[Graphic Appears Here]
ORACLE PARTNERNETWORK
FULL USE PROGRAM DISTRIBUTION AGREEMENT
This Full Use Program Distribution Agreement ("agreement") includes the terms
and definitions set out below and any orders you submit. This agreement and any
orders submitted under this agreement are not effective until accepted by
Oracle. If accepted, Oracle will notify you and the terms of this agreement will
govern.
Definitions
"You" and "your" refer to the individual or entity that has entered into this
agreement with Oracle Corporation ("Oracle") to distribute Oracle's programs
with the value added package. The term "programs" refers to full use versions of
the Oracle software products which you order from Oracle for development, trial,
or demonstration purposes as provided below, and for distribution to an end user
under this agreement, including program documentation, and any program updates
acquired through technical support. The term "programs" does not include any
Oracle E-Business Suite programs. The term "technical support" consists of
Software Updates, Product Support, and/or other annual technical support
services you may have ordered. The term "services" refers to technical support
(excluding any program updates acquired through technical support), online, or
other services which you have ordered. The term "distribution rights" refers to
the right to distribute the programs to an end user with the value added package
under the terms of this agreement. The term "end user" refers to a third party
that is licensed to use the programs for its own business operations subject to
the terms of an end user license agreement as further provided for in this
agreement. The term "value added package" refers to the hardware and/or software
products and/or services having added value which are developed, sold, provided
and/or licensed with the programs to an end user by you or value added sales
assistance provided by you. The term "full use" refers to unaltered versions of
the programs with all functions intact. The term "end user license agreement"
refers to a legally binding written agreement (a granting an end user the right
to use the programs, (b) which is compliant with the terms of this agreement,
and (c) which becomes effective upon the execution of an ordering document
between you and an end user. The term "OPN" refers to the Oracle PartnerNetwork,
which is Oracle's partner program that provides access to specified Oracle
services, tools and resources. You can access the OPN at
xxxx://xxxxxxx.xxxxxx.xxx.
Distribution Rights
You must be a member of the OPN in order to distribute programs. You may order
programs from Oracle and Oracle grants you a nonexclusive, nontransferable right
to distribute such programs to end users pursuant to an end user's order to you
as provided under this agreement. Each distributed program must be used only for
the business operations of the end user. You may distribute the programs only in
conjunction with your value added package and you may not distribute the program
to yourself or to an affiliated entity. You shall not appoint any third party to
distribute the programs. Program documentation is either shipped with the
programs, or documentation may be accessed online at xxxx://xxxx.xxxxxx.xxx.
You may order Oracle technical support for your end users. Oracle grants you a
nonexclusive, nontransferable right to distribute to end users the ability to
receive first year technical support from Oracle for the programs distributed to
such end users. First year technical support may be acquired only with the order
placed for the programs. If technical support is ordered, the term of such
technical support begins on the date the programs are shipped. If ordered,
annual technical support is provided under Oracle's technical support policies
in effect at the time the services are provided. The technical support policies
are subject to change and may contain additional terms, and you should review
the policies prior to ordering such technical support. When you distribute the
ability to receive first year technical support from Oracle to end users, you
must inform such end users that such technical support (including the renewal of
such technical support) is subject to Oracle's technical support policies in
effect at the time the services are provided. You and/or the end user may access
the latest version of the Oracle technical support policies at
xxxx://xxx.xxxxxx.xxx/xxxxxxx/xxxxx.xxxx?xxxxxxxx.xxxx. If you distribute first
year technical support to an end user, you must inform the end user of the
amount of the annual technical support fees for the second year of technical
support should the end user decide to purchase such technical support from
Oracle. You may access the latest guidelines regarding the pricing of the second
year of technical support at xxxx://xxxxxxx.xxxxxx.xxx (you must log in, select
the Home tab, and select the Manage Your Membership portlet).
Page 1 of 11
Development Licenses
You may order development licenses for the programs for your use pursuant to
which Oracle grants you a nonexclusive, nontransferable license to use the
programs to (a) develop or prototype the value added package, and (b) to provide
training for the value added package to employees and end users who have
licensed the value added package. Your use of the development licenses shall be
subject to the terms of this agreement and the terms provided in the ordering
document.
Trial Licenses
You may order trial licenses for the programs. Oracle grants you a nonexclusive,
nontransferable license to distribute to end users a combined total of 50 trial
licenses at any one time for the end users' own internal evaluation purposes
(and not for development, prototype, training, or technical support purposes).
Trial licenses shall be for 30 days and shall be subject to the terms of this
agreement and the terms provided in the ordering document. If your end users
want to use programs for which they have obtained a trial license for more than
30 days, they must obtain an appropriate license and pay the appropriate fees;
you must pay Oracle a fee for any trial licenses that you distribute that extend
for more than 30 days. Programs licensed for trial purposes are provided "as is"
and Oracle does not provide technical support or any warranties for these
programs.
Demonstration Licenses
You may order demonstration licenses for the programs for your use pursuant to
which Oracle grants you a nonexclusive, nontransferable license to use the
programs to (a) demonstrate the programs to potential end users solely in
connection with the value added package, (b) prototype the value added package,
and (c) provide training for the value added package to your employees.
Demonstration licenses shall be subject to the terms of this agreement and the
terms provided in the ordering document.
Technical Support for Development Licenses and Demonstration Licenses
You may order annual technical support for development licenses and
demonstration licenses. If ordered or renewed, technical support is provided
under Oracle's technical support policies in effect at the time the services are
provided. The technical support policies, incorporated in this agreement, are
subject to change and may contain additional terms, and you should review the
policies prior to ordering such technical support. You may access the latest
version of the Oracle technical support policies at
xxxx://xxx.xxxxxx.xxx/xxxxxxx/xxxxx.xxxx?xxxxxxxx.xxxx.
Oracle reserves the right to desupport its programs. Desupport notices, which
are posted at Oracle's customer support web site, MetaLink (or Oracle's then
current customer support web site), contain desupport dates, information about
availability of Extended Assistance Support and Extended Maintenance Support and
information about migration paths for certain features. The desupport notices
are subject to change; Oracle will provide updated desupport notices on MetaLink
(or Oracle's then current customer support web site) as necessary.
Ownership and Restrictions
Oracle retains all ownership and intellectual property rights to the programs
and materials resulting from the services. You and each end user may make a
sufficient number of copies of each program for the licensed use and one copy of
each program media; you and each end user must obtain Oracle's prior written
approval to make additional copies. You may allow your agents or contractors to
use the programs for demonstration and development purposes set forth herein,
subject to the terms of this agreement.
You may not:
distribute the programs except in conjunction with the value added package;
o use the programs for your own business operations except as provided in this
agreement;
o remove or modify any program markings or any notice of Oracle's proprietary
rights;
o rent, lease, or timeshare the programs, act as a service bureau with respect
to the programs, or provide subscription services for the programs, or
permit your end users to do so (unless such access is expressly permitted
for the specific program license the end user has acquired), or distribute
the programs in any manner except as provided under this agreement;
o use the programs to provide third party training on the content and/or
functionality of the programs, except for training for your employees and
end users who have licensed the value added package as provided in this
agreement;
o cause or permit reverse engineering (unless required by law for
interoperability), disassembly, or decompilation of the programs;
o disclose results of any program benchmark tests without Oracle's prior
written consent; or
o engage in any deceptive or misleading practices that may be detrimental to
Oracle or to the programs.
Page 2 of 11
"Open Source" software - software available without charge for use, modification
and distribution - is often licensed under terms that require the user to make
the user's modifications to the Open Source software or any software that the
user `combines' with the Open Source software freely available in source code
form. If you use Open Source software in conjunction with the programs, you must
ensure that your use does not: (i) create, or purport to create, obligations of
Oracle with respect to the programs; or (ii) grant, or purport to grant, to any
third party any rights to or immunities under Oracle's intellectual property or
proprietary rights in the programs. For example, you may not develop a software
program using a program and an Open Source program where such use results in a
program file(s) that contains code from both the program and the Open Source
program (including without limitation libraries) if the Open Source program is
licensed under a license that requires any "modifications" be made freely
available. You also may not combine the programs with programs licensed under
the GNU General Public License ("GPL") in any manner that could cause, or could
be interpreted or asserted to cause, the programs or any modifications to the
programs to become subject to the terms of the GPL.
Order Terms
Prior to submitting an order to Oracle, you must obtain an order from the end
user for the programs ordered, which order and programs shall be subject to a
valid end user license agreement. Each order placed by you must be complete and
shall be subject to the terms of this agreement and the terms provided in the
ordering document. With each order you shall provide: the name and address of
the end user; the name, including date or version, of the applicable end user
license agreement and any amendments and documents that together with the end
user license agreement form the complete end user license agreement; the name,
including date or version, of your agreement with Oracle under which your order
is being placed; the location to which the programs will be shipped and the ship
date (if you are shipping the programs); the total number of processors on which
the programs are installed and/or running; the names of the programs licensed
and applicable license metrics; the term designations (for term licenses); the
number of trial licenses, if any; and the total license, technical support, and
other services fees payable to Oracle. Your order must be complete when
submitted to Oracle and may not (a) require any concessions (including requiring
Oracle to perform any obligations or to incur any liability not set forth in
your order to Oracle) or (b) be changed after it is submitted to Oracle. Oracle
may require that you place orders through an authorized Oracle Value Added
Distributor ("Oracle VAD").
Upon request, you will provide Oracle with a copy of the end user license
agreement and any ordering documents or purchase agreements between you and the
end user related to the order, with any information reasonably deemed
confidential or proprietary removed as the information set forth in such end
user license agreement will not be considered confidential information. At a
minimum you must provide information related to the programs, including but not
limited to, the end user's name, the programs distributed, the number of users,
the license levels, the license grant to the end user, any definitions related
to licensing metrics, the date of the order, and any other information
reasonably requested by Oracle.
Where (i) the acquisition of programs and/or technical support is financed or
leased, or (ii) the end user license agreement or order refers to any payments
other than net 30 day payment terms, then you will comply with Oracle's
financing and leasing policies which can be accessed at
xxxx://xxxxxxx.xxxxxx.xxx (you must log in, select the Home tab, and select the
Manage Your Membership portlet) by ensuring that the end user and any funder
have received those policies, and where applicable, have acknowledged that they
will comply with those policies.
License Agreement
It is your responsibility to ensure that any distribution of programs to an end
user is subject to a legally binding end user license agreement for the programs
and/or services that you order. The end user license agreement shall be either
(a) a legally binding written agreement between you and the end user under which
you distribute the programs with your value added package in accordance with the
terms of this agreement or (b) a legally binding written agreement between
Oracle and the end user consisting of either a standard Oracle License and
Services Agreement between Oracle and the end user or an existing Software
License and Services Agreement between Oracle and the end user.
If the end user license agreement is between you and the end user, the terms for
that end user license agreement shall be either (a) your own license agreement
that complies with the terms set forth below or (b) the standard Oracle License
and Services Agreement modified such that (i) you are the licensor and are
responsible for all obligations under such agreement that would have been
required of Oracle if Oracle were the licensor and (ii) Oracle is designated as
a third party beneficiary of the end user license agreement.
If the end user license agreement is your own agreement, such agreement must at
a minimum: (1) restrict the use of the programs to the business operations of
the end user; (2) prohibit (a) the end user from assigning, giving, or
transferring the programs and/or any services ordered or an interest in them to
another individual or entity (and if your end user grants a security interest in
the programs
Page 3 of 11
and/or any services, the secured party has no right to use or transfer the
programs and/or any services); (b) timesharing, service bureau, subscription
service, or rental use of the programs; and (c) title to the programs from
passing to the end user or any other party; (3) prohibit the reverse engineering
(unless required by law for interoperability), disassembly or decompilation of
the programs and prohibit duplication of the programs except for a sufficient
number of copies of each program for the end user's licensed use and one copy of
each program media; (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 end user at
the termination of the agreement, to discontinue use and destroy or return to
you all copies of the programs and documentation; (6) prohibit publication of
any results of benchmark tests run on the programs; (7) require the end user to
comply fully with all relevant export laws and regulations of the United States
and other applicable export and import laws to assure that neither the programs,
nor any direct product thereof, are exported, directly or indirectly, in
violation of applicable laws; (8) not require Oracle to perform any obligations
or incur any liability not previously agreed to between you and Oracle; (9)
permit you to audit your end user's use of the programs and report such use to
Oracle or to assign your right to audit the end user's use of the programs to
Oracle; (10) inform the end user that technical support, if ordered from Oracle,
is provided under Oracle's technical support policies in effect at the time the
services are provided; (11) designate Oracle as a third party beneficiary of the
end user license agreement; and (12) exclude the application of the Uniform
Computer Information Transactions Act. You may allow your end users to permit
agents or contractors to use the programs on their behalf for the purposes set
forth in the end user license agreement, subject to the terms of such agreement.
You shall be financially responsible for all claims and damages to Oracle caused
by your failure to include the required contractual terms set forth above in
each end user license agreement between you and an end user. Oracle is a third
party beneficiary of any end user license agreement between you and the end
user, but does not assume any of your obligations thereunder, and you agree that
you will not enter into any end user license agreement that excludes Oracle as a
third party beneficiary and will inform your end users of Oracle's rights.
If the end user license agreement is between Oracle and the end user, the terms
for that end user license agreement shall be either (a) the then current
standard Oracle License and Services Agreement or (b) an existing Software
License and Services Agreement between Oracle and the end user. If the end user
license agreement is the then current standard Oracle License and Services
Agreement, you must obtain the end user's signature on Oracle's standard Oracle
License and Services Agreement and provide the signed agreement to Oracle when
you submit the order for programs and/or services. Oracle will sign the
agreement and return it to you and you shall return it to the end user. You may
obtain a copy of Oracle's current standard Oracle License and Services Agreement
at xxxx://xxxxxxx.xxxxxx.xxx (you must log in, select the Home tab, and select
the Manage Your Membership portlet). The ordering document between you and the
end user shall expressly state that the applicable order is subject to and
incorporates the terms and conditions of such standard Oracle License and
Services Agreement. If the end user license agreement is an existing Software
License and Services Agreement between Oracle and the end user, the ordering
document between you and the end user shall expressly state that the applicable
order is subject to and incorporates the terms and conditions of such existing
Software License and Services Agreement between Oracle and the end user.
You agree to inform Oracle promptly if you are aware of any breach of an end
user license agreement. You agree to enforce the terms of an end user license
agreement between you and an end user if Oracle requests you to do so to protect
its interest, or, at Oracle's request, to assign to Oracle or its designee the
right to enforce such agreement.
Warranties, Disclaimers and Exclusive Remedies
Oracle warrants that programs will substantially operate as described in the
applicable program documentation for one year after Oracle delivers them to you.
Oracle also warrants that services ordered will be provided in a manner
consistent with industry standards, and this warranty is valid for a period of
90 days from performance of the service.
ORACLE DOES NOT GUARANTEE THAT THE PROGRAMS WILL PERFORM ERROR-FREE OR
UNINTERRUPTED, OR THAT ORACLE WILL CORRECT ALL PROGRAM ERRORS. TO THE EXTENT
PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS
OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
FOR ANY BREACH OF THE WARRANTIES, YOUR EXCLUSIVE REMEDY, AND ORACLE'S ENTIRE
LIABILITY, SHALL BE: (A) THE CORRECTION OF PROGRAM ERRORS THAT CAUSE BREACH OF
THE WARRANTY, OR IF ORACLE CANNOT SUBSTANTIALLY CORRECT A BREACH IN A
COMMERCIALLY REASONABLE MANNER, YOU MAY END YOUR PROGRAM LICENSE AND RECOVER THE
FEES PAID TO ORACLE FOR THE PROGRAM LICENSE AND ANY UNUSED, PREPAID TECHNICAL
SUPPORT FEES YOU HAVE PAID FOR THE PROGRAM
Page 4 of 11
LICENSE; OR (B) THE REPERFORMANCE OF THE SERVICES, OR IF ORACLE CANNOT
SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END
THE RELEVANT SERVICES AND RECOVER THE FEES PAID TO ORACLE FOR THE RELEVANT
SERVICES.
Trial Program
Oracle may include additional programs with an order that the end user may use
for trial, non-production purposes only. The end user will have 30 days from the
delivery date to evaluate these programs. If the end user decides to use any of
these programs after the 30 day trial period, the end user must obtain a license
for each program. If the end user decides not to obtain a license for any
programs after the 30 day trial period, the end user must cease using and must
delete the applicable programs from the end user's computer system. Programs
licensed for trial purposes are provided "as is" and Oracle does not provide
technical support or offer any warranties for these programs.
Indemnification
If someone makes a claim against you or an end user that any program infringes
their intellectual property rights, Oracle will indemnify you and the end user
if you do the following:
o 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;
o give Oracle sole control of the defense and any settlement negotiations; and
o give Oracle the information, authority, and assistance 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 to
be non-infringing 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 fees you may have paid for it. Oracle will not
indemnify you or an end user if you or an end user alter a program outside the
scope of use identified in the user documentation or if you or an end user use a
version of the program 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 extent an infringement claim is based on a
program not provided by Oracle. Oracle will not indemnify you or an end user to
the extent that an infringement claim is based on 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.
If someone makes a claim against Oracle that a program, when used in combination
with any product or services provided by you, infringes their intellectual
property rights, and such claim would have been avoided by the exclusive use of
the program, you will indemnify Oracle.
GENERAL
Term and End of Agreement
This agreement shall begin on the date specified in Oracle's acceptance
confirmation and continue in effect for the same period of time as your Oracle
PartnerNetwork Agreement ("OPN agreement"). This agreement will terminate if you
do not keep your OPN membership current. Each year, in order to keep
distributing the programs, when you apply to renew your OPN agreement, you must
execute the then current version of Oracle's distribution agreement and the
agreement will be subject to acceptance by Oracle, and Oracle may require you to
complete certain training and assessment requirements to Oracle's satisfaction.
If you breach the terms of this agreement and fail to correct the breach within
30 days after Oracle notifies you in writing, Oracle may end this agreement and
your use of programs, access to technical support and other services ordered as
well as the OPN agreement and your membership in the OPN; provided however, that
if the breach is of a nature which cannot be corrected then Oracle may end this
agreement immediately. If Oracle ends this agreement as specified in the
preceding sentence, you must pay within 30 days all amounts which have accrued
prior to the end of this agreement, as well as sums remaining unpaid for
programs and/or services ordered or received under this agreement. You agree
that if you are in default under this agreement, you may not use the programs
and/or services ordered. The end users' rights to use the programs properly
distributed by you under this agreement shall survive termination of this
agreement, unless such rights are otherwise terminated in accordance with the
applicable license agreement. The parties' rights and obligations that by their
nature are continuing shall survive, including but not limited to those set
forth in the section entitled "Ethical Business Practices."
Page 5 of 11
Fees and Taxes
You may place an order for programs and/or services with Oracle or any local
majority owned subsidiary of Oracle (both of which are referred to in this
agreement as an "Oracle group company") or an Oracle VAD. You agree to pay the
applicable Oracle group company or the appropriate Oracle VAD a fee for each
order placed for programs and/or services under this agreement as specified in
the ordering document. Fees for programs and/or services will be paid directly
to the entity to which you submit the order. You will not be relieved of your
obligation to pay any fees owed to Oracle by the nonpayment of such fees by your
end user. Oracle VADs and partners are free to determine the fees charged to end
users for program licenses and technical support. Any order placed with the
Oracle group company will be subject to the Oracle global price list and
discount terms in effect at the time the order is submitted. To access the
Oracle global price list and discount terms, you must log into the OPN web site
at xxxx://xxxxxxx.xxxxxx.xxx (you must log in, select the Home tab, and select
the Manage Your Membership portlet) to view the Oracle global price list and
discount terms. It is your responsibility to access the Oracle global price list
to obtain current information. If Oracle's global price list changes after you
issue a valid written quote for program licenses to an end user, for 90 days
after the date you submit the quote to the end user, the fee applicable to the
programs identified in the quote shall be based on the global price list in
effect on the date you submit the quote.
All fees payable to the applicable Oracle group company, including applicable
fees for demonstration licenses and development licenses that you order, are due
within 30 days from the invoice date, and you also agree to pay any sales,
value-added or other similar taxes imposed by applicable law which the
applicable Oracle group company must pay based on the programs or services you
ordered. Oracle reserves the right to check your credit rating periodically
during the term of this agreement and to modify these payment terms in the event
that there is a material change in your credit rating. Fees listed in this
agreement are exclusive of value added tax and/or similar sales taxes. Such
taxes shall be charged at the appropriate rate by the applicable Oracle group
company in addition to its stated fees and shall be shown separately on the
relevant invoice. Payments shall be in U.S. dollars or in the local currency
designated by the applicable Oracle group company or the appropriate Oracle VAD.
Upon your submission of an order to the applicable Oracle group company, this
payment obligation is non-cancelable, and the sum paid is nonrefundable, is not
subject to set-off for any reason, and is not subject to the completion or
occurrence of any event after the date your order is submitted to Oracle, other
than the shipment of programs by Oracle if required and Oracle's obligation to
provide annual technical support services to end users if ordered.
Nondisclosure
By virtue of this agreement, the parties may have access to information that is
confidential to one another ("confidential information"). Confidential
information shall be limited to the terms and pricing under this agreement, and
all information clearly identified as confidential.
A party's confidential information shall not include information that: (a) is or
becomes a part of the public domain through no act or omission of the other
party; (b) was in the other party's lawful possession prior to the disclosure
and had not been obtained by the other party either directly or indirectly from
the disclosing party; (c) is lawfully disclosed to the other party by a third
party without restriction on the disclosure; or (d) is independently developed
by the other party.
The parties agree to hold each other's confidential information in confidence
for a period of three years from the date of disclosure. The parties agree,
unless required by law, not to make each other's confidential information
available in any form to any third party for any purpose other than the
implementation of this agreement. Each party agrees to take all reasonable steps
to ensure that confidential information is not disclosed or distributed by its
employees or agents in violation of the terms of this agreement. Nothing shall
prevent either party from disclosing the terms or pricing under this agreement
or orders submitted under this agreement in any legal proceeding arising from or
in connection with the terms of this agreement.
Trademarks and Copyrights
You are authorized to use Oracle's trademarks and service marks (the "Oracle
trademarks") to refer to the associated Oracle products and services. Your use
of the Oracle trademarks shall comply with Oracle's trademark usage guidelines
in effect from time to time, and all goodwill based upon use of the Oracle
trademarks shall inure to Oracle's benefit. Oracle's trademark usage guidelines,
incorporated in this agreement, are subject to change. You may access Oracle's
trademark usage guidelines at xxxx://xxxxxxx.xxxxxx.xxx (you must log in, select
the Home tab, and select the Manage Your Membership portlet). You agree not to
use Oracle trademarks (including "ORACLE") or potentially confusing variations
(including "ORA") as a part of your product name(s), service name(s), company
name or domain name(s). In marketing, promoting or licensing the programs, you
agree to make it clear that Oracle is the source of the programs. You shall
retain all notices, including copyright and trademark notices, on the programs
and any copies of the programs. You shall deliver or have Oracle deliver the
programs in the original sealed CD packs.
Page 6 of 11
Relationships between Parties
In all matters relating to this agreement, you will act as an independent
contractor. This agreement does not create a partnership, joint venture, agency,
employee/employer relationship, or franchisee/franchisor relationship between
the parties. 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 that is functionally
similar to the other party's product, so long as proprietary information of the
other party is not included in such software.
Privacy
To the extent this agreement provides Oracle the right to audit or review
documents that may have information concerning your end users, or to the extent
that you provide Oracle with personal information relating to any employees who
are identified as contact persons or otherwise identified under this agreement,
you agree to have provided all relevant notices to such persons or obtained any
consents required to enable you to share this information with Oracle. Oracle
will only use the information in manners consistent with those specified in this
agreement, required to accomplish its purposes, or otherwise stated at the time
Oracle collects such information. Any data provided may be maintained by Oracle
in data centers in the United States and may be accessible by Oracle's global
personnel as required for business purposes.
URLs
It is your responsibility to regularly monitor all applicable URLs referenced in
this agreement. You confirm that you have access to the Internet and confirm
that prior to entering into this agreement you have read the policies on the
websites referenced above and agree to the terms and conditions set out in those
policies. You undertake that you will visit the websites referenced above on a
regular basis so that you are aware of any amendments Oracle may make to those
policies from time to time.
U.S. Government Licenses
If you distribute a license to the United States government and you ship the
programs directly to the end user, the programs, including documentation, shall
be considered commercial computer software and you will place a legend, in
addition to applicable copyright notices, on the documentation, and on the media
label, substantially similar to the following:
NOTICE OF RESTRICTED RIGHTS
"Programs delivered subject to the DOD FAR Supplement are `commercial computer
software' and use, duplication, and disclosure of the programs, including
documentation, shall be subject to the licensing restrictions set forth in the
applicable Oracle license agreement. Otherwise, programs delivered subject to
the Federal Acquisition Regulations are `restricted computer software' and use,
duplication, and disclosure of the programs, including documentation, shall be
subject to the restrictions in FAR 52.227-19, Commercial Computer
Software-Restricted Rights (June 1987). Oracle Corporation, 000 Xxxxxx Xxxxxxx,
Xxxxxxx Xxxx, XX 00000."
Ethical Business Practices
You acknowledge and agree that you and your owners, directors, officers,
employees or agents have not, and will not, make or promise payments of money or
anything of value, directly or indirectly, to any government or public
international organization officials, political parties, or candidates for
political office, for the purpose of obtaining or retaining business or securing
any improper advantage, or to any other person or entity if such payment would
violate the laws of the country in which made or the laws of the United States.
You agree that any violation of this section constitutes just cause for the
immediate termination by Oracle of this agreement without any liability to you.
You will also indemnify and hold Oracle and its parent company harmless from any
claims, losses and liabilities resulting from any breach of any of your
obligations under this section. The obligations under this section shall survive
the termination or expiration of this agreement.
Entire Agreement
You agree that this agreement and the information which is expressly
incorporated into this agreement (including reference to information contained
in an URL), together with the applicable order, are the complete agreement for
the programs and services ordered by you, and this agreement supersedes all
prior or contemporaneous agreements or representations regarding such programs
and/or services. If any term of this agreement is found to be invalid or
unenforceable, the remaining provisions will remain effective. It is expressly
agreed that the terms of this agreement and any Oracle ordering document shall
supersede the terms in any purchase order or other non-Oracle ordering document
and no terms included in any such purchase order or other non-Oracle ordering
document shall apply to the programs and/or services ordered. This agreement may
not be modified and the rights and restrictions
Page 7 of 11
may not be altered or waived except in a writing signed or accepted online
through the Oracle Store by authorized representatives of you and of Oracle and
any notice required under this agreement shall be provided to the other party in
writing.
Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE,
OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE.
ORACLE'S MAXIMUM LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT AND YOUR ORDER,
WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED TO THE FEES YOU PAID ORACLE FOR
THE DEFICIENT PROGRAM OR SERVICE UNDER THIS AGREEMENT AS SPECIFIED IN YOUR
ORDER. IN NO EVENT SHALL ORACLE'S TOTAL LIABILITY ARISING UNDER OR IN CONNECTION
WITH THIS AGREEMENT EXCEED THE TOTAL VALUE OF THE APPLICABLE ORDER.
Export
You agree that U.S. export control laws and other applicable export and import
laws govern your use and distribution of the programs, including technical data;
additional information can be found on Oracle's Global Trade Compliance web site
located at xxxx://xxx.xxxxxx.xxx/xxxxxxxx/xxxxxx/xxxxx.xxxx?xxxxxxx.xxxx. You
agree that neither the programs nor any direct product thereof will be exported,
directly, or indirectly, in violation of these laws, or will be used for any
purpose prohibited by these laws including, without limitation, nuclear,
chemical, or biological weapons proliferation, or development of missile
technology.
Other
This agreement is governed by the substantive and procedural laws of the State
of California and you and Oracle agree to submit to the exclusive jurisdiction
of, and venue in, the courts in San Francisco, San Mateo, or Santa Xxxxx
counties in California in any dispute arising out of or relating to this
agreement.
You agree that the sales process that you use complies with applicable
procurement regulations (if the end user is a government entity) and that you
will keep accurate books and records in connection with the activities under
this agreement. Upon 45 days written notice, Oracle may audit your use and
distribution of the programs and your activities under this agreement. You agree
to cooperate with Oracle's audit and provide reasonable assistance and access to
information, including but not limited to relevant books, records, agreements,
servers, technical personnel, and royalty reporting systems. You agree to pay
within 30 days of written notification any underpaid fees. If you do not pay,
Oracle can end your technical support, licenses and this agreement or may choose
not to accept your application to renew this agreement at such time of renewal.
Upon Oracle's reasonable request, you agree to audit end user(s) and report the
findings to Oracle, or assign your right to audit end user(s) to Oracle.
If you have a dispute with Oracle or if you wish to provide a notice under the
Indemnification section of this agreement, or if you become subject to
insolvency proceedings, you will promptly send written notice to: Oracle
Corporation, 000 Xxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx Xxxxxx, 00000,
Attention: General Counsel, Legal Department.
You may not assign this agreement or give or transfer the programs and/or any
services ordered or an interest in them to another individual or entity. If you
grant a security interest in the programs and/or any services, the secured party
has no right to use or transfer the programs and/or any services.
Except for actions for nonpayment or breach of Oracle's proprietary rights in
the programs, no action, regardless of form, arising out of or relating to this
agreement may be brought by either party more than two years after the cause of
action has accrued.
The Uniform Computer Information Transactions Act does not apply to this
agreement or any order hereunder.
License Definitions and Rules
Your use and distribution of the programs is subject to the license definitions
and rules, which are incorporated in this agreement, and which are available at
xxxx://xxxxxxx.xxxxxx.xxx (you must log in, select the Home tab, and select the
Manage Your Membership
Page 8 of 11
portlet). These license definitions and rules are subject to change, and may
contain additional terms regarding the licensing metrics and other rules
applicable to the programs but do not modify the terms applicable to your right
to distribute the programs.
The effective date of this Agreement shall be August 1, 2003
PARTNER NAME: SCT Corporation ORACLE CORPORATION
PARTNER ADDRESS:______________
______________
PARTNER FAX NO.:______________
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- -----------------------
Name: Xxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Executive VP Title: Sr. Contracts Manager
Page 9 of 11
AMENDMENT ONE
to the
ORACLE PARTNERNETWORK
FULL USE PROGRAM DISTRIBUTION AGREEMENT
between
SCT CORPORATION
AND
ORACLE CORPORATION
This document ("Amendment One") amends the Oracle PartnerNetwork Full Use
Program Distribution Agreement between SCT Corporation ("You" or "Your") and
Oracle Corporation ("Oracle") and any and all amendments thereto (the
"Agreement").
1. Definitions: Delete the first sentence in this section and replace with
the following: "You" and "your" refer to the company that has entered
into this agreement with Oracle Corporation ("Oracle") to distribute
Oracle's programs with the value added package and your majority owned
subsidiaries. You warrant that you have the authority to bind your
majority owned subsidiaries to the terms of this agreement and any
applicable ordering document and further warrant that you shall be
responsible for a breach of such terms by your majority owned
subsidiaries.
2. Trial Licenses: In the third and fourth sentences of this section
replace "30" with "90" (three replacements).
3. License Agreement: In the fifth paragraph, delete the second sentence
in its entirety and replace with the following: You agree to either
enforce the terms of an end user license agreement between you and an
end user or you have the option to assign the right to enforce such
agreement to Oracle or its designee.
4. Trial Programs: In the second, third, and fourth sentences replace "30"
with "90" (3 replacements).
5. Term and End of Agreement:
Delete the first sentence of this section and replace with the
following: "This agreement shall begin on the date specified in
Oracle's acceptance confirmation and continue in effect for two (2)
years thereafter; provided, however, that Oracle may terminate this
agreement, after the first year, for any reason at any time upon 30
days written notice to you."
Delete at the beginning of the third sentence of this section, the
words, "Each year", and replace with the following, "At the end of the
two (2) year term,".
6. Fees and Taxes: Insert the following after the sixth sentence in the
first paragraph of this section: "Notwithstanding the foregoing, you
shall have the right to distribute the Oracle Program, iPayment, at a
fee equal to 25% of the applicable list license fee based on the Oracle
global price list in effect at the time you issue a quote. "
Page 10 of 11
7. Other:
Delete the first paragraph in this section and replace with the
following: "This agreement is governed by the substantive and
procedural laws of Pennsylvania."
Delete the second sentence of the second paragraph in this section in
its entirety and replace with the following: "Upon 45 days written
notice, Oracle may audit your use and distribution of the programs and
your activities under this agreement, not more than once annually. Any
such audit shall be conducted during regular business hours at your
offices and shall not unreasonably interfere with your business
activities."
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 August 1, 2003.
SCT CORPORATION ORACLE CORPORATION
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- -------------------------
Name: Xxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Executive VP Title: Sr. Contracts Manager
Page 11 of 11
