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EXHIBIT 10.28
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. Sections 200.80(b)(4), 200.83
and 230.406.
[ORACLE LOGO]
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement ("Agreement") is between Oracle
Corporation ("Oracle") and the Customer identified below. The terms of this
Agreement shall apply to each Program license granted and to all services
provided by Oracle under this Agreement, which will be identified on one or
more Order Forms.
1. DEFINITIONS
1.1. "PROGRAM" means the software in object code form distributed by Oracle
for which Customer is granted a license pursuant to this Agreement, and the
media, Documentation and Updates therefor.
1.2. "DOCUMENTATION" means the user guides and manuals for installation and
use of the Program software. Documentation is provided in CD-ROM or bound form,
whichever is generally available.
1.3. "UPDATE" means a subsequent release of the Program which Oracle generally
makes available for Program licenses at no additional license fee other than
media and handling charges, provided Customer has ordered Technical Support for
such licenses for the relevant time period. Update shall not include any
release, option or future product which Oracle licenses separately.
1.4. "ORDER FORM" means the document in hard copy or electronic form by which
Customer orders Program licenses and services, and which is agreed to by the
parties. The Order Form shall reference the Effective Date of this Agreement.
1.5. "DESIGNATED SYSTEM" means the computer hardware and operating system
designated on the relevant Order Form.
1.6. "TECHNICAL SUPPORT" means Program support provided under Oracle's
policies in effect on the date Technical Support is ordered.
1.7. "COMMENCEMENT DATE" means 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.
II. PROGRAM LICENSE
2.1. RIGHTS GRANTED
A. Oracle grants to Customer a nonexclusive license to use the
Programs specified on an Order Form under this Agreement, as
follows:
i. to use the Programs solely for Customer's operations on the
Designated System or on a backup system if the Designated
System is inoperative, consistent with the use limitations
specified or referenced in this Agreement, an Order Form, or
the Documentation. Customer may not relicense, rent or lease
the Programs or use the Programs for third-party training,
commercial time-sharing or service bureau use;
ii. to use the Documentation provided with the Programs in
support of Customer's authorized use of the Programs;
iii. to copy the Programs for archival or backup purposes, and to
make a sufficient number of copies for the use specified in
the Order Form. All titles, trademarks, and copyright and
restricted rights notices shall be reproduced in such copies;
iv. to modify the Programs and combine them with other software
products; and
v. to allow third parties to use the Programs for Customer's
operations so long as Customer ensures that use of the
Programs is in accordance with the terms of this Agreement.
Customer shall not copy or use the Programs (including the
Documentation) except as specified in this Agreement or an Order
Form. Customer shall have no right to use any other software
program that may be delivered with ordered Programs.
B. Customer agrees not to cause or permit the reverse engineering,
disassembly or decompilation of the Programs, except to the extent
required to obtain interoperability with other independently
created software or as specified by law.
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.
2.2. TRANSFER AND ASSIGNMENT
A. Customer may transfer a Program 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.
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B. Customer may not assign this Agreement or transfer a Program
License to a legal entity separate from Customer without the prior
written consent of Oracle. Oracle shall not unreasonably withhold
or delay such consent.
2.3. VERIFICATION
At Oracle's written request, not more frequently than annually, Customer
shall furnish Oracle with a signed certification verifying that the
Programs are being used pursuant to the provisions of this Agreement and
applicable Order Forms.
Oracle may audit Customer's use of the Programs. 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. 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.
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.
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, this Agreement and each
Program license granted under this Agreement shall continue perpetually
unless terminated under this Article IV.
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 BY ORACLE
Oracle may terminate this Agreement or any license upon written notice if
Customer materially 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 either party
from pursuing other remedies available to it, including injunctive
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. The parties' rights and obligations under Sections 2.1.B,
2.1.C, and 2.2.B, and Articles IV, V, VI and VII shall survive
termination of this Agreement. Upon termination, Customer shall cease
using, and shall return or destroy, all copies of the applicable Programs.
V. INDEMNITY, WARRANTIES, REMEDIES
5.1. INFRINGEMENT INDEMNITY
Oracle will defend and indemnify Customer against a claim that the Programs
infringe a copyright or patent or other intellectual property right,
provided that: (a) Customer 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) Customer provides Oracle with the
assistance, information and authority necessary to perform Oracle's
obligations under this Section. Oracle will reimburse Customer's reasonable
out-of-pocket expenses incurred in providing such assistance. 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 Customer.
If 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; or (b) obtain for Customer a license to continue using the
Programs. If it is not commercially reasonable to perform either of the
above options, then Oracle may terminate the license for the infringing
Programs and refund the license fees paid for those Programs. This Section
5.1 states Oracle's entire liability and Customer's exclusive remedy for
infringement.
5.2. WARRANTIES AND DISCLAIMERS
A. Program Warranty
Oracle warrants for a period of one year from the Commencement Date
that each unmodified Program license will perform the functions
described in the Documentation.
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. Services Warranty
Oracle warrants that its Technical Support, training and consulting
services will be performed consistent with generally accepted
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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.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL OPERATE IN
COMBINATIONS OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT
THE OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED OR
ERROR-FREE. PRE-PRODUCTION RELEASES OF PROGRAMS AND
COMPUTER-BASED TRAINING PRODUCTS ARE DISTRIBUTED "AS IS."
5.3. EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 5.2, Customer's
exclusive remedy, and Oracle's entire liability, shall be:
A. For Programs
The correction of Program errors that cause breach of the
warranty, or if Oracle is unable to make the Program operate as
warranted, Customer shall be entitled to terminate the Program
license and 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, Customer shall be entitled to
recover the fees paid to Oracle for the unsatisfactory services.
VI. PAYMENT PROVISIONS
6.1. INVOICING AND PAYMENT
All fees shall be due and payable 30 days from the invoice date. Any
amounts payable by Customer 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. Customer agrees to pay
applicable media and shipping charges. Customer shall issue a purchase
order, or alternative document acceptable to Oracle, on or before the
Effective Date of the applicable Order Form.
6.2. TAXES
The fees listed in this Agreement do not include taxes, if Oracle is
required to pay sales, use, property, value-added or other taxes
based on the licenses or services granted in this Agreement or on
Customer's use of Programs or services, then such taxes shall be
billed to and paid by Customer. This Section shall not apply to taxes
based on Oracle's income.
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 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 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 term of this Agreement and for a period of two
years after termination of this Agreement. 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.
7.2. GOVERNING LAW
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the laws of the State of 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 Mateo
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 given
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,
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either party may require the other to exchange original signed
documents.
7.5. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS 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 [**] 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.
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
If any provision of this Agreement is held to be invalid or
unenforceable, 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 two years 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 proliferation.
7.9. 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.
It is expressly agreed that the terms of this Agreement and any Order
Form shall supersede the terms in any Customer purchase order or
other ordering document. This Agreement shall also supersede all
terms of any unsigned or "shrinkwrap" license included in any
package, media, or electronic version of Oracle-furnished software
and any such software shall be licensed under the terms of this
Agreement, provided that the use limitations contained in an unsigned
ordering document shall be effective for the specified licenses.
The Effective Date of this Agreement shall be October 6, 1997.
EXECUTED BY CUSTOMER: General Magic. EXECUTED BY ORACLE CORPORATION:
Authorized Signature /s/ XXXXX XXXXXX Authorized Signature /s/ XXXX XXXXXX
----------------- ------------------------
Name: XXXXX XXXXXX Name: XXXX XXXXXX
--------------------------------- ----------------------------------------
Title: VP/General Manager Title: MANAGER, SALES SUPPORT
-------------------------------- ---------------------------------------
Address: 000 X. Xxxx Xxxxxx Address: 000 Xxxxxx Xxxxxxx, Xxxxxxx Xxxx, XX
Xxxxxxxxx, XX 00000
------------------------------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
[ORACLE LOGO]
Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxx, XX 00000
(000) 000-0000
Oracle is a registered trademark of Oracle Corporation
13006-103196
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[ORACLE LOGO] QUOTE Quote#: 169722
Page: 1 of 2
Effective Date: 13-AUG-97
Customer: GENERAL MAGIC CORPORATION
Location: 000 XXXXX XXXX XXXXXX
XXXXXXXXX, XX 00000
Contact: XXXXXX XXXXXX
Phone: 000-000-0000 Fax: 000-000-0000
End User: GENERAL MAGIC CORPORATION
000 XXXXX XXXX XXXXXX
XXXXXXXXX, XX 00000
Contact: XXXXXX XXXXXX
================================================================================
ORACLE CONTRACT INFORMATION
[O] Agreement *** SLSA Attached *** Effective Date:
DESIGNATED SYSTEM
Make/Model: MS / WINDOWS NT-PC COMPATIBLE Media Type: CD
Operating System: WINDOWS NT CSI Number:
Qty License Quantity &
Shipped Level Programs License Type
--------------------------------------------------------------------------------
1 Full Use Oracle Interoffice Message [**]
Cartridge (CTRL HOLD)
1 App. Spec. Deploy. Oracle Enterprise Manager [**]
Performance Pack
1 App. Spec. Deploy. Oracle Server-Enterprise Edition [**]
1 App. Spec. Deploy. Parallel Server Option [**]
Initial 1 Year Silver Annual Technical Support
Total License Fee Due: [**]
Total Technical Support Fee Due: [**]
Total Additional Fees Due:
==============
Total Fees Due: [**] US
For purposes of this Order Form, Customer Application is defined as General
Magic's voice accessible network service.
MISCELLANEOUS
Oracle shall deliver to the Customer Location, for use in the United States, the
number of copies specified above of the software media and Documentation (CD-ROM
or bound, whichever is generally available) ("Master Copy") for each Program
currently available in production release as of the Effective Date for use on
the Designated Systems. Customer shall have the right to make up to 1 copy of
the Program(s), including Documentation, for each license of the Program(s) and
Customer shall be responsible for installation of the software. All fees due
under this Order Form shall be due and payable net 30 days from date of invoice,
and shall be noncancelable and the sums paid nonrefundable. Customer agrees to
pay applicable sales/use tax, media and shipping charges. The following shipping
terms shall apply: FOB Destination, Prepaid and Add. These terms shall also
apply to any options exercised by Customer. If Customer loses or damages the
media containing a Program licensed hereunder, upon Customer's written notice
Oracle will provide a replacement copy thereof, under Oracle's then-current
Technical Support policies, for a media and shipping charge.
TECHNICAL SUPPORT
Annual Technical Support services ordered by Customer will be provided under
Oracle's Technical Support policies and pricing in effect on the date Technical
Support is ordered and shall be effective upon shipment (or upon Order Form
Effective Date for products not requiring shipment); first year Technical
Support is quoted above, if ordered. Fees for Technical Support are due and
payable annually in advance.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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[ORACLE LOGO] QUOTE Quote #: 169722
Page: 2 of 2
Effective Date: 13-AUG-97
Customer GENERAL MAGIC CORPORATION
Thank you for your interest in Oracle. If you have any questions please
contact Xxxxxx Xxxxx, your Oracle Sales Representative, at (000) 000-0000.
Customer and Oracle agree that the terms and pricing of this Quote shall
not be disclosed without prior written consent of the other party.
This Quote is valid through September 19, 1997 and shall become binding
upon execution by Customer and acceptance by Oracle.
This Quote includes the Price List Definitions attachment.
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Page 1 of 3
ATTACHMENT
to
QUOTE #169722
between
GENERAL MAGIC CORPORATION
and
ORACLE CORPORATION
Notwithstanding anything to the contrary on the Quote specified above, the
following changes are made to this Order Form as of its Effective Date.
1. Delete the fourth sentence of the MISCELLANEOUS section and replace with
the following:
"Customer agrees to pay applicable sales/use tax and media charges."
2. CUSTOMER
For purposes of this Order Form, Customer shall be defined as Customer and
Customer's majority owned subsidiaries located in the U.S. as of the
Effective Date. Before accessing the Programs, each subsidiary must agree
in writing to be bound by the terms of the Agreement and this Order Form.
3. TECHNICAL SUPPORT CAP
For up to 3 years from the end of the Technical Support period specified
under this Order Form, Customer may acquire Silver Technical Support
services for all the Programs licensed in the U.S. under this Order Form
(except for licenses that are modified or are added to this Order Form
after the Effective Date), for an annual fee not to increase each year by
more than [**] of the Technical Support fee paid by Customer for similar
Technical Support services in the preceding year (excluding any Support
fee reduction issued for terminated licenses), provided Customer
continuously maintains Technical Support services during such period.
Thereafter, Customer may obtain annual Technical Support services from
Oracle under Oracle's Technical Support fees and policies in effect when
such services are ordered.
4. ADDITIONAL LICENSE INCREMENTS
For 1 year from the Effective Date, provided Customer has continuously
maintained Technical Support, Customer may increase the quantity of each
applicable License Type accessing the Programs on the Order Form
("Additional License Increment") by paying Oracle the additional license
fee as specified below:
License Fee per
License each Additional
Program License Type License Level Increment License Increment
------- ------------ ------------- --------- -----------------
Oracle Server-Enterprise Edition Processor App. Spec. Deploy. 1 $[**]
Parallel Server Option Processor App. Spec. Deploy. 1 $[**]
Oracle Enterprise Manager Processor App. Spec. Deploy. 1 $[**]
Performance Pack
Oracle Interoffice Processor Full Use 1 $[**]
Message Cartridge
Each order placed for an Additional License Increment must be at least
[**] in net license fees; applicable sales tax will be added to the
fee. All applicable fees shall be due and payable on the date that
Customer notifies Oracle in writing of its exercise of this option; Oracle
has no shipment
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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obligation. Upon election, this payment obligation is noncancellable, and
the sum paid is nonrefundable. At the time of election, Customer may
obtain Technical Support services from Oracle for Additional License
Increment at Oracle's applicable Technical Support fees and policies in
effect when such services are ordered.
5. ORDERING OPTION
Customer may exercise options under this Order Form by providing
Oracle with a Purchase Order which references: (i) the addition of such
license to the Order Form; (ii) the Effective Date of the Order Form;
(iii) the Program(s), License Level(s), Quantity, License Type(s); and
(iv) the Designated System(s) types or CSI number.
6. ADDITIONAL PROGRAMS
It is the current intention of the parties to negotiate license fees for
the addition of future Programs to this Order Form if and when such
Programs are available in production release for installation on the
Designated Systems types and such Programs are listed on Oracle's U.S.
Price List, provided Customer is current at such time on its Technical
Support payments. Such future Programs are not currently available.
Customer has not relied on potential availability in entering into the
payment obligations in this Order Form. Oracle is under no obligation to
change current availability.
7. USE OF ORACLE PROGRAMS BY THIRD PARTIES
A. Subscriber Use
Customer shall have the non-exclusive, non-transferable right to allow
subscribers to Customer's Personal Assistant Service which are based
primarily in the United States ("Subscribers") to access and use the
Oracle Programs acquired under this Order Form installed on Customer's
Designated Systems for each such Subscriber's internal data processing use
subject to the terms of this Section and the Agreement. If a Subscriber
travels outside the United States, the Subscriber may access a Program(s),
installed on Designated System(s) types in the U.S., subject to U.S.
export laws and this Order Form.
Subscriber's access to such Programs shall be available only in
conjunction with the use of the Customer's Personal Assistant Service
application program, and the Subscribers shall not use the Programs
outside the scope of such application program. Each Subscriber under this
Order Form shall have the right to access the Oracle Programs, either
remotely through a modem or directly at the location of the applicable
processor on which Customer has installed the applicable Programs. In no
event shall Customer have the right to sublicense or distribute any
Programs, except as set forth herein.
B. Agreement
Customer shall ensure that the Subscribers' use of the Programs is in
accordance with the terms of the Agreement. Customer agrees to defend and
indemnify Oracle and hold Oracle harmless from all claims, losses,
liabilities, and settlement costs resulting from any claims brought
against or incurred by Oracle arising from any use of the Programs by
Subscribers.
C. Technical Support
Customer is responsible for providing all technical support, training and
consultation to its Subscribers. Any questions from Customer's Subscribers
will be referred by Oracle to Customer.
D. Usage
Customer shall not grant Subscribers access to more Processors of the
Programs than the maximum number of Processors of such Programs licensed
under this Order Form.
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8. HOT BACK-UP
With respect to each of the Program licenses ordered under the Order Form,
Customer shall have the right to install and use such Programs on a backup
computer of the same make and model as the Designated System type for the
purpose of temporary disaster recovery and testing. Customer shall have
the right to maintain a "hot" or "live" copy of the Programs on such
backup computer at all times for immediate production use only in the case
of a primary computer malfunction that renders the Programs inoperable on
the applicable Designated System type. At no time shall Customer have the
right to use the Programs on the Designated System type and the backup
computer simultaneously.
9. PAYMENT
The Customer's payment obligations to Oracle under this Order Form as of
the Effective Date shall be satisfied by Millennia Vision Corporation
("Payor") as authorized pursuant to a distribution agreement executed
between Payor and Oracle ("Payor Agreement"). Oracle shall receive
payments directly from Payor under the terms of the Payor Agreement. This
payment obligation is noncancellable and the sum paid is nonrefundable.
The financial obligations of Customer to Payor shall be specified in a
separate agreement. Licenses that are modified or added to this Order Form
after the Effective Date shall be at terms and fees as determined when
such licenses are acquired. Applicable sales tax shall be charged to Payor
based on the point of delivery of the Master Copy and paid under the terms
of the Payor Agreement. Payor is responsible for payment of any use or
other tax arising from use of the Programs in any other location.
--------------------------------------------------------------------------------
Customer, Oracle and Payor agree that the terms in this Order Form shall not be
disclosed without prior written consent of the other party. This quote is valid
through October 3, 1997 and shall become binding upon execution by Customer and
Payor and acceptance by Oracle.
GENERAL MAGIC CORPORATION MILLENNIA VISION CORPORATION
Signature: /s/ XXXXX XXXXXX Signature: /s/ XXXXXX XXXXXX
------------------------------ -------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxx Xxxxxx
----------------------------------- ------------------------------
Title: Vice President & General Manager Title: President
Products - Network Solutions -----------------------------
---------------------------------
ORACLE CORPORATION
Signature: /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
-----------------------------------
Title: MANAGER, SALES SUPPORT
----------------------------------
Effective Date: October 6, 1997
-------------------------
--------------------------------------------------------------------------------
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[ORACLE LOGO]
JULY 1, 1997 PRICE LIST DEFINITIONS
"Concurrent Devices": the maximum number of input devices accessing the Programs
at any given point in time. If multiplexing software or hardware (e.g., a TP
Monitor, webserver product) is used, this number must be measured at the
multiplexing front-end.
"Named User" or "Developer": is defined as an individual who is authorized by
Customer to use the Oracle Programs, regardless of whether the individual is
actively using Programs at any given time.
"Mailbox" is defined as a point from which to send or receive electronic mail.
It is created when a user account or application is created in Oracle Office.
"Computer": licensed for use on a single specified computer.
"Processor": shall be defined as the actual number of processors installed in
the licensed Computer and running the Oracle Programs, regardless of the number
of processors which the Computer is capable of running.
"Client": a computer which (1) is used by only one person at a time, and (2)
executes Oracle software in local memory or stores the software on a local
storage device.
"Full Use Programs" are unaltered versions of the Programs with all functions
intact.
"Deployment Programs" may be used only to execute existing applications or
reports. They may not be used to build or modify reports or applications.
Deployment Programs are to be generated by Customer from Full Use Programs.
"Application Specific Deployment Program(s)" are limited to use solely for the
purpose of running the Customer Application designated on the Order Form, and
may not be used to create or alter tables or reports except as necessary for
operating the Customer Application. Customer Application shall be defined in
the attached Order Form if applicable. Application Specific Deployment Programs
are to be generated by Customer from Full Use Programs.
--Program: Full Use licenses of Programs marked with the symbol "[tilde]" also
include an unlimited number of Deployment licenses for the Programs as
specified in the Documentation.
"Web Specific Program(s)" shall mean Program licenses which may only be accessed
by Clients via Internet networking protocols. Notwithstanding any use
restrictions in the Agreement or Oracle Program License Terms, Customer's
applications may only allow third party web access to a licensed Web Specific
Program for viewing, querying, or adding data only, so long as such use is in
accordance with the other terms of the Agreement.
For Oracle Human Resources, Oracle Payroll and Oracle Time Management the
number of "Employees" is the number of active Customer employee records.
For Oracle Personal Time and Expense, the number of "Employees" is the total
number of people authorized to enter time and expense records.
For Oracle Sales Compensation, the number of "Employees" is the total number of
Customer's employees or agents whose compensation, in whatever form, is
calculated or monitored using Oracle Sales Compensation.
For Oracle Training Administration, the number of "Employees" is the total
number of students receiving training courses supplied by the Customer.
"Foundation Services": This is limited support, and any license for which it is
purchased is not a Supported Program License.
A "Training Unit" entitles Customer to acquire one day of instruction for one
Customer employee at an Oracle Education Center in the U.S., exclusive of
expenses. Eight Training Units may be used to acquire one day of instruction
for up to 15 Customer employees, at a Customer site in the U.S., exclusive of
expenses. Training Units are valid for one year from the Effective Date of the
Order Form on which they are ordered.
"Organizational Change Management Services" are services for assisting
Customer's in managing change in their organizations. Customer's discounts for
consulting or training do not apply to such Organization Change Management
Services.
A "Suite" consists of all of the functional software components described in
the Documentation.
