Exhibit 10.27.1
AMENDMENT ONE
TO THE
ORACLE ALLIANCE AGREEMENT
BETWEEN
MEDICALOGIC/MEDSCAPE, INC.
AND
ORACLE CORPORATION
This document ("Amendment One") shall serve to amend the Oracle Alliance
Agreement between Medicalogic Inc (the "Alliance Member") and Oracle
Corporation ("Oracle") dated Jan. 1, 2000 (the "Agreement").
The Agreement is amended as follows:
1. At the end of Section 2.3.B.2, add the following:
"With Oracle's written consent, which will not be unreasonably withheld,
Sublicensee may assign its rights under this Agreement to an entity
resulting from a merger or sale or other transfer of substantially all of
Sublicensee's assets provided that the assignee company is not a
competitor of Oracle, and the assignee agrees in writing to the terms and
conditions of the Agreement."
2. Before the last sentence of Section 5.1, add the following:
"Also, if the audit reveals that the Alliance Member has overpaid fees to
Oracle, Oracle will use best efforts to reimburse the Alliance Member in a
timely manner."
3. Delete Section 6.2 in its entirety.
4. The following shall be added to the end of the first paragraph of
Section 6.5:
"Expiration or termination of a Sublicense Addendum or this Agreement shall
not affect any sublicense agreement between the Alliance Member and its
Sublicensees."
5. Delete Section 8.5 in its entirety and replace with the following:
"8.5 ASSIGNMENT
Upon notice to Oracle, Alliance Member may assign its rights under this
Agreement to an entity resulting from a merger or a sale or other transfer
of substantially all of Alliance Member's assets provided that the assignee
company
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is not a competitor of Oracle, and the assignee agrees in writing to the
terms and conditions of the Agreement."
6. Begin the second sentence of Section 8.10, ad the following:
"Except with respect to the exclusive remedies of Section 7.1,"
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 January 1, 2000.
MEDICALOGIC/MEDSCAPE, INC. ORACLE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------- ----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- --------------------------
Title: CFO Title: CONTRACT SPECIALIST
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[ORACLE LOGO]
APPLICATION SPECIFIC SUBLICENSE ADDENDUM
This document (the "Addendum") is between Oracle Corporation ("Oracle") and
MedicaLogic/Medscape, Inc. (the "Alliance Member") and shall be governed by
the terms of the Oracle Alliance Agreement between the Alliance Member and
Oracle effective January 1, 2000 (the "Agreement") and the terms set forth
below.
1. SUBLICENSES
1.1 SUBLICENSE PROGRAMS AND TERMS
The Alliance Member may only Sublicense Application Specific Full
Use Programs for which the Alliance Member has previously acquired a
Supported Development License for the applicable Designated System.
Notwithstanding any other provision of this 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 Application Specific Full Use Programs under the conditions
set forth in the Agreement and under the following restrictions:
A. Sublicense Application Specific Full Use Programs with the
Application Program in the Application Package for use on Designated
Systems to Sublicensees. Each copy of the Application Specific Full Use
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 Application
Specific Full Use 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
Application Specific Full Use Program Sublicense. If a Sublicensee uses
the Application Specific Full Use 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 APPLICATION SPECIFIC FULL USE PROGRAMS
For the purposes of this Addendum, "Application Specific Full Use
Program(s)" shall mean Programs which are limited to use in conjunction
with the Application Program. Such use may include development work to
create modifications to customize such Application Program for the
Sublicensee's requirements within the scope of the Application Program as
described in the Application Package Attachment. Application Specific Full
Use Programs may not be used in conjunction with or to create additional
functionality or applications not described in the applicable Application
Package Attachment. Without limiting the usage permitted above, the
Sublicensee may use the Application Specific Full Use Programs only for
the purpose of implementation and support of the 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
the attached Application Package Attachment with which the Application
Specific Full Use Programs are to be coupled. "Application Package(s)"
shall mean the Application Specific Full Use 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 ten (10) 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 Application Specific Full
Use Programs 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, 2.4, 2.5, 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, 8.10, 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
the Distributors' failure to include the required contractual terms set
forth in Section 2.3.B of the Agreement in each Sublicense agreement. The
Alliance Member agrees to enforce the terms of its Distributor agreements
required under this Section so as to effect a timely cure of any
Distributor breach, and to notify Oracle of any known breach of such
terms.
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 5.2 of the Agreement.
2. SUBLICENSE FEES
2.1 SUBLICENSE FEES AND RATE
For each copy of the Programs Sublicensed by the Alliance Member or
its Distributor in the Application Package, the Alliance Member agrees to
pay Oracle a Sublicense fee equal to forty percent (40%) 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 5 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'sthen-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 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 User basis specified in the Price List in
effect at the time the applicable Program is Sublicensed.
3. TERM
This Addendum shall become effective on the Effective Date of this
Addendum and shall be valid for 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.
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 during which the Alliance Member
provides technical support services to any Sublicensees. Any questions
from the Alliance Member's Sublicensees or Distributors will be referred
by Oracle to the Alliance Member.
6.2 TECHNICAL SUPPORT FEES
For Technical Support services for Sublicensees, each year the
Alliance Member agrees to pay Oracle annual Technical Support Fees for
each 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
Application Specific Full Use Program during the applicable support
period from the Alliance Member. If the Sublicensee has not continuously
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maintained Technical Support services from the earlier of the date of
Sublicense or the date of shipment, the Alliance Member shall be
required to reinstate lapsed Technical Support services for the
applicable Sublicense at the fees set forth in this Section.
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
----------------- -----------------
Silver 19%
Gold 26%
In addition, the Alliance Member shall pay reinstatement charges to
reinstate lapsed Technical Support services at an amount equal to the
applicable Technical Support Percentage Rate specified above,
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 the Sublicensed
Program multiplied by the number of years for which Technical Support
services have lapsed. For example, if the period of lapse was 2.5 years,
the Alliance Member has acquired Silver Technical Support services for
its Development Licenses in the Technical Support renewal year, and the
original Sublicense fee for the Program was $100, then the reinstatement
fee would be calculated as follows: .19 X $100 X 2.5.
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 and reinstatement fees due and payable
to Oracle for such calendar year. The Alliance Member shall provide
Oracle with payment of all Technical Support Fees and reinstatement 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.
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.
8. SUBLICENSE REPORTS
Within twenty (20) days of the last day of each and every 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, Application Specific Full Use
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.
The Effective Date of this Addendum shall be January 1, 2000.
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EXECUTED BY THE ALLIANCE MEMBER:
Authorized Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: CFO
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EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: CONTRACT SPECIALIST
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Oracle Corporation
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Oracle is a registered trademark of Oracle Corporation.
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AMENDMENT ONE
TO THE
APPLICATION SPECIFIC SUBLICENSE ADDENDUM
TO THE
ORACLE ALLIANCE AGREEMENT
BETWEEN
MEDICALOGIC INC
AND
ORACLE CORPORATION
This document ("Amendment One") shall serve to amend the Application Specific
Addendum dated Jan. 1, 2000 (the "Addendum") to the Oracle Alliance Agreement
between Medicalogic Inc (the "Alliance Member") and Oracle Corporation
("Oracle") dated Jan. 1, 2000 (the "Agreement").
The Addendum is amended as follows:
1. In the first paragraph of Section 2.1, delete the words "forty percent
(40%)" and replace with the words "thirty-five percent (35%)".
2. In the second paragraph of Section 2.1, replace the words "twenty (20)"
with the words "thirty (30)".
3. In the first sentence of Section 3, delete the words "for three (3) years
(the "Term") from the Effective Date," replace with the words "until
December 31, 2001".
4. In Section 5.2, delete the following:
"Technical Support Technical Support
Services Level Percentage Rate
------------------ -----------------
Bronze 16%
Silver 19%
Gold 26%"
and replace with the following:
"Technical Support Technical Support
Services Level Percentage Rate
------------------ -----------------
Bronze 16%
Product Support & Update Subscription 19%
The Alliance Member can sell only Update Subscription Services at fifteen
percent (15%) royalty rate of net license fees, provided that the Alliance
Member does not sell technical phone support to those customers."
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5. In Section 6A, delete the words, "and Technical Support Fees due to
Oracle".
6. In the first sentence of Section 6, replace the words "twenty (20)" with
the words "thirty (30)".
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 January 1, 2000.
MEDICALOGIC/MEDSCAPE, INC. ORACLE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- -----------------------------
Title: CFO Title: CONTRACT SPECIALIST
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