage Program Addendum (this "Addendum") is made by and
between Oracle Corporation ("Oracle"), with its principal place of business at
500 Oracle Parkway, Redwood City, California 94065, and Tomax Corporation (the
"Alliance Member"), with its principal place of business at 205 N. 400 W. Salt
Lake City, UT 84103 and shall be governed by the terms of the Oracle Alliance
Agreement between the Alliance Member and Oracle (the "Agreement") and the terms
set forth below. In the event of conflict between this Addendum and the
Agreement, the provisions of this Addendum shall control. This Addendum is
effective as of July 13, 2000 (the "Effective Date").
ARTICLE I -- DEFINITIONS
1.1 ALLIANCE MEMBER
"Alliance Member" shall mean the company named in the first paragraph of
this Addendum and any other corporation, partnership, firm, association or
any other person in which the Alliance Member, directly or indirectly,
holds a fifty percent (50%) or more ownership interest.
1.2 ALLIANCE MEMBER PROGRAMS
"Alliance Member Programs" shall mean the computer software, interfaces and
integration points marketed and/or distributed by Alliance Member for use
in connection with the Oracle Programs; the installation guides, user
guides and manuals for use of such software ("Documentation"); and the
Alliance Member's Updates. The products comprising the Alliance Member
Programs are listed and described in Exhibit A (Alliance Member Programs).
"Alliance Member Programs" shall mean only the Object Materials for such
programs (not Source Materials) unless otherwise expressly specified.
1.3 CUSTOMER
"Customer" shall mean an end-user to whom Oracle has granted a license for
an Oracle Program, or to whom the Alliance Member has granted a license for
an Alliance Member Program, pursuant to the terms of this Addendum.
1.4 DISTRIBUTOR
"Distributor" shall mean, under the terms of this Addendum: (a) for Oracle,
a third party that is appointed by Oracle or its Distributor to market and
sublicense the Oracle Programs, or (b) for Alliance Member, a third party
that is appointed by the Alliance Member or its Distributor to market and
sublicense the Alliance Member Programs. The term "Distributor" shall
include, but not be limited to, resellers, original equipment
manufacturers, value added relicensors, dealers, agents, and
subdistributors.
1.5 INTELLECTUAL PROPERTY RIGHTS
"Intellectual Property Rights" shall mean patent rights, copyright rights,
trade secret rights, and any other intellectual property rights recognized
by the law of each applicable jurisdiction.
1.6 OBJECT MATERIALS
"Object Materials" shall mean materials, in machine-readable form,
necessary to run the Oracle Programs, the Alliance Member Programs or other
products of the Alliance Member including computer programming code,
substantially or entirely in binary form, which is directly executable by a
computer after suitable processing but without the intervening steps of
compilation or assembly, and all help, message, and overlay files.
1.7 ORACLE
"Oracle" shall mean Oracle; any other corporation, partnership, firm,
association or any other person in which Oracle, directly or indirectly,
holds a fifty percent (50%) or more ownership interest; and any entity
which is the exclusive distributor of Oracle programs within a country.
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1.8 ORACLE PROGRAMS
"Oracle Programs" shall mean the following computer programs owned or
distributed by Oracle for use with the Alliance Member Programs that are
available in production release and listed in Oracle's Price List for
use on the applicable computer/operating system combinations; the
installation guides, user guides and manuals for use of such software
("Documentation"); and Oracle's Updates: Oracle Accounts Payable, Oracle
Accounts Receivable, Oracle General Ledger, Oracle Inventory, Oracle
Order Management, Oracle Exchange and Oracle Workflow. "Oracle Programs"
shall mean only the Object Materials for such programs (not Source
Materials) unless otherwise expressly specified. The parties may add
additional Oracle products to the above list upon mutual written
agreement.
1.9 SOURCE MATERIALS
"Source Materials" shall mean the source code from which Object
Materials, as applicable, are compiled, including without limitation the
following: fully commented source code; internal system documentation;
design documentation; data models; help materials; tutorial programs;
and appropriate debug code. Each of the foregoing items shall include
the applicable materials in electronic and hard-copy form, whether
created by or for a party hereto.
1.10 TARGET MARKET
"Target Market" shall mean the NAICS codes listed in the attached
Exhibit B.
1.11 TECHNICAL SUPPORT
"Technical Support" shall mean support, maintenance and enhancements for
an Oracle Program or an Alliance Member Program provided under Oracle's
or the Alliance Member's policies, as applicable, in effect on the date
Technical Support is ordered.
1.12 TERRITORY
"Territory" shall mean the world.
1.13 UPDATES
"Updates" shall mean a subsequent release of an Oracle Program or an
Alliance Member Program which is generally made available for Supported
Licenses at no additional charge, other than media and handling charges.
Updates shall not include any release, option or future product which
Oracle or the Alliance Member licenses separately and/or for which
Oracle or the Alliance Member charges. "Supported License" shall mean a
license for an Oracle Program or an Alliance Member Program for which
the licensee has ordered Technical Support for the relevant time period.
ARTICLE II -- STRATEGIC ALLIANCE TERMS
2.1 BUSINESS PLAN
Within thirty (30) calendar days after the Effective Date, the parties
shall agree in writing on a business plan for cooperative marketing and
sales of the Oracle Programs and the Alliance Member Programs ("Business
Plan"). The Business Plan shall include, but shall not be limited to,
the following plans: marketing, sales, development and technical
support. The Sales Plan portion of the Business Plan shall include the
provisions specified in Section 2.4.1 below. The Marketing Plan portion
of the Business Plan shall include provisions specifying responsibility
for each identified activity and expense (e.g., Oracle's responsibility,
the Alliance Member's responsibility, or joint responsibility). In
addition the Marketing Plan portion of the Business Plan shall include
provisions for Oracle and the Alliance Member to share equally all
marketing expenditures, including expenditures for trade shows,
collateral, seminars, and other matters set forth in the Marketing Plan
portion of the Business Plan. The parties shall mutually create the
Business Plan. The parties' initial persons responsible for creation of
the Business Plan are ______ for the Alliance Member and Lorrie Moriuchi
for Oracle. The parties shall update the Business Plan within six months
after the creation of the initial Business Plan and the parties shall
thereafter update it as least every six months during the Term of this
Addendum. Except (a) as otherwise agreed in this Addendum or (b) as
specified, agreed to by the parties and budgeted for in the Business
Plan, neither party shall have any
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obligation to market the other's products or any product containing the other's
products, and each party shall have full freedom and flexibility in the design
and implementation of its marketing efforts, and may discontinue any marketing
efforts at any time.
2.2 RELATIONSHIP MANAGEMENT
2.2.1 Management Meetings. The parties will delegate appropriate
representatives of each party to meet at least every six months (or
more often, if the parties agree) during the Term of this Addendum
to discuss relationship management issues.
2.2.2 Relationship Representative. The alliance Member shall designate at
least one employee who shall have as one of the employee's primary
responsibilities the support of the Alliance Member's relationship
with Oracle. Oracle shall designate at least one employee from the
Oracle alliances organization ("Oracle Alliances Representative")
who shall have as one of the employee's primary responsibilities
the support of Oracle's relationship with the Alliance Member.
These designated persons shall participate in conference calls or
meetings at least every two weeks to discuss relationship
management issues.
2.3 PREFERRED RELATIONSHIP, NONEXCLUSIVITY
2.3.1 Preferred Relationship. During the Term of this Addendum, the
Alliance Member shall be Oracle's "preferred partner" for in-store
retail application programs within the Target Market. During the
Term of this Addendum, Oracle shall be the Alliance Member's
"preferred partner" for database technology and enterprise
application programs. The benefits of "preferred partner" status
for each party are as specified below.
a. "Preferred Partner" Benefits - Oracle. Oracle shall have the
right to promote the Alliance Member Programs to any customer or
prospective customer. The Alliance Member shall, at the Alliance
Member's discretion, share leads with Oracle. If either the
Alliance Member relationship representative or a member of
Alliance Member's board of directors (each, an "Alliance Member
Representative") becomes aware that an Alliance Member
salesperson is actively promoting a third party's application
program to a customer in the Target Market, which application
program is substantially similar to an Oracle Program, then the
Alliance Member Representative will notify Oracle and will give
Oracle the opportunity to propose the Oracle Programs to such
customer(s). Notwithstanding the foregoing, the above procedure
shall not be applicable to situations where a third party is the
lead in the sales to a particular customer.
b. "Preferred Partner" Benefits - The Alliance Member. The Alliance
Member shall have the right to promote Oracle Programs to any
customer or prospective customer. Oracle shall, at Oracle's
discretion, share leads with the Alliance Member. If either the
Oracle Alliances Representative or a member of Alliance Member's
board of directors that represents Oracle (each, an "Oracle
Representative") becomes aware that an Oracle salesperson is
actively promoting a third party's in-store retail application
to a customer in the Target Market, which retail application is
substantially similar to an Alliance Member Program, then the
Oracle Representative will notify the Alliance Member and will
give the Alliance Member the opportunity to propose the Alliance
Member Programs to such customer(s). Notwithstanding the
foregoing, the above procedure shall not be applicable to
situations where a third party is the lead in the sales to a
particular customer.
2.3.2 Nonexclusivity. Notwithstanding the foregoing, the parties agree
that their relationship is nonexclusive and each party shall have
the right to promote other third party programs to fit customer
requirements/desires. The parties shall, however, work together to
determine if and how they may include third party programs in the
parties' marketing efforts.
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2.4 SALES MANAGEMENT
2.4.1 Sales Support.
a. Each party shall provide pre-sales support for its own products.
b. The parties shall determine a sales qualification process and
shall define the responsibilities of each party with respect to
sales support. The sales qualification process and the parties'
sales support activities shall be specified in the Sales Plan
portion of the Business Plan.
2.4.2 Monthly Sales Reports. At least every month, Oracle and the Alliance
Member shall each provide a written report to the other specifying:
a. Sales Pipeline. All pending or prospective Alliance Member
Program sales in the Target Market in connection with Oracle
Program licenses in the 90-day pipeline, including the names of
the prospective customers, the products and the anticipated
dollar amounts of the sales. The parties may use this
information to work together to create a sales plan for the
applicable prospective customers.
b. Existing Customer Status. The status of all existing Alliance
Member Program licensee accounts in connection with Oracle
Programs for which the reporting party is the primary contact,
including referenceability of the accounts and status of
Alliance Member Program implementations.
c. Deal Completion Report. All orders for Alliance Member Program
licenses signed during the applicable time period. The Alliance
Member will use commercially reasonable efforts to provide such
report within five (5) days after the end of each applicable
time period. The contents of such reports will be mutually
agreed to by the parties.
d. The Oracle and Alliance Member sales operations managers shall
meet to review such sales reports. Notwithstanding any of the
foregoing, the parties shall have no obligation to provide to
the other party as part of any report described above any
information or leads that may not be provided due to
confidentiality obligations to which the providing party is
subject nor any information or leads that have been provided to
a party from a third party. Each party agrees that it shall work
together with the other party to coordinate sales activities on
leads originating with the other party.
2.4.3 Price List. Within thirty (30) days of the Effective Date, the
Alliance Member shall provide to Oracle a copy of its price list for
the Alliance Member Programs. The Alliance Member shall have the
right to update its price list at its discretion. Within ten (10)
days of the Alliance Member's release of each new Alliance Member
price list, the Alliance Member shall provide to Oracle copies of
updated price list and/or shall provide Oracle with access to a web
site where Oracle may locate such information.
2.4.4 Sales Force Compensation. Oracle will provide compensation for the
Alliance Member Programs to Oracle's sales representatives in order
to create incentives for the promotion of the Alliance Member
Programs as provided in this Addendum. Oracle will provide
compensation to its sales representatives for the foregoing in an
amount commensurate with Oracle's compensation for similar
relationships with other members of Oracle's Certified Advantage
Program. Oracle shall have full discretion to set and revise such
compensation plans.
2.5 DISPUTE RESOLUTION
In the event of a dispute between the parties concerning the subject matter
of this Addendum, the matter shall be referred to the applicable functional
relationship manager (e.g., sales operations, development, technical
support) who shall meet for the purpose of endeavoring to resolve such
dispute or negotiate for an adjustment to the applicable provision. If they
cannot resolve the dispute to the parties' mutual satisfaction within 30
days after the dispute has been referred to them, then they shall refer the
matter to each party's applicable executive sponsor. No formal proceedings
for judicial resolution of such dispute, except for the seeking of
equitable relief, may begin until the dispute resolution procedure has been
elevated to the parties' executive sponsors, and such persons in good faith
conclude, after a good faith attempt to resolve the dispute, that amicable
resolution through continued negotiation does not appear likely.
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ARTICLE III -- DELIVERY
3.1 DELIVERY PLAN
The Alliance Member shall focus on building a set of products that are
complementary to the Oracle Programs. The Alliance Member shall update
Oracle on at least a quarterly basis on the Alliance Member's delivery
and development plans with respect to the Alliance Member Programs
(e.g., the release schedule of the Alliance Member Programs and
schedules for execution of the delivery plan). Such information shall be
subject to the provisions of the Nondisclosure provision of the
Agreement. Attached hereto as Exhibit C is the first of such plans.
3.2 DELIVERY RESPONSIBILITIES
3.2.1 Delivery-Related Costs. Each party shall bear all costs incurred
by it in the course of performing under this Addendum, except as
otherwise expressly specified herein or in another document
signed by the parties.
3.2.2 Alliance Member Responsibilities. The Alliance Member shall:
a. Be responsible for ongoing development of the Alliance
Member Programs and integration of the Alliance Member
Programs with the Oracle Programs, including providing
resources therefor, and with input from Oracle as
applicable.
b. At its own cost perform integration of the Alliance Member
Programs to the Oracle Programs. The Alliance Member shall
make upgraded releases of the Alliance Member Programs
compatible with releases of the Oracle Programs commercially
available within one hundred and twenty (120) days after
first commercial availability of such upgraded release of
the Alliance Member Program. In addition, the Alliance
Member shall integrate the Alliance Member Programs with
upgraded releases of the Oracle Programs and make such
commercially available within one hundred and twenty (120)
days after commercial availability of the applicable Oracle
Program releases (excluding Oracle Program releases
consisting solely of patches and fixes).
c. The Alliance Member will support (and migrate to, as
necessary) the latest release of any Oracle Program embedded
in its Program each time that the Alliance Member makes a
new release of its Program generally available.
Notwithstanding the foregoing, Oracle acknowledges that the
Alliance Member may not be able to support (and migrate to,
as necessary) the latest release of any Oracle Program
embedded in its Program each time that the Alliance Member
makes a new release of its Program generally available, but
that the Alliance Member will make all reasonable efforts to
do so.
3.2.3 Oracle responsibilities. Oracle may contribute to the Alliance
Member's strategies on Target Markets, languages and
localizations, major product features, and integration with the
Oracle Programs. The Alliance Member shall have full discretion
to make decisions with respect to the Alliance Member Programs,
however.
3.3 UPGRADES AND RELEASE MANAGEMENT
3.3.1 Mutual Responsibilities.
a. Oracle and the Alliance Member shall establish a customer
issue resolution process which shall include, at a minimum,
ensuring that a senior level engineer and a senior level
functional person from the Alliance Member is available via
pager during any two to four day period when Customers are
going live with the Alliance Member Programs that have
integration with the Oracle Programs.
b. Each party shall provide upgrade paths and/or tools to move
from existing releases to each successive release (including
all ports and translations) that is designated in the
delivery plan.
3.4 COOPERATIVE APPLICATIONS INITIATIVE ("CAI") INTEGRATION
3.4.1 The Alliance Member shall complete the CAI integration to Oracle
Accounts Payable, Oracle Accounts Receivable, and Oracle General
Ledger on which it is currently working by May 31, 2000, as
certified by Veritest and at the Alliance Member's expense.
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3.4.2 The Alliance Member shall migrate by March 31, 2001 all integration
with Oracle Programs to a message-based architecture using
Oracle's OA1 product.
3.4.3 The Alliance Member shall by March 31, 2001 integrate the Alliance
Member Programs with the following Oracle Programs: Oracle
Inventory and Oracle Order Management. The parties may add more
Oracle Programs to such list upon mutual agreement.
3.4.4 The Alliance Member shall at its own expense develop integration
with any new Oracle retail BIS system and with the Oracle Exchange
Platform at a schedule to be agreed upon between the parties. The
schedule(s) may be changed upon mutual written agreement of the
parties.
3.5 PRODUCT CONVERSION
3.5.1 The Alliance Member shall re-architect and re-develop its
Domino-based "extranet" product to appropriate Oracle-based
technologies, primarily Oracle Workflow, by June 30, 2001 or as
soon as otherwise commercially and technically practicable.
3.5.2 The Alliance Member shall deploy its HeurisTec Labor Scheduling
solution using appropriate Oracle-based technologies by December
31, 2000.
3.6 STANDARDS
3.6.1 The Alliance Member shall adhere to mutually agreed quality
assurance (QA) practices and standards.
3.6.2 The Alliance Member shall evaluate and then adopt and/or
incorporate Oracle's development standards for Schema, PL/SQL and
Java API development, Forms, HTML and DHTML and other areas in the
Alliance Member's next major release of each Alliance Member
Program to the extent it is technically and commercially reasonable
to do so. The Alliance Member shall have full discretion to set its
own development standards.
3.7 BENCHMARKS
The Alliance Member shall fund, run and complete a performance benchmark
for its Retail.net product within the first six months after the Effective
Date. This benchmark must support transaction volumes for a Tier 1 retailer
($5-10 billion in annual sales) and an appropriate number of concurrent
users. The Alliance Member and Oracle will jointly develop the criteria for
performance and concurrent usage targets for a Tier 1 retailer within 30
days of the Effective Date.
ARTICLE IV -- LICENSES GRANTED
------------------------------
4.1 LICENSE TO ALLIANCE MEMBER
Oracle shall license the Oracle "core technology" products (as such term is
defined on the Oracle alliances website) to the Alliance Member for two
locations (the "Initial Sites") for the purposes of marketing support and
enabling the Alliance Member to perform its technical support and
integration responsibilities under this Addendum under the terms of the
Agreement. For any sites in addition to the Initial Sites, the Alliance
Member shall pay the fees to Oracle specified on the Oracle alliances
website. For the one year period commencing with the Effective Date of this
Agreement and for the Initial Sites combined (and not for each Initial
Site), Oracle grants to the Alliance Member at no charge licenses for four
(4) "technology tracks" of "core technology" (as such terms are defined on
the Oracle alliances website) for the purposes described above in the
following amounts: 30 named users with Technical Support by Oracle at a
silver level per technology track and 300 named users with no Technical
Support from Oracle per technology track. The Alliance Member shall at its
discretion allocate such total of 300 users across the Initial Sites. On
the date one year from the Effective Date and provided that the Alliance
Member meets the then applicable Oracle Certified Advantage Program
requirements, the license to the Alliance Member specified in the previous
sentence shall be extended for the Alliance Member for an additional one
year period at no additional charge. On the date two years from the
Effective Date and provided that the Alliance Member meets the then
applicable Oracle Certified Advantage Program requirements, the license to
the Alliance Member specified in the previous sentence shall be extended
for the Alliance Member for an additional one year period at no additional
charge.
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4.2 DEMONSTRATION LICENSE TO ORACLE
The Alliance Member shall deliver to Oracle promptly after the Effective
Date, or make available at an Alliance Member website, a complete copy of
the Object Materials and Documentation for the Alliance Member Programs to
be used by Oracle in accordance with the terms and conditions of this
Addendum. The Alliance Member shall use commercially reasonable efforts to
deliver to Oracle a complete copy of any Update of an Alliance Member
Program, including a complete set of the Object Materials and
Documentation for such Update, thirty (30) days after any production
release to a third party of such Update. The Alliance Member grants to
Oracle a worldwide, royalty-free, non-exclusive, nontransferable right and
license to execute, copy, reproduce, display, perform, or otherwise use,
the Object Materials for the purposes of enabling Oracle to perform
demonstrations (and allowing its Distributors to demonstrate) the Alliance
Member Programs in conjunction with sales presentations for the Oracle
Programs.
4.3 LICENSING
Each party shall license its respective programs to Customers pursuant to
each party's respective license agreements.
4.4 TRADEMARKS
Alliance Member hereby grants to Oracle and its Distributors a
nonexclusive, fully paid-up license to use in connection with marketing
for the Alliance Member Programs the product names and trademarks used by
Alliance Member to identify the Alliance Member Programs. Subject to the
foregoing, all uses by Oracle of the Alliance Member's trademarks shall be
in accordance with the Alliance Member trademark guidelines in Exhibit D
hereto.
4.5 ARCHIVAL COPIES; NO REVERSE ENGINEERING
Each party shall have the right to copy for archival or backup purposes
the software licensed to it under this Article IV; no other copies shall
be made without the licensing party's prior written consent, except as
expressly authorized herein. All titles, trademarks, and copyright and
restricted rights notices shall be reproduced in such copies. All archival
and backup copies of the software are subject to the terms of this
Addendum. Neither party shall cause or permit the reverse engineering,
disassembly or decompilation of any Object Materials licensed or
sublicensed to it by the other party under this Addendum.
4.6 OWNERSHIP
The Alliance Member shall retain all right, title and interest to the
Intellectual Property Rights in the Alliance Member Programs. Oracle shall
retain all right, title and interest to the Intellectual Property Rights
in the Oracle Program.
ARTICLE V -- FEES
5.1 SALES SUPPORT FEES
5.1.1 Amount of Sales Support Fees Payable.
a. Subject to the provisions of Section 5.1.2 below, for so long as
the Alliance Member is Oracle's "preferred partner" (as
described in Section 2.3.1 above) but for no longer than the
Term of this Addendum, for each license by the Alliance Member
or its Distributor of an Alliance Member product (including but
not limited to the Alliance Member Programs), the Alliance
Member shall pay to Oracle a Sales Support Fee equal to ten
percent (10%) of the Net Customer License Fees (as defined
below) payable to the Alliance Member by Customers and by
Distributors for such license.
b. Definition of the Net Customer License Fees. "Net Customer
License Fees" shall mean license fees payable to the Alliance
Member by Customers and by Distributors for licenses of
Alliance Member products, net of sales, use or other taxes paid.
c. Adjustment of Sales Support Fees Payable. After the
date eighteen (18) months from the Effective Date (the
"Adjustment Date"), the parties shall review the amount of the
Sales Support Fee (the "Original Fee") and upon mutual
agreement may make a one-time adjustment in the amount up or
down based upon factors to be agreed to by the parties,
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including but not limited to the level of impact that Oracle has
had on sales of the Alliance Member's products. The Alliance
Member shall continue to pay Oracle the Original Fee with respect
to all deals in the pipeline on the Adjustment Date that close
within three (3) months from the Adjustment Date.
5.1.2 Exceptions.
a. Three Month Exception. During the period beginning with the
Effective Date and ending three (3) months from the Effective
Date (the "Exception Period"), Oracle shall not receive any Sales
Support Fees with respect to transactions with any entities
listed on Exhibit E (Three Month Exception List).
b. Excepted Entities. Oracle shall not receive any Sales Support
Fees with respect to transactions with any entities listed on
Exhibit F (Excepted Entities List).
c. Excepted Products. Oracle shall not receive any Sales Support
Fees with respect to licenses for Alliance Member products that
have not been ported to Oracle. After an Alliance Member product
has been ported to Oracle, then Oracle shall receive Sales
Support Fees for licenses of that product regardless of the
version of the Alliance Member product that is licensed in the
applicable transaction (e.g., Oracle shall receive Sales Support
Fees for versions of the Alliance Member product that are not run
on Oracle); provided, however that with respect to the Alliance
Member's EXS product, Oracle shall only receive Sales Support
Fees for the version of the EXS product which runs on Oracle.
5.2 THIRD PARTY MATERIALS
Each party shall have sole responsibility for payment of all royalties
and other charges with respect to third party materials included in its
software and documentation.
5.3 PAYMENT
All fees payable by the Alliance Member and which are described
in this Article V shall be due and payable monthly in arrears, within
ten (10) days after the end of the month in which the applicable net
fees were received by the Alliance Member.
5.4 REPORTING
Within thirty (30) days of the last day of each month, the Alliance
Member shall send to Oracle a report detailing, for that month, the
applicable fees due to Oracle under this Addendum as a result of the
Alliance Member's activities pursuant to the terms of this Addendum.
5.5 RECORDS; AUDIT
The Alliance Member shall keep accurate books of account and records
pertaining to its activities and revenues from its Distributors under
the terms of this Addendum. No more than once during any twelve (12)
month period, Oracle may, at its sole expense, employ an independent
Certified Public Accountant who is not compensated based on the results
of the audit, and who is acceptable to the Alliance Member, to inspect
such books of account and records upon reasonable notice to the Alliance
Member, and at a reasonable time during normal business hours for the
purpose of verifying the applicable fees payable pursuant to this
Addendum to Oracle. If the audit reveals that the Alliance Member has
underpaid fees by more than ten percent (10%) of the total amount of
such fees paid by the Alliance Member over the past twelve (12) months,
then such party shall reimburse Oracle for Oracle's reasonable costs of
conducting the audit, notwithstanding anything to the contrary in this
Section. Unless necessary to establish in a court of law Oracle's right
to payment of fees hereunder (in which case the Certified Public
Accountant shall request a protective order), such Certified Public
Accountant shall hold all information obtained in strict confidence;
shall not disclose such information to any other person or entity
(except Oracle) without the prior written consent of the Alliance
Member; and shall not disclose to Oracle any information regarding the
business of the Alliance Member other than any noncompliance by the
Alliance Member with the fee payment provisions hereof.
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5.6 FREEDOM TO DETERMINE CUSTOMER PRICING
Each party shall be free to determine unilaterally the pricing of all
products (including without limitation the products described in this
Addendum) and services that such party provides directly to its customers
and distributors. The Alliance Member shall have no right to approve or
influence the prices charged by Oracle for licenses granted by Oracle to
Customers or Distributors for any products or for any services provided by
Oracle to Customers or Distributors in connection with such products.
Oracle shall have no right to approve or influence the prices charged by
the Alliance Member for licenses granted by the Alliance Member to its
customers or distributors for any products, including without limitation
the Alliance Member Programs, or for any services provided by the Alliance
Member to its customers or distributor in connection with such products.
ARTICLE VI -- SERVICES AND TRAINING
6.1 SERVICES
Any cooperative provision of implementation services by the parties shall
be subject to an agreement to be negotiated by the parties on a case by
case basis.
6.2 TRAINING
6.2.1 Internal Oracle Training. Oracle shall:
a. Provide up to thirty (30) days of sales and marketing
personnel training on the Oracle Programs at Oracle's cost
for such training.
b. Provide training in addition to that specified in Section
6.2.1.a above to the Alliance Member at a discount of twenty
percent (20%) off Oracle's rates in effect when such
services are ordered.
c. Provide up to twenty (20) days of development assistance
with the Oracle Programs at Oracle's cost for such
assistance.
6.2.2 Internal Alliance Member Training. The Alliance Member shall:
a. Provide training sessions to applicable Oracle salespersons
and support personnel on the Alliance Member's products. The
training will be conducted in the form of five (5) sessions,
all to be conducted within the six (6) months of the
Effective Date. Each session shall accommodate up to ten
(10) participants. The Alliance Member will not charge
Oracle for the training, but Oracle will be responsible for
all costs incurred by either party for materials,
facilities, equipment, travel, and other similar and related
expenses.
b. Provide training in addition to that specified in Section
6.2.2.a above to Oracle at a discount of twenty percent
(20%) off the Alliance Member's rates in effect when such
services are ordered.
6.2.3 Customer Training. Each party may provide training to Customers
for its respective products.
ARTICLE VII -- TECHNICAL SUPPORT
7.1 TECHNICAL SUPPORT FOR PROGRAMS
Each party shall provide Technical Support services for its respective
programs to customers. Each party shall owe no fees to the other party for
such services.
7.2 INTERNAL DEVELOPER TECHNICAL SUPPORT
During the term of this Addendum and subject to the provisions of Section
4.1, Oracle shall provide silver Technical Support services for the Oracle
products specified in Section 4.1 in the amounts specified above to
Alliance Member internal development personnel. During the term of this
Addendum, the Alliance Member shall provide Technical Support services for
the Alliance Member Programs to Oracle internal development personnel, in
connection with integration activities. Each party shall designate __
developers (plus __ developers as backups) who shall serve as the sole
liaisons between the two parties as the parties' on-site Technical Support
Contacts. Each party shall notify the other whenever its designated
Technical Support Contact responsibilities are transferred to another
developer. For any Technical Support
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Updates to the Oracle products or the Alliance Member Programs, each party
shall ship to the addresses written in the preamble of this Addendum (or to
such other address as the receiving party may designate in writing) one
Technical Support Update copy for each operating system.
ARTICLE VII - TERM AND TERMINATION
8.1 INITIAL TERM
This Addendum shall become effective on the Effective Date and shall remain
in effect for three (3) years thereafter (the "Term"), unless sooner
terminated as specified below. This Addendum may be renewed by written
agreement of the parties for successive three (3)-year terms. At the end of
the second year of each 3-year term, the parties shall jointly issue a
memorandum of intent indicating whether or not they intend to renew this
Addendum for an additional 3-year term.
8.2 TERMINATION
8.2.1 Termination for Cause: Either party may terminate this Addendum
if it reasonably believes that the other has materially breached
this Addendum, or if it has cause under Section 8.2.2 (Causes)
below, and so notifies the other in writing. A party may avoid
termination after receiving such notice if it demonstrates within
sixty (60) days after receiving such notice that it has not
materially breached this Addendum, that the notifying party does
not have cause under Section 8.2.2 below, that it has cured the
breach or cause, or that it has commenced remedying the breach or
cause in good faith within such 60-day period and such party
continues to make good-faith efforts to remedy the breach or
cause. In no case may the recipient of a termination notice avoid
termination if it fails to remedy a breach or cause within one
hundred eighty (180) days after the written notice.
8.2.2 Causes. For purposes of this Section 8.2 only, "cause" shall
include but not be limited to:
a. Failure to fully and timely comply with any material
provision of this Addendum or of any exhibit or attachment
hereto.
b. The filing of any voluntary or involuntary petition in
bankruptcy, or any similar law, by or against a party, which
is not dismissed within forty-five (45) days of filing.
c. An infringement by either party of a third-party
intellectual property right which impedes either party's
ability to meet its obligations under this Addendum with
respect to its programs, as specified in Section 9.2
(Infringement Indemnity) below.
The parties shall endeavor to resolve any dispute over whether a
material breach or cause has occurred in accordance with Section
2.5 (Dispute Resolution) above.
8.2.3 Force Majeure. Neither party shall be liable to the other for
failure or delay in the performance of a required obligation if
such failure or delay is caused by riot, fire, flood, explosion,
earthquake or other natural disaster, government regulation, or
other similar cause beyond such party's control, provided that
such party gives prompt written notice of such condition and
resumes its performance as soon as possible, and provided further
that the other party may terminate this Addendum if such
condition continues for a period of one hundred eighty (180)
days.
8.3 EFFECT OF TERMINATION
Upon termination or expiration of this Addendum, all rights and obligations
of the parties under this Addendum shall cease, except as provided in this
Article VIII. Termination of this Addendum shall not limit either party
from pursuing other remedies available to it, including injunctive relief,
nor shall such termination relieve either party of its obligation to pay
all fees that have accrued or are otherwise owed by it to the other party
under this Addendum. The parties' rights and obligations under Articles
VIII (Term and Termination), IX (Limited Warranty, Infringement Indemnity
and Limitation of Liability) and X (General), and Sections 4.5 (Archival
Copies; No Reverse Engineering), 4.6 (Ownership) and 5.2 (Third Party
Materials), as well as those other Sections reasonably required to allow
the parties to exercise their post-termination rights hereunder, shall
survive expiration or termination of this Addendum.
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ARTICLE IX -- LIMITED WARRANTY, INFRINGEMENT INDEMNITY, AND LIMITATION OF
LIABILITY
9.1 LIMITED WARRANTIES AND EXCLUSIVE REMEDIES
9.1.1 Limited Warranties.
a. Media Warranty. Each party warrants the tapes, diskettes
or other media to be free of defects in materials and
workmanship under normal use for 90 days from delivery
to the other party.
b. Services Warranty. Each party warrants that its
technical support services will be performed consistent
with generally accepted industry standards. This
warranty shall be valid for 90 days from performance of
service.
9.1.2. DISCLAIMER. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
9.1.3. Exclusive Remedies. For any breach of the warranties contained
in Section 9.1.1 (Limited Warranties) above, the warranting
party's exclusive liability, and the other party's exclusive
remedy, shall be:
a. For Media. The replacement of defective media.
b. For Services. The reperformance of the services, or if
the warranting party is unable to perform the services
as warranted, the other party shall be entitled to
recover the fees paid to the warranting party for the
unsatisfactory services.
9.2 INFRINGEMENT INDEMNITY
a. Each party ("Provider") will defend and indemnify the
other party ("Recipient") against a claim that any
information, design, specification, instruction,
software, data, or material furnished by the Provider
("Material") and used by the Recipient hereunder
infringes a copyright or patent provided that: (a) the
Recipient notifies the Provider in writing within thirty
(30) days after the Recipient becomes aware of the
claim; (b) the Provider has sole control of the defense
and all related settlement negotiations; and (c) the
Recipient furnishes the Provider with the assistance,
information, and authority reasonably necessary to
perform the above; reasonable out-of-pocket expenses
incurred by the Recipient in providing such assistance
will be reimbursed by the Provider.
b. The Provider shall have no liability for any claim of
infringement resulting from: (a) the Recipient's use of
a superseded or altered release of some or all of the
Material if infringement would have been avoided by the
use of a subsequent unaltered release of the Material
which is provided to the Recipient; or (b) any
information, design, specification, instruction,
software, data, or material not furnished by the
Provider.
c. In the event that some or all of the Material is held or
is believed by the Provider to infringe, the Provider
shall have the option, at its expense, (a) to modify the
Material to be non-infringing; (b) to obtain for the
Recipient a license to continue using the Material; or
(c) if neither (a) nor (b) can be accomplished in a
commercially reasonable manner, to terminate all
licenses for the infringing Material and require return
of such Material from the Recipient. If such termination
and return materially impede either party's ability to
meet its obligations under this Addendum with respect to
the Oracle Programs or the Alliance Member Programs,
then the infringement shall be deemed a material breach
of this Addendum and the Recipient may terminate this
Addendum as set forth in Section 8.2 (Termination)
above, subject to the Provider's right to cure as
specified in that Section. THIS SECTION 9.2 STATES THE
PARTIES' ENTIRE LIABILITY AND EXCLUSIVE REMEDY FOR
INFRINGEMENT.
9.3 GENERAL INDEMNITY
The Alliance Member will defend and indemnify Oracle against claims made
by third parties arising out of such third party's use of an Alliance
Member Program provided that (a) Oracle notifies the Alliance Member in
writing within thirty (30) days after Oracle becomes aware of the claim;
(b) the Alliance Member has sole control of the defense and all related
settlement negotiations; and (c) Oracle furnishes the
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<PAGE> 18
Alliance Member with the assistance, information, and authority
reasonably necessary to perform the above; reasonable out-of-pocket
expenses incurred by Oracle in providing such assistance will be
reimbursed by the Alliance Member.
9.4 LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO SECTION 9.3, IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
OR DAMAGES FOR LOSS OF PROFITS, REVENUE INCURRED BY EITHER PARTY OR ANY
THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH
RESPECT TO SECTION 9.3, NEITHER PARTY'S LIABILITY FOR DIRECT DAMAGES
HEREUNDER SHALL EXCEED THE GREATER OF (A) ONE MILLION DOLLARS
($1,000,000) AND (B) ANY UNPAID FEES ACCRUED AND OWED TO A PARTY
(INCLUDING THOSE ACCRUED AND OWING DURING THE PENDENCY OF ANY ACTION).
The provisions of this Article IX allocate the risks under this
Addendum between the Alliance Member and Oracle and are an intrinsic
part of the bargain between the parties. The fees provided for in this
Addendum reflect this allocation of risks and the limitation of
liability specified herein.
ARTICLE X - GENERAL
10.1 INDEPENDENT DEVELOPMENT/FREEDOM OF ACTION
Each party acknowledges that the other party is in the software
development business. Neither party shall be precluded from developing,
using, marketing, licensing, and/or selling any independently developed
software which has the same or similar functionality as any product
owned or distributed by the other, so long as such activities do not
infringe the Intellectual Property Rights of the other party or the
Nondisclosure provision of the Agreement.
10.2 PUBLICITY
The parties will work together to coordinate the timing and content of
their press releases and other public statements concerning this
Addendum and related matters, to ensure that their message to the
marketplace on such matters is unified and consistent. In no case shall
either party (i) disclose to any third party the pricing or fees or any
other specific details of this Addendum without the prior written
approval of the other party, which approval shall not be unreasonably
withheld, except as required by law in order to enforce its rights
under this Addendum, or (ii) issue a formal public statement using a
Customer's name without the Customer's prior written consent.
10.3 INTERPRETATION
This Addendum, including any exhibits, addenda, schedules and
amendments, has been negotiated at arm's length and between persons
sophisticated and knowledgeable in the matters dealt with in this
Addendum. Each party has been represented by experienced and
knowledgeable legal counsel. The provisions of this Addendum shall be
interpreted in a reasonable manner to effect the purposes of the
parties at this Addendum.
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10.4 COUNTERPARTS
This Addendum may be executed in several counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument.
THE ALLIANCE MEMBER ORACLE CORPORATION
By: /s/ ERIC OLAFSON By:
---------------------------- ----------------------------
Name: ERIC OLAFSON Name:
------------------------- -------------------------
Title: CEO & President Title:
------------------------- ------------------------
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<PAGE> 20
10.4 COUNTERPARTS
This Addendum may be executed in several counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument.
THE ALLIANCE MEMBER ORACLE CORPORATION
By: By: /s/ MATT MOSMAN
---------------------------- ----------------------------
Name: Name: MATT MOSMAN
------------------------- -------------------------
Title: Title: SENIOR VICE PRESIDENT,
------------------------- CORPORATE DEVELOPMENT
------------------------
