NETSCAPE COMMUNICATIONS CORPORATION
AND
ORACLE CORPORATION
OEM LICENSE AGREEMENT
No.________________
This OEM License Agreement ("Agreement") is entered into by and between Oracle
Corporation, a company organized under the laws of Delaware, with principal
offices at 500 Oracle Parkway, Redwood Shores, CA 94065 ("Oracle"), and the
Netscape entity identified below as a signatory to the Agreement ("Netscape"),
effective as of the date of execution by Netscape ("Effective Date").
WHEREAS, Oracle markets and distributes computer software products.
WHEREAS, Netscape has proprietary or remarketing rights to certain computer
software products.
WHEREAS, Netscape wishes to grant to Oracle and Oracle desires to obtain certain
license rights to such computer software products more particularly described
below in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following terms and conditions, which set forth the rights,
duties, and obligations of the parties.
1. Definitions
For purposes of this Agreement, the following terms shall have the following
meanings:
1.1. "Exhibit(s)" means the Exhibits to this Agreement which are attached hereto
and incorporated herein:
1.1.1 Exhibit A (Description of Netscape Products) which sets forth a
description of each Netscape Product licensed hereunder.
1.1.2 Exhibit B (Pricing, Payment Schedules and Deliverables) which sets
forth pricing for Oracle, payment schedules, and specific items to
be delivered to Oracle.
1.1.3 Exhibit C (Netscape's End User License Agreement) which sets forth
Netscape's terms and conditions of licensing applicable to an end
user customer.
1.1.4 Exhibit D (OEM Maintenance and Support) which sets forth Netscape's
and Oracle's maintenance and support obligations.
1.1.5 Exhibit E-1 (Oracle Preferred Product(s)) which sets forth a
description of Oracle Products which may be bundled with the
Netscape Preferred Product in accordance with Section 3.1. Exhibit
E-2 (Oracle Non-Preferred Product(s)) which sets forth a description
of Oracle Products which may be bundled with the Netscape Products.
1.1.6 Exhibit F (Netscape Trademark Usage Guidelines)
1.1.7 Exhibit G (Third Party Code)
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1.1.8 Exhibit H (Oracle Subsidiaries)
1.2 "Derivative Work(s)" means a revision, modification, translation,
abridgment, condensation or expansion of a Netscape Product or Documentation or
any form in which a Netscape Product or Documentation may be recast,
transformed, or adapted, which, if prepared without the consent of Netscape,
would be a copyright infringement.
1.3 "Distributor" means any third party appointed by Oracle or Subsidiaries
pursuant to this Agreement to distribute the Netscape Products to End Users in
accordance with the terms hereof. For the purposes of this Agreement, where
applicable, "Distributors" shall be deemed to include "Subsidiaries."
1.4 "Documentation" means those software user manuals, reference manuals and
installation guides, or portions thereof, which are distributed in conjunction
with the Netscape Products set forth in Exhibit A.
1.5 "End User" means any third party licensed by Oracle or a Distributor to use,
but not to further distribute, the Netscape Products except that if such third
party is a corporation or other entity, then, for the purpose of license fee
accrual, "End User" means each individual within such corporation or entity
licensed by Oracle pursuant to this Agreement to use, but not to further
distribute, the Netscape Product.
1.6 "Major and Minor Updates" mean updates, if any, to the Netscape Products.
Major Updates involve additions of substantial functionality while Minor Updates
do not. Major Updates are designated by a change in the number to the left of
the decimal point of the number appearing after the product name while Minor
Updates are designated by a change in such number to the right of the decimal
point. Netscape is the sole determiner of the availability and designation of an
update as a Major or Minor Update. Major Updates exclude software releases which
are reasonably designated by Netscape as new products. Where used herein
"Updates" shall mean Major Updates or Minor Updates interchangeably.
1.7 "Netscape Preferred Product" means Netscape Navigator 3.0 or subsequent
versions and Navio client products upon their production release/FCS (First
Customer Ship).
1.8 "Netscape Product(s)" means the executable version (but not the source code
version) of the computer software products listed or described in Exhibit A as
Netscape may update and provide hereunder from time to time.
1.9 "Subsidiaries" means Network Computer Inc. and Oracle's wholly-owned or
majority-owned subsidiaries (which are not Competitors of Netscape) as listed on
Exhibit H, attached hereto, to be updated in writing by Oracle from time to
time. For the purposes of this Agreement, "Competitors" shall mean Microsoft,
Spyglass and such other companies as mutually agreed to by the parties. All
payments or reports to Netscape under this Agreement shall be made or submitted
by Oracle. Oracle shall be responsible for any breach of the terms of this
Agreement by Subsidiaries.
1.10 "Program Errors" means one or more reproducible deviations in the Netscape
Products from the applicable specifications shown in the Documentation.
1.11 "Oracle Product(s)" means Oracle's or Subsidiaries' computer products
developed and marketed by Oracle and/or Subsidiaries, as described in Exhibits
E-1 and E-2, with which the Netscape Products are distributed under this
Agreement.
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2. Grant Of Licenses and Rights
2.1. Licenses
2.1.1 License. Subject to the terms and conditions of this Agreement,
Netscape hereby grants and Oracle hereby accepts, a nonexclusive and
nontransferable worldwide right and license to (i) reproduce,
without change, the Netscape Products (in executable form only) on
any tangible media with a right to sublicense this right to
reproduce to Subsidiaries and/or Distributors and (ii) distribute by
sublicense such Netscape Product copies to Subsidiaries and/or
Distributors and/or End Users only in conjunction with an Oracle
Product. Oracle is expressly prohibited from any marketing and/or
distribution of Netscape Products unless each copy is bundled with
an Oracle Product. Oracle may grant Distributors the rights under
this Subsection 2.1.1 to other Distributors regardless of tier and
Oracle and all Distributors shall have the right to distribute the
Netscape Products to End Users. Oracle may grant End Users the right
to copy the Netscape Product bundled with any Oracle Product except
for the Oracle Network Computer so long as such End User also
receives the right to copy for the Oracle Product. Each copy of the
Netscape Product (i) distributed hereunder to an End User or (ii)
which an End User with a right to copy has the right to make
hereunder shall be deemed a "shipment" of an Oracle Product with the
Netscape Product under Section 4.1.1. In addition, Netscape grants
Oracle a royalty free license to use 100 copies of Netscape
Navigator LAN (object code) solely for internet development purposes
and not for redistribution. At Oracle's written request for
electronic distribution rights under this Agreement, Netscape agrees
not to unreasonably withhold permission therefor.
2.1.2 License Restrictions. Subject to Sections 14.11 and 14.12, Oracle
agrees not to copy (except as expressly permitted herein), modify,
translate, decompile, reverse engineer, disassemble, or otherwise
determine or attempt to determine source code for the executable
code of the Netscape Products or to create any Derivative Works
based upon the Netscape Products or Documentation, and agrees not to
permit or authorize anyone else to do so; provided, however, that if
Oracle's address set forth above is located within a Member State of
the European Union, then such activities shall be permitted solely
to the extent, if any, permitted by Article 6 of the Council
Directive of 14 May 1991 on the legal protection of computer
programs, and implementing legislation thereunder.
2.1.3 Documentation License. Subject to the terms and conditions of this
Agreement, Netscape hereby grants and Oracle hereby accepts a
nonexclusive and nontransferable worldwide right and license, in
accordance with Subsection 2.1.1 above, to use and reproduce the
Documentation, and to distribute the Documentation solely in
conjunction with the Netscape Products. Such distribution may be to
Distributors and End Users.
2.1.4 Licenses Dependent on Bundling. The licenses granted in Section
2.1.1 are conditional upon bundling each Netscape Product as
required therein. If Oracle fails to so bundle the Netscape
Products, and licenses a Netscape Product on a "stand-alone" basis,
the licenses shall be immediately revocable by Netscape in addition
to any other remedies Netscape may have.
2.1.5 Third Party License. If all or any part of the Netscape Products or
Updates delivered to Oracle has been licensed to Netscape by a third
party software supplier then, notwithstanding anything to the
contrary contained in this
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Agreement, Oracle is granted a sublicense to the third party
software subject to the same terms and conditions as those contained
in the agreement between Netscape and such third party software
supplier. In addition, Netscape reserves the right to substitute any
third party software in the Netscape Products so long as the new
third party software does not materially affect the functionality of
the Netscape Products. Netscape represents that the current release
of the Netscape Products contains no third party software which
would require Oracle to agree to any terms and conditions in
addition to those set forth in this Agreement.
2.1.6 Trial Licenses for Evaluation. During the term of this Agreement,
Oracle and/or its Distributors and/or Subsidiaries may distribute,
up to a maximum combined total of fifty (50) licenses pursuant to
Sections 2.1.1 and 2.1.3 solely for purposes of evaluation at no
license fee ("Trial Licenses"). Each Trial License shall not exceed
a period of sixty (60) consecutive days per customer from the date
of delivery of the Netscape Product to such customer. A customer may
be a prospective End User or Distributor. Oracle shall pay Netscape
the applicable license fees for any Trial Licenses in excess of
sixty (60) days. Each such Trial License shall be sublicensed under
an End User License Agreement which provides for such trial use.
2.2 Export
Oracle shall and shall require its Distributors to comply fully with all
then current applicable laws, rules and regulations relating to the export of
technical data, including, but not limited to any regulations of the United
States Office of Export Administration and other applicable governmental
agencies and Oracle acknowledges that by virtue of certain security technology
embedded in the Netscape Products, that export of such software may not be
legal. Oracle shall and shall require its Distributors to conspicuously mark all
packaging containing the Netscape Products identified by Netscape as not for
export with a "Not For Export" notice. Netscape agrees to cooperate in providing
information requested by Oracle as necessary to obtain any required licenses and
approvals. When distributing the Netscape Products and Documentation in
countries where an enforceable copyright law covering the same does not exist,
Oracle or its Distributors shall obtain a written agreement signed by the
customer prohibiting the customer from making unauthorized copies of the same.
Oracle warrants that neither it nor its Distributors will grant
sublicenses in or ship any Netscape Products to a country until it (or the
Distributor) has completed all necessary government formalities in such country
and upon reasonable request by Netscape, Oracle (or its Distributor) provides
evidence of completion of such formalities to Netscape. Oracle will indemnify
Netscape for any losses, costs, liability, and damages incurred by Netscape as a
result of a failure by Oracle 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 Agreement. Upon Netscape's
reasonable request, Oracle shall make records available to Netscape to allow
Netscape to confirm Oracle's compliance with this Section.
To the extent that Netscape discontinues licensing the Netscape Products
in certain countries and denies other resellers the right to sublicense in such
countries, Netscape may from time to time deny Oracle the right to sublicense in
such certain countries in order to protect Netscape's interests if, in the
reasonable opinion of Netscape's counsel, such countries (i) do not provide
adequate protection for Netscape'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 Netscape's counsel, are
injurious to Netscape's interests in the Netscape Products.
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3. Marketing and Distribution
3.1 Nonexclusivity of Arrangement
In consideration for the promises contained herein, beginning on the
Effective Date of this Agreement until the Renewal Date, Oracle agrees that with
respect to Oracle Preferred Products, Netscape Product (Exhibits A and B) shall
be the preferred software to be bundled with the Oracle Preferred Products in
cases where such third party non-Oracle software is bundled. For purposes of
this Agreement, the term "preferred" means that the only third party non-Oracle
software primarily designed for viewing HTML documents over standard Internet
protocols that Oracle shall bundle with the Oracle Preferred Products shall be
Netscape Product (Exhibits A and B); provided, however, that if an End User
specifically requests that a third party product with Internet browser
functionality be provided with any Oracle Preferred Product, Oracle may provide
such third party product with the Oracle Preferred Product solely for such
End-User. In addition, subject to the applicable terms and conditions of this
Agreement, Oracle shall have the right at its sole discretion to bundle Netscape
Products (Exhibits A and B) on a non-preferred basis with the Oracle
Non-Preferred Products.
For the time period set forth above, Oracle agrees to make commercially
reasonable efforts to treat Netscape Product at least as favorably as it treats
any other third party products distributed with Oracle Preferred Products that
are competitive with the Netscape Product. Specifically, such third party
product will not be shipped by default under the or with the Oracle Preferred
Products.
3.2 Public Announcements and Promotional Materials
Netscape and Oracle shall cooperate with each other so that each party may
issue a press release concerning this Agreement on a mutually agreed upon
release date, provided that each party must approve, in writing, such press
release prior to its release. Netscape shall cooperate with Oracle in its
development of the initial marketing and sales materials used to promote the
distribution of the Netscape Products.
3.3 Terms Relating to Distribution
3.3.1 General Restrictions on Distribution
Oracle agrees to comply with and shall require its Distributors to
comply with all applicable laws, rules and regulations to preclude
the acquisition of unlimited rights to technical data, software and
documentation provided with the Netscape Product to a governmental
agency, and ensure the inclusion of the appropriate "U.S. Government
End Users" notices required by the U.S. Government agencies or other
applicable agencies.
3.3.2 Distributor License Agreement
Oracle shall procure from each Distributor an executed copy of a
distribution license ("Distributor License Agreement") sufficient to
ensure that such Distributors are required to comply with the
relevant terms of this Agreement.
3.3.3 End User License Agreements
Oracle and its Distributors shall distribute the Netscape Products
to End Users only under the terms of, and shall ensure that the
Netscape Products are subject to, applicable end user license
agreements with terms at least as restrictive as
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those set forth in the end user license agreement attached hereto as
Exhibit C ("End User License Agreement").
3.3.4 Third Party Requirements. In the event that Netscape is required by
a third party software supplier to cease and to cause its licensees
to cease reproduction and distribution of a particular revision of
the Netscape Products, Oracle agrees to comply herewith provided
Netscape provides Oracle with thirty (30) days prior written notice
and further provided Netscape replaces such affected Netscape
Product with a functionally equivalent Netscape Product as soon as
commercially practicable, before Oracle is required to cease
reproduction and distribution of such third party software.
3.4 Enforcement of Sublicense Agreements
Oracle and its Distributors shall use commercially reasonable efforts to
enforce each Distributor License Agreement and End User License Agreement,
whichever may be relevant, with at least the same degree of diligence used in
enforcing similar agreements governing others, which in any event shall be that
sufficient to adequately enforce such agreements. Oracle shall use commercially
reasonable efforts to protect Netscape's copyright, shall notify Netscape of any
breach of a material obligation under a Distributor License Agreement or an End
User License Agreement affecting Netscape Products, and will cooperate with
Netscape in any legal action to prevent or stop unauthorized use, reproduction
or distribution of Netscape Products.
4. Fees and Payment
4.1 Prepaid License Fees
4.1.1 Oracle shall pay to Netscape the non-refundable prepaid license fees
("Prepaid License Fees") specified in Exhibit B hereto. Upon
exhaustion of the Prepaid License Fees, Oracle shall pay to Netscape
the license fee specified in Exhibit B for each license granted by
Oracle and/or Distributors to End Users in connection with the
distribution of all or any portion of a Netscape Product or Update.
Subject to the terms of this Agreement, the Prepaid License Fees
shall be credited against the license fees accruing under this
Agreement during the Initial Term of the Agreement. License fees
shall accrue for any license to a Netscape Product at the time
revenue is recognized by Oracle for shipment of an Oracle Product
with the Netscape Product. In the event that Oracle distributes (i)
at no charge Oracle Products containing the Netscape Product or (ii)
Oracle Products containing the Netscape Product which Oracle does
not intend to recognize revenue on at time of shipment, license fee
hereunder shall still accrue at the time of shipment.
4.1.2 Service Fees. Oracle shall pay to Netscape the service fees set
forth in Exhibit B for maintenance and support services described in
Exhibit D hereto.
4.2 Payment and Taxes
4.2.1 Payments. All payments shall be made in United States dollars, at
Netscape's option, (i) at Netscape's address as indicated in this
Agreement or at such other address as Netscape may from time to time
indicate by proper notice hereunder or (ii) by wire transfer to a
bank and account number designated by Netscape. Payments, if any,
shall accompany the applicable quarterly report under Section 4.3.
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4.2.2 Taxes. All prices are in U.S. Dollars and are exclusive of any
applicable taxes. Oracle shall pay, indemnify and hold Netscape
harmless from all import duties, customs fees, levies or imposts,
and all sales, use, value added or other taxes of any nature, other
than taxes on Netscape's net income, including penalties and
interest, and all government permit or license fees assessed upon or
with respect to any products sold or licensed to Oracle and any
services rendered to Oracle (except to the extent Oracle provides
Netscape with a valid tax exemption certificate). If any applicable
law requires Oracle to withhold amounts from any payments to
Netscape hereunder, Oracle shall effect such withholding, remit such
amounts to the appropriate taxing authorities and promptly furnish
Netscape with tax receipts evidencing the payments of such amounts.
4.3 Quarterly Reports
To the extent permitted and consistent with Oracle's standard business
practices, Oracle and its Distributors shall maintain accurate records of
distribution to Distributors and/or End Users pursuant to Section 2.1.1 (ii) by
Country and Zip Code/Country Code, description of Netscape Product and quantity,
and any further information as Netscape may from time to time reasonably
request. Oracle shall report to Netscape within forty-five (45) calendar days
after the end of each Oracle fiscal quarter, the type, if applicable, and number
of licenses granted for the Netscape Products during such prior quarter by
Oracle to Distributors and End Users including zip/postal code and/or country
therefor. Oracle shall require its Distributors and each Distributor shall
require its Distributors to report this information to Oracle on a quarterly
basis and Oracle will include it in the report for the quarter in which Oracle
received the information. For the purposes of this Agreement, "Oracle fiscal
quarter" commences on the first day of June, September, December and March of
each year during the term of this Agreement.
4.4 Audit of Records
4.4.1 Oracle shall keep and maintain full, true, and accurate records
containing all data reasonably required for verification of amounts
to be paid, and the quantity of Netscape Products distributed.
Netscape shall have the right, no more than once every year during
normal business hours upon at least thirty (30) days prior notice,
to audit and analyze, by a nationally recognized independent public
accounting firm, the relevant records of Oracle to verify compliance
with the provisions of this Agreement. The audit shall be conducted
at Netscape's expense unless the results of such audit establish
that inaccuracies have resulted in underpayment to Netscape of more
than five percent (5%) of the amount actually due, in which case
Oracle shall pay all amounts due and bear the expenses of the audit.
Results of such audit will be held confidential.
4.4.2 Upon Netscape's request that Oracle perform an audit of any first
tier Distributor's books and records with respect to distribution of
the Netscape Products, Oracle shall promptly perform such audit at
its own cost, or provide Netscape with written notice of its
election not to audit such Distributor and permit Netscape, at
Netscape's cost and with reasonable assistance from Oracle, to audit
such Distributor. Netscape shall be responsible for the reasonable
expenses associated with such audit unless the results of such audit
establish that inaccuracies have resulted in underpayment to
Netscape of more than five percent (5%) of the amount actually due,
in which case Oracle shall pay all amounts due and bear the expenses
of the audit. Results of such audit will be held confidential.
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4.4.3 Upon Netscape's request that Oracle perform an audit of any End
User's books and records with respect to reproduction and use of the
Netscape Products, Oracle shall promptly perform such audit at its
own cost, or provide Netscape with written notice of its election
not to audit such End User and permit Netscape, at Netscape's cost
and with reasonable assistance from Oracle, to audit such End User.
Netscape shall be responsible for the reasonable expenses associated
with such audit unless the results of such audit establish that
inaccuracies have resulted in underpayment to Netscape of more than
five percent (5%) of the amount actually due, in which case Oracle
shall pay all amounts due and bear the expenses of the audit.
Results of such audit will be held confidential.
5. Deliverables, Updates, and Technical Support
5.1 Deliverables
Netscape shall provide Oracle with the deliverables indicated in Exhibit B
("Deliverables"). All deliveries under this Agreement shall be F.C.A. Netscape.
"F.C.A." means Free Carrier Alongside and shall have the definition in INCOTERMS
1990.
5.2 Updates and Technical Support
Netscape shall provide Oracle with Updates as they become available from
Netscape at the pricing, terms and conditions specified in Exhibits B and D.
6. Trademarks and Trade Names/License to Use
Whenever Oracle makes reference to the Netscape Products or the functionality of
the Netscape Products provided within the Oracle Product, Oracle shall use, and
is hereby granted a worldwide non-transferable, non-exclusive and restricted
license to use (with no right to sublicense), "Netscape Navigator Included" and
those Netscape trademarks and trade names relating to the applicable Netscape
Products in any advertising, marketing, technical or other materials related to
such Netscape Products which are distributed by Oracle or its Distributors in
connection with this Agreement. Such use shall be in accordance with Netscape's
then current trademark guidelines attached hereto as Exhibit F and to be
provided and updated by Netscape from time to time. Oracle need not use
Netscape's trademarks and trade names in any country in which their connotation
is offensive and will consult with Netscape as to the foreign translation of
Netscape trademarks and trade names so that Netscape can help ensure uniformity
with their use by Netscape or third parties. Oracle shall dearly indicate
Netscape's ownership of Netscape's trademarks or trade names. All such usage
shall inure to Netscape's benefit. Oracle agrees not to register, and agrees to
obtain the agreement of its Distributors not to register, any Netscape
trademarks or trade names without Netscape's express prior written consent. Upon
Netscape's request from time to time Oracle agrees to provide Netscape with
copies of goods bearing Netscape's trademarks and trade names so that Netscape
can verify that the quality of Oracle's use of such trademarks is comparable to
that of Netscape's use thereof. Oracle shall suspend use of Netscape trademarks
and trade names if such quality is reasonably deemed inferior by Netscape until
Oracle has taken such steps as Netscape may reasonably require to solve the
quality deficiencies. Netscape will update Oracle when trademark guidelines
change.
7. Proprietary Rights
7.1 Proprietary Rights
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Title to and ownership of all copies of the Netscape Products and
Documentation whether in machine-readable or printed form, and including,
without limitation, Derivative Works, compilations, or collective works thereof
and all related technical know-how and all rights therein (including without
limitation rights in patents, copyrights, and trade secrets applicable thereto),
are and shall remain the exclusive property of Netscape or its suppliers. Oracle
shall not take any action to jeopardize, limit or interfere in any manner with
Netscape's ownership of and rights with respect to the Netscape Products and
Documentation. Oracle shall have only those rights in or to the Netscape
Products and Documentation granted to it pursuant to this Agreement.
7.2 Proprietary Notices
7.2.1 No Alteration of Notices. Oracle and its employees and agents shall
not remove or alter any trademark, trade name, copyright, or other
proprietary notices, legends, symbols, or labels appearing on or in
copies of the Netscape Products and Documentation delivered to
Oracle by Netscape and shall use the same notices, legends, symbols,
or labels in and on copies of Netscape Products and Documentation
made pursuant to Section 2.1 as are contained in and on such
Netscape Products and Documentation.
7.2.2 Notice. Each portion of the Netscape Products and Documentation
reproduced by Oracle shall include the intellectual property notice
or notices appearing in or on the corresponding portion of such
materials as delivered by Netscape hereunder. Oracle shall and shall
require its Distributors ensure that all copies of the Netscape
Products made pursuant to this Agreement conspicuously display a
notice substantially in the following form:
Copyright (C) 1994 (or other appropriate year(s)), Netscape
Communications Corporation. All Rights Reserved.
If Oracle is unsure of the appropriate year(s), it shall consult
Netscape to obtain the correct designation. Such notice shall be on
labels on all media containing Netscape Products. If the copyright
symbol "(C)" cannot technically be reproduced, Oracle shall use the
word "Copyright" followed by the notation "(c)" in its place.
8. Confidential Information and Disclosure
8.1 Confidential Information
Each party agrees to maintain all Confidential Information in confidence
to the same extent that it protects its own similar Confidential Information and
to use such Confidential Information only as permitted under this Agreement. For
purposes of this Agreement "Confidential Information" shall mean information
including, without limitation, computer programs, code, algorithms, know-how,
formulas, processes, ideas, inventions (whether patentable or not), schematics
and other technical, business, financial and product development plans,
forecasts, strategies and information marked "Confidential" or if disclosed
verbally reduced to writing within thirty (30) days of disclosure and marked as
"Confidential." Each party agrees to take all reasonable precautions to prevent
any unauthorized disclosure or use of Confidential Information including,
without limitations disclosing Confidential Information only to its employees
(a) with a need to know to further permitted uses of such information and (b)
who are parties to appropriate agreements sufficient to comply with this Section
8, and (c) who are informed of the nondisclosure/non-use obligations imposed by
this Section 8 and both
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parties shall take appropriate steps to implement and enforce such
non-disclosure/non-use obligations. The foregoing restrictions on disclosure and
use shall survive for three (3) years following termination of this Agreement
but shall not apply with respect to any Confidential Information which: (i) was
or becomes publicly known through no fault of the receiving party; (ii) was
rightfully known or becomes rightfully known to the receiving party without
confidential or proprietary restriction from a source other than the disclosing
party; (iii) is independently developed by the receiving party without the
participation of individuals who have had access to the Confidential
Information; (iv) is approved by the disclosing party for disclosure without
restriction in a written document which is signed by a duly authorized officer
of such disclosing party; and (v) the receiving party is legally compelled to
disclose; provided, however, that prior to any such compelled disclosure, the
receiving party will (a) assert the privileged and confidential nature of the
Confidential Information against the third party seeking disclosure and (b)
cooperate fully with the disclosing party in protecting against any such
disclosure and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Confidential Information. In the event that such
protection against disclosure is not obtained, the receiving party will be
entitled to disclose the Confidential Information, but only as and to the extent
necessary to legally comply with such compelled disclosure.
8.2 Confidentiality of Agreement
Unless required by law, and except to assert its rights hereunder or for
disclosures to its own employees on a "need to know" basis, both parties agree
not to disclose the terms of this Agreement or matters relating thereto without
the prior written consent of the other party, which consent shall not be
unreasonably withheld.
9. Warranties
9.1. Limited Warranty
Subject to the limitations set forth in this Agreement, Netscape warrants
only to Oracle that the Netscape Products when properly adapted, installed, and
used will substantially conform to the specifications in the Documentation in
effect when the Netscape Products are shipped to Oracle. Netscape's warranty and
obligation shall extend for a period of ninety (90) days ("Warranty Period")
from the date Netscape first delivers the Netscape Products to Oracle. All
warranty claims not made in writing or not received by Netscape within the time
period specified above shall be deemed waived. Netscape's warranty and
obligation is solely for the benefit of Oracle, who has no authority to extend
this warranty to any other person or entity. NETSCAPE MAKES NO WARRANTY THAT ALL
ERRORS OR FAILURES WILL BE CORRECTED.
9.2 EXCLUSIVE WARRANTY
THE EXPRESS WARRANTY SET FORTH IN SECTION 9.1 CONSTITUTES THE ONLY
WARRANTY WITH RESPECT TO THE NETSCAPE PRODUCTS. NETSCAPE MAKES NO OTHER
REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED
(EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE NETSCAPE PRODUCTS.
NETSCAPE EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. NETSCAPE DOES NOT WARRANT THAT THE NETSCAPE
PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE NETSCAPE PRODUCTS WILL BE
SECURE OR UNINTERRUPTED AND HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT
THEREOF. THERE IS ALSO NO IMPLIED WARRANTY OF NON-INFRINGEMENT; THE SOLE REMEDY
FOR INFRINGEMENT IS PROVIDED IN SECTION 10. This subsection shall be enforceable
to the extent allowed by applicable law.
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9.3 Defects Not Covered by Warranties
Netscape shall have no obligations under the warranty provisions set forth
in Section 9.1 if any nonconformance is caused by: (a) Oracle's incorporation,
attachment or otherwise engagement of any attachment, feature, program, or
device to the Netscape Products, or any part thereof; or (b) accident;
transportation; neglect or misuse; alteration, modification, or enhancement of
the Netscape Products by Oracle; failure to provide a suitable installation
environment; use of supplies or materials not meeting specifications; use of the
Netscape Products for other than the specific purpose for which the Netscape
Products are designed; use of the Netscape Products on any systems other than
the specified hardware platform for such Netscape Products; or Oracle's use of
defective media or defective duplication of the Netscape Products.
9.4 Exclusive Remedy
If Oracle finds what it believes to be errors or a failure of the Netscape
Products to meet functional specifications set forth in the Documentation in
effect when the Netscape Products are shipped to Oracle, and provides Netscape
with a written report during the Warranty Period, Netscape will use reasonable
efforts to correct promptly, at no charge to Oracle, any such errors or
failures. This is Oracle's sole and exclusive remedy for any express or implied
warranties hereunder.
9.5 Warranty of Authority
Each party hereby warrants that such party has the authority to enter into
and be bound by the terms of this Agreement.
10. Indemnification
10.1 Netscape shall defend and indemnify Oracle against, or settle at
Netscape's option, any action brought against Oracle to the extent it is based
on a claim that reproduction or distribution by Oracle of the Netscape portion
of the Netscape Products furnished hereunder within the scope of a license
granted hereunder directly infringes any valid patent issued as of the Effective
Date, copyright, trademark or trade secret. Pursuant to the preceding sentence,
Netscape will pay resulting costs, damages and legal fees finally awarded
against Oracle in such action which are attributable to such claim provided that
Oracle (a) promptly (within twenty (20) days) notifies Netscape in writing of
any such action and Netscape has sole control of the defense and all related
settlement negotiations, and (b) cooperates with Netscape, at Netscape's
expense, in defending or settling such action.
10.2 Should a Netscape Product become, or be likely to become in
Netscape's opinion, the subject of infringement of such patent, copyright,
trademark or trade secret, Netscape may (i) procure for Oracle the right to
continue using the same or (ii) replace or modify it to make it non-infringing,
or if neither (i) nor (ii) is commercially practicable, (iii) terminate the
license for the infringing Netscape Product and refund the license fees paid for
those Netscape Product. Netscape shall have no obligation or liability for any
claim based upon: (a) use of other than the then current, unaltered version of
the Netscape Product, unless the infringing portion is also in the then current,
unaltered release, provided Netscape furnishes Oracle with a non-infringing
version upon Netscape's becoming aware of an infringing version; (b) use,
operation or combination of Netscape Products with non-Netscape programs, data,
equipment or documentation if such infringement would have been avoided but for
such use, operation or combination; (c) Oracle's or its agent's activities after
Netscape has notified Oracle that Netscape
11
believes such activities may result in such infringement; (d) compliance with
Oracle's designs, specifications or instructions if such infringement would have
been avoided but for such compliance; (e) any modifications or marking of the
Netscape Products not specifically authorized in writing by Netscape; or (f)
Oracle's use of any trademarks other than the Netscape trademarks pursuant to
Section 6. With respect to third party software provided with the Netscape
Products, Netscape shall indemnify Oracle pursuant to Subsections 10.1 and 10.2
herein to the same extent Netscape is indemnified by such third party provided
of the software. The foregoing states the entire liability of Netscape and the
exclusive remedy of Oracle with respect to infringement of any intellectual
property rights, whether under theory of warranty, indemnity or otherwise.
10.3 General Indemnification by Oracle. Oracle agrees to indemnify, hold
harmless and, at Netscape's request, defend Netscape and its suppliers from and
against any and all claims, liabilities, losses damages expenses and costs
(including reasonable attorneys' fees and costs) arising out of, in connection
with or relating to (i) Oracle's failure to include in each End User License
Agreement the contractual terms required to be included therein pursuant to
Section 3.3.3 or any breach thereof by End User, or (ii) any use by Oracle or
its Distributions or End Users of any product not provided by Netscape hereunder
in combination or bundled with the Netscape Products if such claim or damage
would have been avoided but for such use in combination or bundling, or (iii)
any defective duplication of or the use of defective media in the duplication of
Netscape Products, or (iv) Oracle's failure to include in each Distributor
License Agreement the contractual terms required to be included therein pursuant
to Section 3.3.2 or any breach thereof by Distributor.
11. Limitation of Liability
11.1 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.
11.2 IN NO EVENT WILL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR (a) ANY
REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY ORACLE, ANY AGENT OF
ORACLE OR DISTRIBUTOR; (b) FAILURE OF THE NETSCAPE PRODUCTS TO PERFORM AS
SPECIFIED HEREIN EXCEPT AS, AND TO THE EXTENT, OTHERWISE EXPRESSLY PROVIDED
HEREIN; (c) FAILURE OF THE NETSCAPE PRODUCTS TO PROVIDE SECURITY; OR (d) ANY USE
OF THE NETSCAPE PRODUCTS OR THE DOCUMENTATION OR THE RESULTS OR INFORMATION
OBTAINED OR DECISIONS MADE BY END USERS OF THE NETSCAPE PRODUCTS OR THE
DOCUMENTATION. THE REMEDIES PROVIDED HEREIN ARE ORACLE'S SOLE AND EXCLUSIVE
REMEDIES.
11.3 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY AND
EXCEPT FOR A BREACH OF SECTIONS 8, NETSCAPE'S ENTIRE LIABILITY TO ORACLE FOR
DAMAGES CONCERNING PERFORMANCE OR NONPERFORMANCE BY NETSCAPE OR IN ANY WAY
RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, AND REGARDLESS OF WHETHER THE
CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT OR IN TORT, SHALL NOT EXCEED THE
AMOUNT RECEIVED BY NETSCAPE FROM ORACLE UNDER THIS AGREEMENT FOR THE NETSCAPE
PRODUCT GIVING RISE TO SUCH CLAIM.
11.4 THE PROVISIONS OF THIS SECTION 11 ALLOCATE THE RISKS UNDER THIS
AGREEMENT BETWEEN NETSCAPE AND ORACLE. NETSCAPE'S PRICING REFLECTS THIS
ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
12
12. Term of Agreement
Unless sooner terminated under the provisions of Section 13, or otherwise
rightfully terminated, this Agreement shall remain in effect for (a) a period of
two (2) years from the date of production release/FCS (First Customer Ship) of
an Intel-based version of an Oracle Network Computer or (b) thirty-six (36)
months after the Effective Date, whichever is earlier ("Initial Term"). No later
than twelve (12) months prior to the expiration of the Initial Term (the
"Renewal Date"), the parties shall negotiate and execute an extension of this
Agreement for an agreed upon term ("the Subsequent Term"); if the parties do not
so execute an extension for a Subsequent Term, this Agreement shall terminate as
of the end of the Initial Term.
13. DEFAULT AND TERMINATION
13.1 Termination for Default
If either party defaults in any of its obligations under this Agreement,
the non-defaulting party, at its option shall have the right to terminate this
Agreement by written notice unless, within thirty (30) calendar days after
written notice of such default, the defaulting party remedies the default, or,
in the case of a default which cannot with due diligence be cured within a
period of thirty (30) calendar days, the defaulting party institutes within the
thirty (30) calendar days steps necessary to remedy the default and thereafter
diligently prosecutes the same to completion. In the event Oracle breaches
Sections 2.1.1, 2.1.2, 6, 7.2 and/or 8 of this Agreement, Netscape may
immediately terminate this Agreement. In the event Netscape breaches Section 8.1
of this Agreement, Oracle may immediately terminate this Agreement.
13.2 Bankruptcy
Either party shall have the right to terminate this Agreement if the other party
ceases to do business in the normal course, becomes or is declared insolvent or
bankrupt, is the subject of any proceeding relating to its liquidation or
insolvency which is not dismissed within ninety (90) calendar days, or makes an
assignment for the benefit of its creditors.
13.3 Effect on Rights
13.3.1 Termination of this Agreement by either party shall not act as a
waiver of any breach of this Agreement and shall not act as a
release of either party from any liability for breach of such
party's obligations under this Agreement.
13.3.2 Except as specified in Sections 13.4 and 13.5 below, upon
termination or expiration of this Agreement, all licenses for
Netscape Products and Documentation granted under this Agreement
shall terminate.
13.3.3 Except where otherwise specified, the rights and remedies granted
to a party under this Agreement are cumulative and in addition to,
and not in lieu of, any other rights or remedies which the party
may possess at law or in equity, including without limitation
rights or remedies under applicable patent, copyright, trade
secrets, or proprietary rights laws, rules or regulations.
13.4 Effect of Termination
Within thirty (30) calendar days after termination of this Agreement,
Oracle shall either deliver to Netscape or destroy all copies of the Netscape
Products and Documentation (except as provided in Section 13.5) and any other
materials provided by Netscape to Oracle hereunder in
13
its possession or under its control, and shall furnish to Netscape an affidavit
signed by an authorized signatory of Oracle certifying that, to the best of its
knowledge, such delivery or destruction has been fully effected. Notwithstanding
the foregoing, and provided Oracle fulfills its obligations specified in this
Agreement with respect to such items, Oracle may continue to use and retain
copies of the Netscape Products and Documentation to the extent, but only to the
extent, necessary to support and maintain Netscape Products rightfully
distributed to End Users by Oracle prior to termination of this Agreement.
Without limiting the generality of the foregoing, and provided that Oracle has
not breached Sections 2.1.1, 2.1.2, 6, 7.2 or 8: (i) for six (6) months
following any termination or expiration, Oracle may sublicense and distribute in
accordance with the terms of this Agreement any inventory of the Netscape
Product, including work in process, on hand or in the manufacturing process at
the time of such termination or expiration; (ii) Oracle may continue to exercise
the rights and licenses granted hereunder until six (6) months after termination
or expiration to fill any orders received by Oracle or its Distributors from End
Users or potential End Users prior to the effective date of termination or
expiration; and (iii) subject to payment of the fees set forth in Section 3 of
Exhibit B, Oracle may continue to exercise the rights and licenses granted
hereunder as necessary to provide maintenance and technical support for End
Users under support agreements as of the date of any termination or expiration.
In the event that Oracle has breached Sections 2.1.1, 2.1.2, 6, 7.2 or 8, then
Oracle's rights under this Agreement with respect to the Netscape Products shall
immediately terminate. Notwithstanding any of the foregoing, Oracle shall still
have the right following expiration of the Agreement or termination of the
Agreement for any cause to sublicense, provided in accordance with the terms of
this Agreement, any remaining inventory of the one million (1,000,000) copies of
the Netscape Products for which Oracle has prepaid Netscape.
13.5 Continuing Obligations
13.5.1 Payment of Accrued Fees. Within sixty (60) calendar days of
termination of this Agreement, Oracle shall, pay to Netscape all
sums then due and owing. Any other such sums shall subsequently be
promptly paid as they become due and owing.
13.5.2 Continuance of Sublicenses. Notwithstanding the termination of
this Agreement, all End User sublicenses which have been properly
granted by Oracle and Distributors pursuant to this Agreement
prior to its termination shall survive; provided, however, that
Oracle shall immediately terminate and shall require Distributors
to immediately terminate an End User sublicense upon the failure
of the End User to cure a breach of or default under the End User
License Agreement within forty-five (45) days after written
notification to the End User by Oracle or to Oracle by Netscape of
End User's failure to comply with its duties and obligations under
the applicable sections of the End User License Agreement that are
required to be included therein pursuant to this Agreement.
13.5.3 Other Continuing Obligations. The respective rights and
obligations of Netscape and Oracle under the provisions of
Sections 2.1, 2, 2.2, 3, 3.1, 3.4, 4, 6, 7, 8, 9.2, 9.3, 9.4, 9.5,
10, 11, 13.3, 13.4, 13.5 and 14 shall survive any termination of
this Agreement.
14. General Provisions
14.1 Notices
Any notice, request, demand, or other communication required or permitted
hereunder shall be in writing and shall be deemed to be properly given upon the
earlier of (a) actual receipt by the addressee or (b) five (5) business days
after deposit in the mail, postage prepaid, when
14
mailed by registered or certified airmail, return receipt requested, or two (2)
business days after being sent via private industry courier to the respective
parties at the addresses set forth herein or to such other person or address as
the parties may from time to time designate in a writing delivered pursuant to
this Section 14.1. Notices to Netscape and Oracle shall be attention to: Legal
Department.
14.2 Waiver and Amendment
The waiver by either party of a breach of or a default under any provision
of this Agreement, shall not be construed as a waiver of any subsequent breach
of the same or any other provision of the Agreement, nor shall any delay or
omission on the part of either party to exercise or avail itself of any right or
remedy that it has or may have hereunder operate as a waiver of any right or
remedy. No amendment or modification of any provision of this Agreement shall be
effective unless in writing and signed by a duly authorized signatory of
Netscape and Oracle.
14.3 Assignment
This Agreement and the licenses granted hereunder are to a specific legal
entity or legal person, and are not assignable by Oracle, nor are the
obligations imposed on Oracle delegable. Any attempt to sublicense (except as
expressly permitted herein) assign or transfer any of the rights, duties or
obligations under this Agreement in derogation hereof shall be null and void.
14.4 Governing Law
This Agreement is entered into in the State of California, U.S.A., and
this Agreement shall be governed by and construed in accordance with the laws of
the State of California, U.S.A., without reference to its conflicts of law
provisions. Any dispute regarding this Agreement shall be subject to the
exclusive jurisdiction of the California state courts in and for Santa Clara
County, California (or, if there is exclusive federal jurisdiction, the United
States District Court for the Northern District of California), and the parties
agree to submit to the personal and exclusive jurisdiction and venue of these
courts. This Agreement will not be governed by the United Nations Convention of
Contracts for the International Sale of Goods, the application of which is
hereby expressly excluded.
14.5 Relationship of the Parties
No agency, partnership, joint venture, or employment is created as a
result of this Agreement and neither Oracle nor its agents have any authority of
any kind to bind Netscape in any respect whatsoever.
14.6 Captions and Section Headings
The captions and section and paragraph headings used in this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement.
14.7 Severability
If the application of any provision or provisions of this Agreement to any
particular facts of circumstances shall be held to be invalid or unenforceable
by any court of competent jurisdiction, then (a) the validity and enforceability
of such provision or provisions as applied to any other particular facts or
circumstances and the validity of other provisions of this Agreement shall not
in any way be affected or impaired thereby and (b) such provision or provisions
shall be reformed without further action by the parties hereto to and only to
the extent necessary to make
15
such provision or provisions valid and enforceable when applied to such
particular facts and circumstances.
14.8 Force Majeure
Either party shall be excused from any delay or failure in performance
hereunder, except the payment of monies by Oracle to Netscape, caused by reason
of any occurrence or contingency beyond its reasonable control, including but
not limited to, acts of God, earthquake, labor disputes and strikes, riots, war,
novelty of product manufacture or other unanticipated product development
problems, and governmental requirements. The obligations and rights of the party
so excused shall be extended on a day-to-day basis for the period of time equal
to that of the underlying cause of the delay.
14.9 Entire Agreement
This Agreement, including the Exhibits hereto, constitutes the entire
agreement between the parties concerning the subject matter hereof and
supersedes all proposals or prior agreements whether oral or written, and all
communications between the parties relating to the subject matter of this
Agreement and all past courses of dealing or industry custom. The terms and
conditions of this Agreement shall prevail, notwithstanding any variance with
any purchase order or other written instrument submitted by Oracle, whether
formally rejected by Netscape.
14.10 English
This Agreement is in the English language only, which language shall be
controlling in all respects, and all versions hereof in any other language shall
not be binding on the parties hereto. All communications and notices to be made
or given pursuant to this Agreement shall be in the English language.
14.11 Source Code Escrow
14.11.1 Escrow Account. Netscape has placed and agrees to maintain a
copy of the source code and related materials ("Source Code")
for the Netscape Product, including each Update, in escrow
with Data Securities International, Inc. (the "Escrow Agent")
pursuant to a Master Technology Escrow Agreement with the
Escrow Agent dated September 1, 1995 (the "Escrow Agreement"),
and, upon written request by Oracle, to permit Oracle at
Oracle's expense to become a beneficiary of such agreement by
execution of Exhibit A thereto.
14.11.2 License. Netscape hereby grants to Oracle a nontransferable,
nonexclusive license to use, reproduce and modify the Source
Code to support and maintain the Netscape Product and for no
other purpose if Netscape is no longer in the business of
supporting Netscape Products. Such license shall be effective
upon the proper release of the Source Code from the Escrow
Agent, in accordance with the terms of the Escrow Agreement.
The object code derived from source code modified by Oracle is
subject to the same restrictions and obligations as apply to
Oracle with respect to the Netscape Product under this
Agreement, including but not limited to the payment of license
fees. Netscape shall have no obligation to support or maintain
any Source Code modified by Oracle.
14.11.3 Ownership. Netscape shall retain all ownership rights, title
and interest in and to the Source Code, including all patents,
copyrights, trademarks, trade secrets and other intellectual
property rights inherent therein.
16
14.11.4 Confidentiality
14.11.4.1 Any Source Code which Oracle receives under this
Agreement shall be subject to the confidentiality
provisions contained in Section 8; provided,
however, that the restrictions set forth in Section
8 shall survive for a period of ten (10) years
after the termination of this Agreement with
respect to the Source Code.
14.11.4.2 Oracle agrees that, in addition to the provisions
of Section 8, it will protect the confidentiality
of the Source Code using the highest level of
security that applies to its own most confidential
source code.
14.11.4.3 Oracle shall be fully responsible for the conduct
of its employees and independent contractors who
may in any way breach the provisions of Section 8
and this Section 14.11 as they may relate to the
Source Code. Oracle agrees to notify Netscape
promptly in the event of any breach of its security
under conditions in which it would appear that the
trade secrets represented by the Source Code were
prejudiced or exposed to loss. Oracle shall, upon
request of Netscape, take all other reasonable
steps, necessary to recover any compromised trade
secrets disclosed to or placed in the possession of
Oracle by virtue of this Agreement. The cost of
taking such steps shall be borne by Oracle.
14.11.4.4 Oracle acknowledges that any breach of any of its
obligations with respect to confidentiality or use
of Source Code hereunder is likely to cause or
threaten irreparable harm to Netscape and,
accordingly, Oracle agrees that in such event
Netscape shall be entitled to equitable relief to
protect its interest therein, including, but not
limited to, preliminary and permanent injunctive
relief, as well as money damages.
14.12 Source Code Option
Netscape hereby grants Oracle an option to license the source code version
of the next Major Update of the Netscape Navigator 3.0 LAN version (currently
named Netscape Navigator 4.0 LAN version), excluding Third Party Code, as
defined below (the "Netscape Source"), subject to the following terms (the
"Source Option").
14.12.1 Option Length. The Source Option shall terminate on the 180th
day following the date of production release/FCS (First
customer Ship) of the object code version of the Netscape
Source.
14.12.2 Exercise Price. The exercise price for the Source Option shall
be US $2,000,000 (two million dollars), to be paid to Netscape
on the date of exercise.
14.12.3 Third Party Code. Oracle acknowledges that the Netscape Source
may contain source code or object code licensed by Netscape
from a third party ("Third Party Code"), and that Netscape
does not have the right to sublicense Third Party Code to
Oracle. All licenses granted hereto are subject to this
limitation of Third Party Code. A list of Third Party Code in
the Netscape Source as of September 1996 is set forth in
Exhibit G. Oracle acknowledges that it shall be
17
Oracle's responsibility to obtain licenses to Third Party
Code. If Oracle exercises the Source Option, Netscape will
make an introductory phone call to the vendor of the Third
Party Code requesting a waiver permitting Netscape to deliver
such Third Party Code to Oracle for the sole purpose of Oracle
porting to a platform of any Oracle Preferred Product or
non-Intel based Oracle Network Computer not available from
Netscape (a "Ported Version"), in exchange for which Oracle
will return the Ported Version to the Third Party Code vendor
(if such vendor so desires). If a Third Party Code vendor
disagrees, Netscape will provide Oracle with a name and
contact information at the Third Party Code vendor.
14.12.4 Effect of Exercise of Source Option. Following Oracle's
exercise of and payment for the Source Option:
(a) Netscape shall grant Oracle an internal use license to
use, reproduce and modify the Netscape Source solely in
order to port and improve the integration between the
Netscape Source and any Oracle Preferred Product or
non-Intel based Oracle Network Computer and not to
create any Derivative Work or for any other purpose. The
Netscape Source, as modified by Oracle under this
Section 14.12.4(a) is referred to below as the
("Modified Source"), and
(b) Oracle shall return the Modified Source to Netscape at
or prior to commercial release.
(c) The rights granted to Oracle to distribute Netscape
Products under Section 2 of the Agreement shall apply to
the object code version of the Modified Source.
(d) Oracle shall ensure that the Modified Source is of a
quality comparable to Oracle programs and the Netscape
Source. Oracle shall provide the Modified Source to
Netscape prior to release of the Modified Source to
third parties. Netscape may treat the Modified Source,
and the object code versions compiled therefrom, as
Netscape treats its own code.
14.12.5 No Right to Sublicense. Oracle shall not have the right to
sublicense or distribute the Netscape Source or the Modified
Source.
14.12.6 Protection of Source Code. The Netscape Source and Modified
Source shall be Confidential Information governed by the terms
of Section 8 whether or not the Source Code is marked
"Confidential" by Netscape, provided however that the
restrictions set forth in Section 8 shall survive for a period
of ten (10) years after the date of exercise of this Source
Option.
14.12.7 Rights Limited. This Agreement does not grant any right or
license to Oracle other than those expressly provided herein,
and no other grant or license is to be implied by or inferred
from any provision of this Agreement.
14.13 Porting.
Notwithstanding Section 14.12, upon reasonable written notice to Netscape,
Oracle shall have the right at Oracle's expense, to access Netscape's porting
facilities under Netscape's standard terms and conditions therefor solely to
port to and integrate the Netscape Preferred Product with Oracle Preferred
Products or non-Intel based Oracle Network Computers and not to create any
Derivative Work or for any other purpose. Netscape Preferred Product will
include the beta version thereof which Netscape generally provides porting
facilities access to other OEM
18
partners. It is Netscape's policy to make a beta version available to Netscape's
OEM partners only when Netscape, in its sole discretion, deems such beta version
generally stable enough for distribution to such OEM partners. Examples of
Oracle's expenses, calculated based on Netscape's cost, could include computer
equipment used for project, software tools and third party software components
for project, support from Netscape engineering and documentation writers for
project, customized quality assurance test scripts, cost for space and any
ongoing Netscape support for this project.
19
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
duly authorized representatives of the parties effective as of the Effective
Date.
NETSCAPE COMMUNICATIONS ORACLE CORPORATION
CORPORATION
By: /s/ Peter L.S. Currie By: /s/ Karen White
----------------------------- ------------------------------
Signature Signature
Name: Peter L.S. Currie Name: Karen White
--------------------------- ----------------------------
Print or Type Print or Type
Title: SVP & CFO Title: SVP
-------------------------- ---------------------------
Date: October 17, 1996 Date: October 17, 1996
--------------------------- ----------------------------
Address: 501 E. Middlefield Road
Mountain View, CA 94043
Exhibits:
Exhibit A - Description of Netscape Products
Exhibit B - Pricing, Payment Schedules and Deliverables
Exhibit C - Netscape's End User License Agreements
Exhibit D - OEM Maintenance and Support
Exhibit E-1 - Oracle Preferred Products
Exhibit E-2 - Oracle Non-Preferred Products
Exhibit F - Netscape Trademark Usage Guidelines
Exhibit G - Third Party Code
Exhibit H - Oracle Subsidiaries
20
EXHIBIT A
NETSCAPE PRODUCT DESCRIPTIONS
Client Products Platforms
-----------------------------------------------------------------------
Netscape Navigator LAN 3.0* Unix, Mac, Windows
* The license for the Netscape Products set forth in this Agreement includes the
current and subsequent versions of the above products.
21
EXHIBIT B
PRICING, PAYMENT SCHEDULES AND DELIVERABLES
1. Commitment and Sub-License Fee Prepayment for Netscape Products. During the
Initial Term of this Agreement, Oracle commits to purchase and license
one-million (1,000,000) copies of the Netscape Product set forth in Section 2
below. Oracle agrees to pay to Netscape a nonrefundable sub-license fee
prepayment ("Prepaid License Fees") for the Netscape Products equal to
One-Million Dollars ($1,000,000) due and payable within ten (10) days of the
Effective Date. After the Prepaid License Fees are fully depleted, License fees
for the Netscape Product will be paid in accordance with Section 2 of this
Exhibit B and Section 4 of this Agreement.
In addition, Netscape grants Oracle a royalty free License to use 100 copies of
Netscape Navigator LAN (object code) solely for internal development purposes
and not for redistribution. These 100 copies shall not count towards the
1,000,000 copies in the preceding paragraph.
2. Pricing for Netscape Products. The License fee for each copy of Netscape
Product shall be as follows:
Navigator LAN 3.0 Binary* $1.00**
* The license for the Netscape Products set forth in this Agreement includes the
current, and subsequent versions of the above products.
Major Updates for the Netscape Products. Major Updates for the Netscape Products
shall be supplied to Oracle at the pricing described below. Major Updates must
be distributed to End Users who have previously received the Netscape Product
from Oracle under this Agreement and request to receive the current version.
Oracle shall not distribute the current version of the Netscape Products to such
End-User in order to avoid the payment of a Major Update fee.
Major Update Pricing:
Oracle Non-Network Computer End User Customers $7.50/copy
Oracle Network Computer End User Customers $5.00/copy**
** This pricing shall also apply to non-Intel based Network Computers or
Navio-released client products upon production release/FCS, at which time it
will automatically be included in Exhibit A.
3. Maintenance and Support. Oracle agrees to pay to Netscape the following
annual fee for the maintenance and support described in Exhibit D: One Hundred
Fifty Thousand Dollars ($150,000) for one dedicated Netscape person for premium
technical support due and payable on the Effective Date and on each anniversary
of the Effective Date. Oracle shall have the option, for an additional fee of
One Hundred Fifty Thousand Dollars ($150,000) per year, to have a second
dedicated Netscape person for premium technical support. Such additional fee
shall be paid upon Oracle's exercise of said option.
4. Deliverables. One (1) master reproduction copy of each of the Netscape
Product (media) and one (1) copy of the applicable Documentation, in any format
generally available from Netscape. When available, Netscape shall provide to
Oracle (1) master reproduction copy for Major Updates.
22
5. Ship To Address for Deliverables. Bill To Address for Invoice.
--------------------------------- ----------------------------
(not P.O. address)
Oracle Corporation Oracle Corporation
-------------------------------- ----------------------------------
500 Oracle Parkway 500 Oracle Parkway
-------------------------------- ----------------------------------
Mailstop 659510 Mailstop 659510
-------------------------------- ----------------------------------
Redwood City, CA 94065 Redwood City, CA 94065
-------------------------------- ----------------------------------
Attention: Teresa Chong
-------------------------------- -----------------------
Attention: Karen White Telephone: 415-506-8779
-------------------------------- -----------------------
Fax: 415-633-1292
-------------------------------- ------------------------------
Telephone: 415-506-2448 Email: tchong@us.oracle.com
--------------------- ---------------------------
Email: kwhite@us.oracle.com
-------------------------
Netscape Sales Rep: Joan Braddi
Telephone Number: 415 937 3727
23
EXHIBIT C-CLIENT PRODUCTS END USER LICENSE
BY CLICKING ON THE "ACCEPT" BUTTON OR OPENING THE PACKAGE, YOU ARE CONSENTING TO
BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO
ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "DO NOT ACCEPT" BUTTON AND THE
INSTALLATION PROCESS WILL NOT CONTINUE. (IF APPLICABLE, YOU MAY RETURN THE
PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.)
NETSCAPE END USER LICENSE AGREEMENT
REDISTRIBUTION OR RENTAL NOT PERMITTED
This Agreement has 3 parts. Part I applies if you have not purchased a license
to the accompanying software (the "Software"). Part II applies if you have
purchased a license to the Software. Part III applies to all license grants. If
you initially acquired a copy of the Software without purchasing a license and
you wish to purchase a license, contact Netscape Communications Corporation
("Netscape") on the Internet at http://www.netscape.com. As used in this
Agreement, for residents of Europe or Africa, "Netscape" shall refer to Netscape
Communications Ireland Limited; for residents of Japan, "Netscape" shall refer
to Netscape Communications (Japan), Ltd.; for residents of all other countries,
"Netscape" shall refer to Netscape Communications Corporation.
PART I -- TERMS APPLICABLE WHEN LICENSE FEES NOT (YET) PAID
(LIMITED TO EVALUATION, EDUCATIONAL AND NON-PROFIT USE)
LICENSE GRANT. Netscape grants you a non-exclusive license to use the Software
free of charge if (a) you are a student, faculty member or staff member of an
educational institution (K-12, junior college, college or university, or the
international equivalent, or a library), a staff member of a religious
organization or an employee of an organization which meets Netscape's criteria
for a charitable non-profit organization; or (b) your use of the Software is for
the purpose of evaluating whether to purchase an ongoing license to the
Software. The evaluation period for use by or on behalf of a commercial entity
is limited to ninety (90) days; evaluation use by others is not subject to this
ninety (90) day limit. Government agencies (other than public libraries) are not
considered educational, religious or charitable non-profit organizations for
purposes of this Agreement. If you are using the Software free of charge, you
are not entitled to hard-copy documentation, support or telephone assistance. If
you fit within the description above, you may use the Software in the manner
described in Part III below under "Scope of Grant."
DISCLAIMER OF WARRANTY. Free of charge Software is provided on an "AS IS" basis,
without warranty of any kind, including without limitation the warranties that
the Software is free of defects, merchantable, fit for a particular purpose or
non-infringing. The entire risk as to the quality and performance of the
Software is borne by you. Should the Software prove defective in any respect,
you and not Netscape or its suppliers assume the entire cost of any service and
repair. In addition, the security mechanisms implemented by Netscape software
have inherent limitations, and you must determine that the Software sufficiently
meets your requirements. This disclaimer of warranty constitutes an essential
part of this Agreement. No use of the software without payment of license fees
to Netscape is authorized hereunder except under this Disclaimer.
PART II -- TERMS APPLICABLE WHEN LICENSE FEES PAID
LICENSE GRANT. Subject to payment of applicable license fees, Netscape grants to
you a non-exclusive license to use the Software and accompanying documentation
("Documentation") in the manner described in Part III below under "Scope of
Grant."
24
LIMITED WARRANTY. Netscape warrants that for a period of ninety (90) days from
the date of acquisition, the Software, if operated as directed, will
substantially achieve the functionality described in the Documentation. Netscape
does not warrant, however, that your use of the Software will be uninterrupted
or that the operation of the Software will be error-free or secure. In addition,
the security mechanisms implemented by Netscape software have inherent
limitations, and you must determine that the Software sufficiently meets your
requirements. Netscape also warrants that the media containing the Software, if
provided by Netscape, is free from defects in material and workmanship and will
so remain for ninety (90) days from the date you acquired the Software.
Netscape's sole liability for any breach of this warranty shall be, in
Netscape's sole discretion: (i) to replace your defective media or Software; or
(ii) to advise you how to achieve substantially the same functionality with the
Software as described in the Documentation through a procedure different from
that set forth in the Documentation; or (iii) if the above remedies are
impracticable, to refund the license fee you paid for the Software. Repaired,
corrected, or replaced Software and Documentation shall be covered by this
limited warranty for the period remaining under the warranty that covered the
original Software, or if longer, for thirty (30) days after the date (a) of
shipment to you of the repaired or replaced Software, or (b) Netscape advised
you how to operate the Software so as to achieve the functionality described in
the Documentation.
Only if you inform Netscape of your problem with the Software during the
applicable warranty period and provide evidence of the date you purchased a
license to the Software will Netscape be obligated to honor this warranty.
Netscape will use reasonable commercial effort to repair, replace, advise or,
for individual consumers, refund pursuant to the foregoing warranty within
thirty (30) days of being so notified.
If any modifications are made to the Software by you during the warranty period;
if the media is subjected to accident, abuse, or improper use; or if you violate
the terms of this Agreement, then this warranty shall immediately terminate.
Moreover, this warranty shall not apply if the Software is used on or in
conjunction with hardware or software other than the unmodified version of
hardware and software with which the Software was designed to be used as
described in the Documentation.
THIS IS A LIMITED WARRANTY, AND IT IS THE ONLY WARRANTY MADE BY NETSCAPE OR ITS
SUPPLIERS. NETSCAPE MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY OF NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. YOU MAY
HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE
DURATION OF STATUTORILY REQUIRED WARRANTIES IF ANY, INCLUDING WITHOUT LIMITATION
THE WARRANTIES THAT THE SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE, AND FIT FOR A
PARTICULAR PURPOSE, SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD.
MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY
ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO
NETSCAPE DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS,
EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.
PART III -- TERMS APPLICABLE TO ALL LICENSE GRANTS
SCOPE OF LICENSE GRANT.
You may:
o use the Software on any single computer;
25
o use the Software on a network, provided that each person accessing
the Software through the network must have a copy licensed to that
person;
o use the Software on a second computer so long as only one copy is
used at a time;
o copy the Software for archival purposes, provided any copy must
contain all of the original Software's proprietary notices; or
o if you have purchased licenses for a 10 Pack or a 50 Pack, make up
to 10 or 50 copies, respectively, of the Software (but not the
Documentation), or, if you have purchased licenses for multiple
copies of the Software, make the number of copies of Software (but
not the Documentation) which the packing slip or invoice states you
have paid for, provided any copy must contain all of the original
Software's proprietary notices. The number of copies on the invoice
is the total number of copies that may be made for all platforms.
Additional copies of Documentation may be purchased from Netscape.
You may not:
o permit other individuals to use the Software except under the terms
listed above;
o permit concurrent use of the Software;
o modify, translate, reverse engineer, decompile, disassemble (except
and solely to the extent an applicable statute expressly and
specifically prohibits such restrictions), or create derivative
works based on the Software;
o copy the Software other than as specified above;
o rent, lease, grant a security interest in, or otherwise transfer
rights to the Software; or
o remove any proprietary notices or labels on the Software.
TITLE. Title, ownership rights, and intellectual property rights in the Software
shall remain in Netscape and/or its suppliers. The Software is protected by
copyright and other intellectual property laws and by international treaties.
Title and related rights in the content accessed through the Software is the
property of the applicable content owner and is protected by applicable law. The
license granted under this Agreement gives you no rights to such content.
TERMINATION. This Agreement and the license granted hereunder will terminate
automatically if you fail to comply with the limitations described herein. Upon
termination, you must destroy all copies of the Software and Documentation.
EXPORT CONTROLS. None of the Software or underlying information or technology
may be downloaded or otherwise exported or reexported (i) into (or to a national
or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other
country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S.
Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders. By downloading or using the
Software, you are agreeing to the foregoing and you are representing and
warranting that you are not located in, under the control of, or a national or
resident of any such country or on any such list.
In addition, if the licensed Software is identified as a not-for-export product
(for example, on the box, media or in the installation process), then, unless
you have an exemption from the United
26
States Department of State, the following applies: EXCEPT FOR EXPORT TO CANADA
FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING
TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN
ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING
WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT
RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE
AGREEING TO THE FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A "FOREIGN
PERSON" OR UNDER THE CONTROL OF A FOREIGN PERSON.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT,
CONTRACT, OR OTHERWISE, SHALL NETSCAPE OR ITS SUPPLIERS OR RESELLERS BE LIABLE
TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND
ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL NETSCAPE BE LIABLE FOR
ANY DAMAGES IN EXCESS OF THE AMOUNT NETSCAPE RECEIVED FROM YOU FOR A LICENSE TO
THE SOFTWARE, EVEN IF NETSCAPE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF
SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY
SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM
NETSCAPE'S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not designed,
manufactured or intended for use or resale as on-line control equipment in
hazardous environments requiring fail-safe performance, such as in the operation
of nuclear facilities, aircraft navigation or communication systems, air traffic
control, direct life support machines, or weapons systems, in which the failure
of the Software could lead directly to death, personal injury, or severe
physical or environmental damage ("High Risk Activities"). Accordingly, Netscape
and its suppliers specifically disclaim any express or implied warranty of
fitness for High Risk Activities.
MISCELLANEOUS. If the copy of the Software you received was accompanied by a
printed or other form of "hard-copy" End User License Agreement whose terms vary
from this Agreement, then the hard-copy End User License Agreement governs your
use of the Software. This Agreement represents the complete agreement concerning
the license granted hereunder and may be amended only by a writing executed by
both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY
MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN
YOUR PURCHASE ORDER. If any provision of this Agreement is held to be
unenforceable, such provision shall be reformed only to the extent necessary to
make it enforceable. This Agreement shall be governed by California law (except
to the extent applicable law, if any, provides otherwise). The application of
the United Nations Convention of Contracts for the International Sale of Goods
is expressly excluded.
U.S. GOVERNMENT END USERS. The Software is a "commercial item," as that term is
defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer
software" and "commercial computer software documentation," as such terms are
used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users
acquire the Software with only those rights set forth herein.
27
BY CLICKING ON THE "ACCEPT" BUTTON OR OPENING THE PACKAGE, YOU ARE CONSENTING TO
BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS
AGREEMENT, CLICK THE "DO NOT ACCEPT" BUTTON AND THE INSTALLATION PROCESS WILL
NOT CONTINUE, AND, IF APPLICABLE, RETURN THE PRODUCT TO THE PLACE OF PURCHASE
FOR A FULL REFUND.
28
EXHIBIT D
OEM MAINTENANCE AND SUPPORT
In consideration of the applicable license fee, Netscape will provide to
Oracle the maintenance and support services set forth in this Exhibit D during
the Initial Term of the Agreement or the term for which Netscape has received
payment therefor (the "Support Term"). Notwithstanding anything contained in
this Exhibit D to the contrary, Oracle shall not be entitled to provide Updates
to any Distributor or End User or use any back-end support received from
Netscape to provide front-line support to any Distributor or End User prior to
the payment by Oracle to Netscape of the annual maintenance and support fee.
1. Maintenance/Minor Updates. Netscape will provide to Oracle any Minor Updates
made generally available by Netscape during the Support Term. Oracle and not
Netscape will be responsible for providing Minor Updates to its Distributors
and/or End Users. The expenses of any such distribution will be paid by Oracle.
Oracle and Netscape will favorably consider electronic or alternative
dissemination methods of such Minor Updates to the extent consistent with
policies of both companies. Oracle and Netscape agree to discuss monthly support
issues and processes.
2. Technical Support. Netscape will provide Oracle with Netscape's backend
technical support services as follows:
(a) Back-end Support. Netscape will provide back-end support to Oracle for
Program Errors not resolved by Oracle pursuant to Oracle's support policies and
in accordance with subsection (b) below. This support includes efforts to
identify defective source code and to provide corrections, workarounds and/or
patches to correct Program Errors. Netscape will provide Oracle with a telephone
number and an e-mail address which Oracle may use to report Program Errors
during Netscape's local California business hours (5am - 5pm Pacific Standard
Time). For priority 1 failures, Oracle agrees to notify Netscape via both
telephone and e-mail. Oracle will identify two (2) members of its customer
support staff and an alternate to act as the primary technical liaisons
responsible for all communications with Netscape's technical support
representatives. Such liaisons will have sufficient technical expertise,
training and/or experience for Oracle to perform its obligations hereunder.
Within one (1) week after the Effective Date, Oracle will designate its
liaison(s). Notification will be in writing and/or e-mail to Netscape. Oracle
may substitute contacts at any time by providing to Netscape one (1) week's
prior written and/or electronic notice thereof.
Netscape will make reasonable efforts to correct significant Program Errors that
Oracle identifies, classifies and reports to Netscape and that Netscape
substantiates. Netscape may reclassify Program Errors if it reasonably believes
that Oracle's classification is incorrect. Oracle will provide sufficient
information to enable Netscape to duplicate the Program Error before Netscape's
response obligations will commence. Netscape will not be required to correct any
Program Error caused by (a) Oracle's in corporation or attachment of a feature,
program, or device to the Netscape Product, or any part thereof; (b) any
nonconformance caused by accident, transportation, neglect, misuse, alteration,
modification, or enhancement of the Netscape Product; (c) the failure to provide
a suitable installation environment; (d) use of the Netscape Product for other
than the specific purpose for which the Netscape Product was designed; (e) use
of the Netscape Product on any systems other than the specified hardware
platform for such Netscape Product; (f) Oracle's use of defective media or
defective duplication of the Netscape Product; or (g) Oracle's failure to
incorporate any Maintenance Release or Update previously released by Netscape
which corrects such Program Error.
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Provided Program Error reports are received by Netscape during Netscape's local
California business hours (5am - 5pm Pacific Standard Time), Netscape will use
its best commercial efforts to communicate with Oracle about the Program Error
via telephone or e-mail within the following targeted response times:
For Standard Technical Support:
OEM License Agreement - Oracle Corp. and Netscape Communications Corp.
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