Oracle PartnerNetwork Worldwide Agreement [Amendment No. 1] - Oracle Corp. and KPMG Consulting Inc.
AMENDMENT ONE
to the
ORACLE PARTNERNETWORK
WORLDWIDE AGREEMENT
between
KPMG CONSULTING, INC.
and
ORACLE CORPORATION
This document ("Amendment One") amends the Oracle PartnerNetwork Worldwide
Agreement between KPMG Consulting, Inc. ("you") and Oracle Corporation
("Oracle"), dated MAY 30, 2002 and any and all amendments thereto ("Agreement").
The parties hereby agree to amend the Agreement as follows:
1. Delete the second and third sentences in the first paragraph of the
Agreement and replace with the following:
"You" and "your" refer to: (i) the individual or entity that has entered
into this OPN agreement to join the Oracle PartnerNetwork (the "OPN"),
(ii) your wholly and majority owned subsidiaries that are accepted into the
OPN as set forth below, and (iii) your wholly owned affiliates that are
accepted into the OPN as set forth below, Before accessing or distributing
the programs, each wholly and majority owned subsidiary and each wholly
owned affiliate must agree in writing to be bound by the terms of any
applicable ordering document and this OPN agreement and to use the programs
in accordance with the terms of any applicable ordering document and this
OPN agreement."
2. Add the following sentence to the end of the second paragraph of the
Agreement:
"However for the initial one (1) year term of the OPN Agreement, Oracle
shall waive your payment of such worldwide membership fees."
3. Delete the third paragraph of the Agreement and replace with the following:
"Each wholly and majority owned subsidiary and each wholly owned affiliate
that desires to be included in your membership in the OPN must register
with Oracle to receive membership services. Following processing of a
wholly or majority owned subsidiary's registration or a wholly owned
affiliate's registration by Oracle, such subsidiary or affiliate shall be
notified into which of the three above referenced levels such subsidiary or
affiliate has qualified. Each subsidiary or affiliate shall receive the
services associated with the level into which such subsidiary or affiliate
has qualified."
4. Delete the first sentence of the third paragraph of the "Marketing
Materials" section and replace with the following:
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"You shall cooperate with Oracle to allow for review of your use of the
marketing materials and compliance with Oracle's commercially reasonable
quality standards."
5. Delete subpoint (8) in the second paragraph of the "Ownership and
Restrictions" section and replace with the following:
"(8) disclose results of any program benchmark tests ( other than benchmark
tests you may perform using programs to which you may have access under the
terms of an end user's license agreement with Oracle) performed in
furtherance of any development, support services, integration work,
demonstration, training, and/or testing you may conduct as authorized under
this OPN agreement without Oracle's prior written consent."
6. Add the following to the end of the third paragraph in the "Term,
Termination & Renewal" section:
"You may cancel or terminate this OPN agreement at any time, however, the
provisions of this OPN agreement which by their nature extend beyond such
termination (including, but not limited to the provisions regarding payment
obligations, ownership and restrictions, confidentiality, warranties,
disclaimers and remedies, export administration, privacy and data
protection, proprietary rights, limitations of liability, and governing
law) shall survive such termination. In addition, you may terminate this
OPN agreement, upon ten (10) days' written notice to Oracle and without
liability to Oracle, if you (in your sole discretion) object to Oracle's
revision of any policy which is applicable to your performance hereunder by
the express terms of this OPN agreement."
7. Delete the paragraph in the "Limitation of Liability" section and replace
it with the following paragraph:
"EXCEPT WITH RESPECT TO BREACHES OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS,
OBLIGATIONS RELATING TO INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
INDEMNIFICATION HEREIN, AND BREACHES OF THE CONFIDENTIALITY PROVISIONS
HEREIN, IN NO EVENT SHALL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR
DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY THE
OTHER PARTY OR ANY THIRD PARTY AND ARISING OUT OF OR IN CONNECTION WITH
THIS OPN AGREEMENT, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH
RESPECT TO BREACHES OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS, OBLIGATIONS
RELATING TO INTELLECTUAL PROPERTY RIGHT INFRINGEMENT INDEMINIFICATION
HEREIN, AND BREACHES OF THE CONFIDENTIALITY PROVISIONS HEREIN, A PARTY'S
ENTIRE LIABILITY FOR DAMAGES ARISING UNDER THIS OPN AGREEMENT SHALL IN NO
EVENT
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EXCEED US$2,000,000. THE PROVISIONS OF THIS OPN AGREEMENT ALLOCATE THE
RISKS BETWEEN ORACLE AND PARTNER."
8. Add the following as a new section, entitled "Indemnification":
"If someone makes a claim against you that any program infringes their
intellectual property rights, Oracle will indemnify you if you do the
following:
. notify the General Counsel, Legal Department promptly in writing, not
later than 30 days after you receive notice of the claim, or sooner if
required by applicable law;
. give Oracle sole control of the defense and any settlement
negotiations; and
. give Oracle the reasonable information, authority, and assistance (at
Oracle's expense) Oracle needs to defend against or settle the claim.
If Oracle believes that any of the programs may have violated someone
else's intellectual property rights, Oracle may choose to either modify the
programs or obtain a license to allow for continued use, or if these
alternatives are not commercially reasonable, Oracle may end the license
for the applicable program and refund any license fees and any unused,
prepaid support fees you have paid for it. Oracle will not indemnify you if
you alter a program outside the scope of use provided in the documentation
or if you use a program version which has been superseded, if the
infringement claim could have been avoided by using an unaltered current
version of the program. Oracle will not indemnify you to the extend that an
infringement claim is based upon the combination of programs with any
products or services not provided by Oracle. This section provides your
exclusive remedy for any infringement claims or damages."
9. In the section entitled "Export Administration", delete the entire
paragraph and replace with the following:
"Both parties agree that U.S. export control laws and other applicable
export and import laws govern your use of the programs, including technical
data. Both parties agree that neither the programs, nor any direct product
thereof will be exported, directly or indirectly, in violation of these
laws, or used for any purpose prohibited by these laws, without limitation,
nuclear, chemical, or biological weapons proliferation or development of
missile technology."
10. In the section entitled "Privacy and Data Protection", delete the entire
paragraph and replace with the following:
"To the extend that either party shares any information with the other
party under this OPN agreement, you and Oracle agree to comply with all
relevant laws and regulations of the United States of America and other
countries related to privacy and data protection and each party agrees to
use any information provided to it by the other party under this OPN
agreement solely for the purposes of participation in the OPN and in
accordance with Oracle's Privacy Policy, which is located at
http://partner.oracle.com. You acknowledge that although you may opt out of
receiving information from Oracle related
<PAGE>
to various programs and services, Oracle may from time to time provide to
you information regarding your membership and participation in the OPN."
11. Delete the first paragraph under the "General" section and replace it with
following:
"This agreement is governed by the substantive and procedural laws of the
State of Delaware."
12. Delete the first sentence of the second paragraph of the "General" section
and replace it with the following:
"Upon 45 days written notice and no more than once per year, Oracle (using
its own personel) may audit, at Oracle's expense, your use of the programs,
the materials, marketing materials, services, and any additional Oracle
resources."
Other than the modifications above, the terms and conditions of the Agreement
remain unchanged and in full force and effect.
The Effective Date of this Amendment One is MAY 30, 2002.
KPMG CONSULTING, INC. ORACLE CORPORATION
By: /s/ Norman E. Weisinger By: /s/ Jonathan Tseng
-------------------------- ---------------------
Name: NORMAN E. WEISINGER Name: Jonathan Tseng
Title: MANAGING DIRECTOR Title: Contract Specialist