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EXHIBIT 10.3
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 back up system if the Designated System is unoperative, 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.
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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 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 copies;
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 subject Oracle to liability;
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
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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 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
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 Addendum
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
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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
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 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
material 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."
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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; the Alliance Member will have no
rights in such marks except as expressly set forth herein and as specified
in writing 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 of which Oracle has notified Alliance Member in writing, 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.
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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 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 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.
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.
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The Effective Date of this Agreement shall be _________________________________
_______________________.
EXECUTED BY THE ALLIANCE MEMBER:
-------------------------------- EXECUTED BY ORACLE CORPORATION:
Authorized Signature: Authorized Signature:
/s/ Michael B. Smith /s/ Shelley S. Curtis
-------------------------------- --------------------------------
Name: Michael B. Smith Name: Shelley S. Curtis
-------------------------------- --------------------------------
Title: Vice President Title: Assistant General Counsel
-------------------------------- --------------------------------
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
ORACLE ALLIANCE AGREEMENT
between
NOVISTAR, INC.
and
ORACLE CORPORATION
This document ("Amendment One") shall serve to amend the Oracle Alliance
Agreement and any amendments and addenda thereto between Novistar, Inc. (the
"Alliance Member") and Oracle Corporation ("Oracle") dated February 18, 2000
(the "Agreement").
The Agreement is hereby amended as follows:
1. The following shall be inserted at the end of the introductory paragraph of
the Addendum:
"The term `Alliance Member' for purposes of this Addendum shall include the
Alliance Member and the Alliance Member's wholly and majority owned
subsidiaries as of the Effective Date which agree in writing to be bound by
the terms of the Agreement. Alliance Member may add additional wholly or
majority owned subsidiaries with Oracle's prior written consent not to be
unreasonably withheld. Any such additional wholly or majority owned
subsidiaries must agree in writing to be bound by the terms of the
Agreement."
2. Replace Section 2.2(A) with the following:
"A. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package;"
3. In Section 2.2(C) after "to use" in the first line, add "and copy for use".
4. In Section 2.3(C)(1) after "unethical practices" add ", or any other
practices".
5. In Section 2.4 add the following as a new second paragraph:
"However, nothing provided in this Paragraph 2.4 shall prevent the
Alliance Member from remotely accessing a Value-Added Package, installed on
another CPU pursuant to the terms of this Agreement, solely for the purpose
of demonstrating the functionality of the Value-Added Package to a
prospective Sublicensee. Any such demonstration shall be conducted and
controlled by the Alliance Member's employees."
6. In Section 2.5 add the following to the end of the paragraph:
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"The Alliance Member shall retain all title, copyrights, and other
intellectual property rights in the Value-Added Package, and in any
translations thereof."
7. In Section 4.4, at the end of the last sentence, after "Oracle's income",
add ", real estate, or capital stock".
8. The following shall be added to the end of the first paragraph of Section
6.5:
"Expiration or termination of a Sublicense Addendum or this Agreement shall
not affect any sublicense rights granted by Alliance Member to
Sublicensees."
9. In Section 7.4 after "Alliance Member agrees" add "to use all commercially
reasonable means available".
10. In Section 7.4(B) add the following to the end of the paragraph:
"The Alliance Member's obligations to defend and indemnify Oracle hereunder
shall apply provided that: (a) Oracle notifies the Alliance Member in
writing within thirty (30) days of the claim; (b) the Alliance Member has
sole control of the defense and all related settlement negotiations; and
(c) Oracle provides the Alliance Member with assistance, information and
authority necessary to perform Alliance Member's obligations under this
Section. Reasonable out-of-pocket expenses incurred by Oracle in providing
such assistance will be reimbursed by the Alliance Member."
11. In Section 8.3, at the end of the second sentence of the first paragraph
add the following:
", provided that, upon request by Alliance Member, Oracle shall make
available to the Alliance Member a copy of Oracle's then-current trademark
policies and procedures."
12. In Section 8.10, at the beginning of the first and second sentences of the
first paragraph, add the phrase "Except as provided in Section 7.1,".
13. Add the following new Section 8.15:
"8.15 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
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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 maintian the
Programs."
Other than the modifications set forth above, the terms and conditions of the
Agreement remain unchanged and 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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