1
EXHIBIT 10.1
[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
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CUSTOMER: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. PURCHASE ORDER NO.:
ADDRESS: ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ PURCHASE ORDER DATE:
ORACLE AGREEMENT NO:.
CONFIGURATION ID (CID):
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# OF NUMBER
COPIES OF USER LICENSE LEVEL OF
PRODUCTS AND SERVICES TO SHIP USERS TYPE TYPE LICENSE FEES SUPPORT SUPPORT FEES
----------------------------------------------------- -------- ------- ------ ------- --------------- --------- ----------------
(cont'd from previous page)
Oracle JDeveloper ▇▇▇▇▇ ▇ ▇ ▇ ▇ ▇
▇▇▇▇▇▇ Developer 1 1 D F S
Subtotal $ 2,121,065.00 $ 512,520.00
Less discount $ (615,108.85) (148,630.80)
Less discount $ (151,620.50)
Less discount $ (60,648.20)
Total $ 1,354,335.65 $ 303,241.00
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TAXES WILL BE BILLED TO CUSTOMER UNLESS EXEMPTION IS CERTIFIED. CHECK IF NON-TAXABLE: GST: [ ] PST: [ ]
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COMPUTER HARDWARE AND OPERATING SYSTEM USER TYPE LICENSE TYPE LEVEL OF SUPPORT
-------------------------------------- --------- ------------ ----------------
MAKE/MODEL: Intel NT unless specified (C) CONCURRENT (F) FULL USE (B) BRONZE
OPERATING SYSTEM: NT (N) NAMED (A) APPLICATION (S) SILVER
SPECIFIC
MACHINE REFERENCE: (CO) COMPUTER (W) WEB SPECIFIC
SOFTWARE MEDIA : CD (CA) CASUAL (WA) WEB APPLICATION SPECIFIC
CPU LOCATION: Customer Site (P) POWER UNIT
FOR APPLICATION SPECIFIC ONLY - CUSTOMER APPLICATION:
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CONTRACT ADMINISTRATOR TECHNICAL SUPPORT CONTACT
NAME: ▇▇▇▇▇ ▇▇▇▇▇ NAME: ▇▇▇▇▇ ▇▇▇▇▇
ADDRESS: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ADDRESS: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
PHONE: ▇▇▇-▇▇▇-▇▇▇▇ PHONE: ▇▇▇-▇▇▇-▇▇▇▇
BILLING/ACCOUNTS PAYABLE CONTACT SHIP TO
NAME: ▇▇▇▇▇ ▇▇▇▇▇ NAME: ▇▇▇▇▇ ▇▇▇▇▇
ADDRESS: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ADDRESS: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
PHONE: ▇▇▇-▇▇▇-▇▇▇▇ PHONE: ▇▇▇-▇▇▇-▇▇▇▇
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SPECIAL NOTES: UNLESS OTHERWISE SPECIFIED HEREIN OR IN AN ORDER FORM, CUSTOMER IS LICENSED TO USE THE PROGRAMS IN CANADA
ONLY.
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CUSTOMER: ▇▇▇▇▇▇▇▇.▇▇▇ ORACLE CORPORATION CANADA INC.
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AUTHORIZED SIGNATURE: AUTHORIZED SIGNATURE:
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NAME: NAME:
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TITLE: TITLE:
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DATE: DATE:
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THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE ______________, 19__ , OR IF LEFT
BLANK THE EARLIER OF THE DATES SET OUT ABOVE. THIS ORDER IS PLACED SUBJECT TO
THE TERMS AND CONDITIONS ABOVE AND ON THE FOLLOWING PAGES.
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
TERMS AND CONDITIONS
This Software License and Services Agreement (the "Agreement") is between Oracle
Corporation Canada Inc. with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ("Oracle") and the
customer identified on the signature page of this Agreement ("Customer"). The
terms of this Agreement shall apply to each Program license granted and to all
Services provided by Oracle under this Agreement and any Order Form.
I DEFINITIONS
1.1 "APPLICATION SPECIFIC PROGRAM" shall mean one or more of the Programs
with the following restrictions:
(a) limited for use solely for the purpose of executing the Customer
application identified in an Order Form (the "Application");
(b) may not be used to create new tables or alter tables except to the
extent necessary to implement the Application and may not allow
use of the Program's "Create" or "Alter" commands or any other
command to create or alter tables outside the scope of that which
is necessary for the operation of the Application; and
(c) may not be used to build or modify reports or with other
applications.
1.2 "CASUAL USER" shall mean an individual authorized by the Customer to only
run queries or reports against Oracle Application Programs. Casual Users
are licensed to use any of the Oracle Applications and Extensions to
Oracle Applications for which Customer has acquired Named User licenses."
1.3 "COMMENCEMENT DATE" shall mean the date on which the Programs are
delivered by Oracle to Customer or, if no delivery is necessary, the
Effective Date set forth on the relevant Order Form.
1.4 "CONCURRENT DEVICES" shall mean 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.
1.5 "DESIGNATED SYSTEM" shall mean the computer hardware and operating system
designated on the relevant Order Form.
1.6 "DOCUMENTATION" shall mean 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.
1.7 "FULL-USE PROGRAMS" shall mean unaltered versions of the Programs with
all functions intact.
1.8 "LIMITED PRODUCTION PROGRAM" shall mean a Program which does not appear
on the Price List or which is designated as Limited Production by Oracle.
1.9 "ORDER FORM" shall mean the document in hard copy or electronic form by
which Customer orders Program licenses and/or Services and which is
agreed to by the parties. The Order Form shall reference the Effective
Date of this Agreement.
1.10 "PRICE LIST" shall mean Oracle's applicable standard commercial fee
schedule that is in effect when a Program license or any other product or
service is ordered by Customer.
1.11 "PROGRAM" shall mean the software in object code form distributed by
Oracle for which Customer is granted a license pursuant to this
Agreement, the media, the Documentation and Updates.
1.12 "SERVICES" shall mean Technical Support, training, consulting or other
services provided by Oracle to Customer under this Agreement.
1.13 "SUPPORTED PROGRAM LICENSE" shall mean a Program license for which
Customer has ordered Technical Support for the relevant time period.
1.14 "TECHNICAL SUPPORT" shall mean Program support provided under Oracle's
policies in effect on the date Technical Support is ordered.
1.15 "UPDATE" shall mean a subsequent release of the Program which is
generally made available for Supported Program Licenses at no additional
charge other than media and handling charges. Update shall not include
any release, option or future product which Oracle licenses separately.
1.16 "USER," unless otherwise specified on the Order Form, shall mean a person
authorized by Customer to use specified Programs, regardless of whether
the individual is actively using the Programs at any given time.
II. PROGRAM LICENSE
2.1. RIGHTS GRANTED
A. Oracle grants to Customer a nonexclusive license to use the
Programs Customer obtains 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 and/or User
limitations specified or referenced in this Agreement, an
Order Form and the Documentation. Customer may not
re-license, rent or lease the Programs or use the Programs
for third-party training, commercial time-sharing, rental
or service bureau use;
ii. to use the Documentation 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 User limitations
specified in the Order Form. All titles, trademarks,
copyright and restricted rights notices shall be reproduced
in such copies. All archival and backup copies of the
Programs are subject to the terms of this Agreement;
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
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
ensures that use of the Programs is in accordance with the
terms of this Agreement.
Customer shall not copy or use the Programs except as otherwise
specified in this Agreement or an Order Form.
In the event that the number of copies of the Programs shipped to
Customer is less than the number actually licensed pursuant to
this Agreement, then Customer shall have the right to make copies
of the Programs up to the number licensed hereunder. In the event
Customer does not, for any reason whatsoever, make and/or use the
number of copies actually licensed pursuant to this Agreement, it
shall, nevertheless, pay to Oracle all license fees due hereunder.
In the event Customer specifies that no shipment of media is
required for any Program, then Customer shall have been deemed to
have a master copy of such Program and no additional shipment is
required.
Customer shall have no right to use any other Oracle software
program that may be delivered with the 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. NETWORK LICENSE
Customer may order a Network license for Programs using a
Network Order Form which shall have the following additional rights
granted:
A. To use the Programs on up to five (5) Server operating systems. If
the number of Server operating systems specified in a Network
Order Form is less than five (5), Customer may, by written notice
to Oracle during the one-year period commencing on the effective
date of the Network Order Form, request Oracle to deliver, (at a
charge of One Thousand Dollars ($1000) per Server operating system
to cover media, documentation, shipping and handling charges), the
corresponding software media and Documentation for the Network
Program Set, for such additional Server operating system(s), up to
a maximum of five (5), added by Customer to the Network; provided
that: i) the Programs licensed hereunder are available in
production release status on the additional Server operating
system(s) at the time Customer elects to add such additional
Server operating system(s); and ii) Customer has continuously
maintained Technical Support for the Network Program Set on the
Server operating systems being used prior to such written notice.
B. The addition of new Server operating systems beyond the five (5)
provided for in this Agreement shall, in addition to the
provisions set out in 2.2A above, be subject to payment by
Customer to Oracle of ten percent (10%) of the net license fees
for the Network Program Set as set forth in a Price Addendum in
effect, or, in the absence of a valid Price Addendum, under
Oracle's standard Price List in effect at the time of such
addition. Payment shall be due and payable on the date Customer
exercises this option.
C. Despite anything to the contrary contained in this Agreement,
Customer shall not be required to report to Oracle which Programs
included in the Network Program Set are installed on which Server
or how many Servers are included in the Network. Customer may
freely transfer the Programs between Servers in the Network at no
additional charge; however substitutions of Server operating
systems licensed under this Agreement may be made (at a charge of
One Thousand Dollars ($1000) per Server operating system to cover
media, documentation, shipping and handling charges) for a period
of three (3) years from the effective date of the applicable
Network Order Form provided that: i) Customer has maintained
continuous Technical Support for the Programs, ii) notifies Oracle
in writing of any such change in Server operating systems; and
iii) the total number of Server operating systems on which the
Network Program Set is run does not exceed five (5). Thereafter
such changes may require the payment of additional fees in
accordance with Oracle's standard license transfer policies then
in effect.
D. Notwithstanding the foregoing, Oracle makes no representation or
guarantee with respect to the future availability of the Programs
on any operating system and Oracle shall not be liable for any
expenditures incurred, or loss suffered, as a result of Customer
relying on the future delivery by Oracle of the Programs on any
operating system.
All fees paid pursuant to this Section 2.2 are non-cancellable and the
sum paid non-refundable.
2.3. 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. Program licenses are personal to Customer. Customer may not assign
this Agreement or a Program license, or any interest in either, to
a legal entity separate from Customer except as part of a merger
or other sale of Customer's business. Such assignment requires the
prior written consent or Oracle, which shall not be unreasonably
withheld.
2.4. 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.
Oracle may, at its expense, 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. Customer agrees to co-operate in the audit, including
providing access to servers, employees and information reasonably
requested by Oracle. If an audit reveals that Customer has underpaid fees
to Oracle, Customer shall be invoiced for such underpaid fees based on
the Price List in effect at the time the audit is completed. Audits shall
be conducted no more than once annually.
III. SERVICES
3.1. TECHNICAL SUPPORT SERVICES
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
Technical Support ordered by Customer will be provided under Oracle's
Technical Support policies in effect on the date Technical Support is
ordered, subject to the payment by Customer of the applicable fees.
3.2. CONSULTING, TRAINING AND OTHER SERVICES
A. PROVISION OF SERVICES Oracle will provide consulting, training and
other services agreed to by the parties under the terms of this
Agreement. Consulting services shall be billed on a time and
materials basis unless the parties expressly agree otherwise in
writing.
B. DIRECTION OF SERVICES Unless otherwise specifically agreed in
writing, Customer shall be responsible for the direction of the
services.
C. NON-SOLICITATION
During the term of an Oracle employee's work or assignment in
connection with Services, and for a period of six (6) months after
such work or assignment terminates, Customer agrees not to
directly or indirectly solicit, recruit for employment or offer
sub-contracting opportunities to or knowingly employ any such
employee, without the prior written consent of Oracle. In the
event of a breach of this provision by Customer, Customer shall
pay Oracle as liquidated damages and not as a penalty, an amount
equal to twelve (12) months salary for the employee engaged by the
Customer.
D. CHANGES Oracle shall not be in breach of any warranties provided
for in this Agreement if any of the relevant software, hardware,
products, goals or related system environment has been changed by
Customer or any other person without Oracle's specific consent in
writing. Where such unauthorized changes impede or make more
costly the provision of Technical Support or consulting services
hereunder, Oracle shall take such corrective action only if
Customer agrees to bear such additional cost, at Oracle's then
prevailing rates.
E. COOPERATION Customer acknowledges that the timely provision of and
access to office accommodations, facilities, equipment,
assistance, cooperation, complete and accurate information and
data from its officers, agents, and employees, and suitably
configured computer products are essential to performance of any
Services and that Oracle's ability to complete any Services is
dependent upon same. If the relevant requirement(s), project
plan(s), schedule, scope, specification(s), design(s), software,
hardware product(s), or related system environment(s) or
architecture are changed by Customer or any other person, Oracle
shall not be responsible for the change unless Customer and Oracle
specifically consent to the change, scheduling, and additional
charges, if any, 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, each Program license shall
remain in effect perpetually unless the license or this Agreement is
terminated as provided in Section 4.2 or 4.3.
4.2. TERMINATION BY CUSTOMER
Customer may terminate any Program license at any time; however,
termination shall not relieve Customer's obligations specified in Section
4.4.
4.3. TERMINATION BY ORACLE
Oracle may terminate this Agreement or any Program license upon written
notice if Customer breaches this Agreement and fails to correct such
breach within 30 days following written notice thereof.
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 or other similar ordering document under this Agreement. The
parties' rights and obligations under Sections 2.1B, 2.1C, 2.2B and 2.3,
and Articles IV, V, VI and VII shall survive termination of this
Agreement.
4.5. HANDLING OF PROGRAMS UPON TERMINATION.
If a license granted under this Agreement terminates, Customer shall: (a)
cease using the applicable Programs; and (b) certify to Oracle within one
month after termination that Customer has destroyed or has returned to
Oracle the Programs and all copies. This requirement applies to copies in
all forms, partial and complete, in all types of media and computer
memory, and whether or not modified or merged into other materials.
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, 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.
Reasonable out-of-pocket expenses incurred by Customer in providing such
assistance will be reimbursed by Oracle. Oracle shall have no liability
for any claim of infringement based on use of a superseded or an altered
release of a Program if the infringement would have been avoided by the
use of a current unaltered release of the Program which Oracle provides
to Customer.
In the event a Program is held or is believed by Oracle to infringe,
Oracle shall have the option, at its expense, to; (a) modify the Program
to be non-infringing; or (b) obtain for Customer a license to continue
using the Program. If it is not commercially reasonable to perform either
of the above options, then Oracle may terminate the license for the
infringing Program and refund the license fees paid for the Program. This
Section 5.1 states Oracle's entire liability and Customer's exclusive
remedy for infringement.
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
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.
Oracle warrants that the current production version of the Programs will,
to the extent applicable as set forth in the Documentation, fully comply
with the following millennium compliance statement when configured and
used according to the documented instructions. The definition of
compliance is the ability to:
(a) correctly handle date information before, during and after 1
January 2000 accepting date input, providing date output and
performing calculation on dates or portions of dates;
(b) function according to the Documentation, during and after 1
January 2000 without changes in operation resulting from the
advent of the new century assuming correct configuration;
(c) 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;
(d) store and provide output of date information in ways that are
unambiguous as to century; and
(e) manage the leap year occurring in the year 2000, following the
quad-centennial rule.
Oracle shall have no liability for any alleged or actual breach of the
"year 2000" warranty provided in the preceding sentence if such claim is
based upon a superseded or altered release of Programs and such claim
would have been avoided by the use of a current unaltered release of
Programs which Oracle provides to Customer. Any breach of this warranty
is subject to the exclusive remedies as set forth in Section 5.3 of the
Agreement
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 Services will be performed in accordance with
generally accepted industry standards. This warranty shall be valid for
90 days from the performance of such Services.
D. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL MEET CUSTOMER'S
REQUIREMENTS, THAT THE PROGRAMS WILL OPERATE IN THE COMBINATIONS WHICH
CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF THE PROGRAMS WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT ALL PROGRAM ERRORS WILL BE
CORRECTED. LIMITED PRODUCTION PROGRAMS, 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 from the
Commencement Date.
C. FOR SERVICES
The re-performance 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 for Programs and Services provided hereunder shall be due and
payable 30 days from the date of Oracle's invoice. Any amounts payable by
Customer hereunder which remain unpaid after the due date shall be
subject to a late charge equal to 12% per annum, calculated from the due
date until such amounts are 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, goods and services or other taxes based on
the licenses granted or Services provided pursuant to 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 contained in 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 or to
use each other's Confidential Information for any purpose other than the
implementation of this Agreement. Each party agrees to take all
reasonable steps to ensure that Confidential Information is not disclosed
or distributed by its employees or agents in violation of the terms of
this Agreement.
7.2 GOVERNING LAW
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
This Agreement and all matters arising out of or relating to this
Agreement shall be governed by the laws of the Province of Ontario.
7.3 JURISDICTION
Any legal action or proceeding relating to this Agreement shall be
instituted in a court in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. 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 received
on the third business day following mailing 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 or even if such damages
were reasonably foreseeable. Oracle's liability for damages hereunder
shall in no event exceed the amount of fees paid by Customer under the
relevant Order Form, and if such damages result from Customer's use of
the Programs or the provision of 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
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions thereof 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 non-payment or breach of Oracle's
proprietary rights in the Programs, no action, regardless of form,
arising out of this Agreement may be brought by either party more than
one year after the cause of action has arisen.
7.8 EXPORT ADMINISTRATION
Customer agrees to comply fully with all relevant export laws and
regulations of Canada and 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 RELATIONSHIP BETWEEN THE PARTIES
Nothing in this Agreement shall be construed to create a partnership,
joint venture or agency relationship between the parties.
7.10 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 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 contained in any Customer purchase order or
other ordering document. This Agreement shall also supersede the 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 unsigned ordering document shall be
effective for the specified licenses.
7.11 SEPARATION OF LICENSES AND SERVICES
Any Services acquired by Customer from Oracle are deemed to have been bid
and acquired separately from any Program licenses granted under this
Agreement, with Customer having the right to acquire such Services and
Program licenses without acquiring the other.
Oracle is a registered trademark of ORACLE CORPORATION
REDWOOD CITY, CA, USA
ORACLE CORPORATION CANADA INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Page 6 of 6
7
Software Agreement 1
(EXHIBIT 10.1)
[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
--------------------------------------------------------------------------------
CUSTOMER: ▇▇▇▇▇▇▇▇.▇▇▇ PURCHASE ORDER NO.:
ADDRESS: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. PURCHASE ORDER DATE:
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ORACLE AGREEMENT NO:
CONFIGURATION ID (CID):
--------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
# OF
COPIES NUMBER USER LICENSE LEVEL OF
PRODUCTS AND SERVICES TO SHIP OF USERS TYPE TYPE LICENSE FEES SUPPORT SUPPORT FEES
------------------------------------------------------------------------------------------------------------------------
Oracle Financials 1 20 N F S
Oracle Financials 1 5 CA F S
Oracle Financial Analyzer 1 25 N F S
Oracle Express Server 1 13 C F S
Oracle Field Sales 1 300 N R S
Oracle Sales Compensation 1 5 N F S
Oracle 8i Standard Edition for HP UX 1 40 C F S
Oracle 8i Standard Edition for HP UX 1 400 P P S
Oracle iStore 1 400 P P S
Oracle iPayment 1 400 P P S
Oracle iMarketing 1 400 P P S
Oracle Application Server Enterprise Edition 1 400 P P S
Oracle Developer Server 1 400 P P S
(cont'd) (cont'd) (cont'd)
------------------------------------------------------------------------------------------------------------------------
TAXES WILL BE BILLED TO CUSTOMER UNLESS EXEMPTION IS CERTIFIED. CHECK IF NON-TAXABLE: GST: [ ] PST: [ ]
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
COMPUTER HARDWARE AND OPERATING SYSTEM USER TYPE LICENSE TYPE LEVEL OF SUPPORT
-------------------------------------- --------- ------------ ----------------
MAKE/MODEL: PC Win NT unless specified (C) CONCURRENT (F) FULL USE (B) BRONZE
OPERATING SYSTEM: NT (N) NAMED (A) APPLICATION SPECIFIC (S) SILVER
MACHINE REFERENCE: (CO) COMPUTER (W) WEB SPECIFIC
SOFTWARE MEDIA: CD (CA) CASUAL (WA) WEB APPLICATION SPECIFIC
CPU LOCATION: Customer Site (P) POWER UNIT
FOR APPLICATION SPECIFIC ONLY - CUSTOMER APPLICATION:
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
CONTRACT ADMINISTRATOR TECHNICAL SUPPORT CONTACT
---------------------- -------------------------
NAME: ▇▇▇▇▇ ▇▇▇▇▇ NAME: ▇▇▇▇▇ ▇▇▇▇▇
ADDRESS: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ADDRESS: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
PHONE: ▇▇▇-▇▇▇-▇▇▇▇ PHONE: ▇▇▇-▇▇▇-▇▇▇▇
BILLING/ACCOUNTS PAYABLE CONTACT SHIP TO
-------------------------------- -------
NAME: ▇▇▇▇▇ ▇▇▇▇▇ NAME: ▇▇▇▇▇ ▇▇▇▇▇
ADDRESS: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ADDRESS: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
PHONE: ▇▇▇-▇▇▇-▇▇▇▇ PHONE: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
SPECIAL NOTES: Unless otherwise specified herein or in an Order Form, Customer is licensed to use the Programs in
Canada only. The Oracle 8I Standard Edition will be running on one, one-processor machine with a total of 400 Mhz of
processing power (1 x 1 x ▇▇▇ ▇▇▇ = 400 MHz = 400 Power Units). The Oracle iStore, iPayment, iMarketing, Application
Server Enterprise Edition, and Developer Server will be running on one, one-processor machine with a total of 400 Mhz
of processing power (1 x 1 x ▇▇▇ ▇▇▇ = 400 MHz = 400 Power Units. Quote is valid until Nov. 24, 1999 at 5:00 pm Pacific
time.
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
CUSTOMER: ORACLE CORPORATION CANADA INC.
▇▇▇▇▇▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------------------
AUTHORIZED SIGNATURE: AUTHORIZED SIGNATURE:
------------------------------------------------------------------------------------------------------------------------
NAME: NAME:
------------------------------------------------------------------------------------------------------------------------
TITLE: TITLE:
------------------------------------------------------------------------------------------------------------------------
DATE: DATE:
------------------------------------------------------------------------------------------------------------------------
The Effective Date of this Agreement shall be ________________________, 19___,
or if left blank the earlier of the dates set out above. This order is placed
subject to the terms and conditions above and on the following pages.
Page 1 of 6
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
TERMS AND CONDITIONS
This Software License and Services Agreement (the "Agreement") is between Oracle
Corporation Canada Inc. with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ("Oracle") and the
customer identified on the signature page of this Agreement ("Customer"). The
terms of this Agreement shall apply to each Program license granted and to all
Services provided by Oracle under this Agreement and any Order Form.
I DEFINITIONS
1.1 "APPLICATION SPECIFIC PROGRAM" shall mean one or more of the Programs
with the following restrictions:
(a) limited for use solely for the purpose of executing the Customer
application identified in an Order Form (the "Application");
(b) may not be used to create new tables or alter tables except to the
extent necessary to implement the Application and may not allow use
of the Program's "Create" or "Alter" commands or any other command
to create or alter tables outside the scope of that which is
necessary for the operation of the Application; and
(c) may not be used to build or modify reports or with other
applications.
1.2 "CASUAL USER" shall mean an individual authorized by the Customer to only
run queries or reports against Oracle Application Programs. Casual Users
are licensed to use any of the Oracle Applications and Extensions to
Oracle Applications for which Customer has acquired Named User licenses."
1.3 "COMMENCEMENT DATE" shall mean the date on which the Programs are
delivered by Oracle to Customer or, if no delivery is necessary, the
Effective Date set forth on the relevant Order Form.
1.4 "CONCURRENT DEVICES" shall mean 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.
1.5 "DESIGNATED SYSTEM" shall mean the computer hardware and operating system
designated on the relevant Order Form.
1.6 "DOCUMENTATION" shall mean 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.
1.7 "FULL-USE PROGRAMS" shall mean unaltered versions of the Programs with
all functions intact.
1.8 "LIMITED PRODUCTION PROGRAM" shall mean a Program which does not appear
on the Price List or which is designated as Limited Production by Oracle.
1.9 "ORDER FORM" shall mean the document in hard copy or electronic form by
which Customer orders Program licenses and/or Services and which is
agreed to by the parties. The Order Form shall reference the Effective
Date of this Agreement.
1.10 "PRICE LIST" shall mean Oracle's applicable standard commercial fee
schedule that is in effect when a Program license or any other product or
service is ordered by Customer.
1.11 "PROGRAM" shall mean the software in object code form distributed by
Oracle for which Customer is granted a license pursuant to this
Agreement, the media, the Documentation and Updates.
1.12 "SERVICES" shall mean Technical Support, training, consulting or other
services provided by Oracle to Customer under this Agreement.
1.13 "SUPPORTED PROGRAM LICENSE" shall mean a Program license for which
Customer has ordered Technical Support for the relevant time period.
1.14 "TECHNICAL SUPPORT" shall mean Program support provided under Oracle's
policies in effect on the date Technical Support is ordered.
1.15 "UPDATE" shall mean a subsequent release of the Program which is
generally made available for Supported Program Licenses at no additional
charge other than media and handling charges. Update shall not include
any release, option or future product which Oracle licenses separately.
1.16 "USER," unless otherwise specified on the Order Form, shall mean a person
authorized by Customer to use specified Programs, regardless of whether
the individual is actively using the Programs at any given time.
II. PROGRAM LICENSE
2.1. RIGHTS GRANTED
A. Oracle grants to Customer a nonexclusive license to use the Programs
Customer obtains 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 and/or User limitations
specified or referenced in this Agreement, an Order Form and the
Documentation. Customer may not re-license, rent or lease the
Programs or use the Programs for third-party training,
commercial time-sharing, rental or service bureau use;
ii. to use the Documentation 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 User limitations specified
in the Order Form. All titles, trademarks, copyright and
restricted rights notices shall be reproduced in such copies.
All archival and backup copies of the Programs are subject to
the terms of this Agreement;
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.
Page 2 of 6
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
Customer shall not copy or use the Programs except as otherwise
specified in this Agreement or an Order Form.
In the event that the number of copies of the Programs shipped to
Customer is less than the number actually licensed pursuant to this
Agreement, then Customer shall have the right to make copies of the
Programs up to the number licensed hereunder. In the event Customer
does not, for any reason whatsoever, make and/or use the number of
copies actually licensed pursuant to this Agreement, it shall,
nevertheless, pay to Oracle all license fees due hereunder.
In the event Customer specifies that no shipment of media is required
for any Program, then Customer shall have been deemed to have a
master copy of such Program and no additional shipment is required.
Customer shall have no right to use any other Oracle software program
that may be delivered with the 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. NETWORK LICENSE
Customer may order a Network license for Programs using a Network Order
Form which shall have the following additional rights granted:
A. To use the Programs on up to five (5) Server operating systems. If
the number of Server operating systems specified in a Network Order
Form is less than five (5), Customer may, by written notice to Oracle
during the one-year period commencing on the effective date of the
Network Order Form, request Oracle to deliver, (at a charge of One
Thousand Dollars ($1000) per Server operating system to cover media,
documentation, shipping and handling charges), the corresponding
software media and Documentation for the Network Program Set, for
such additional Server operating system(s), up to a maximum of five
(5), added by Customer to the Network; provided that: i) the Programs
licensed hereunder are available in production release status on the
additional Server operating system(s) at the time Customer elects to
add such additional Server operating system(s); and ii) Customer has
continuously maintained Technical Support for the Network Program Set
on the Server operating systems being used prior to such written
notice.
B. The addition of new Server operating systems beyond the five (5)
provided for in this Agreement shall, in addition to the provisions
set out in 2.2A above, be subject to payment by Customer to Oracle of
ten percent (10%) of the net license fees for the Network Program Set
as set forth in a Price Addendum in effect, or, in the absence of a
valid Price Addendum, under Oracle's standard Price List in effect at
the time of such addition. Payment shall be due and payable on the
date Customer exercises this option.
C. Despite anything to the contrary contained in this Agreement,
Customer shall not be required to report to Oracle which Programs
included in the Network Program Set are installed on which Server or
how many Servers are included in the Network. Customer may freely
transfer the Programs between Servers in the Network at no additional
charge; however substitutions of Server operating systems licensed
under this Agreement may be made (at a charge of One Thousand Dollars
($1000) per Server operating system to cover media, documentation,
shipping and handling charges) for a period of three (3) years from
the effective date of the applicable Network Order Form provided
that: i) Customer has maintained continuous Technical Support for the
Programs, ii) notifies Oracle in writing of any such change in Server
operating systems; and iii) the total number of Server operating
systems on which the Network Program Set is run does not exceed five
(5). Thereafter such changes may require the payment of additional
fees in accordance with Oracle's standard license transfer policies
then in effect.
D. Notwithstanding the foregoing, Oracle makes no representation or
guarantee with respect to the future availability of the Programs on
any operating system and Oracle shall not be liable for any
expenditures incurred, or loss suffered, as a result of Customer
relying on the future delivery by Oracle of the Programs on any
operating system.
All fees paid pursuant to this Section 2.2 are non-cancellable and the
sum paid non-refundable.
2.3. 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. Program licenses are personal to Customer. Customer may not assign
this Agreement or a Program license, or any interest in either, to a
legal entity separate from Customer except as part of a merger or
other sale of Customer's business. Such assignment requires the prior
written consent or Oracle, which shall not be unreasonably withheld.
2.4. 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.
Oracle may, at its expense, 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. Customer agrees to co-operate in the audit, including
providing access to servers, employees and information reasonably
requested by Oracle. If an audit reveals that Customer has underpaid fees
to Oracle, Customer shall be invoiced for such underpaid fees based on
the Price List in effect at the time the audit is completed. Audits shall
be conducted no more than once annually.
Page 3 of 6
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
III. SERVICES
3.1. TECHNICAL SUPPORT SERVICES
Technical Support ordered by Customer will be provided under Oracle's
Technical Support policies in effect on the date Technical Support is
ordered, subject to the payment by Customer of the applicable fees.
3.2. CONSULTING, TRAINING AND OTHER SERVICES
A. PROVISION OF SERVICES
Oracle will provide consulting, training and other services agreed to
by the parties under the terms of this Agreement. Consulting services
shall be billed on a time and materials basis unless the parties
expressly agree otherwise in writing.
B. DIRECTION OF SERVICES
Unless otherwise specifically agreed in writing, Customer shall be
responsible for the direction of the services.
C. NON-SOLICITATION
During the term of an Oracle employee's work or assignment in
connection with Services, and for a period of six (6) months after
such work or assignment terminates, Customer agrees not to directly
or indirectly solicit, recruit for employment or offer
sub-contracting opportunities to or knowingly employ any such
employee, without the prior written consent of Oracle. In the event
of a breach of this provision by Customer, Customer shall pay Oracle
as liquidated damages and not as a penalty, an amount equal to twelve
(12) months salary for the employee engaged by the Customer.
D. CHANGES
Oracle shall not be in breach of any warranties provided for in this
Agreement if any of the relevant software, hardware, products, goals
or related system environment has been changed by Customer or any
other person without Oracle's specific consent in writing. Where such
unauthorized changes impede or make more costly the provision of
Technical Support or consulting services hereunder, Oracle shall take
such corrective action only if Customer agrees to bear such
additional cost, at Oracle's then prevailing rates.
E. COOPERATION
Customer acknowledges that the timely provision of and access to
office accommodations, facilities, equipment, assistance,
cooperation, complete and accurate information and data from its
officers, agents, and employees, and suitably configured computer
products are essential to performance of any Services and that
Oracle's ability to complete any Services is dependent upon same. If
the relevant requirement(s), project plan(s), schedule, scope,
specification(s), design(s), software, hardware product(s), or
related system environment(s) or architecture are changed by Customer
or any other person, Oracle shall not be responsible for the change
unless Customer and Oracle specifically consent to the change,
scheduling, and additional charges, if any, 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, each Program license shall
remain in effect perpetually unless the license or this Agreement is
terminated as provided in Section 4.2 or 4.3.
4.2. TERMINATION BY CUSTOMER
Customer may terminate any Program license at any time; however,
termination shall not relieve Customer's obligations specified in Section
4.4.
4.3. TERMINATION BY ORACLE
Oracle may terminate this Agreement or any Program license upon written
notice if Customer breaches this Agreement and fails to correct such
breach within 30 days following written notice thereof.
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 or other similar ordering document under this Agreement. The
parties' rights and obligations under Sections 2.1B, 2.1C, 2.2B and 2.3,
and Articles IV, V, VI and VII shall survive termination of this
Agreement.
4.5. HANDLING OF PROGRAMS UPON TERMINATION.
If a license granted under this Agreement terminates, Customer shall: (a)
cease using the applicable Programs; and (b) certify to Oracle within one
month after termination that Customer has destroyed or has returned to
Oracle the Programs and all copies. This requirement applies to copies in
all forms, partial and complete, in all types of media and computer
memory, and whether or not modified or merged into other materials.
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, 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.
Reasonable out-of-pocket expenses incurred by Customer in providing such
assistance will be reimbursed by Oracle. Oracle shall have no liability
for any claim of infringement based on use of a superseded or an altered
release of a Program if the infringement would have been avoided by the
use of a current unaltered release of the Program which Oracle provides
to Customer.
In the event a Program is held or is believed by Oracle to infringe,
Oracle shall have the option, at its expense, to; (a) modify the Program
to be non-infringing; or (b) obtain for Customer a license to continue
using the Program. If it is not commercially reasonable to perform either
of the above options, then Oracle may terminate the license for the
infringing Program and refund the license fees paid for the Program. This
Section 5.1 states Oracle's entire liability and Customer's exclusive
remedy for infringement.
Page 4 of 6
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES AGREEMENT
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.
Oracle warrants that the current production version of the Programs will,
to the extent applicable as set forth in the Documentation, fully comply
with the following millennium compliance statement when configured and
used according to the documented instructions. The definition of
compliance is the ability to:
(a) correctly handle date information before, during and after 1
January 2000 accepting date input, providing date output and
performing calculation on dates or portions of dates;
(b) function according to the Documentation, during and after 1 January
2000 without changes in operation resulting from the advent of the
new century assuming correct configuration;
(c) 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;
(d) store and provide output of date information in ways that are
unambiguous as to century; and
(e) manage the leap year occurring in the year 2000, following the
quad-centennial rule.
Oracle shall have no liability for any alleged or actual breach of the
"year 2000" warranty provided in the preceding sentence if such claim is
based upon a superseded or altered release of Programs and such claim
would have been avoided by the use of a current unaltered release of
Programs which Oracle provides to Customer. Any breach of this warranty
is subject to the exclusive remedies as set forth in Section 5.3 of the
Agreement
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 Services will be performed in accordance with
generally accepted industry standards. This warranty shall be valid for
90 days from the performance of such Services.
D. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL MEET CUSTOMER'S
REQUIREMENTS, THAT THE PROGRAMS WILL OPERATE IN THE COMBINATIONS WHICH
CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF THE PROGRAMS WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT ALL PROGRAM ERRORS WILL BE
CORRECTED. LIMITED PRODUCTION PROGRAMS, 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 from the
Commencement Date.
C. FOR SERVICES
The re-performance 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 for Programs and Services provided hereunder shall be due and
payable 30 days from the date of Oracle's invoice. Any amounts payable by
Customer hereunder which remain unpaid after the due date shall be
subject to a late charge equal to 12% per annum, calculated from the due
date until such amounts are 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, goods and services or other taxes based on
the licenses granted or Services provided pursuant to 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 contained in 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 or to
use each other's Confidential Information for any purpose other than the
implementation of this Agreement. Each party agrees to take all
reasonable steps to ensure that Confidential Information is not disclosed
or distributed by its employees or agents in violation of the terms of
this Agreement.
Page 5 of 6
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[ORACLE LOGO] SOFTWARE LICENSE AND SERVICES 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 Province of Ontario.
7.3 JURISDICTION
Any legal action or proceeding relating to this Agreement shall be
instituted in a court in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. 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 received
on the third business day following mailing 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 or even if such damages
were reasonably foreseeable. Oracle's liability for damages hereunder
shall in no event exceed the amount of fees paid by Customer under the
relevant Order Form, and if such damages result from Customer's use of
the Programs or the provision of 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
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions thereof 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 non-payment or breach of Oracle's
proprietary rights in the Programs, no action, regardless of form,
arising out of this Agreement may be brought by either party more than
one year after the cause of action has arisen.
7.8 EXPORT ADMINISTRATION
Customer agrees to comply fully with all relevant export laws and
regulations of Canada and 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 RELATIONSHIP BETWEEN THE PARTIES
Nothing in this Agreement shall be construed to create a partnership,
joint venture or agency relationship between the parties.
7.10 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 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 contained in any Customer purchase order or
other ordering document. This Agreement shall also supersede the 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 unsigned ordering document shall be
effective for the specified licenses.
7.11 SEPARATION OF LICENSES AND SERVICES
Any Services acquired by Customer from Oracle are deemed to have been bid
and acquired separately from any Program licenses granted under this
Agreement, with Customer having the right to acquire such Services and
Program licenses without acquiring the other.
Oracle is a registered trademark of ORACLE CORPORATION
REDWOOD CITY, CA, USA
ORACLE CORPORATION CANADA INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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Page 6 of 6
13
[ORACLE LOGO] ADDENDUM
ADDENDUM NO. 1 to the Software License and Services Agreement between
▇▇▇▇▇▇▇▇.▇▇▇ ("Customer") and Oracle Corporation Canada Inc. ("Oracle") bearing
an Effective Date of ____________ (the "Agreement"). This Addendum shall only be
deemed to supersede the terms of the Agreement that are inconsistent with a term
or provision contained herein. All the defined terms contained in the Agreement
and used in this Addendum shall have the same meanings unless varied herein.
The parties hereby agree to amend the Agreement as follows:
1. The license type of the Oracle Field Sales Program listed herein is
Restricted Use. The use of this Program is restricted to utilization of
customers functionality only. In the event Customer wishes to use any additional
functionality, it must obtain a Full Use license of such Program.
This Addendum shall become effective as of ___________________, 1999.
IN WITNESS WHEREOF, the parties have executed this Addendum through their duly
authorized representatives.
CUSTOMER: ▇▇▇▇▇▇▇▇.▇▇▇ ORACLE CORPORATION CANADA INC.
--------------------------------------
Signed: Signed:
--------------------------------------- --------------------------------------
Name: Name:
--------------------------------------- --------------------------------------
Title: Title:
--------------------------------------- --------------------------------------
Date: Date:
--------------------------------------- --------------------------------------
Address: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. West
--------------------------------------- Suite 100
Vancouver, BC V6E 2E9 ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------------------------------------
14
[ORACLE LOGO] ADDENDUM
ADDENDUM NO. 2 to Order Form bearing an effective date of ________ under the
Software License and Services Agreement between ("Customer") and Oracle
Corporation Canada Inc.("Oracle") bearing an Effective Date of ________ (the
"Agreement"). This Addendum shall only be deemed to supersede the terms of the
Agreement that are inconsistent with a term or provision contained herein. All
the defined terms contained in the Agreement and used in this Addendum shall
have the same meanings unless varied herein.
The parties hereby agree to amend the Agreement as follows:
1. The Program(s) listed herein is licensed to Customer pursuant to the Power
Unit licensing method set out below and such Program(s) is designated as a
Web Specific Program license, also as set out below.
2. "POWER UNIT - RISC": One Power Unit - RISC is defined as one MHz of power
in all RISC processors in the computers on which the Programs are installed
and operating. The total number of Power Units - RISC 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 - RISC, Customer will
acquire licenses for the additional Power Units - RISC. At Oracle's
request, no more than once annually, Customer shall certify in writing the
Power Unit - RISC 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 -
RISC).
3. A "WEB SPECIFIC" Program is defined as a Program license which may only be
accessed by third parties via internet 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
This Addendum shall become effective as of
IN WITNESS WHEREOF, the parties have executed this Addendum through their duly
authorized representatives.
CUSTOMER: ▇▇▇▇▇▇▇▇.▇▇▇ ORACLE CORPORATION CANADA INC.
---------------------------
Signed: Signed:
---------------------------- ---------------------------
Name: Name:
---------------------------- ---------------------------
Title: Title:
---------------------------- ---------------------------
Date: Date:
---------------------------- ---------------------------
Address: ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. West
---------------------------- Suite 100
Vancouver, BC V6E 2E9 ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
----------------------------
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