EXHIBIT 10.17
ORACLE
ENABLING THE INFORMATION AGE
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.
I. 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 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.
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 SUPPORT 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 or 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 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 [***] from the invoice
date. Any amounts payable by
Confidential treatment has been requested for the bracketed
portions. The confidential redacted portion has been omitted and filed
separate;ly with the Securities and Exchange Commission.
Customer hereunder which remain unpaid after the due date
shall be subject to a late charge equal to [***] 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 go verned 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, 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 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.
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.
[***] Confidential treatment has been requested for the bracketed
portions. The confidential redacted portion has been omitted and filed
separate;ly with the Securities and Exchange Commission.
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 April 14, 1999.
Executed by Customer:___________________ Executed by Oracle Corporation:
Authorized Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Authorized Signature: ____________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ____________________________________
Title: President Title: ___________________________________
Address:_________________________________ Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
Oracle is a registered trademark of Oracle Corporation
13006-103196
AMENDMENT ONE
TO THE
SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN
NETZERO
AND
ORACLE CORPORATION
This document ("Amendment One") amends the Software License and Services
Agreement, dated April 14, 1999, and all amendments and addenda thereto (the
"Agreement") between NetZero ("Customer") and Oracle Corporation ("Oracle").
The parties hereby agree to amend the Agreement as follows:
1. In the last paragraph of Section 2.1.A, add the following to the end of
the last sentence "unless otherwise authorized."
2. In Section 2.1.B, add the words "knowingly or negligently" before the
word "permit" in the first sentence of such section.
3. In Section 2.1.C, add the words "or in the Order Form" at the end of such
section.
4. In the second paragraph of Section 2.3, add "Upon 30 days prior notice"
at the beginning of the first sentence.
5. In Section 3.2, add "or in the Order Form" to the end of the first
sentence of such section.
6. In Section 3.3, add the words "Unless otherwise agreed to by the parties"
at the beginning of the first sentence of such section.
7. The following Sections shall be added after 5.2.C of the Agreement:
D. Viruses and Remedy
Oracle warrants that it will use reasonable efforts using best of
breed commercially available software to test the Programs for viruses
such as works, Trojan horses, etc. ("Viruses"). Oracle will also
maintain a master copy of the appropriate versionsof the Programs, free
of Viruses. If Customer believes a Virus may be present in the delivered
Programs, then upon Customer" request, Oracle will provide a master copy
to Customer for comparison with and correction of Customer's copy of the
Programs. Any breach of this warranty is subject to the exclusive
remedies as set forth in Section 5.3 of the Agreement.
E. Millennium Warranty and Remedy
Except as otherwise agreed by the parties, Oracle warrants that the
production version of the Programs which are current on the Effective Date
of an Order Form will fully comply with the following millennium compliance
statement when configured and used according to the Documentation. The
definition of compliance is the ability to:
1. Currently handle date information before, during and after 1 January
2000, including accepting date input, providing date output and
performing calculation on dates or portions of dates or ranges of
dates;
2. Function according to the Documentation, before, during and after
1 January 2000 without changes in operation resulting from the
advent of the we century assuming correct configuration;
3. Where appropriate, respond to two digit date input in a way that
resolves the ambiguity as to century in a disclosed, defined and
predetermined manner in accordance with the Documentation;
4. Store and provide output of date information in ways that are
unambiguous as to century;
5. Manage leap years, including that leap year occurring in the year
2000, following the quad-centennial rule.
Any breach of this warranty is subject to the exclusive remedies as set forth
in Section 5.3 of the Agreement.
8. Section 5.2.D shall become Section 5.2.F.
9. In Section 5.3.A, add the word "all" after the word "recover" in the second
to last line of such section.
10. In Section 5.3.C, add the word "all" after the word "recover" in the second
to last line of such section.
11. In Section 7.1, add the words "on a confidential basis" at the end of
clause (b).
12. Insert the following at the beginning of the second sentence of Section
7.5: "Except with respect to the exclusive remedies of Section 5.1,".
13. Delete the last sentence of Section 7.9 and replace it with the following:
"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 any such unsigned ordering document shall be
effective for the specified licenses."
Subject to the modifications herein, the Agreement shall remain in full force
and effect.
The Effective Date of this Amendment One is April 14, 1999.
NETZERO ORACLE CORPORATION
Authorized Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Authorized Signature:
------------------ ------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name:
------------------ ----------------------------------
Title: President Title:
------------------ ----------------------------------
AMENDMENT TWO
TO THE
SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN
NETZERO
AND
ORACLE CORPORATION
This document ("Amendment Two") amends the Software License and Services
Agreement, dated April 19, 1999, and all amendments and addenda
thereto (the "Agreement") between NetZero ("Customer") and Oracle Corporation
("Oracle"). The parties hereby agree to amend the Agreement as follows:
Notwithstanding Section 7.1, Customer may disclose confidential information
relating to the Agreement and April 20, 1999 Order Form Agreement
to third party significant investors or potential investors, provided that
they are bound by a nondisclosure agreement which prohibits them from
disclosing such information to third parties. Customer must keep an
auditable list of confidential information recipients, and the nature of the
confidential information disclosed. Recipients of confidential information
may not be direct competitors of Oracle in the software manufacturing
business.
Subject to modifications herein, the Agreement shall remain in full force and
effect.
The effective date of this Agreement is April 20, 1999.
NETZERO ORACLE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------- -----------------
Title: Chairman, CEO Title: Assistant General Counsel
---------------- --------------------------
ORACLE
LIFECYCLE SUPPORT SERVICES ENGAGEMENT CONTRACT
CUSTOMER NAME: NETZERO, INC.
CUSTOMER CONTACT: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CUSTOMER ADDRESS: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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This Engagement Contract ("EC") shall be governed by the terms of the
Software License and Services Agreement dated April 20, 1999, (the
"Agreement") between NetZero, Inc. ("Customer") and Oracle Corporation
("Oracle"). Oracle shall provide Services acquired under this EC in the
United States only. For purposes of this EC, "Territory" shall be defined as
Customer facilities in the United States.
A. SERVICES
1. DESCRIPTION OF SERVICES
Oracle shall provide the Lifecycle Technical Support Services to
Customer as specified below pursuant to the terms of this EC.
i. INTERNET BUSINESS SOLUTION SUPPORT
Oracle Technical Support related calls shall be directed by
Customer to the Internet Business Solution Support Center staffed
by a named team of senior support analysts. The Customer shall
designate two (2) primary and two (2) backup employee(s) to serve
as the Customer technical contacts. The technical contacts shall
be the sole liaisons eligible for access to the Internet Business
Solution Support Center for technical assistance.
Oracle shall provide a private, toll-free number, for the
Customer to access the Internet Solution Support Center. The
access shall be available 24 hours a day, 7 days a week. All
calls placed during the normal business day, excluding holidays,
shall be answered by the Solutions Support team. The normal
business day shall be defined as 8:00 A.M. TO 5:00 P.M. PST. All
calls outside of this time frame shall be routed to the
After-Hours Product Support group for diagnosis and resolution;
if the call is determined to be a Severity 1 high business impact
issue, the Solution Support team shall be engaged to participate
in the diagnosis and resolution of the issue.
ii. SINGLE POINT OF SITUATION MANAGEMENT AND ESCALATION
The Internet Business Solution Support team shall act as a single
point of contact for the Customer and shall be responsible for
engaging the Oracle Bug Diagnostic & Escalation group to
facilitate the programming and resolution of the TARs through
Oracle Development if the TAR is determined to be the result of a
product defect.
iii. ORACLE SUPPORT ASSESSMENT AND REVIEW
Customer shall receive and initial assessment and review of their
operational environment for recommendations of best practices.
Oracle shall assess Customer's support infrastructure, operating
environment and internal processes in order to provide and
recommend a comprehensive support model for the Customer
inclusive of patch configuration management.
iv. PRODUCT MAINTENANCE RELEASES
The Customer shall be entitled to maintenance releases for the
Supported Program Licenses specific to the Customer's Designated
Systems.
v. PRODUCT UPDATES
The Customer shall be entitled to Updates for the Supported
Program Licenses specific to the Customer's Designated Systems.
vi. ELECTRONIC SERVICES
All electronic services including Oracle Metalink and Virtual
Support Analyst "VSA" shall be made available to the Customer.
The Solution Support team shall assist the Customer with the
initial registration of the electronic services including usage
training.
TRANSFER RIGHTS
vii. Customer shall be entitled to the right to transfer programs
pursuant to then current technical support policies.
B. FEES AND PAYMENTS
1. LIFECYCLE SUPPORT FEE SCHEDULE
For five (5) years from the Effective Date, provided Customer continuously
maintains Lifecycle Technical Support services during such period, Customer
may receive annual Lifecycle Technical Support services for all Programs
licensed in the Territory as specified in Section C.1 below. Lifecycle
Support Fees specified herein shall become due and payable annually [***]
from the date of invoice.
[***]
C. SUPPORTED PROGRAMS
1. PROGRAM SET
The Services provided in this EC shall be applicable to Customer's
current Program Licenses as listed below which have been licensed
pursuant to Order Forms and are currently under Oracle technical
Support. Except as may be otherwise provided in this EC, this EC shall
not affect the license rights granted pursuant to Customer's existing
executed Order Forms as of the Effective Date.
PROGRAMS QUANTITY LICENSE LEVEL USER TYPE
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
D. ADDITIONAL TERMS
1. RIGHTS TO DEVELOPMENTS
Oracle grants Customer or successor as defined in the SLSA agreement
dated April 20th, 1999 a perpetual, non-exclusive, non-transferable,
royalty-free, license to use anything developed by Oracle for Customer
under this EC ("Contract Property"). Oracle shall retain all
copyrights, patent rights, and other intellectual property rights to the
Contract Property.
2. SEGMENTATION
Customer acknowledges that the Services acquired hereunder were bid by
Oracle separately from any Oracle program licenses. Customer
understands that it has the right to acquire Services without acquiring
any Oracle program licenses, and that Customer has the right to acquire
the Services and any Oracle program licenses separately.
---------------------------
[***] Confidential treatment has been requested for the bracketed
portions. The confidential redacted portion has been omitted and filed
separately with the Securities and Exchange Commission.
2
3. CUSTOMER'S OBLIGATIONS
Customer acknowledges that its timely provision of and access to
Customer operations documentation, equipment, assistance, complete and
accurate information and data from its officers, agents, and employees
(collectively, "Cooperation") are essential to performance of any
Services as set forth in this EC and that Oracle shall not be liable for
any deficiency in performing Services if such deficiency results from
Customer's failure to provide full Cooperation.
4. ORACLE ASSUMPTIONS
The Description of Services and Fee(s) set forth in this Order Form are
based upon information the Customer has presented to Oracle and the
following assumptions:
- Customer shall provide a first and second line help desk to handle
all calls from the user community
- Oracle shall support the second line help desk and have named
contacts from the customer
- Customer shall provide desks and facilities for the onsite
resources
- Customer shall keep the Solution Support manager and the Solution
Support Center engineers apprised of proposed, planned and implemented
system configuration changes
- Provide regular feedback on all issues via agreed channels to
facilitate overall coordination.
Customer acknowledges that changes in the assumption set forth above may
affect Oracle's ability to provide Services as set forth in this EC. If
delivery of a Service is delayed, or Oracle's cost of providing Services
is increased, as a result of Customer's failure to complete a task,
Customer agrees to pay time and materials rates for Oracle's increased
costs in providing Services under this EC.
5. CHANGE ORDER
In order to make a change to the Description of Services in this EC,
Customer will submit a written request to Oracle specifying the proposed
changes in detail. Oracle will submit to Customer an estimate of the
charges and the anticipated changes in the delivery schedule that will
result from the proposed change in Services (Change Order). Oracle will
continue performing the Services in accordance with the EC until the
parties agree in writing on the change in scope of work, scheduling, and
fees therefor. Any Change Order shall be agreed to by the parties in
writing prior to implementation.
6. NON-SOLICITATION
Oracle and Customer agree that for the term of 4 years from the
Effective Date of this EC, neither Customer nor the U.S. Division of
Oracle Lifecycle Support Services (a division of Oracle Corporation)
shall solicit for employment or retention as an independent contractor
any employee or former employee of the other who was directly involved
in the performance of Services hereunder, without the other's prior
written consent. "Solicit" shall not be deemed to include advertising
in newspapers or trade publications available to the public. In the
event that one of the aforementioned entities solicits an employee of
the other in violation of this paragraph, the entire liability of the
soliciting entity and the exclusive remedy shall be payment of ten
thousand dollars ($10,000) to the nonsoliciting entity by the soliciting
entity.
3
7. CONFIDENTIALITY
Customer and Oracle agree that the terms and pricing of this EC are
confidential and shall not be disclosed without prior consent of the
other party except as required by law and as required in connection with
filing the applicable federal and state securities agencies.
NETZERO, INC. ORACLE CORPORATION
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Title: Chairman, CEO Title: Assistant General Counsel
-------------------------------- -------------------------------
Effective Date: 4/20/99
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4
LIFECYCLE SUPPORT IDENTIFICATION ATTACHMENT
Oracle Support Administrator:
Name:
Address:
Telephone:
Fax:
Oracle Solution Service Manager:
Name:
Address:
Telephone:
Fax:
Customer Billing Accounts Payable Contact:
Name:
Address:
Telephone:
Fax:
Customer Project Manager:
Name:
Address:
Telephone:
Fax:
Purchase Order No.
or
Purchase Order Exception Acknowledgment:
Customer agrees to pay for Services performed under this EC, as specified in
the EC and/or Agreement without a purchase order.
Tax Information
___(1) Exempt (Attach Tax Exemption Form)
___(2) Non-exempt
--------------------------------------- ---------------------------------
Customer Authorized Signature Date
--------------------------------------- ---------------------------------
Customer Name (please print or type) Title
5
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ORACLE-C-
NETWORK LICENSE ORDER FORM
Customer Name: NetZero Incorporated Contract Administrator: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Customer Location: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Phone: ▇▇▇-▇▇▇-▇▇▇▇
Suite #150 Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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ORACLE CONTRACT INFORMATION
Agreement: Software License and Service Agreement
Agreement Name: SLSA-
This Network License Order Form and attachment(s) ('Order
Form') are placed in accordance with the agreement specified
above ('Agreement'). Customers hereby orders the Program
licenses described herein for use in the Territory, unless
otherwise specified.
The Network is defined as any number of Components of the
Designated Systems listed in their Order Form, accept for
Computer-based or Processor-based licenses or other similar
licenses as specified herein
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A. DESIGNATED SYSTEMS/PROGRAMS
Make/Model: [***]
Operating System: [***]
Media: [***]
CSI:________
DESCRIPTION QUANTITY LICENSE LEVEL LICENSE TYPE
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INTERNAL LICENSED PROGRAMS
FINANCIAL APPLICATIONS LICENSED PROGRAMS
Per User Licenses:
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
Oracle Applications Licenses:
[***] [***] [***] [***]
[***] [***] [***] [***]
**For purposes of this Order Form, Named and Casual Users of the Applications
Program above shall be counted based on Primary Usage.
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
1
Description Quantity License Level License Type
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EXTERNAL LICENSED PROGRAMS
Per User Licenses:
[***] [***] Web Application Specific [***]
External User Web Application Specific Net License Fees: [***]
Internal User Net License Fees: [***]
External Users Initial Year Annual Technical Support Fee: [***]
Technical Support Type: Solutions
Internal Users Initial Year Annual Technical Support Fee: [***]
Technical Support Type: Solutions
Electronic Distribution Fees: [***]
Number of Education Units: [***]
Education Units Fee: [***]
Consulting Fee: [***]
*Programs included in External User Bundle: -------------------------
[***] TOTAL FEES:[***]
-------------------------
[***]
[***]
[***]
B. GENERAL TERMS
1. TERRITORY. The "Territory" shall be defined as Customer facilities in the
U.S. Customer may elect to expand the Territory subject to U.S. Export Laws
and regulations provided that prior to any use of the Programs outside the
U.S. Customer shall provide notice to Oracle and payment of an additional
[***] uplift charge for the license and Technical Support fees for the
applicable Program licenses.
2. CUSTOMER DEFINITION. For purposes of this Order Form, Customer shall be
defined as the company listed at the head of this Order Form and its 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. WEB APPLICATION SPECIFIC. A Web Application Specific Program shall mean a
Program license which may only be accessed by Customer Client via internet
networking protocols and which is limited to use solely for deployment of
Customer's public web site including Extranet services provided by Customer
to third party customers, provided that in connection with the use of a Web
Application Specific Program to corporate use or internal data processing by
Customer or its clients shall be permitted. Prohibited internal uses shall
include, but shall not be limited to, the following types of uses:
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
2
human resource, finance and administration, internal messaging and
communications, accounting, sales force management, etc. Notwithstanding any
use restrictions in the Agreement, Customer's application may allow internal
or third party web access to a licensed Web Application Specific Program
solely for viewing, querying, or adding data, and provided such use is in
accordance with the other terms of the Agreement.
4. TERM LICENSE. The External License Programs acquired under this Order Form
as of the Effective Date shall be a Term License under the conditions set
forth in this Section. The phrase "Term License" shall mean a Program
license which shall be valid from the Effective Date until April 30, 2004
(the "Term License Period"). Customer's right to use such External License
Programs shall expire and terminate on April 30, 2004. Upon termination of
the Term License, Customer shall destroy any copies of such External License
Programs, unless Customer and Oracle have entered into a renewal of such
license or separate agreement allowing otherwise. This requirement applies
to all copies in all forms, partial and complete, and whether or not modified
and merged into other materials.
5. EXPIRATION. At Customer request and twelve (12) months prior to expiration
of the Term License Period set forth in this Order Form, the parties agree to
negotiate in good faith to renew or obtain new licenses and support based
upon then current Oracle policies, fees and discounting practices.
6. TECHNICAL SUPPORT. Annual Technical Support Services ordered by Customer
will be provided under Oracle's Technical Support and Oracle's Solutions
Support policies 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 [***]. A
copy of Oracle's current Technical Support policies and Oracle's Internet
Business Solution Support policies and Oracle's Internet Business Solution
Support policies are attached hereto.
Customer estimates it will deploy External and Internal Program licenses
ordered hereunder over a period of 4 years. In light of this, for the fees
below Customer may receive annual Solutions Technical Support for External
Use Program licenses ordered hereunder (except for license grants modified or
added hereto after the Effective Date, or for which Technical Support is not
available). Technical Support consists of Updates for such licenses as well
as support services, pursuant to the Technical Support Policies in effect, as
such licenses are deployed. Technical Support fees shall be paid annually
[***].
Support Year Technical Support Fee
------------ ---------------------
First Year [***]
Second Year [***]
Third Year [***]
Fourth Year [***]
Fifth Year [***]
Annual Technical support services ordered by customer will include access to
the Oracle business solution center via a dedicated 800 phone number. The
solution center will include a named team of analysts, named Solution Support
manager. Customer is entitled to product upgrades, maintenance and transfer
rights.
7. MISCELLANEOUS. Oracle will electronically deliver the initial shipment of
Programs to Customer for use in the Territory, 1 copy of the software media
("Master Copy") and 1 set of Documentation for each Program currently
available in product release as of the Effective Date below for use on the
Network. The cost for electronic distribution shall be [***]. 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 the Customer shall be
responsible for installation of the software. All fees under this Order Form
shall be due and payable [***] from date of invoice, and shall be
non-cancellable and the sums paid nonrefundable. Customer agrees to pay
applicable sales and media charges. If Customer loses or damages the media
containing a Program licensed hereunder, upon Customer's written notice
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
3
Oracle will provide a replacement copy thereof, under Oracle's then-current
Technical Support policies, for a media and shipping charge. The following
shipping terms shall apply: POB Destination, Prepaid, and Add. These terms
shall also apply to any options exercised by Customer. Oracle may refer to
Customer as a customer in sales presentations, marketing vehicles and
activities.
C. OTHER
1. ADDITIONAL DESIGNATED SYSTEMS. Until 5 years from the Effective Date,
Customer shall have the option to add 4 additional Designated System(s) types
("Additional Designated System(s)") to this Order Form [***], if: (i) the
Programs licensed herein are available in production release status on the
Additional Designated System at the time Customer elects to add the
Additional Designated System; and (ii) Customer has continuously maintained
Technical Support for such Programs.
Oracle shall ship to the Customer Location a single Master Copy of the
Programs licensed herein for the Additional Designated System added. These
Programs may only be copied and installed in accordance with the terms of
this Order Form; Oracle has no further shipment obligation other than as
specified above. Programs licensed herein for use on Additional Designated
System(s) may not be 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.
2. ADDITIONAL LICENSE INCREMENTS. For 2 years 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 this Order Form ("Additional License Increment") by paying Oracle [***]:
First Year Support
License Fee per Fee per each
External License License each Additional Additional License
Program Level License Type Increment License Increment Increment Term
-------- -------- ------------ --------- ----------------- ------------------- ----
[***] [***] [***] [***] 12/01/95
Each order placed for Additional License of External Programs must be at
least 2 Processors: 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
obligation. Upon election, this payment obligation is non-cancellable, and
the sum paid is nonrefundable.
3. ADDITIONAL WEB APPLICATION SPECIFIC PROGRAMS. For a period of 2 years from
the Effective Date, Customer may acquire the Programs in the Categories
specified below provided such Programs are available in production release
and are listed on Oracle's U.S. Price List for installation on the Designated
Systems types as of the Effective Date. The license fee for such Programs
shall be [***], specified below, [***] in effect as of the Effective Date.
Upon Customer's exercise of this option, Oracle shall ship the Programs to
Customer pursuant to the Miscellaneous section above. At the time of
election Customer may obtain Technical Support services from Oracle for
Additional License Programs at Oracle's applicable Technical Support fees and
policies in effect when such services are ordered.
Categories (see attached Exhibit) License Level License Type [***]License Fees Term
--------------------------------- ------------- ------------ ----------------- ----
[***] [***] [***] [***] Coterminous
with End User
Bundle
4. ADDITIONAL PROGRAMS For a period of 2 years from the Effective Date,
Customer may acquire the Programs in the Categories specified below if such
Programs are available in production release and are listed on Oracle's U.S.
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
4
Price List for installation on the Designated Systems types as of the
Effective Date. The license fee for such Programs shall be [***], specified
below, [***] in effect as of the Effective Date. Upon Customer's exercise of
this option, Oracle shall ship the Programs to Customer pursuant to the
Miscellaneous section above. At the time of election, Customer may obtain
Technical Support services from Oracle for Additional License Programs at
Oracle's applicable Technical Support fees and policies in effect when such
services are ordered.
Categories (see attached Exhibit) License Level License Type [***]License Fees
--------------------------------- ------------- ------------ -----------------
[***] [***] [***] [***]
[***] [***] [***] [***]
[***] [***] [***] [***]
5. CONSULTING SERVICES In consideration of the Order Form, Customer is
entitled to receive [***] worth of standard time and materials Oracle
Consulting Services performed in the U.S. by an Oracle consultant or an
Oracle Support consultant for a period of (4) four months from the Effective
Date of this Order Form. Any consulting services acquired pursuant to this
Order Form will be bid by Oracle separately from the Program licenses
acquired pursuant to this Order Form. Customer understands that it has the
right to acquire the Program licenses without acquiring the consulting
services, and that Customer has the right to acquire the Program licenses and
the consulting services separately at the fees stated in the Agreement.
6. EDUCATION In consideration for the License payment to Oracle specified in
Section A above within 30 days of the Effective Date, Customer shall receive
(20) twenty Oracle standard Education Units which are valid for one year from
the Effective Date of this Order Form. The value of these Education Units is
[***].
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Customer and Oracle agree that the terms and pricing of this Order Form shall
not be disclosed without the prior written consent of the other party. This
quote is valid through April 30, 1999 and shall become binding upon execution
by Customer and acceptance by Oracle.
NETZERO INCORPORATED ORACLE CORPORATION
Signature: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman, CEO Title: Assistant General Counsel
Effective Date: 4/20/99
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[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
5
SHIPMENT SUMMARY:
PROGRAMS DESIGNATED SYSTEMS MEDIA TYPES
-------- ------------------ -----------
[***] [***] [***]
[***]
[***]
[***]
[***]
[***]
[***]
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
6