Exhibit 10.17
COOPERATIVE MARKETING AGREEMENT
This Agreement is made and entered into by and between Oracle Corporation
("Oracle"), with offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇.▇▇▇ Corporation ("thinWeb"), ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
Whereas, thinWeb is developing and marketing a product called ThinAccess;
and
Whereas, Oracle is developing and marketing the Oracle JDeveloper product
for its Internet platform (the "Oracle Program"); and
Whereas, Oracle and thinWEB wish to enter into a cooperative marketing
agreement to demonstrate to customers and potential customers the benefits of
using ThinAccess in conjunction with the Oracle Program (referred to
collectively as "the Products").
Now, Therefore, in consideration of the mutual promises set forth below,
Oracle and thinWeb agree as follows:
1. Cooperative Relationship and Licenses.
1.1 In General. Oracle and thinWeb agree to cooperate and coordinate in
good faith relating to the marketing of the Oracle Program and ThinAccess.
1.2 License of the ThinAccess to Oracle. thinWEB hereby grants to Oracle
and its subsidiaries a nontransferable, nonexclusive, royalty-free,
worldwide license to use object code versions of ThinAccess and related
documentation and marketing collateral solely for Oracle's use for the
marketing effort under this Agreement. thinWEB shall provide Oracle with
one (1) beta version of each new release and thereafter a mutually agreed
upon number of production versions of ThinAccess for that purpose.
1.3 License of Oracle Program to thinWEB. Oracle hereby grants to thinWEB
and its subsidiaries a nontransferable, nonexclusive, royalty-free,
worldwide license to use object code versions of Oracle Program and related
documentation solely for thinWEB's use for the marketing effort under this
Agreement. Oracle shall provide thinWEB with one (1) beta version of each
new release and thereafter a mutually agreed upon number of production
versions of Oracle Program for that purpose.
1.4 License Restrictions. The licenses described in this Section 1 are
limited to use under this Agreement only for the following purposes:
marketing and demonstraton to customers and potential customers; internal
training; providing technical support to customers solely in conjunction
with the party's own Product; product compatibility testing as set forth in
Section 1.5 herein; and to copy the Products for archival or backup
purposes. No other copies shall be made without the licensor's prior
written consent. All titles,
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trademarks and copyright and restricted rights notices shall be reproduced
in such copies. All archival and backup copies of the Products are subject
to the terms of this Agreement. Neither party may:
A. License, sublicense, distribute (electronically or otherwise), use in
any manner not specified in this Agreement, duplicate, or make the
other party's Product available to unauthorized third parties;
B. Market the other party's Product other than as specified in this
Agreement, unless first obtaining written approval from the other
party;
C. Modify the other party's Product; or
D. Cause or permit the reverse engineering, disassembly, or decompilation
of the other party's Product.
Each party shall retain all title, copyright, and other proprietary rights
in its respective Product, and any modifications or translations thereof.
Neither party acquires any rights in the other Party's Product other than
those specified in this Agreement.
1.5 Compatibility Testing. thinWEB shall verify to Oracle that every
version and update of ThinAccess is compatible with the latest version of
the Oracle Program, specifically, that ThinAccess can be used for access to
Oracle [?] on the web through a firewall. Should either party discover a
compatibility issue during the verification process, the parties agree to
promptly make reasonable commercial efforts to resolve the issue. However,
neither party is obligated to alter its product in any way.
1.6 Technical Support. Each party is responsible for providing technical
support of its own product. However, the parties agree to use reasonable
commercial efforts to cooperate with each other when a support issue arises
during the course of activities undertaken pursuant to this Agreement.
2. Cooperative Marketing Responsibilities.
2.1 Marketing Cooperation. Each party will create a link to the other
party's web site as follows:
A. Oracle will create a link to thinWEB's web site from the Oracle
JDeveloper Partner page located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇; and
B. Consistent with Oracle's policies on web site linking thinWEB will
create a link on its web site to the Oracle JDeveloper web site to
promote the Oracle Program.
2.2 Marketing Options. Oracle and thinWEB shall use reasonable commercial
efforts to cooperate in other joint marketing activities, which may include
the following:
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A. Oracle may:
(i) Make available to thinWEB an early access version of the Oracle
Program via the Oracle Technology Network program;
(ii) Make available to Oracle sales representatives and consultants
marketing collateral provided by thinWEB, via the Oracle
JDeveloper internal web site; and
(iii) Provide to thinWEB a list of additional marketing activities in
which thinWEB has the option to participate.
B. thinWEB may:
(i) Make available to Oracle marketing collateral, in digital form,
including, but not limited to, FAQs, white papers, customer
success stories, reference sites and/or integrated demos, that
Oracle can distribute on its internal JDeveloper web site; and
(ii) In addition to any authorized statements subsequently agreed to
by the parties, state in marketing collateral that ThinAccess is
compatible with the Oracle Program, provided that such
compatibility has been verified pursuant to Section 1.5.
The parties may participate jointly in public relations activities
subsequently agreed to by the parties.
3. Costs and Expenses. Except as otherwise set forth in this Agreement, each
party hereto shall bear all costs, risks and liabilities by it arising out
of its performance under this Agreement. No party shall have a right to any
reimbursement, payment or compensation from the other party for products,
resources supplied, or services performed by a party in furtherance of this
Agreement, except as otherwise expressly provided under this Agreement.
4. Cooperative Marketing Manager. Each party agrees to appoint a manager to
coordinate its respective activities under this Agreement and to act as the
primary point of contact for all activities hereunder. The Cooperative
Marketing Managers for each party are as follows:
For thinWEB: For Oracle:
------------ -----------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
President and CEO Principal Product Manager, Java Tools
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇ (▇▇▇)▇▇▇-▇▇▇▇
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The two Cooperative Marketing Managers will be the individuals responsible
for planning and implementing this relationship, working to resolve any
disputes which may arise, and for focusing priorities and resources
necessary to facilitate the success of this relationship. Oracle and
thinWEB may each change their appointed Cooperative Marketing Manager by
written notification to the other party.
5. Term of Agreement.
5.1 Term. This Agreement shall become effective on the Effective Date set
forth below and shall remain in effect for one (1) year from the Effective
Date, unless the Agreement is terminated previously as provided below. The
initial term of this Agreement will be renewed automatically upon each
anniversary date.
5.2 Termination. Either party may terminate this Agreement on thirty (30)
days written notice without cause.
5.3 Effect of Termination. Upon termination, the licenses granted hereunder
shall terminate, and each party shall discontinue the web site
cross-linking activities set forth in Sectoin 2.1 and cease using the other
party's marketing materials. Sections 6,7,8,9 and 10 shall survive
termination of this Agreement.
6. Publicity and Trademarks
6.1 Publicity. No information regarding the existence of this Agreement, or
the activities covered under this Agreement, will be publicly released
without the prior written authorization of the other party.
6.2 Trademarks. This Agreement grants neither party any rights to use the
other party's trademarks.
7. Warranties.
7.1 WARRANTY. Each party warrants that it has the right to enter into this
Agreement and to perform its obligations hereunder. NEITHER PARTY WARRANTS
THAT ITS PRODUCTS WILL MEET ITS CUSTOMERS' REQUIREMENTS OR OPERATE IN THE
COMBINATION WHICH MAY BE SELECTED FOR USE BY ITS CUSTOMERS. ORACLE PROVIDES
NO WARRANTY AS TO THE OPERATION OF THE ORACLE PROGRAM.
7.2 EXCLUSION. THE WARRANTIES STATED HEREIN ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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8. Confidential Information. By virtue of this Agreement, the parties may have
access to information that is confidential to one another ("Confidential
Information"). Confidential Information shall include: (a) confidential
information which is disclosed by either party in writing and is marked as
confidential at the time of disclosure; or (b) confidential information
which is disclosed by either party in any other manner and is clearly
marked as confidential at the time of disclosure and is also summaried and
designated as confidential in a written memorandum and delivered to the
receiving party writing 30 days of disclosure.
A party's Confidential Information shall no include information which: (a)
is or becomes a part of the public domain through no act or omission of the
other party; or (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; or (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. thinWEB shall not disclose the
results of benchmark tests or other evaluations of the Program to any third
party unless Oracle grants thinWEB prior written consent to such
disclosure.
The parties agree, both during the term of this Agreement and for a period
of five (5) years after termination of this Agreement, to hold each other's
Confidential Information in confidence and to protect the disclosed
confidential information by using the same degree of care, but not less
than a reasonable degree of care, to prevent the unauthorized use,
dissemination or publication of the confidential information as they use to
protect their own confidential information of a like nature. The parties
agree 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 provisions of this Agreement.
9. LIMITATION OF LIABILITY, EXCEPT FOR LIABILITY FOR VIOLATION OF A PARTY'S
INTELLECTUAL PROPERTY RIGHTS, (A) NEITHER PARTY SHALL BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF
PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, IN ANY WAY ARISING FROM
EITHER PARTY'S PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, EVEN IF THE
OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH
DAMAGES, AND (B) NEITHER PARTY'S LIABILITY FOR DAMAGES HEREUNDER SHALL
EXCEED $25,000.
10. Assignment. The rights granted in this Agreement may not be assigned or
transferred by either party without the prior written approval of the other
party. Neither party shall be
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permitted to delegate its responsibilities or obligations hereunder without
the prior written approval of the other party.
11. Controlling Law; Jurisdiction. This Agreement shall be governed by the laws
of the State of California, U.S.A., without regard for its conflict of laws
provisions. This Agreement shall be deemed to be executed in Redwood City,
California.
In any legal action relating to this Agreement, thinWeb agrees: (a) to the
exercise of jurisdiction ever it by a state or federal court in San
Francisco or San Mateo County, California, U.S.A. and (b) that if thinWeb
brings the action, it shall be instituted in one of the courts specified in
Subparagraph (a) above. Oracle may institute legal aciton in any
appropriate jurisdiction.
12. Relationship Between Parties. In all matters relating to this Agreement,
each party will act as an independent contactor. Neither party will
represent that it has any authority to assume or create any obligation,
express or implied, on behalf of the other party, nor to represent the
other party as agent, employee, or in any other capacity.
Nothing in this Agreement shall preclude either party from entering into
relationships with any other companies which are similar to the
relationship between the parties, nor shall this Agreement preclude either
party from independently developing or marketing any products that are
similar to or compete with the other party's products provided however,
that neither party shall use the other's Confidential Information to
develop, promote or market such similar or competing products.
13. Notice. All notices including notices of address changes, required to be
sent hereunder shall be in writing to the Cooperative Marketing Manager
identified in Section 4 above. Notice shall be deemed to have been given
upon addressee's receipt.
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14. Entire Agreement. This Agreement sets forth the entire Agreement between
the parties and supersedes prior proposals, agreements, and representations
between them, whether written or oral relating to the cooperative marketing
of Oracle products and thinWEB products and services. This Agreement may be
changed only if agreed to in writing signed by an authorized signatory of
each party.
The Effective Date of this Cooperative Marketing Agreement is October 18, 1999.
▇▇▇▇▇▇▇.▇▇▇ Corporation Oracle Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ [ILLEGIBLE]
-------------------- ------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ Name: [ILLEGIBLE]
Title: President & CEO Title: Sr. Vice President
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