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EXHIBIT 10.11
[ORACLE LOGO]
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement ("Agreement") is between Oracle
Corporation ("Oracle") and the Customer identified below. The terms of this
Agreement shall apply to each Program license granted and to all services
provided by Oracle under this Agreement, which will be identified on one or
more Order Forms.
1. DEFINITIONS
1.1. "PROGRAM" means the software in object code form distributed by Oracle for
which Customer is granted a license pursuant to this Agreement, and the
media, Documentation and Updates therefor.
1.2. "DOCUMENTATION" means the user guides and manuals for installation and use
of the Program software. Documentation is provided in CD-ROM or bound
form, whichever is generally available.
1.3. "UPDATE" means a subsequent release of the Program which Oracle generally
makes available for Program licenses at no additional license fee other
than media and handling charges, provided Customer has ordered Technical
Support for such licenses for the relevant time period. Update shall not
include any release, option or future product which Oracle licenses
separately.
1.4. "ORDER FORM" means the document in hard copy or electronic form by which
Customer orders Program licenses and services, and which is agreed to by
the parties. The Order Form shall reference the Effective Date of this
Agreement.
1.5. "DESIGNATED SYSTEM" means the computer hardware and operating system
designated on the relevant Order Form.
1.6. "TECHNICAL SUPPORT" means Program support provided under Oracle's policies
in effect on the date Technical Support is ordered.
1.7. "COMMENCEMENT DATE" means the date on which the Programs are delivered by
Oracle to Customer, or if no delivery is necessary, the Effective Date set
forth in the relevant Order Form.
II. PROGRAM LICENSE
2.1. RIGHTS GRANTED
A. Oracle grants to Customer a nonexclusive license to use the Programs
specified on an Order Form under this Agreement, as follows:
i. to use the Programs solely for Customer's operations on the
Designated System or on a backup system if the Designated System
is inoperative, consistent with the use limitations specified or
referenced in this Agreement, an Order Form, or the
Documentation. Customer may not relicense, rent or lease the
Programs or use the Programs for third-party training,
commercial time-sharing or service bureau use;
ii. to use the Documentation provided with the Programs in support
of Customer's authorized use of the Programs;
iii. to copy the Programs for archival or backup purposes, and to
make a sufficient number of copies for the use specified in the
Order Form. All titles, trademarks, and copyright and restricted
rights notices shall be reproduced in such copies;
iv. to modify the Programs and combine them with other software
products; and
v. to allow third parties to use the Programs for Customer's
operations so long as Customer ensures that use of the Programs
is in accordance with the terms of this Agreement.
Customer shall not copy or use the Programs (including the
Documentation) except as specified in this Agreement or an Order Form.
Customer shall have no right to use any other software program that
may be delivered with ordered Programs.
B. Customer agrees not to cause or permit the reverse engineering,
disassembly or decompilation of the Programs, except to the extent
required to obtain interoperability with other independently created
software or as specified by law.
C. Oracle shall retain all title, copyright and other proprietary rights
in the Programs. Customer does not acquire any rights, express or
implied, in the Programs, other than those specified in this
Agreement.
2.2 TRANSFER AND ASSIGNMENT
A. Customer may transfer a Program license within its organization upon
notice to Oracle; transfers are subject to the terms and fees
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specified in Oracle's transfer policy in effect at the time of the
transfer.
B. Customer may not assign this Agreement or transfer a Program License
to a legal entity separate from Customer without the prior written
consent of Oracle. Oracle shall not unreasonably withhold or delay
such consent.
2.3. VERIFICATION
At Oracle's written request, not more frequently than annually, Customer
shall furnish Oracle with a signed certification verifying that the
Programs are being used pursuant to the provisions of this Agreement and
applicable Order Forms.
Oracle may audit Customer's use of the Programs. Any such audit shall be
conducted during regular business hours at Customer's facilities and
shall not unreasonably interfere with Customer's business activities. If
an audit reveals that Customer has underpaid fees to Oracle, Customer
shall be invoiced for such underpaid fees. Audits shall be conducted no
more than once annually.
III. TECHNICAL SERVICES
3.1. TECHNICAL SUPPORT SERVICES
Technical Support services ordered by Customer will be provided under
Oracle's Technical Support policies in effect on the date Technical
Support is ordered.
3.2. CONSULTING AND TRAINING SERVICES
Oracle will provide consulting and training services agreed to by the
parties under the terms of this Agreement. All consulting services shall
be billed on a time and materials basis unless the parties expressly
agree otherwise in writing.
3.3. INCIDENTAL EXPENSES
For any on-site services requested by Customer, Customer shall reimburse
Oracle for actual, reasonable travel and out-of-pocket expenses incurred.
IV. TERM AND TERMINATION
4.1. TERM
If not otherwise specified on the Order Form, this Agreement and each
Program license granted under this Agreement shall continue perpetually
unless terminated under this Article IV.
4.2. TERMINATION BY CUSTOMER
Customer may terminate any Program license at any time; however,
termination shall not relieve Customer's obligations specified in Section
4.4.
4.3. TERMINATION BY ORACLE
Oracle may terminate this Agreement or any license upon written notice if
Customer materially breaches this Agreement and fails to correct the
breach within 30 days following written notice specifying the breach.
4.4. EFFECT OF TERMINATION
Termination of this Agreement or any license shall not limit either party
from pursuing other remedies available to it, including injunctive
relief, nor shall such termination relieve Customer's obligation to pay
all fees that have accrued or are otherwise owed by Customer under any
Order Form. The parties' rights and obligations under Sections 2.1.B,
2.1.C, and 2.2.B, and Articles IV, V, VI and VII shall survive
termination of this Agreement. Upon termination, Customer shall cease
using, and shall return or destroy, all copies of the applicable Programs.
V. INDEMNITY, WARRANTIES, REMEDIES
5.1. INFRINGEMENT INDEMNITY
Oracle will defend and indemnify Customer against a claim that the
Programs infringe a copyright or patent or other intellectual property
right, provided that: (a) Customer notifies Oracle in writing within 30
days of the claim; (b) Oracle has sole control of the defense and all
related settlement negotiations; and (c) Customer provides Oracle with
the assistance, information and authority necessary to perform Oracle's
obligations under this Section. Oracle will reimburse Customer's
reasonable out-of-pocket expenses incurred in providing such assistance.
Oracle shall have no liability for any claim of infringement based on use
of a superseded or altered release of Programs if the infringement would
have been avoided by the use of a current unaltered release of the
Programs which Oracle provides to Customer.
If the Programs are held or are believed by Oracle to infringe, Oracle
shall have the option, at its expense, to (a) modify the Programs to be
noninfringing; or (b) obtain for Customer a license to continue using the
Programs. If it is not commercially reasonable to perform either of the
above options, then Oracle may terminate the license for the infringing
Programs and refund the license fees paid for those Programs. This
Section 5.1 states Oracle's entire liability and Customer's exclusive
remedy for infringement.
5.2. WARRANTIES AND DISCLAIMERS
A. Program Warranty
Oracle warrants for a period of one year from the Commencement Date
that each unmodified Program license will perform the functions
described in the Documentation.
B. Media Warranty
Oracle warrants the tapes, diskettes or other media to be free of
defects in materials and workmanship under normal use for 90 days
from the Commencement Date.
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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 OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Oracle does not warrant that the Programs will operate in
combinations other than as specified in the Documentation or that
the operation of the Programs will be uninterrupted or error-free.
Pre-production releases of Programs and computer-based training
products are distributed "AS IS."
5.3. EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 5.2, Customer's
exclusive remedy, and Oracle's entire liability, shall be:
A. For Programs
The correction of Program errors that cause breach of the warranty,
or if Oracle is unable to make the Program operate as warranted,
Customer shall be entitled to terminate the Program license and
recover the fees paid to Oracle for the Program license.
B. For Media
The replacement of defective media returned within 90 days of the
Commencement Date.
C. For Services
The reperformance of the services, or if Oracle is unable to perform
the services as warranted, Customer shall be entitled to recover the
fees paid to Oracle for the unsatisfactory services.
VI. PAYMENT PROVISIONS
6.1. INVOICING AND PAYMENT
All fees shall be due and payable 30 days from the invoice date. Any
amounts payable by Customer hereunder which remain unpaid after the due
date shall be subject to a late charge equal to 1.5% per month from the
due date until such amount is paid. Customer agrees to pay applicable
media and shipping charges. Customer shall issue a purchase order, or
alternative document acceptable to Oracle, on or before the Effective
Date of the applicable Order Form.
6.2. TAXES
The fees listed in this Agreement do not include taxes; if Oracle is
required to pay sales, use, property, value-added or other taxes based on
the licenses or services granted in this Agreement or on Customer's use
of Programs or services, then such taxes shall be billed to and paid by
Customer. This Section shall not apply to taxes based on Oracle's income.
VII. GENERAL TERMS
7.1. NONDISCLOSURE
By virtue of this Agreement, the parties may have access to information
that is confidential to one another ("Confidential Information").
Confidential Information shall be limited to the Programs, the terms and
pricing under this Agreement, and all information clearly identified as
confidential.
A party's Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission
of the other party; (b) was in the other party's lawful possession prior
to the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by a third party without restriction on
disclosure; or (d) is independently developed by the other party.
Customer shall not disclose the results of any benchmark tests of the
Programs to any third party without Oracle's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two
years after termination of this Agreement. The parties agree, unless
required by law, not to make each other's Confidential Information
available in any form to any third party for any purpose other than the
implementation of this Agreement. Each party agrees to take all
reasonable steps to ensure that Confidential Information is not disclosed
or distributed by its employees or agents in violation of the terms of
this Agreement.
7.2. GOVERNING LAW
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the laws of the State of California.
7.3. JURISDICTION
Any legal action or proceeding relating to this Agreement shall be
instituted in a state or federal court in San Francisco or San Mateo
County, California. Oracle and Customer agree to submit to the
jurisdiction of, and agree that venue is proper in, these courts in any
such legal action or proceeding.
7.4. NOTICE
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given when
mailed by first class mail to the first address listed in the relevant
Order Form (if to Customer) or to the Oracle address on the Order Form
(if to Oracle).
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To expedite order processing, Customer agrees that Oracle may treat
documents faxed by Customer to Oracle as original documents; nevertheless,
either party may require the other to exchange original signed documents.
7.5. LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, incidental,
special or consequential damages, or damages for loss of profits, revenue,
data or use, incurred by either party or any third party, whether in an
action in contract or tort, even if the other party has been advised of the
possibility of such damages. Oracle's liability for damages hereunder shall
in no event exceed the amount of fees paid by Customer under this
Agreement, and if such damages result from Customer's use of the Program or
services, such liability shall be limited to fees paid for the relevant
Program or services giving rise to the liability.
The provisions of this Agreement allocate the risks between Oracle and
Customer. Oracle's pricing reflects this allocation of risk and the
limitation of liability specified herein.
7.6. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable,
the remaining provisions of this Agreement will remain in full force.
7.7. WAIVER
The waiver by either party of any default or breach of this Agreement shall
not constitute a waiver of any other or subsequent default or breach.
Except for actions for nonpayment or breach of Oracle's proprietary rights
in the Programs, no action, regardless of form, arising out of this
Agreement may be brought by either party more than two years after the
cause of action has accrued.
7.8. EXPORT ADMINISTRATION
Customer agrees to comply fully with all relevant export laws and
regulations of the United States ("Export Laws") to assure that neither the
Programs nor any direct product thereof are (1) exported, directly or
indirectly, in violation of Export Laws; or (2) are intended to be used for
any purposes prohibited by the Export Laws, including, without limitation,
nuclear, chemical, or biological weapons proliferation.
7.9. ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties and
supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document, usage
or custom shall be deemed to amend or modify this Agreement.
It is expressly agreed that the terms of this Agreement and any Order Form
shall supersede the terms in any Customer purchase order or other ordering
document. This Agreement shall also supersede all terms of any unsigned or
"shrinkwrap" license included in any package, media, or electronic version
of Oracle-furnished software and any such software shall be licensed under
the terms of this Agreement, provided that the use limitations contained in
an unsigned ordering document shall be effective for the specified
licenses.
The Effective Date of this Agreement shall be 11/14/97.
Executed by Customer:
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Authorized Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
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Title: Senior Vice President
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Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇, ▇▇
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Executed by Oracle Corporation:
Authorized Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Senior Contract Specialist
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Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
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Oracle is a registered trademark of Oracle Corporation
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[ORACLE LOGO]
NETWORK LICENSE ORDER FORM
Customer Name: Resource/Phoenix, Inc. Contract Administrator: ▇▇▇▇▇▇ ▇▇▇▇
Customer Location: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. Phone: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
ORACLE CONTRACT INFORMATION
Agreement: Software License and Services Agreement
Agreement Name: SLSA-272168-14-NOV-97
This Network License Order Form and attachment(s) (Order Form)
are placed in accordance with the agreement specified above
("Agreement"). Customer hereby orders the Program licenses
described herein for use in the United States, unless otherwise
specified. The Network is defined as any number or combination
of Computers of the Designated Systems listed in this Order
Form, except for Power-Unit based, Computer-based,
Processor-based licenses or other similar licenses as specified
herein.
--------------------------------------------------------------------------------
A. DESIGNATED SYSTEMS/PROGRAMS
Make/Model: DEC ALPHA Make/Model: PC Compatible
Operating System: UNIX Operating System: Windows NT
Media: CD Media: CD
CSI: ________ CSI: ________
Make/Model: SUN Make/Model: HP
Operating System: SOLARIS Operating System: HP-UX
Media: CD Media: CD
CSI: ________ CSI: ________
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DESCRIPTION QUANTITY LICENSE LEVEL LICENSE TYPE
--------------------------------------------------------------------------
Per User Licenses:
For use in the U.S.
Oracle81 Enterprise Edition 231 Full Use Concurrent
Diagnostics Pack 231 Full Use Concurrent
Tuning Pack 231 Full Use Concurrent
Express Server 5 Full Use Concurrent
Per User Licenses:
For use in the U.S.
Oracle Developer Server 231 Full Use Concurrent
Oracle Applications Licenses:
Total of 350 Named users and 350 Casual users distributed as follows:
For use in the U.S.
*Oracle Financials 200 Full Use Named
*Oracle Discrete Manufacturing 35 Full Use Named
*Oracle Order Management 35 Full Use Named
*Oracle Purchasing 20 Full Use Named
*Oracle Project Costing 35 Full Use Named
*Oracle Financials 225 Full Use Casual
*Oracle Discrete Manufacturing 35 Full Use Casual
*Oracle Order Management 35 Full Use Casual
*Oracle Purchasing 20 Full Use Casual
*Oracle Project Costing 35 Full Use Casual
*Oracle Project Billing 25 Full Use Named
Oracle EDI Gateway 1 Full Use Computer
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DESCRIPTION QUANTITY LICENSE LEVEL LICENSE TYPE
--------------------------------------------------------------------------------
Per Client Licenses:
For use in the U.S.
Personal Express 5 Full Use Named
Oracle Discoverer End User Edition 10 Full Use Named
Oracle Discoverer Administration Edition 1 Full Use Named
Oracle Financial Analyzes 5 Full Use Named
Net License Fees: $ *
Less Credit for Terminated Licenses: $ *
----------
Adjusted Net License Fees: $ *
Initial Year Annual Technical Support Fee: $ *
Technical Support Type: Silver
TOTAL FEES: $ *
==========
*For purposes of this Order Form, Named and Casual Users of the Applications
Programs above shall be counted based on the Primary Usage.
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and have been filed separately with the Commission.
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ORACLE
B. GENERAL TERMS
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. Technical Support. Annual Technical Support Services ordered by
Customer will be provided under Oracle's Technical Support Policies and
pricing in effect on the date Technical Support is ordered and shall be
effective upon shipment (or upon Order Form Effective Date for products
not requiring shipment); first year Technical Support is quoted above,
if ordered. Fees for Technical Support are due and payable annually in
advance.
3. Miscellaneous. Customer is licensed to use each Program only on the
Designated System(s) specified in Section A of this Order Form and for
which such Program is available on the Effective Date. The Product
Summary and/or the Shipment Summary included with 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
Documentation (in the form generally available) for each Program
currently available in production release as of the Effective Date below
for use on the Network. 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 60
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.
C. OTHER
1. Additional Programs. For a period of 1 year from the Effective Date,
Customer may add the Programs in the Categories specified below to this
Order Form if such Programs are available in production release and are
listed on Oracle's U.S. Price List for installation on the Designated
Systems types as of the Effective Date. The license fee for such
Programs shall be at the discounts, specified below, off Oracle's
standard applicable list license fees in effect as of the Effective
Date. Upon Customer's exercise of this option, Oracle shall ship the
Programs to Customer pursuant to the Miscellaneous section above.
Customer may acquire Technical Support from Oracle for such Programs
under Oracle's Technical Support fees and policies in effect when an
order is placed.
Discount off Oracle's
Categories (see attached exhibit) License Level List License Fees
--------------------------------- ------------- ---------------------
Server Programs Full Use *%
Tools Programs Full Use *%
Applications Programs Full Use *%
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and have been filed separately with the Commission.
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2. Additional License Increments. For 1 year from the Effective Date, provided
Customer has continuously maintained Technical Support, Customer may
increase the quantity of each applicable License Type accessing the
Programs on this Order Form ("Additional License Increment") by paying
Oracle the license fee for such Additional License Increments at the
discounts, specified below, off Oracle's standard applicable list license
fees in effect as of the Effective Date:
DISCOUNT OFF ORACLE'S
PROGRAM LICENSE TYPE LICENSE LEVEL LICENSE INCREMENT LIST LICENSE FEES
------- ------------ -------------- ----------------- --------------------
Oracle81 Enterprise Edition Concurrent Full Use 1 $ *
Diagnostics Pack Concurrent Full Use 1 $ *
Tuning Pack Concurrent Full Use 1 $ *
Express Server Concurrent Full Use 1 $ *
Personal Express Named Full Use 1 $ *
Oracle Discoverer End User Edition Named Full Use 1 $ *
Oracle Discoverer Administration Edition Named Full Use 1 $ *
Oracle Financial Analyzer Named Full Use 1 $ *
Oracle Financials Named Full Use 1 $ *
Oracle Discrete Manufacturing Named Full Use 1 $ *
Oracle Order Management Named Full Use 1 $ *
Oracle Purchasing Named Full Use 1 $ *
Oracle Project Costing Named Full Use 1 $ *
Oracle Financials Casual Full Use 1 $ *
Oracle Discrete Manufacturing Casual Full Use 1 $ *
Oracle Order Management Casual Full Use 1 $ *
Oracle Purchasing Casual Full Use 1 $ *
Oracle Project Costing Casual Full Use 1 $ *
Oracle Project Billing Named Full Use 1 $ *
Oracle EDI Gateway Computer Full Use 1 $ *
Each order placed for an Additional License Increment must be at least
$ * in net license fees; applicable sales tax will be added to the fee.
All applicable fees shall be due and payable on the date that Customer
notifies Oracle in writing of its exercise of this option; Oracle has no
shipment obligation. Upon election, this payment obligation is
non-cancellable, and the sum paid is nonrefundable. At the time of
election, Customer may obtain Technical Support services from Oracle for
Additional License Increment at Oracle's applicable Technical Support fees
and policies in effect when such services are ordered. After 1 year from
the Effective Date of this Order Form, Customer may re-negotiate with
Oracle to buy any products on Oracle's U.S. Price List.
3. Credit for Terminated Licenses. In consideration for terminating
Customer's Program licenses under Customer Support Identification (CSI)
numbers: 1642822, 1642824, 1697816, 1758442, 1826348, 1826350, 2291647,
2416903, and 2453700; as of the Effective Date, Customer shall receive a
credit toward the license fees due under this Order Form provided the
invoices for such licenses have been paid in full. This license credit is
reflected in Section A above. The support fees due under this Order Form
shall be reduced by the amount of unused Technical Support associated with
these CSI numbers, provided the invoices for such Technical Support have
been paid in full. This support fee reduction is not reflected in Section A
above; it will be processed upon the Effective Date of this Order Form.
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and have been filed separately with the Commission.
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4. International Deployment. Upon Oracle's written consent, which shall not
be unreasonably withheld, and subject to Oracle's transfer fees and
policies in effect at the time of transfer, Customer may deploy License
Types to Customer facilities outside of the U.S., subject to U.S. export
laws.
5. Use of Oracle Applications Programs by Third Parties.
A. Subscriber Rights.
Customer shall have the non-exclusive, non-transferable right to
allow its third party customers in the United States ("Subscribers")
to access and use the Oracle Applications Programs acquired under
this Order Form installed on Customer's Designated Systems for each
such customer's internal data processing use subject to the terms of
this Section and the Agreement. Each Subscriber under this Order
Form shall have the right to access the Oracle Applications
Programs, either remotely through a modem or directly at the
location of the applicable processor on which Customer has installed
the applicable Programs. Each Subscriber must have specific Named
Devices allocated for such access and these devices are included in
total number of Named Devices licensed under this Order Form. If the
Named Devices are to be transferred to another Subscriber, then a
transfer fee must be paid as outlined below in Section 5.D. In no
event shall Customer have the right to sublicense or distribute any
Programs, except as set forth herein.
B. Subscriber Agreements.
Prior to any use or access of the Programs, each Subscriber shall
execute an agreement ("Subscription Agreement") for licensing access
to the applicable Programs. Every Subscription Agreement shall
include, at a minimum, contractual provisions that provide for the
following:
i. The Subscriber shall not cause or permit the reverse
engineering, disassembly or decompilation of the
Subscriber Program, or use the Programs outside the
scope of the Oracle Applications Programs.
ii. Title to the Subscriber Program shall not pass to the
Subscriber.
iii. Oracle's liability for any damages, whether direct,
indirect, incidental or consequential arising from the
use of the Subscriber Program, shall be disclaimed to
the extent permitted by law.
iv. Subscriber may use the Subscriber Program only in object
code form, subject to the restrictions provided under
this Order Form and the Agreement.
v. Upon termination of the Subscription Agreement of any
reassignment of the Subscriber's Named Devices, the
Subscriber shall cease using the Subscriber Program.
vi. Oracle shall be a third party beneficiary of the
Subscription Agreement.
vii. The Subscriber shall not publish any result of benchmark
tests run on the Subscriber Program.
All use of the Subscriber Programs is subject to the terms and conditions
of the Agreement and this Order Form. Upon Oracle's request, Customer
shall provide Oracle with a copy of the Subscription Agreement used by
Customers. Customer agrees to defend and indemnify Oracle and hold Oracle
harmless from all claims, losses, liabilities and settlement costs
resulting from any claims brought against or incurred by Oracle arising
from any use of the Programs by Subscribers or caused by Customer's
failure to include the contractual terms set forth above in a Subscription
Agreement.
C. Technical Support.
Customer is responsible for providing all technical support, training and
consultation to its Subscribers. Any questions from Customer's Subscribers
will be referred by Oracle to Customer.
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D. Subscriber Fees.
Customer shall initially assign and allocate each Named Device of the
Oracle Applications Programs acquired hereunder to a Subscriber(s) once at
no further charge. Each Named Device acquired hereunder shall be assigned
and used by only one Subscriber and may not be used by any other
Subscriber except as specified in Section 5.D. of this Order Form.
For each Subscriber thereafter for which Customer is reassigning or
reallocating use of the Named Devices of the Oracle Applications Programs
previously assigned and allocated to a previous Subscriber, Customer agrees
to pay Oracle a Subscriber fee equal to twenty percent (20%) of the
applicable net user license fee received by Oracle under this Order Form
for the applicable number of Named Devices provided by Customer to the
Subscriber.
Customer shall not grant Subscribers access to more Named Devices of the
Oracle Applications Programs than the maximum number of Named Devices of
such Programs licensed under this Order Form. In the event that a
Subscriber acquires additional Named Devices from Customer, Customer shall
pay additional Subscriber fees as specified above. All Subscriber fees
shall be due and payable with the applicable Subscriber report as
specified herein.
E. Subscriber Reports.
Within 30 days of each grant of Named Devices of the Programs by Customer
to a Subscriber, Customer shall send Oracle a report detailing for that
month for each such grant: Subscriber name, address, and contact
information, the number of Named Devices granted and associated log-on
ids, the applicable Programs, and the Subscriber fees due to Oracle.
Customer shall provide Oracle with payment of all fees required under the
report with such report in the form of a check made out in the amount of
such fees.
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6. Assignment. Oracle hereby consents to the assignment of this Order Form
solely in connection with a merger, a sale, or other disposition involving
substantially all of the assets of Customer to an acquiring entity upon
notice to Oracle, provided that such acquiring entity is not a competitor
of Oracle's.
7. Additional Products. Oracle agrees that upon Customer's request the
parties shall negotiate, in good faith, the terms for additional programs
and or services to be acquired under the Agreement, based upon Oracle's
then current applicable Price List.
________________________________________________________________________________
Customer and Oracle agree that the terms and pricing of this Order Form shall
not be disclosed without the prior written consent of the other party. This
quote is valid through August 27, 1999 and shall become binding upon execution
by Customer and acceptance by Oracle.
RESOURCE/PHOENIX, INC. ORACLE CORPORATION
Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇ Signature:
------------------------- ------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ Name:
------------------------------ -----------------------------
Title: President Title:
----------------------------- ----------------------------
Effective Date: 8/31/99
--------------------
________________________________________________________________________________
SHIPMENT SUMMARY:
13
Page 9 of 10
PROGRAMS DESIGNATED SYSTEMS MEDIA TYPE
-------- ------------------ ----------
Oracle8 Enterprise Edition DEC ALPHA/UNIX CD
Oracle Diagnostics Pack
Oracle Tuning Pack
Express Server
Oracle Financial Analyzer
Oracle Financials
Oracle Discrete Manufacturing
Oracle Order Management
Oracle Purchasing
Oracle Project Costing
Oracle Project Billing
Oracle EDI Gateway
Oracle8 Enterprise Edition SUN SPARC/SOLARIS2 CD
Oracle Diagnostics Pack
Oracle Tuning Pack
Express Server
Oracle Financial Analyzer
Oracle Financials
Oracle Discrete Manufacturing
Oracle Order Management
Oracle Purchasing
Oracle Project Costing
Oracle Project Billing
Oracle EDI Gateway
Oracle8 Enterprise Edition HP 98XX/HP-UX CD
14
Page 10 of 10
Oracle Diagnostics Pack
Oracle Tuning Pack
Express Server
Oracle Financial Analyzer
Oracle Financials
Oracle Discrete Manufacturing
Oracle Order Management
Oracle Purchasing
Oracle Project Costing
Oracle Project Billing
Oracle EDI Gateway
Personal Express PC Compatible/Windows NT CD
Oracle Discover Administration Edition
Oracle Discover End User Edition
Oracle8 Enterprise Edition
Oracle Diagnostics Pack
Oracle Tuning Pack
Express Server
Oracle Financial Analyzer
Oracle Financials
Oracle Discrete Manufacturing
Oracle Order Management
Oracle Purchasing
Oracle Project Costing
Oracle Project Billing
Oracle EDI Gateway
15
[ORACLE LOGO]
JULY 1999 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.
"Casual User" is defined as an individual authorized by the Customer to only
group queries or reports against Oracle Applications Programs. Casual Users are
licensed to use any of the above Oracle Applications Programs 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 they 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 Offices.
"Computer": licensed for use on a single specified computer.
"Processor": shall be defined as the actual number of processors installed in
the licensed Computer and running the Oracle Programs, regardless of the number
of processors which the Computer is capable of running.
"Client": a computer which (1) is used by only one person at a time, and (2)
executes Oracle software in local memory or stores the software on a local
storage device.
"Full Use Programs" are unaltered versions of the Programs with all functions
intact.
"Deployment Programs" may be used only to execute existing applications or
reports. They may not be used to build or modify reports or applications.
Deployment Programs are to be generated by Customer from Full Use Programs.
"Application Specific 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 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 resources, 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
resources, finance and administration, internal messaging and ??
For Oracle Human Resources and Oracle Training Administration "Employee" is
defined as an individual who is actively managed by Oracle Programs. The term
"Employee" includes, without limitation, Customers, employees, contractors,
retirees, and COBRA dependents.
For Oracle Payroll, "Employee" is defined as an individual whose payment, or
payment calculations, are generated by the Programs. The term "Employee":
includes, without limitation, Customers employees, contractors, retirees, and
employees covered by workers compensation laws or regulations.
For Oracle Time Management, "Employee" is defined as an individual who submits
timecards or other time records for payroll processing.
For Oracle Self-Service Human Resources, Oracle Self-Service Purchasing, Oracle,
Self-Service Expenses, and Business Intelligence System (BIS) Applications,
"Employee" is defined as an active employee of Customer.
"Foundation Services": This is limited support, and any license for which ??
is purchased is not a Support Program License.
An "Education Unit" entitles Customer to acquire education 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
application. Order Education Units may only be used in the country where the
Education Units were acquired or within the Territory defined in the
application 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 the functional software components described in the
Documentation.
"Module" is defined as a single production database running the Oracle
Program(s).
"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).
16
Oracle Worldwide Customer Support Services
TECHNICAL SUPPORT POLICIES
SUPPORT TERMS
These Technical Support Policies are limited to Oracle licenses which are
supported with Technical Support, as provided by Oracle Worldwide Customer
Support Services (WCSS).
Technical Support is provided for problems which are demonstrable in the
current release of an Oracle licensed Program, running unaltered on an
acceptable hardware and operating system configuration as specified in the
Documentation. Current Oracle product release information is accessible via
electronic media, as available with Technical Support.
These Technical Support policies are Oracle's current policies and are subject
to change at Oracle's discretion.
TECHNICAL SUPPORT FEES
Technical Support Fees are due and payable annually in advance of a Support
Period commencement.
SUPPORT PERIOD
Oracle Support is normally provided in Support Periods consisting of 12 months.
REINSTATEMENT FEES
In the event that Oracle Support lapses or was never originally procured, a
Reinstatement Fee shall be assessed upon commencement of Technical Support.
Oracle currently calculates Reinstatement Fees from the date that the Technical
Support lapsed (or the license order date if the Program licenses were not
previously supported) to the date that the Technical Support is renewed based
on list OracleBRONZE Support Service fees in Oracle's Local Country Price List
in effect at the time the Technical Support is ordered.
LICENSE SET
A License Set is defined as a logically related group of licenses installed on
the same system(s) and/or used for the same applications.
MINIMUM FEES
All Oracle Support Services (i.e., OracleBRONZE, OracleSILVER or OracleGOLD)
are subject to a minimum support fee for each License Set, per Support Period.
Minimum Support fees can be found in Oracle's Local Country Price List in
effect at the time Technical Support is ordered.
TECHNICAL CONTACTS
With the acquisition of any Oracle Support, the Customer may designate one
primary and one backup employee ("Technical Contacts") per License Set, to
serve as liaisons with Oracle WCSS. Alternatively, with each $250,000 in net
license fees, Customer has the option to designate a total of two (2) primary
and four (4) backup Technical Contacts.
The designated Technical Contact is the sole liaison between the Customer and
Oracle for all software Program support and shall be based at the Customer
premises. To avoid interruptions in support services, Customer must notify
Oracle WCSS whenever their Technical Contact responsibilities are transferred
to another individual.
PROGRAM UPDATES
"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 Program which Oracle licenses separately.
For any Technical Support Updates to the Programs, Oracle shall ship to the
specified Customer location one Technical Support Update copy for each
operating system. Customer shall be responsible for copying and installing the
Updates on the Designated System(s) for which these Programs are licensed.
Page 1
17
ORACLE WORLDWIDE CUSTOMER SUPPORT SERVICES
TECHNICAL SUPPORT POLICIES
EXTENDED ASSISTANCE
Extended Assistance is provided once an Oracle Program has been desupported
under OracleMetal support, i.e., no development support of fixes is provided
via Oracle Support. Extended Assistance is intended for Customers who are
unable to upgrade to a current release of Oracle Programs which are still
supported with error correction under OracleMetal Support (i.e., OracleBRONZE,
OracleSILVER, or OracleGOLD). This level of support provides telephone and
electronic support consisting of answering Customer questions and assisting
Customers with migration plans to Oracle Support, but does not include new bug
fixes, or backperts.
TERMINATION
Customer may terminate Oracle Support at any time by notifying Oracle in
writing at lease thirty (30) days before the desired date of termination.
Oracle Support shall be terminated 30 days after receipt of such notice. Upon
termination, Oracle shall refund the unused portion of support fees paid by the
Customer for the period for which Oracle Support is terminated.
CUSTOMER CPU SUPPORT IDENTIFICATION (CSI) NUMBER, OR LOCAL COUNTRY EQUIVALENT
Customers shall receive a CSI number upon purchasing Oracle Support. The CSI
number identifies the Customer with respect to the following information:
- Company Name and Address
- Program Set and Version
- Support Level and Duration
- Operating System
- Technical Contact Information
Oracle WCSS uses the CSI number to identify the Customer's Support contract
when a Customer calls an Oracle Support Center.
To locate your CSI number, check the following documents:
- The Welcome Letter which you received inside the Support Welcome Pack
following purchase of an Oracle Support Service
- The packing slip of the Support Welcome Pack dispatched by our
Manufacturing & Distribution facility.
INFORMATION CUSTOMERS NEED WHEN CALLING SUPPORT
Before Oracle WCSS can begin work on any problem, information about the nature
and location of the problem is required. Whenever a call is placed to an Oracle
Support Center, the following information should be provided:
- The CPU Support Identification (CSI) number or PC registration number
- The area code and phone number listed under the CSI number
- FAX phone number including area code
- Operating system (including version) on which Oracle Programs are
installed
- The Oracle Program component and version number that this call concerns.
Support questions involve Program components -- constituent parts of an
Oracle Program.
- The relevant Program version(s)
- Any Program error numbers associated with the problem
- Detailed description of the problem
- Severity of the problem. Oracle WCSS classifies problems according to
how they impact the Customer's business. See list below for explanation
of Technical Assistance Request (TAR) Severity Levels.
OracleBRONZE SUPPORT SERVICE
OracleBRONZE Support includes:
- Program Updates
- Minor and major new functionality releases
- Documentation updates
- Transfer Rights
- Technical Support
- Telephone assistance from 5:00 a.m. to 6:00 p.m. (Pacific Time)
Monday through Friday
- MetaLink -- Web based support system
- Maintenance Releases
- Patches and fixes
- General maintenance releases
- Information Access
- SupportNotes(TM) -- CD-ROM repository of technical information
Page 2
18
Oracle Worldwide Customer Support Services
TECHNICAL SUPPORT POLICIES
o Virtual Support Analyst (VSA) - Email based Technical Assistance
Request (TAR) management and support system, (where available).
o Quarterly SupportNews Newsletter
o Client Relations - Non technical support services
ORACLESILVER SUPPORT SERVICE
OracleSILVER support includes all OracleBRONZE components, plus the following:
o Telephone assistance 24 hours a day / 7 days a week
o Global toll free telephone access
o Account management reporting - Faxed upon request
o Proactive Alerts
o Certain known problem and problem resolution information
o Faxed as applicable
ORACLEGOLD SUPPORT SERVICE
OracleGOLD support includes all OracleBRONZE and OracleSILVER Support
components, plus the following:
o Priority call routing & resolution
o Operations Readiness Assessment (ORA)
o Support Account Management (▇▇▇)
o Regular review meetings
o Stability maintenance & software migration planning
o Patch Planning
o Version/Release Planning
o Alerts
o Reactive process management
o Technical support planning
The following support levels (Basic, Standard, and Extended) are not available
for new support contracts:
BASIC ANNUAL SUPPORT
Basic Annual Support includes:
o Telephone assistance (normal business hours)
o Program Updates
o On-line support system access
o Support information document
STANDARD SUPPORT
Standard Support includes Basic Support plus the following:
o Telephone assistance (24x7)
EXTENDED SUPPORT
Extended Support includes Standard Support plus the following:
o Toll-free telephone access
GENERIC SEVERITY DEFINITION
1. SEVERITY 1
The problem causes complete loss of service. Work cannot reasonably continue,
the operation is mission critical to the business and the situation is an
emergency. A Severity 1 problem has one or more of the following
characteristics:
o Data corrupted
o A critical function is not available
o System hangs indefinitely, causing unacceptable or indefinite delays for
resources or response
o System crashes, and crashes repeatedly after restart attempts
24-HOUR COMMITMENT TO SEVERITY 1 TARs:
Oracle will work 24x7 until the issue is resolved or as long as useful progress
can be made. The Customer must provide Oracle with a contact during this 24x7
period, either on site or by pager, to assist the Support and Development
Organizations with data gathering, testing, and applying all fixes to their
environment. Customers are requested to use this classification with great
care, so that valid Severity 1 situations obtain the necessary resource
allocation from Oracle.
2. SEVERITY 2
The problem causes a severe loss of service. No acceptable workaround is
available; however, operation can continue in a restricted fashion.
3. SEVERITY 3
The problem cause minor loss of service. The impact is an inconvenience, which
may require a workaround to restore functionality.
4. SEVERITY 4
The problem causes no loss of service. The result is a minor error, incorrect
behavior, or a
Page 3
19
Oracle Worldwide Customer Support Services
TECHNICAL SUPPORT POLICIES
documentation error that in no way impedes the operation of a system.
SUPPORT FOR INTERNATIONAL LICENSES
Oracle makes Technical Support available to Customers who acquire Program
licenses for installation in more than one country under the following policies:
CENTRALIZED SUPPORT
Under Centralized Support, the Customer's international locations and
subsidiaries receive support through their own designated technical
representatives. These technical representatives channel all inquiries through
their designated Technical Contact. The Technical Contact is entitled to
contact the Oracle Support Center specified in their contract, and is
responsible for providing all subsidiaries with non-localized software Updates.
The Customer is entitled to receive localized software Updates from a local
WCSS center.
LOCAL COUNTRY SUPPORT
Local Country Support provides for phone support and software Updates in the
native language for the country of installation. In certain cases where the
Local Country Oracle WCSS Center cannot provide support (e.g., Oracle Financial
Applications or Vertical Market products), technical calls may be routed by
Oracle to another Oracle WCSS Center, where technical assistance will be
provided in English.
INTERNATIONAL ALLOCATION OF USERS
It is the responsibility of the Customer to inform Oracle of future deployments
and any movement of their global allocation of users. This information should
include, but not be limited to the following.
For Deployment:
- Country where licenses will be installed
- Program Set and number of users
- Technical Contact name and shipping address
For movement of licenses:
- Country from which licenses are being moved
- Country where licenses will be installed
- Number of users being moved
- Program Set and Version
- Technical Contact information
Please email information for deployments and movement of licenses to
▇▇▇▇▇▇@▇▇.▇▇▇▇▇▇.▇▇▇.
PHONE NUMBERS AND ADDRESS INFORMATION
Phone numbers can be found in the Oracle U.S. Guide to Customer Support
(Part number C11071-2). To obtain a copy, please contact Oracle Worldwide
Customer Support Services at (▇▇▇) ▇▇▇-▇▇▇▇.
ORACLE WORLDWIDE CUSTOMER SUPPORT SERVICES
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
▇.▇.▇.
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