AMENDMENT ONE TO THE ORDERING DOCUMENT
EXHIBIT
10.1
AMENDMENT
ONE TO THE ORDERING DOCUMENT
|
ORACLE
CONTRACT INFORMATION
This
document ("Amendment One") amends the ordering document dated May 30,
2007, and all amendments and addenda thereto (the "ordering document")
between Taleo Corporation ("you") and Oracle USA, Inc.
("Oracle"). All terms used but not otherwise defined in this
Amendment One shall have the meanings given to such terms in the ordering
document.
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WHEREAS,
subject to the terms and conditions of this Amendment One, the parties desire to
amend the ordering document as follows:
(i) Add
to the majority owned subsidiary list of the Ordering Document those
subsidiaries listed on the attached Exhibit A; and
(ii) Extend
the Deployment Period to end on [********].
WHEREAS,
the parties also desire to amend the terms of the Unlimited Deployment Right
such that if the Certified License Count for the Unlimited Deployment Program
Licenses is [********] you shall be required to acquire additional licenses of
such programs and technical support for such increased use.
WHEREAS,
the parties also desire to amend and update certain other provisions of the
ordering document, as set forth below;
NOW,
THEREFORE, in consideration of the representations and agreements contained in
this Amendment One and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree
to amend the ordering document as follows:
1. CHANGES
TO THE ORDERING DOCUMENT
The
ordering document shall be amended as follows:
a. Delete
the License Summary table in section A of the Ordering Document in its entirety
and replace it with the following:
License
Summary
Table
One: Unlimited Deployment Program Licenses
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Product
Description / License Type
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Quantity
|
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*^Oracle
Database Enterprise Edition — Processor Perpetual
|
Unlimited
|
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*^Tuning
Pack — Processor Perpetual
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Unlimited
|
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*^Diagnostics
Pack — Processor Perpetual
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Unlimited
|
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*^Real
Application Clusters — Processor Perpetual
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Unlimited
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[********]
Confidential Treatment Requested.
Table
Two: Quantity Based Program Licenses
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Product
Description / License Type
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Quantity
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^Partitioning
— Processor Perpetual
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36
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b. In
the first paragraph following the License Summary table in section A, delete
"for a two (2) year term" and replace with "for a term ending April 30,
2011".
c. Add
the following as a new, third paragraph under the License Summary
tables:
"In
addition, the program specified in Table One and Table Two above with a caret
("^") are limited use programs (the "Limited Use
Programs"). These Limited Use Programs may only be used with
your proprietary application as defined on the attached Proprietary Application
Hosting Registration Form, attached to this Amendment One as Exhibit B and in
accordance with the terms of section C.8 of the ordering document.
d. Section
B.4.b. Add to the end of the first sentence in Section B.4.b
(Total Support Stream), the following: "and (v) the Amendment Technical Support
(as defined in Amendment One to this ordering document)".
e. Section
C.1.a. Delete from the first sentence "for two (2) years" and
replace with [********].
f. Section
C.1.b.
(i) In
the first sentence, delete "second (2nd) anniversary of the effective date of
this ordering document" and replace with [********]; and
(ii) Delete
the second sentence and replace with the following: "On the
Certification Date, the Unlimited Deployment Period and the Unlimited Deployment
Right shall terminate and the quantity of Unlimited Deployment Program Licenses
acquired under this ordering document will be fixed as follows. If
the Certified License Count for an Unlimited Deployment Program License is
[********], the quantity of Unlimited Deployment Program Licenses acquired under
this ordering document for such program will be fixed at
[********]. If the Certified License Count is [********], the
quantity of Processor licenses of such program will be fixed at
[********]. If the Certified License Count is [********], the
quantity of Processor licenses of such program will be fixed at
[********]. If the Certified License Count is [********], you must
acquire additional licenses for such programs and technical support for such
increased use in accordance with the terms of section 6 of this Amendment
One.
g. Section
C.1.c.
(i) Delete
the third sentence and replace with the following: "On the
Accelerated Certification Date, the quantity of Unlimited Deployment Program
Licenses acquired under this ordering document will be fixed as
follows. If the Certified License Count for an Unlimited Deployment
Program License is [********], the quantity of Unlimited Deployment Program
Licenses acquired under this ordering document for such program will be fixed at
[********]. If the Certified License Count is [********], the
quantity of Processor licenses of such program will be fixed at
[********]. If the Certified License Count is [********], the
quantity of Processor licenses of such program will be fixed at
[********]. If the Certified License Count is [********], you must
acquire additional licenses for such programs and technical support for such
increased use in accordance with the terms of section 6 of this Amendment
One.
[********]
Confidential Treatment Requested.
h. Section
C.1.d. In the second and third sentences, delete the reference
to "Final License Count" and replace with "Certified License
Count".
i. Section
C.2.a. In the first sentence, deleted "If the Acquisition
Total including the Increased Revenue of the Acquired Entity is [********] at
the time such Acquired Entity is acquired then you" and replace with
"You".
j. Section
C.2.b. Delete Section C.2.b in its entirety.
k. Section
C.3.
(i) Delete
the third and fourth sentences and replace with the following: "On
the Accelerated Certification Date, the quantity of such Unlimited Deployment
Program Licenses will be fixed as follows. If the Certified License
Count for an Unlimited Deployment Program License is [********], the quantity of
Unlimited Deployment Program Licenses acquired under this ordering document for
such program will be fixed at [********]. If the Certified License
Count is [********], the quantity of Processor licenses of such program will be
fixed at [********]. If the Certified License Count is [********],
the quantity of Processor licenses of such program will be fixed at
[********]. If the Certified License Count is [********], you must
acquire additional licenses for such programs and technical support for such
increased use in accordance with the terms of section 6 of this Amendment
One. If at any time after the Accelerated Certification Date your use
of the programs exceeds the Certified License Count, you must acquire additional
program licenses and technical support from Oracle for your increased usage in
accordance with Oracle's then current prices and policies.
l. Section
C.11. Add the following as a new section C.11., Estimated
Worldwide Usage:
"The
program licenses and services described in section A are for use worldwide,
subject to U.S. export laws. To enable Oracle to provide services and
accurately report revenue for tax purposes, it is estimated that the program
licenses listed in section A shall be installed an/or accessed in each
applicable country as listed on the attached Estimated Worldwide Usage Exhibit
(Exhibit C). Your use of the programs is not limited to these
estimates.
m. Delete
the Subsidiary exhibit attached to the ordering document and replace with the
Subsidiary Exhibit attached to this Amendment One as Exhibit A.
2. FEES
DUE UNDER THIS AMENDMENT ONE
In
consideration of the rights granted under this Amendment One, you agree to pay
Oracle the license and first year technical support fees set forth in the table
below.
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Net
Fees
|
|
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License
Fees
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2,000,000.00
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Technical
Support Attributable to the Programs Acquired under this Amendment
One
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440,000.00
|
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Technical
Support Fee for Additional Terminated Licenses
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1,267,662.10
|
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Total
Net Fees
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3,707,662.10
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All fees
on this Amendment One are in U.S. Dollars. All program licenses and
the period of performance for all services acquired under this Amendment One are
effective upon shipment of tangible media or upon the effective date of this
Amendment One. If shipment of tangible media is not required (such
effective date being referred to as the "commencement
date").
All fees
under this Amendment One are non-cancelable and the sums paid nonrefundable,
except as provided in the agreement. License and services fees are
invoiced as of the commencement date. Service fees are invoiced in
advance of the service performance; specifically, technical support fees
are invoiced annually in advance. In addition to the fees listed in
this section, Oracle will invoice you for any applicable shipping charges or
applicable taxes.
[********]
Confidential Treatment Requested.
In
entering into payment obligations under this Amendment One, you agree and
acknowledge that you have not relied on the future availability of any program
or updates. However, (a) if you order technical support for programs
licensed under this Amendment One, the preceding sentence does not relieve
Oracle of its obligation to provide such technical support under this Amendment
One if-and-when available, in accordance with Oracle's then current technical
support policies, and (b) the preceding sentence does not change the rights
granted to you for any program licensed under this Amendment One, per the terms
of this Amendment One, the ordering document, and the agreement. The
program licenses provided in this Amendment One are offered separately from any
other proposal for consulting services you may receive or have received from
Oracle and do not require you to purchase Oracle consulting
services.
Provided
that you comply with the delivery terms in section 3 below, Oracle shall not
invoice you for sales tax pursuant to California law based on the net license
fees in this section 2 for the programs delivered by electronic download;
however, you agree to indemnify and hold Oracle harmless from and against any
claims, losses, damages, costs, and expenses arising from imposition of sales
tax based on the net license fees for the program licenses listed in section 1.8
above. Oracle shall invoice you and you are required to pay any
applicable taxes related to the net technical support fees (specifically
Software Update License & Support fees) for the ordered technical support
services listed in this section 2.
3. DELIVERY
Oracle
has fulfilled all delivery obligations for every program listed in
section 1.a above except for the programs listed in Table
Two. Oracle has made available to you for electronic download at the
electronic delivery web site located at the following Internet URL: ▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇
the programs listed in Table Two of section 1.a. Through the
Internet URL, you can access and electronically download to your California
location the current production release as of the effective date below of the
software and related program documentation for each of the programs listed in
Table Two of section 1.a. You shall have 60 days from the
effective date of this ordering document to complete the download of the
software and program documentation. Please be advised that not all
programs are available on all hardware/operating system
combinations. For current program availability please check the
electronic delivery web site. Oracle is under no further delivery
obligation under this Amendment One, electronic or otherwise. You
agree to execute and return the attached Certificate of Electronic Delivery
simultaneously with the execution and return of this Amendment
One. Should you require a replacement copy of the software or program
documentation, such replacement copy shall also be
delivered electronically. You shall not be entitled to any
replacement copy in the form of tangible media for the software or the program
documentation, other than updates provided by Oracle under technical support
service if ordered. You acknowledge and agree that (a) you have
not received any tangible media for the programs listed in Table Two of section
1.a as of the effective date of this Amendment One and (b) any rights to receive
media granted under the agreement shall not be applicable to or provided
for the programs listed in Table Two of section 1.a. Further, you
acknowledged that the electronic download delivery method shall be applicable to
Oracle's delivery obligations for the initial copy of the programs listed in
Table Two of section 1.a and shall not be applicable to any delivery of updates
or technical support services ordered under this Amendment One. You
shall be responsible for installation of the software.
4. ADDITIONAL
TERMINATED LICENSES
a. General. In
connection with the Unlimited Deployment Right granted under this Amendment One,
all licenses of any versions or releases of the Unlimited Deployment Program
Licenses (and the Quantity Based License for the Partitioning program which has
been restated herein as set forth in section 7, below) that were acquired by you
and any Acquired Entities prior to the effective date of this Amendment One, and
their associated CSI numbers (CPU Support Identification numbers), shall be
terminated as of the effective date of this Amendment One (the "Additional
Terminated Licenses"). The Additional Terminated Licenses are
specified on the attached Additional Terminated Licenses Exhibit (Exhibit D) and
are deemed added to the Terminated Licenses Exhibit under the ordering
document. Notwithstanding section 7 of this amendment, you shall not
be entitled to a credit or refund for the Additional Terminated Licenses and
will not be allowed to reinstate the Additional Terminated
Licenses. The parties agree to work in good faith to determine if
any licenses were inadvertently omitted from Exhibit D (Additional
Terminated Licenses). In the event that any Additional Terminated
Licenses were inadvertently omitted from the Additional Terminated Licenses
Exhibit, they will be treated as licenses inadvertently omitted from Exhibit A
(Terminated Licenses) of the Ordering Document in accordance with section B.4.c.
of the ordering document.
[********]
Confidential Treatment Requested.
5. AMENDMENT
ONE TECHNICAL SUPPORT CAP
The total
annual technical support due under this Amendment One (The "Amendment Technical
Support") includes: (1) annual technical support attributable to the programs
acquired under this Amendment One (including without limitation
the Additional Unlimited Deployment Program Licenses and the Additional
Quantity Based Programs) and (ii) the annual technical support attributable to
the Terminated Licenses (amended by this Amendment to include the support fees
attributable to Additional Terminated Licenses). Notwithstanding
anything to the contrary, you acknowledge and agree that pursuant to the terms
of this Amendment One, the Amendment Technical Support is hereby included in the
definition of "Total Support Stream" as of the effective date of this Amendment
One. As of the effective date of this Amendment One, the Total
Support Stream, including the Amendment Technical Support, is equal to
$1,707,662.10. For purposes of Oracle's technical support policies,
the technical support acquired under both this Amendment One and the ordering
document shall be considered to have been purchased under a single
order.
Technical
support for the program licenses acquired under section A of the ordering
document (as amended by this Amendment One to include the Additional Unlimited
Deployment Program Licenses and the Additional Quantity Based Program Licenses)
may be renewed annually, and if you renew such technical support then, for the
first and second renewal years (i.e., the renewal years commencing in 2010 and
2011) the fees for such technical support will [********] and if you renew such
technical support for the third and fourth renewal years (i.e., the renewal
years commencing in 2012 and 2013) the fees for such technical support will not
increase by more than [********] over the prior year's fees. The
technical support caps set forth in the preceding sentences are granted,
provided that (1) with respect to each technical support renewal year that
occurs during the Unlimited Deployment Period, you renew the Total Support
Stream, and (2) with respect to each technical support renewal year that occurs
after the end of the Unlimited Deployment Period, you renew the total technical
support due under the ordering document (as amended by this Amendment One) for
the same number of licenses for the same programs as the previous
year. For purposes of determining the fee for the first renewal year
of technical support for the program licenses acquired under section A of
the ordering document (as amended by this Amendment One to include the
Additional Unlimited Deployment Program Licenses and the Additional Quantity
Based Program Licenses), the amount of the prior year's fees shall be equal to
$1,707,662.10.
Notwithstanding
anything to the contrary in this section, the technical support fees owed by you
for the program licenses acquired under the ordering document and this Amendment
One may increase as a result of any mergers or acquisitions of Acquired Entities
in accordance with section C.2 of the ordering document and/or the purchase of
program licenses under section 6 of this Amendment One and/or the inclusion of
inadvertently omitted licenses in accordance with section B.4.c of the ordering
document.
6. ADDITIONAL
LICENSES
a. From
the effective date of this Amendment One until [********], you may order the
programs (and first year of Software Update License and Support for the
programs) at the appropriate license and support fees specified on the attached
Price Hold Exhibit (Exhibit E), provided (i) such programs are available in
production release when ordered; and (ii) you continuously maintain the
Total Support Stream.
b. Each
order placed pursuant to this section must be at least [********] in net license
fees. Your purchase on any such order of programs and/or license
types that are not listed on the attached Price Hold Exhibit will count towards
this minimum purchase amount. Any relevant purchase minimums for the
programs in effect as of the effective date of this Amendment One will apply to
the Program licenses ordered under this section.
c. Each
order placed pursuant to this section will specify Oracle's delivery
obligation. If the order specifies delivery, the programs will be
delivered via electronic download. If electronic download is not
possible or otherwise agreed to by the parties, tangible media will be
delivered. Whenever the delivery of tangible media is required, you
are charged for media and the shipping terms are FCA:Shipping Point Pre-paid and
Add.
d. All
technical support for program licenses acquired under the terms of this section
shall be deemed part of the Total Support Stream.
[********]
Confidential Treatment Requested.
7. RESTATED
PROGRAMS
The 36
Processor licenses of the Quantity Based License for the Partitioning program
listed in section 1.a of this Amendment One were acquired by you under the
ordering document in 2007 ("Restated Licenses"). The original license
grant is hereby terminated, and the licenses for such Quantity Based Licenses
are hereby restated and re-licensed under this Amendment One. These
Processor licenses for this Quantity Based License and their associated Customer
Support Identifier (CSI) numbers are listed in the attached Additional
Terminated Licenses Exhibit. The annual technical support fees for
these Restated Licenses are included in section 2 of this Amendment
One. The technical support fees associated with these Restated
Licenses shall be deemed part of the Total Support Stream.
Subject
to the modifications herein, the Ordering Document shall remain in full force
and effect. Capitalized terms used, but not defined, in this
Amendment One shall have the applicable definition set forth in the Agreement
and/or Ordering Document.
The
effective date of this Amendment One is May 30, 2009. (to be completed by
Oracle)
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TALEO
CORPORATION
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ORACLE
USA, INC.
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Authorized
Signature: /s/ ▇▇▇▇
▇▇▇▇▇▇
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Authorized
Signature: /s/ ▇▇▇
▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇ ▇▇▇▇▇▇
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Title:
GVP Legal
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Title:
Director
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Signature
Date: 30 May
2009
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Signature
Date: May 31, 2009 2:30 pm
PST
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[********]
Confidential Treatment Requested.
EXHIBIT
A
SUBSIDIARY
LIST
Taleo
Corporation; USA
9090-5415
Quebec, Inc. (Holding Company); Quebec, Canada
Taleo
(Canada) Inc; Quebec, Canada
Taleo
(Europe) BV; Netherlands
Taleo
(UK) Limited; United Kingdom
Taleo
(France) SAS; France
Taleo
(Singapore) Pte Ltd; Singapore
Taleo
(Australia) Pte Limited; Australia
Vurv
Technology LLC; USA
Knowledge
Point, LLC; USA
Vurv
Technology Limited; USA
Vurv
Technology Australia Pte Ltd; Australia
Vurv
Technology SAS; France
[********]
Confidential Treatment Requested.
EXHIBIT
B
PROPRIETARY APPLICATION
HOSTING REGISTRATION FORM
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Name
of commercially available application/service offering:
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Taleo
Talent Management Suite
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Application/service
description (please provide as much detail as possible):
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Please
visit: ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇
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Functions
and objectives of the application/service offering (please provide as much
detail as possible):
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Please
visit: ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇
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Application
architecture (please provide a detailed description as to how the
application will interact with the Oracle database, i.e., web based,
multiplexing, client/server, etc.):
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N-tiered,
web based architecture. Taleo application servers process
transaction requests received from user browsers using a JDBC connection
to an Oracle database.
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Physical
location of the hardware and software being hosted:
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Canada,
USA, UK, Netherlands & Australia
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Target
markets and users:
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Fortune
1000 companies that have needs for a Talent Management
solution
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Expected
number of end user companies:
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10000
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[********]
Confidential Treatment Requested.
EXHIBIT
C
ESTIMATED
WORLDWIDE USAGE
USA
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Program
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Quantity
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License
Type
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Database
Enterprise Edition
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[********]
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Processor
Perpetual
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Real
Application Clusters
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[********]
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Processor
Perpetual
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CANADA
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Program
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Quantity
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License
Type
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Database
Enterprise Edition
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[********]
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Processor
Perpetual
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Real
Application Clusters
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[********]
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Processor
Perpetual
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[********]
Confidential Treatment Requested.
EXHIBIT
D
ADDITIONAL
TERMINATED LICENSES
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Existing
License
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Existing
Quantity
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Existing
Metric
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CSI
#
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Diagnostics
Pack
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[********]
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Processor
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[********]
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Oracle
Database Enterprise Edition
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[********]
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Processor
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[********]
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Partitioning
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[********]
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Processor
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[********]
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Real
Application Clusters
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[********]
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Processor
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[********]
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Tuning
Pack
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[********]
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Processor
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[********]
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[********]
Confidential Treatment Requested.
EXHIBIT
E
PRICE
HOLD
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Product
Description
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Metric
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Quantity
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License
Fee
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Software
Update License & Support Fee
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Oracle
Database Enterprise Edition
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Processor
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1
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[********]
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[********]
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Real
Application Clusters
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Processor
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1
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[********]
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[********]
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Diagnostics
Pack
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Processor
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1
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[********]
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[********]
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Tuning
Pack
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Processor
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1
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[********]
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[********]
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|
[********]
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[********]
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[********]
Confidential Treatment Requested.
CERTIFICATE OF ELECTRONIC
DELIVERY
This
Certificate of Electronic Delivery is executed as of the effective date set
forth below by Taleo Corporation ("you") and relates to the electronic
delivery of certain software programs provided by Oracle USA, Inc.
("Oracle"). This Certificate of Electronic Delivery shall be
governed by the terms of the Oracle License and Service Agreement between you
and Oracle dated May 30, 2007, (the "agreement").
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1.
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As
of the date of this Certificate of Electronic Delivery, you agree that
Oracle has provided you with an Internet URL through which you can
download all the programs provided in the ordering document between Oracle
and you dated May 30, 2009, (the "ordering document"). You
will have 60 days from the effective date of the ordering document to
complete your download of the programs
provided.
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2.
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You
agree that Oracle has completed all of the delivery responsibilities
required by the ordering document and the agreement and no additional
shipment of the programs on tangible media (CD's, Disks, Tapes, etc.)
shall be provided or is required.
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The
Effective Date of this Certificate of Electronic Delivery is May 30,
2009.
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Taleo
Corporation
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇
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Title:
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GVP
Legal
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[********]
Confidential Treatment Requested.
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AMENDMENT
TWO
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ORACLE
CONTRACT INFORMATION
This
amendment amends the Oracle License and Services Agreement VQ40407, dated
May 30, 2007, and all amendments and addends thereto (the
"agreement") between you and Oracle USA, Inc
("Oracle").
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The
parties agree to amend the agreement as follows:
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I.
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Section B Applicability of
Agreement
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Delete
the sentence under Section B Applicability of Agreement, and replace with
the following:
"You may
place additional orders under this agreement until
[********]. Additional orders will reference this agreement as
OLSAv040407-11890268-30-MAY-2007 "
Subject
to the modifications herein, the agreement shall remain in full force and
effect.
The
effective date of this amendment is May 30, 2009. (to be completed by
Oracle)
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TALEO
CORPORATION
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ORACLE
USA, INC.
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Authorized
Signature: /s/ ▇▇▇▇
▇▇▇▇▇▇
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Authorized
Signature: /s/ ▇▇▇
▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇ ▇▇▇▇▇▇
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Title:
GVP Legal
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Title:
Director
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Signature
Date: 30 May
2009
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Signature
Date: May 31, 2009 2:30 pm
PST
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[********]
Confidential Treatment Requested.