Exhibit 10.17
ORACLE
PARTNERNETWORK
EMBEDDED SOFTWARE LICENSE
DISTRIBUTION AGREEMENT
This Embedded Software License
Distribution Agreement (“agreement”) includes the terms
and definitions set out below and any orders and/or monthly reports
you submit. This agreement is not effective until accepted by
Oracle. If accepted, Oracle will notify you and the terms of this
agreement will govern.
“You” and
“your” refer to the entity that has entered into this
agreement with Oracle USA, Inc. (“Oracle”) to
distribute Oracle’s programs with your application program.
“You” and “your” also refer to your
majority owned subsidiaries. You warrant that you have the
authority to bind your majority owned subsidiaries to the terms of
this agreement and any applicable order with Oracle and/or report
and further warrant that you shall be responsible for a breach of
such terms by your majority owned subsidiaries.
The term “application
package” refers to your application program into which the
programs are embedded, and that is distributed to an end user. You
must complete a separate application package registration form for
each application package.
The term “application
program” refers to an application program or physical device
developed by you specified in the applicable application package
registration form which is developed to run on the programs and
complies with the following requirements: (1) the application
program or physical device must be generally commercially available
to commercial customers; (2) the application program or
physical device must be accompanied by end user documentation; and
(3) the application program or physical device must be
commercially available to multiple end users and must not be
intended for the exclusive use of a specific end user or
group.
The term “distribution
rights” refers to the right to distribute the programs to an
end user embedded with the application package defined in an
application package registration form in accordance with the terms
of this agreement.
The term “embedded”
refers to the following requirements, with which the application
package must comply:
(i) The programs must be packaged,
installed, and configured as an integrated component on the
application program’s product media or set of media. When
loading the software, the application software must launch the
programs silently. If the Oracle Universal Installer (OUI) is
available as an installer for one or more of the programs then
those programs must be installed by the OUI in silent mode. The
application package must include pre-set configurations for the
programs you are embedding. The end user must not be permitted to
install or configure the programs separately and independently from
the application package;
(ii) The application program must be
designed and developed by you to eliminate program administration
tasks by the end user by including all program administration
functions within the application program. You may not customize the
application package for a single end user or a group of end users.
All administration scripts including startup, shutdown, and backup
are to be provided by you within the application program. The end
user must not be permitted to access the programs directly but
rather only through the application program;
(iii) All information from the
programs must be accessed by the end user either through
prepackaged reports, or add hoc reports that are developed by you,
and included in the application package, which do not require or
permit the end user to navigate the underlying data schema. If you
include Oracle or third party reporting tools in the application
package, such tools must be embedded in the application package
pursuant to the terms of this agreement;
(iv) If the application package must
interface with another application or database, the end user is not
permitted to directly access the database or use Oracle-supplied
APIs to establish the transfer of data. To transfer data, you must
set up predefined APIs unique to the application package and
management of the data transfer must be done through the
application program;
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Confidential
treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*****]. A complete version of
this exhibit has been filed separately with the Securities Exchange
Commission.
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(v) If you include Oracle or third
party database tools in the application package, such tools must be
embedded in the application package pursuant to the terms of this
agreement. The end user may not be permitted to use such tools to
access the programs directly, rather all access must be provided by
you within the application program;
(vi) You may embed Internet
Application Server Java Edition with your application program under
the terms of this agreement at no charge only if your application
package uses the OC4J J2EE Server as a component of your
application package;
(vii) Program upgrades must be
certified and distributed as a component of the application package
and the end user shall be unable to upgrade the database or other
Oracle program technology versions as a separate
component;
(viii) As you deem necessary, you
will provide customer service, support, and education for all
program operations to the end user. If you discontinue providing
customer service, support, or education for your application
package to the end user, Oracle will not be obligated to provide
ongoing service, support, or education to the end user. You will
notify Oracle of your intention to discontinue any support services
provided by you to the end user;
(ix) Only you can access the
programs directly for purposes of technical assistance to your end
user and such access is limited to providing technical assistance,
including troubleshooting, problem resolution, and support
assistance. You shall not provide remote or onsite program
administration tasks on behalf of the end user that are otherwise
prohibited under the terms of this agreement;
(x) The embedded programs and the
application program must be priced together on your standard price
list and on the end user’s invoice as the price of the
application package, and must not be distributed separately;
and
(xi) The application program(s)
described on the applicable application package registration form
and with which the programs are embedded must not be distributed
under any other Oracle distribution agreement.
The term “end user”
refers to a third party that is licensed to use the application
program with the embedded programs for its own internal business
operations subject to the terms of an end user license agreement as
further provided for in this agreement.
The term “end user license
agreement” refers to a legally binding written agreement as
further described in Section G.
The term “Oracle Finance
Division Contract” refers to a contract between you and
Oracle (or one of Oracle’s affiliates) that provides for
payments over time of some or all of the sums due to Oracle under
this agreement.
The term “Oracle
PartnerNetwork” refers to Oracle’s partner program that
provides access to specified Oracle services, tools and resources.
You can access the Oracle PartnerNetwork at
http://partner.oracle.com .
The term “Partner Ordering
Policy” refers to Oracle’s Partner Ordering Policy in
effect at the time a report is submitted to Oracle which is
incorporated into this agreement and is subject to change at
Oracle’s discretion. You may access the current version of
the Partner Ordering Policy at http://partner.oracle.com
(log in, select Membership / Agreements &
Policies).
The term “programs”
refers to the software products owned or distributed by Oracle and
set forth on the Oracle Embedded Product and Royalty Matrix which
you acquire pursuant to an Oracle PartnerNetwork Agreement with
Oracle for development purposes and which you are permitted to
distribute to an end user embedded with the application package as
provided in this agreement, including program documentation and any
program updates acquired through technical support. The term
“programs” does not include any Oracle programs which
are not included on the Oracle Embedded Product and Royalty Matrix.
You may access the Oracle Embedded Product and Royalty Matrix at
http://partner.oracle.com (log in, select Membership /
Agreements & Policies).
The term “program
documentation” refers to the program user manual and program
installation manuals. Program documentation for the programs you
distribute is delivered with the programs, or the documentation may
be accessed online at http://oracle.com/contracts
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The term “services” refers to
technical support or other services which you have
ordered.
The term “technical
support” consists of annual technical support services for
the programs as defined in Oracle’s technical support
policies in effect at the time such technical support is
ordered.
You must be a member of the Oracle
PartnerNetwork in order to distribute programs. Oracle grants you a
nonexclusive, nontransferable right to (a) to duplicate the
programs for which you have received a development license under an
Oracle PartnerNetwork Agreement between you and Oracle and
(b) to distribute such programs to end users as part of the
application package. The programs must be embedded with your
application program and distributed with your application program
and cannot be provided separately. Prior to distributing programs,
you must obtain an order from the end user for the programs, which
order and programs shall be subject to a valid end user license
agreement. Each distributed embedded program must be used only for
the internal business operations of the end user and must be used
only in conjunction with the application package. Each distributed
embedded program shall be subject to the terms of this agreement
and the terms provided in the end user license agreement. You may
distribute the application package to yourself or your affiliated
entities and you or such entity shall be considered an end user
under this agreement provided that (1) the total fees paid to
Oracle for such distribution do not exceed 20% of the total fees
paid to Oracle under this agreement, (2) you comply with the
requirements of Section G (License Agreement), and (3) you
report such distribution in accordance with Section F (Reporting).
Oracle shall inform you of any notices that are related to third
party software components (including open source software) that are
included in a program and that Oracle is required to distribute
with such programs. These notices shall be provided to you in at
least one of the following ways, at Oracle’s sole discretion:
(a) automatically installed with the programs; (b) in the
program documentation; or (c) via a supplemental list. You
shall reproduce all third party notices in an appropriate location
in the application package and/or in its related documentation, as
required by the applicable notices or as otherwise directed by
Oracle. You must provide the following legend on the sign on screen
of the application package, or if the application package is a
physical device, you must provide the legend on the label for the
media containing the programs and your application program:
“The programs included herein are subject to a restricted use
license and can only be used in conjunction with this
application.”
Oracle may request that you acquire
any third party, royalty-free license offered generally to the
public that Oracle, in its reasonable discretion, determines may be
necessary to avoid a claim of infringement for distribution of any
program or other Oracle software either by Oracle or by you under
the terms of this agreement. In the event you fail to acquire such
license, Oracle may terminate this agreement with respect to the
relevant program(s) and/or other software on thirty (30) days
written notice, and whether or not this agreement is terminated,
Oracle shall have no obligation to indemnify you under Section J
(Indemnification) for any claim of infringement that would have
been avoided by the acquisition of such license.
Oracle grants you a nonexclusive
right for you and your distributors to distribute trial licenses of
the application package to no more than 50 end users, at any one
time, for the end users’ own internal evaluation purposes
(and not for development, prototype, training or technical support
purposes) pursuant to section G, License Agreement, below. Trial
licenses shall be for 30 days and shall be subject to the terms of
this agreement and the terms provided in the order. If your end
users want to use a trial license for more than 30 days, then they
must obtain an appropriate license and pay the appropriate fees.
You must pay Oracle a fee for any trial licenses that you
distribute that extend for more than 30 days. Programs licensed for
trial purposes are provided “as is” and Oracle does not
provide technical support or any warranties for these
programs.
You may appoint distributors to
distribute the programs embedded with your application package as
provided under the terms of this agreement. Distributors have no
right to make copies of the programs and shall obtain all programs
from you. Each distributor must be subject to a legally binding
written agreement between you and the distributor that
(a) grant the rights for the distributor to distribute the
application package to end users, (b) contains or incorporates
provisions which are equivalent to the terms of this agreement, and
(c) permits you to audit your distributors’ activities
under such agreement and report such activities to Oracle or assign
your right to audit the distributors’ activities to Oracle.
In addition, the agreement with your distributors shall require the
distributors to distribute the application package subject to terms
that are consistent with the terms of this agreement. Any
distribution of the application package by your
distributors
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shall be subject to an end user license
agreement between you and the end user as set forth in Section G
(License Agreement) of this agreement. You shall keep executed
distributor agreements for Oracle to inspect upon request. You
shall defend and indemnify Oracle from all claims and for all
damages arising out of the activities of your
distributors.
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E.
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Ownership
and Restrictions
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Oracle or its licensors retain all
ownership and intellectual property rights to the programs. Oracle
retains all ownership and intellectual property rights to anything
developed by Oracle and delivered to you resulting from the
services. Each end user may make a sufficient number of copies of
each program for the licensed use and one copy of each program
media.
Third party technology may be
necessary for use with some Oracle programs and is specified in the
program documentation; specific files (which are identified in the
program documentation) of such third party technology (collectively
the “Open Source Technology”) may be included on the
same medium or as part of the download of Oracle programs you
receive, but is licensed under the Mozilla Public License, Common
Public License, GNU Lesser General Public License, Netscape Public
License or similar royalty-free/open source license (collectively,
the “Open Source Licenses”).
This agreement does not modify or
abridge any rights or obligations you may have in Open Source
Technology under applicable Open Source Licenses; however, to the
extent that Open Source Technology is incorporated into an Oracle
program, your rights and remedies under this agreement with respect
to such Open Source Technology (i.e. indemnification) shall apply,
but only for your use of the Oracle program that is in compliance
with the terms of this agreement and with the terms of any relevant
Open Source License. Any use of Open Source Technology outside of
your licensed use of applicable Oracle programs is subject to the
rights and obligations under such third party technology’s
Open Source License. Open Source Technology programs that are
separate from Oracle programs are provided as a courtesy to you and
are licensed solely under the relevant Open Source License. Any
distribution by you of code licensed under an Open Source License,
whether alone or with the Oracle program, must be under the Open
Source License.
You may not:
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duplicate and/or distribute the
programs unless embedded with the application package;
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use the programs except as
expressly provided in this agreement;
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remove or modify any program
markings or any notice of Oracle’s or its licensors
proprietary rights;
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rent, lease, or timeshare the
programs, or provide subscription services for the programs, or
permit your end user to do so (unless Oracle expressly permits such
access for the specific program license the end user has acquired),
or distribute the programs in any manner except as provided under
this agreement;
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cause or permit reverse
engineering (unless required by law for interoperability),
disassembly, or decompilation of the programs (the foregoing
prohibition includes but is not limited to review of data
structures or similar materials produced by programs);
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disclose results of any program
benchmark tests without Oracle’s prior written
consent;
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engage in any conduct that may be
detrimental to Oracle or to the programs;
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enter into any agreement which
requires you to take any actions that are in conflict with the
terms of this agreement;
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permit end users to install the
programs separately and independently from the application package;
or
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provide end users access to, or
permit end users to make use of any program APIs supplied by
Oracle.
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Oracle reserves any rights not
expressly granted to you under this agreement.
In connection with your distribution
activities under this agreement, you shall submit monthly reports
for programs distributed with the application package to Oracle in
accordance with the Partner Ordering Policy. You should review the
Partner Ordering Policy prior to submitting a report. Your monthly
report must be complete when submitted to Oracle and may not
(a) require any concessions (including requiring Oracle to
perform any obligations or to incur any liability not set forth in
your monthly report) or (b) be changed after it is submitted
to Oracle.
Upon request, you will provide
Oracle with a copy of the complete end user license agreement
including any addenda or amendments thereto, and any ordering
documents or purchase agreements between you and the end user
related to the
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order, with any pricing information or any other
information reasonably deemed confidential or proprietary removed
because the copy(ies) you provide Oracle will not be considered
confidential information. At a minimum you must provide information
related to the programs, including but not limited to, the end
user’s name, the programs distributed, the number of users,
the license levels, the license grant to the end user, any
definitions related to licensing metrics, the date of the order,
and any other information reasonably requested by
Oracle.
Where the acquisition of programs
and/or technical support is financed or leased, then you will
comply with Oracle’s financing and leasing policies which can
be accessed at http://partner.oracle.com (log in, select
Membership / Agreements & Policies).
It is your responsibility to ensure
that any distribution of the programs and/or services to an end
user is subject to a legally binding end user license agreement for
the programs and/or services that you distribute to the end user.
The end user license agreement must, at a minimum:
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(1)
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restrict use of
the programs to the scope of the application package and to the
internal business operations of the end user;
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(2)
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prohibit
(a) the transfer of the programs except for temporary transfer
in the event of computer malfunction if the application package
embeds the programs in a physical device; (b) the end user
from assigning, giving, or transferring the programs and/or any
services ordered or an interest in them to another individual or
entity (and if your end user grants a security interest in the
programs and/or any services, the secured party has no right to use
or transfer the programs and/or any services);
(c) timesharing, service bureau, subscription service, or
rental use of the programs; and (d) title to the programs from
passing to the end user or any other party;
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(3)
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prohibit the
reverse engineering (unless required by law for interoperability),
disassembly or decompilation of the programs and prohibit
duplication of the programs except for a sufficient number of
copies of each program for the end user’s licensed use and
one copy of each program media;
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(4)
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disclaim, to
the extent permitted by applicable law, Oracle’s liability
for any damages, whether direct, indirect, incidental, or
consequential, arising from the use of the programs;
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(5)
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require the end
user, at the termination of the agreement, to discontinue use and
destroy or return to you all copies of the programs and
documentation:
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(6)
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prohibit
publication of any results of benchmark tests run on the
programs;
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(7)
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require the end
user to comply fully with all relevant export laws and regulations
of the United States and other applicable export and import laws to
assure that neither the programs, nor any direct product thereof,
are exported, directly or indirectly, in violation of applicable
laws;
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(8)
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notify the end
user that the programs are subject to a restricted license and can
only be used in conjunction with the application package and that
the end user is not permitted to modify the programs;
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(9)
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not require
Oracle to perform any obligations or incur any liability not
previously agreed to between you and Oracle;
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(10)
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permit you to
audit your end user’s use of the programs and report such use
to Oracle or to assign your right to audit the end user’s use
of the programs to Oracle;
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(11)
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designate
Oracle as a third party beneficiary of the end user license
agreement;
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(12)
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exclude the
application of the Uniform Computer Information Transactions Act;
and
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(13)
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inform the end
user that some programs may include source code that Oracle may
provide as part of its standard shipment of such programs, which
source code shall be governed by the terms of the end user license
agreement.
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You may allow your end users to
permit agents or contractors (including, without limitation,
outsourcers) to use the programs on their behalf for the purposes
set forth in the end user license agreement, subject to the terms
of such agreement provided that such end users are responsible for
such agents and contractors compliance with the end user license
agreement in such use. You shall be financially responsible for all
claims and damages to Oracle caused by your failure to include the
required contractual terms set forth above in each end user license
agreement between you and an end user. Oracle is a third party
beneficiary of any end user license agreement between you and the
end user, but does not assume any of your obligations thereunder,
and you agree that you will not enter into any end user license
agreement that excludes Oracle as a third party
beneficiary.
You agree to inform Oracle promptly
if you are aware of any breach of an end user license agreement.
You agree to enforce the terms of an end user license agreement
between you and an end user if Oracle requests you to do so to
protect its interest, or, at Oracle’s request, to assign to
Oracle or its designee the right to enforce such
agreement.
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You may place an order or submit a
monthly report for programs and/or services with Oracle. You agree
to pay Oracle a fee for each order placed for programs and/or
services ordered and/or distributed under this agreement, as
specified in the applicable order with Oracle and/or report. You
also agree to pay Oracle a fee for every application package with
which the programs are embedded regardless of an end users prior
possession or pre-existing license of these programs unless you are
shipping only an updated version of the application package as part
of your technical support service for which you are paying
technical support fees to Oracle as specified herein. You will not
be relieved of your obligation to pay any fees owed to Oracle by
the nonpayment of such fees by your end user. You are free to
determine the fees charged to an end user for program licenses and
services. At your option, fees payable to Oracle for programs
distributed to end users with the application package will be equal
to either option (a) 20% of the applicable license fee for
each individual program based on the Oracle Technology global price
list in effect at the time you issue a quote or option (b) the
percentage shown in Oracle’s Embedded Product and Royalty
Matrix of the applicable standard license fee for the application
package based on your standard commercial price list in effect at
the time you issue a quote, incorporated in this agreement, and
such fees owed to Oracle will not take into account any discounts
you have offered to your end users.
In addition, with regard to fees for
technical support you provide to end users for perpetual or term
licenses of the programs, you agree to pay Oracle a technical
support fee as set forth in the Oracle Embedded Product and Royalty
Matrix. Technical support may be available to the end user on the
date you ship the application package, or the date you distribute
the application package to the end user, if shipment is not
required. If technical support is provided by you to an end user,
you must pay technical support fees to Oracle and the term for
which you must pay fees to Oracle for such technical support shall
begin on the last day of the month in which the application package
is shipped, or distributed if shipment is not required, and if
renewed, on that date in each subsequent year thereafter. If the
end user does not continuously maintain technical support for the
application package, you will be required to pay reinstatement fees
to Oracle in accordance with Oracle’s current technical
support policies if the end user wants to reinstate technical
support. Fees for technical support are due and payable annually in
advance.
You must select one of the above fee
options for each application package by completing the Application
Package Registration Form attached hereto and your selection will
be in effect for the term of this agreement. If you select option
(a), to view the Oracle Embedded Product and Royalty Matrix, you
must log into the OPN web site at http://partner.oracle.com
(log in, select Membership / Agreements & Policies). It is your
responsibility to access the Oracle Embedded Product and Royalty
Matrix to obtain current information. If you select option (a), if
Oracle’s Embedded Product and Royalty Matrix changes after
you issue a valid written quote for program licenses to an end
user, for 90 days after the date you submit the quote to the end
user, the fee applicable to the programs identified in the quote
shall be based on the Oracle Embedded Product and Royalty Matrix in
effect on the date you submit the quote. If you select option (b),
you will provide Oracle with a copy of your current standard
commercial application package price list at least twice a year so
that Oracle may verify the fees due and payable to
Oracle.
Except as provided herein, all fees
payable to Oracle (including fees for annual technical support
which you provide to end users) are due within 20 days of the last
day of the month in which the application package is distributed to
the end user. If you submit a purchase order to Oracle, fees
payable under such purchase order are due within 30 days of the
date of the purchase order. You also agree to pay any sales,
value-added or other similar taxes imposed by applicable law that
Oracle must pay based on the programs and/or services you ordered
and/or reported, except for taxes based on Oracle’s income.
You agree and you will obtain your end users’ agreement that
you and your end user have not relied on the future availability of
any programs or services in entering into the payment obligations
in the applicable order and/or monthly report; however, (a) if
you order end user technical support for programs, the preceding
sentence does not relieve Oracle of its obligation to provide
updates under your ordering document, 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 for any program licensed under your order and/or
monthly report, per the terms of your order and/or monthly report
and this agreement. Oracle reserves the right to check your credit
rating periodically during the term of this agreement and to modify
these payment terms in the event that there is a material change in
your credit rating. Fees listed in this agreement are exclusive of
value added tax and/or similar sales taxes. Such taxes shall be
charged at the appropriate rate by Oracle in addition to its stated
fees and shall be shown separately on the relevant invoice. Upon
your submission of an order and/or monthly report to Oracle this
payment obligation is non-cancelable, and the sum paid is
nonrefundable, is not subject to set-off for any reason, and is not
subject to the completion or occurrence of any event after the date
your order and/or monthly report is submitted to Oracle.
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I.
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Warranties,
Disclaimers and Exclusive Remedies
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Oracle warrants to you that a
program will operate in all material respects as described in the
applicable program documentation for one year after delivery (i.e.
via physical shipment or electronic download) to the end user. You
must notify Oracle of any program warranty deficiency within one
year after such delivery. Oracle also warrants that services will
be provided in a professional manner consistent with industry
standards. You must notify Oracle of any services warranty
deficiencies within 90 days from performance of the defective
services described in the order with Oracle.
ORACLE DOES NOT GUARANTEE THAT
THE PROGRAMS WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT
ORACLE WILL CORRECT ALL PROGRAM ERRORS.
FOR ANY BREACH OF THE ABOVE
WARRANTIES, YOUR EXCLUSIVE REMEDY AND ORACLE’S ENTIRE
LIABILITY SHALL BE: (A) THE CORRECTION OF PROGRAM ERRORS THAT
CAUSE BREACH OF THE WARRANTY; OR, IF ORACLE CANNOT SUBSTANTIALLY
CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, YOU MAY
END YOUR PROGRAM LICENSE AND RECOVER THE FEES PAID TO ORACLE FOR
THE PROGRAM LICENSE AND ANY UNUSED, PREPAID TECHNICAL SUPPORT FEES
YOU HAVE PAID FOR THE PROGRAM LICENSE; OR (B) THE
REPERFORMANCE OF THE DEFICIENT SERVICES; OR, IF ORACLE CANNOT
SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER,
YOU MAY END THE RELEVANT SERVICES AND RECOVER THE FEES PAID TO
ORACLE FOR THE DEFICIENT SERVICES.
TO THE EXTENT PERMITTED BY LAW,
THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR
IMPLIED WARRANTIES OR CONDITIONS INCLUDING WARRANTIES OR CONDITIONS
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
If a third party makes a claim
against you or an end user that any program infringes their
intellectual property rights based on your duplication and/or
distribution of the programs in accordance with the terms of this
agreement. Oracle, at its sole cost and expense, will defend you
and the end user against the claim and indemnify you and the end
user from the damages, liabilities, costs and expenses awarded by
the court to the third party claiming infringement or the
settlement agreed to by Oracle, if you do the following:
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notify the General Counsel,
Oracle Legal Department, promptly in writing, not later than 30
days after you receive notice of the claim (or sooner if required
by applicable law);
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give Oracle sole control of the
defense and any settlement negotiations; and
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give Oracle the information,
authority, and assistance Oracle needs to defend against or settle
the claim.
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If Oracle believes or it is
determined that any of the programs may have violated a third
party’s intellectual property rights based on your
duplication and/or distribution of the programs, Oracle may choose
to either modify the program to be non-infringing (while
substantially preserving its utility or functionality) or obtain a
license to allow for continued use, or if these alternatives are
not commercially reasonable, Oracle may end the license for the
applicable program and refund any fees you may have paid for it and
any unused, prepaid technical support fees you have paid for the
licenses. Oracle will not indemnify you or an end user if you or an
end user alter a program or if you distribute or the end user uses
it outside the scope of use identified in the user documentation or
if you distribute or an end user uses a version of the program
which has been superceded, if the infringement claim could have
been avoided by distributing or using an unaltered current version
of the program which was provided to you. Oracle will not indemnify
you or an end user to the extent an infringement claim is based
upon a program not provided by Oracle. Oracle will not indemnify
you or an end user to the extent that an infringement claim is
based upon the combination of any program with any products or
services not provided by Oracle. Oracle will not indemnify you or
an end user for infringement caused by you or your end user’s
actions against any third party if the Oracle program(s) as
delivered to you and distributed by you or used by an end user in
accordance with the terms of this agreement would not otherwise
infringe any third party intellectual property rights. If a third
party makes a claim against Oracle that a program, when used in
combination with any product or services provided by you, infringes
their intellectual property rights, and such claim would have been
avoided by the exclusive use of the program, you will indemnify
Oracle. This section provides your exclusive remedy for any
infringement claims or damages.
7
|
K.
|
End User
Technical Support
|
You are responsible for providing
all technical support services and updates to distributors and end
users. Any technical support questions Oracle receives from end
users will be referred to you. You shall have the right to provide
technical support for the programs to end users, including you or
your affiliated entities if you have distributed the application
package to you or such entities, provided (a) that you
continually maintain your membership in the Oracle PartnerNetwork
and maintain annual technical support for the development licenses
that you acquire pursuant to your Oracle PartnerNetwork Agreement
with Oracle and (b) subject to your payment to Oracle of the
applicable annual fees for end user technical support set forth in
Section H (Fees and Taxes) below. If you contract to provide or
provide technical support services to an end user for an
application package, including but not limited to providing any
updates to the programs, then you must report such services to
Oracle in accordance with Section F (Reporting) above and pay the
applicable end user technical support fee. Technical support is
effective upon shipment or delivery by you to the end user, or if
shipment or delivery is not required, upon the effective date of
the order with Oracle, unless otherwise stated in your order with
Oracle. If your order was placed through the Oracle Store or other
online ordering system, the effective date is the date your order
was accepted by Oracle.
Upon expiration of this agreement,
you may continue to provide technical support to end users provided
that (a) this agreement was not terminated due to your breach
of a material term of this agreement; (b) you continuously
maintain your membership in the Oracle PartnerNetwork and thereby
maintain technical support for the development licenses that you
acquired pursuant to your Oracle PartnerNetwork Agreement with
Oracle; (c) you pay all applicable fees and comply with the
reporting requirements set forth in this agreement. After
expiration of this agreement, renewal fees for end user technical
support shall be invoiced by Oracle annually in advance. Fees for
technical support shall be due and payable in advance thirty
(30) days from date of invoice.
Annual technical support is provided
under Oracle’s technical support policies in effect at the
time the services are provided. The technical support policies,
incorporated in this agreement, are subject to change at
Oracle’s discretion; however, Oracle will not materially
reduce the level of services provided for supported program
licenses during the period for which fees for technical support
have been paid. You should review the policies prior to entering
into the order for the applicable services. You may access the
current version of the technical support policies at
http://partner.oracle.com (log in, select Membership /
Agreements & Policies).
You or your distributor will be
responsible for any assistance needed to install the application
package at end user sites. In addition to technical support (as
discussed above), you are responsible for providing all training
and consultations to distributors and end users and any related
questions Oracle receives from end users will be referred to
you.
|
L.
|
Term and End
of Agreement
|
This agreement shall begin on the
effective date specified herein unless you accept the terms of this
agreement online, in which case the effective date shall be as set
forth in an email from Oracle confirming Oracle’s acceptance
of this agreement. The term of this agreement shall continue for 2
years. If your membership in the Oracle PartnerNetwork expires or
is terminated, you will not be permitted to distribute programs
until your membership is made current. When this agreement expires
or terminates, in order to keep distributing the programs, you must
execute the then current version of Oracle’s distribution
agreement and the agreement will be subject to acceptance by
Oracle, and Oracle may require you to complete certain training and
assessment requirements at no charge to Oracle’s
satisfaction. If either of us breaches a material term of this
agreement and fails to correct the breach within 30 days of written
specification of the breach, then the breaching party is in default
and the non-breaching party may terminate this agreement. If Oracle
ends this agreement as specified in the preceding sentence, you
must pay within 30 days all amounts which have accrued prior to
such end, as well as sums remaining unpaid for programs and/or
services received under this agreement plus related taxes and
expenses. If Oracle ends the license for a program under the
Indemnification section, you must pay within 30 days all amounts
remaining unpaid for services related to such license which have
accrued prior to such end, plus related taxes and expenses. In
addition, if Oracle terminates this agreement as provided under
this section, Oracle also may terminate your Oracle PartnerNetwork
agreement and your membership in the Oracle PartnerNetwork. Except
for nonpayment of fees, the non-breaching party may agree in its
sole discretion to extend the 30-day period for so long as the
breaching party continues reasonable efforts to cure the breach.
You agree that if you are in default under this agreement, you may
not duplicate and/or distribute the programs and/or services. You
also agree that if you have used an Oracle Finance Division
Contract to pay for fees due under this agreement and you are in
default under that contract, you may not distribute the programs
and/or services that are subject to such contract. The end
users’ rights to use the programs properly distributed by you
under this agreement shall survive termination of this agreement,
unless such rights
8
are otherwise terminated in accordance with the
applicable end user license agreement. Provisions that survive
termination or expiration are those