Full Use and Deployment Sublicense Addendum – Oracle Corp. and Vantive Corp.
FULL USE AND DEPLOYMENT SUBLICENSE ADDENDUM
This document (the "Addendum") is between Oracle Corporation ("Oracle") and
Vantive Corporation (the "Alliance Member") and shall be governed by the
terms of the Business Alliance Program Agreement between the Alliance Member
and Oracle effective 28-Jun, 1996 (the "Agreement") and the terms set forth
below.
1. PROGRAM DISTRIBUTION
1.1 SUBLICENSE OF PROGRAMS AND TERMS
The Alliance Member shall have the right to market and grant
Sublicenses of Full Use Programs or Deployment Programs which are
available in production release and listed on Oracle's Price List in
effect at the time the Programs are ordered from Oracle to Sublicense
to a Sublicensee: provided, however, the Alliance Member shall have no
right to Sublicense any Programs designated as Oracle Applications
Programs, Oracle Express Programs, Limited Production Programs, or
other Programs specified by Oracle from time-to-time without the prior
written consent of Oracle. The Alliance Members shall have the right
to market and grant Sublicenses of Full Use or Deployment Programs for
use on Designated Systems in conjunction with the Intergrated System to
Sublicensees. Each copy of the Full Use or Deployment Programs
distributed shall be for the Sublicensee's own internal use in the
Territory only on a single Designated System limited to a maximum
number of Users.
To acquire Programs for Sublicensing to Sublicensees, the Alliance
Member shall order such Programs from Oracle. Each order shall specify
the applicable Programs, maximum number of Users, computer/operating
system configuration, fees, shipping location, and any other information
required by Oracle for processing the order. Orders for Trial
Sublicenses shall be clearly marked on the face of the Order Form.
1.2 DISTRIBUTION UNDER ORACLE AGREEMENT
In addition to the Sublicense rights specified in Section 2.3.A of
the Agreement and notwithstanding the terms of such Section and Section
2.3.B of the Agreement, the Alliance Member shall have the right to
market and grant Sublicenses of Full Use Programs and Deployment Programs
in conjunction with the Integrated System to Sublicensees under a standard
Oracle Software License and Services Agreement in lieu of Sublicensing the
Programs under a written Sublicense agreement.
The Alliance Member may submit orders for Sublicenses to Oracle for
its acceptance.
With each such order, the Alliance Member shall submit a standard
Oracle Software License and Services Agreement executed by the applicable
Sublicensee, or shall reference on such order that the Programs will be
licensed to the Sublicensee subject to an existing license agreement
effective between the Sublicensee and Oracle (the "Oracle Agreement").
In addition, as part of the Oracle Agreement, the Alliance Member shall
obtain the Sublicensee's written agreement that the ordered Programs and
services are subject to the terms and conditions of the Oracle Agreement.
If the Sublicensee is a federal agency, the Alliance Member shall
submit with each such order a written document executed by an authorized
Sublicensee contracting officer which contains the following provision:
"This is an open market order placed pursuant to terms identical to the
terms and conditions of Oracle's General Services Administration (GSA)
Schedule A Contract for Oracle Programs current as of the order date,
with the exception of the maximum order limitations, discounts,
maintenance, training units and other discounts specific to the
applicable Oracle GSA Schedule. No other pre-printed or reference terms
and conditions shall apply." This written document shall be deemed the
applicable Oracle Agreement.
For orders which include only shrinkwrapped Oracle Programs, the
Oracle Agreement may consist of a written obligation by the Sublicensee
to use the Programs under the terms of the shrinkwrap license agreement.
The Alliance Member shall indemnify Oracle for any claims, damages,
or losses arising from failure to obtain any Oracle Agreement.
If the order specifies that the Programs are to be delivered to the
Alliance Member, the Alliance Member shall have the right to re-deliver
the Programs with their original package to the applicable Sublicensee.
1.3 FULL USE AND DEPLOYMENT PROGRAMS
For the purposes of this Addendum, "Full Use Programs" shall mean
unaltered versions of the Programs with all functions intact.
"Deployment Programs" shall mean Programs which are limited to use
solely for the purpose of running applications and may not be used to
create or alter tables or reports except as necessary for operating the
applications.
1.4 VALUE-ADDED PACKAGE
For the purposes of this Addendum, "Integrated System" shall mean
the hardware and software products having Value-Added which are developed,
sold, and/or licensed with the Programs to a Sublicensee by the Alliance
Member to satisfy such Sublicensee's internal business requirements and
objectives. For purposes of the Agreement, the Integrated System will be
regarded as the Alliance
Member's Value-Added Package which is described in the attached Value-
Added Attachment. The Integrated System shall be regarded as "Value-
Added" if the following materials are provided as part of the Integrated
System by the Alliance Member: (a) non-Oracle developed software: (b)
customized programming or customized consulting; and (c) other computer
products or components.
1.5 TRIAL SUBLICENSES
The Alliance Member shall be entitled to grant, at no charge, up to
(10) temporary Trial Sublicenses of the Programs at any one time. Such
Sublicenses shall be for evaluation purposes only and shall be for a
period not to exceed thirty (30) days. The Alliance Member shall pay
Oracle Sublicense fees for any Trial Sublicenses in excess of thirty (30)
days. Each such Trial Sublicense shall be Sublicensed under a Sublicense
agreement which provides for such trial use or under an Oracle Trial
License Agreement, as the applicable Oracle Agreement.
1.6 NO DISTRIBUTORS
The Alliance Member's right to market and grant Sublicenses of Full
Use Programs or Deployment Programs hereunder shall be limited to the
Alliance Member only. The Alliance Member shall not appoint any third
party to distribute the Programs without Oracle's prior written consent.
1.7 DOCUMENTATION
Oracle shall deliver one copy of the applicable Documentation with
each order of Programs for Sublicensing to Sublicensees.
2. SUBLICENSE FEES
2.1 SUBLICENSE FEES AND RATE
For each copy of the Programs Sublicensed by the Alliance Member,
the Alliance Member agrees to pay Oracle a Sublicense fee equal to
seventy percent (70%) of the applicable license fee for each such Program,
as specified in the applicable Price List and Alliance Member Price List
supplement to such Price List in effect at the time the applicable
Programs are Sublicensed to a Sublicensee. The Sublicense fee shall be
calculated effective on the date of the Sublicense, which shall be the
date the Programs are shipped by Oracle or the effective date of the
order to Oracle for such Programs, if no shipment is required.
Fees for Sublicense of Programs shall be due and payable on the date
that Oracle ships the applicable Programs and shall be deemed overdue if
not paid within thirty-one (31) days of the due date. The Alliance
Member shall not be relieved of its obligation to pay Sublicense fees
owed to Oracle by the nonpayment of such fees by the Sublicensee.
2.2 PRICE LIST
As set forth in the Agreement, the applicable Price List for
determining Sublicense fees shall be the standard Price List in effect
at the time the Program is Sublicensed to a Sublicensee. However,
pricing for any federal agency, pursuant to terms and conditions identical
to the terms and conditions of Oracle's GSA Schedule A Contract for Oracle
Programs current as of the order date, shall be based on Oracle's
published GSA Price List.
Notwithstanding any other provision of this Agreement, if the
Alliance Member issues a written Sublicense quote and such quote is
accepted by the applicable Sublicensee, for a period of ninety (90) days
after the date of submission of the quote to the Sublicensee, the fee
applicable to the Programs identified in the quote shall be based on
the Price List in effect on such date.
2.3 USERS
The fees for Sublicense of a Program shall be based and priced on the
applicable User Level for the maximum number of Users for such Program, as
specified in the Price List. The Alliance Member shall have the right to
Sublicense on any User basis specified in the Price List in effect at
the time the applicable Program is Sublicensed to a Sublicensee.
3. TERM
This Addendum shall become effective on the Effective Date of this
Addendum and shall be valid for one (1) year (the "Term"), unless
terminated as provided in the Agreement. Any renewal of this Addendum
shall be subject to renegotiation of terms and fees.
4. TERRITORY
The Alliance Member shall have the right to market and grant
Sublicenses of Full Use Programs or Deployment Programs in the United
States only (the "Territory").
5. TECHNICAL SUPPORT
5.1 TECHNICAL SUPPORT FOR SUBLICENSEES
A Sublicensee may acquire Technical Support services for Full Use
Programs or Deployment Programs Sublicensed under this Addendum from
Oracle at Oracle's standard rates and fee in effect at the time such
Technical Support services are ordered under an Oracle Technical Support
Services Agreement or Oracle Agreement, as applicable.
5.2 TECHNICAL SUPPORT FEES
Oracle agrees that the Alliance Member shall have the right to offer
Oracle annual Technical Support services to Sublicensees in the United
States that are currently acquiring full Use Programs or Deployment
Programs. The Alliance Member shall only offer Oracle Technical Support
services with respect to the initial first year of Technical Support for
a Sublicensed Program. The Alliance Member shall only offer Oracle annual
Technical Support services to a Sublicensee provided that:
A. Oracle receives from the Sublicensee an executed, standard Oracle
Technical Support Services Agreement, Oracle Agreement, or other terms to
govern the Technical Support services as agreed to in writing by Oracle
and the Sublicensee;
B. The Full-Use or Deployment Programs are currently Sublicensed by the
Alliance Member;
C. The Alliance Member pays Oracle its required Sublicense fee for the
applicable Sublicensed Programs as provided under the Agreement, and the
Alliance Member pays Oracle the applicable
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Technical Support services fees as set forth herein in advance;
D. The Alliance Member's Sublicense of the Full Use Programs or
Deployment Programs coincides with the agreement to provide Technical
Support Services for such Programs; and
E. The net Technical Support services fees represent new Technical
Support revenue to Oracle.
The Technical Support services fees payable by Alliance Member as
provided above shall be Oracle's standard rates for such services as
provided under the Price List in effect at the time the Technical Support
services are ordered, discounted by ten percent (10%).
6. SUBLICENSE REPORTS
With each order for Programs for Sublicense to a Sublicensee, the
Alliance Member shall send Oracle a report detailing for each Sublicensed
Full Use Program or Deployment Program: Sublicensee name, address,
make/model and operating system of the Designated System. Full Use or
Deployment Programs, maximum number of licensed Users, whether the
Sublicense is a Trial Sublicense, total Program fees and Technical Support
Fees due to Oracle, and specific descriptions of the Integrated System
and Value-Added.
7. ADDITIONAL LICENSES
During the Term, the Alliance Member may order production release
versions of Oracle off-the-shelf Programs available as production release
as of the Effective Date of this Addendum and listed on the Price List in
effect as of such date. The license fee for Development Licenses shall be
equal to Oracle's standard list license fees in effect when an order is
placed. The Alliance Member shall have the right to order Programs for
use as Marketing Support Licenses at no further charge to the Alliance
Member. The Alliance Member may obtain Technical Support services from
Oracle for such Programs under Oracle's applicable Technical Support fees
and policies in effect when such services are ordered.
The effective Date of this Addendum shall be 28-Jun-96.
EXECUTED BY VANTIVE CORPORATION: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ Mike Loo Authorized Signature: /s/ Lloyd Alexander
--------------- --------------------
Name: Mike Loo Name: Lloyd Alexander
------------------------------- ------------------------------------
Title: V.P. Finance Title: Manager - Western Region
------------------------------ Channels Sales Support
-----------------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation.
8-95
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VALUE-ADDED ATTACHMENT
Description of Integrated System:
Hardware components:
Software products other than Programs:
Services to be provided by the Alliance Member:
AMENDMENT ONE
to the
FULL USE AND DEPLOYMENT SUBLICENSE ADDENDUM
between
VANTIVE CORPORATION
and
ORACLE CORPORATION
This document ("Amendment One") shall serve to amend the Full Use and
Deployment Sublicense Addendum and any amendments thereto between Vantive
Corporation (the "Alliance Member") and Oracle Corporation ("Oracle") dated
28-Jun-96 (the "Addendum").
The Addendum is hereby amended as follows:
1. In Section 1.2, delete the sixth paragraph of such Section and replace it
with the following:
"The Alliance Member shall indemnify Oracle for any claims, damages, or
losses arising from failure by the Alliance Member to obtain any Oracle
Agreement."
2. In Section 2.2, at the end of the first paragraph of such Section add the
following:
"All Sublicense fees for Sublicenses installed outside the United States
shall be based on the Oracle Global Price List in effect at the time the
Application Package is Sublicensed."
3. In Section 4, delete the body of such Section in its entirety and replace
it with the following:
"4. TERRITORY
The Alliance Member shall have the right to market and grant
Sublicenses of Programs in the Application Package in all countries
worldwide (the "Territory") subject to the terms of this Section.
Oracle may from time to time deny the Alliance Member the right to
Sublicense in certain countries in the Territory in order to protect
Oracle's interests if, in the reasonable opinion of Oracle's counsel,
such countries (i) do not provide adequate protection for Oracle's
proprietary rights through copyright, trade secret, patent or other laws;
or (ii) have laws or regulations or the government has committed acts which
in the opinion of Oracle's counsel, are injurious to Oracle's interests in
the Programs.
The Alliance Member acknowledges that the Programs are subject to
export controls imposed on Oracle and the Alliance Member by the U.S. Export
Administration Act, United States Departments of Commerce, Treasury, and
State regulations and directives, and other United States law ("Export
laws"). The Alliance Member certifies that neither the Programs nor any
direct product thereof are (i) exported, directly or indirectly, in
violation of Export laws; or (ii) are intended to be used for any purposes
prohibited by the Export laws, including, without limitation, nuclear,
chemical or biological weapons proliferation. Furthermore, the Alliance
Member shall not transfer
the Programs outside of the territory for which the Alliance Member has
Sublicense rights under this Agreement.
The Alliance Member warrants that it will not grant Sublicenses in or
ship any Programs to a country until it has completed all necessary
government formalities in such country and upon reasonable request by
Oracle, the Alliance Member provides evidence of completion of such
formalities to Oracle. The Alliance Member will indemnify Oracle for any
losses, costs, liability, and damages incurred by Oracle as a result of a
failure by the Alliance Member to comply with the necessary government
requirements in any country. The obligations under this Section shall
survive the expiration or termination of this Addendum. Upon Oracle's
reasonable request, the Alliance Member shall make records available to
Oracle to allow to confirm the Alliance Member's compliance with this
Section."
4. In Section 5.2, delete the words "ten percent (10%)" with and replace it
with the words "fifteen percent (15%)".
Other than the addition of the foregoing, the terms of the Addendum remain
unchanged and in full force and effect.
The Effective Date of this Amendment One is 28-Jun, 1996.
VANTIVE CORPORATION ORACLE CORPORATION
By: /s/ Mike Loo By: /s/ Lloyd Alexander
----------------------- -----------------------------
Name: Mike Loo Name: Lloyd Alexander
--------------------- -----------------------------
Title: Title: Manager-Western Region
VP Finance Channels Sales Support
-------------------- ---------------------------
ORACLE
APPLICATION SPECIFIC SUBLICENSE ADDENDUM
This document (the "Addendum") is between Oracle Corporation ("Oracle") and
VANTIVE CORPORATION (the "Alliance Member") and shall be governed by the
terms of the Business Alliance Program Agreement between the Alliance Member
and Oracle effective 28-Jun, 1996 (the "Agreement") and the terms set forth
below.
1. SUBLICENSES
1.1 SUBLICENSE PROGRAMS AND TERMS
The Alliance Member may only Sublicense Application Specific Full Use
Programs for which the Alliance Member has previously acquired a
Supported Development License for the applicable Designated System.
Notwithstanding any other provision of this Agreement, the Alliance
Member shall have no right to Sublicense Programs designated as
Oracle Applications Programs. Oracle Express Programs, Limited
Production Programs, or other Programs specified by Oracle from
time-to-time without the prior written consent of Oracle.
The Alliance Member shall have the right to market and grant
Sublicenses of Application Specific Full Use Programs under the
conditions set forth in the Agreement and under the following
restrictions:
A. Sublicense Application Specific Full Use Programs with the
Application Program in the Application Package for use on Designated
Systems to Sublicensees. Each copy of the Application Specific Full
Use Programs distributed shall be for the Sublicensee's own internal
use in the Territory only on a single Designated System limited to a
maximum number of Users; and
B. Make and deliver to the Sublicensee a single copy of the
Application Specific Full Use Programs in the Application Package for
each Sublicense granted.
The Alliance Member shall use all practical means available, both
contractual and technical, to control the restricted use of each
Application Specific Full Use Program Sublicense. If a Sublicensee
uses the Application Specific Full Use Program beyond the limited
functionality described in Section 1.2 hereof, the Alliance Member or
Distributor shall immediately notify the Sublicensee of such
unauthorized use and if the Sublicensee fails to discontinue such
unauthorized use following notification either terminate the
Sublicense or forward to Oracle one hundred percent (100%) of the
applicable Full Use standard Program license fees in effect at the
time the payment is made to Oracle together with a written request by
the Sublicensee for a Full Use Program license from Oracle. Oracle
must approve, in writing, the Sublicensee's request before continued
use of the Programs by the Sublicensee shall be deemed authorized.
1.2 APPLICATION SPECIFIC FULL USE PROGRAMS
For the purposes of this Addendum, "Application Specific Full Use
Program(s)" shall mean Programs which shall be limited to using and
developing in conjunction with the Alliance Member's Application
Program. Each Application Specific Full Use Program licensed under
this Addendum may only be used with the Application Program and may
not be used with other application programs. The Sublicensee may not
use the Application Specific Full Use Programs to create any
additional applications, or for any purpose other than implementation
and support of the Application Program. "Full Use Programs" shall
mean unaltered versions of the Programs with all functions intact.
1.3 VALUE-ADDED PACKAGE
For the purposes of this Addendum, "Application Program(s)" shall
mean the Alliance Member's value-added application software,
described in the attached Application Package Attachment with which
the Application Specific Full Use Programs are to be coupled.
"Application Package(s)" shall mean the Application Specific Full Use
Programs coupled with the Application Programs. For purposes of the
Agreement, the Application Program shall be regarded as the Alliance
Member's Value-Added Package.
1.4 TRIAL SUBLICENSES
The Alliance Member and its Distributors shall be entitled to grant,
at no charge, up to a maximum combined total of ten (10) temporary
Trial Sublicenses of the Application Package at any one time. Such
Sublicenses shall be for evaluation purposes only and shall be for a
period not to exceed thirty (30) days. The Alliance Member shall pay
Oracle Sublicense fees for any Trial Sublicenses in excess of thirty
(30) days. Each such Trial Sublicense shall be Sublicensed under a
Sublicense agreement which provides for such trial use.
1.5 DISTRIBUTORS
Oracle grants the Alliance Member the right to appoint third parties
("Distributors") to market and Sublicense the Application Specific
Full Use Programs in the Territory, under the terms of the Agreement
and this Addendum. However, Distributors shall have no right to make
copies of the Programs for Sublicensing and shall obtain all such
Programs from the Alliance Member. Each Distributor shall execute a
written agreement with the Alliance Member binding the Distributor to
provisions substantially similar to those contained in Sections 2.3,
2.5, 2.6, 5.1, 5.2, 6.1, 6.3, 6.4, 6.5, 7.2.D, 7.5, 8.1, 8.2, 8.3,
8.5, 8.7, 8.9 and 8.11 of the Agreement and to those contained in
Sections 1 (except 1.5), 3, 4, 5, and 6 of this Addendum. Each
obligation of the Alliance Member under such provisions shall also be
applicable to each Distributor. Each Distributor agreement shall also
contain any other provisions necessary for the Alliance Member to
satisfy its commitments under the Agreement. The Alliance
Member shall notify Oracle promptly in writing of the appointment of
each such Distributor.
In addition, the Alliance Member shall keep executed Distributor
agreements and records of the Distributor information required under
the Alliance Member's Sublicense reports, and shall allow Oracle to
inspect such information as specified under the Agreement. The
Alliance Member will defend and indemnify Oracle against all damages
to Oracle caused by (i) the Distributors' failure to include the
required contractual terms set forth in Section 2.3.B of the
Agreement in each Sublicense agreement, and (ii) the Distributors'
breach of any of the applicable provisions required in its
Distributor agreement.
1.6 DOCUMENTATION
The Alliance Member shall be responsible for providing documentation
for Sublicensees. The Alliance Member shall have the right to
incorporate portions of the Documentation into the Alliance Member's
documentation, subject to the provisions of Section 8.2 of the
Agreement.
2. SUBLICENSE FEES
2.1 SUBLICENSE FEES AND RATE
For each copy of the Programs Sublicensed by the Alliance Member or
its Distributor in the Application Package, the Alliance Member
agrees to pay Oracle a Sublicense fee equal to fifty percent (50%) of
the applicable license fee for each such Program, as specified in the
applicable Price List and Alliance Member Price List supplement to
such Price List in effect at the time the applicable Programs are
Sublicensed.
As further specified in Section 6 of this Addendum, Sublicense fees
shall be due and payable within twenty (20) days of the last day of
each month. 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.
On or after each anniversary during the Term of this Addendum, Oracle
may amend the Sublicense fee percentage rate set forth above based on
Oracle's then-current standard Sublicense fee percentage rate
schedule and the actual amount of Sublicense fees received by Oracle
hereunder.
2.2 PRICE LIST FOR SUBLICENSES
Notwithstanding any other provision of the Agreement, the applicable
Price List for determining Sublicense fees shall be the standard
Price List in effect at the time the Application Package is
Sublicensed.
Notwithstanding any other provision of this Agreement, if the
Alliance Member issues a written Sublicense quote and such quote is
accepted by the applicable Sublicensee, for a period of ninety (90)
days after the date of submission of the quote to the Sublicensee,
the Sublicense fee applicable to the Programs identified in the quote
shall be based on the Price List in effect on such date.
2.3 USERS
The Sublicense fees for a Program shall be based and priced on the
applicable User Level for the maximum number of Users for such
Program, as specified in the Price List. The Alliance Member shall
have the right to Sublicense Programs on any User basis specified in
the Price List in effect at the time the applicable Program is
Sublicensed.
3. TERM
This Addendum shall become effective on the Effective Date of this
Addendum and shall be valid for three (3) years (the "Term") from the
Effective Date, unless terminated as provided in the Agreement. Any
renewal of this Addendum shall be subject to renegotiation of terms
and fees.
Unless the expiration or termination is for default by the Alliance
Member, the Alliance Member may continue using the release of the
Programs then in the Alliance Member's possession on the Designated
Systems for which Development Licenses were granted, solely for the
purpose of continuing technical support for Sublicenses granted prior
to termination. Such continued use of the Programs shall be subject
to all the provisions of this Agreement, including, without
limitation, payment of the Technical Support Fees specified herein.
4. TERRITORY
The Alliance Member shall have the right to market and grant
Sublicenses of Programs in the United States only (the "Territory").
5. TECHNICAL SUPPORT
5.1 TECHNICAL SUPPORT FOR SUBLICENSEES
A. INSTALLATION
The Alliance Member or its Distributors will be responsible for any
assistance needed to install the Application Package at Sublicensee
sites.
B. SUBLICENSING SUPPORT
The Alliance Member is responsible for providing all technical
support, training and consultations to its Sublicensees and
Distributors. In consideration of the payments specified in Section
5.2, the Alliance Member shall have the right to use the Oracle
Technical Support services acquired for its Supported Development
Licenses to provide technical support services to its Sublicensees as
further set forth in the Agreement. The Alliance Member shall
continuously maintain Oracle Technical Support services for the
Development Licenses during the period during which the Alliance
Member provides technical support services to any Sublicensees. Any
questions from the Alliance Member's Sublicensees or Distributors
will be referred by Oracle to the Alliance Member.
5.2 TECHNICAL SUPPORT FEES
For Technical Support services for Sublicensees, each year the
Alliance Member agrees to pay Oracle annual Technical Support Fees
for each Application Specific Full Use Program Sublicensed under this
Addendum, a previous Alliance Member Addendum, or previous
distribution agreement between the parties hereto where the
Sublicensee received technical support services for such Application
Specific Full Use Program during the applicable support period.
Annual Technical Support Fees for a Program shall be equal to the
applicable Technical Support percentage rate for the highest
Technical Support services level selected by the Alliance Member for
Technical Support services for any
2
Development License used under this Addendum of the cumulative
Sublicense fees accrued to Oracle for such supported Program.
Upon December 31 of each year, the Alliance Member shall provide to
Oracle a report setting forth all of the Alliance Members'
Sublicenses and those Sublicensed Programs which were supported by
the Alliance Member during the calendar year. The report shall also
include the applicable Technical Support Fees due and payable to
Oracle for such calendar year. The Alliance Member shall provide
Oracle with payment of all Technical Support Fees for such calendar
year required under the applicable December 31 report with such
report in the form of a check made out in the amount of such fees.
All Technical Support Fees paid to Oracle are noncancelable and
nonrefundable.
6. SUBLICENSE REPORTS
Within twenty (20) days of the last day of each month, the Alliance
Member shall send Oracle a report detailing for that month:
A. For each Sublicensed Application Package shipped during the prior
month, Sublicensee name, address, make/model and operating system of
the Designated System, date of shipment, Application Specific Full
Use Programs shipped, maximum number of licensed Users, whether the
Sublicense is a Trial Sublicense, and total Sublicense fees and
Technical Support Fees due to Oracle:
B. For each Application Program licensed to end-users to be used
with previously installed software licensed by Oracle in conjunction
with the Application Program, Sublicensee name, address, make/model
and operating system of the computer, and date of installation; and
C. The Distributor agreements executed during the prior month,
including names and addresses of the Distributors.
The Alliance Member shall require its Distributors to report this
information to the Alliance Member on a monthly basis and will
include it in the report for the month in which the Alliance Member
received the information. The Alliance Member shall provide Oracle
with payment of all fees required under the monthly report with such
report in the form of a check made out in the amount of such fees.
7. ADDITIONAL LICENSES
During the Term, the Alliance Member may order production release
versions of Oracle off-the-shelf Programs available as production
release as of the Effective Date of this Addendum and listed on the
Price List in effect as of such date. The license fee for Development
Licenses shall be equal to Oracle's standard list license fees in
effect when an order is placed. The Alliance Member shall have the
right to order Programs for use as Marketing Support Licenses at no
further charge to the Alliance Member. The Alliance Member may obtain
Technical Support services from Oracle for such Programs under
Oracle's applicable Technical Support fees and policies in effect
when such services are ordered.
The Effective Date of this Addendum shall be 28-Jun-96.
EXECUTED BY VANTIVE CORPORATION: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ Mike Loo Authorized Signature: /s/ Lloyd Alexander
--------------- ---------------------
Name: Mike Loo Name: Lloyd Alexander
------------------------------- -------------------------------------
Title: VP Finance Title: Manager - Western Region
Channels Sales Support
------------------------------ ------------------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark or Oracle Corporation.
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APPLICATION PACKAGE ATTACHMENT
Name of Application Program and Application Package which the Alliance Member
will be Sublicensing under the Agreement (may not contain the trademarks
"Oracle" or "Ora" or any portion thereof):
Description of Application Package:
Modules:
Functions and Objectives:
AMENDMENT ONE
TO THE
APPLICATION SPECIFIC SUBLICENSE ADDENDUM
BETWEEN
VANTIVE CORPORATION
AND
ORACLE CORPORATION
This document (Amendment One) shall serve to amend the Application Specific
Sublicense Addendum between Vantive Corporation (the "Alliance Member") and
Oracle Corporation ("Oracle") dated 28-Jun, 1996 (the "Addendum").
The Addendum is hereby amended as follows:
1. In Section 1.1, add the words "...to it," after the word "available" in
the first sentence of the third paragraph of such Section.
2. In Section 2.1, delete the last paragraph of such Section 2.1 and replace
it with the following:
"On or after each anniversary during the Term of this Addendum, Oracle
may amend the Sublicense fee percentage rate set forth above upon 90 days
prior written notice based on Oracle's then-current standard Sublicense
fee percentage rate schedule and the actual amount of Sublicense fees
received by Oracle hereunder."
3. In Section 2.2, after the first paragraph of such Section add the
following new paragraph:
"All Sublicense fees for Sublicenses installed outside the United
States shall be based on Oracle's Global Price List in effect at the time
the Application Package is Sublicensed."
4. In Section 4, delete the body of such Section and replace it with the
following:
4. TERRITORY
The Alliance Member shall have the right to market and grant
Sublicenses of Programs in the Application Package in all countries
worldwide (the "Territory") subject to the terms of this Section.
Oracle may from time to time deny the Alliance Member the right
to Sublicense in certain countries in the Territory in order to protect
Oracle's interests if, in the reasonable opinion of Oracle's counsel,
such countries (i) do not provide adequate protection for Oracle's
proprietary rights through copyright, trade secret, patent, or other
laws; or (ii) have laws or regulations or the government has committed
acts which in the opinion of Oracle's counsel, are injurious to Oracle's
interests in the Programs.
The Alliance Member acknowledges that the Programs are subject to
export controls imposed on Oracle and the Alliance Member by the U.S.
Export Administration
Act, United States Departments of Commerce, Treasury, and State
regulations and directives, and other United States law ("Export Laws").
The Alliance Member certifies that neither the Programs nor any direct
product thereof are (i) exported, directly or indirectly, in violation of
Export laws; or (ii) are intended to be used for any purposes prohibited
by the Export laws, including, without limitation, nuclear, chemical, or
biological weapons proliferation. Furthermore, the Alliance Member shall
not transfer the Programs outside of the territory for which the Alliance
Member has Sublicense rights under this Agreement.
The Alliance Member warrants that neither it nor its Distributors will
grant Sublicenses in or ship any Programs to a country until it (or the
Distributor) has completed all necessary government formalities in such
country and upon reasonable request by Oracle, the Alliance Member (or
its Distributor) provides evidence of completion of such formalities to
Oracle. The Alliance Member will indemnify Oracle for any losses, costs,
liability, and damages incurred by Oracle as a result of a failure by
the Alliance Member or its Distributors to comply with the necessary
government requirements in any country. The obligations under this
Section shall survive the expiration or termination of this Addendum.
Upon Oracle's reasonable request, the Alliance Member shall make records
available to Oracle to allow to confirm the Alliance Member's compliance
with this Section."
5. In Section 5.1.B, add the words "Except as otherwise provided in this
Section" at the beginning of the first sentence in such Section.
After Section 5.1.B, add the following new paragraph:
"Sublicensees may acquire Oracle Technical Support services for the
Sublicensed Programs directly from Oracle at Oracle's standard rates and
fees in effect at the time such Technical Support services are ordered
from Oracle under an Oracle Technical Support Services Agreement executed
by the applicable Sublicensee and Oracle and upon execution of a standard
Oracle Technical Support policies statement letter applicable to Technical
Support services for Programs in Sublicensed in an Application Package."
6. In Section 5.2, add the following new paragraphs at the end of such
Section:
"Further, Oracle agrees that the Alliance Member shall have the right to
offer Oracle annual Technical Support services to Sublicensees in the
United States that are currently acquiring Application Specific Full Use
Programs. The Alliance Member shall only offer Oracle Technical Support
services with respect to the initial first year of Technical Support for
a Sublicensed Program. The Alliance Member shall only offer Oracle annual
Technical Support services to a Sublicensee provided that:
A. Oracle receives from the Sublicensee an executed, standard
Oracle Technical Support Services Agreement, Oracle Agreement, or other
terms to govern the Technical Support services as agreed to in writing
by Oracle and the Sublicensee:
B. The Application Specific Full Use Programs are currently
Sublicensed by the Alliance Member:
C. The Alliance Member pays Oracle its required Sublicense fee
for the applicable Sublicensed Programs as provided under the Agreement,
and the Alliance Member pays Oracle the applicable Technical Support
services fees as set forth herein in advance:
D. The Alliance Member's Sublicense of the Application Specific
Full Use Programs coincides with the agreement to provide Technical
Support Services for such Programs; and
E. The net Technical Support services fees represent new
Technical Support revenue to Oracle.
The Technical Support services fees payable by Alliance Member as provided
above shall be Oracle's standard rates for such services as provided
under the Price List in effect at the time the Technical Support services
are ordered, discounted by fifteen percent (15%)."
Other than the addition of the provisions above, the Addendum remains
unchanged and in full force and effect.
The Effective Date of this Amendment One is 28-Jun, 1996.
VANTIVE CORPORATION ORACLE CORPORATION
By: /s/ Mike Loo By: /s/ Lloyd Alexander
------------------------ ----------------------------
Name: Mike Loo Name: Lloyd Alexander
---------------------- --------------------------
Title: V.P. Finance Title: Manager-Western Region
--------------------- Channels Sales Support
-------------------------
ORACLE
BUSINESS ALLIANCE PROGRAM AGREEMENT
This Business Alliance Program Agreement (the "Agreement") is between Oracle
Corporation with its principal place of business at 500 Oracle Parkway,
Redwood City, California 94065 ("Oracle") and Vantive Corporation (legal
name) with its principal place of business at 2455 Augustine Drive Santa
Clara CA 95054 (the "Alliance Member"). The terms of this Agreement shall
apply to each Program license granted and to all services provided by Oracle
under this Agreement. When completed and executed by both parties, an Order
Form shall evidence the Program licenses granted and the services that are to
be provided.
1. DEFINITIONS
1.1 "COMMENCEMENT DATE" Shall mean 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 "ORDER FORM" shall mean the document 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.
1.4 "PRICE LIST" shall mean Oracle's standard commercial fee schedule that
is in effect when a Program license, Sublicense, or services are ordered
by the Alliance Member.
1.5 "PROGRAM" shall mean the computer software in object code form owned or
distributed by Oracle for which the Alliance Member is granted a license
or grants a Sublicense pursuant to this Agreement; the user guides and
manuals for use of the software ("Documentation"); and Updates. "LIMITED
PRODUCTION PROGRAM" shall mean a Program not specified on the Price List
or which is designated as Limited Production by Oracle.
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 "SUPPORTED PROGRAM LICENSE" shall mean a Development License or
Marketing Support License for which the Alliance Member has ordered
Technical Support for the relevant time period. "TECHNICAL SUPPORT"
shall mean 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 is
generally made available for Supported Program licenses at no additional
charge, other than media and handling charges. Update shall not include
any release, option or future product which Oracle licenses separately.
1.10 "USER," unless otherwise specified in the Order Form or Sublicense
report for a user type specified in the Price List in effect when the
Program is Sublicensed, shall mean a specific individual employed by the
Alliance Member or Sublicensee (as the case may be) who is authorized by
such party to use the Programs, regardless of whether the individual is
actively using the Programs at any given time.
1.11 "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. LICENSES GRANTED
2.1 DEVELOPMENT LICENSES AND TRIAL LICENSES
A. Oracle grants to the Alliance Member a nonexclusive license to
use the Development licenses the Alliance Member obtains under this
Agreement and applicable Sublicense Addenda, as follows:
1. to develop or prototype the Value-Added Package on the Designated
System or on a backup system if the Designated System is inoperative,
up to any applicable maximum number of designated Users or other such
limitation as may be applicable.
2. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package;
3. to provide training and technical support to employees and to
customers solely in conjunction with the Value-Added Package;
4. to use the Documentation provided with the Programs in support of
the Alliance Member's authorized use of the Programs; and
5. to copy the Programs for archival or backup purposes; no other
copies shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be
reproduced in such copies. All archival and backup copies of the Programs
are subject to the terms of this Agreement.
B. The Alliance Member may order temporary trial licenses ("Trial
Licenses") for its evaluation purposes only, and not for development or
prototype purposes, for use during a period specified in the Order Form.
Each Order Form for Trial Licenses shall clearly state the trial period
and shall identify that the order is for a Trial License.
2.2 MARKETING SUPPORT LICENSES
Oracle grants to the Alliance Member a nonexclusive license to use
the Marketing Support Licenses the Alliance Member obtains under this
Agreement and applicable Sublicense Addenda, as follows:
A. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package, up to any applicable maximum
number of designated Users or other such limitation as may be applicable;
B. to develop customized prototypes of the Value-Added Package for
prospective Sublicensees on the Designated System if the Alliance Member
does not receive any fees related to the development of such customized
prototypes;
C. to use the Documentation provided with the Programs in support of
the Alliance Member's authorized use of the programs; and
D. to copy the Programs for archival or backup purposes; no other
copies shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be
reproduced in such copies. All archival and backup copies of the programs
are subject to the terms of this Agreement.
2.3 SUBLICENSING
A. LICENSE TO SUBLICENSE PROGRAMS
As further set forth in the applicable Sublicense Addenda,
Oracle hereby grants the Alliance member a nonexclusive, nontransferable
license to market and grant 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.
B. SUBLICENSE AGREEMENT
Every Sublicense agreement shall include, at a minimum,
contractual provisions which;
1. Restrict use of the Programs to object code, subject to the
restrictions provided under the applicable Sublicense Addenda and
consistent with the Sublicense fees payable to Oracle;
2. Prohibit (a) transfer of the Programs except for temporary
transfer in the event of computer malfunction; (b) assignment,
timesharing and rental of the Programs; and (c) title to the Programs
from passing to the Sublicensee or any other party;
3. Prohibit the reverse engineering, disassembly or decompilation of
the Programs and prohibit duplication of the Programs except for a single
backup or archival copy;
4. Disclaim, to the extent permitted by applicable law, Oracle's
liability for any damages, whether direct, indirect, incidental or
consequential, arising from the use of the Programs;
5. Require the Sublicensee, at the termination of the Sublicense, to
discontinue use and destroy or return the Alliance Member all copies of
the Programs and Documentation;
6. Prohibit publication of any results of benchmark tests run on the
Programs;
7. Require the Sublicensee to comply fully with all relevant export
laws and regulations of the United States to assure that neither the
Programs, nor any direct product thereof, are exported, directly or
indirectly, in violation of United States law; and
8. Specify Oracle as a third party beneficiary of the Sublicense
agreement to the extent permitted by applicable law.
C. MARKETING/SUBLICENSING PRACTICES
In marketing and Sublicensing the Programs, the Alliance Member
shall:
1. Not engage in any deceptive, misleading, illegal or unethical
practices that may be detrimental to Oracle or the the Programs;
2. Not make any representations, warranties, or guarantees to
Sublicensees concerning the Programs that are inconsistent with or in
addition to those made in this Agreement or by Oracle; and
3. Comply with all applicable federal, state, and local laws and
regulations in performing its duties with respect to the Programs.
2.4 ACCEPTANCE OF PROGRAMS
For each Program license for which delivery from Oracle is
required under this Agreement, the Alliance Member shall have a 15 day
Acceptance Period, beginning on the Commencement Date, in which to
evaluate the Program. During the Acceptance Period, the Alliance
Member may cancel the license by giving written notice to Oracle
and returning the Program in accordance with Section 6.6 below.
Unless such cancellation notice is given, the license will be
deemed to have been accepted by the Alliance Member at the end of
the Acceptance Period.
2.5 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.
2.6 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.
2.7 TRANSFER OF PROGRAMS
The Alliance Member may transfer a Development License or Marketing
Support License
1
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.
2.8 USE OF PROGRAMS BY AGENTS
The Alliance Member and each Sublicensee (as the case may be) shall
have the right to allow each such party's own third party agents to use
each such party's licensed Programs as licensed or Sublicensed under
this Agreement so long as the applicable party ensures that its agents
use the Programs in accordance with the terms of this Agreement or the
applicable Sublicense agreement.
2.9 PRE-PRODUCTION PROGRAMS
As an accommodation to the Alliance Member, Oracle may supply the
Alliance Member with pre-production releases of Programs (which may be
labeled "Alpha" or "Beta"). These products are not suitable for
production use.
3. TECHNICAL SERVICES
3.1 TECHNICAL SUPPORT SERVICES
Oracle shall provide Technical Support services ordered by the
Alliance Member under Oracle's Technical Support policies in effect on
the data Technical Support is ordered, subject to the payment by the
Alliance Member of the applicable fees. Reinstatement of lapsed
Technical Support services is subject to Oracle's Technical Support
reinstatement fees in effect on the date Technical Support is
reordered. The Alliance Member may obtain Technical Support services
for Limited Production Programs and pre-production releases of Programs
on a time and materials basis.
3.2 TRAINING SERVICES
Oracle will provide training services agreed to by the parties under
the terms of this Agreement. For any on-site services requested by the
Alliance Member, the Alliance Member shall reimburse Oracle for actual,
reasonable travel and out-of-pocket expenses incurred.
4. FEES AND PAYMENTS
4.1 LICENSE FEES AND SUBLICENSE FEES
The Alliance Member may order Development Licenses or Marketing
Support Licenses at the standard Program license fees set forth in the
Price List or at the fees otherwise provided in a Sublicense Addendum.
For each Sublicense granted by the Alliance Member, the Alliance Member
agrees to pay Oracle a Sublicense fee as set forth in the applicable
Sublicense Addenda. The Alliance Member shall not be relieved of its
obligation to pay Sublicense fees owed to Oracle by the nonpayment of
such fees by the Sublicensee.
The Alliance Member is free to determine unilaterally its own
license fees to its Sublicensees. If the Alliance Member or a
Sublicensee upgrades the Programs to a larger computer, transfers the
Programs outside the United States and/or to another operating system,
or increases the licensed number of Users, the Alliance Member will pay
additional Sublicense fees to Oracle as provided under Oracle's
transfer policies and rates in effect at the time the Program is
upgraded or transferred.
4.2 TECHNICAL SUPPORT FEES
Technical Support services ordered by the Alliance Member for
Development Licenses and Marketing Support Licenses will be provided
under Oracle's Technical Support policies and rates in effect on the
date Technical Support is ordered.
4.3 GENERAL PAYMENT TERMS
Except as otherwise provided in a Sublicense Addendum, invoices for
payment of license fees shall be payable 30 days from the Commencement
Date. Technical Support fees for Sublicenses shall be payable as
specified in the applicable Sublicense Addendum. Technical Support fees
for Development Licenses and Marketing Support Licenses shall be
payable annually in advance, net 30 days from the renewal date: such
fees will be those in effect at the beginning of the period for which
the fees are paid. 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 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 federal,
state or local taxes based on the licenses granted under this
Agreement, or the Sublicenses granted by the Alliance Member, 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 to ensure
compliance with the terms of this Agreement upon reasonable notice to
the Alliance Member. 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 based on
the Price List in effect at the time the audit is completed. If the
underpaid fees exceed five percent (5%) of the applicable license fees
or Sublicense fees paid, then the Alliance Member shall
2
pay Oracle's reasonable costs of conducting the audit. Audits shall be
made no more than once annually.
5.2 NOTICE OF CLAIM
The Alliance Member will notify the Oracle legal department promptly
in writing of: (a) any claim or proceeding involving the Programs that
comes to its attention and (B) any material change in the management or
control of the Alliance Member.
6. TERM AND TERMINATION
6.1 TERM
This Agreement shall become effective on the Effective Date
and shall be valid until the expiration or termination of all
Sublicense Addenda hereunder, unless terminated earlier as set forth
herein. If not otherwise specified on the Order Form, each Program
license granted under this Agreement shall remain in effect perpetually
under the terms of this Agreement unless the license or this Agreement
is terminated as provided in this Article 6 below. The term of each
Sublicense Addendum hereunder shall be as set forth in each such
Addendum.
6.2 TERMINATION BY THE ALLIANCE MEMBER
The Alliance Member may terminate any Program license, any
Sublicense Addenda, or this Agreement at any time; however, termination
shall not relieve the Alliance Member's obligations specified in
Sections 6.5 and 6.6.
6.3 TERMINATION BY ORACLE
Oracle may terminate any Program license, any Sublicense
Addenda, or this Agreement upon written notice if the Alliance Member
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 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 the Alliance Member has agreed to pay under a
Sublicense Addendum or any Order Form, other similar ordering document
under this Agreement, or that appear in a Sublicense report. The
parties' rights and obligations under Sections 2.5, 2.6, 2.7 and
Articles 4, 5, 6, 7, and 8 shall survive termination of this Agreement.
6.6 HANDLING OF PROGRAMS UPON TERMINATION
If a license granted under this Agreement expires or
otherwise terminates, the Alliance Member shall: (a) cease using the
applicable Programs; and (b) certify to Oracle within one month after
expiration or termination that the Alliance Member has destroyed or has
returned to Oracle the Programs and all copies. This requirement
applies to copies in all forms, partial and complete, in all types of
media and computer memory, and whether or not modified or merged into
other materials. Before returning Programs to Oracle, the Alliance
Member shall acquire a Return Material Authorization ("RMA") number
from Oracle.
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, provided that:
(a) the Alliance Member notifies Oracle in writing within 30 days of
the claim; (b) Oracle has sole control of the defense and all related
settlement negotiations; and (c) the Alliance Member provides Oracle
with the assistance, information and authority necessary to perform
Oracle's obligations under this Section. Reasonable out-of-pocket
expenses incurred by the Alliance Member in providing such assistance
will be reimbursed by Oracle.
Oracle shall have no liability for any claim of infringement
based on use of a superseded or altered release of Programs if the
infringement would have been avoided by the use of a current unaltered
release of the Programs which Oracle provides to the Alliance Member.
In the event the Programs are held or are believed by Oracle
to infringe, Oracle shall have the option, at its expense, to (a)
modify the Programs to be noninfringing; (b) obtain for the Alliance
Member a license to continue using the Programs; or (c) terminate the
license for the infringing Programs and refund the license fees paid
for those Programs, prorated over a five year term from the
Commencement Date. This Section 7.1 states Oracle's entire liability
and the Alliance Member's exclusive remedy for infringement.
7.3 WARRANTIES AND DISCLAIMERS
A. PROGRAM WARRANTY
Oracle warrants for a period of one year from the
Commencement Date that each unmodified Program for which the Alliance
Member has a Supported Program License will perform the functions
described in the Documentation provided by Oracle when operated on the
Designated System.
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
3
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 RUN PROPERLY
ON ALL HARDWARE, THAT THE PROGRAMS WILL MEET REQUIREMENTS OF THE
ALLIANCE MEMBER OR THE SUBLICENSEES OR OPERATE IN THE COMBINATIONS
WHICH MAY BE SELECTED FOR USE BY THE ALLIANCE MEMBER OR THE
SUBLICENSEES, THAT THE OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED
OR ERROR FREE, OR THAT ALL PROGRAM ERRORS WILL BE CORRECTED. LIMITED
PRODUCTION PROGRAMS, PRE-PRODUCTION RELEASES OF PROGRAMS, AND
COMPUTER-BASED TRAINING PRODUCTS ARE DISTRIBUTED "AS IS."
The Alliance Member shall not make any warranty on Oracle's
behalf.
7.3 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 7.2
above, the Alliance Member's exclusive remedy, and Oracle's entire
liability, shall be:
A. FOR PROGRAMS
The correction of Program errors that cause breach of the
warranty, or if Oracle is unable to make the Program operate as
warranted, the Alliance Member shall be entitled to recover the fees
paid to Oracle for the Program license.
B. FOR MEDIA
The replacement of defective media returned within 90 days of
the Commencement Date.
C. FOR SERVICE
The performance 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 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;
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; and
C. All claims and damages to Oracle caused by Sublicensees'
breach of any of the applicable provisions required by Section 2.3
hereof.
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
Neither party shall, without first obtaining the written
consent of the other party disclose the terms and conditions of this
Agreement, except as may be required to implement and enforce the terms
of this Agreement, or as may be required by legal procedures or by law.
No other information exchanged between the parties shall be deemed
confidential unless the parties otherwise agree in writing. The
Alliance Member shall not disclose the results of benchmark tests or
other evaluation of the Programs to any third party without Oracle
prior written approval.
8.2 COPYRIGHTS
The Programs are copyrights 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
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 worlds "All Rights Reserved."
Such notices shall be placed on the Documentation, the
sign-on screen for any software Value-Added package incorporating the
Programs, and the diskette or tape labels. Notwithstanding any
copyright notice by the Alliance Member to the contrary, the copyright
to the Program included in any such application package shall remain in
Oracle. Other than as specified above, on any reproduction or
translation of any Programs, Documentation, or promotional material, the
Alliance Member agrees to reproduce Oracle's copyright notices intact.
8.3 TRADEMARKS
"Oracle" and any other trademarks and service marks adopted
by Oracle to identify the Programs and other Oracle products and
services belong to Oracle; the Alliance Member will have no rights in
such marks except as expressly set forth herein and as specified in
writing 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 Members Value-Added Package, or trademark for any other
products of the Alliance Member. 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.
4
The Alliance Member agrees with respect to each registered
trademark of Oracle, to include in each advertisement, brochure, or
other such use of the trademark 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 deposited in 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 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,
PRORATED OVER A FIVE-YEAR TERM FROM THE COMMENCEMENT DATE OF THE
APPLICABLE LICENSE OR THE DATA OF PERFORMANCE OF THE APPLICABLE SERVICES.
The provisions of this Agreement allocate the risks between
Oracle and the Alliance Member. Oracle's pricing reflects this
allocation of risk and the limitation of liability specified herein.
8.11 FEDERAL GOVERNMENT SUBLICENSES
If the Alliance Member grants a Sublicense to the United
States government, the Programs shall be provided with "Restricted
Rights" and the Alliance Member will place a legend, in addition to
applicable copyright notices, on the documentation, and on the tape or
diskette label, substantially similar to the following:
RESTRICTED RIGHTS LEGEND
"Use, duplication of disclosure by the Government is subject to
restrictions as set forth in subparagraph(c)(1)(ii) of the Department
of Defense Regulations Supplement ("DFARS") 252.227-7013, Rights in
Technical Data and Computer Software (October 1988) and Federal
Acquisition Regulation ("FAR") 52.227-14, Rights in Data-General,
including Alternate III (June 1987), as applicable. Oracle Corporation,
500 Oracle Parkway, Redwood City, CA 94065."
8.12 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 of non-payment or breach of
Oracle's proprietary rights in the Programs, no action,
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regardless of form, arising out of this Agreement may be brought by
either party more than one year after the cause of action has accrued.
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. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute together but one and the same document.
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. This Agreement shall also supersede
the terms of any shrinkwrap or break-the-seal license agreement
included in any package for Oracle-furnished software, except terms
contained in such license agreement that grant specific use rights for
the Programs.
The Effective Date of this Agreement shall be 28-Jun-96.
EXECUTED BY VANTIVE CORPORATION: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ Mike Loo Authorized Signature: /s/ Lloyd Alexander
------------- --------------------
Name: Mike Loo Name: Lloyd Alexander
---------------------------- ------------------------------------
Title: VP Finance Title: Manager - Western Region
Channels Sales Support
---------------------------- ------------------------------------
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation.
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