1
EXHIBIT 10.33
ORACLE
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
whatever form 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.
1.6. "Services" means Technical Support, training, or
consulting services provided by Oracle to Customer
under this Agreement.
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 of
the Commencement Date, 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 limitation,
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
2
specified in Oracle's transfer 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.
2.2. 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 notice specifying the
breach.
4.4. Effect of Termination
Termination of the 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 provided 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 license fees paid for
those Programs. This Section 5.1 shares 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 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.
3
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 OP 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. Pro-production release of Programs and computer-based
training products are distributed "AS IS."
6.3. 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.
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;
4
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 less 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 due 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.
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
▇▇▇▇▇▇. 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 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; 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 25, 1999
EXECUTED BY CUSTOMER:
Authorized Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------------------
Title: SR. V.P. FINANCE & CFO
-----------------------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------------------
EXECUTED BY ORACLE CORPORATION:
Authorized Signature:
-------------------------------------
Name:
------------------------------------------------------
Title:
-----------------------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
--------------------------------------------------
ORACLE IS A REGISTERED TRADEMARK OF ORACLE CORPORATION
5
Payment Schedule
(Oracle Product) No. 1
Customer: ▇▇▇▇▇.▇▇▇ Technologies, Inc. EXECUTED BY CUSTOMER (AUTHORIZED SIGNATURE):
------------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------ ------------------------------------------
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------ ------------------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Title: SR. V.P. FINANCE & CFO
------------------------------------------ ------------------------------------------
Contact:
------------------------------------------ EXECUTED BY ORACLE CREDIT CORPORATION:
Phone: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------ By:
Order: dated ------------------------------------------
------------------------------------------ Name:
Agreement: dated ------------------------------------------
------------------------------------------ Title:
PPA No.: dated ------------------------------------------
------------------------------------------
------------------------------------------ Payment Schedule Effective Date:
-----------------
SYSTEM Payment Schedule
Payment Amount Due Date:
Software: $139,735.75 1 @ $ 59,142 Due at signing
---------------------------------- 4 Q @ 548,297 01-Jan-00 thru 01-OCT-00
Support: 96,832.00 One Year
----------------------------------
Education:
---------------------------------- One payment followed by four (4) quarterly payments
Consulting: due at set forth above
----------------------------------
Other:
----------------------------------
System Price: $236,567.75
----------------------------------
Optional (If this box is checked):
Customer has ordered the System from an alliance member/agent of
Oracle Corporation, whose name and address are specified below. Customer shall
provide ("OCC") with a copy of such Order. The System shall be directly licensed
or provided by the Supplier specified in the applicable Order and Agreement,
each of which shall be considered a separate contract. Customer has entered into
the Order and Agreement based upon its own judgment, and expressly disclaims any
reliance upon statements made by OCC about the System, if any. Customer's rights
with respect to the System are as set forth in the applicable Order and
Agreement and Customer shall have no right to make any claims under such Order
and Agreement against OCC or its Assignee. Neither Supplier nor any alliance
member/agent is authorized to waive or alter any term or condition of this
Contract. If within ten days of the Payment Schedule Effective Date, OCC is
provided with Customer invoices for the System specifying applicable Taxes, then
OCC may add the applicable Taxes in accordance with this Contract.
Alliance Member/Agent:
----------------------------------------------------
Address:
----------------------------------------------------
Contact: Phone:
---------------------- ------------------------
This Payment Schedule is entered into by Customer and Oracle Credit Corporation
("OCC") for the acquisition of the System from Oracle Corporation. an alliance
member/agent of Oracle Corporation or any other party providing any portion of
the System ("Supplier"). This Payment Schedule Incorporates by reference the
terms and conditions of the above-referenced Payment Plan Agreement ("PPA") to
create a separate Contract ("Contract").
A. PAYMENTS: This Contract shall replace Customer's payment obligation under the
Order and Agreement to Supplier, to the extent of the System Price listed above,
upon Customer's delivery of a fully executed Order, Agreement. PPA, Payment
Schedule, and any other documentation required by OCC, and execution of the
Contract by OCC. Customer agrees that OCC may add the applicable Taxes due on
the System Price to each Payment Amount based on the applicable tax rate
invoiced by Supplier at shipment. OCC may adjust subsequent Payment Amounts to
reflect any change or correction in Taxes due. If the System Price includes
support fees for a support period that begins after the first support period,
such future support fees and the then relevant Taxes will be paid to Supplier as
invoiced in the applicable support period from the Payment Amounts received in
that parted. The balance of each Payment Amount, unless otherwise stated,
includes a proportional amount of the remaining components of the System Price
excluding such future support fees, if any.
B. SYSTEM: Software shall be accepted and the services shall be deemed ordered
pursuant to the terms of the Agreement. Customer agrees that any software
acquired from Supplier to replace any part of the System shall be subject to the
terms of the Contract. Any claims related to the performance of any component of
the System shall be made pursuant to the Order and Agreement. Neither OCC nor
Assignee shall be responsible to Customer for any claim or liability pertaining
to any performance, actions, warranties or statements of Supplier.
C. ADMINISTRATIVE: Customer agrees that OCC or its Assignee may treat executed
faxes or photocopies delivered to OCC as original documents; however, Customer
agrees to deliver original signed documents if requested. Customer agrees that
OCC may insert the appropriate administrative information to complete this form.
OCC will provide a copy of the final Contract upon request.
* Confidential Treatment Requested
6
ORACLE CREDIT CORPORATION PAYMENT PLAN AGREEMENT
Customer: ▇▇▇▇▇.▇▇▇ Technologies, Inc. EXECUTED BY CUSTOMER (AUTHORIZED SIGNATURE):
--------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------- -------------------------------------------
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Name:
-------------------------------------- ------------------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Title:
------------------------------------- ------------------------------------------
Phone: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------- EXECUTED BY ORACLE CREDIT CORPORATION:
PPA No.:
------------------------------------- By:
Effective Date: ------------------------------------------
------------------------------------- Name:
------------------------------------------
Title:
------------------------------------------
The payment Plan Agreement ("PPA") is entered into by Customer and Oracle Credit
Corporation ("OCC") to provide for the payment of the System Price specified in
a Payment Schedule on an installment basis. The System (as defined below) is
being acquired from Oracle Corporation, an alliance member/agent of Oracle
Corporation or any other party providing any portion of the System ("Supplier").
Each Payment Schedule shall specify the Software and other products and
services, which items together with any upgrade, transfer, substitution, or
replacement thereof, shall comprise the "System." Each Payment Schedule shall
incorporate the terms and conditions of the PPA to form a "Contract," and the
System specified therein shall be subject to the terms and conditions of such
Contract. The System shall be licensed or provided to Customer directly by
supplier pursuant to the terms of the Order and Agreement specified in the
Contract. Except as provided under the Contract, Customer's rights and remedies
under the Order and Agreement, including Supplier's warranty and refund
provisions, shall not be affected.
1. PAYMENT SCHEDULE: Customer agrees to pay OCC the Payment Amounts in
accordance with the Contract, with each payment due and payable on the
applicable Due Date. If full payment of each Payment Amount and other amounts
payable is not received by OCC within 10 days of each Due Date, Customer agrees
to pay to OCC interest on the overdue amount at the rate equal to the lesser of
one and one-half percent (1.5%) per month, or the maximum amount allowed by law.
Unless stated otherwise, Payment Amounts exclude any applicable sales, use,
property or any other tax allocable to the System, Agreement or Contract
("Taxes"). Any amounts or any Taxes payable under the Agreement which are not
added to the Payment Amounts due under the Contract are due and payable by
Customer, and Customer shall remain liable for any filing obligations.
Customer's obligation to remit Payment Amounts to OCC or its assignee in
accordance with the Contract is absolute, unconditional, noncancellable,
independent, and shall not be subject to any abatement, set-off, claim,
counterclaim, adjustment, reduction, or defense for any reason, including but
not limited to, any termination of any Agreement, or performance of the System.
2. ASSIGNMENT: Customer hereby consents to OCC's assignment of all or a portion
of its rights and interests in and to the Contract to third-parties
("Assignee"). OCC shall provide Customer notice thereof. Customer and OCC agree
that Assignee shall not, because of such assignment, assume any of OCC's or
Supplier's obligations to Customer. Customer shall not assert against Assignee
any claim, defense, counterclaim or setoff that Customer may have against OCC or
Supplier. Customer waives all rights to make any claim against Assignee for any
loss or damage of the System or breach of any warranty, express or implied, as
to any matter whatsoever, including but not limited to the System and service
performance, functionality, features, merchantability or fitness for a
particular purpose, or any indirect, incidental or consequential damages or loss
of business. Customer shall pay Assignee all amounts due and payable under the
Contract, but shall pursue any claims under any Agreement solely against
Supplier. Except when a Default occurs, neither OCC nor Assignee will interfere
with Customer's quiet enjoyment or use of the System in accordance with the
Agreement's terms and conditions.
3. DEFAULT; REMEDIES: Any of the following shall constitute a Default under the
Contract: (I) Customer fails to pay when due any sums due under any Contract:
(ii) Customer breaches any representation or fails to perform any obligation in
any Contract; (iii) Customer materially breaches or terminates the license
relating to the Software; (iv) Customer defaults under a material agreement with
Assignee; or (v) Customer becomes insolvent or makes an assignment for the
benefit of creditors, or a trustee or receiver is appointed for Customer or for
a substantial part of its assets, or bankruptcy, reorganization or insolvency
proceedings shall be instituted by or against Customer.
In the event of a Default that is not cured within thirty (30) days of its
occurrence, OCC may: (i) require all outstanding Payment Amounts and other sums
due and scheduled to become due (discounted at the lesser of the rate in the
Contract of five percent (5%) per annum simple interest) to become immediately
due and payable by Customer; (ii) pursue any rights provided under the
Agreement, as well as terminate all of Customer's rights to use the System and
related services, and Customer agrees to cease all use of the System; and (iii)
pursue any other rights or remedies available at law or in equity. In the event
OCC institutes any action for the enforcement of the collection of Payment
Amounts, there shall be due from Customer. In addition to the amounts due above,
all costs and expenses of such action, including reasonable attorneys' fees. No
failure or delay on the part of OCC to exercise any right or remedy hereunder
shall operate as a waiver thereof, or as a waiver of any subsequent breach. All
remedies are cumulative and not exclusive, Customer acknowledges that upon a.
default under the Contract, no party shall license, lease, transfer or use any
Software in mitigation of any damages resulting from Customer's default.
4. CUSTOMER'S REPRESENTATIONS AND COVENANTS: Customer represents that,
throughout the term of the Contract, the Contract has been duly authorized and
Constitutes a legal, valid, binding and enforceable agreement of Customer. Any
transfer or assignment of Customer's rights or obligations in the System, or
under the Agreement or the Contract shall require OCC's and Assignee's prior
written consent. A transfer shall include a change in majority ownership of
Customer. Customer agrees to promptly execute any ancillary documents and take
further actions as OCC or Assignee may reasonably request, including, but not
limited to, assignment notifications, acceptance certificates, certificates of
authorization, registrations, and filings. Customer agrees to provide copies of
Customer's balance sheet, income statement, and other financial reports as OCC
or Assignee may reasonably request.
5. MISCELLANEOUS: The Contract shall constitute the entire agreement between
Customer and OCC regarding the subject matter herein and shall supersede any
inconsistent terms set forth in the Order, Agreement or any related agreements,
Customer purchase orders and all prior oral and written understandings. If any
provision of the Contract is invalid, such invalidity shall not affect the
enforceability of the remaining terms of the Contract. Customer's obligations
under the Contract shall commence on the Effective Date specified therein.
Except for payment terms specified in the Contract, Customer remains responsible
for all the obligations under each Agreement. Each Payment Schedule, and any
changes to a Contract or any related document, shall take effect when executed
by OCC. The Contract shall be governed by the laws of the State of California
and shall be deemed executed in Redwood Shores, CA as of the Contract effective
Date.
7
Customer XCARENET
Location: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: ▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
End User: XCARENET
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: ▇▇▇ ▇▇▇▇▇
================================================================================
ORACLE CONTRACT INFORMATION
[ ] Agreement: SLSA Attached Effective Date:
DESIGNATED SYSTEM
Make/Model: SUN SPARC / 4 CPU Media Type: CD
Operating System: SOLARIS CSI Number:
Qty License Quantity & Lice
Programs List Each Disc. Extended Net
----------------------------------------------------------------------------------------------------------
1 Full Use Designer/2000 1 Developer [ * ] [ * ] [ * ]
1 Web Change Management Pack 1600 Power [ * ] [ * ] [ * ]
Application Unit 2 Yr
Specific
1 Web Diagnostics Pack 1600 Power [ * ] [ * ] [ * ]
Application Unit 2 Yr
Specific
1 Web Intermedia 1600 Power [ * ] [ * ] [ * ]
Application Unit 2 Yr
Specific
1 Web Oracle Server EE 8i 1600 Power [ * ] [ * ] [ * ]
Application Unit 2 Yr
Specific
1 Web Tuning Pack 1600 Power [ * ] [ * ] [ * ]
Application Unit 2 Yr
Specific
------------
Sub Total: [ * ]
Initial 1 Year Silver Annual Technical Support [ * ] [ * ] [ * ]
Total License Fee Due: 139,735.75
Total Technical Support Fee Due: 96,567.75
Total Additional Fees Due:
============
Total Fees Due: 236,567.75 USD
MISCELLANEOUS
Customer is licensed to use each Program only on the Designated System(s)
specified in the above Section of this Order Form and for which such Program is
available on the Effective Date. The above Section of this Order Form specifies
the Programs on the particular Designated Systems requested by Customer, which
have been shipped or currently are being shipped to Customer. Oracle shall
deliver to the Customer Location, for use in the U.S, 1 copy of the software
media ("Master Copy") and 1 set of
* Confidential Treatment Requested
8
ORACLE ORDER FORM Quote #: 312790
Page: 2 of 2
Customer XCARENET
Documentation (in the form generally available) for each Program currently
available in production release as of the Effective Date below for use on the
Designated Systems(s). 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 net 30 days from date of invoice, and
shall be non-cancellable and the sums paid nonrefundable. Customer agrees to pay
applicable sales/use tax, media and shipping charges. 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. The
following shipping terms shall apply: FOB 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.
TECHNICAL SUPPORT
Annual Technical Support services ordered by Customer will be provided under
Oracle's Technical Supped 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.
Term License. The Programs ordered under this Order Form and licensed As Power
Units are valid for 2 (#) years from the Effective Date ("Term") unless
otherwise terminated under the Agreement. Upon expiration of the Term Customer
shall cease using the Programs and return or destroy all copies in accordance
with the terms and conditions of the Agreement.
Thank you for your interest in Oracle. If you have any questions please
contact ▇▇▇▇▇▇ Hut, your Oracle Sales Representative, at at (▇▇▇) ▇▇▇-▇▇▇▇.
Customer and Oracle agree that the terms and pricing of this Order Form
shall not be disclosed without prior written consent of the other party.
This Quote is valid through October 26, 1999 and shall become binding upon
execution by Customer and acceptance by Oracle.
This Quote includes the Price List Definitions attachment.
XCARENET ORACLE CORPORATION
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Signature:
------------------------ ------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Name:
------------------------ ------------------------
Title: SR. V.P. FINANCE & CFO Title:
------------------------ ------------------------
Date: October 25, 1999
------------------------
9
ORACLE PRICE LIST DEFINITIONS
"Concurrent Devices" (or "Concur Dev"): is 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 "Named") 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.
A "Read-Only" User is defined as an individual authorized by the Customer to
only run queries or reports against Oracle Applications Programs. Read-Only
Users are licensed to use any of the Transactional Applications or CRM Sales and
Service Applications for which Customer has acquired Named User licenses.
"Primary Usage" is defined as each licensed user being counted only once as a
designated Named or Casual User of the Oracle Application he will use most.
However, a licensed Named or Casual User may access all Oracle Applications
licensed under the Agreement which have been licensed under the same licensing
methodology, regardless of the designated Oracle Application of primary use.
"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 or Workstation": 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 Programs" (or "App Specific"): shall mean Programs which
are limited to use solely for Customer's application software defined on the
Order Form. Application Specific Programs are to be generated by Customer from
Full Use programs.
A "Web Specific" Program is defined as a Program license which may only be
accessed by third parties via internal networking protocols and which is limited
to use solely for deployment of Customer's public web site. Customer's
application may allow third party web access to a licensed Web Specific Program
solely for viewing, querying or adding data, provided such use is in accordance
with the other terms of the Agreement. No corporate use or internal data
processing by Customer or its clients shall be permitted with a Web Specific
Program. Prohibited corporate and internal uses shall include, but shall not be
limited to, the following types of uses: human resource, finance and
administration, internal messaging and communications, accounting, sales force
management, etc.
A "Web Application Specific" Program is defined as a Program license which may
be accessed and used solely for deployment of Customer's application software as
specified on the Order Form. The Web Application Specific Program may only be
accessed by third parties via internet networking protocols and is limited to
use solely for deployment of Customer's public web site. Customer's application
may allow third party web access to a licensed Web Application Specific Program
solely for viewing, querying or adding data, provided such use is in accordance
with the other terms of the Agreement. No corporate use or internal data
processing by Customer or its clients shall be permitted with a Web Application
Specific Program. Prohibited corporate and internal uses shall include, but
shall not be limited to, the following types of uses: human resource, finance
and administration, internal messaging and communications, accounting, sales
force management, etc.
For Human Resources, Training Administration and Tutor for Human Resources.
"Employee" is defined as an individual who is actively managed by the Programs.
The term "Employee" includes, without limitation, Customer employees,
contractors, retirees, and COBRA, dependents.
For Payroll and Tutor for Payroll, "Employee" is defined as an individual whose
payment or payment calculations, are generated by the Programs. The term
"Employee" includes, without limitation, Customer employees, contractors,
retirees, and employees covered by workers compensation laws or regulations.
For Time Management, "Employee" is defined as an individual who submits
timecards or other time records for payroll processing.
For Self-Service Human Resources, Self-Service Purchasing, Self-Service
Expenses, Financials Intelligence, Operations Intelligence, Purchasing
Intelligence, Process Manufacturing Intelligence, and HR Intelligence,
"Employee" is defined as an active employee of Customer. The value of these
applications is determined by the size of the active employee population not the
number of actual users. Therefore, all active employees of customer must be
included when licensing these applications.
For Call Center Intelligence, "Employee" is defined as the total number of
employees in the Customer's Call Center.
"Foundation Services": This is limited support, and any license for which it is
purchased is not a Supported Program License.
An "Education Unit" entitles Customer to acquire education
10
PRICE LIST DEFINITIONS
(Continued)
products and services as specified in the Oracle Education catalogue in effect
at the time an Education Unit is utilized. Education Units are only valid for 12
months from the Effective Date of the Order or as specifically stated in the
applicable Order. Education Units may only be used in the country where the
Education Units were acquired or within the Territory defined in the applicable
Order. Customer may be required to execute standard Oracle ordering materials in
conjunction with utilizing Education Units.
"Organizational Change Management Services" are services for assisting Customers
in managing change in their organizations. Customer's discounts for consulting
or training do not apply to such Organizational Change Management Services.
A "Suite" consists of all of the functional software components described in the
Documentation.
"Module": shall mean a functional software component of a Suite or bundle.
"Per Entry": shall mean a unique item (e.g., object, person, entity, or
information) stored within the Programs. Replicated entries stored within the
Program on multiple servers are counted as a single entry.
"Power Unit": One Power Unit is defined as one MHz of power in any Intel
compatible or RISC processor in any computer of the Designated Systems on the
Order Form on which the Programs are installed and operating. The total number
of Power Units is determined by adding together the number of MHz in all the
processors in all such computers. Customer may add processors and computers, or
modify existing processors and computers, provided that if, at any time,
Customer's use exceeds the total number of licensed Power Units, Customer will
acquire licenses for the additional Power Units. At Oracle's request, no more
than once annually, Customer shall certify in writing the Power Unit
computation, including the number of relevant computers and processors, and the
MHz of each such processor. (For example: two computers with two 400 MHz
processors each would equal 1,600 Power Units)
"Bills Presented" is defined as the cumulative number of bills or invoices
delivered, presented and/or posted via the Internet using Program.
"▇▇▇▇ Paid" is defined as each payment or payment authorization of a ▇▇▇▇ via
the Internet using the Program.
For Service for Communications, TeleBusiness for Telecom/Utilities, CRL
Financial Management, CRL Supply Chain Management, SDP Provisioning, SDP Number
Portability, Revenue Accounting for Communications and Industrial Billing,
"Subscriber" is defined as a working telephone number for all wireline; a
handset or paging device that has been activated by Customer for all wireless
and paging; number of residential drops plus the number of nonresidential
devices serviced by cable providers; a live connected gas meter and a
live/connected electric meter. The total number of Subscribers is equal to the
aggregate of all types of Subscribers.
For Service for Communications, TeleBusiness for Telecom/Utilities, CRL
Financial Management. CRL Supply Chain Management, SDP Provisioning, SDP Number
Portability, Revenue Accounting for Communications and Industrial Billing, if
the Customer's business is not defined in the primary definition of Subscriber
above: "Subscriber" is defined as each U.S. $1,000 increment of Customer's gross
annual revenue as reported to the SEC in Customer's annual report or equivalent
reporting document.
11
ATTACHMENT
to
QUOTE #312790
between
▇▇▇▇▇.▇▇▇
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. 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.
2. Service Bureau. Notwithstanding section 2.1.A.i of the Agreement, Customer
shall have the right to use the Programs licensed under this Order Form for the
purposes of hosting third party health care web sites and limited to the
following functionalities: claims and capitalization processing; authorizations;
referral management; enrollment and eligibility tracking and management;
utilization management; provider contracting; group contracting; benefit design;
Managed Medicaid; Medicare; reporting and documentation, all provided to
Customer by Customer's end users ("End User(s)") as part of Customer's business.
Customer may issue written reports or other written records based on or arising
from its data processing activities for End User. In addition, if such reports
or records are in an electronic data file, Customer may allow End User remote
access to such reports or records for its internal business purposes, and may
permit End User to access the Programs and manipulate the data controlled by
Customer and managed by the Programs, provided that (a) Customer warrants that
it has the authority to bind End User to the terms of the Agreement and this
Order Form, and (b) Customer agrees to be responsible and to indemnify Oracle
for all damages or losses resulting from the breach of this agreement by End
User. End User personnel and devices accessing and manipulating the data
controlled by Customer and managed by the Programs shall be counted for purposes
of Named User and Concurrent Device limitations applying to the Programs.
3. Payment. The Customer's payment obligations to Oracle under this Order Form
as of the Effective Date shall be satisfied by Modis Solutions ("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
non-cancellable 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.