Business Alliance Agreement - Oracle Corp. and KPMG Peat Marwick LLP
ORACLE
BUSINESS ALLIANCE AGREEMENT
This Business Alliance Agreement (the "Agreement") is between Oracle Corporation
with its principal place of business at 500 Oracle Parkway, Redwood City,
California 94065 ("Oracle") and KPMG Peat Marwick LLP with its principal place
of business at 1 Radner 100 Matsonford Suite 500 Radner, PA 19087 ("KPMG"). The
terms of this Agreement shall apply to each Program license granted and to all
services provided by Oracle under this Agreement. When completed and executed by
both parties, an Order Form shall evidence the Program licenses granted and the
services that are to be provided.
1. DEFINITIONS
1.1 "CLIENT" shall mean a third party who has acquired Programs through KPMG
under this Agreement for such party's own internal business purposes and
not for purposes of any further distribution.
1.2 "COMMENCEMENT DATE" shall mean the date on which the Programs are delivered
by Oracle to KPMG or Client, or if no delivery is necessary, the Effective
Date set forth on the relevant Order Form.
1.3 "DESIGNATED SYSTEM" shall mean the computer hardware and operating
system(s) designated on the relevant Order Form for use in accordance with
the Marketing Support License.
1.4 "GSA SCHEDULE" shall mean Oracle's General Services Administration Schedule
in effect at the time KPMG places an order for services or Programs under
which federal agency Clients of KPMG have the right to acquire Programs.
1.5 "INTEGRATED SYSTEM" shall mean the hardware and software products having
Value-Added which are developed, sold, and/or licensed with the Programs to
a Client by KPMG to satisfy such Client's internal business requirements
and objectives. The Integrated System shall be regarded as "Value-Added" if
the following materials are provided as part of the Integrated System by
KPMG: (a) non-Oracle developed software; (b) non-Oracle customized
programming or customized consulting; or (c) computer products or
components other than those developed by or for Oracle.
1.6 "ORACLE AGREEMENT" shall mean a standard Oracle Software License and
Services Agreement or other existing Oracle license agreement executed by
the applicable Client in a Pass-Through Transaction, subject to the terms
of Section 2.4.
1.7 "ORDER" shall mean KPMG's nonexclusive right in a Pass-Through Transaction
to submit a purchase order to Oracle for Oracle Programs and related
services for use in the Territory only by the Client, subject to the terms
of the Agreement.
1.8 "ORDER FORM" shall mean the document by which KPMG orders Program licenses
and services, and which is agreed to by the parties. The Order Form shall
reference the Effective Date of this Agreement.
1.9 "PASS-THROUGH TRANSACTION" shall mean a transaction whereby a Client
acquires Programs and related services directly from Oracle in conjunction
with and solely for use with KPMG's Integrated System and whereby KPMG pays
to Oracle the applicable fees, subject to the terms of Section 2.4.
1.10 "PRICE LIST" shall mean Oracle's standard commercial fee schedule that is
in effect when a Program license or services are ordered by KPMG.
1.11 "PROGRAM" shall mean the computer software in object code form owned or
distributed by Oracle for which KPMG or Client 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 mean Programs not specified on the Price List or specified as Limited
Production, Tier 3 or with special restrictions on the Price List.
1.12 "SUPPORTED PROGRAM LICENSE" shall mean a Marketing Support License for
which KPMG has ordered Oracle Technical Support services for the relevant
time period. "TECHNICAL SUPPORT" shall mean Program technical support
services provided under Oracle's policies in effect on the date Technical
Support is ordered.
1.13 "TERRITORY," unless otherwise specified in the Order Form, shall mean the
United States.
1.14 "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.
1.15 "USER" unless otherwise specified in the Order Form, shall mean a specific
individual employed by KPMG who is authorized by KPMG to use the Programs,
regardless of whether the individual is actively using the Programs at any
given time.
2. LICENSES GRANTED
2.1 TRIAL LICENSES
A. KPMG may order temporary trial licenses ("Trial Licenses") for its own
internal evaluation purposes only and not for any development or prototype
purposes for use during the 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.
B. KPMG shall be entitled to Order, as defined herein, at no charge, up to
ten (10) temporary trial licenses for prospective Clients at any one time
("Client Trial Licenses"). Such Client Trial Licenses shall be for
evaluation purposes only and shall be for a period not to exceed thirty
(30) days. Each such Client Trial License Order by KPMG shall be delivered
to Oracle with a standard Oracle Trial License Agreement executed by the
prospective Client.
<PAGE> 2
2.2 MARKETING SUPPORT LICENSE
Oracle grants to KPMG a nonexclusive license to use the
Programs solely on the Designated Systems as follows:
A. to demonstrate the Programs to potential Clients solely in
conjunction with the Integrated System, up to any applicable maximum
number of designated Users (if any User limitation applies);
B. to use the Programs to develop customized prototypes of the
Integrated System for prospective Clients on the Designated System
provided that KPMG does not receive any fees or compensation related to
the development of such customized prototypes;
C. to use the Documentation provided with the Programs in support of
KPMG's authorized use of the Programs under this Section; 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 DEVELOPMENT LICENSE
Oracle grants to KPMG a nonexclusive license to use, up to any
applicable maximum number of designated Users (if any User limitation
applies), and subject to Section 4.3, the Programs solely on the
Designated Systems as follows:
A. to use the Programs to develop customized prototypes of the
Integrated System for prospective Clients on the Designated System;
B. to demonstrate the Programs to potential Clients solely in
conjunction with the Integrated System;
C. to provide KPMG training to KPMG employees and to Clients solely in
conjunction with the Integrated System;
D. to use the Documentation provided with the Programs in support of
KPMG's authorized use of the Programs; and
E. 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.
2.4 DISTRIBUTION
A. PASS-THROUGH TRANSACTIONS
During the Term of this Agreement, Oracle and KPMG may engage in
pass-through transactions (the "Pass-Through Transactions") whereby a
Client acquires Programs and related services directly from Oracle in
conjunction with and solely for use with KPMG's Integrated System,
provided that (i) the Client executes an Oracle standard Software
License and Services Agreement and an Oracle Order Form licensing the
applicable Programs and/or services and KPMG pays to Oracle all fees
according to Oracle's fees and policies in effect on the date that such
Programs or services are ordered and according to the terms of the
Agreement.
With respect to each Pass-Through Transaction, KPMG shall have
the nonexclusive right to submit a purchase order to Oracle for Oracle
Programs and related services for use in the Territory only by the
Client (an "Order"). Oracle may accept or refuse any Order. Each Order
shall specify the applicable Client, Programs, maximum number of Users,
computer/operating system configuration, fees, shipping location, and
any other information reasonably required by Oracle for processing the
order. With each such Order, KPMG shall submit a standard Oracle
Software License and Services Agreement and an Oracle Order Form
executed by the Client which specifies that the Programs and/or
services are licensed under the terms of the Oracle Agreement, or,
upon written confirmation of Oracle, reference on an Order that the
Programs will be licensed to the Client subject to an existing license
agreement in effect between the Client and Oracle (the "Oracle
Agreement"); provided, however, that if the Client is a federal agency
which has the right to acquire the Programs under Oracle's General
Services Administration Schedule (the "GSA Schedule"), a written
agreement binding the use of the Program license solely to the terms of
the GSA Schedule shall be deemed to be the applicable Oracle Agreement.
For Orders which only include shrinkwrapped Oracle Programs, the Oracle
Agreement may consist of an executed written obligation by Client to
use the Programs under the terms of the Oracle shrinkwrap license
agreement.
Oracle will not accept any Orders or deliver any Programs
under any Order without having first received an executed Oracle
Agreement and Oracle Order Form executed by the Client.
If the Order specifies that the Programs are to be delivered
to KPMG, KPMG shall have the right to redeliver the Programs only as
originally packaged by Oracle to the applicable Client. KPMG agrees
that all Programs and services specified in the Orders submitted to
Oracle hereunder shall be deemed to be licensed by Oracle to the Client
under the terms and conditions of the Oracle Agreement.
B. MARKETING/DISTRIBUTION PRACTICES
In marketing and distributing the Programs, KPMG shall:
1. Not engage in any practices that are deceptive, misleading, illegal,
or unethical or that KPMG knows may be detrimental to Oracle or to the
Programs;
2. Not make any representations, warranties, or guarantees to Clients
concerning the Programs that are inconsistent with or in addition to
those made in this Agreement or the Oracle Agreement; and
3. Comply with all applicable federal, state, and local laws and
regulations in performing its duties with respect to the Programs,
including all export obligations and restrictions.
2
<PAGE> 3
2.5 ACCEPTANCE OF PROGRAMS
For each Program license for which delivery from Oracle is required under
this Agreement, KPMG or Client shall have a 15 day Acceptance Period
beginning on the Commencement Date, in which to evaluate the Program. During
the Acceptance Period (or such other period as may be expressly specified in
the applicable Order), KPMG 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 KPMG and Client at the end of the Acceptance Period.
2.6 LIMITATIONS ON USE
KPMG shall not use or duplicate the Programs (including the
Documentation) for any purpose other than as specified in the Agreement or
make the Programs available to unauthorized third parties. KPMG may not use
the Programs for the processing of internal administrative data or customer
data. KPMG 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. KPMG agrees not to cause or permit the reverse engineering,
disassembly, or decompilation of the Programs. KPMG shall not copy or use
the Programs (including the Documentation) except as otherwise specified in
this Agreement.
2.7 TITLE
Oracle shall retain all title, copyright, and other proprietary rights in
the Programs and any modifications or translations thereof. KPMG and its
Clients do not acquire any rights in the Programs other than those expressly
specified in this Agreement.
2.8 TRANSFER OF PROGRAMS
Except as otherwise specified in the Order Form, a Marketing Support
License may be transferred only within the United States to another computer
system of like configuration (same model and operating system), or the
Designated System may be transferred to another location within KPMG'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 and policies in effect at the time of the transfer.
3. TECHNICAL SERVICES
3.1 TECHNICAL SUPPORT SERVICES FOR PROGRAMS ORDERED PURSUANT TO THE MARKETING
SUPPORT LICENSE
Technical Support services ordered by KPMG for the Marketing Support
license will be provided under Oracle's Technical Support policies in effect
on the date Technical Support is ordered, subject to the payment by KPMG of
the applicable fees. At KPMG'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 reinstated.
Limited Production Programs and pre-production releases of Programs may not
be eligible for standard Technical Support services; KPMG may obtain
Technical Support services for Limited Production Programs on a time and
materials basis at Oracle's time and materials rates in effect at the time
the services are ordered.
3.1 TRAINING SERVICES
Oracle will provide training services agreed to by the parties under the
terms of this Agreement.
3.2 INCIDENTAL EXPENSES
For any on site services requested by KPMG, KPMG shall reimburse Oracle
for actual, reasonable travel and out-of-pocket expenses incurred.
4. FEES AND PAYMENTS
4.1 MARKETING SUPPORT LICENSE FEES
During the Term, KPMG shall have the right to order Programs for use
according to the Marketing Support License at no charge to KPMG.
4.2 TECHNICAL SUPPORT FEES FOR MARKETING SUPPORT LICENSE PROGRAMS
In consideration for Technical Support services for Programs licensed
pursuant to the Marketing Support License, KPMG shall pay to Oracle the list
price for such services as set forth in the Price List in effect at the time
such services are ordered, discounted by fifty percent (50%).
4.3 DEVELOPMENT LICENSE FEES
KPMG may order Development Licenses at the standard Program license fees
set forth in the Price List.
4.4 TECHNICAL SUPPORT FEES FOR DEVELOPMENT LICENSES
Oracle shall provide Technical Support services ordered by KPMG under
Oracle's Technical Support policies in effect on the date Technical Support
is ordered, subject to the payment by KPMG of the applicable fees.
Reinstatement of lapsed Technical Support services is subject to Oracle's
Technical Support reinstatement fees in effect on the date Technical Support
is re-ordered. KPMG may obtain Technical Support services for Limited
Production Programs and pre-production releases of Programs on a time and
materials basis.
4.5 DISCOUNTS FOR ORDERS
A. PROGRAMS
During the Term, KPMG may order production release versions of Oracle
off-the-shelf Programs (except CBT Programs) listed on the Price List and
available in production release on the applicable Designated System as of
the Effective Date of this Agreement. The license fee for any single Order
for Programs for distribution to a Client shall be equal to Oracle's license
fees listed on the Price List in effect when the order is placed, discounted
by thirty-five percent (35%).
3
<PAGE> 4
B. TECHNICAL SUPPORT FOR PROGRAMS ORDERED BY KPMG FOR CLIENTS
A Client may obtain Oracle annual Technical Support services for
Programs licensed pursuant to an Order within the United States under
Oracle's Technical Support fees and policies in effect when such services
are ordered.
KPMG shall only offer Oracle annual Technical Support services for the
first year of Technical Support for a Program licensed pursuant to an
Order. KPMG shall only offer Oracle annual Technical Support services to
Clients provided that:
1. KPMG orders the Programs as specified in this Agreement at the same time
that it orders Technical Support services;
2. KPMG pays Oracle all fees for the applicable Programs and all applicable
Technical Support fees as set forth herein as provided under this
Agreement;
3. All net Technical Support fees represent new Technical Support revenue
to Oracle.
Unless otherwise quoted or approved by Oracle, the Technical Support
fees payable by KPMG as provided above shall be at Oracle's standard rates
for such services as set forth in the Price List in effect at the time the
Technical Support services are ordered, discounted by ten percent (10%).
C. DOCUMENTATION
During the Term of this Agreement, KPMG may order additional
Documentation for distribution to Clients at Oracle's fees listed on the
Price List in effect when each order is placed, less the Discount
Percentage corresponding to the net List Price of Documentation for a
single order.
List Price of
Documentation Discount
(Single Order) Percentage
--------------------------- ----------
$ 0 -- $ 499 15%
$ 500 -- $ 999 20%
$1,000 -- $1,499 25%
$1,500 -- $3,999 30%
$4,000 -- and over 35%
D. CBT PROGRAMS
During the Term, KPMG may order for distribution to Clients production
release versions of Oracle off-the-self CBT Programs available in
production release on the applicable Designated System as of the Effective
Date of this Agreement and listed on the Price List in effect as of such
date. The license fee for such CBT Programs shall be equal to Oracle's
license fees listed on the Price List in effect when an Order is placed,
discounted by the applicable Discount Percentage Rate specified below. The
term "CBT Program" shall mean the Full Use Programs specified as Computer
Based Training Products in the Price List on the Effective Date below.
The Discount Percentage Rate for each CBT Program ordered for
distribution to a Client shall be based on the net Cumulative CBT Program
License Fees paid by KPMG to Oracle during the Term of the Agreement, as
set forth below. The Cumulative CBT Program License Fees is an amount
equal to the net sum of CBT Program License Fees paid by KPMG to Oracle
during the Term of the Agreement. The Discount Percentage Rate shall not
be applied retroactively to any Program licenses previously granted by
Oracle.
Cumulative CBT Program Discount
Licenses Fees Percentage Rate
-------------------------------- ---------------
$ 0 -- $ 50,000 40%
$ 50,001 -- $ 75,000 45%
$ 75,001 -- $100,000 50%
$100,001 -- and over 55%
The Cumulative CBT Program License Fees shall be reduced to zero at the
beginning of each anniversary of the Effective Date of the Agreement (eg.
at the end of the Term).
E. TRAINING UNITS
During the Term of this Agreement, KPMG shall have the right to offer
and order Oracle Training Units for the training of Clients in the United
States that are simultaneously ordering Programs from KPMG. KPMG shall
have the right to order Oracle Training Units based on: (i) Oracle's fees
listed on the Price List in effect when each order is placed, less the
Training Discount Percentage corresponding to the net List Price of the
Training Units ordered in a single order; or (ii) the applicable Training
Unit Bundle Discount Percentage corresponding to a Single order of a
Training Unit Bundle as set forth below. Each Training Unit may be used to
acquire one (1) day instruction for one (1) Client employee at an Oracle
Education Center in the U.S., exclusive of any attendee costs or expenses.
Oracle standard Training Units acquired hereunder shall be valid for one
(1) year from the date such Training Units are acquired. Training Units may
be applied to acquire on-site Training services as provided under Oracle's
training services policies and rates listed on the Price List in effect at
the time such on-site training services are ordered.
List Price of
Training Units Training Discount
(Single Order) Percentage
--------------------- -----------------
$ 0 -- $ 25,000 7%
$ 25,001 -- $ 50,000 17%
$ 50,001 -- $ 75,000 22%
$ 75,001 -- $100,000 27%
$100,001 -- and over 32%
Training Units Bundies** Bundle Discount
(Single Order) Percentage
------------------------ ---------------
10 Training Unit Bundle 7%
25 Training Unit Bundle 14.2%
50 Training Unit Bundle 21.4%
100 Training Unit Bundle 28.5%
**Only applicable if Programs are Ordered with Training Unit bundles.
4.6 GENERAL PAYMENT TERMS
Except as otherwise provided herein, invoices invoices for payment of
license fees shall be payable 30 days
4
<PAGE> 5
from the Commencement Date. Technical Support fees for Programs
licensed pursuant to a Marketing Support License shall be payable
annually in advance, net 30 days from the renewal date; such fees will
be those listed on the Price List in effect at the time the Programs or
services are ordered. Fees due by KPMG 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.
All fees payable under this Agreement shall be noncancelable and the
sums paid nonrefundable. 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
license granted under this Agreement or any Order Form, then such taxes
shall be billed to and paid by KPMG; this shall not apply to taxes
based on Oracle's income. KPMG agrees to pay applicable media and
shipping charges.
Also, on a case-by-case basis, KPMG may request from Oracle a
different payment period than the payment period set forth above for a
particular Client transaction. Oracle shall consider each such request
in accordance with its business policies and practices.
5. RECORDS
5.1 RECORDS INSPECTION
KPMG shall maintain books and records in connection with activity
under this Agreement. Oracle may, at its expense, audit the number of
copies of Programs used or distributed by KPMG, the computers and
operating systems on which the Programs are installed, and the number
of Users using the Programs, upon reasonable advanced written notice to
KPMG. Oracle may audit the relevant books and records of KPMG to ensure
compliance with the terms of this Agreement. Any such audit shall be
conducted during regular business hours at KPMG's offices upon
reasonable advanced written notice and shall not interfere unreasonably
with KPMG's business activities. If an audit reveals that KPMG has
underpaid fees to Oracle, KPMG shall be invoiced for such underpaid
fees based on the prices listed in the Price List in effect at the time
the audit is completed. If the underpaid fees are in excess of five
percent (5%), the KPMG shall pay Oracle's reasonable costs of
conducting the audit. Audits shall be made no more than once annually.
5.2 NOTICE OF CLAIM
KPMG will notify the Oracle legal department promptly in writing
of: (a) Any claim or proceeding involving the Programs that comes to
its attention; and (b) All claimed or suspected defects in the
Programs; and (c) Any change of control and/or ownership of KPMG.
Notice shall be sent to Oracle Legal Department, Attention Senior
Corporate Counsel at 500 Oracle Parkway, MS 659507, Redwood Shores, CA
94065.
6. TERM AND TERMINATION
6.1 TERM
This Agreement shall become effective on the Effective Date of
this Agreement and shall be valid for three (3) years from the
Effective Date (the "Term") and shall remain in effect unless
terminated as provided in the Agreement. Upon each anniversary of the
Term, the parties shall have the option to renegotiate the fees and
terms of the Agreement.
Each Program license granted under this Agreement shall remain in
effect perpetually (if not otherwise specified on the Order Form),
unless a license is terminated as provided in Section 6.2 or 6.3 below.
6.2 TERMINATION BY KPMG
KPMG may terminate any Program license or this Agreement at any
time; however, termination shall not relieve KPMG's obligation to pay
all fees that have accrued or that KPMG has agreed to pay under any
Order Form, Order or other similar ordering document under this
Agreement.
6.3 TERMINATION BY ORACLE
Oracle may terminate any Program license granted to KPMG or this
Agreement upon written notice if KPMG materially 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 this Agreement, all KPMG's
rights to market, distribute, and use the Programs as set forth in this
Agreement shall cease.
The termination of this Agreement or any license shall not limit
either party from pursuing any other remedies available to it,
including injunctive relief, nor shall such termination relieve KPMG's
obligation to pay all fees that have accrued or that KPMG has agreed to
pay under any Order Form, Order or other similar ordering document
under this Agreement, or Oracle's obligations under any such Order
Form, Order, or other similar ordering document. The parties' rights
and obligations under Sections 2.6, 2.7, 2.8 and Articles 5, 6, 7, and
8 shall survive termination of this Agreement.
6.6 RETURN OF PROGRAMS UPON TERMINATION
If a license granted to KPMG under this Agreement expires or
otherwise terminates, KPMG shall (a) cease using the applicable
Programs, and (b) certify to Oracle within one month after expiration
or termination that KPMG has destroyed or has returned to Oracle the
Programs and all copies. This requirement applies to copies in all
forms, partial and
5
<PAGE> 6
complete, in all types of media and computer memory, and whether or not
modified or merged into other materials. Before returning Programs to
Oracle, KPMG 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 KPMG against a claim that Programs
furnished and used within the scope of this Agreement infringe a United
States copyright or patent, provided that: (a) KPMG 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) KPMG provides
Oracle with the assistance, information and authority necessary to perform
Oracle's obligations under this paragraph. KPMG's failure to provide notice
as set forth in (a) above shall relieve Oracle of its obligation to provide
infringement indemnity under this section 7.1 only to the extent that
Oracle is actually prejudiced by KPMG's failure to provide notice.
Reasonable out-of-pocket expenses incurred by KPMG in providing such
assistance will be reimbursed by Oracle.
Oracle shall have no liability for any claim of infringement based on
use of a superseded or altered release of Programs if the infringement
would have been avoided by the use of a current unaltered release of the
Programs that Oracle has provided to KPMG.
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 KPMG 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. THIS SECTION
7.1 STATES ORACLE'S ENTIRE LIABILITY AND KPMG'S EXCLUSIVE REMEDY FOR
INFRINGEMENT.
7.2 WARRANTIES AND DISCLAIMERS
A. PROGRAM WARRANTY
Oracle warrants for a period of one year from the Commencement
Date that each unmodified Program for which KPMG has a Supported
Program License will perform the functions described in the
Documentation provided by Oracle when operated on the Designated
System.
B. MEDIA WARRANTY
Oracle warrants the tapes, diskettes or other media to be free of
defects in materials and workmanship under normal use for 90 days from
the Commencement Date.
C. SERVICES WARRANTY
Oracle warrants that its Technical Support and training services
will be performed consistent with generally accepted industry
standards. This warranty shall be valid for 90 days from performance
of service.
D. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL RUN PROPERLY ON ALL
HARDWARE, THAT THE PROGRAMS WILL MEET REQUIREMENTS OF KPMG OR THE CLIENTS
OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY KPMG OR THE
CLIENTS, THAT THE OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED OR ERROR
FREE, OR THAT ALL PROGRAM ERRORS WILL BE CORRECTED. LIMITED PRODUCTION
PROGRAMS, PRE-PRODUCTION RELEASES OF PROGRAMS, AND COMPUTER-BASED TRAINING
PRODUCTS ARE DISTRIBUTED "AS IS."
KPMG shall not make any warranty on Oracle's behalf.
7.3 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 7.2 above,
KPMG'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, KPMG shall be entitled to recover the fees paid to Oracle
for the Program license or Update, as applicable.
B. FOR SERVICES
The reperformance of the services, or if Oracle is unable to
perform the services as warranted, KPMG 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. NOTWITHSTANDING THE
PREVIOUS SENTENCE WITH RESPECT ONLY TO THE CLAIMANT'S CAUSE OF ACTION
AGAINST KPMG FOR INFRINGEMENT WHICH RESULTS IN A FINAL JUDGEMENT OR AWARD
(AFTER APPEALS), OR SETTLEMENT IN SUCH CLAIMANT'S FAVOR, AGAINST KPMG, FOR
WHICH ORACLE IS LIABLE AT LAW OR UNDER THIS AGREEMENT TO INDEMNIFY KPMG,
ORACLE AGREES TO INDEMNIFY KPMG UP TO THE FULL AMOUNT OF THE FINAL
JUDGEMENT, AWARD, OR SETTLEMENT WITHOUT REGARD TO WHETHER DAMAGES ARE
CLASSIFIED AS DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL.
"CLAIMANT" AS USED HEREIN SHALL REFER TO PARTIES OTHER THAN KPMG. ORACLE'S
LIABILITY FOR DAMAGES HEREUNDER, OTHER THAN LIABILITY PURSUANT TO SECTION
7.1, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY KPMG UNDER THIS
AGREEMENT, AND IF SUCH DAMAGES RESULT FROM KPMG'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.
6
<PAGE> 7
The provisions of this Article 7 allocate the risks under this
Agreement between Oracle and KPMG. Oracle's pricing reflects this
allocation of risk and the limitation of liability specified herein.
7.5 INDEMNIFICATION OF ORACLE
KPMG will defend and indemnify Oracle against all claims and damages to
Oracle arising from any use by KPMG or its Clients 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.
7.6 EQUITABLE RELIEF
KPMG 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
seek equitable relief in addition to all other remedies available to it.
8. GENERAL TERMS AND CONDITIONS
8.1 NONDISCLOSURE
By virtue of this Agreement, the parties may have access to information
that is confidential to one another ("Confidential Information").
Confidential Information shall be limited to the Programs, the terms and
conditions of this Agreement, and all information clearly marked as
confidential.
A party's Confidential Information shall not include information which:
(a) is or becomes a part of the public domain through no act or omission of
the other party; or (b) was in the other party's lawful possession prior to
the disclosure and had not been obtained by the other party either directly
or indirectly from the disclosing party; or (c) is lawfully disclosed to
the other party by a third party without restriction on disclosure; (d) is
independently developed by the other party; or (e) is disclosed under
operation of law. KPMG shall have the right to disclose the results of
benchmark tests to a prospective Client which is not a competitor of Oracle
or use for evaluation purposes only if the prospective Client has executed
a nondisclosure agreement with KPMG governing the results with terms
equivalent to those set forth in this Section. Otherwise, results of
benchmark tests run by KPMG may not be disclosed unless Oracle consents to
such disclosure in writing.
The parties agree, both during the term of this Agreement and for a
period of two (2) years after termination of this Agreement and of all
licenses granted hereunder, to hold each other's Confidential Information
in confidence. The parties agree not to make each other's Confidential
Information available in any form to any third party or to use each other's
Confidential Information for any purposes other than the implementation of
this Agreement. Each party agrees to take all reasonable steps to ensure
that Confidential Information is not disclosed or distributed by its
employees or agents in violation of the provisions of this Agreement.
8.2 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; KPMG will have no rights in such marks except as expressly set
forth herein and as specified in writing from time to time. KPMG's use of
Oracle's trademarks shall be under Oracle's trademark policies and
procedures in effect from time-to-time. KPMG 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 KPMG's tradename, trademark, or service mark for KPMG's products
or services. KPMG shall have the right to use the trademark "ORACLE" and
other Oracle trademarks solely to refer to Oracle's Programs, products and
services.
KPMG agrees with respect to each registered trademarks 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, KPMG 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
KPMG shall not market the Oracle Programs in any way which implies that
the Oracle Programs are the proprietary product of KPMG or of any party
other than Oracle. Oracle shall not have any liability to KPMG for any
claims made by third parties relating to KPMG's use of Oracle's trademarks.
8.3 RELATIONSHIPS BETWEEN PARTIES
In all matters relating to this Agreement, KPMG will act as an
independent contractor. The relationship between Oracle and KPMG 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.
8.4 ASSIGNMENT
KPMG 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
mailed by first class mail to the first address listed in the relevant
Order Form (if to KPMG) or to the Oracle address on the Order Form (if to
Oracle).
7
<PAGE> 8
To expedite order processing, KPMG agrees that Oracle may
treat documents faxed by KPMG to Oracle as original documents;
nevertheless, either party may require the other to exchange original
signed documents.
Each party agrees to appoint a relationship manager to
coordinate its respective activities pursuant to this Agreement. The
relationship managers for the parties hereto are as follows:
For KPMG:
--------------------
--------------------
--------------------
--------------------
Telephone: ( )
--- --------
Facsimile: ( )
--- --------
For Oracle:
--------------------
Account Manager
Oracle Corporation
--------------------
--------------------
Telephone: ( )
--- --------
Facsimile: ( )
--- --------
Oracle and KPMG may each change their appointed relationship
managers upon written notification to the other party.
8.6 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. Any legal action or proceeding relating to this Agreement
shall be instituted in a state or federal court in San Francisco or San
Mateo County, California. Oracle and KPMG 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
KPMG agrees to comply fully with all relevant export laws and
regulations of the United States to assure that neither the Programs,
not any direct product thereof, are exported, directly or indirectly,
in violation of United States law.
8.9 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.
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.
8.12 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 KPMG purchase order or other ordering document shall
be superseded by the terms and conditions of this Agreement.
The Effective Date of this Agreement shall be November 22, 1995.
------------------
EXECUTED BY KPMG PEAT MARWICK LLP EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ JANE KAHN Authorized Signature: /s/ SHERYL K. KUHNS
--------------- ---------------------
Name: Jane Kahn Name: Sheryl K. Kuhns
------------------------------- -------------------------------------
Title: Partner Title: RAS Manager
------------------------------ ------------------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
8