{"id":43452,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/maintenance-services-agreement-network-computer-inc-and-oracle.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"maintenance-services-agreement-network-computer-inc-and-oracle","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/maintenance-services-agreement-network-computer-inc-and-oracle.html","title":{"rendered":"Maintenance Services Agreement &#8211; Network Computer Inc. and Oracle Corp."},"content":{"rendered":"<pre>\n                         MAINTENANCE SERVICES AGREEMENT\n\n                                     BETWEEN\n\n                             NETWORK COMPUTER, INC.\n\n                                     ('NCI')\n\n                                       AND\n\n                               ORACLE CORPORATION\n\n                                   ('ORACLE')\n\n\n                         MAINTENANCE SERVICES AGREEMENT\n\n      THIS MAINTENANCE SERVICES AGREEMENT (the 'Agreement') is made as of\nSeptember 17, 1997, between NETWORK COMPUTER, INC., a Delaware corporation\n('NCI'), and ORACLE CORPORATION, a Delaware corporation, ('Oracle'), with\nreference to the following facts:\n\n      A. Pursuant to the terms of that certain Lease Agreement dated October 8,\n1996 (the 'Master Lease') by and between Westport Investments ('Landlord'), as\nLandlord, and Oracle as Tenant, Oracle leased from Landlord the entire building\nlocated at 1000 Bridge Parkway, Redwood City, California consisting of\napproximately 48,384 square feet of space (the 'Building'). Concurrently with\nthe execution of the Master Lease, Landlord and Oracle executed an additional\nLease (the '800 Bridge Lease') pursuant to which Oracle leased from Landlord the\nBuilding located at 800 Bridge Parkway in Redwood City, California ('800\nBuilding').\n\n      B. Pursuant to the provisions of that certain Sublease by and between\nOracle, as Sublandlord and NCI, as Subtenant, dated as of September 17, 1997\n(the 'Sublease'), NCI subleased the Building from Oracle.\n\n      C. Pursuant to the provisions of the Master Lease, Oracle, as the tenant\nthereunder, has responsibility for certain maintenance and repair of the\nBuilding; such responsibility for maintenance and repair is assumed by NCI\npursuant to the provisions of the Sublease.\n\n      D. Pursuant to the provisions of the 800 Bridge Lease, Oracle, as the\ntenant thereby has maintenance and repair responsibilities with respect to the\n800 Building identical to NCI's maintenance and repair responsibilities\ndescribed in Recital C above.\n\n      E. NCI does not have the internal staffing necessary to perform all of the\nmaintenance and repair duties assumed by NCI under the Sublease, and desires to\nobtain the services of Oracle in connection with the operation, maintenance and\nrepair of the Building as required under the Master Lease and Sublease, and\nOracle desires to render such services to NCI.\n\n      NOW, THEREFORE, in consideration of the foregoing and for good and other\nvaluable consideration, the receipt and adequacy of which are hereby\nacknowledged, the mutual covenants herein contained, the parties hereto agree as\nfollows:\n\n1.    INCORPORATION OF RECITALS. Recitals A through E above are hereby\n      incorporated herein.\n\n\n2.    DUTIES OF ORACLE\n\n      2.1. Appointment of Oracle. Subject to the provisions hereof and during\nthe term hereof, NCI hereby appoints Oracle, and Oracle hereby accepts\nappointment and agrees, to perform NCI's maintenance and repair responsibilities\nwith respect to the Building pursuant to the Sublease (the 'Services'). Oracle\nshall at all times keep NCI informed as to all material matters concerning the\nBuilding.\n\n      2.2. Duties of Oracle. Oracle agrees to do the following in connection\nwith the continuing operation of the Building and performance of the Services,\nsubject to the budgets approved by NCI and the availability of funds provided by\nNCI for such purposes:\n\n            (a) Personnel. Hire and retain as employees of Oracle, and not as\nemployees of NCI, such personnel as may be required to perform properly Oracle's\nfunctions hereunder. Such personnel shall include the following:\n\n                  i. A maintenance manager who will oversee the operation,\nsupervision, equipment warranty management and general repair and maintenance of\nthe Building and who will be available 6 hours per week;\n\n                  ii. A maintenance assistant who will be available 6 hours per\nweek to respond to general calls (to expedite lighting replacements, for\nexample);\n\n                  iii. An engineering technician to oversee HVAC units and\nresolve electrical and plumbing issues;\n\n                  iv. Additional personnel will be allocated for a total of 293\nhours during each calendar year to cover Building operations, lease\nadministration, financial reporting, and operations coordination (central\ndispatch) to handle property maintenance requests from NCI.\n\nOracle personnel will be available Monday through Friday from 8:00 a.m. until\n5:00 p.m., except during the following holidays: New Years Day, Memorial Day,\nIndependence Day, Labor Day, Thanksgiving (2 days) and Christmas. A building\nemergency contact number will be provided for after normal business hours. The\nemployees of Oracle shall be hired at Oracle's sole cost and expense; except\nthat the costs of the personnel included in the maintenance and administration\nof the Building shall be paid in accordance with the approved operating budget\nfor the Building. The compensation, retention and performance of employees hired\nby Oracle at its own expense shall be controlled exclusively by Oracle, and\nOracle shall be responsible for complying with all laws and regulations\naffecting such employment, including the provision of any benefits or\ncompensation and payment of withholding taxes required by statute or contract.\n\n\n                                       2\n\n\n            (b) Contracts; Permits.\n\n                  i. Assemble and retain all contracts, agreements and other\nrecords and data as may be necessary to carry out Oracle's functions hereunder\nand as may otherwise be required in connection with the repair and maintenance\nof the Building and performance of the Services. A schedule of all real estate\nand personal property taxes and assessments will be provided to NCI on an annual\nbasis. All notices or copies of such will be forwarded to NCI. All such\ncontracts, agreements and other records and data at all times shall be the\nproperty of NCI (or of Oracle, as the tenant under the Master Lease).\n\n                  ii. Retain and maintain in effect any permits and occupancy\ncertificates required for the operation and occupancy of the Building, and act\nas a liaison between NCI and the City of Redwood City and all other entities\nclaiming jurisdiction over the Building. If the cost of compliance exceeds\n$1,000 in any single instance NCI will be notified immediately for prior\napproval.\n\n            (c) Books and Records. Maintain books and records in connection with\nits maintenance of the Building (including all invoices and payment records).\nOracle will make the books of account and all other records relating to or\nreflecting the maintenance of the Building available to NCI and its\nrepresentatives at reasonable times upon reasonable advance notice at a location\napproved by NCI and Oracle for examination, audit, inspection and copying.\n\n            (d) Maintenance. Oversee maintenance and repairs, furniture and\nequipment moving, and storage and warehouse fees. Oracle will keep the Building\nin good order and repair at all times in compliance with NCI's responsibilities\nunder the Sublease. In this regard, Oracle shall undertake all necessary routine\nmaintenance and replacements, and shall make all repairs and improvements to any\nportion of the Building that is the responsibility of NCI under the Sublease,\nexterior or interior (including, without limitation, interior improvements),\nthat may be required from time to time, subject to the conditions set forth in\nthe following sentences. Except to the extent that such repairs, maintenance,\nreplacements, or improvements have been provided for in the operating and\ncapital expense budget approved by NCI and except for any emergency repairs to\nthe Building not exceeding Fifteen Thousand Dollars ($15,000) in cost per\nrepair, all repairs, maintenance, replacements, or improvements to the Building\nshall be undertaken or made by Oracle only after securing NCI's written\napproval. Oracle agrees to give prompt notice of any such emergency repairs to\nNCI and to make every reasonable effort to secure NCI's prior written approval.\nTo the extent practicable, items of routine maintenance, repair and replacement\nshall be undertaken and accomplished by the maintenance personnel.\n\n\n                                       3\n\n\n            (e) Alterations. If requested in writing by NCI, and subject to the \nprocurement of any required approvals from Landlord, Oracle (as sublandlord\nunder the Sublease) and any applicable governmental authorities, obtain, or\ncause to be obtained, bids and supervise the construction and completion of\nalterations, additions or improvements to the Building or any portion thereof\n(collectively, 'Alterations'), including, without limitation, renovations,\nchanges and alterations of any interior improvements.\n\n            (f) Recommended Procedures. Recommend from time to time to NCI, in\nwriting, such procedures with respect to the Building as Oracle may deem\nadvisable for the more efficient and economic management and operation thereof;\npublish applicable operating procedures, (e.g., property maintenance contact\nsystem, etc.), organizational chart, emergency plans, hazardous materials\nmanagement plans and any other safety or similar plans that may be required; and\nperform or Cause to be performed all other services which are customarily\nperformed in connection with the operation of a project of this type and perform\nall services normally provided by property managers to first-class office\nproperties.\n\n            (g) Meetings with and Response to NCI. Be available upon reasonable\nnotice for meetings with NCI to discuss the Building and the management\nactivities conducted by Oracle hereunder. In addition, Oracle shall promptly\nrespond to all requests and inquiries of, and shall coordinate with, the\nrepresentatives of NCI who have responsibility for the Building in order to\nfacilitate and maintain complete communication between NCI and Oracle regarding\nthe Building.\n\n      2.3. On-Site Offices. Oracle shall maintain the Building from an office in\nthe building that is to be provided by NCI at no expense to Oracle, which shall\nhave sufficient room to accommodate two (2) individuals as well as necessary\nequipment and minimal storage. Oracle shall supply equipment, furniture and\nservices (telephone and data) necessary and appropriate for such maintenance\noffice.\n\n3.    LIMITATIONS AND RESTRICTIONS ON ORACLE\n\n      3.1. Restricted Activities. Notwithstanding any provisions of this\nAgreement, Oracle shall not take any action, expend any sum, make any decision,\ngive any consent, approval or authorization, or incur any obligation with\nrespect to any of the following matters unless and until the same has been\napproved by NCI:\n\n            (a) making any expenditure or incurring any obligation by or on\nbehalf of NCI or the Building which would result in the amount of any Adjusted\nAnnualized (defined below) operating expense category (other than utilities), as\nsaid expense categories are specified in Exhibit A hereto, exceeding the\napproved annual operating expense budget for said expense category by the\ngreater\n\n\n                                       4\n\n\nof five percent (5%) or Three Thousand Dollars ($3,000), except for such matters\nas may be otherwise expressly delegated in writing to Oracle by NCI and except\nin the event of emergency, in which event Oracle shall be authorized to expend\nup to $15,000 as may be reasonably necessary, and provided that Oracle shall\nnotify NCI as promptly as reasonably possible (but in any event within two\nbusiness days) following the making of such expenditure or incurring of such\nobligation. Adjusted Annualized operating expense(s) shall be the actual\nexpense(s) incurred to date during the budget year plus the estimated operating\nexpense(s), as estimated by Oracle, for the balance of the budget year. After\nthe total approved operating expense budget is exceeded pursuant to this\nSubsection 3.1(a), all operating expense items that exceed the approved budget\nwill require NCI's approval; and\n\n            (b) expending more than what Oracle in good faith believes to be the\nfair and reasonable market value at the time and place of contracting for any\ngoods purchased or leased or services engaged on behalf of NCI or otherwise in\nconnection with the Building.\n\n4.    EXPENSES BORNE BY NCI\n\n      Except as otherwise provided in this Agreement, all expenses incurred\npursuant hereto and in accordance with this Agreement shall be for and on behalf\nof NCI and for its account. NCI shall fund Oracle in advance on a monthly basis\nfor the purpose of disbursement of expenses incurred in performing Oracle's\nobligations hereunder, and Oracle's salary and management fee compensation as\ndetailed in Exhibits A and B. Notwithstanding the foregoing, under no\ncircumstances is Oracle to be considered an agent of NCI, but rather as an\nindependent contractor performing services for the benefit of NCI.\n\n5.    EXPENSES BORNE BY ORACLE\n\n      5.1 Expenses of Oracle. Oracle shall pay all salaries, wages, and other\nusual compensation and fringe benefits (including, without limitation, the\nworkers' compensation insurance and other amounts referred to in Section 8.1) of\nthe personnel hired and retained by Oracle at the expense of Oracle as\nspecifically described in Section 1.2(a), provided that NCI shall reimburse\nOracle, as a budgeted expense as shown on Exhibit A, for a prorated portion of\nsuch compensation.\n\n6.    BUDGETS AND REPORTS\n\n      6.1. Annual Budget. Oracle shall annually prepare operating and capital\nexpense budgets in the form attached hereto as Exhibit A approved by NCI, for\nthe current or next Fiscal Year (i.e., June 1 - May 31) of the Building and\nsubmit such budgets to NCI.\n\n\n                                       5\n\n\n      6.2. Budget Revisions. No changes shall be made in any budget or any line\nitem therein without NCI's prior written approval. Oracle shall use diligence\nand employ reasonable efforts to ensure that the actual costs of the Building\nshall not exceed the approved budgets.\n\n      6.3 Payments, etc., on NCI's Direction. Notwithstanding the above, Oracle\nagrees to make all repairs, replacements, renovations, additions and other\npayments directed by NCI and shall establish such reserves as directed by NCI,\nwhether or not such items have been included in the approved construction,\noperating and\/or capital expense budgets provided that NCI makes adequate\nprovision for the payment or reimbursement of all costs connected with such\nitems.\n\n      6.4. Mid-Year Variance Reports. On or about the expiration of the month of\nDecember in each Fiscal Year, Oracle shall prepare and submit to NCI a report\nshowing each component of the annual budget for such calendar year, and\nvariances from budgeted amounts in each such component, with associated notes\nand explanations.\n\n      6.5. Reconciliation. Following the expiration of each Fiscal Year, Oracle\nshall submit to NCI a reconciliation of actual costs incurred against the\nestimated cost therefor as set forth in the approved budget for such Fiscal\nYear. If it is determined that actual costs were less than the estimates upon\nwhich NCI's payments were based, Oracle shall either refund any overpayments to\nNCI within thirty (30) days following such determination or, at NCI's option,\ncredit such overpayment against amounts next due and payable under the\nthen-current budget. If it is determined that such actual costs exceeded NCI's\npayments, NCI shall, within thirty (30) days following such determination,\ndeliver to Oracle the amount of any such excess.\n\n7.    COMPLIANCE\n\n      7.1. Legal and Insurance Requirements. Oracle shall make reasonable\nefforts to comply with and abide by all laws, rules, regulations, requirements,\norders, notices, determinations and ordinances of any federal, state or\nmunicipal authority, and the requirements of any insurance companies covering\nany of the risks against which the Building is insured, as well as the\nrequirements of the Master Lease and the Sublease. To the extent such action is\nnot the responsibility of Landlord under the Master Lease, Oracle shall obtain\nand maintain in effect any permits and occupancy certificates required in\nconnection with the occupancy and operation of the Building or any portion or\ncomponent thereof.\n\n8.    INSURANCE AND INDEMNIFICATION\n\n      8.1. Workers' Compensation. Oracle agrees to maintain and keep in force\nall workers' compensation or similar insurance\n\n\n                                       6\n\n\nrequired with respect to its employees who are employed in connection with the\nperformance of its obligations under this Agreement and to comply with any\nFederal or State withholding tax, Social Security, or unemployment laws existing\nor enacted in the future for the benefit of, or other laws affecting or\nrespecting, the employment of such employees. NCI shall reimburse Oracle in\naccordance with the approved operating budget for the Building for the prorated\ncost of workers' compensation insurance for the on-site personnel hired as an\nexpense of the Building, whose salaries are to be specified in the approved\nbudget for the Building.\n\n      8.2. Insurance Requirements for Contracts. Any service contract entered\ninto by Oracle for the Building in accordance with the requirements hereof shall\nrequire each contractor to provide to NCI an insurance certificate prior to\ncommencement of work evidencing that (a) the contractor has in force Workers'\nCompensation Insurance at statutory limits, Employers Liability Insurance in a\nminimum amount of One Hundred Thousand Dollars ($100,000.00) per accident or\noccurrence (or such greater amount as may be required by Landlord under the\nMaster Lease), General Liability and Contractual Liability Insurance, in a\nminimum amount of Two Million Dollars ($2,000,000.00) per accident or occurrence\n(or such greater amount as may be required by Landlord under the Master Lease),\nand (b) Landlord, Oracle Corporation and NCI are named as additional insureds\nunder the contractor's aforementioned liability coverages.\n\n      8.3. Liability Insurance. Both NCI and Oracle shall obtain and maintain\ncommercial general liability insurance with respect to the Building in such\namounts as they shall reasonably determine from time to time, but in any event\nnot less than $3,000,000 combined single limit. Such liability policies shall\ninclude blanket contractual liability coverage and a crossliability endorsement\n(or provision) permitting recovery with respect to claims of one insured against\nanother. Each party's policy shall name the other as an additional insured and\nshall provide that it may not be canceled, or the coverage reduced, without 30\ndays prior written notice to the other party. Each party shall, upon the request\nof the other, provide certificates of such insurance.\n\n      8.4. Indemnification. Oracle agrees to indemnify, defend and hold NCI, and\nNCI's officers and employees, harmless from and against all loss, cost,\nliability, damage and expense, including but not limited to, reasonable counsel\nfees, which may be occasioned by its negligence or willful misconduct in\nconnection with the Services provided hereunder and the breach by Oracle of any\nof the provisions of this Agreement. NCI agrees (a) to indemnify, defend and\nhold Oracle harmless from any loss, cost, liability, damage and expense,\nincluding but not limited to, reasonable counsel fees, relating to the Building\nwhich results from any acts of willful misconduct or acts or omissions which\n\n\n                                       7\n\n\nconstitute negligence on the part of NCI, and (b) to indemnify Oracle against\nall claims arising out of the performance by Oracle of its duties hereunder to\nthe extent that such claims are not claims for which Oracle is obligated to\nindemnify NCI as described above. The terms of this Section 8.4 shall survive\nthe expiration or sooner termination of this Agreement.\n\n9.    TERM OF AGREEMENT\n\n      9.1. Term. This Agreement shall become effective as of August 1, 1997, and\nshall continue through the remainder of the initial term of the Sublease, (i.e.,\nthrough September 30, 2002).\n\n      9.2. Termination. Notwithstanding Section 9.1 above, this Agreement may be\nterminated and the obligations of the parties hereunder shall thereupon cease\nwith respect thereto, upon the occurrence of any of the events described in, and\nin accordance with the terms of, paragraphs (a) through (f) below.\n\n            (a) In the event of the condemnation or destruction of the entire\nBuilding, either party may terminate this Agreement upon ten (10) days' written\nnotice to the other party. Notwithstanding the foregoing, if the Building is to\nbe rebuilt following any such condemnation or destruction, this Agreement shall\nnot terminate but shall be suspended during such rebuilding and shall be\nreinstated in accordance with its terms upon the completion of such rebuilding;\nprovided, however, that in no event shall the term of this Agreement be extended\nbeyond the date of expiration of the Sublease as a result of any such rebuilding\nfollowing condemnation or destruction.\n\n            (b) Upon the appointment, pursuant to an order of a court of\ncompetent jurisdiction, of a trustee, receiver or liquidator of Oracle or NCI,\nor any termination or voluntary suspension of the transaction of business of\nOracle or NCI, or any attachment, execution or other judicial seizure of all or\nany substantial portion of the assets of Oracle or NCI, the party which is not\nthe subject of such action may terminate this Agreement upon ten (10) days'\nwritten notice to the other party.\n\n            (c) If NCI or Oracle shall file a voluntary case under any\napplicable bankruptcy, insolvency, debtor relief, or other similar law now or\nhereafter in effect, or shall consent to the appointment of or taking possession\nby a receiver, liquidator, assignee, trustee, custodian, sequestrator (or\nsimilar official) of NCI or Oracle, or shall make any general assignment for the\nbenefit of creditors, or shall fail generally to pay its debts as they become\ndue, then the party which is not the subject of such action may terminate this\nAgreement upon ten (10) days' written notice to the other party.\n\n\n                                       8\n\n\n            (d) If a court having jurisdiction shall enter a decree or order for\nrelief in respect of NCI or Oracle, in any involuntary case brought under any\nbankruptcy, insolvency, debtor relief, or similar law now or hereafter in\neffect, or if NCI or Oracle shall consent to or shall fail to oppose any such\nproceeding, or if any such court shall enter a decree or order appointing a\nreceiver, liquidator, assignee, custodian, trustee, sequestrator (or similar\nofficial) of NCI or Oracle, or ordering the winding up or liquidation of the\naffairs of NCI or Oracle, then the party which is not the subject of such\naction may terminate this Agreement upon ten (10) days' written notice to the\nother party.\n\n            (e) If either party shall default in the performance of any of its\nobligations hereunder and such default shall continue for twenty (20) days after\nwritten notice from one party to the defaulting party designating such default\n(or if such default cannot be cured within such twenty (20) day period, then if\nsuch party does not commence to cure such, default and diligently pursue such\ncure to completion with a reasonable period thereafter), the party not in\ndefault may terminate this Agreement upon five (5) days' written notice to the\ndefaulting party.\n\n            (f) In the event of any termination of the Master Lease or the\nSublease, this Agreement shall terminate, effective on such date of termination\nof the Master Lease or the Sublease.\n\n            (g) Additionally, Oracle shall have the right to terminate this\nAgreement upon thirty (30) days advance written notice to NCI.\n\n      9.3 Authority Termination; Final Accounting. Upon termination of this\nAgreement for any reason, the obligations created hereby shall immediately cease\nand Oracle shall have no further right to or obligation to perform the Services\nor draw checks on the Building Account. In the event of termination, Oracle\nagrees to fulfill all reporting and accounting functions hereunder for the\nperiod from the end of that covered by the last such report and\/or accounting\nuntil the date of termination. Upon termination, Oracle shall also (1) surrender\nand deliver to NCI possession of the Building Account, and all rents and income\nof the Building and other moneys of NCI on hand and in any bank account, (2)\ndeliver to NCI as received any moneys due NCI under this Agreement but received\nafter such termination, (3) deliver to NCI all materials and supplies, keys,\ncontracts and documents, and such other accounting papers and records pertaining\nto the Building or this Agreement as the NCI shall request, (4) assign any right\nOracle may have in and to any existing contracts relating to the operation and\nmaintenance of the Building as the NCI shall require, and (5) deliver to NCI or\nNCI's duly appointed agent all records, contracts, receipts for deposits, unpaid\nbills, and all other papers or documents which pertain to the Building.\n\n\n                                       9\n\n\n10.   COMPENSATION\n\n      10.1. Management Fee. NCI agrees to pay Oracle a management fee as set out\non Exhibit B, which is attached hereto and incorporated herein by reference.\n\n11.   DISBURSEMENT OF FUNDS\n\n      11.1. Monthly Disbursement by NCI. On or before the first day of each\ncalendar month, NCI shall disburse to Oracle the amount of monthly costs\n(including line-items for contingencies and the Management Fee) allocated to\nsuch month in accordance with the approved budget. Oracle shall then pay\ndirectly all expenses of the Building that are specified in the then current\nbudget for the Building. If at any time NCI fails to timely fund the amounts due\nfor any calendar month, Oracle shall have the option (but shall not be\nobligated) to make such payments, in which event any amounts not timely paid by\nNCI but so advanced shall bear interest at the rate of fourteen percent (14%)\nper annum, or the maximum allowable under applicable law, whichever is less,\nfrom the date disbursed by Oracle until the date paid by NCI. Oracle shall not\nbe liable hereunder for any penalties, damages, loss, costs or liabilities\nincurred by NCI as a result of NCI' s failure to timely fund budgeted amounts\nand Oracle' s failure to make payments of any Building operating cost if and to\nthe extent such failure to pay such Building operating cost is due to NCI's\nfailure to timely deposit with Oracle the budgeted amount therefor and NCI\nhereby agrees to indemnify, defend, protect and hold Oracle harmless from and\nagainst any and all loss, cost, damage or liability arising in any way out of\nNCI's failure to timely fund sums due hereunder.\n\n12.   NOTICES\n\n      All notices hereunder shall be in writing, shall be sent by registered or\ncertified mail, postage prepaid and return receipt requested, or by personal\ndelivery or courier service with a request for an acknowledgment of receipt, and\nshall be effective on receipt. Notices shall be sent or delivered to the\nfollowing addresses or such other address(es) as a party may designate by notice\ngiven in the manner provided herein:\n\n      If to Oracle.           Oracle Corporation\n                              500 Oracle Parkway, Box LGN2\n                              Redwood Shores, California 94065\n                              Attention:  Real Estate Controller\n\n                              Oracle Corporation\n                              500 Oracle Parkway, Box 50P7\n                              Redwood Shores, California 94065\n                              Attention:  General Counsel\n\n\n                                       10\n\n\n      If to NCI:              At the Building\n\n13.   MISCELLANEOUS\n\n      13.1. Entire Agreement. This Agreement is the entire agreement between the\nparties with respect to the subject matter hereof, and no alteration,\nmodification, or interpretation hereof shall be binding unless in writing and\nsigned by both parties.\n\n      13.2. Severability. If any provision of this Agreement or application to\nany party or circumstances shall be determined by any court of competent\njurisdiction to be invalid and unenforceable to any extent, the remainder of\nthis Agreement or the application of such provision to such person or\ncircumstances, other than those as to which it is so determined invalid or\nunenforceable, shall not be affected thereby, and each provision hereof shall be\nvalid and shall be enforced to the fullest extent permitted by law.\n\n      13.3. Applicable Law. This agreement shall be construed and enforced in\naccordance with the laws of California.\n\n      13.4. Assignability. Oracle may not assign this Agreement without first\nobtaining NCI's written consent, which consent NCI shall not unreasonably\nwithhold.\n\n      13.5. Relationship. Nothing contained in this Agreement shall be construed\nto create a relationship of employer and employee or agent and principal between\nOracle and NCI, it being the intent of the parties hereto that the relationship\ncreated hereby is solely that of an independent contractor. Nothing contained\nherein shall be deemed to constitute NCI and Oracle as partners or joint\nventurers.\n\n      13.6. Third Parties. Nothing contained in this Agreement is intended to be\nfor the benefit of any third party or to give any third party any claim or right\nagainst NCI or Oracle beyond that which would exist in the absence of this\nAgreement.\n\n      13.7. Successors Bound. This Agreement shall be binding upon and inure to\nthe benefit of NCI and Oracle and their respective successors and permitted\nassigns.\n\n      13.8. Attorneys' Fees. In the event of any litigation arising out of this\nAgreement, the prevailing party shall be entitled to reasonable costs and\nexpenses, including without limitation, reasonable attorneys' fees.\n\n      13.9. Waiver; Consents. No consent or waiver, express or implied, by\neither party hereto to or of any breach or default by the other party in the\nperformance by the other of its obligations hereunder shall be valid unless in\nwriting, and no such consent or waiver shall be deemed or construed to be a\nconsent or waiver to or\n\n\n                                       11\n\n\nof any other breach or default in the performance by such other party of the\nsame or any other obligations of such party hereunder. Failure on the part of\neither party to complain of any act or failure to act of the other party or to\ndeclare the other party in default, irrespective of how long such failure\ncontinues, shall not constitute a waiver by such party of its rights hereunder.\nThe granting of any consent or approval in any one instance by or on behalf of\nNCI shall not be construed to waive or limit the need for such consent in any\nother or subsequent instance.\n\n      IN WITNESS WHEREOF, NCI and Oracle have executed this Agreement as of the\ndate set forth above.\n\n                                    ORACLE:\n\n                                    ORACLE CORPORATION,\n                                    a Delaware corporation\n\n\n                                    By: \/s\/ Bruce Lange\n                                        ----------------------------------\n                                    Its: \n                                         ---------------------------------\n                                               BRUCE LANGE\n                                               VP. AND CORPORATE TREASURER\n                                    OWNER:\n\n                                    NETWORK COMPUTER, INC.,\n                                    a Delaware corporation\n\n\n                                    By: \/s\/ Jerry Baker\n                                        ----------------------------------\n                                    Its: CEO 9\/24\/97\n                                         ---------------------------------\n\n\n                                       12\n\n\n                                    EXHIBIT A\n                         INCOME AND EXPENSE PROJECTIONS\n                                       AND\n                                 VARIANCE REPORT\n\n                                 (SEE ATTACHED)\n\n\n                                       13\n\n\n                                    EXHIBIT A\n                                  (Revision 1)\n\n1000 Bridge Parkway Property Maintenance Operating Budget - (proposed)\n           FY 98 (Financial Year begins June 1, 1997, and ends May, 31, 1998).  \n                                                               Expenditure = USD\n\n48,384 RSF - two-story building\n\n\n\n                                                   -----------------------------------------------------------------------------\nLine No     Expenses                               Jun-97    Jul-97    Aug-97    Sep-97    Oct-97    Nov-97    Dec-97    Jan-98 \n--------    --------                               -----------------------------------------------------------------------------\n                                                                                                  \n                                                                                                                                \n                                                                                                                                \n1001   Utilities                                   13,306    13,306    13,306    13,306    13,306    13,306    13,306    13,306 \n1002   Cleaning (a)                                 4,158     4,158     4,158     4,158     4,158     4,158     4,158     4,158 \n1003   R &amp; M - Electrical and Plumbing                605       605       605       605       605       605       605       605 \n1004   R &amp; M - HVAC                                 1,500     1,500     1,500     1,500     1,500     1,500     1,500     1,500 \n1005   R &amp; M - Elevator                               280       280       280       280       280       280       280       280 \n1006   R &amp; M - Painting                               150       150       150       150       150       150       150       150 \n1007   Life Safety                                    591       591       591       591       591       591       591       591 \n1008   (Invoice) Property Insurance                     0         0    13,649         0         0         0         0         0 \n1009   Landscaping &amp; PM Maintenance                   734       734       734       734       734       734       734       734 \n1010   Property Taxes                                 658       658    40,658       658       658       658       658       658 \n1011   Landlord Fee @ 2%                            1,210     1,210     1,210     1,210     1,210     1,210     1,210     1,210 \n1012   Maintenance &amp; Repair Facility                  373       373       373       373       373       373       373       373 \n1013   Moving - Furniture\/Equipment                   637       637       637       637       637       637       637       637 \n1014   Storage\/Warehouse Fees                         430       430       430       430       430       430       430       430 \n1015   Expense Contingency @ 3%                       739       739     2,348       739       739       739       739       739 \n1016   Salaries                                     3,667     3,667     3,667     3,667     3,667     3,667     3,667     3,667 \n1017   Oracle Management Fee @ 7%                   2,033     2,033     5,901     2,033     2,033     2,033     2,033     2,033 \n       Totals:                                     31,069    31,069    90,196    31,069    31,069    31,069    31,069    31,069 \n                                                   -----------------------------------------------------------------------------\n\n\n                                                   -------------------------------------------------------------------------\nLine No     Expenses                               Feb-98    Mar-98    Apr-98    May-98   Annualized     FY 98    Cost\/RSF\n--------    --------                               -------------------------------------------------------------------------\n                                                                                              \n                                                                                                        6\/1\/97 -   \n                                                                                                        5\/31\/98    \n1001   Utilities                                   13,306    13,306    13,306    13,306     159,667     133,056     $3.30\n1002   Cleaning (a)                                 4,158     4,158     4,158     4,158      49,896      41,580     $1.03\n1003   R &amp; M - Electrical and Plumbing                605       605       605       605       7,260       6,050     $0.15\n1004   R &amp; M - HVAC                                 1,500     1,500     1,500     1,500      18,000      15,000     $0.37\n1005   R &amp; M - Elevator                               280       280       280       280       3,360       2,800     $0.07\n1006   R &amp; M - Painting                               150       150       150       150       1,800       1,500     $0.04\n1007   Life Safety                                    591       591       591       591       7,092       5,910     $0.15\n1008   (Invoice) Property Insurance                     0         0         0         0      13,649      13,649     $0.28\n1009   Landscaping &amp; PM Maintenance                   734       734       734       734       8,806       7,338     $0.18\n1010   Property Taxes                                 658       658       658       658      47,896      46,580     $0.99\n1011   Landlord Fee @ 2%                            1,210     1,210     1,210     1,210      14,515      12,096     $0.30\n1012   Maintenance &amp; Repair Facility                  373       373       373       373       4,476       3,730     $0.09\n1013   Moving - Furniture\/Equipment                   637       637       637       637       7,644       6,370     $0.16\n1014   Storage\/Warehouse Fees                         430       430       430       430       5,160       4,300     $0.11\n1015   Expense Contingency @ 3%                       739       739       739       739      10,477       8,999     $0.22\n1016   Salaries                                     3,667     3,667     3,667     3,667      44,000      36,667     $0.91\n1017   Oracle Management Fee @ 7%                   2,033     2,033     2,033     2,033      28,259      24,194     $0.58\n       Totals:                                     31,069    31,069    31,069    31,069     431,957     369,819     $8.93\n                                                   -------------------------------------------------------------------------\n\n\n(a)   Cleaning $ (annual) based upon:                $\n      Nightly Janitorial                          34,451\n      Supplies at $0.09 psf.                       4,355\n      Interior building window washing             1,680\n      Partition glass                              1,920\n      Exterior window washing                      7,490\n                                               ------------\n              Total 12 months:                    49,896\n              Partial 10 months:                  41,580\n\n\n                             Exhibit A (Revision 1)\n\n1000 Bridge Parkway Property Management Operating Budget - (Notes)\nPeriod: 8\/1\/97- 5\/31\/98\n\n1001- Utilities - $133,056 - includes allowance for Electricity, Oil, Gas, Water\n&amp; Sewer, Trash Removal, and based upon annualized cost of $159,667 or $3.30 psf.\n\n1002 - Cleaning - $41,580 - includes nightly janitorial service (5 x per week),\nsupplies, traffic area carpets (4 x per year), entrance carpets and other high\ntraffic areas (12 x per year), pressure washing entrance sidewalk, exterior pest\ncontrol service, and exterior window washing.\n\n1003 - Electrical &amp; Plumbing - $6,050 - covers emergency electrical repair and\nemergency plumbing call out, and based upon $0.15 psf, as per Oracle campus.\n\n1004 - HVAC - $15,000 - covers annual maintenance contract on roof package\nunits, house air systems maintenance, semi-annual air test, Oracle personnel\ntraining, and 24 hour system coverage as required.\n\n1005 - Elevator - $2,800 - annual maintenance and emergency call out for repair,\nand includes phone line, panel monitor, and annual permit.\n\n1006 - Painting - $1,500 - painting and repairs required for all base building\nareas.\n\n1007 - Life Safety - $5,910 - includes all NFPA standard testing of complete\nfire life safety systems, panel monitoring contract, methane detection system\nmaintenance and panel monitoring contract, telephone lines, fire extinguisher\nservice, quarterly fire pump testing and service, generator load testing and\nservice, emergency training and supplies, generator fuel, and permits.\n\n1008 - (Invoice) Property Insurance - $13,649 - Peery Arrillaga generated\nCommercial Property Indemnity Insurance (paid once per year) for 1000 Bridge\nParkway as per lease agreement - payable upon occupancy.\n\n1009 - Landscaping and PM Maintenance - $7,338 - Landscaping is calculated at\n$0.01 per sf per month, and Property Maintenance is estimated at $250 per month.\n(Includes parking lot sweep and holiday decorations).\n\n1010 - Property Taxes - $46,580 - Property Tax is $0.136 per sf per Peery\nArillaga. Oracle's Personal Property Tax is 1% of CAPEX budget = $40k to hit in\nAugust 97 (same time as Belmont Shores).\n\n\n                             Exhibit A (Revision 1)\n\n1000 Bridge Parkway Property Management Operating Budget - (Notes Contd.)\nPeriod: 8\/1\/97- 5\/31\/98\n\n1011 - Landlord Fee - $12,096 - Landlord Fee is a management fee based upon 2%\nof rental income ($60,480) for Peery Arillaga, or $1,210 per month.\n\n1012 - Maintenance &amp; Repair Facility - $3,730- Includes allowance for outside\nvendors for minor electrical\/data work, patching &amp; painting within tenant\nimprovements, and flooring\/carpeting repairs within same. Based upon annualized\ncost per square foot at Oracle HQ.\n\n1013 - Moving Furniture\/Equipment - $6,370 - Covers moves to and from warehouse,\nfurniture\/equipment moves within the space that require more than one crew\nmember, and labor to do large space cleaning\/recycling projects. Based upon\nannualized cost per square foot at Oracle HQ.\n\n1014 - Storage\/Warehousing Fees - $4,300 - Includes furniture warehousing (based\nupon cost per building square foot at Oracle HQ); document archival\/retrieval,\nand off-site storage based on the annual cost per headcount at Oracle HQ.\n\n1015 - Expense Contingency @ 3% - $8,999 - Line item to cover miscellaneous\ncosts - office supplies, unplanned expense items, and includes consumable\nmaintenance supplies and tools.\n\n1016 - Salaries - $36,667 - Prorated salary and related payroll burden costs of\nthe Manager, Property Maintenance Assistant, and Building Engineer. Includes\nprorated salary and related payroll burden costs charged on a line item basis\nfor the following.\n\nProperty Maintenance Manager:      6 hours per week (15% x 40 hours)\nProperty Maintenance Assistant:    6 hours per week (15% x 40 hours)\nBuilding Engineer:                 3 hours per week (7.5% x 40 hours)\nBuilding Operations Manager:       3 hours per week (7.5% x 40 hours)\nController\/Analyst:                85 hours per year (4% of annual hours)\nCentral Dispatch:                  52 hours per year (2.5% of annual hours)\n\n1017 - Oracle Management Fee - $24,194 - Oracle Management Fee is based upon 7%\nof total facility maintenance expense.\n\n\n                                    EXHIBIT B\n\n                                  COMPENSATION\n\n      1. Management Fee. NCI shall pay to Oracle an annual management fee (the\n'Management Fee ') of seven percent (7%) of all Building expenses (which\nexpenses shall include the expenses, contingency and personnel line items\nincluded from time to time in the budget), payable in equal monthly\ninstallments, as shall be set forth in the annual budget and if necessary\nadjusted in any variance report. To the extent actual expenses vary from\nbudgeted expenses for any calendar year, such variance, and any necessary\nincrease or reduction in the Management Fee resulting therefrom, shall be set\nforth in Oracle's annual reconciliation statement; NCI shall reimburse Oracle\nfor any underpayment of the Management Fee, or receive from Oracle a\nreimbursement of any overpayment of the Management Fee, as shown in such\nreconciliation, within thirty (30) days following submission of such\nreconciliation.\n\n\n                                       14\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8051,8419],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9622,9628],"class_list":["post-43452","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-liberate-technologies","corporate_contracts_companies-oracle-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__separation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43452","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43452"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43452"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43452"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43452"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}