1
Exhibit 10.8.1
ORACLE
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and services agreement (the "Agreement" is between Oracle
Corporation with the principal place of business at 000 Xxxxxx xxxxxxx, Xxxxxxx
Xxxx, Xxxxxxxxxx 00000 ("Oracle") and NEW YORK MERCANTILE EXCHANGE with the
principal place of business at 00 XXXXXXXXX XXXXXX 00XX XXX, XXXXXX XXXXXX, XX
00000 ("Customer").
The forms 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 to be provided.
I.DEFINITIONS
1.1 "Program" shall mean the computer software in object code form owned or
distributed by Oracle for which Customer is granted a license pursuant to
this Agreement the media the user guides and manuals for Use of the
software ("Documentation") and Updates.
1.2 "Order Form" shall mean the document by which Customer orders Program
license and services, and which is agreed to buy the parties. The Order
Form shall reference the Effective Date of this Agreement.
1.3 "Price List" shall mean Oracle's applicable standard commercial fee schedule
that is in effect when a Program license or any other product or service is
ordered by Customer.
1.4 "Designation System" shall mean the computer hardware and operating system
designated on the relevant Order Form.
1.5 "Supported Program License" shall mean a Program license for which Customer
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.
1.6 "Commencement Date" shall mean the date on which the Programs are delivered
by Oracle to Customer, or if no delivery is necessary, the Effective Date
set forth on the relevant Order Form.
1.7 "Update" shall mean a subsequent release of the Program which is generally
made available for Supported Program Licenses at no additional charge
other than media and handling charges. Updates shall not include any
release, option or future product which Oracle license separately.
1.8 "User" unless otherwise specified on the Order Form shall mean an individual
authorized by Customer to were specified Programs, regardless of whether
the individual is actively using the Programs at any given time.
1.9 "Application Program" shall be program designated as application software
by Oracle.
1.10 "Limited Production Program" shall be a Program which does not appear on
the Price list on which is designated as Limited Production by Oracle.
II. PROGRAM LICENSE
2.1 Rights Granted
A. Oracle grant to Customer a nonexclusive license to uses the Programs
Customer obtains under this Agreement, as follows:
I. to use the Programs solely for Customer's own internal data operations 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
(if any), Customer may not relicense the Programs or use the Programs for
third-party training, commercial time-sharing, rental or service bureau use;
II. to use the Documentation provided with the Programs in support or
Customer's authorized use of the Programs;
III. 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 and
IV. to modify the Programs and combine them with other software products.
Customer shall not copy or use the Programs (including the Documentation) except
or otherwise specified in this Agreement or an Order Form, Customer shall have
the right to allow Customer's third party agents ("Agents") to use the Programs
for Customer's internal use purposes so long as Customer ensures that Agents use
the Programs in accordance with the terms of this Agreement.
B. Customer agrees not to cause or permit the reverse engineering,
disassembly or decompiletion of the Programs.
C. Oracle shall retain all title, copyright and other proprietary rights in
the Programs. Customer does not acquire any rights, express or implied, in
the Programs, other than those specified in this Agreement.
2
D. To use a Program specified on a Order Form ("ordered Program"). Customer
may need to use an ancillary Program embedded in or delivered with the
ordered Program. The ancillary Program may be used only as described in the
Order Form or Documentation for implementation of the ordered Programs and
for no other purposes. Customer shall have no right to use any other
software program that may be delivered with ordered Programs.
E. As an accommodation to Customer, Oracle may supply Customer with
pre-production release or Programs (which may be labeled "Alpha or Beta").
These products are not suitable for production use.
2.2 Acceptance of Program
For each Program license for which delivery is required under this Agreement,
Customer shall have a 15 day "Acceptance Period" beginning on the Commencement
Date. During the Acceptance Period, Customer may cancel the license by giving
written notice to Oracle and returning the Program in accordance with Section
4.5. Unless such cancellation notice is given, the license will be deemed
accepted by Customer at the end of the Acceptance Period. If Customer is granted
a right-to-copy license, subsequent copies shall be deemed accepted upon
acceptance of the master copy.
2.3 Transfer and Assignment
A. Customer may transfer a Program license within the 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.
B. Customer may not assign this Agreement to a third party (i.e., a legal
entity separate from Customer) without the price written consent of Oracle,
Oracle shall not unreasonably withhold such consent.
2.4 Verification
At Oracle's written request, not more frequently than annually, Customer shall
furnish Oracle with a signed certification (a) verify that the Programs are
being used pursuant to the provisions of this Agreement, including any User and
other limitation and (b) listing the locations, types and serial number of the
Designated Systems on which the Programs are run.
Oracle may, at no expense, audit Customer's use of the Program. Any such audit
shall be conducted during regular business hours at Customer's facilities and
shall not unreasonably interfere with Customer's business activities. If an
audit reveals that Customer has underpaid fees to Oracle, Customer 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 5% of the license fees
paid. Then Customer shall also pay Oracle's reasonable costs of conducting the
audit, Audits shall be conducted no more than once annually.
III. TECHNICAL SERVICES
3.1 Technical Support Services
Technical Support services ordered by Customer will be provided under Oracle's
Technical Support policies in effect on the date Technical Support is ordered,
subject to the payment by Customer of the applicable fees. Reinstatement of
licensed Technical Support service is subject to Oracle's Technical Support
reinstatement fees in effect on the date Technical Support is re-ordered.
Customer may obtain Technical Support services for Limited Production Programs
and pre-production release of Programs on a time and materials basis.
3.2 Consulting and Training Services
Oracle will provide consulting and training services agreed to by the parties
under the terms of this Agreement. All consulting services shall be billed on a
time and materials basis unless the parties expressly agree otherwise in
writing. Any consulting services acquired from Oracle shall be bid separately
from the Program licenses, and Customer may acquire either Program licenses or
consulting services without acquiring the other.
3.3 Incidental Expenses
For any on-site services requested by Customer, Customer shall reimburse Oracle
for actual, reasonable travel and out-of-pocket expenses incurred.
IV. TERM AND TERMINATION
4.1 Term
If not otherwise specified on the Order Form, each Program license granted under
this agreement shall remain in affects perpetually unless the license or this
Agreement is terminated as provided in Section 4.2 or 4.3.
4.2 Termination by Customer
Customer may terminate any Program license at any time; however, termination
shall not relieve Customer's obligations specified in Section 4.4.
4.3 Termination of Oracle
Oracle may terminate this Agreement or any license upon written notice if
Customer breaches this Agreement and fails to correct the breach within 30 days
following written notice specifying the breach.
4.4 Effect of Termination
Termination of this Agreement or any license shall not limit wither party from
pursuing other remedies available to it, including injunction relief, nor shall
such termination relieve Customer's obligation to pay all fees that have accrued
or are otherwise owed by Customer under any Order Form or other similar ordering
document under this Agreement. The parties rights and obligations under Section
2.1.B, 2.1.C, 2.1.D, and 2.3.B and Articles IV,V,VI and VII shall survive
termination of this Agreement.
3
VII. GENERAL TERMS
7.1 Nondisclosure
By virtue of this Agreement, the parties may have access to information that
is confidential to one another ("Confidential Information"). Confidential
Information shall be limited to the Programs, the terms and pricing under this
Agreement, and all information clearly identified as confidential.
A party's Confidential Information shall not include information that: (a) is or
become 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 disclosure; or (d) is independently developed by
the other party. Customer shall not disclose the results of any benchmark tests
of the Programs to any third party without Oracle's prior written approval.
The parties agree to hold each other's Confidential Information in confidence
during the terms of this Agreement and for a period of two years after
termination of this Agreement. The parties agree, that unless required by law,
not to make each others Confidential Information available in any form to any
third party or to use each other's Confidential Information 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 the employee or agents in violation of the terms of this
Agreement.
7.2 Governing Law
This Agreement, and all matters arising out of or relating to this Agreement
shall be governed by the law of the State of California, and shall be deemed to
be executed in Redwood City, California.
7.3 Jurisdiction
Any legal action or proceeding relating to this Agreement shall be instituted in
a state or federal court in San Francisco or San Metao County, California.
Oracle and Customer agree to submit to the jurisdiction of, and agree that venue
is proper in, these courts in any such legal action or proceeding.
7.4 Notice
All notices, including notices of address change, required to be sent hereunder
shall be in writing and shall be deemed to have been giver when mailed by first
class mail to the first address listed in the relevant Order Form (if to
Customer) or to the Oracle address on the Order Form (if to Oracle).
To expedite order processing, Customer agrees that Oracle may treat documents
faxed by Customer to Oracle as original documents; nevertheless, either party
may require the other to exchange original signed documents.
7.5 Limitations of Liability
In no event shall either party be liable for any indirect, incidental, special
or consequential damages, or damages for lose of profits, revenue, data or use,
incurred by either party or any third party, whether in an action in contract or
tort, even if the other party has been advised of the possibility of such
damages. Oracle's liability for damages hereunder shall in no event exceed the
amount of fees paid by Customer under this Agreement, and if such damages result
from Customer'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,
presented over a five-year term from the Commencement Date of the applicable
license or the date of performances of the applicable services.
The provisions of this Agreement allocate the risks between Oracle and Customer.
Oracle's pricing reflects this allocation of risk and the limitation of
liability specified herein.
7.6 Severability
In the event any provision of this Agreement is held to be invalid or
unforeseeable, the remaining provisions of this Agreement will remain in full
force.
7.7 Waiver
The waiver by either party of any default or breach of this Agreement shall not
constitute a waiver of any other or subsequent default or breach. Except for
actions for nonpayment or breach of Oracle's proprietary rights in the Programs,
no action, regardless of form, arising out of this Agreement may be brought by
either party more than one year after the cause of action has accrued.
7.8 Export Administration
Customer agrees to comply fully with all relevant export laws and regulations of
the United States ("Export Laws") to assure that neither the Programs nor any
direct product thereof are (1) exported, directly or indirectly, in violation of
Export Laws or (2) are intended to be used for any purposes prohibited by the
Export Laws, including, without limitation, nuclear, chemical, or biological
weapons production.
7.9 Relationship Between the Parties
Oracle is an independent contractor nothing in this Agreement shall be construed
to create a partnership, joint venture or agency relationship between the
parties.
4
7.10 Entire Agreement
This Agreement constitutes the complete agreement between the parties and
supercedes 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, the other act document usage or custom shall be
deemed to amend or modify this Agreement.
It is expressly agreed that the terms of this Agreement and any Order Form
shall supercede the terms in any Customer purchase order or other ordering
document. This Agreement shall also supercede the terms of any relationship or
break-the-seal license Agreement included in any package for Oracle-furnished
software except terms consulting in such license agreement that grant specific
use rights for the Programs
The Effective Date of this Agreement shall be 1-6-95
Executed by NEW YORK MERCANTILE EXCHANGE D P Executed by ORACLE CORPORATION
Signature /S/ Xxxx Xxxxxxx Signature: /S/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxxxxx
Title: Exec. V.P. Title: Manager, Sales Support
Oracle
Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxxxxxx xxxxxx, XX 00000
(000) 000-0000
Oracle is a registered trademark of Oracle Corporation
5
AMENDMENT ONE
to the
SOFTWARE LICENSE AND SERVICES AGREEMENT
between
NEW YORK MERCANTILE EXCHANGE
and
ORACLE CORPORATION
This document is an Amendment to the Software License and Services Agreement
between New York Mercantile Exchange ("Client") and Oracle Corporation
("Oracle") dated January 6 1995 ("SLSA") which shall be amended, as of the
Effective Date below, as follows:
1. The following shall be inserted at the end of section 3.3: "Customer may
request receipts or documentation for such our of pocket expenses."
2. Section 7.2 of the Agreement shall be deleted in its entirety.
3. Section 7.3 of the Agreement shall be deleted in its entirety.
4. In the first sentence of the first paragraph of Section 7.4 of the
Agreement, delete "first class mail" and replace with "certified or
registered mail or express courier".
Other than the changes specified above, the terms and conditions of the Software
License and Services Agreement shall remain in full force and effect.
The Effective Date of this Amendment One is Jan. 6 1995.
NEW YORK MERCANTILE EXCHANGE ORACLE CORPORATION
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxxxx
----------------------------- -----------------------------
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxxxxx
--------------------------- ---------------------------
Title: Exec V.P. Title: Manager, Sales Support
-------------------------- --------------------------
