<PAGE>
EXHIBIT 10.6
SALES ADDENDUM
This Sales Addendum (this "Addendum") is between Oracle Corporation ("Oracle"),
with its principal place of business at 500 Oracle Parkway, Redwood City,
California 94065, and Novistar, Inc. ("Novistar"), with its principal place of
business at 1331 Lamar Street, Suite 1600, Houston, Texas 77010. This Addendum
shall be governed by the terms of the Software License and Services Agreement
between Novistar and Oracle (the "SLSA") dated February 18, 2000 and the terms
set forth below. Except as otherwise specified in this Addendum, in the event
of conflict between this Addendum and the SLSA, the provisions of this Addendum
shall control. This Addendum is effective as of February 18, 2000 (the
"Effective Date").
ARTICLE I - DEFINITIONS
1.1 CUSTOMER
"Customer" means the customer to whom Oracle has granted a license for an
Oracle Program, or to whom Novistar has granted a license for a Novistar
Program or an Oracle Program, pursuant to the terms of this Addendum.
1.2 DISTRIBUTOR
"Distributor" means, 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 Financial Programs, or (b) for Novistar, a third
party that is appointed by Novistar or its Distributor to market and
sublicense the Novistar Programs. The term "Distributor" shall include, but
not be limited to, resellers, original equipment manufacturers, value-added
relicensors, dealers, agents, and subdistributors.
1.3 INTELLECTUAL PROPERTY RIGHTS
"Intellectual Property Rights" means patents, copyrights, trade secrets,
and any other intellectual property rights recognized by the law of each
applicable jurisdiction.
1.4 NOVISTAR PROGRAMS
"Novistar Programs" means (a) the computer programs owned or distributed by
Novistar, formerly known as Oracle's Energy Upstream Applications listed on
Exhibit A or any Novistar Program developed or existing in the future which
includes substantially similar functionality, for use in connection with
the Oracle Financial Programs; (b) the installation guides, user guides and
manuals for use of such software ("Documentation"); and (c) Novistar's
Updates. "Novistar Programs" means only the Object Materials for such
programs (not Source Materials) unless otherwise expressly specified.
1.6 OBJECT MATERIALS
"Object Materials" means materials, in machine-readable form, necessary to
run the Oracle Financial Programs, the Novistar Programs or other products
of Novistar 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 Financial Programs within a
country.
1.8 ORACLE DATABASE PROGRAMS
"Oracle Database Programs" means the computer programs owned or distributed
by Oracle which are listed in Exhibit E or any Oracle Programs developed or
existing in the future which include substantially similar functionality,
and that are available in production release and listed in Oracle's Global
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 Database
Programs" means only the Object Materials for such Programs (not Source
Materials) unless otherwise expressly specified.
Page: 1
<PAGE>
1.9 ORACLE FINANCIAL PROGRAMS
"Oracle Financial Programs" means the computer programs owned or
distributed by Oracle which are listed on Exhibit B or any Oracle Programs
developed or existing in the future which include substantially similar
functionality, and that are available in production release and listed in
Oracle's Global Price List for use on the applicable computer/operating
system combinations; the Documentation; and Oracle's Updates. "Oracle
Financial Programs" means only the Object Materials for such Programs (not
Source Materials) unless otherwise expressly specified.
1.10 SOURCE MATERIALS
"Source Materials" means the source code from which Object Materials, as
applicable, are compiled, including without limitation the following, as
may be reasonably necessary to enable each party to fulfill its obligations
under this Addendum: 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.
1.11 SUPPORTED LICENSE
"Supported License" means a license for an Oracle Program or a Novistar
Program for which the licensee has ordered Technical Support for the
relevant time period.
1.12 TECHNICAL SUPPORT
"Technical Support" means support, maintenance and enhancements for an
Oracle Program or a Novistar Program provided under Oracle's or Novistar's
policies, as applicable, in effect on the date Technical Support is
ordered.
1.13 TERRITORY
"Territory" means the world.
1.14 UPDATES
"Updates" means a subsequent release of an Oracle Financial or Database
Program or a Novistar 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 Novistar licenses separately and/or for which Oracle or
Novistar charges.
ARTICLE II - MARKETING AND SALES TERMS
2.1 MARKETING AND SALES MODEL
2.1.1 Marketing Plan. Within ninety (90) calendar days after the Effective
Date, the parties shall cooperate in good faith to develop a written
plan for cooperative marketing of the Oracle Financial Programs and
the Novistar Programs ("Marketing Plan"). The parties shall split
equally any costs of the Marketing Plan unless otherwise agreed to
between the parties on a case-by-case basis. Except as mutually
agreed and budgeted for in the Marketing Plan, neither party shall
have any 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
marketing its own products, and may discontinue marketing its own
products at any time. Novistar will assign Tim McHugh as the
Novistar Marketing Manager for the Marketing Plan, and Oracle will
assign Lori Silva as the Oracle Marketing Manager for the Marketing
Plan. A party may assign a new Marketing Manager upon notice to the
other party.
2.1.2 Sales Model. With respect to sales opportunities with Customers for
Novistar Programs and Oracle Financial Programs, the parties will
pursue such opportunities in good faith as follows:
a. If a sale to a Customer involves only Oracle Financial Programs,
then Oracle will be responsible for the entire sales cycle.
b. If a sale involves only Novistar Programs, then Novistar will be
responsible for the entire sales cycle.
Page: 2
<PAGE>
c. If a sale involves both Oracle Programs and Novistar Programs in
a traditional license environment (i.e. no Hosting Services or
Outsourcing Services are involved), then Novistar and Oracle will
jointly devise and agree upon a sales plan with Novistar
providing pre-sales support for the Novistar Programs and Oracle
providing pre-sales support for the Oracle Programs.
d. If a sale involves both Oracle Programs and Novistar Programs in
an offering including Hosting Services or Outsourcing Services,
then Novistar will lead the entire sales cycle for the Programs
with Novistar providing pre-sales support for the Novistar
Programs and Oracle Programs. Oracle may, at its discretion, for
key strategic accounts, provide pre-sales support for Oracle
Programs where Novistar Programs and Oracle Programs are offered
in a Hosting Services environment.
2.1.3 Sales Coordination: Pipeline reviews (with applicable Sales Reports
as described in Section 2.1.4 below), sales planning, and sales
coordination will be addressed during a monthly sales meeting (or
different frequency agreed upon by both parties) with the intention
of (i) defining roles and responsibilities for each sale
opportunity, (ii) for new sales opportunities, deciding on the
appropriate "Sales Model" pursuant to Section 2.1.2 above given the
particular sales opportunity, (iii) for existing sales
opportunities, determining whether or not the current Sales Model is
still the appropriate Sales Model, and (iv) resolving any sales
issues. The agreed-upon information relating to the issues above
shall be reflected in the Sales Pipeline reports described in
Section 2.1.4 below. Novistar and Oracle will both assign a Sales
Vice President or equivalent to act as the primary Sales Manager for
sales issues, to attend such monthly meetings and to ensure
execution of the applicable Sales Model. The Oracle Sales Manager
will be responsible for assigning an appropriate Oracle person for
sales opportunities outside of his or her direct supervision to be
available to Novistar for executing the Sales Model and, if needed,
for monthly sales meetings. Novistar will assign Tim McHugh as the
Novistar Sales Manager and Oracle will assign Mark Tombridge as the
Oracle Sales Manager. A party may assign a new Sales Manager upon
notice to the other party.
2.1.4 Sales Reports. Each month or quarter, as designated below (or as
otherwise agreed to by the parties), Oracle or Novistar (as
specified below) shall each provide a written report to the other
specifying:
a. Novistar Sales Pipeline. Each month, Novistar shall provide to
Oracle all pending or prospective Novistar Program sales in the
360 day pipeline including the names of the prospective
Customers; the products; the anticipated dollar amounts of the
sales; the agreed-upon Sales Model pursuant to Section 2.1.2
above; whether it is a traditional license sale or involved
Hosting Services or Outsourcing Services; the anticipated sale
closing date; probability of winning the sale; and description of
any key sales issues.
b. Oracle Financial Program Sales Pipeline: Each month, Oracle
shall provide to Novistar all pending or prospective Oracle
Financial Program sales to companies engaged in the Upstream Oil
& Gas Business (as defined below) in the 360 day pipeline
including the names of the prospective Customers; the products;
the anticipated dollar amounts of the sales; the agreed-upon
Sales Model pursuant to Section 2.1.2 above; the anticipated sale
closing date; probability of winning the sale; and description of
any key sales issues.
c. Existing Customer Status. Each quarter, each party shall report
to the other party the status of all existing Novistar Program
licensee accounts in connection with Oracle Financial Programs
for which the reporting party is the primary contact, including
referenceability of the accounts and status of Novistar Program
implementations.
d. Deal Completion Report. Each month, Novistar shall provide to
Oracle a report of all orders for Novistar Program licenses
signed during that month. Novistar will use commercially
reasonable efforts to provide such report within five (5) days
after the end of each month.
2.2 SALES MANAGEMENT AND ADMINISTRATIVE MANAGEMENT
2.2.1 The Sales Managers shall annually schedule a meeting with both
parties' appropriate senior-level manager ("Administrative Manager")
to conduct a strategic review of operation issues, sales issues, and
the relationship of the parties under this Addendum.
Page: 3
<PAGE>
2.2.2. Novistar will assign Nicole Parsons as the Novistar Administrative
Manager and Oracle will assign Lori Silva as the Oracle
Administrative Manager. A party may assign a new Administrative
Manager upon notice to the other party.
2.3 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, consulting operations,
development, technical support) who shall meet for the purpose of
endeavoring to resolve such dispute, or negotiate for an adjustment to such
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 the executive sponsor of the aggrieved party in good faith concludes,
after a good faith attempt to resolve the dispute, that amicable resolution
through continued negotiation does not appear likely.
2.4 CUSTOMER ADVISORY BOARD AND ALIGNMENT MEETINGS
For the six months following the execution of this Agreement, Novistar will
invite the Oracle Sales Manager (or his/her designee) to all Novistar
Customer advisory board meetings. Novistar will make commercially
reasonable efforts to ensure that all public statements made to the
Novistar Customer advisory board regarding the Oracle Financial Programs
and the Novistar Programs will be consistent with Oracle public statements.
ARTICLE III - DELIVERY
3.1 DELIVERY PLAN
Novistar shall update Oracle on at least a quarterly basis on Novistar's
delivery and development plans (e.g., the release schedule of the Novistar
Programs, schedules for execution of the delivery plan, and content of each
release). Such information shall be subject to the provisions of Section
10.1 of this Addendum. The first of such plans shall be provided to Oracle
on March 1, 2000.
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 in this Addendum, or in another
document signed by the parties.
3.2.2 Novistar Responsibilities. Novistar shall use commercially
reasonable efforts to:
a. Be responsible for ongoing development of the Novistar Programs
and integration of the Novistar Programs with the Oracle
Financial Programs, including providing resources for such
development and integration.
b. Provide domain expertise for the Novistar Programs to Oracle at
Novistar standard rates.
c. Provide at standard rates a senior-level database administrator,
systems administrator, to assist in the initial installation of
Novistar Programs at Oracle, and, in the course of such
installation, to allow a reasonable number of Oracle development
and database administration personnel to view and ask questions
with respect to such installation.
d. Perform integration of the Novistar Programs to the Oracle
Financial Programs. Novistar shall integrate Novistar Programs
(and Updates or upgrades thereto) with any upgraded releases of
the Oracle Financial Programs (and Updates thereto) so that the
integrated version of Novistar Programs is available in
production release as soon as commercially reasonable, but prior
to the de-support by Oracle of the prior release of the
designated Oracle Financial Programs.
e. Novistar will support the latest release of any Oracle product
embedded in a Novistar application within one (1) year of a given
release becoming generally available by upgrading to the latest
version of the Oracle RDBMS and tools.
3.3 UPGRADES AND RELEASE MANAGEMENT
3.3.1 Novistar Responsibilities.
Page: 4
<PAGE>
Novistar shall not release the Novistar Programs as Oracle products,
or identify versions of Novistar Programs released by Novistar as
Oracle products. However, for nine (9) months from the Effective
Date of this Addendum, Novistar shall be entitled to use the phrase,
"formerly known as Oracle Energy Upstream" in referring to the
Novistar Programs which Novistar acquired from Oracle.
3.3.2 Mutual Responsibilities.
a. Oracle and Novistar 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 Novistar
is available via pager during any period when Customers are going
live with Novistar Programs that have integration with the Oracle
Financial Programs.
b. Each party shall provide upgrade paths from existing releases to
each successive release (including all ports and translations)
that is designated in the Delivery Plan.
ARTICLE IV - LICENSES GRANTED
4.1 LICENSE TO NOVISTAR
Oracle shall license the Oracle Financial Programs to Novistar for the
purposes of marketing support as specified in this Addendum. Oracle grants
to Novistar a nontransferable license to reproduce, install, and use the
Oracle Financial Programs and Oracle Database Programs, including Updates
for the foregoing, for the purpose of enabling Novistar to perform its
technical support and integration responsibilities under this Addendum.
4.2 DEVELOPMENT, DEMONSTRATION LICENSE TO NOVISTAR
Oracle shall use commercially reasonable efforts to deliver to Novistar a
complete copy of the "beta" copy of any Update or future release of an
Oracle Financial Program, including a complete set of the Object Materials
and Documentation for such Update, at or about the time Oracle generally
makes the beta release generally available to customers for beta testing.
Oracle grants to Novistar a worldwide, royalty-free, non-exclusive,
nontransferable right and license to execute, copy, reproduce, display,
perform or otherwise use and/or maintain the Object Materials for the
purposes of integrating and testing the Novistar Programs with the Oracle
Financial Programs.
4.3 LICENSING, SHIPPING
4.3.1 Licensing. Each party shall license its respective programs to
Customers pursuant to each party's respective license agreements.
4.3.2 Shipment Right. Each party shall be responsible for shipping its own
product, and all subsequent Upgrades, patches, etc. to Customers.
4.4 LICENSE OF INTELLECTUAL PROPERTY RIGHTS
Each party grants to the other a nonexclusive, nontransferable and paid-up
license to all Intellectual Property Rights necessary to use the software,
documentation and other materials licensed by the granting party to the
other under this Addendum for the limited purposes stated in this Addendum.
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, except as
specified in the Delivery Plan for the purpose of achieving integration and
interoperability.
Page: 5
<PAGE>
4.6 OWNERSHIP
4.6.1. Novistar shall retain all right, title and interest to the
Intellectual Property Rights in the Novistar Programs. Oracle shall
retain all right, title and interest to the Intellectual Property
Rights in the Oracle Financial Programs. Except as provided in
Section 4.6.2 below, ownership rights relating to modifications,
enhancements, or any other derivative works of each party's Programs
shall be as set forth in the Services Subcontract Agreement attached
as Exhibit D.
4.6.2 Integration Code. It is the intent of the parties that each of them
either own, or have a perpetual right to use, modify and distribute
in any manner and for any purpose, all materials (including without
limitation program code, designs, and Documentation) developed for
the specific purpose of integrating or interfacing such party's
products with the other party's programs, which are incorporated
into versions of such party's products that it makes generally
available to its customers. If a party distributes the integration
code, the other party shall not have an obligation to provide
technical support for such integration code.
ARTICLE V - SALES FEES; HOSTING AND OUTSOURCING
5.1 SALES FEES
5.1.1 Amount of Sales Support Fees Payable relating to licensing of
Novistar Programs.
a. For each license by Novistar, or its Distributor, of a Novistar
Program (including any Novistar products which are renamed or
repackaged from any Novistar Program), Novistar shall pay to
Oracle a Sales Support Fee equal to one percent (1%) of the Net
Customer License Fees (as defined below) payable to Novistar by
Customers and by Distributors for such license.
b. For each license which includes Hosting Services (as defined
below) by Novistar, or its Distributor, of a Novistar product
(including but not limited to Novistar Programs), Novistar shall
pay to Oracle a Sales Support Fee equal to one percent (1%) of
the Net Customer Hosting Services Fees (as defined below)
payable to Novistar by Customers and by Distributors for the
first (1st) year of such Hosting Services. Novistar shall not be
required to pay to Oracle any Sales Support or other Fees after
the first (1st) year of such Hosting Services.
5.1.2 Acquisition and Use of Oracle Financial Programs Licenses in
Connection with Hosting Services and Outsourcing Services.
a. Purchase of Licenses by Novistar. If Novistar provides Hosting
Services or Outsourcing Services for the Novistar Programs,
Novistar may acquire from Oracle, and Oracle shall sell to
Novistar, non-exclusive licenses for Oracle Financial Programs
and Novistar shall have the right to provide Hosting Services or
Outsourcing Services for such Oracle Financial Programs subject
to the terms and conditions set forth herein. In order for
Novistar to acquire and provide Hosting Services or Outsourcing
Services for such Financial Programs:
1. the Customer itself, or the actual subsidiary or division of
the Customer to which Novistar will be providing the Hosting
Services or Outsourcing Services must be a company primarily
engaged in the Upstream Oil & Gas Industry (as hereinafter
defined);
Page: 6
<PAGE>
2. Novistar must be providing Hosting Services or Outsourcing
Services of Oracle Financial Programs simultaneously in
conjunction with providing Hosting Services or Outsourcing
Services for one or more of the Novistar Programs to the same
Customer;
3. For each license of an Oracle Financial Program acquired by
Novistar which will be used to provide Hosting Services or
Outsourcing Services to a particular Customer, Novistar shall
pay to Oracle the applicable list license fees for such
Programs pursuant to Oracle's then current U.S. and/or Global
Price List, less a discount of one percent (1%), and (ii) the
applicable list technical support fees for such Programs
pursuant to Oracle's Technical Support fees and policies in
effect when such services are ordered. In addition, if
Novistar is Hosting such Oracle Financial Programs and not
providing Outsourcing Services to the Customer, Novistar
shall pay to Oracle a Sales Support Fee equal to two percent
(2%) of the Net Customer Hosting Service Fees (as hereinafter
defined) for Oracle Financial Programs payable to Novistar by
Customers and by Distributors for the first (1st) year of
such Hosting Services.
4. Such licenses shall be governed by the terms of the
applicable Oracle Order Form between Oracle and Novistar,
provided that, such terms, shall include, without limitation,
the following: (i) Novistar agrees to be responsible and to
indemnify Oracle for all damages or losses resulting from the
breach by a Customer of this Addendum, the applicable Order
Form and the SLSA; (ii) Customer personnel and devices
accessing the Oracle Financial Programs Hosted or Outsourced
by Novistar shall be counted for purposes of licensing
limitations applying to the Oracle Financial Programs as
provided in the applicable Order Form; (iii) any licenses of
the Oracle Financial Programs being used to provide Hosting
Services or Outsourcing Services to a Customer may be used to
provide such Hosting Services or Outsourcing Services for
only such Customer, and may not be used for any other
Customer;
5. In the applicable Order Form, Novistar shall provide to
Oracle the name of the Customer and the number of licenses of
each of the Programs being (i)accessed by such Customer for
Hosting Services or (ii) to be used by Novistar and/or the
Customer in performing Outsourcing Services;
6. The Oracle Financial Program licenses acquired by Novistar
for the provision of Hosting Services or Outsourcing Services
for a Customer shall remain in effect until such time as the
Hosting Services or Outsourcing Services for the particular
Customer are terminated or otherwise cease, at which time
such licenses shall, unless transferred to the Customer,
terminate, and Novistar shall have no further right to use
such licenses for any purpose whatsoever; and
7. Novistar shall promptly notify Oracle of the termination of
Hosting Services or Outsourcing Services provided to a
customer, the number of licenses which are to be transferred
or terminated as a result of such termination of Hosting
Services or Outsourcing Services and the Order Form pursuant
to which such licenses were acquired by Novistar.
Oracle shall have the right, where Customer desires Hosting
Services or Outsourcing Services for the Oracle Financial
Programs simultaneously in conjunction with Hosting Services
or Outsourcing Services for the Novistar Programs, to provide
pre-sales support for the Oracle Financial Programs. In
addition to the rights granted above, Oracle may consent in
writing to, on a deal by deal basis and in Oracle's sole
discretion, allowing Novistar to license in Novistar's name
the Oracle Financial Programs and to use such Oracle
Financial Program licenses to provide Hosting Services or
Outsourcing Services for a particular Customer. The terms of
such licensing shall be subject to such fees and Order Forms
as Oracle and Novistar shall agree.
b. Use of Licenses of Oracle Financial Programs Owned or Acquired
by Customer. If Novistar provides Hosting Services or
Outsourcing Services for the Novistar Programs
Page: 7
<PAGE>
to a Customer who owns licenses for the Oracle Financial
Programs or who is acquiring licenses for such Oracle Financial
Programs in connection with Hosting Services or Outsourcing
Services to be provided by Novistar, then Novistar may provide
Hosting Services or Outsourcing Services for the Oracle
Financial Programs owned or acquired by the Customer, subject to
the terms and conditions set forth herein. In order for Novistar
to provide Hosting Services or Outsourcing Services for such
Financial Programs:
1. the Customer itself, or the actual subsidiary or division of
the Customer which will be using the Programs, must be a
company primarily engaged in the Upstream Oil & Gas Industry;
2. Novistar must be providing Hosting Services or Outsourcing
Services of Oracle Financial Programs simultaneously in
conjunction with providing Hosting Services or Outsourcing
Services for one or more of the Novistar Programs to the same
Customer;
3. For each instance where Novistar provides Hosting Services
for the Oracle Financial Programs to a particular Customer
where Novistar is not providing Outsourcing Services to the
Customer, Novistar shall pay to Oracle a Sales Support Fee
equal to two percent (2%) of the Net Customer Hosting Service
Fees for Oracle Financial Programs payable to Novistar by
Customers and by Distributors for the first (1st) year of
such Hosting Services; and
4. Such licenses shall be governed by the terms of the
applicable Order Form between Oracle and the Customer,
provided that: (i) Customer personnel and devices accessing
the Oracle Financial Programs Hosted by Novistar shall be
counted for purposes of licensing limitations applying to the
Oracle Financial Programs as provided in the applicable Order
Form between Oracle and the Customer; (ii) unless prohibited
in the Order Form or any other agreements between Oracle and
the Customer, Novistar shall have the right to use such
Customer's licenses of the Oracle Financial Programs for the
purpose of providing Hosting Services or Outsourcing Services
to such Customer pursuant to the terms and conditions in this
Addendum and the particular Order Form between Oracle and the
Customer; and (iii) when Hosting Services or Outsourcing
Services for a Customer are terminated or otherwise cease,
all of Novistar's rights to use licenses to Oracle Financial
Programs owned by the Customer for the purposes of providing
Hosting Services or Outsourcing Services shall be terminated;
and
5. Novistar shall provide Oracle with a list of the Designated
Systems on which Novistar will be installing such Programs.
The Oracle Financial Program licenses licensed by the
Customer shall not be terminated as a result of the
termination of Hosting Services or Outsourcing Services
provided by Novistar to such Customer. Such Program licenses
shall remain in the name of such Customer after termination
of such Hosting Services or Outsourcing Services. In addition
to the rights granted above, Oracle may consent in writing
to, on a deal by deal basis and in Oracle's sole discretion,
allowing Novistar to provide Hosting Services or Outsourcing
Services for the Oracle Financial Programs for a particular
Customer who either (i) already owns licenses to such Oracle
Financial Programs, or (ii) is currently purchasing licenses
for such Oracle Financial Programs from Oracle or a
Distributor.
c. Fees Payable to Novistar. If Oracle licenses Oracle Financial
Programs to a Customer in conjunction with Novistar's new
licensing of Novistar Programs to such Customer, Oracle shall
pay to Novistar a Sales Support Fee equal to one percent (1%) of
the Net Customer License Fees payable to Oracle by such Customer
for each license of the Oracle Financial Programs.
d. Other Fees Payable to Novistar. If Oracle licenses other Oracle
Programs (including Oracle Financial Programs) to a Customer in
the Upstream Oil and Gas Industry in conjunction with Novistar's
new licensing of Novistar Programs to such Customer, and such
Customer has been identified by Novistar to Oracle, and is
registered pursuant to the Registration Process (as described
below), Oracle shall pay to Novistar a Sales Support Fee equal
to one percent (1%) of the Net Customer License Fees payable to
Oracle by such Customer for each licnese of such Oracle
Programs.
Page: 8
<PAGE>
5.1.3 Database Programs, Licenses and Fees.
a. Database Programs Acquired by Novistar. If Novistar provides
Hosting Services or Outsourcing Services for the Oracle
Financial Programs (pursuant to the terms of this Addendum) or
Novistar Programs, Novistar may acquire, in Novistar's name, and
Oracle shall sell to Novistar, the appropriate licenses of
Oracle Database Programs as needed for Hosting Services or
Outsourcing Services and Novistar shall have the right to use
such Oracle Database Programs in conjunction with providing such
Hosting Services or Outsourcing Services. For each license of an
Oracle Database Program to be used in conjunction with Novistar
providing Hosting Services or Outsourcing Services as described
herein, Novistar shall pay to Oracle (i) the applicable list
license fees for such Database Programs pursuant to Oracle's
then current U.S. and/or Global Price List, less the Applicable
Discount, and (ii) the applicable list technical support fees
for such Programs pursuant to Oracle's Technical Support fees
and policies in effect when such services are ordered. The
"Applicable Discount" means 30% for licenses acquired prior to
the second anniversary of this Addendum, and thereafter the
discount agreed from time to time by Oracle and Novistar. Such
licenses shall be governed by the terms of the applicable Order
Form between Oracle and Novistar, provided that, such terms,
shall include, without limitation, the following:
1. Novistar agrees to be responsible and to indemnify Oracle for
all damages or losses resulting from the breach by a Customer
of this Addendum, the applicable Order Form, and the SLSA.
2. Customer personnel and devices accessing the Oracle Database
Programs shall be counted for purposes of licensing
limitations applying to the Oracle Database Programs as
provided in the applicable Order Form.
3. Any licenses of the Oracle Database being used to provide
Outsourcing Services to a particular Customer may be used to
provide Outsourcing Services for only such Customer, and may
not be used for any other Customer.
4. In the applicable Order Form, Novistar shall provide to
Oracle the name of the Customer and the number of licenses of
each of the Programs to be used by Novistar and/or the
Customer in performing Outsourcing Services.
5. When Hosting Services or Outsourcing Services for a Customer
are terminated or otherwise cease, Novistar may (but shall
not be obligated to) transfer the Oracle Database Program
licenses to such Customer by paying to Oracle a fee equal to
20% of the then current list license fees for the licenses
being transferred.
b. Use of Database Programs Owned by Customers. If Novistar
provides Hosting Services or Outsourcing Services for the Oracle
Financial Programs (pursuant to the terms of this Addendum) or
Novistar Programs to a Customer who owns licenses for the Oracle
Database Programs or who is acquiring licenses for the Oracle
Database Programs in connection with Hosting Services or
Outsourcing Services to be provided by Novistar, Novistar may
provide Hosting Services or Outsourcing Services for the
Database Programs in connection with its Hosting Services or
Outsourcing Services, provided that such use of the Oracle
Database Programs shall be limited to use solely with the
Novistar Programs and/or Oracle Financial Programs. Such
licenses shall be governed by the terms of the applicable Order
Form between Oracle and the Customer, provided that:
1. Novistar and/or Customer personnel and devices accessing the
Oracle Database Programs Hosted or used in Outsourcing
Services shall be counted for purposes of licensing
limitation applying the Oracle Database Programs as provided
in the applicable Order Form between Oracle and the Customer;
2. Novistar shall provide to Oracle the name of the Customer and
the number of licenses of each of the Programs being
(i) accessed by such Customer for Hosting Services or (ii) to
be used by Novistar and/or the Customer in performing
Outsourcing Services; and
3. Unless prohibited by the Order Form or any other agreements
between Oracle and the Customer, Novistar shall have the
right to use such Oracle Database Programs for the purpose of
providing Hosting Services or Outsourcing Services so long as
it does so in accordance with the terms of this Addendum and
the particular Order Form between Oracle and the Customer.
Page: 9
<PAGE>
5.1.4 Definitions.
a. Definition of Net Customer License Fees. For purposes of
5.1.1.a, "Net Customer License Fees" means license fees payable
to Novistar by Customers and by Distributors for licenses of the
Novistar Programs, net of sales, use or other taxes paid. For
purposes of Sections 5.1.2.d. and 5.1.3.a. "Net Customer License
Fees" means license fees payable to Oracle by Customers and by
Distributors for licenses of the Oracle Programs, net of sales,
use or other taxes paid.
b. Definition of Hosting Services. "Hosting Services" means the
provision by Novistar of data center hosting facilities and
services only for Novistar Programs (or Oracle Financial
Programs or Oracle Database Programs pursuant to the terms and
conditions of this Addendum) which provides a Customer with the
ability to remotely access and use such Novistar Programs (or
Oracle Financial Programs or Oracle Database Programs) in the
applicable territory for such Customer's business operations.
Novistar may only provide Hosting Services with respect to the
Oracle Financial Programs as specifically provided in Section
5.1.2 above. Novistar agrees to be responsible for and to
indemnify Oracle for all damages or losses resulting from the
breach of this Addendum by Customer. Hosting Services for the
Oracle Financial Programs may only be provided by Novistar to a
Customer simultaneously in conjunction with providing Hosting
Services for the Novistar Programs to the same Customer.
Termination of Hosting Services with respect to Novistar
Programs for a particular Customer shall automatically mean
termination of Hosting Services for the Oracle Financial
Programs for such Customer. Oracle shall have the right to audit
Novistar to verify that such Hosting Services of Oracle
Financial Programs for a particular Customer are being provided
in conjunction with Hosting Services for Novistar Programs for
the same Customer.
c. Definition of Hosting Services Fees. "Net Customer Hosting
Services Fees" means services fees payable to Novistar by
Customers and by Distributors for Hosting Services (including
the built-in license fees for Novistar Programs with respect to
Hosting Services for Novistar Programs), net of sales, use or
other taxes paid. Net Customer Hosting Services Fees shall not
include fees for implementation services or technical support
services. With respect to Hosting Services for Novistar
Programs, if Novistar decouples Hosting Services fees from
license fees for such Programs, Novistar shall pay to Oracle
both the fees as set forth in Section 5.1.1.a and 5.1.1.b above.
d. Definition of Outsourcing Services. Outsourcing by Novistar
means that Novistar is providing a value-added service to the
Customer (i.e. financial, data processing, etc.), employees of
Novistar are using the Oracle Financial Programs to provide such
value-added service, and Novistar is not merely providing
Hosting Services of the Oracle Financial Programs for such
Customer.
e. Definition of Upstream Oil and Gas Industry. "Upstream Oil and
Gas Industry" means the acquisition, exploration, exploitation,
development, and divestiture of oil and gas properties, and the
production and marketing of oil and gas. The Upstream Oil and
Gas Industry does not include, without limitation, downstream
operations including refining, pipeline/transportation (other
than local gathering systems), retail sales, or terminal
business.
5.1.5 Cumulative. The fees payable under Sections 5.1.1, 5.1.2 and 5.1.3
are cumulative and not exclusive, except that the fees payable for
Oracle Financial Programs in Sections 5.1.2.c and 5.1.2.d are
exclusive and not cumulative.
5.1.6 Registration Process. Novistar and/or Oracle shall register with
the other party, proposed transactions and/or entities with whom
transactions may occur pursuant to mutual written agreement (e.g.,
letter or email) of the applicable sales vice presidents of the
parties. Notwithstanding anything to the contrary, the parties agree
that the entities listed on Exhibit C (Pre-Registered Entities) and
any transactions with such entities shall be deemed to have been
registered pursuant to this process. The parties may add entities to
Exhibit C upon written agreement (e.g., email or letter) of an
executive of sales in each company (vice president and above).
5.1.7 Hosting and Outsourcing upon Termination of the Financial Hosting
Term. Notwithstanding the termination of the Financial Hosting Term,
Novistar shall continue to have the right to provide Hosting
Services or Outsourcing Services to existing Customers for whom
Novistar is providing such Hosting Services or Outsourcing Services
on the date of such termination. In addition, with respect to such
Customers existing as of the termination of the Financial Hosting
Term for whom Novistar is providing Hosting or Outsourcing Services,
Novistar shall have the right to buy additional licenses of the
Oracle Financial Program licenses only to provide such Hosting or
Outsourcing Services for such Customer, provided that Novistar may
purchase no more than 30% of the number of licenses Novistar was
using to provide Hosting Services or Outsourcing Services for such
Customer on the date of such termination of the Financial Hosting
Term. Novistar's rights under this Section 5.1.7 shall continue to
be governed by the terms and conditions set forth in Section
5.1.2.a.1 through a.7 and Section 5.1.2.b.1 through b.5.
Page: 10
<PAGE>
5.1.8 Access to Oracle Financial and Database Programs by Third Parties.
Oracle agrees that in connection with Novistar providing hosting or
Outsourcing Services to a Customer pursuant to the terms of this
Addendum, employees of third party companies or employees of the
Customer itself may access and use the Oracle Financial Programs
and/or Oracle Database Programs to assist or participate in
providing such Hosting or Outsourcing Services so long as Novistar
ensures that such access and use by such employees is in accordance
with the terms of the Agreement and this Addendum.
5.1.9 Leasing of Third party Hardware/infrastructure servers. Oracle
agrees that Novistar may install the Oracle Financial Programs
and/or Oracle Database Programs on third party hardware servers
provided that such third parties shall provide
hardware/infrastructure services only and may not have any rights
under this Addendum.
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 Sales Support Fees and other fees under this Addendum payable by a
party and which are described in this Article V shall be due and payable
monthly within forty-five (45) days after the end of the month in which the
applicable net fees were received by the applicable party. License,
technical support or other fees relating to Oracle Programs or Services
obtained by Novistar from Oracle shall be due and payable in accordance
with the SLSA.
5.4 REPORTING
Within thirty (30) days of the last day of each month, each party shall
send to the other party a report detailing, for that month, the applicable
fees due to the other party under this Addendum as a result of such party's
activities pursuant to the terms of this Addendum.
5.5 RECORDS; AUDIT
Each party shall keep accurate books of account and records pertaining to
its activities and revenues and those of its Distributors under the terms
of this Addendum. No more than once during any twelve (12) month period, a
party (the "auditing party") may, at its sole expense, employ an
independent Certified Public Accountant ("ICPA") who is not compensated
based on the results of the audit, and who is acceptable to the party being
audited (the "audited party"). The ICPA may inspect such books of account
and records upon reasonable notice to the party being audited, and at a
reasonable time during normal business hours, for the purpose of verifying
the applicable fees payable, pursuant to this Addendum, to the party
conducting the audit.
If the audit reveals that the audited party has underpaid fees by more than
ten percent (10%) of the total amount of such fees paid by the audited
party over the past twelve (12) months, then the audited party shall
reimburse the auditing party for the auditing party's reasonable costs of
conducting the audit, notwithstanding anything to the contrary in this
Section.
Unless necessary to establish in a court of law the auditing party's right
to payment of fees hereunder (in which case the ICPA shall request a
protective order), the ICPA (a) shall hold all information obtained in
strict confidence; (b) shall not disclose such information to any other
person or entity (except the auditing party) without the prior written
consent of the audited party; and (c) shall not disclose to the auditing
party any information regarding the business of the audited party, other
than any noncompliance by the audited party with the fee payment provisions
of this Addendum.
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. Novistar 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 Novistar for
licenses granted by Novistar to its customers or distributors for any
products, including without limitation Novistar Programs, or for any
services provided by Novistar to its customers or distributor in connection
with such products.
Page: 11
<PAGE>
ARTICLE VI - SERVICES AND TRAINING
6.1. SERVICES SUBCONTRACT AGREEMENT
Any cooperative provision of implementation services by the parties shall
be subject to the Services Subcontract Agreement attached as Exhibit D
(Services Subcontract Agreement) hereto, except as otherwise agreed by the
parties in writing. Such Services Subcontract Agreement is deemed executed
by virtue of execution of this Addendum. The parties may agree to attach
addenda to such Services Subcontract Agreement to address local country
legal issues where services are to be performed outside the United States.
6.2 METHODOLOGY
Oracle shall, upon request from Novistar, provide Novistar with access to
its Application Implementation Method ("AIM"). Oracle grants to Novistar a
worldwide, nontransferable, nonexclusive, royalty-free license to use AIM
for Novistar Programs licensed to Customers. Oracle considers AIM to be
highly confidential and to contain proprietary and trade secret information
of Oracle. In addition to Novistar's obligations under Section 10.1
(Nondisclosure), Novistar agrees that AIM software and documentation will
be kept and used only at Novistar's facilities and at locations where
Novistar is providing implementation services to its customers. This
Section 6.2 shall also apply to any replacement or renamed Oracle
application implementation methodology, except for any methodology for
which Oracle is obligated to pay royalty fees to a third party.
6.3 RULES OF ENGAGEMENT
6.3.1 Business Development. Each party's consulting organization shall
provide reasonable assistance to the other in cooperative marketing
programs, business development, and cooperative sales calls for
implementations.
6.3.2 Ongoing Information Exchange and Training. Each party will provide,
in a timely manner, information to the other on new product
releases, new product functionality and technical support offerings,
and will offer training to the other's consultants on such new
developments as early as is commercially reasonable, subject to
Section 6.5.1 (Internal Training) below.
6.3.3 Account Access. Neither party shall impede the other's access to
any Customer account or potential Customer account.
6.3.4 Consulting Access. With respect to consulting opportunities with
Customers, the parties will pursue such opportunities in good faith
as follows:
a. With respect to implementation services for Oracle Financial
Programs not done in connection with Novistar Programs, whether
or not Hosting Services are being provided in conjunction with
such Programs, and whether or not such Hosting Services are
being provided by Novistar or Oracle, Oracle will be given the
first right to present a proposal to the Customer to perform
such implementation services.
b. With respect to implementation services for both Novistar
Programs and Oracle Financial Programs where no Hosting Services
or Outsourcing Services are being provided in conjunction with
such Programs, Oracle will be given the first right to present a
proposal to the Customer to perform implementation services for
the Oracle Financial Programs, and Novistar will be given the
first right to present a proposal to the Customer to perform
implementation services for Novistar Programs.
6.4 TRAINING
6.4.1 Internal Training.
a. Novistar shall:
i. Provide, using commercially reasonable efforts, up to
fifteen (15) days of instructor-led training on
Novistar Programs at Novistar's expense and at a
Novistar training site, which training shall be used
by Oracle within one (1) year of the Effective Date.
Page: 12
<PAGE>
ii. Provide to Oracle personnel a discount of twenty
percent (20%) off Novistar's education products.
b. Oracle shall:
i. Provide, using commercially reasonable efforts, up to
fifteen (15) days of instructor-led training on the
Oracle Financial Programs at Oracle's expense and at
an Oracle training site, which training shall be used
by Novistar within one (1) year of the Effective
Date.
ii. Provide to Novistar personnel a discount of twenty
percent (20%) off Oracle's education products.
6.4.2 Customer Training. Each party may provide training to Customers for
its respective products.
ARTICLE VII - TECHNICAL SUPPORT
7.1 TECHNICAL SUPPORT FOR PROGRAMS
7.1.1 Novistar Programs. Novistar shall provide technical support to
Customers for Novistar Programs.
7.1.2 Oracle Financial Programs. Oracle shall provide technical support
to Customers for the Oracle Financial Programs.
7.1.3 Bug Fixes. The parties shall provide bug-fixes and patches for
their respective programs in a manner consistent with the parties'
respective support practices and systems.
7.2 INTERNAL DEVELOPER TECHNICAL SUPPORT
During the term of this Addendum, Oracle shall provide Technical Support
services, at Oracle's standard Technical Support fees for the Oracle
Financial Programs, to Novistar internal development personnel via Oracle
Worldwide Support services. In connection with Novistar's integration
activities, Novistar shall provide Technical Support services, at
Novistar's standard Technical Support fees for Novistar Programs, to Oracle
internal development personnel. For any Technical Support Updates to the
Oracle Financial Programs or Novistar Programs, each party shall ship to
the address 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.
7.3 EXTENDED SUPPORT
Each party shall provide Technical Support services for its products to its
Customers for so long as there are commitments for Technical Support
services to Customers.
ARTICLE VIII - TERM AND TERMINATION
8.1 TERM
8.1.1 Financial Hosting Term. Sections 4.1, 4.2, 5.1.1, 5.1.2, 5.1.6 and
Articles II, VI and VII of this Addendum ("Financial Hosting
Sections") shall become effective on the Effective Date and shall
remain in effect for three (3) years thereafter, unless sooner
terminated as specified in Section 8.2 below (the "Financial Hosting
Term"). The term of the Financial Hosting Term may be renewed by
written agreement of the parties for successive one (1)-year terms.
In that regard, Oracle and Novistar will meet on or before 10
business days after the anniversary of this Addendum to discuss
whether the Financial Hosting Term shall be extended for a
successive one (1)-year term, and within 30 days after such meeting,
each party shall jointly issue a memorandum of intent indicating
whether or not they intend to renew the Financial Hosting Term for
an additional one (1)-year term, and if either party's memorandum
indicates an intent not to renew the Financial Hosting Term, then
such Financial Hosting Sections shall terminate. If the Financial
Hosting Term is renewed for an additional one (1)-year term, the
parties shall meet again on or before 10 business days after the
second anniversary of this Addendum to discuss whether the Financial
Hosting Term shall again be extended, and such annual meetings shall
continue as described above unless the Financial Hosting Term is
terminated or will not be renewed pursuant to a prior meeting and
memorandum. Any renewal shall be subject to Oracle's standard terms
and fees in effect at such time. Upon termination of the Financial
Hosting Term, the Financial Hosting Sections shall be terminated,
except that the terms and conditions set forth in Section 5.1.2 a.1
through a.7 and Section 5.1.2 b.1 through b.5 shall survive such
termination for purposes of Section 5.1.7 above.
8.1.2 Addendum Term. Except as provided in Section 8.1.1 above, this
Addendum shall become effective on the Effective Date and shall
remain in effect so long as Novistar owns the Novistar Programs and
provides Hosting Services or Outsourcing Services for such Novistar
Programs and uses the Oracle Database Programs in conjunction with
providing such Hosting and/or Outsourcing Services, unless sooner
terminated as specified in Section 8.2 below.
8.2 TERMINATION
8.2.1 Termination for Cause. Either party may terminate the Financial
Hosting Services or this Addendum for cause if it 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 (a) it has not materially breached this Addendum,
(b) that the notifying party does not have cause under Section 8.2.2
below, (c) that it has cured the
Page: 13
<PAGE>
breach or cause, or (d) 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
be the following:
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 2.3
(Dispute Resolution) above. The parties agree that the failure to
comply with the obligations in Article II will not be deemed a
material breach hereunder so long as the party failing to comply
uses commercially reasonably efforts to remedy such failure.
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. The other party may terminate this
Addendum if such condition continues for a period of one hundred
eighty (180) days.
8.2.4 Termination. This Addendum may be terminated by mutual written
agreement of the parties hereto.
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.
8.4 APPLICABILITY
This Article VIII shall not supersede Article IV of the SLSA, and shall
apply to activities governed only by this Addendum.
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 and consulting 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.
Page: 14
<PAGE>
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. In
addition, if a Customer notifies Oracle that consulting services
performed in the course of services relating to the Novistar
Programs fail to conform with a services warranty provided by
Oracle to the Customer (similar to the services warranty stated
in Section 9.1.1 (Limited Warranties) above), and Oracle and
Novistar agree that the services provided by Oracle to the
Customer fail to conform with such warranty and that such
failure is caused by the failure of services provided by
Novistar to conform with the warranty stated in Section 9.1.1
(Limited Warranties) above), the parties shall cooperate in
reperforming the services and Oracle shall be entitled to
recover any costs incurred by it in assisting with such
reperformance (including without limitation costs associated
with Oracle's performance of non-billable or only partially
billable services or reassignment of personnel). Any
disagreements between the parties arising under this paragraph
shall be referred to dispute resolution under Section 2.3
(Dispute Resolution) above.
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 ("Material")
furnished by the Provider and used by the Recipient 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. The
Provider shall reimburse reasonable out-of-pocket expenses incurred
by the Recipient in providing such assistance. 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 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 Financial Programs or
the Novistar 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 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
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. 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).
Page: 15
<PAGE>
The provisions of this Article IX allocate the risks under this Addendum
between Novistar 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.
This Section 9.3 applies to limitation of liability under only this
Addendum. Liability by either party under the SLSA shall be governed by
only Section 7.5 of the SLSA.
ARTICLE X - GENERAL
10.1 NONDISCLOSURE
It is expected that the parties may disclose to each other certain
information which may be considered confidential and trade secret
information ("Confidential Information"). Confidential Information shall
include: (a) the Novistar Programs, any other Novistar programs licensed
to Oracle hereunder, the Oracle Programs, the Oracle Method, the Oracle
Application Implementation Method, the Oracle AIM for Vertical Markets, and
other methodologies of either party; (b) any Documentation or other user or
developer documentation to which either party may have access in connection
with this Addendum; (c) product designs and specifications, release
management and version control standards, localization support
requirements, technical reference manuals and information concerning
product strategy; (d) customer lists and marketing plans; (e) Confidential
Information disclosed by either party in writing that is marked as
confidential at the time of disclosure; or (f) Confidential Information
disclosed by either party in any other manner, which is identified as
confidential at the time of disclosure and is also summarized and
designated as confidential in a written memorandum delivered to the
receiving party within thirty (30) days of the disclosure.
Notwithstanding the foregoing, Confidential Information shall not include
information which: (a) is or becomes a part of the public domain through no
act or omission of the other party; (b) was in the receiving party's
possession before receipt from the party providing such Confidential
Information; (c) is rightfully received by the receiving party from a third
party without any duty of confidentiality; (d) is disclosed to a third
party by the party providing the Confidential Information without a duty of
confidentiality on the third party; (e) is independently developed by the
other party; or (f) is disclosed under operation of law.
All Confidential Information owned solely by one party and disclosed to the
other party shall remain solely the property of the disclosing party. The
parties agree, both during the term of this Addendum and for a period of
five (5) years after termination or expiration of this Addendum (except
Source Materials, to which the obligations stated in this Section above
shall apply perpetually) to hold each other's Confidential Information in
confidence and to protect the disclosed Confidential Information by using
the same degree of care to prevent the unauthorized use, dissemination or
publication of the Confidential Information as they use to protect their
own confidential information of a like nature. The receiving party will
limit disclosure of the disclosing party's Confidential Information to the
receiving party's employees who have a need to know and who have signed
written agreements enabling the receiving party to fully comply with its
obligations hereunder. The receiving party shall not make the disclosing
party's Confidential Information available in any form to any third party,
except third parties with a need to know and with which the receiving party
has written agreements in place enabling the receiving party to fully
comply with its obligations hereunder; contractors with a need to know and
with which the receiving party has written agreements in place enabling the
receiving party to fully comply with its obligations hereunder; legal
counsel; and auditors. Neither party will use the other's Confidential
Information for any purpose other than the implementation of this Addendum.
10.2 INDEPENDENT DEVELOPMENT/FREEDOM OF ACTION
Each party acknowledges that the other party is in the software development
business. Except as otherwise provided in the Asset Purchase Agreement
dated February 16, 2000 between the parties, 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 Section 10.1 (Nondisclosure) above.
Page: 16
<PAGE>
10.3 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.
10.4 EQUITABLE RELIEF
Each party agrees that any breach of its obligations under this Addendum
may cause the other party irreparable injury for which there are inadequate
remedies at law and that, in such event, the non breaching party shall be
entitled to equitable relief in addition to all other remedies available to
it.
10.5 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 and this Addendum.
10.6 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.
NOVISTAR, INC. ORACLE CORPORATION
By: /s/ Thomas M. Ray III By: /s/ Ian Thacker
---------------------------- -----------------------------
Name: Thomas M. Ray III Name: Ian Thacker
-------------------------- ---------------------------
Title: President and CEO Title: Senior Vice President
------------------------- --------------------------
Page: 17
