Reseller Agreement - Oracle Corp. and ARIS Corp.
ORACLE
This Reseller Agreement (the "Agreement") is between Oracle Corporation with its
principal place of business at 500 Oracle Parkway, Redwood City, California
94085 ("Oracle") and ARIS Corporation (legal name) with its principal place of
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business at 6720 Fort Vent Way #150 Seattle, WA 95188 (the "Reseller"). The
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terms of this Agreement shall apply to each Program license granted and to all
services provided by Oracle under this Agreement. When completed and executed
by both parties, an Order Form shall evidence the Program licenses granted and
the services that are to be provided.
1. DEFINITIONS
1.1 "Commencement Date" shall mean the date on which the Programs are
delivered by Oracle, or if no delivery is necessary, the Effective Date
set forth on the relevant Order Form.
1.2 "Designated System" shall mean the computer hardware and operating system
designated on the relevant Order Form or Sublicense report for use in
conjunction with a Sublicensed Program, or a Development License, or a
Marketing Support License.
1.3 "Order Form" shall mean the document by which the Reseller orders Program
licenses and services, and which is agreed to by the parties. The Order
Form shall reference the Effective Date of the Agreement.
1.4 "Price List" shall mean Oracle's standard commercial fee schedule that is
in effect when a Program license or services are ordered by the Reseller.
1.5 "Program" shall mean the computer software in object code form owned or
distributed by Oracle for which the Reseller is granted a license
pursuant to this Agreement; the user guides and manuals for use of the
software ("Documentation"); and Updates. "Limited Production Programs"
shall be Programs not specified on the Price List or specified as Limited
Production, Tier 3 or with special restrictions on the Price List.
1.6 "Reseller Addenda" shall mean the addenda to this Agreement specifying
additional Sublicense terms and Sublicense rates and fees for the various
types of Sublicenses which may be granted by the Reseller.
1.7 "Sublicense" shall mean a nonexclusive, nontransferable right granted by
the Reseller under a Reseller Addendum to an end user to use an object
code copy of the Programs with the Value-Added Package. "Sublicensee"
shall mean a third party who is granted a Sublicense of the Programs with
the Value-Added Package for such party's own internal business purposes
and not for purposes of any further distribution.
1.8 "Supported Program License" shall mean a Development License or Marketing
Support License for which the Reseller has ordered Technical Support for
the relevant time period. "Technical Support" shall mean Program support
provided under Oracle's policies in effect on the date Technical Support
is ordered.
1.9 "Update(s)" shall mean subsequent releases of the Programs which are
generally made available for Supported Program Licenses at no additional
charge, other than media and handling charges. Updates shall not include
any releases, options or future products which Oracle licenses
separately.
1.10 "User," unless otherwise specified in the Order Form, shall mean a
specific individual employed by the Reseller who is authorized by the
Reseller to use the Programs, regardless of whether the individual is
actively using the Programs at any given time. With respect to a
Sublicense, "User," unless otherwise specified in the Order Form or
Sublicense report for a user type specified in the Price List in effect
when the Program is Sublicensed, shall mean a specific individual
employed by the Sublicensee who is authorized by the Sublicensee to use
the Programs, regardless of whether the individual is actively using the
Programs at any given time.
1.11 "Value-Added Package" shall mean the hardware or software products or
services having added value which are developed, sold, and/or licensed
with the Programs to a Sublicensee by the Reseller, as provided under the
applicable Reseller Addenda, to satisfy such Sublicensee's internal
business requirements and objectives.
2. LICENSES GRANTED
2.1 Development Licenses and Trial Licenses
A. Oracle grants to the Reseller a nonexclusive license to use the
Development Licenses the Reseller obtains under this Agreement, as
follows:
1. to develop or prototype the Value-Added Package on the Designated
System or on a backup system if the Designated System is inoperative, up
to any applicable maximum number of designated users (if any User
limitation applies);
2. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package;
3. to provide training and technical support to employees and customers
solely in conjunction with the Value-Added Package;
4. to use the Documentation provided with the Programs in support of the
Reseller's authorized use of the Programs; and
5. to copy the programs for archival or backup purposes; no other copies
shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be
reproduced in such copies. All archival and backup copies of the Programs
are subject to the terms of this Agreement.
B. The Reseller may order temporary trial licenses ("Trial Licenses") for
its evaluation purposes only, and not for development or prototype
purposes, for use during a period specified in the Order Form. Each Order
Form for Trial Licenses shall clearly state the trial period and shall
identify that the order is for a Trial License.
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2.2 Marketing Support Licenses
Oracle grants to the Reseller a nonexclusive license to use the
Marketing Support Licenses the Reseller obtains under this Agreement, as
follows:
A. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package, up to any applicable maximum
number of designated Users (if any User limitation applies);
B. to develop customized prototypes of the Value-Added Package for
prospective Sublicensees on the Designated System if the Reseller does not
receive any fees related to the development of such customized prototypes;
C. to use the Documentation provided with the Programs in support of the
Reseller's authorized use of the Programs; and
D. to copy the Programs for archival or backup purposes; no other copies
shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be reproduced
in such copies. All archival and backup copies of the Programs are subject
to the terms of this Agreement.
2.3 Sublicensing
A. License to Sublicense Programs
As further set forth in the applicable Reseller Addendum, Oracle
hereby grants the Reseller a nonexclusive, nontransferable license to
market and grant Sublicenses as set forth in such Reseller Addenda and at
the rates and fees set forth in such Reseller Addendum. The Reseller shall
only have the right to Sublicense Programs pursuant to an effective
Reseller Addendum between the parties hereto.
The Reseller shall Sublicense the Programs solely through a written
Sublicense agreement as provided under Section 2.3.B. Upon Oracle's
request, the Reseller shall provide Oracle with a copy of the Reseller's
standard Sublicense agreement.
B. Sublicense Agreement
Every Sublicense agreement shall include, at a minimum, contractual
provisions which:
1. Restrict use of the Programs to object code form on a single
Designated System by a maximum number of Users for the Sublicensee's
own internal data processing only;
2. Prohibit transfer or duplication of the Programs except for temporary
transfer in the event of computer malfunction and a single backup or
archival copy;
3. Prohibit assignment, timesharing or rental of the Programs;
4. Except as otherwise agreed by the parties, prohibit use of the
Programs for any purpose outside the scope of the Value-Added Package;
5. Prohibit causing or permitting the reverse engineering, disassembly or
decompilation of the Programs;
6. Prohibit title from passing to the Sublicensee;
7. Disclaim Oracle's liability for any damages, whether direct, indirect,
incidental or consequential arising from the use of the Programs;
8. Require the Sublicensee, at the termination of the Sublicense, to
discontinue use and destroy or return to the Reseller the Programs,
Documentation and all archival or other copies of the Program;
9. Restrict publication of any results of benchmark tests run on the
Programs;
10. For Programs Sublicensed for use in the United States, prohibit
transfer of the Programs outside the United States; for Programs
Sublicensed for use outside the United States, require the Sublicensee
to comply fully with all relevant export laws and regulations of the
United States to assure that neither the Programs, nor any direct
product thereof, are exported, directly or indirectly, in violation of
United States law;
11. Specify Oracle as a third party beneficiary of the Sublicense
agreement; and
12. Allow the Reseller to comply with Section 8.10 of this Agreement.
C. Marketing/Sublicensing Practices
In marketing and Sublicensing the Programs, the Reseller shall:
1. Avoid deceptive, misleading, illegal, or unethical practices that may
be detrimental to Oracle or to the Programs;
2. Not make any representations, warranties, or guarantees to
Sublicensees concerning the Programs that are inconsistent with or in
addition to those made in this Agreement or by Oracle; and
3. Comply with all applicable federal, state, and local laws and
regulations in performing its duties with respect to the Programs.
2.4 Acceptance of Programs
For each Program license for which delivery from Oracle is required
under this Agreement, the Reseller shall have a 15 day Acceptance Period,
beginning on the Commencement Date, in which to evaluate the Program.
During the Acceptance Period, the Reseller may cancel the license by giving
written notice to Oracle and returning the Program in accordance with
Section 6.6 below. Unless such cancellation notice is given, the license
will be deemed to have been accepted by the Reseller at the end of the
Acceptance Period.
2.5 Limitations on Use
The Reseller shall not use or duplicate the Programs (including the
Documentation) for any purpose other than as specified in this Agreement or
make the Programs available to unauthorized third parties. The Reseller may
not use the Programs for the processing of internal administrative data or
customer data. The Reseller shall not rent, electronically distribute, or
timeshare the Programs or market the Programs by interactive cable or
remote processing services or otherwise distribute the Programs other than
as specified in this Agreement. The Reseller agrees not to cause or permit
the reverse engineering, disassembly, or decompilation of the Programs.
2.6 Title.
Oracle shall retain all title, copyright, and other proprietary rights
in the Programs and any
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modifications or translations thereof. The Reseller and its Sublicensees
do not acquire any rights in the Programs other than those specified in
this Agreement.
2.7 Transfer of Programs
Except as otherwise specified in the Order Form, within the United
States, a Development License or Marketing Support License may be
transferred to another computer system of like configuration (same model
and operating system), or the Designated System may be transferred to
another location within the Reseller's organization, upon written notice
to Oracle. All other transfers, including transfer of a Program license
outside the United States, shall be permitted only with Oracle's prior
written consent and shall be subject to Oracle's standard transfer fees
in effect at the time of the transfer.
3. TECHNICAL SERVICES
3.1 Technical Support Services
Technical Support services ordered by the Reseller will be provided
under Oracle's Technical Support policies in effect on the date Technical
Support is ordered, subject to the payment by the Reseller of the
applicable fees. At the Reseller's request, Oracle will provide remote
assistance in the installation of each Supported Program license.
Reinstatement of lapsed Technical Support services is subject to Oracle's
Technical Support reinstatement fees in effect on the date Technical
Support is reordered. Limited Production Programs and pre-production
releases of Programs may not be eligible for standard Technical Support
services; the Reseller may obtain Technical Support services for Limited
Production Programs on a time and materials basis.
3.2 Training Services
Oracle will provide training services agreed to by the parties under
the terms of this Agreement. For any on site services requested by the
Reseller, the Reseller shall reimburse Oracle for actual, reasonable
travel and out-of-pocket expenses incurred, plus an administrative fee of
***% of such amount.
4. FEES AND PAYMENTS
4.1 License Fees and Sublicense Fees
The Reseller may order Development Licenses or Marketing Support
Licenses at the standard Program license fees set forth in the Price List
or at the fees otherwise provided in a Reseller Addendum. For each copy
of the Programs Sublicensed by the Reseller, the Reseller agrees to pay
Oracle a Sublicense fee as set forth in applicable Reseller Addenda.
The Reseller is free to determine unilaterally its own license fees
to its Sublicensees. If the Reseller or a Sublicensee upgrades the
Programs to a larger cpu, transfers the Programs to another operating
system, or increases the licensed number of Users, the Reseller will pay
additional Sublicense fees to Oracle as provided under Oracle's transfer
policies and rates in effect at the time the Program is upgraded or
transferred.
4.2 Technical Support Fees
Technical Support services ordered by the Reseller for Development
Licenses and Marketing Support Licenses will be provided under Oracle's
Technical Support policies and rates in effect on the date Technical
Support is ordered.
4.3 General Payment Terms
Except as otherwise provided herein, invoices for payment of license
fees shall be payable 30 days from the Commencement Date. Technical
Support fees for Sublicenses shall be as specified in the applicable
Reseller Addendum. Technical Support fees for Development Licenses and
Marketing Support Licenses shall be payable annually in advance, net 30
days from the renewal date; such fees will be those in effect at the
beginning of the period for which the fees are paid. Fees due by the
Reseller shall not be subject to set off for any claims against Oracle.
All payments made shall be in United States currency and shall be made
without deductions based on any taxes or withholdings, except where such
deduction is based on gross income. The fees listed in this Agreement do
not include taxes; if Oracle is required to pay sales, use, property,
value-added, or other federal, state or local taxes based on the licenses
granted under this Agreement, or the Sublicenses granted by the Reseller,
then such taxes shall be billed to and paid by the Reseller; this shall
not apply to taxes based on Oracle's income. Any amounts payable by the
Reseller hereunder which remain unpaid after the due date shall be
subject to late penalty fees equal to ***% per month from the due date
until such amount is paid. The Reseller agrees to pay applicable media
and shipping charges.
5. RECORDS
5.1 Records Inspection
The Reseller shall maintain books and records in connection with
activity under this Agreement. Such records shall include executed
Sublicense agreements and the information required in or related to the
Sublicense reports required under a Reseller Addendum. Oracle may, at its
expense, audit the executed Sublicensee agreements, the number of copies
of Programs used or Sublicensed by the Reseller, the computers on which
the Programs are installed, and the number of Users using the Programs
upon reasonable notice to the Reseller. Oracle may audit the relevant
books and records of the Reseller to ensure compliance with the terms of
this Agreement. Any such audit shall be conducted during regular business
hours at the Reseller's offices and shall not interfere unreasonably with
the Reseller's business activities. If an audit reveals that the Reseller
has underpaid fees to Oracle, the Reseller shall be invoiced for such
underpaid fees based on the Price List in effect at the time the audit is
completed. If the underpaid fees are in excess of five percent (5%), then
the Reseller shall pay Oracle's reasonable costs of conducting the audit.
Audits shall be made no more than once annually.
5.2 Notice of Claim
The Reseller will notify the Oracle legal department promptly in
writing of: (a) any claim or proceeding involving the Programs that comes
to its attention; (b) all claimed or suspected defects in
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the Programs; and (c) any material change in the management or control
of the Reseller.
6. TERM AND TERMINATION
6.1 Term
Each Program license granted under this Agreement shall remain in
effect perpetually (if not otherwise specified on the Order Form),
unless a license or this Agreement is terminated as provided in Section
6.2 or 6.3 below. The term of each Reseller Addendum hereunder shall be
as set forth in such Addendum.
6.2 Termination by the Reseller
The Reseller may terminate any Program license, any Reseller Addenda,
or this Agreement at any time; however, termination shall not relieve
the Reseller's obligation to pay all fees that have accrued or that the
Reseller has agreed to pay under a Reseller Addendum or any Order Form
or other similar ordering document under this Agreement.
6.3 Termination by Oracle
Oracle may terminate any Program license, any Reseller Addenda, or
this Agreement upon written notice if the Reseller breaches this
Agreement and fails to correct the breach within 30 days following
written notice specifying the breach.
6.4 Force Majeure
Neither party shall be liable to the other for failure or delay in
the performance of a required obligation if such failure or delay is
caused by strike, riot, fire, flood, natural disaster, or other similar
cause beyond such party's control, provided that such party gives prompt
written notice of such condition and resumes its performance as soon as
possible, and provided further that the other party may terminate this
Agreement if such condition continues for a period of one hundred eighty
(180) days.
6.5 Effect of Termination
Upon expiration or termination of a Reseller Addendum or this
Agreement, all the Reseller's rights to market, Sublicense, and use the
Programs as set forth in such Reseller Addendum or this Agreement shall
cease.
The termination of this Agreement, a Reseller Addendum, or any
license shall not limit either party from pursuing any other remedies
available to it, including injunctive relief, nor shall such termination
relieve the Reseller's obligation to pay all fees that have accrued or
that the Reseller has agreed to pay under a Reseller Addendum or any
Order Form or other similar ordering document under this Agreement. The
parties' rights and obligations under Sections 2.5, 2.6, 2.7 and
Articles 5, 6, 7, and 8 shall survive termination of this Agreement.
If the Reseller materially breaches this Agreement, including
failing to make any payments required hereunder when due under any Order
Form or other similar ordering document to this Agreement, then Oracle
may declare all sums due and to become due hereunder immediately due and
payable.
Return of Programs upon Termination
6.6 If a license granted under this Agreement expires or otherwise
terminates, the Reseller shall: (a) cease using the applicable Programs;
and (b) certify to Oracle within one month after expiration or
termination that the Reseller has destroyed or has returned to Oracle
the Programs and all copies. This requirement applies to copies in all
forms, partial and complete, in all types of media and computer memory,
and whether or not modified or merged into other materials. Before
returning Programs to Oracle, the Reseller shall acquire a Return
Material Authorization ("RMA") number from Oracle at (415) 506-1500.
7. INDEMNITY, WARRANTIES, REMEDIES, LIMITATION OF LIABILITY
7.1 Infringement Indemnity
Oracle will defend and indemnify the Reseller against a claim that
Programs furnished and used within the scope of this Agreement infringe
a United States copyright or patent, provided that: (a) the Reseller
notifies Oracle in writing within 30 days of the claim; (b) Oracle has
sole control of the defense and all related settlement negotiations; and
(c) the Reseller provides Oracle with the assistance, information and
authority necessary to perform Oracle's obligations under this
paragraph. Reasonable out-of-pocket expenses incurred by the Reseller in
providing such assistance will be reimbursed by Oracle.
Oracle shall have no liability for any claim of infringement based
on: (a) use of a superseded or altered release of Programs if the
infringement would have been avoided by the use of a current unaltered
release of the Programs that Oracle provides to the Reseller; or (b) the
combination, operation or use of any Programs furnished under this
Agreement with software, hardware or other materials not furnished by
Oracle if such infringement would have been avoided by the use of the
Programs without such software, hardware, or other materials.
In the event the Programs are held or are believed by Oracle to
infringe, Oracle shall have the option, at its expense, to (a) modify
the Programs to be noninfringing; (b) obtain for the Reseller a license
to continue using the Programs; or (c) terminate the license for the
infringing Programs and refund the license fees paid for those Programs,
prorated over a five year term from the Commencement Date. This Section
7.1 states Oracle's entire liability and the Reseller's exclusive
remedy for infringement.
7.2 Warranties and Disclaimers
A. Warranties
1. Program License Warranties
For each Supported Program License, Oracle warrants for a period of
one year from the Commencement Date that the Programs, unless modified
by the Reseller, will perform the functions described in the
Documentation provided by Oracle when operated on the Designated System.
Oracle will undertake to correct any reported error condition in
accordance with its technical support policies.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL RUN PROPERLY ON ALL
HARDWARE, THAT THE PROGRAMS WILL MEET REQUIREMENTS OF THE RESELLER OR
THE SUBLICENSEES OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED
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USE BY THE RESELLER OR THE SUBLICENSEES, THAT THE OPERATION OF THE PROGRAMS
WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL PROGRAM ERRORS WILL BE
CORRECTED.
If the Reseller does not obtain Technical Support services, the
Programs are distributed "as is."
The Reseller shall not make any warranty on Oracle's behalf.
2. Services Warranty
Oracle warrants that its Technical Support and training services will
be performed consistent with generally accepted industry standards. This
warranty shall be valid for 90 days from performance of service.
B. Limitations on Warranties
1. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2. As an accommodation to the Reseller, Oracle may supply the Reseller
with Limited Production Programs or with pre-production releases of
Programs (which may be labeled "Alpha" or "Beta"). These products are not
suitable for production use. Oracle does not warrant Limited Production
Programs, pre-production releases or computer-based training products;
these products are distributed "as is".
7.3 Exclusive Remedies
For any breach of the warranties contained in Section 7.2 above, the
Reseller's exclusive remedy, and Oracle's entire liability, shall be:
A. For Programs
The correction of Program errors that cause breach of the warranty, or
if Oracle is unable to make the Program operate as warranted, the Reseller
shall be entitled to recover the fees paid to Oracle for the Program
licensee or Update, as applicable.
B. For Services
The reperformance of the services, of if Oracle is unable to perform
the services as warranted, the Reseller shall be entitled to recover the
fees paid to Oracle for the deficient services.
7.4 Limitation of Liability
In no event shall either party be liable for any indirect, incidental,
special or consequential damages, or damages for loss of profits, revenue,
data or use, incurred by either party or any third party, whether in an
action in contract or tort, even if the other party or any other person has
been advised of the possibility of such damages. Oracle's liabiity for
damages hereunder shall in no event exceed the amount of fees paid by the
Reseller under this Agreement, and if such damages result from the
Reseller's use of the Program or services, such liability shall be limited
to fees paid for the relevant Program or services giving rise to the
liability, prorated over a five-year term from the Commencement Date of the
applicable license or the date of performance of the applicable services.
The provisions of this Article 7 allocate the risks under this
Agreement between Oracle and the Reseller. Oracle's pricing reflects this
allocation of risk and the limitation of liability specified herein.
7.5 Indemnification of Oracle
The Reseller agrees to enforce the terms of its Sublicense agreements
required by this Agreement and to inform Oracle of any known breach of such
terms. The Reseller will defend and indemnify Oracle against:
A. All claims and damages to Oracle arising from any use by the Reseller
or its Sublicensees of any product not provided by Oracle but used in
combination with the Programs if such claim would have been avoided by the
exclusive use of the Programs;
B. All damages to Oracle caused by the Reseller's failure to include the
required contractual terms set forth in Section 2.3.B hereof in each
Sublicense agreement; and
C. All damages to Oracle caused by Sublicenees' breach of any of the
applicable provisions required by Section 2.3 hereof.
7.6 Equitable Relief
The Reseller acknowledges that any breach of its obligations with
respect to proprietary rights of Oracle will cause Oracle irreparable
injury for which there are inadequate remedies at law and that Oracle shall
be entitled to equitable relief in addition to all other remedies available
to it.
8. GENERAL TERMS AND CONDITIONS
8.1 Nondisclosure
Neither party shall, without first obtaining the written consent of
the other party disclose the terms and conditions of this Agreement, except
as may be required to implement and enforce the terms of this Agreement, or
as may be required by legal procedure or by law. No other information
exchanged between the parties shall be deemed confidential unless the
parties otherwise agree in writing. The Reseller shall not disclose the
results of benchmark tests or other evaluation of the Programs to any third
party without Oracle's prior written approval.
8.2 Copyrights
The Programs are copyrighted by Oracle. The Reseller shall retain all
Oracle copyright notices on the Programs used by the Reseller under its
Development Licenses or Marketing Support Licenses. The Reseller shall
include the following on all copies of the Programs in application packages
distributed by the Reseller:
A. A reproduction of Oracle's copyright notice; or
B. A copyright notice indicating that the copyright is vested in the
Reseller containing the following:
1. A "c" in a circle and the word "copyright";
2. The Reseller's name;
3. The date of copyright; and
4. The words "All Rights Reserved."
Such notices shall be placed on the Documentation, the sign-on screen
for any application package incorporating the Programs, and the diskette or
tape labels. Notwithstanding any copyright notice by the Reseller to the
contrary, the copyright to the Program included in any such application
package
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shall remain in Oracle. Other than as specified above, on any
reproduction or translation of any Programs, Documentation, or
promotional material, the Reseller agrees to reproduce Oracle's
copyright notices intact.
8.3 Trademarks
"Oracle" and any other trademarks and service marks adopted by Oracle
to identify the Programs and other Oracle products and services belong
to Oracle: the Reseller will have no rights in such marks except as
expressly set forth herein and as specified in writing from time to
time. The Reseller's use of Oracle's trademarks shall be under Oracle's
trademark policies and procedures in effect from time-to-time. The
Reseller agrees not to use the trademark "ORACLE," or any mark beginning
with the letters "Ora," or any other mark likely to cause confusion with
the trademark "ORACLE" as any portion of the Reseller's tradename,
trademark for the Reseller's Value-Added Package, or trademark for any
other products of the Reseller. The Reseller shall have the right to use
the trademark "ORACLE" and other Oracle trademarks solely to refer to
Oracle's Programs, products and services.
The Reseller agrees with respect to each registered trademark of
Oracle, to include in each advertisement, brochure, or other such use
of the trademark, the trademark symbol "circle R" and the following
statement:
_______is a registered trademark of Oracle Corporation, Redwood
City, California.
Unless otherwise notified in writing by Oracle, the Reseller agrees,
with respect to every other trademark of Oracle, to include in each
advertisement, brochure, or other such use of the trademark, the symbol
"TM" and the following statement:
_______is a trademark of Oracle Corporation, Redwood City,
California.
The Reseller shall not market the Oracle Programs in any way which
implies that the Oracle Programs are the proprietary product of the
Reseller or of any party other than Oracle. Oracle shall not have any
liability to the Reseller for any claims made by third parties relating
to the Reseller's use of Oracle's trademarks.
8.4 Relationships between Parties
In all matters relating to this Agreement, the Reseller will act as
an independent contractor. The relationship between Oracle and the
Reseller is that of licensor/licensee. Neither party will represent that
it has any authority to assume or create any obligation, express or
implied, on behalf of the other party, nor to represent the other party
as agent, employee, franchisee, or in any other capacity. Nothing in
this Agreement shall be construed to limit either party's right to
independently develop or distribute software which is functionally
similar to the other party's product, so long as proprietary information
of the other party is not used in such development.
8.5 Assignment
The Reseller may not assign or otherwise transfer any rights under
this Agreement without Oracle's prior written consent.
8.6 Notice
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given
when mailed by first class mail to the first address listed in the
relevant Order Form (if to the Reseller) or to the Oracle address on the
Order Form (if to Oracle).
To expedite order processing, the Reseller agrees that Oracle may
treat documents faxed by the Reseller to Oracle as original documents:
nevertheless, either party may require the other to exchange original
signed documents.
8.7 Governing Law/Jurisdiction
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the laws of the State of California and
shall be deemed to be executed in Redwood City, California. The parties
agree that any legal action or proceeding relating to this Agreement
shall be instituted in any state or federal court in San Francisco or
San Mateo County, California. Oracle and the Reseller agree to submit to
the jurisdiction of, and agree that venue is proper in, the aforesaid
courts in any such legal action or proceeding.
8.8 Severability
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force and effect.
8.9 Export
The Reseller agrees to comply fully with all relevant export laws and
regulations of the United States to assure that neither the Programs,
nor any direct product thereof, are exported, directly or indirectly, in
violation of United States Law.
8.10 Inherently Dangerous Applications
The Programs are not specifically developed, or licensed for use in
any nuclear, aviation, mass transit, or medical application or in any
other inherently dangerous applications. The Reseller agrees to notify
each Sublicensee of the Reseller of this limitation. The Reseller hereby
agrees, and each Sublicensee shall agree, that Oracle shall not be
liable for any claims or damages arising from such use if the Reseller
or its Sublicensees use the Program for such applications. The Reseller
agrees to indemnify and hold Oracle harmless from any claims for losses,
costs, damages, or liability arising out of or in connection with the
use of the Programs in such applications.
8.11 Federal Government Sublicenses
If the Reseller grants a Sublicense to he United States government,
the Programs shall be provided with "Restricted Rights" and the
Reseller will place a legend, in addition to applicable copyright
notices, on the documentation, and on the tape or diskette label,
substantially similar to the following:
RESTRICTED RIGHTS LEGEND
"Use, duplication or disclosure by the Government is subject to
restrictions as set forth in subparagraph
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(c)(1)(ii) of the Department of Defense Regulations Supplement ("DFARS")
252.227-7013. Rights in Technical Data and Computer Software (October
1988) and Federal Acquisition Regulation ("FAR") 52.227-14. Rights in
Data-General, including Alternate III (June 1987), as applicable. Oracle
Corporation, 500 Oracle Parkway, Redwood City, CA 94085."
6.12 Waiver
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or
breach.
6.13 Entire Agreement
This Agreement constitutes the complete agreement between the parties
and supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document,
usage or custom shall be deemed to amend or modify this Agreement. This
Agreement may be executed in any number of counterparts, each of which
shall be an original and all of which shall constitute together but one
and the same document. All terms and conditions of any Reseller purchase
order or other ordering document shall be superseded by the terms and
conditions of this Agreement.
6
<PAGE>
The Effective Date of this Agreement shall be January 24, 1995
------------------
Executed by ARIS Corporation: Executed by Oracle Corporation:
Authorized Signature: /s/ Paul Song Authorized Signature:
---------------- ---------------
Name: PAUL SONG Name:
-------------------------------- -------------------------------
Title: PRESIDENT Title:
------------------------------- ------------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94085
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation.
<PAGE>
AMENDMENT ONE
to the
RESELLER AGREEMENT
between
ARIS CORPORATION
and
ORACLE CORPORATION
This document ("Amendment One") shall serve to amend the Reseller Agreement and
any amendments thereto between Aris Corporation (the "Reseller") and Oracle
Corporation ("Oracle") dated Jan 24, 1995, (the "Agreement").
The Agreement is hereby amended as follows:
1. Beginning in line 4 of Section 3.2 of the Agreement, the following
shall be deleted:
", plus an administrative fee of ***% of such amount."
2. The third and fourth sentences of Section 5.1 of the Agreement shall
be deleted and the following shall be inserted:
"Oracle may, at its expense, retain an independent third party to
audit the executed Sublicensee agreements, the number of copies of
Programs used or Sublicensed by the Reseller, the computers on which
the Programs are installed, and the number of Users using the Programs
upon reasonable notice to the Reseller. Such third party may audit
the relevant books and records of the Reseller to ensure compliance
with the terms of this Agreement."
"The Reseller shall have the right to allow the Reseller's third party
agents ("Agents") to use the Programs on behalf of the Reseller for
the purposes specified under this Agreement so long as the Reseller
ensures that the Agents use the Programs in accordance with the terms
of this Agreement."
<PAGE>
Other than the addition of the foregoing, the Agreement remains unchanged and in
full force and effect.
The Effective Date of this Amendment One is __________, 1994.
ARIS CORPORATION ORACLE CORPORATION
By: /s/ Paul Song By:
-------------------- -----------------------
Name: PAUL SONG Name:
------------------ ---------------------
Title: PRESIDENT Title:
----------------- --------------------
2
<PAGE>
RESELLER FULL USE SUBLICENSE ADDENDUM
This document (The "Addendum") is between Oracle Corporation ("Oracle") and ARIS
----
Corporation (the "Reseller") and shall be goverened by the terms of the Reseller
-----------
Agreement between the Reseller and Oracle effective Jan 24 1995 (the
------ --
"Agreement") and the terms set forth below.
1. SUBLICENSES
1.1 Sublicense Programs and Terms
The Reseller shall have the right to Sublicense Full Use or Deployment
Programs for any Programs which are available in production release and
listed on Oracle's Price List in effect at the time the Programs are
ordered from Oracle for Sublicense to the Sublicensee; provided, however,
except for the Oracle Mail Program and the Oracle Alert Program, the
Reseller shall have no right to Sublicense any Programs designated as
Oracle Applications Programs or Limited Production Programs without the
prior written consent of Oracle.
The Reseller shall have the right to market and grant Sublicenses of
Full Use or Deployment Programs for use on Designated Systems in
conjunction with the Integrated System to Sublicensees. Each copy of the
Full Use or Deployment Programs distributed shall be for the Sublicensee's
own internal use in the Territory only on a single Designated System
limited to a maximum number of Users.
To acquire Programs for Sublicensing to Sublicensees, the Reseller shall
order such Programs from Oracle. Orders for Trial Sublicenses shall be
clearly marked on the face of the Order Form.
1.2 Full Use and Deployment Programs
For the purposes of this Addendum, "Full Use Programs" shall mean
unaltered versions of the Programs with all functions intact. "Deployment
Programs" shall mean Programs which are limited to use solely for the
purpose of running applications, and may not be used to create or alter
tables or reports except as necessary for operating the applications.
1.3 Value-Added Package
For the purposes of this Addendum, "Integrated System" shall mean the
hardware and software products having Value-Added which are developed,
sold, and/or licensed with the Programs to a Sublicensee by the Reseller to
satisfy such Sublicensee's internal business requirements and objectives.
For purposes of the Agreement, the Integrated System will be regarded as
the Reseller's Value-Added Package which is described in the attached
Value-Added Attachment. The integrated System shall be regarded as
"Value-Added" if the following materials are provided as part of the
Integrated System by the Reseller: (a) non-Oracle developed software; (b)
customized programming or customized consulting; and (c) other computer
products or components.
1.4 Trial Sublicenses
The Reseller shall be entitled to grant, at no charge, up to ten (10)
temporary Trial Sublicenses of the Programs at any one time. Such
Sublicenses shall be for evaluation purposes only and shall be for a period
not to exceed thirty (30) days. The Reseller shall pay Oracle Sublicense
Fees for any Trial Sublicenses in excess of thirty (30) days. Each such
Trial Sublicense shall be Sublicensed under a Sublicense agreement.
1.5 Distributors
The Reseller's right to market and grant Sublicenses of the Full Use or
Deployment Programs hereunder shall be limited to the Reseller only. The
Reseller shall not appoint any third party to distribute the Programs
without Oracle's prior written consent.
1.6 Documentation
Oracle shall deliver one copy of the applicable Documentation with each
order of Programs for Sublicensing to Sublicensees.
During the Term of this Addendum, the Reseller may order Oracle
documentation for the Programs for resale to its Sublicensees at Oracle's
standard fees in effect when each order is placed less the Discount
Percentage corresponding to the List Price of Documentation for a single
order.
List Price of Documentation Discount Percentage
--------------------------- -------------------
(Single Order)
--------------
$*** - $*** ***%
$*** - $*** ***%
$*** - and over ***%
2. SUBLICENSE FEES
2.1 Sublicense Fees and Rate
For each copy of the Programs Sublicensed by the Reseller, the Reseller
agrees to pay Oracle a Sublicense fee equal to *** percent (***%) of the
applicable license fee for each such Program, as specified in the
applicable Price List and Reseller Price List supplement to such Price List
in effect at the time the applicable Programs are Sublicensed.
Sublicense fees shall be due and payable on the date that Oracle ships
the applicable Programs and shall be deemed overdue if not paid within
thirty-one (31) days of the due date.
2.2 Price List for Sublicenses
As set forth in the Agreement, the applicable Price List for determining
Sublicense fees shall be the standard Price List in effect at the time the
Program is Sublicensed.
Notwithstanding any other provision of this Agreement, if the Reseller
issues a written Sublicense quote and such quote is accepted by the
applicable Sublicensee, for a period of ninety (90) days after the date of
submission of the quote to the Sublicensee, the Sublicense fee applicable
to the Programs identified in the quote shall be based on the Price List in
effect on such date.
2.3 Users
<PAGE>
The Sublicense fees for a Program shall be based and priced on the
applicable User Level for the maximum number of Users for such Program, as
specified in the Price List. The Reseller shall have the right to
Sublicense Programs on any User basis specified in the Price List in effect
at the time the applicable Program is Sublicensed.
3. TERM
This Addendum shall become effective on the Effective Date of this
Addendum and shall be valid for one (1) year (the "Term"), unless
terminated as provided in the Agreement. Any renewal of this Addendum shall
be subject to renegotiation of terms and fees.
4. TERRITORY
The Reseller shall have the right to market and grant Sublicenses of
Full Use or Deployment Programs in the United States only (the
"Territory").
5. TECHNICAL SUPPORT
5.1 Technical Support for Sublicensees
A Sublicensee may acquire Technical Support services for Sublicensed
Full Use or Deployment Programs from Oracle at Oracle's standard rate and
fee in effect at the time such Technical Support services are ordered under
an Oracle Technical Support Services Agreement executed by the applicable
Sublicensee and Oracle.
5.2 Technical Support Fees
Oracle agrees that the Reseller shall have the right to offer Oracle
annual Technical Support services to Sublicensees in the United States that
are currently acquiring Full Use or Deployment Program Sublicenses. The
Reseller shall only offer Oracle Technical Support Services with respect to
the initial first year of Technical Support for a Sublicensed Program. The
Reseller shall only offer Oracle annual Technical Support services to
Sublicenses provided that:
A. Oracle receives from the Sublicensee an executed, standard Oracle
Technical Support Services Agreement, or other terms to govern the
Technical Support services as agreed to in writing by Oracle and the
Sublicensee;
B. The Full-Use or Deployment Programs are currently Sublicensed and
installed by the Reseller;
C. The Reseller pays Oracle its required Sublicense fee for the
applicable Sublicensed Programs as provided under the Agreement, and the
Reseller pays Oracle the applicable Technical Support services fees as set
forth herein in advance;
D. The Reseller's Sublicense of the Full Use or Deployment Programs
coincides with the agreement to provide Technical Support Services for such
Programs; and
E. The net Technical Support services fees represent new Technical
Support revenue to Oracle.
The Technical Support services fees payable by Reseller as provided
above shall be Oracle's standard rates for such services as provided under
the Price List in effect at the time the Technical Support services are
ordered, discounted by *** percent (***%).
6. SUBLICENSE REPORTS
With each order for Programs for Sublicense to a Sublicensee, the
Reseller shall send Oracle a report detailing each such Sublicensed Full
Use or Deployment Program: Sublicensee name, address, make/model and
operating system of the Designated System, Full Use or Deployment Programs,
maximum number of licensed users, whether the Sublicense is a Trial
Sublicense, total Sublicense fees and Technical Support Fees due to Oracle,
and specific descriptions of the integrated System and the Value-Added.
7. ADDITIONAL LICENSES
During the Term, the Reseller may order production release versions of
Oracle off-the-shelf Programs available as production release as of the
Effective Date of this Addendum and listed on the Price List in effect as
of such date. The license fee for Development Licenses shall be equal to
Oracle's standard list license fees in effect when an order is placed. The
Reseller shall have the right to order Programs for use as Marketing
Support Licenses at no further charge to the Reseller. The Reseller may
obtain Technical Support services from Oracle for such Programs under
Oracle's applicable Technical Support fees and policies in effect when such
services are ordered.
2
<PAGE>
The Effective Date of this Addendum shall be January 24, 1995
----------------
Executed by ARIS Corporation: Executed by Oracle Corporation:
Authorized Signature: /s/ Paul Song Authorized Signature:
---------------- --------------
Name: PAUL SONG Name:
-------------------------------- ------------------------------
Title: PRESIDENT Title:
------------------------------- -----------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94085
(415) 508-7000
Oracle is a registered trademark of Oracle Corporation.
CONFIDENTIAL: VIOLATES ORACLE POLICY TO DISTRIBUTE OUTSIDE ORACLE.
<PAGE>
AMENDMENT ONE
to the
RESELLER FULL USE SUBLICENSE ADDENDUM
to the
RESELLER AGREEMENT
between
ARIS CORPORATION
and
ORACLE CORPORATION
This Amendment One shall serve to amend the Reseller Full Use Sublicense
Addendum dated January 24, 1995 (the "Addendum") to the Reseller Agreement
between Aris Corporation (the "Reseller") and Oracle Corporation ("Oracle")
dated January 24, 1995 (the "Agreement").
The Addendum is amended as follows:
1. Notwithstanding any other provisions of the Addendum, the Term of the
Addendum shall hereby be extended until January 24, 1997.
2. Add the following new paragraph to the end of Section 1.6:
"During the Term of this Addendum, the Reseller may order Oracle
documentation for the Programs for resale to its Sublicensees at Oracle's
standard fees in effect when each order is placed less the Discount
Percentage corresponding to the List Price of Documentation for a single
order."
List Price of Documentation Discount Percentage
--------------------------- -------------------
(Single Order)
--------------
$*** - $*** ***%
$*** - $*** ***%
$*** - and over ***%
Other than the modifications set forth above, the terms and conditions of the
Addendum and the Agreement remain unchanged and in full force and effect.
The Effective Date of this Amendment One is October 7, 1996
ARIS CORPORATION ORACLE CORPORATION
By: /s/ Jay Griffin By: /s/ Derek T. Schaefer
---------------------- ---------------------------
Name: JAY GRIFFIN Name: DEREK T. SCHAEFER
-------------------- -------------------------
Title: VP SALES & MARKETING Title: RAS SUPERVISOR
----------------------- ALLIANCES SALES SUPPORT
------------------------
<PAGE>
AMENDMENT TWO
to the
RESELLER FULL USE SUBLICENSE ADDENDUM
to the
RESELLER AGREEMENT
between
ARIS CORPORATION
and
ORACLE CORPORATION
This Amendment Two shall serve to amend the Reseller Full Use Sublicense
Addendum dated January 24, 1995 (the "Addendum") to the Reseller Agreement
between Aris Corporation (the "Reseller") and Oracle Corporation ("Oracle")
dated January 24, 1995 (the "Agreement").
The Addendum is amended as follows:
1. Notwithstanding any other provisions of the Addendum, the Term of the
Addendum shall hereby be extended until January 24, 1998.
2. The following shall be inserted at the end of the introductory paragraph of
the Addendum:
The term "Reseller" for purposes of this Addendum shall include the
Reseller and the Reseller's wholly or majority owned subsidiaries which are
specified on the attached Subsidiary Exhibit as of the Effective Date. Each
Subsidiary must agree in writing to be bound by the terms of the Addendum.
Other than the modifications set forth above, the terms and conditions of the
Addendum and the Agreement remain unchanged and in full force and effect.
The Effective Date of this Amendment Two is 27 May, 1997.
ARIS CORPORATION ORACLE CORPORATION
By: /s/ Kendall W. Kunz By:
------------------------ ----------------------
Name: KENDALL W. KUNZ Name:
---------------------- --------------------
Title: VICE PRESIDENT Title:
--------------------- -------------------
<PAGE>
SUBSIDIARY EXHIBIT
. Aris Software, Inc.
. Oxford Computer Group Limited
. Noetix Corporation
<PAGE>
ORACLE(R)
COMPLEMENTARY SOFTWARE PROVIDER AGREEMENT
This Complementary Software Provider Agreement (the "Agreement") is between:
Oracle Corporation with its principal place of business at 500 Oracle Parkway,
Redwood City, California 94085 ("Oracle") and Noetix Corp. (legal name) with its
------------
principal place of business at Beaverton, Oregon (the "CSP"). The terms of this
-----------------
Agreement shall apply to each Program license granted and to all services
provided by Oracle under this Agreement. When completed and executed by both
parties, a Development License Order Addendum shall evidence the Program
licenses granted and the services that are to be provided.
1. DEFINITIONS
1.1 APPLICATION PROGRAM(S) AND APPLICATION PACKAGE(S): "Application
Program(s)" shall mean the CSP's value-added application software described in
the attached Application Package Addendum used in conjunction with Programs.
"Application Package(s)" shall mean the Programs coupled with the CSP
Application Programs.
1.2 HARDWARE: "Hardware" shall mean the computer hardware/operating system
combinations Noted on the applicable Development License Order Addendum executed
by the parties for use in conjunction with a Development License Program.
1.3 PRICE LIST: "Price List" shall mean Oracle's standard commercial fee
schedule that is in effect when the Program license or services are ordered by
the CSP.
1.4 PROGRAM(S): "Program(s)" shall mean the computer software programs, or
any portion thereof, specified by the applicable Development License Order
Addendum developed and licensed by Oracle which are generally available for use
on the Hardware. "Program(s)shall refer solely to:(a) the object code computer
software program; (b) written material furnished by Oracle in conjunction with
the Programs including instructions and user guides ("Documentation"); and (c)
Updates. No other Oracle software or products shall be included in the term
"Programs."
1.5 UPDATE(S): "Updates" shall mean a subsequent release of a Program which
is generally made available to Oracle's supported licensees at no additional
charge, other than media and handling charges, if applicable. Update shall not
include any release, option or future product which Oracle licenses separately.
2. LICENSES GRANTED
2.1 DEVELOPMENT LICENSE
In consideration for the Development License fees specified on the
applicable Development License Order Addendum, Oracle grants the CSP a
nonexclusive, nontransferable Development License to use the Programs specified
therein in object code form on the designated Hardware in the United States only
for the following purpose only:
A. Use the Programs on the cpu specified on the applicable Development
License Order Addendum for purposes of: (i) developing the Application
Package, (ii) reproducing the Programs to the extent necessary for
safekeeping and archival purposes, (iii) demonstrating the Programs to
potential customers solely in conjunction with the Application
Programs, and (iv) providing training to CSP employees and customers
solely in conjunction with Application Programs; and
B. Temporarily transfer the Development License to a backup cpu if the
designated cpu is inoperative.
The CSP may not use the Development License for any internal data
processing operations or for any other purpose. The CSP's use of a Development
Program shall be limited to the maximum number of Users of such Program
applicable to such Program under its license form Oracle pursuant to Section 3.2
herein. As used in connection with the CSP, the term "User" shall mean an CSP
employee who is authorized by the CSP to use the Program as provided herein.
Upon the mutual agreement of the parties, the CSP may license additional
Development Licenses for use under this Agreement pursuant to a Development
License Order Addendum. Any and all such orders submitted by the CSP shall be an
offer subject to Oracle's written consent.
For each Development License licensed by the CSP under this
Agreement, the CSP shall have a 15 day Acceptance Period, beginning on the
Commencement Date, in which to evaluate the Development License. During the
Acceptance Period, the CSP may cancel the license by giving written notice to
Oracle and returning the Development License in accordance with Section 3.5
hereof. Unless such cancellation notice is given, the License will be deemed to
have been accepted by the CSP at the end of the Acceptance Period. For the
Purpose of this Section, "Commencement Date" shall mean the date on which the
Development License is delivered to the CSP.
2.2 DOCUMENTATION
For each Development License granted to the CSP, the CSP shall receive
one set of Documentation in softcopy form. Additional documentation may be
ordered from Oracle subject to Oracle's rates and fees in effect at the time the
order is accepted.
2.3 LIMITATIONS ON USE
The CSP shall not use or duplicate the Programs (including the
Documentation) for any purpose other than as specified in this Agreement or make
the Programs available to unauthorized third parties. The CSP shall not (a) use
the Programs for its internal data processing or for processing customer data;
(b) rent, electronically distribute, or timeshare the Programs or market the
Programs by interactive cable or remote processing services or otherwise
distribute the Programs other than as specified in this Agreement; or (c) cause
or permit the reverse engineering, disassembly, or decompilation of the
Programs.
2.4 TITLE
Oracle shall retain all title, copyright, and other proprietary rights
in the Programs and any modifications or translations thereof. The CSP does not
acquire any rights in the Programs other than those specified in this Agreement.
The CSP shall retain title, copyright and other proprietary rights in the
Application Programs and translations thereof.
3. FEE AND PAYMENTS
3.1 CSP MEMBERSHIP FEES
Initial CSP membership fees are specified on the CSP Membership Fee
Addendum with respect to the CSP's admission to the Oracle CSP Program.
3.2 DEVELOPMENT LICENSE FEES
Initial Development License fees are specified on the Development
License Order Addendum. During the Term, CSP may acquire additional Development
Licenses for those Programs for the hardware/operating system combinations which
are available to the CSP under Oracle's CSP policies and fees in effect at the
time the Program is shipped to the CSP. Such Programs may be acquired by the
CSP during the Term using a completed Development License Order Addendum. All
Development License fees for such other additional Development Licenses shall be
based upon the license fees available under Oracle's CSP policies and fees in
effect at the time the Development Licenses are shipped to CSP.
3.3 TECHNICAL SUPPORT FEE
Each year the CSP shall pay Oracle annual Technical Support fees based
on the Technical Support Services Fees for CSPs under Oracle's CSP policies and
fees in effect at the time such Technical Support Services fees are ordered from
Oracle for each Development License. Such fees shall be paid annually in
advance.
All Technical Support Fees paid to Oracle are noncancelable and
nonrefundable. These Technical Support Fees shall be in consideration for
continuation of the services set forth herein.
3.4 GENERAL PAYMENT TERMS
Except as otherwise provided herein, invoices for payment of license
fees shall be payable 30 days from the Commencement Date. Fees due by the CSP
shall not be subject to setoff for any claims against Oracle. All payments made
shall be in United States currency and shall be made without deductions based on
taxes or withholdings, except where such deduction is based on gross income. Any
amounts payable by the CSP hereunder which remain unpaid after the due date
shall be subject to a late charge equal to ***% per month from the due date
until such amount is paid. The CSP agrees to pay applicable media and shipping
charges.
3.5 RETURN OF DEVELOPMENT LICENSES
Before returning any Development Licenses to Oracle, the CSP shall
acquire a Return Material Authorization ("RMA") number from Oracle at (415)
508-1500.
3.6 NEGOTIATION OF RESELLER RIGHTS
At the CSP's request, Oracle agrees to negotiate in good faith with the
CSP to provide the CSP with standard value-added reseller rights for the
Programs to be used in conjunction with the CSP's Application Programs based on
Oracle's policies, rates and fees in effect at the time the CSP requests such
rights.
4. REPORTING
4.1 VERIFICATION
On Oracle's written request, not more frequently than annually, the CSP
shall furnish Oracle with a signed certification (i) verifying that the Programs
are being used pursuant to the provisions of the Agreement, including any User
limitations; and (ii) listing the locations, types and serial numbers of the
cpus on which the Programs are run.
Oracle may, at its expense, audit the number of copies of the Programs
used by the CSP, the cpus on which the Programs are installed, and the number
Users using the Programs. Any such audit shall be conducted during regular
business hours at the CSP's offices and shall not unreasonably interfere with
the CSP's business activities. If any audit reveals that the CSP has underpaid
fees to Oracle, the CSP shall be invoiced for such underpaid fees based on the
Price List in effect at the time the audit is completed. If the underpaid fees
are in excess of five percent (5%), then the CSP shall also pay Oracle's
reasonable costs of conducting the audit. Audits shall be conducted no more than
once annually.
4.2 NOTICE OF CLAIM
The CSP will notify the Oracle legal department promptly in writing of:
A. Any claim or proceeding involving the Programs that come to its
attention; or
B. Any material change in the management or control of the CSP.
5. ORACLE TECHNICAL SUPPORT RESPONSIBILITIES
In consideration for the payment of the technical support fees specified
above, Oracle will provide the CSP with the following technical support services
for the Development Licenses:
A. Updates as they become available;
B. Corrections to errors reported to be in the then-current release of the
Programs, as such corrections become available; and
C. Telephone consultation, assistance and advice.
The CSP shall appoint an on-site technical contact as the liaison with
Oracle for technical support. The technical contact shall be the sole liaison
between Oracle and the CSP for all Program technical support. Oracle may
discontinue technical support to the CSP for any Program in accordance with
Oracle's then-current technical support policies, provided that Oracle generally
discontinues technical support for such Program.
6. TERMS AND TERMINATION
6.1 TERM
This Agreement shall become effective on the Effective Date and shall be
valid for one (1) year (the "Term"), unless terminated as provided below. Any
renewal of this Agreement shall be subject to renegotiation of terms and fees.
6.2 TERMINATION OF AGREEMENT
A. Termination for Breach
Either party may terminate this Agreement prior to the expiration of
the Term in the event that the other party materially defaults in performing
any obligation under this Agreement and such default continues unremedied for a
period of thirty (30) days following written notice of default.
B. Force Majeure
Neither party shall be liable to the other for failure or delay in the
performance of a required obligation if such failure or delay is caused by
strike, riot, fire, flood, natural disaster, or other similar cause beyond such
party's control, provided that such party gives prompt written notice of such
condition and resumes its performance as soon as possible, and provided further
that the other party may terminate this Agreement if such condition continues
for a period of one hundred eighty (180) days.
6.3 RIGHTS UPON TERMINATION OR EXPIRATION
Upon expiration or termination of this Agreement:
A. Other than as specified in Subparagraph 6.3.B below, all the CSP's
rights to use the Programs shall cease;
B. Unless the termination is for default by the CSP, the CSP may
continue using the release of the Programs then in the CSP's possession on the
cpu's for which Development Licenses were granted, solely for the purpose of
maintaining the compatibility between the Application Programs and the Programs.
Such continued use of the Programs shall be subject to all the provisions of
this Agreement; and
C. Oracle shall no longer have any obligation to provide the CSP with
technical support services. However, upon mutual agreement of the parties,
Oracle may provide technical support for Development Licenses under Oracle's
fees and policies in effect at the time such Technical Support Services are
provided to the CSP.
6.4 EFFECT OF EXPIRATION OR TERMINATION
If this Agreement expires or is terminated for any reason, neither party
will be liable to the other because of such expiration or termination for
damages for the loss of prospective profits, anticipated sales, or good will.
Provided, however, that expiration or termination of this Agreement shall not
relieve either party from its liability to pay any fees which have accrued to
the other party as of the expiration or termination, or which accrue after such
expiration or termination. Any election to terminate under this Article 6 shall
not limit either party's right to seek equitable or other appropriate relief
relating to the breach.
6.5 SURVIVAL
The parties' right and obligations under Sections 2.3, 2.4 and Articles
4, 6, 7 and 8 shall survive expiration or termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 INFRINGEMENT INDEMNITY
Oracle will defend and indemnify the CSP against any claim that the
Programs licensed and used within the scope of this Agreement infringe a United
States copyright or patent, provided that (a) the CSP notifies Oracle in writing
within thirty (30) days of the claim; (b) Oracle has sole control of the defense
and all related settlement negotiations; and (c) at Oracle's request, the CSP
provides Oracle with all necessary assistance, information, and authority to
perform the above; reasonable out-of-pocket expenses incurred by the CSP in
providing such assistance will be reimbursed by Oracle.
Oracle shall have no liability for any claim of infringement based on
(a) use of a superceded or altered release of the Programs if such infringement
would have been avoided by the use of a current, unaltered release of the
Programs that Oracle provides to the CSP.
In the event the Programs are held or are believed by Oracle to
infringe, Oracle shall have the option, at its expense, to (a) modify the
Programs to be noninfringing; (b) obtain for the CSP a license to continue using
the Programs; or (c) terminate this Agreement and return to the CSP the License
fees paid, prorated over the term of the Agreement. This Section 7.1 states
Oracle's entire liability for infringement.
7.2 WARRANTY
Oracles warrants that the Programs will be capable of performing the
functions described in the Documentation when operated on the appropriate
hardware/operating systems environment. ORACLE DOES NOT WARRANT THAT THE
PROGRAMS WILL
<PAGE>
RUN PROPERLY ON ALL HARDWARE, THAT THE PROGRAMS WILL MEET REQUIREMENTS OF
THE CSP OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY THE
CSP, THAT THE OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED OR ERROR
FREE, OR THAT ALL PROGRAM ERRORS WILL BE CORRECTED.
7.3 EXCLUSION
THE WARRANTIES STATED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.4 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA,
OR USE INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN
CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Oracle's liability for damages
hereunder for any cause whatsoever shall in no event exceed the amounts
received by Oracle from the CSP with respect to the particular transaction
which gives rise to the liability. The provisions of this Article 7
allocate the risks under this Agreement between Oracle and the CSP. The
fees provided for in this Agreement reflect this allocation of risks and
the limitation of liability specified herein.
7.5 EQUITABLE RELIEF
The CSP acknowledges that any breach of its obligations with respect
to proprietary rights of Oracle will cause Oracle irreparable injury for
which there are inadequate remedies at law and that Oracle shall be
entitled to equitable relief in addition to all other remedies available to
it.
8. GENERAL TERMS AND CONDITIONS
8.1 NONDISCLOSURE
Neither party shall, without first obtaining the written consent of
the other party disclose the terms and conditions of this Agreement, except
as may be required to implement and enforce the terms of this Agreement, or
as may be required by legal procedures or by law. No other information
exchanged between the parties shall be deemed confidential unless the
parties otherwise agree in writing. The CSP shall not disclose the results
of benchmark tests or other evaluation of the Programs to any third party
without Oracle's prior written approval.
8.2 COPYRIGHTS
The Programs are copyrighted by Oracle. The CSP shall retain all
Oracle copyright notices on the Programs used by the CSP under its
Development Licenses or Marketing Support Licenses. The CSP shall include
the following on all copies of the Programs in software Application
Packages incorporating the Programs distributed by the CSP:
A. A reproduction of Oracle's copyright notice; or
B. A copyright notice indicating that the copyright is vested in the
Alliance Member containing the following:
1. A "c" in a circle and the word "copyright";
2. The Alliance Member's name;
3. The date of copyright; and
4. The words "All Rights Reserved."
Such notices shall be placed on the Documentation, the sign-on screen
for any software Application Packages incorporating the Programs, and the
diskette or tape labels. Notwithstanding any copyright notice by the CSP to
the contrary, the copyright to the Program included in any such Application
Package shall remain in Oracle. Other than as specified above, on any
reproduction or translation of any Programs, Documentation, or promotional
material, the CSP agrees to reproduce Oracle's copyright notices intact.
8.3 TRADEMARKS
"Oracle" and any other trademarks and service marks adopted by Oracle
to identify the Programs and other Oracle products and services belong to
Oracle; the CSP will have no rights in such marks except as expressly set
forth herein and as specified in writing from time to time. The CSP's use
of Oracle's trademarks shall be under Oracle's trademark policies and
procedures in effect from time to time. The CSP agrees not to use the
trademark "ORACLE," or any mark beginning with the letters "Ora," or any
other mark likely to cause confusion with the trademark "ORACLE" as any
portion of the CSP's tradename, trademark for the CSP's Application
Program, or trademark for any other products of the CSP. The CSP shall have
the right to use the trademark "ORACLE" and other Oracle trademarks solely
to refer to Oracle's Programs, products and services.
The CSP agrees with respect to each registered trademark of Oracle, to
include in each advertisement, brochure, or other such use of the
trademark, the trademark symbol "circle R" and the following statement:
_____is a registered trademark of Oracle Corporation, Redwood City,
California
Unless otherwise notified in writing by Oracle, the CSP agrees, with
respect to every other trademark of Oracle, to include in each
advertisement, brochure, or other such use of the trademark, the symbol
"TM" and the following statement:
_____is a trademark of Oracle Corporation, Redwood City, California
The CSP shall not market the Oracle Programs in any way which implies
that the Oracle Programs are the proprietary product of the CSP or of any
party other than Oracle. Oracle shall not have any liability to the
<PAGE>
CSP for any claims made by third parties relating to the CSP's use of
Oracle's trademarks.
8.3 RELATIONSHIP BETWEEN PARTIES
In all matters relating to this Agreement, the CSP will act as an
independent contractor. The relationship between Oracle and the CSP is that
of licenor/licensee. Neither party will represent that it has any authority
to assume or create any obligation, express or implied, on behalf of the
other party, nor to represent the other party as agent, employee,
franchisee, or in any other capacity. Nothing in this Agreement shall be
construed to limit either party's right to independently develop or
distribute software which is functionally similar to the other party's
product, so long as proprietary information of the other party is not
included in such software.
8.4 ASSIGNMENT
The CSP may not assign or otherwise transfer any rights under this
Agreement without Oracle's prior written consent.
8.5 NOTICE
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given when
deposited in first class mail to the addresses listed herein for the CSP
and for Oracle.
To expedite order processing, the CSP agrees that Oracle may treat
documents faxed by the CSP to Oracle as original documents; nevertheless,
either party may require the other to exchange original signed documents.
8.6 GOVERNING LAW/JURISDICTION
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the substantive and procedural laws of the
State of California and shall be deemed to be executed in Redwood City,
California. The parties agree that any legal action or proceeding relating
to this Agreement shall be instituted in any state or federal court in San
Francisco or San Mateo County, California. Oracle and the CSP agree to
submit to the jurisdiction of, and agree that venue is proper in, these
courts in any such legal action or proceeding.
8.7 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force and effect.
8.8 EXPORT
The Program shall not be exported outside the United States.
8.10 WAIVER
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or breach.
Except for actions for non-payment or breach of Oracle's proprietary rights
in the Program, no action, regardless of form, arising out of this
Agreement may be brought by either party more than one year after the
cause of action has accrued.
8.11 DUPLICATE ORIGINALS
This Agreement may be executed in any number of counterparts, each of
which shall be an original and all of which shall constitute together but
one and the same document.
8.12 ENTIRE AGREEMENT
This Agreement, with all attached exhibits, sets forth the entire
Agreement between the parties and supersedes prior proposals, agreements
and representations between them, whether written or oral. This Agreement
may be changed only by mutual Agreement of the parties in writing.
The Effective Date of this Agreement shall be January 8, 1997.
---------------
EXECUTED BY THE ALTERNATE MEMBER: EXECUTED BY ORACLE CORPORATION:
AUTHORIZED SIGNATURE: /s/ David Melin AUTHORIZED SIGNATURE:
---------------- ---------------------
NAME: NOETIX CORP. NAME:
--------------------------------- -------------------------------------
TITLE: PRESIDENT TITLE:
-------------------------------- ------------------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94085
(416) 506-7000
Oracle is a registered trademark of Oracle Corporation.
1-95
<PAGE>
CAI RENEWAL
COOPERATIVE APPLICATIONS
DESIGN MIGRATION ADDENDUM
This document (the "Addendum") is between Oracle Corporation ("Oracle") and
Noetix Corp., (the "CSP") and shall be governed by the terms of the
Complementary Software Provider Agreement between the CSP and Oracle effective
September 1, 1996 (the "Agreement") and the terms set forth below.
1. CAI Membership and Privileges
During the Term of this Addendum, the CSP shall be admitted as a
member of Oracle's Cooperative Applications initiative (the "CAI"). The CAI
has two membership tiers which reflect the status of a member in the
integration process: (i) CAI Applicant Member; and (ii) CAI Approved
Member. Upon execution of this Addendum, the CSP shall be designated an
Applicant Member. As an Applicant Member, within six (6) months of the
Effective Date hereof, the CSP shall complete the analysis and detail
design necessary to begin integration of the CSP's Application Program with
the Oracle Applications Programs. Within twelve (12) months of the
Effective Date hereof, the CSP shall complete the development of the
integrated program set and documentation and the testing of such integrated
program set and shall submit such integrated program set to Oracle for
approval in accordance with Paragraph E below. If the CSP is unable to
complete the applicable tasks within the relevent six (6) month period, the
CSP shall not be eligible to participate in any CAI or Oracle Applications
marketing events. As a member of the CAI, the CSP shall be entitled to the
following privileges:
A. The CSP may order from Oracle temporary Development Licenses for
each of the Oracle Program designated as Oracle Financial and Government
Financial Applications Programs, Manufacturing Applications Programs,
Distribution Application Programs, Project Application Programs and/or
Human Resources Applications Programs (for the purposes of this Addendum,
the "Oracle Applications Programs") for use for the purposes provided under
this Addendum at the fees set forth in this Addendum. Each such Development
License shall be licensed to the CSP during the Term of this Addendum and
shall terminate upon expiration or termination of such Term.
Notwithstanding any other provision of the Agreement, the CSP shall only
use the Development Licenses for Oracle Applications Programs acquired
under this Addendum solely for the purposes of completing integration of
the CSP's Application Program with the Oracle Applications Programs and
demonstrating the Oracle Applications Programs in conjunction with the
CSP's Application Program on the applicable Designated System;
B. The CSP may order OracleBRONZE Technical Support Services for the
Development Licenses licensed hereunder at the fees set forth in this
Addendum;
C. Oracle will provide Integration services from Oracle's Design Migration
Services Group ("DMS") for the purposes of Integrating the CSP's
Applications Programs with the Oracle Applications Programs, subject to
execution of a standard Oracle Services Agreement. Integration services,
beyond seven (7) days, ordered by the CSP will be provided under the DMS
policies and rates in effect on the date such services are ordered. The CSP
acknowledges and agrees that such services shall be subject to availability
of DMS personnel and shall not be performed by any member of the Oracle
Consulting or Development organization;
D. The CSP shall have the right to order DMS services related to the
Oracle Applications Programs extensions and enhancements, and Oracle shall
consider each such request in accordance with its business practices,
pricing and policies and the availability of DMS personnel;
E. Upon complete integration of the CSP's Application Program with the
latest release of the Oracle Applications Programs, the CSP may apply to
DMS to review the functionality of the integrated program set to determine
if the applicable CSP's Application Program meets the minimum requirements
for functioning in accordance with Oracle's CAI Integration Standards. If
Oracle determines that the version of the CSP's Application Program meets
such Standards, DMS shall approve and designate such version of the CSP
Application Program as approved under such Standards. In the event the CSP
issues a new release of the Application Program which incorporates new
functionality, the CSP shall notify Oracle of such new release and shall
apply for re-approval of the Application Program as set forth herein. The
new release shall not be deemed approved by Oracle until Oracle notifies
the CSP of its approval in writing. To be approved, a CSP Application
Program must be integrated with the then current release of the applicable
Oracle Application Program. Approved CSP Application Programs must be
upgraded to new releases of the applicable Oracle Application Program
within three (3) months of the general availability of such new releases to
maintain approved status;
F. Oracle shall compile a list of CSP Application Programs designated as
approved under the Standards and shall publish such list on a periodic
basis. If the CSP's Application Program is designated as approved, Oracle
shall include such Application Program in such list; and
G. Oracle and the CSP may develop joint marketing plans for the purpose
of promoting the distribution of the CSP's Application Programs in
conjunction with the distribution of the Oracle Applications Programs.
2. CAI Fees
A. Membership Fees
In consideration of the rights granted to the CSP under this Addendum
during the Term, the CSP shall pay to Oracle a membership fee of ***
<PAGE>
dollars ($***). This fee shall be due and payable within thirty (30) days of
the Effective Date specified below. This payment obligation is noncancelable and
the sum paid is nonrefundable.
B. Development License Fees
During the Term, the CSP may order production release versions of Oracle
off-the-shelf Application Programs available as production release as of the
Effective Date of this Addendum at no charge for the sole purposes of developing
and demonstrating the CSP's Application Program. Such Development License is for
one (1) Designated System of up to eight (8) Named Users. The CSP may order
Additional Development Licenses at no charge with OracleBRONZE Technical Support
for those licenses at prices set forth in Paragraph 2C of this Addendum.
C. Technical Support Services
The CSP may obtain Technical Support services from Oracle for Development
Licenses acquired hereunder under Oracle's applicable Technical Support fees and
policies in effect when such services are ordered. During the Term, the CSP
shall have the right to acquire annual OracleBRONZE Technical Support Services
for the Development Licenses for the Designated System at a fee equal to ***
percent (***%) of then-current standard named user support prices for the
Application Development Licenses, provided that the minimum OracleBRONZE fee
shall be equal to *** dollars ($***) with a minimum annual OracleBRONZE fee of
*** dollars ($***) per country per year, payable annually in advance. The CSP
shall have the right to acquire annual OracleBRONZE Technical Support services
for the Development Licenses for any subsequent Designated System at the fees
stated above, payable annually in advance.
3. Term
This Addendum shall become effective on the Effective Date of this Addendum
and shall be valid for one (1) year (the "Term"), unless terminated as provided
in the Agreement. Any renewal of this Addendum shall be subject to renegotiation
of terms and payment of annual membership renewal fees. As of the Effective
Date, the annual renewal fee is *** dollars ($***) per year. The CSP may renew
its Technical Support annually under Oracle's Technical Support fees and
policies in effect at the time of renewal.
The Effective Date of this Addendum shall be Feb 20, 1997.
------------
EXECUTED BY CSP: EXECUTED BY ORACLE CORPORATION:
AUTHORIZED SIGNATURE: /s/ David Melin AUTHORIZED SIGNATURE: /s/ Jeremy Rosenberg
---------------- ---------------------
NAME: DAVID MELIN NAME: JEREMY ROSENBERG
--------------------------------- -------------------------------------
TITLE: PRESIDENT TITLE: MANAGER-VERTICAL ACCOUNTS
-------------------------------- ALLIANCES SALES SUPPORT
------------------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood City, CA 94085
(416) 506-7000
Oracle is a registered trademark of Oracle Corporation.
2
<PAGE>
AMENDMENT ONE
to the
COOPERATIVE APPLICATIONS INITIATIVE ADDENDUM
between
Noetix Corp.
and
ORACLE CORPORATION
This document ("Amendment ___") amends the Cooperative Applications Initiative
Addendum, dated February 20, 1997, and all amendments and addendums thereto (the
"Addendum") between Noetix Corp., ("Customer") and Oracle Corporation
("Oracle"). The parties hereby agree to amend the Addendum as follows:
1. Insert the following as a new Section 2.D in the Addendum:
"D. Renewal Transition Program
If the Effective Date of this Addendum is on or before October 1, 1996,
the Alliance Member may obtain OracleBRONZE Technical Support for its
Development License(s) from October 1, 1996 to September 30, 1997 at a fee
equal to *** percent (***%) of then-current standard named user support
prices for the Application Development License, provided that the minimum
OracleBRONZE fee shall be equal to *** dollars ($***) with a maximum
annual OracleBRONZE fee of *** dollars ($***) per country per year,
payable annually in advance. Thereafter, the Alliance Member may obtain
OracleBRONZE Technical Support at Oracle's CAI support fees and policies
in effect at the time of renewal."
Subject to the modifications herein, the Addendum shall remain in full force and
effect.
The Effective Date of this Amendment One is February 20, 1997.
Noetix Corp. ORACLE CORPORATION
By: /s/ David Melin By: /s/ Jeremy Rosenberg
---------------------------- ------------------------------
Name: DAVID MELIN Name: JEREMY ROSENBERG
-------------------------- ----------------------------
Title: PRESIDENT Title: MANAGER-VERTICAL ACCOUNTS
------------------------- ALLIANCES SALES SUPPORT
---------------------------
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