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EXHIBIT 10.4
[Oracle Logo]
FULL USE SUBLICENSE ADDENDUM
This document (the "Addendum") is between Oracle Corporation ("Oracle") and
Novistar, Inc. (the "Alliance Member") and shall be governed by the terms of the
Oracle Alliance Agreement between the Alliance Member and Oracle effective
February 18, 2000 (the "Agreement") and the terms set forth below.
1. PROGRAM DISTRIBUTION
1.1 SUBLICENSE OF PROGRAMS AND TERMS
The Alliance Member shall have the right to market and grant Sublicenses
of Full Use Programs which are available in production release and listed
on Oracle's Price List in effect at the time the Programs are ordered from
Oracle to Sublicense to a Sublicensee; provided, however, the Alliance
Member shall have no right to Sublicense any Programs designated as Oracle
Applications Programs, Oracle Express Programs, Limited Production Programs
or other Programs without the prior written consent of Oracle. The Alliance
Member shall have the right to market and grant Sublicenses of Full Use
Programs for use on Designated Systems in conjunction with the Integrated
System to Sublicensees. Each copy of the Full Use Programs distributed
shall be for the Sublicensee's own internal use in the Territory only on a
single Designated System limited to a maximum number of Users.
To acquire Programs for Sublicensing to Sublicensees, the Alliance Member
shall order such Programs from Oracle. Each order shall specify the
applicable Programs, maximum number of Users, computer/operating system
configuration, fees, shipping location, and any other information required
by Oracle for processing the order. Orders for Trial Sublicenses shall be
clearly marked on the face of the Order Form.
1.2 DISTRIBUTION UNDER ORACLE AGREEMENT
In addition to the Sublicense rights specified in Section 2.3.A of the
Agreement and notwithstanding the terms of such Section and Section 2.3.B
of the Agreement, the Alliance Member shall have the right to market and
grant Sublicenses of Full Use Programs in conjunction with the Integrated
System to Sublicensees under the then-current standard Oracle License
Agreement which is located at http://alliance.oracle.com.
With each order, the Alliance Member shall confirm that the Programs will
be licensed to the Sublicensee subject to the terms of either an existing
Software License and Services Agreement effective between the Sublicensee
and Oracle, or the terms of the then-current standard Oracle License
Agreement (the "Oracle Agreement"). As part of sublicensing under the
Oracle Agreement, the Alliance Member shall obtain the Sublicensee's
written or on-line agreement that the ordered Programs and services are
subject to the terms and conditions of the Oracle Agreement.
If the Sublicensee is a federal agency, the Alliance Member shall submit
with each such order a written document executed by an authorized
Sublicensee contracting officer which contains the following provision:
"This is an open market order placed pursuant to terms identical to the
terms and conditions of Oracle's General Services Administration (GSA)
Schedule A Contract for Oracle Programs current as of the order date, with
the exception of the maximum order limitations, discounts, maintenance,
training units and other discounts specific to the applicable Oracle GSA
Schedule. No other pre-printed or reference terms and conditions shall
apply." This written document shall be deemed the applicable Oracle
Agreement.
The Alliance Member shall indemnify Oracle for any claims, damages, or
losses arising from failure to obtain any Oracle Agreement.
If the order specifies that the Programs are to be delivered to the
Alliance Member, the Alliance Member shall have the right to re-deliver the
Programs with their original packaging to the applicable Sublicensee.
1.3 FULL USE PROGRAMS
For the purposes of this Addendum, "Full Use Programs" shall mean
unaltered versions of the Programs with all functions intact.
1.4 VALUE-ADDED PACKAGE
For the purposes of this Addendum, "Integrated System" shall mean the
hardware and software products having Value-Added which are developed,
sold, and/or licensed with the Programs to a Sublicensee by the Alliance
Member to satisfy such Sublicensee's internal business requirements and
objectives. For purposes of the Agreement, the Integrated System will be
regarded as the Alliance Member's Value-Added Package which is described in
the attached Value-Added Attachment. The Integrated System shall be
regarded as "Value-Added" if the following materials are provided as part
of the Integrated System by the Alliance Member: (a) non-Oracle developed
software; (b) customized programming or customized consulting; or (c) other
computer products or components.
1.5 TRIAL SUBLICENSES
The Alliance Member shall be entitled to grant, at no charge, up to ten
(10) temporary Trial Sublicenses of the Programs at any one time. Such
Sublicenses shall be for evaluation purposes only and shall be for a period
not to exceed thirty (30) days. The Alliance Member shall pay Oracle
Sublicense fees for any Trial Sublicenses in excess of thirty (30) days.
Each such Trial Sublicense shall be Sublicensed under a Sublicense
agreement which provides for such trial use or under an Oracle Trial
License Agreement, as the applicable Oracle Agreement.
1.6 NO DISTRIBUTORS
The Alliance Member's right to market and grant Sublicenses of Full Use
Programs hereunder shall be limited to the Alliance Member only. The
Alliance Member shall not appoint any third party to distribute the
Programs without Oracle's prior written consent.
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1.7 DOCUMENTATION
Oracle shall deliver one copy of the applicable Documentation with each
order of Programs for Sublicensing to Sublicensees.
2. SUBLICENSE FEES
2.1 SUBLICENSE FEES AND RATE
For each copy of the Programs Sublicensed by the Alliance Member, the
Alliance Member agrees to pay Oracle a Sublicense fee for each such
Program, as specified in the applicable Price List and Alliance Member
Price List supplement to such Price List in effect at the time the
applicable Programs are Sublicensed to a Sublicensee. Alliance Member's
Sublicense fee shall be discounted in accordance with the Discount Schedule
for License and Technical Support Fees attached hereto as Exhibit A. The
Sublicense fee shall be calculated effective on the date of the Sublicense,
which shall be the date the Programs are shipped by Oracle or the effective
date of the order to Oracle for such Programs, if no shipment is required.
Fees for Sublicense of Programs shall be due and payable thirty (30) days
from the invoice date. 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.
2.2 PRICE LIST
As set forth in the Agreement, the applicable Price List for determining
Sublicense fees shall be the standard Price List in effect at the time the
Program is Sublicensed to a Sublicensee. However, pricing for any federal
agency, pursuant to terms and conditions identical to the terms and
conditions of Oracle's GSA Schedule A Contract for Oracle Programs current
as of the order date, shall be based on Oracle's published GSA Price List.
Notwithstanding any other provision of this Agreement, if the Alliance
Member issues a written Sublicense quote and such quote is accepted by the
applicable Sublicensee, for a period of ninety (90) days after the date of
submission of the quote to the Sublicensee, the fee applicable to the
Programs identified in the quote shall be based on the Price List in effect
on such date.
2.3 USERS
The fees for Sublicense of a Program shall be based and priced on the
applicable User Level for the maximum number of Users for such Program, as
specified in the Price List. The Alliance Member shall have the right to
Sublicense on any User basis specified in the Price List in effect at the
time the applicable Program is Sublicensed to a Sublicensee.
3. TERM
This Addendum shall become effective on the Effective Date of this
Addendum and shall be valid for three (3) years (the "Term"), unless
terminated as provided in the Agreement. Any renewal of this Addendum shall
be subject to renegotiation of terms and fees.
4. TERRITORY
The Alliance Member shall have the right to market and grant Sublicenses
of Full Use Programs in the United States only (the "Territory").
5. TECHNICAL SUPPORT
5.1 TECHNICAL SUPPORT FOR SUBLICENSEES
A Sublicensee may acquire Technical Support services for Full Use
Programs Sublicensed under this Addendum from Oracle at Oracle's standard
rates and fee in effect at the time such Technical Support services are
ordered under an Oracle Technical Support Services Agreement or Oracle
Agreement, as applicable.
5.2 TECHNICAL SUPPORT FEES
Oracle agrees that the Alliance Member shall have the right to offer
Oracle annual Technical Support services to Sublicensees in the United
States that are currently acquiring Full Use Programs. The Alliance Member
shall only offer Oracle Technical Support services with respect to the
initial first year of Technical Support for a Sublicensed Program. The
Alliance Member shall only offer Oracle annual Technical Support services
to a Sublicensee provided that:
A. Oracle receives from the Sublicensee an executed, standard Oracle
Technical Support Services Agreement, Oracle Agreement, or other terms
to govern the Technical Support services as agreed to in writing by
Oracle and the Sublicensee;
B. The Full Use Programs are currently Sublicensed by the Alliance Member;
C. The Alliance Member pays Oracle its required Sublicense fee for the
applicable Sublicensed Programs as provided under the Agreement, and
the Alliance Member pays Oracle the applicable Technical Support
services fees as set forth herein in advance;
D. The Alliance Member's Sublicense of the Full Use Programs coincides
with the agreement to provide Technical Support Services for such
Programs; and
E. The net Technical Support services fees represent new Technical Support
revenue to Oracle.
The Technical Support services fees payable by Alliance Member as
provided above shall be Oracle's standard rates for such services as
provided under the Price List in effect at the time the Technical Support
services are ordered, discounted in accordance with the Discount Schedule
for License and Technical Support Fees attached hereto as Exhibit A.
6. SUBLICENSE REPORTS
With each order for Programs for Sublicense to a Sublicensee, the
Alliance Member shall send Oracle a report detailing for each Sublicensed
Full Use Program: Sublicensee name, address, make/model and operating
system of the Designated System, Full Use Programs, maximum number of
licensed Users, whether the Sublicense is a Trial Sublicense, total Program
fees and Technical Support Fees due to Oracle and specific descriptions of
the Integrated System and Value-Added.
7. ADDITIONAL LICENSES
During the Term, the Alliance Member may order production release
versions of Oracle off-the-shelf Programs available as production release
as of the Effective Date of this Addendum and listed on the Price List in
effect as of such date. The license fee for Development Licenses shall be
equal to Oracle's standard list license fees in effect when an order is
placed. The Alliance Member shall have the right to order Programs for use
as Marketing Support Licenses at no further charge to the Alliance Member.
The Alliance Member may obtain Technical Support services from Oracle for
such Programs under Oracle's applicable Technical Support fees and policies
in effect when such services are ordered.
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The Effective Date of this Addendum shall be February 18, 2000.
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<S> <C>
EXECUTED BY THE ALLIANCE MEMBER: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ Michael B. Smith Authorized Signature: /s/ Shelley S. Curtis
----------------------- -----------------------------
Name: Michael B. Smith Name: Shelley S. Curtis
--------------------------------------- ----------------------------------------------
Title: Vice-President Title: Assistant General Counsel
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</TABLE>
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(650) 506-7000
Oracle is a registered trademark of Oracle Corporation.
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AMENDMENT ONE
TO THE
FULL USE SUBLICENSE ADDENDUM
BETWEEN
ORACLE CORPORATION
AND
NOVISTAR, INC.
This document ("Amendment One"), shall serve to amend the Full Use Sublicense
Addendum dated February 18, 2000 (the "Addendum") to the Oracle Alliance
Agreement between Novistar, Inc. (the "Alliance Member") and Oracle Corporation
("Oracle") dated February 18, 2000 (the "Agreement").
The Addendum is amended as follows:
1. In the last sentence of Section 1.4, replace the word "and" before
(c) with "or."
2. Add the following after the first sentence of Section 2.1:
"Notwithstanding Section 1.1 of the Addendum, Oracle may consent
in writing to, on a deal by deal basis and in Oracle's sole discretion, allowing
Alliance Member to Sublicense the Oracle Financial Application Programs listed
below to a Sublicensee subject to the terms and conditions of the Agreement.
Alliance Member may grant Sublicenses of Full Use Oracle Financial Application
Programs listed below which are available in production release and listed on
Oracle's Price List in effect at the time such Financial Application Programs
are ordered from Oracle to Sublicense. For each copy of the Oracle Financials
Applications Programs Sublicensed by the Alliance Member, the Alliance Member
agrees to pay Oracle a Sublicense fee equal to seventy-five percent (75%) of the
applicable license fee for each such Program, as specified in the applicable
Price List in effect at the time the applicable Programs are Sublicensed to a
Sublicensee."
ORACLE FINANCIAL APPLICATIONS PROGRAMS
ORACLE ENERGY GENERAL LEDGER
ORACLE ENERGY PAYABLES
ORACLE ENERGY RECEIVABLES/REVENUE ACCOUNTING
ORACLE ENERGY FIXED ASSETS
ORACLE ENERGY INVENTORY
ORACLE ENERGY PURCHASING
Notwithstanding Section 1.1 of the Addendum, Alliance Member
shall have the right to Sublicense the Oracle Tutor Programs only to
Sublicensees who have previously licensed, or are simultaneously licensing the
Alliance Member Programs listed below. Such Sublicensing by Alliance Member of
Oracle Tutor Programs shall be in accordance with the terms of the Agreement and
the Tutor Program Order Form Attachment. Alliance Member may grant Sublicenses
of Full Use Oracle Tutor Programs which are available in production release and
listed on Oracle's Price List in effect at the time such Tutor Programs are
ordered from Oracle to Sublicense. For each copy of the Oracle Tutor Programs
Sublicensed by Alliance Member, Alliance Member agrees to pay Oracle a
Sublicense fee equal to seventy-five percent (75%) of the applicable license fee
for each such Program, as specified in the applicable Price List in effect at
the time the applicable Programs are Sublicensed to a Sublicensee.
ALLIANCE MEMBER PROGRAMS
PRODUCTION MANAGEMENT
SETTLEMENT
PARTNER BALANCING
LAND AND CONCESSIONS
SUPPLY PLANNING
JOINT VENTURE ACCOUNTING
AUTHORIZATION FOR EXPENDITURE
REGULATORY REPORTING
FIRST PURCHASER
BASE
UPA"
3. Delete the second sentence of Section 7 and insert the following:
"The license fee for Development Licenses shall be at a discount of
fifty percent (50%) off Oracle's standard list license fees in effect
when an order is placed."
Other than the modifications set forth above, the terms and conditions
of the Addendum remain unchanged, and in full force and effect.
The Effective Date of this Amendment One is February 18, 2000.
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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
