Business Alliance Program Agreement - Oracle Corp. and Adra Systems Inc.
BUSINESS ALLIANCE PROGRAM AGREEMENT
This Business Alliance Program Agreement (the "Agreement") is between
Oracle Corporation with its principal place of business at 500 Oracle Parkway,
Redwood City, California 94065 ("Oracle") and Adra Systems, Inc. (legal name)
with its principal place of business at Two Executive Drive, Chelmsford,
Massachusetts (the "Alliance Member"). 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 "Commencement Date" shall mean the date on which the Programs are
delivered by Oracle, or if no deliver 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, Development License, or Marketing
Support License.
1.3 "Order Form" shall mean the document by which the Alliance Member
orders Program licenses, Sublicenses, and services, and which is agreed to by
the parties. The Order Form shall reference the Effective Date of this
Agreement.
1.4 "Price List" shall mean Oracle's standard commercial fee schedule that
is in effect when a Program license, Sublicense, or services are ordered by the
Alliance Member.
1.5 "Program" shall mean the computer software in object code form owned
or distributed by Oracle for which the Alliance Member is granted a license or
grants a Sublicense pursuant to this Agreement; the user guides and manuals for
use of the software ("Documentation"); and Updates. "Limited Production
Program" shall mean a Program not specified on the Price List or which is
designated as Limited Production by Oracle.
1.6 "Sublicense 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 Alliance Member.
1.7 "Sublicense" shall mean a nonexclusive, nontransferable right granted
by or through the Alliance Member to an end user to use an object code copy of
the Programs with the Value-Added Package under authority of a Sublicense
Addendum. "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 data
processing 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 Alliance Member 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.
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1.9 "Update" shall mean a subsequent release of a Program which is
generally made available for Supported Program Licenses at no additional charge,
other than media and handling changes. Update shall not include any release,
option or future product which Oracle licenses separately.
1.10 "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 Alliance Member or
Sublicenses (as the case may be) who is authorized by such party 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 Alliance Member, as provided under the
applicable Sublicense Addenda.
2. LICENSES GRANTED
2.1 Development Licenses and Trial Licenses
A. Oracle grants to the Alliance Member a nonexclusive license to use
the Development Licenses the Alliance Member obtains under this
Agreement and applicable Sublicense Addenda, 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 or other such
limitation as may be applicable;
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 to
customers solely in conjunction with the Value-Added Package;
4. to use the Documentation provided with the Programs in support of
the Alliance Member'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 Alliance Member 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 Alliance Member a nonexclusive license to use the
Marketing Support Licenses the Alliance Member obtains under this Agreement and
applicable Sublicense Addenda, 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 or other such limitation as may be
applicable;
B. to develop customized prototypes of the Value-Added Package for
prospective Sublicenses on the Designated System if the Alliance
Member 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 Alliance Member'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 Sublicense Addenda, Oracle
hereby grants the Alliance Member a nonexclusive, nontransferable
license to market and grant Sublicenses as set forth in such
Sublicense Addenda and at the rates and fees set forth in such
Sublicense Addenda. The Alliance Member shall only have the right to
Sublicense Programs pursuant to an effective Sublicense Addendum
between the parties hereto.
The Alliance Member shall Sublicense the Programs solely through
a written Sublicense agreement as provided under Section 2.3.B. Upon
Oracle's request, the Alliance Member shall provide Oracle with a copy
of the Alliance Member'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, subject to the
restrictions provided under the applicable Sublicense Addenda and
consistent with the Sublicense fees payable to Oracle;
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2. Prohibit (a) transfer of the Programs except for temporary
transfer in the event of computer malfunction; (b) assignment,
timesharing and rental of the Programs; and (c) title to the Programs
from passing to the Sublicensee or any other party;
3. Prohibit the reverse engineering, disassembly or decompilation of
the Programs and prohibit duplication of the Programs except for a
single backup or archival copy;
4. Disclaim, to the extent permitted by applicable law, Oracle's
liability for any damages, whether direct, indirect, incidental or
consequential, arising from the use of the Programs;
5. Require the Sublicensee, at the termination of the Sublicense, to
discontinue use and destroy or return to the Alliance Member all
copies of the Programs and Documentation;
6. Prohibit publication of any results of benchmark tests run on the
Programs;
7. 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; and
8. Specify Oracle as a third party beneficiary of the Sublicense
agreement to the extent permitted by applicable law.
C. Marketing/Sublicensing Practices
In marketing and Sublicensing the Programs, the Alliance Member
shall:
1. Not engage in any 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 Alliance Member shall have a 15 day Acceptance Period,
beginning on the Commencement Date, in which to evaluate the Program. During
the Acceptance Period, the Alliance Member may cancel the license by giving
written notice to Oracle and returning the
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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
Alliance Member at the end of the Acceptance Period.
2.5 Limitations on Use
The Alliance member 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 Alliance Member 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.
2.6 Title
Oracle shall retain all title, copyright, and other proprietary rights in
the Programs and any modifications or translations thereof. The Alliance Member
and Its Sublicensees do not acquire any rights in the Programs other than those
specified in this Agreement.
2.7 Transfer of Programs
The Alliance Member may transfer a Development License or Marketing Support
License within its organization upon notice to Oracle; transfers are subject to
the terms and fees specified in Oracle's transfer policy in effect at the time
of the transfer.
2.8 Use of Programs by Agents
The alliance Member and each Sublicensee (as the case may be) shall have
the right to allow each such party's own third party agents to use each such
party's licensed Programs as licensed or Sublicensed under this Agreement so
long as the applicable party ensures that its agents use the Programs in
accordance with the terms of this Agreement or the applicable Sublicense
agreement.
2.9 Pre-Production Programs
As an accommodation to the Alliance Member, Oracle may supply the Alliance
Member with pre-production releases of Programs (which may be labeled "Alpha" or
"Beta"). These products are not suitable for production use.
3. TECHNICAL SERVICES
3.1 Technical Support Services
Oracle shall provide Technical Support services ordered by the Alliance
Member under Oracle's Technical Support policies in effect on the date Technical
Support is ordered, subject to the payment by the Alliance Member of the
applicable fees. Reinstatement of lapsed Technical Support services is subject
to Oracle's Technical Support reinstatement fees in effect on the date
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Technical Support is re-ordered. The alliance Member may obtain Technical
Support services for Limited Production Programs and pre-production releases of
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 Alliance
Member, the Alliance Member shall reimburse Oracle for actual, reasonable travel
and out-of-pocket expenses incurred.
4. FEES AND PAYMENTS
4.1 License Fees and Sublicense Fees
The Alliance Member 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 Sublicense Addendum. For each Sublicense
granted by the Alliance Member, the Alliance member agrees to pay Oracle a
Sublicense fee as set forth in the applicable Sublicense Addenda. The Alliance
Member shall not be relieved of its obligation to pay Sublicense fees owed to
Oracle by the nonpayment of such fees by the Sublicensee.
The Alliance Member is free to determine unilaterally its own license fees
to its own license fees to its Sublicensees. If the Alliance Member or a
Sublicensee upgrades the Programs to a larger computer, transfers the Programs
outside the United States and/or to another operating system, or increases the
licensed number of Users, the Alliance member 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 Alliance Member 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 in a Sublicense Addendum, invoices for payment
of license fees shall be payable 30 days from the Commencement Date. Technical
Support fees for Sublicenses shall be payable as specified in the applicable
Sublicense Addendum. Technical Support fees for Development Licenses and
Marketing Support Licenses shall be payable annually in advance, net 30 days
from the renewal data; such fees will be those in effect at the beginning of the
period for which the fees are paid. Fees due by the Alliance Member 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.
Any amounts payable by the Alliance Member hereunder which remain unpaid after
the due date shall be subject to a late charge equal to 1.5% per month from the
due date until such amount is paid. The Alliance Member agrees to pay
applicable media and shipping charges. The Alliance Member shall issue a
purchase order, or
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alternative document acceptable to Oracle, on or before the Effective Date
of the applicable Order Form.
4.4 Taxes
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 Alliance Member, then such taxes shall be billed to
and paid by the Alliance Member. This shall not apply to taxes based on
Oracle's income.
5. RECORDS
5.1 Records Inspection. The Alliance Member shall maintain adequate books
and records in connection with activity under this Agreement. Such records
shall include, without limitation, executed Sublicense agreements, the
information required in or elated to the Sublicense reports required under a
Sublicense Addendum, the number of copies of Programs used or Sublicensed by the
Alliance Member, the computers on which the programs are installed, and the
number of Users using the Programs. Oracle may audit the relevant books and
records of the Alliance Member to ensure the compliance with the terms of this
Agreement upon reasonable notice to the Alliance Member. Any such audit shall
be conducted during regular business hours at the Alliance Member's offices and
shall not interfere unreasonably with the Alliance Member's business activities.
If an audit reveals that the Alliance Member has underpaid fees to Oracle, the
Alliance Member 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 exceed
five percent (5%) of the applicable license fees of Sublicense fees paid, then
the Alliance Member 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 Alliance Member 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) any material change in the management or control of the
Alliance member.
6. TERM AND TERMINATION
6.1 Term
This Agreement shall become effective on the Effective Date and shall be
valid until the expiration or termination of all Sublicense Addenda hereunder,
unless terminated earlier as set forth herein. If not otherwise specified on
the Order Form, each Program license granted under this Agreement shall remain
in effect perpetually under the terms of this Agreement unless the license or
this Agreement is terminated as provided in this Article 6 below. The term of
each Sublicense Addendum hereunder shall be as set forth in each such Addendum.
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6.2 Termination by the Alliance Member
The Alliance Member may terminate any Program license, any Sublicense
Addenda, or this Agreement at any time; however, termination shall not relieve
the Alliance Member's obligations specified in Sections 6.5 and 6.6.
6.3 Termination by Oracle
Oracle may terminate any Program license, any Sublicense Addenda, or this
Agreement upon written notice if the Alliance Member 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 Sublicense Addendum or this Agreement,
all the Alliance Member's rights to market and Sublicense the Programs as set
forth in such Sublicense Addendum or this Agreement shall cease.
The termination of this Agreement, a Sublicense 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 Alliance
Member's obligation to pay all fees that have accrued or that the Alliance
Member has agreed to pay under a Sublicense Addendum or any Order Form, other
similar ordering document under this Agreement, or that appear in a Sublicense
report. The parties' rights and obligations under Sections 2.5, 2.6, 2.7 and
Articles, 4, 5, 6, 7, and 8 shall survive termination of this Agreement.
6.6 Handling of Programs Upon Termination
If a license granted under this Agreement expires or otherwise terminates,
the Alliance Member shall: (a) cease using the applicable Programs; and (b)
certify to Oracle within one month after expiration or termination that the
Alliance Member has destroyed or has returned to Oracle the Programs and all
copies. His 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 Alliance Member
shall acquire a Return Material Authorization ("RMA") number to Oracle.
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7. INDEMNITY, WARRANTIES, REMEDIES
7.1 Infringement Indemnity
Oracle will defend and indemnify the Alliance Member against a claim that
Programs infringe a copyright or patent, provided that: (a) the Alliance Member
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
Alliance Member provides Oracle with the assistance, information and authority
necessary to perform Oracle's obligations under this Section. Reasonable out-
of-pocket expenses incurred by the Alliance Member 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 which
Oracle provides to the Alliance Member.
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 Alliance Member 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 Alliance Member'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 the Alliance Member 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. Service 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.
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Oracle does not warrant that the Programs will run properly on all
Hardware, that the Programs will meet requirement of the Alliance
Member of the Sublicensees or operate in the combinations which may be
selected for use by the Alliance Member or the Sublicensees, that the
operation of the Programs will be uninterrupted or error free, or that
all Program errors will be corrected. Limited Production Programs,
PreProduction Releases of Programs, and Computer Based Training
Products are Distributed "As is."
The Alliance Member 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, the
Alliance Member's exclusive remedy, and Oracle's entire liability, shall be:
A. For Programs
The correction of Program errors that cause breach of warranty,
or if Oracle is unable to make the Program operate as warranted, the
Alliance Member shall be entitled to recover the fees paid to Oracle
for the Program license.
B. For Media
The replacement of defective media returned within 90 days of the
Commencement Date.
C. For Services
The reperformance of the services, or if Oracle is unable to
perform the services as warranted, the Alliance Member shall be
entitled to recover the fees paid to Oracle for the unsatisfactory
services.
7.4 Indemnification of Oracle
The Alliance Member agrees to enforce the terms of its Sublicense
agreements required by this Agreement and to notify Oracle of any known breach
of such terms. The Alliance Member will defend and indemnify Oracle against:
A. All claims and damages to Oracle arising from any use by the
Alliance Member or it 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 claims and damages to Oracle caused by the Alliance Member's
failure to include the required contractual terms set forth in Section
2.3B hereof in such Sublicense agreement; and
C. All claims and damages to Oracle caused by Sublicensees' breach of
any of the applicable provisions required by Section 2.3 hereof.
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7.5 Equitable Relief
The Alliance Member 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 additional 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 Alliance Member shall not disclose the results of benchmark tests
or other evaluation of the Programs to any third party with Oracle's prior
written approval.
8.2 Copyrights
The Programs are copyrighted by Oracle. The Alliance member shall
retain all Oracle copyright notices on the Programs used by the
Alliance Member under its Development Licenses or Marketing Support
Licenses. The Alliance Member shall include the following on all
copies of the Programs in software Value-Added Packages incorporating
the Programs distributed by the Alliance Member.
A. A reproduction of Oracle's copyright notice; or
B. A copyright notice indicating that he 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 Value-Added Package incorporating the
Programs, and the diskette or tape labels. Notwithstanding any
copyright notice by the Alliance ember to the contrary, the copyright
to the Program included in any such application package shall remain
in Oracle. Other than specified above, on any reproduction or
translation of any Programs, Documentation, or promotional material,
the Alliance Member agrees to reproduce Oracle's copyright notices
intact.
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8.3 Trademarks
"Oracle" any other trademarks and service marks adopted by Oracle to
identify the Programs and other Oracle productions and services belong to
Oracle; the Alliance Member will have no rights in such marks except as
expressly set forth herein and as specified in writing from time to time. The
Alliance Member's use of Oracle's trademarks shall be under Oracle's trademark
policies and procedures in effect from time-to-time. The Alliance Member agrees
not to use the trademark "ORACLE," or any market beginning with the letters
"Ora," or any other mark likely to cause confusion wit the trademark "ORACLE,"
as any portion of the Alliance Member's tradename, trademark for the Alliance
Member's Value-Added Package, or trademark for any other products of the
Alliance Member. The Alliance Member shall have the right to use the trademark
"ORACLE" and other Oracle trademarks solely to refer to Oracle's programs,
product and services.
The Alliance member 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 Alliance Member 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 Alliance Member shall not market the Oracle Programs in any way which
implies that the Oracle Programs are the proprietary product of the Alliance
Member or of any party other than Oracle. Oracle shall not have any liability
to the Alliance Member for any claims made by third parties relating to the
Alliance Member's use of Oracle's trademarks.
8.4 Relationship between Parties
In all matters relating to this Agreement, the Alliance Member will act as
an independent contractor. The relationship between Oracle and the Alliance
Member 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 included in such software.
8.5 Assignment
The Alliance Member may not assign or otherwise transfer any rights under
this Agreement without Oracle's prior written consent.
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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
deposited in first class mail to the first address listed in the relevant Order
Form (if to the Alliance Member) or to the Oracle address on the Order Form (if
to Oracle).
To expedite order processing, the Alliance member agrees that Oracle may
treat documents faxed by the Alliance Member 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 tot his
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 Alliance Member agree to submit to the
jurisdiction, and agree that venue is proper in, these 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 reaming provisions or this Agreement will remain in full
force and effect.
8.9 Export
The Alliance Member agrees to comply fully with all relevant export laws
and regulations of the Untied States ("Export Law") to assure that neither the
Programs, nor any direct product thereof, are (a) exported, directly or
indirectly, in violation of Export Laws; or (b) are intended to be used for any
purposes prohibited by the Export Laws, including, without limitation, nuclear,
chemical, or biological weapons proliferation.
8.10 Limitation of Liability
In no event shall either party be liable for any indirect, incidental,
special or consequential damages, or damages for loss or 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 damage hereunder
shall in no event exceed the amount of fees paid by the Alliance Member under
this Agreement and if such damages result from the Alliance Member'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 Agreement allocate the risks between Oracle and the
Alliance Member Oracle's pricing reflects this allocation of risk and the
limitation of liability specified herein.
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8.11 Federal Government Sublicenses
If the Alliance member grants a Sublicense to the Untied States government,
the Programs shall be provided with "Restricted Rights" and the Alliance Member
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 7(c)(1)(ii) of the Department of
Defense Regulations Supplement ("DFARS") 252.227-013. Rights in Technical
Data and Computer Software (October 1988) and the 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 94065."
8.12 Waiver
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver or any other or subsequent default or breach.
Except for actions for non-payment or breach of Oracle's proprietary rights in
the Programs, no action, regardless of form, arising out of this Agreement may
be brought b either party more than one year after the cause of action has
accrued.
8.13 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.
It is expressly agreed that he terms of this Agreement and any Order Form
shall supersede the terms in any Alliance member purchase order or other
ordering document. This Agreement shall also supersede the terms of any shrink
wrap or break-the-seal license agreement included in any package for Oracle-
furnished software, except terms contained in such license agreement that other
specific use rights for the Programs.
14
<PAGE>
The Effective Date for this Agreement shall be May 22, 1996.
Executed by the Alliance Member: Executed by Oracle Corporation:
Authorized Signature: Authorized Signature:
/s/ Mark F. O'Connell /s/ Jeffrey Freeman
---------------------------- -----------------------------
Name: Mark F. O'Connell Name: Jeffrey Freeman
--------------------- ----------------------
Title: VP Marketing Title: Channels Sales Support
-------------------- -----------------------
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation
15
<PAGE>
AMENDMENT ONE
TO THE
BUSINESS ALLIANCE PROGRAM AGREEMENT
BETWEEN
ADRA SYSTEMS
AND
ORACLE CORPORATION
This Amendment One shall serve to amend Business Alliance Program Agreement
between Adra Systems (the "Alliance Member") and Oracle Corporation ("Oracle")
dated May 22, 1996 (the "Agreement").
The Agreement is amended as follows:
1. Insert the following new paragraph at the end of Section 2.5:
"Notwithstanding the foregoing, the Alliance Member may, from time to
time and solely in connection with the Application Program, electronically
distribute Program Updates and/or Application Package updates to those
Sublicensees with whom the Alliance Member is under contract to provide
technical support services, provided that: (i) such distribution is made
via a telephone modem directly connected to a Sublicensee's hardware; (ii)
such distribution is made over a private line maintained by the Sublicensee
for this purpose; and (iii) the Alliance Member maintains the same level of
security in distributing any such Program Updates and/or Application
Package updates as it would its own intellectual property of similar nature
and value; or for distribution via the Internet, the Alliance Member
employs Internet distribution protocols that have first been approved by
Oracle, including but not limited to password-protected access to such
Program Updates and/or Application Package updates. Moreover, the Alliance
Member may distribute Trial Sublicenses under a Sublicense Addendum in
accordance with the first sentence of this paragraph. In addition, the
Alliance Member may transmit Marketing Support Licenses within its own
organization pursuant to Section 2.2 of this Agreement in accordance with
the first sentence of this paragraph, provided that the Alliance Member
makes such Marketing Support Licenses accessible only to authorized
Alliance Member employees, subject to any User or other license limitations
stated in the applicable Order Form."
2. In the first line of Section 7.1 insert the words "hold harmless," before
the word "defend".
Also, in the third line of Section 7.1, insert the words "trademark, trade
secret," before the word "copyright".
3. Insert the following at the beginning of the last sentence of Section 8.3:
"Except as set forth in Section 7.1,".
<PAGE>
4. At the end of Section 8.5 insert the following:
", except that the Alliance Member may assign or otherwise transfer rights
under this Agreement upon notice to Oracle in connection with a merger,
consolidation, or sale or other disposition of substantially all of the
assets of the Alliance Member to an acquiring entity, provided that such
acquiring entity both (i) is not a competitor of Oracle, and (ii) agrees in
writing to be bound by the terms of this Agreement and any applicable
Sublicense Addenda."
4. At the end of the first paragraph of Section 8.10 delete the following:
", prorated over a five year term from the Commencement Date of the
applicable license or the date of performance of the applicable services."
Other than the modifications set forth above, the terms and conditions of the
Agreement remain unchanged and in full force and effect.
The Effective Date of this Amendment One is September 12, 1997.
ADRA SYSTEM ORACLE CORPORATION
By: /s/ Ralph Mayer By: /s/ Monica M. Murnane
--------------- ---------------------
Name: Ralph Mayer Name: Monica M. Murnane
----------- -----------------
Title: Vice President Title: Manager - West Region
-------------- ---------------------
Alliances Sales Support
-----------------------
2
<PAGE>
RUNTIME SUBLICENSE ADDENDUM
This document (the "Addendum") is between Oracle Corporation ("Oracle") and
Adra Systems, Inc. (the "Alliance Member") and shall be governed by the terms of
the Business Alliance Program Agreement between the Alliance Member and Oracle
effective May 22, 1996 (the "Agreement") and the terms set forth below.
1. SUBLICENSES
1.1 SUBLICENSE PROGRAMS AND TERMS. The Alliance Member may only
-----------------------------
Sublicense Runtime Programs for which the Alliance Member has previously
acquired a Supported Development License for the applicable Designated System.
Notwithstanding any other provision of the Agreement, the Alliance Member shall
have no right to Sublicense Programs designated as Oracle Applications Programs,
Oracle Express Programs, Limited Production Programs, or other Programs
specified by Oracle from time to time without the prior written consent of
Oracle.
The Alliance Member shall have the right to market and grant Sublicenses of
Runtime Programs under the conditions set forth in the Agreement and under the
following restrictions:
A. Sublicense Runtime Programs with the Application Program in the
Application Package for use on Designated Systems to Sublicensees. Each
copy of the Runtime 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; and
B. Make and deliver to the Sublicensee a single copy of the
Runtime Programs in the Application Package for each Sublicense granted.
The Alliance Member shall use all practical means available, both
contractual and technical, to control the restricted use of each Runtime Program
Sublicense. If a Sublicensee uses the Runtime Program beyond the limited
functionality described in Section 1.2 hereof, the Alliance Member or
Distributor shall immediately notify the Sublicensee of such unauthorized use
and if the Sublicensee fails to discontinue such unauthorized use following
notification either terminate the Sublicense or forward to Oracle one hundred
percent (100%) of the applicable Full Use standard Program license fees in
effect at the time the payment is made to Oracle together with a written request
by the Sublicensee for a Full Use Program license from Oracle. Oracle must
approve, in writing, the Sublicensee's request before continued use of the
Programs by the Sublicensee shall be deemed authorized.
1.2 RUNTIME PROGRAMS. For the purposes of this Addendum, "Runtime
----------------
Program(s)" shall mean Programs which shall be limited to use solely for the
purpose of running the Alliance Member's Application Program, and may not be
used to create or alter tables or reports except as necessary for operating the
Alliance Member's Application Program. "Full Use Programs" shall mean unaltered
versions of the Programs with all functions intact.
1.3 VALUE-ADDED PACKAGE. For the purposes of this Addendum, "Application
-------------------
Program(s)" shall mean the Alliance Member's value-added application software,
described in
<PAGE>
the attached Application Package Attachment with which the Runtime Programs
are to be coupled, "Application Package(s)" shall mean the Runtime Programs
coupled with the Application Programs. For purposes of the Agreement, the
Application Program shall be regarded as the Alliance Member's Value-Added
Package.
1.4 TRIAL SUBLICENSES. The Alliance Member and its Distributors shall be
-----------------
entitled to grant, at no charge, up to a maximum combined total of [CONFIDENTIAL
TREATMENT REQUESTED]** temporary Trial Sublicenses of the Application Package 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 Alliance Member 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
which provides for such trial use.
1.5 DISTRIBUTORS. Oracle grants the Alliance Member the right to appoint
------------
third parties ("Distributors") to market and Sublicense the Runtime Program in
the Territory, under the terms of the Agreement and this Addendum. However,
Distributors shall have no right to make copies of the Programs for Sublicensing
and shall obtain all such Programs from the Alliance Member. Each Distributor
shall execute a written agreement with the Alliance Member binding the
Distributor to provisions substantially similar to those contained in Sections
2.3, 2.5, 2.8, 5.1, 5.2, 6.1, 6.3, 6.4, 6.5, 7.2.D, 7.5, 8.1, 8.2, 8.3, 8.5,
8.7, 8.9, and 8.11 of the Agreement and to those contained in Sections 1 (except
1.5), 3, 4, 5, and 6 of this Addendum. Each obligation of the Alliance Member
under such provisions shall also be applicable to each Distributor. Each
Distributor agreement shall also contain any other provisions necessary for the
Alliance Member to satisfy its commitments under the Agreement. The Alliance
Member shall notify Oracle promptly in writing of the appointment of each such
Distributor.
In addition, the Alliance Member shall keep executed Distributor agreements
and records of the Distributor Information required under the Alliance Member's
Sublicense reports, and shall allow Oracle to inspect such information as
specified under the Agreement. The Alliance Member will defend and indemnify
Oracle against all damages to Oracle caused by (i) the Distributors' failure to
include the required contractual terms set forth in Section 2.3.B of the
Agreement in each Sublicense agreement, and (ii) the Distributors' breach of any
of the applicable provisions required in its Distributor agreement.
1.6 DOCUMENTATION. The Alliance Member shall be responsible for providing
-------------
documentation for Sublicensees. The Alliance Member shall have the right to
incorporate portions of the Documentation into the Alliance Member's
documentation, subject to the provisions of Section 8.2 of the Agreement.
2. SUBLICENSE FEES
2.1 SUBLICENSE FEES AND RATES. For each copy of the Programs Sublicensed
-------------------------
by the Alliance Member or its Distributor in the Application Package, the
Alliance Member agrees to
---------------------------
** [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
2
<PAGE>
pay Oracle a Sublicense fee equal to [CONFIDENTIAL TREATMENT REQUESTED]**
of the applicable license fee for each such Program, as specified in the
applicable Price List and Alliance Member Price List supplement to such Price
List in effect at the time the applicable Programs are Sublicensed.
As further specified in Section 6 of this Addendum, Sublicense fees shall
be due and payable within twenty (20) days of the last day of each month. The
Alliance Member shall not be relieved of its obligation to pay Sublicense fees
owed to Oracle by the nonpayment of such fees by the Sublicensee.
On or after each anniversary during the Term of this Addendum, Oracle may
amend the Sublicense fee percentage rate set forth above based on Oracle's then-
current standard Sublicense fee percentage rate schedule and the actual amount
of Sublicense fees received by Oracle hereunder.
2.2 PRICE LIST FOR SUBLICENSES. Notwithstanding any other provision of
--------------------------
the Agreement, the applicable Price List for determining Sublicense fees shall
be the standard Oracle Alliance Member Price List in effect at the time the
Application Package is Sublicensed.
Notwithstanding any other provision of this Agreement, if the Alliance
Member 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. 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 Alliance Member shall have the right to
Sublicense Programs on any Under 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 three (3) years (the "Term") from the Effective Date,
unless terminated as provided in the Agreement. Any renewal of this Addendum
shall be subject to renegotiation of terms and fees.
Unless the expiration or termination is for default by the Alliance Member,
the Alliance Member may continue using the release of the Programs then in the
Alliance Member's possession on the Designated Systems for which Development
Licenses were granted, solely for the purpose of continuing technical support
for Sublicenses granted prior to termination. Such continued use of the
Programs shall be subject to all the provisions of this Agreement, including,
without limitation, payment of the Technical Support Fees specified herein.
--------------------
*[CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
3
<PAGE>
4. TERRITORY
The Alliance Member shall have the right to market and grant Sublicenses of
Programs in the United States only (the "Territory").
5. TECHNICAL SUPPORT
5.1 TECHNICAL SUPPORT FOR SUBLICENSEES.
----------------------------------
A. INSTALLATION. The Alliance Member or its Distributors will be
------------
responsible for any assistance needed to install the Application Package at
Sublicensee sites.
B. SUBLICENSING SUPPORT. The Alliance Member is responsible for
--------------------
providing all technical support, training and consultations to its Sublicensees
and Distributors. In consideration of the payments specified in Section 5.2,
the Alliance Member shall have the right to use the Oracle Technical Support
services acquired for its Supported Development Licenses to provide technical
support services to its Sublicensees as further set forth in the Agreement. The
Alliance Member shall continuously maintain Oracle Technical Support services
for the Development Licenses during the period which the Alliance Member
provides technical support services to any Sublicensees. Any questions from the
Alliance Members.
5.2 TECHNICAL SUPPORT FEES. For Technical Support services for
----------------------
Sublicensees. each year the Alliance Member agrees to pay Oracle annual
Technical Support Fees for each Runtime Program Sublicensed under this Addendum,
a previous Alliance Member Addendum, or previous distribution agreement between
the parties hereto where the Sublicensee received technical support services for
such Runtime Program during the applicable support period. Annual Technical
Support Fees for a Program shall be equal to the applicable Technical Support
Percentage Rate specified below, corresponding to the highest Technical Support
Services level specified below for any Development License used under this
Addendum, of the cumulative Sublicense fees accrued to Oracle for a Sublicensed
Program supported by the Alliance Member.
Technical Support Technical Support
Services Level Percentage Rate
-------------- ---------------
Bronze 16%
Silver 19%
Gold 26%
Upon December 31 of each year, the Alliance Member shall provide Oracle a
report setting forth all of the Alliance Members' Sublicenses and those
Sublicensed Programs which were supported by the Alliance Member during the
calendar year. The report shall also include the applicable Technical Support
Fees due and payable to Oracle for such calendar year. The Alliance Member
shall provide Oracle with payment of all Technical Support Fees for such
calendar year required under the applicable December 31 report with such report
in the form of a check made out in the amount of such fees. All Technical
Support Fees paid to Oracle are noncancelable and nonrefundable.
4
<PAGE>
On or after each anniversary during the Term of this Addendum, Oracle may
amend the Technical Support Percentage Rates set forth above based on Oracle's
then-current standard Technical Support percentage rate schedule.
6. SUBLICENSE REPORTS
Within twenty (20) days of the last day of each month, the Alliance Member
shall send Oracle a report detailing for that month:
A. For each Sublicensed Application Package shipped during the prior
month, Sublicensee name, address, make/model and operating system of the
Designated System, date of shipment, Runtime Programs shipped, maximum number of
licensed Users, whether the Sublicense is a Trial Sublicense, and total
Sublicense fees and Technical Support Fees due to Oracle;
B. For each Application Program licensed to end-users to be used with
previously installed software licensed by Oracle in conjunction with the
Application Program, Sublicensee name, address, make/model and operating system
of the computer, and date of installation; and
C. The Distributor agreements executed during the prior month,
including names and addresses of the Distributors.
The Alliance Member shall require its Distributors to report this
information to the Alliance Member on a monthly basis and will include it in the
report for the month in which the Alliance Member received the information. The
Alliance Member shall provide Oracle with payment of all fees required under
the monthly report with such report in the form of a check made out in the
amount of such fees.
7. ADDITIONAL LICENSES
During the Term, the Alliance Member 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 Alliance
Member shall have the right to order Programs for use as marketing Support
Licenses at no further charge to the Alliance Member. The Alliance Member 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.
5
<PAGE>
The Effective Date of this Addendum shall be Sept 12, 1997.
EXECUTED BY THE ALLIANCE MEMBER: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: Authorized Signature
/s/ Ralph Mayer /s/ Mariam Ordoubadi
------------------------------------ ---------------------------------
Name: Ralph Mayer Name: Mariam Ordoubadi
----------------------------- --------------------------
Title: Vice President Title: Contract Specialist
----------------------------- --------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation
3-97
6
<PAGE>
APPLICABLE PACKAGE ATTACHMENT
Name of Application Program and Application Package which the Alliance
Member will be Sublicensing under the Agreement (may not contain the trademarks
"Oracle" or "Ora" or any portion thereof):
Description of Application Package:
----------------------------------
The Matrix System is a leading-edge PDM system that enables companies to
link people, information, and processes together across the total
enterprise. The product provides a common thread that cuts across
computing platforms and individual software applications. In a nutshell,
it enables a corporate user, with appropriate authorization, to access any
type of corporate information no matter where it is physically resides,
which computing system it is on, or which software application was used to
create it. In addition, Matrix is Web-enabled, meaning that it can work on
top of a company's existing intranet and can be accessed using popular Web
browsers. Moreover, the product is a graphical and elegant tool ideally
suited to "virtual companies" which have multiple geographic locations and
which work with large numbers of partners and subcontractors.
Modules:
Matrix System Administrator
Matrix Business Administrator
Matrix user
Matrix Business Object Server
Functions and Objectives:
<PAGE>
AMENDMENT ONE
to the
RUNTIME SUBLICENSE ADDENDUM
to the
BUSINESS ALLIANCE PROGRAM AGREEMENT
between
ADRA SYSTEMS
and
ORACLE CORPORATION
This Amendment One shall serve to amend the Runtime Sublicense Addendum dated
September 12, 1997 (the "Addendum") to the Business Alliance Program Agreement
between Adra Systems (the "Alliance Member") and Oracle Corporation ("Oracle")
dated May 22, 1996 (the "Agreement").
The Addendum is amended as follows:
1. The parties agree that upon execution of the Addendum and this Amendment
One, the Runtime Sublicense Addendum between the parties dated May 22, 1996
(the "1996 Addendum") is hereby terminated as of the Effective Date of this
Amendment One. The parties agree that the Addendum, as amended by this
Amendment One, hereby supersedes the 1996 Addendum in its entirety and
shall henceforth govern all Sublicenses granted or technical support
provided by the Alliance Member under the 1996 Addendum.
2. The parties agree that the capitalized terms in this Amendment One shall
have the meanings assigned to them in the Agreement and the Addendum,
unless otherwise specified herein.
3. In the first sentence of Section 1.4, delete the words [CONFIDENTIAL
TREATMENT REQUESTED]** and replace them with the words [CONFIDENTIAL
TREATMENT REQUESTED].**
4. In the second and third sentences of Section 1.4, delete the words "thirty
(30)" and replace them with the words "sixty (60)."
5. Delete the second sentence of Section 1.5 and insert the following:
"For the purposes of allowing Distributors to make copies of the
Application Package only for Sublicensing to Sublicensees, the Alliance
Member shall have the right to provide each Distributor with one (1) copy
of the media and documentation of the Application Package (master copy) at
no further charge to the Alliance Member, and the
-------------------------
** [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
<PAGE>
Distributor shall have the right to use the master copy to make
and distribute copies of the Application Package to Sublicensees
subject to the terms of this Addendum. Upon expiration or termination
of the Term of this Addendum, the Distributor's right to use, copy,
and distribute such Application Package shall also expire or terminate
and the Distributor shall destroy the master copy."
6. Delete the first paragraph of Section 2.1 and replace it with the
following:
"For each copy of the Programs Sublicensed by the Alliance Member or
its Distributor in the Application Package during the Term of this Addendum
to a Sublicensee listed on the Alliance Member Existing Customer List
attached hereto as Exhibit A, the Alliance Member agrees to pay Oracle a
Sublicense fee equal to [CONFIDENTIAL TREATMENT REQUESTED]** of the
applicable license fee for each such Program, as specified in the
applicable Price List and Alliance Member Price List supplement to such
Price List in effect at the time the applicable Programs are Sublicensed.
The Alliance Member represents and warrants that, as of the Effective Date
of this Addendum, the Sublicensees listed on Exhibit A are already
authorized licensees of the Alliance Member's software products.
For each copy of the Programs Sublicensed by the Alliance Member or
its Distributor in the Application Package during the Term of this Addendum
to a Sublicensee not listed on Exhibit A, the Alliance Member agrees to pay
Oracle a Sublicense fee as follows:
(a) From the Effective Date of this Amendment One through the first
anniversary of the Effective Date of this Amendment One (the "First
Year"), the Sublicense fee for a Sublicense shall be equal to the
applicable percentage, as set forth in the table below corresponding
to the Cumulative First-Year Fees (as hereinafter defined), of the
applicable license fee for the applicable Program(s), as specified in
the applicable Price List and Alliance Member Price List supplement to
such Price List in effect at the time the applicable Program(s) are
Sublicensed.
"Cumulative First-Year Fees" shall mean the total net fees paid by the
Alliance Member to Oracle for any Development Licenses acquired and/or
Sublicenses granted by the Alliance Member during the period beginning
on the Effective Date of this Amendment One and ending immediately
prior to the granting of the applicable Sublicense (i.e., excluding
the present Sublicense).
Cumulative First-Year Fees Percentage Rate
-------------------------- ---------------
$0 through $149,999 [CONFIDENTIAL TREATMENT REQUESTED]**
$150,000 through $249,999 [CONFIDENTIAL TREATMENT REQUESTED]**
$250,000 through $499,999 [CONFIDENTIAL TREATMENT REQUESTED]**
$500,000 and above [CONFIDENTIAL TREATMENT REQUESTED]**
----------------------
** [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
2
<PAGE>
For example, the Sublicense fee for a Sublicense granted on the 200th
day of the First Year shall be calculated using the percentage rate in
the table above corresponding to the Cumulative First-Year Fees
through the 199th day of the First Year. Sublicense fee percentage
rates shall not be applied retroactively to any Sublicenses previously
granted. The Alliance Member shall be responsible for keeping records
of the Cumulative First-Year Fees, and shall report the applicable
Cumulative First-Year Fees and percentage rates to Oracle in its
Sublicense reports.
(b) From the day after the first anniversary of the Effective Date of this
Amendment One through the second anniversary of the Effective Date of
this Amendment One (the "Second Year"), the Sublicense fee for any
Sublicense shall be equal to the applicable percentage, as set forth
in the table below corresponding to the Total First-Year Fees (as
hereinafter defined), of the applicable license fee for the applicable
Program(s), as specified in the applicable Price List and Alliance
Member Price List supplement to such Price List in effect at the time
the applicable Program(s) are Sublicensed.
"Total First-Year Fees" shall mean the total net fees paid by the
Alliance Member to Oracle for any Development Licenses acquired and/or
Sublicenses granted by the Alliance Member during the First Year. The
applicable percentage rate shall remain the same throughout the Second
Year.
Total First-Year Fees Percentage Rate
--------------------- ---------------
$0 through $149,999 [CONFIDENTIAL TREATMENT REQUESTED]**
$150,000 through $249,999 [CONFIDENTIAL TREATMENT REQUESTED]**
$250,000 through $499,999 [CONFIDENTIAL TREATMENT REQUESTED]**
$500,000 and above [CONFIDENTIAL TREATMENT REQUESTED]**
(c) From the day after the second anniversary of the Effective Date of
this Amendment One through the third anniversary of the Effective Date
of this Amendment One (the "Third Year"), the Sublicense fee for any
Sublicense shall be equal to the applicable percentage, as set forth
in the table below corresponding to the Total Second-Year Fees (as
hereinafter defined), of the applicable license fee for the applicable
Program(s), as specified in the applicable Price List and Alliance
Member Price List supplement to such Price List in effect at the time
the applicable Program(s) are Sublicensed.
"Total Second-Year Fees" shall mean the total net fees paid by the
Alliance Member to Oracle for any Development Licenses acquired and/or
Sublicenses granted by the Alliance Member during the Second Year.
The applicable percentage rate shall remain the same throughout the
Third Year.
------------------------
** [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
3
<PAGE>
Total Second-Year Fees Percentage Rate
---------------------- ---------------
$0 through $149,999 [CONFIDENTIAL TREATMENT REQUESTED]**
$150,000 through $249,999 [CONFIDENTIAL TREATMENT REQUESTED]**
$250,000 through $499,999 [CONFIDENTIAL TREATMENT REQUESTED]**
$500,000 and above [CONFIDENTIAL TREATMENT REQUESTED]**
7. Delete the last paragraph of Section 2.1 of the Addendum.
8. After the first paragraph of Section 2.2 insert the following new
paragraph:
"All Sublicense fees for Sublicenses installed outside the United
States shall be based on the standard list license fees for the Programs as set
forth on the Oracle Global Price List."
9. Delete the body of Section 4 in its entirety and insert the following:
"The Alliance Member shall have the right to market and grant
Sublicenses of Programs in the Application Package in all countries
worldwide (the "Territory"), subject to the terms of this Section.
Oracle may from time to time deny the Alliance Member the right to
Sublicense in certain countries in the Territory in order to protect
Oracle's interests if, in the reasonable opinion of Oracle's counsel, such
countries (i) do not provide adequate protection for Oracle's proprietary
rights through copyright, trade secret, patent, or other laws; or (ii) have
laws or regulations or the government has committed acts which in the
reasonable opinion of Oracle's counsel, are injurious to Oracle's interests
in the Programs. Oracle may deny the Alliance Member the right to
Sublicense in a country pursuant to this paragraph only if such denial is
generally applicable to Oracle's other alliance members and/or resellers.
The Alliance Member acknowledges that the Programs are subject to
export controls imposed on Oracle and the Alliance Member by the U.S.
Export Administration Act, United States Departments of Commerce, Treasury,
and State regulations and directives, and other United States law ("Export
laws"), and agrees to comply fully with all such Export laws and with those
requirements set forth in Section 8.9 ("Export") of the Agreement.
The Alliance Member warrants that neither it nor its Distributors will
grant Sublicenses in or ship any Programs to a country until it (or the
Distributor) has completed all necessary government formalities in such
country and upon reasonable request by Oracle, the Alliance Member (or its
Distributor) provides evidence of completion of such formalities to Oracle.
The Alliance Member will indemnify Oracle for any direct losses, costs,
liability, and damages incurred by Oracle as a result of a failure by the
Alliance Member or its Distributors to comply with the necessary government
requirements in any country. The obligations under this Section shall
survive the expiration or termination of this Addendum. Upon Oracle's
reasonable
-----------------------
** [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
4
<PAGE>
request, the Alliance Member shall make records available to Oracle to
allow Oracle to confirm the Alliance Member's compliance with this
Section."
10. Delete the first sentence of Section 6 and insert the following:
"Within thirty (30) days of the last day of each quarterly period ending in
the months of March, June, September, and December (each such period,
"Quarter"), the Alliance Member shall send to Oracle a report detailing for
that Quarter:"
Also, in Sections 2.1, 5, and 6, delete the word "month" and insert the
word "Quarter" and delete the word "monthly" and insert the word
"Quarterly" in each instance in which such words occur.
Other than the modifications set forth above, the terms and conditions of the
Addendum remain unchanged and in full force and effect.
The Effective Date of this Amendment One is September 12, 1997.
ADRA SYSTEM ORACLE CORPORATION
By: /s/ Ralph Mayer By: /s/ Monica M. Murnane
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Name: Ralph Mayer Name: Monica M. Murnane
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Title: Vice President Title: Manager - West Region
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Alliances Sales Support
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5
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EXHIBIT A
ALLIANCE MEMBER EXISTING CUSTOMER LIST