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EXHIBIT 10.5
ORACLE
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement ("Agreement") is between Oracle
Corporation ("Oracle") and the Customer 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.
I. DEFINITIONS
1.1. "PROGRAM" means the software in object code form distributed by Oracle for
which Customer is granted a license pursuant to this Agreement, and the
media, Documentation and Updates therefor.
1.2. "Documentation" means the user guides and manuals for installation and use
of the Program software. Documentation is provided in whatever form is
generally available.
1.3. "UPDATE" means a subsequent release of the Program which Oracle generally
makes available for Program licenses at no additional license fee other
than media and handling charges, provided Customer has ordered Technical
Support for such licenses for the relevant time period. Update shall not
include any release, option or future product which Oracle licenses
separately.
1.4. "ORDER FORM" means the document in hard copy or electronic form by which
Customer orders Program licenses and services, and which is agreed to by
the parties. The Order Form shall reference the Effective Date of this
Agreement.
1.5. "DESIGNATED SYSTEM" means the computer hardware and operating system
designated on the relevant Order Form.
1.6. "TECHNICAL SUPPORT" means Program support provided under Oracle's policies
in effect on the date Technical Support is ordered.
1.7. "COMMENCEMENT DATE" means the date on which the Programs are delivered by
Oracle to Customer, or if no delivery is necessary, the Effective Date set
forth on the relevant Order Form.
1.8. "SERVICES" means Technical Support, training, or consulting services
provided by Oracle to Customer under this Agreement.
II. PROGRAM LICENSE
2.1. RIGHTS GRANTED
A. Oracle grants to Customer a nonexclusive license to use the Programs
specified on an Order Form under this Agreement as of the Commencement
Date, as follows:
i. to use the Programs solely for Customer's operations on the
Designated System or on a backup system if the Designated System is
inoperative, consistent with the use limitations specified or
referenced in this Agreement, an Order Form, or the Documentation.
Customer may not relicense, rent or lease the Programs or use the
Programs for third-party training, commercial time-sharing or
service bureau use;
ii. to use the Documentation provided with the Programs in support of
Customer's authorized use of the Programs;
iii. to copy the Programs for archival or backup purposes, and to make
a sufficient number of copies for the use specified in the Order
Form. All titles, trademarks, and copyright and restricted rights
notices shall be reproduced in such copies;
iv. to modify the Programs and combine them with other software
products; and
v. to allow third parties to use the Programs for Customer's
operations so long as Customer ensures that use of the Programs is
in accordance with the terms of this Agreement.
Customer shall not copy or use the Programs (including the
Documentation) except as specified in this Agreement or an Order Form.
Customer shall have no right to use any other software program that may
be delivered with ordered Programs.
B. Customer agrees not to 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.
C. Oracle shall retain all title, copyright and other proprietary rights in
the Programs. Customer does not acquire any rights, express or implied,
in the Programs, other than those specified in this Agreement.
2.2. TRANSFER AND ASSIGNMENT
A. Customer may transfer a Program 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.
B. Customer may not assign this Agreement or transfer a Program License to
a legal entity separate from Customer without the prior
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written consent of Oracle. Oracle shall not unreasonably withhold or
delay such consent.
2.3. VERIFICATION
At Oracle's written request, not more frequently than annually, Customer
shall furnish Oracle with a signed certification verifying that the
Programs are being used pursuant to the provisions of this Agreement and
applicable Order Forms.
Oracle may audit Customer's use of the Programs. Any such audit shall be
conducted during regular business hours at Customer's facilities and shall
not unreasonably interfere with Customer's business activities. If an
audit reveals that Customer has underpaid fees to Oracle, Customer shall be
invoiced for such underpaid fees. Audits shall be conducted no more than
once annually.
III. TECHNICAL SERVICES
3.1. TECHNICAL SUPPORT SERVICES
Technical Support services ordered by Customer will be provided under
Oracle's Technical Support policies in effect on the date Technical Support
is ordered.
3.2. CONSULTING AND TRAINING SERVICES
Oracle will provide consulting and training services agreed to by the
parties under the terms of this Agreement. All consulting services shall
be billed on a time and materials basis unless the parties expressly agree
otherwise in writing.
3.3. INCIDENTAL EXPENSES
For any on-site services requested by Customer, Customer shall reimburse
Oracle for actual, reasonable travel and out-of-pocket expenses incurred.
IV. TERM AND TERMINATION
4.1. TERM
If not otherwise specified on the Order Form, this Agreement and each
Program license granted under this Agreement shall continue perpetually
unless terminated under this Article IV.
4.2. TERMINATION BY CUSTOMER
Customer may terminate any Program license at any time; however,
termination shall not relieve Customer's obligations specified in Section
4.4.
4.3. TERMINATION BY ORACLE
Oracle may terminate this Agreement or any license upon written notice if
Customer materially breaches this Agreement and fails to correct the breach
within 30 days following written notice specifying the breach.
4.4. EFFECT OF TERMINATION
Termination of this Agreement or any license shall not limit either party
from pursuing other remedies available to it, including injunctive relief,
nor shall such termination relieve Customer's obligation to pay all fees
that have accrued or are otherwise owed by Customer under any Order Form.
The parties' rights and obligations under Sections 2.1.B, 2.1.C, and
2.2.B, and Articles IV, V, VI and VII shall survive termination of this
Agreement. Upon termination, Customer shall cease using, and shall return
or destroy, all copies of the applicable Programs.
V. INDEMNITY, WARRANTIES, REMEDIES
5.1. INFRINGEMENT INDEMNITY
Oracle will defend and indemnify Customer against a claim that the Programs
infringe a copyright or patent or other intellectual property right,
provided that: (a) Customer 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) Customer provides Oracle with the
assistance, information and authority necessary to perform Oracle's
obligations under this Section. Oracle will reimburse Customer's
reasonable out-of-pocket expenses incurred in providing such assistance.
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 Customer.
If 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 Customer 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
5.1 states Oracle's entire liability and Customer's exclusive remedy for
infringement.
5.2. WARRANTIES AND DISCLAIMERS
A. Program Warranty
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, training and
consulting 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
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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."
5.3. EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 5.2, Customer'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, Customer
shall be entitled to terminate the Program license and 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, Customer shall be entitled to recover the fees
paid to Oracle for the unsatisfactory services.
VI. PAYMENT PROVISIONS
6.1. INVOICING AND PAYMENT
All fees shall be due and payable 30 days from the invoice date. Customer
agrees to pay applicable media and shipping charges. Customer shall issue a
purchase order, or alternative document acceptable to Oracle, on or before
the Effective Date of the applicable Order Form.
6.2. 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 or services granted in this Agreement or on Customer's use of
Programs or services, then such taxes shall be billed to and paid by
Customer. This Section shall not apply to taxes based on Oracle's income.
VII. GENERAL TERMS
7.1. 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. Customer 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.
7.2. GOVERNING LAW
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the laws of the State of California.
7.3. JURISDICTION
Any legal action or proceeding relating to this Agreement shall be
instituted in a state or federal court in San Francisco or San Mateo
County, California. Oracle and Customer agree to submit to the
jurisdiction of, and agree that venue is proper in, these courts in any
such legal action or proceeding.
7.4. 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 Customer) or to the Oracle address on the Order Form (if
to Oracle).
To expedite order processing, Customer agrees that Oracle may treat
documents faxed by Customer to Oracle as original documents; nevertheless,
either party may require the other to exchange original signed documents.
7.5. 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 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 CUSTOMER UNDER THIS
AGREEMENT, AND IF SUCH DAMAGES
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RESULT FROM CUSTOMER'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
Customer. Oracle's pricing reflects this allocation of risk and the
limitation of liability specified herein.
7.6. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable,
the remaining provisions of this Agreement will remain in full force.
7.7. 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 nonpayment 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.
7.8. EXPORT ADMINISTRATION
Customer agrees to comply fully with all relevant export laws and
regulations of the United States ("Export Laws") to assure that neither the
Programs nor any direct product thereof are (1) exported, directly or
indirectly, in violation of Export Laws; or (2) are intended to be used for
any purposes prohibited by the Export Laws, including, without limitation,
nuclear, chemical, or biological weapons proliferation.
7.9. 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 Customer purchase order or other ordering
document. This Agreement shall also supersede all terms of any unsigned or
"shrinkwrap" license included in any package, media, or electronic version
of Oracle-furnished software and any such software shall be licensed under
the terms of this Agreement, provided that the use limitations contained in
an unsigned ordering document shall be effective for the specified
licenses.
The Effective Date of this Agreement shall be _______________________.
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EXECUTED BY CUSTOMER: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ Michael B. Smith Authorized Signature: /s/ Shelley S. Curtis
Name: /s/ Michael B. Smith Name: Shelley S. Curtis
Title: Vice-President Title: Assistant General Counsel
Address: 1331 Lamar, Suite 1650, Houston, TX 77010 Address: 500 Oracle Parkway, Redwood City, CA
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Oracle is a registered trademark of Oracle Corporation
13006-6199
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Amendment One
to the
Oracle Software License and Services Agreement
between
Oracle Corporation
and
Novistar, Inc.
This document ("Amendment One"), amends the Oracle Software License and Services
Agreement (the "Agreement") between Oracle Corporation, a Delaware corporation
("Oracle") and Novistar, Inc., a Delaware corporation ("Customer"), dated
February 18, 2000:
Amend the Agreement as follows:
1. In Section 2.1(A)(i), delete the words "on the Designated System or
on a backup system, if the Designated System is inoperative".
2. In Section 6.2, at the end of the last sentence, after "Oracle's
income", add ", real estate, or capital stock".
3. Add the following new Section 7.10:
"7.10 Source Code Escrow
Oracle shall retain in escrow a copy of the source code necessary to
support the Programs. The current escrow agent is Data Securities
International. The escrowed material shall be maintained under an
agreement which provides that if Oracle ceases to be in the business
of supporting the Programs, the escrow agent shall furnish the
Customer with a copy of the escrowed material that has become
unsupported. Customer shall pay the escrow agent a nominal fee
sufficient to cover the cost of reasonable administrative expenses,
including reproduction and distribution. Any escrowed material
furnished under this provision shall be considered subject to the
terms and conditions of this Agreement, and shall be used solely to
maintain the Programs."
Subject to the modifications of this Amendment One, the Agreement shall remain
in full force and effect.
The Effective Date of this Amendment One is February 18, 2000.
NOVISTAR, INC. ORACLE CORPORATION
By: /s/ Michael B. Smith By: /s/ Shelley S. Curtis
------------------------- --------------------------
Name: Michael B. Smith Name: Shelley S. Curtis
Title: Vice President Title: Assistant General Counsel
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