EXHIBIT 10.20
ORACLE-Registered Trademark-
BUSINESS ALLIANCE PROGRAM AGREEMENT
This Business Alliance Program Agreement (the "Agreement") is between Oracle
Corporation with its principal place of business at 500 Oracle Parkway,
Redwood City, California 94065 ("Oracle") and CableData, Inc. (legal name)
with its principal place of business at 11020 Sun Center Drive, Rancho
Cordova, CA 95670 (the "Alliance Member"). The terms of this Agreement shall
apply to each Program license granted and to all services provided by Oracle
under this Agreement. When completed and executed by both parties, an Order
Form shall evidence the Program licenses granted and the services that are to
be provided.
1. DEFINITIONS
1.1 "COMMENCEMENT DATE" shall mean the date on which the Programs are
delivered by Oracle, or if no delivery is necessary, the Effective
Date set forth on the relevant Order Form.
1.2 "DESIGNATED SYSTEM" shall mean the computer hardware and operating system
designated on the relevant Order Form or Sublicense report for use in
conjunction with a Sublicensed Program, Development License, or Marketing
Support License.
1.3 "ORDER FORM" shall mean the document by which the Alliance Member
orders Program licenses, Sublicenses, and services, and which is agreed
to by the parties. The Order Form shall reference the Effective Date
of this Agreement.
1.4 "PRICE LIST" shall mean Oracle's standard commercial fee schedule that
is in effect when a Program license, Sublicense, or services are ordered
by the Alliance Member.
1.5 "PROGRAM" shall mean the computer software in object code form owned or
distributed by Oracle for which the Alliance Member is granted a license
or grants a Sublicense pursuant to this Agreement; the user guides and
manuals for use of the software ("Documentation"); and Updates. "LIMITED
PRODUCTION PROGRAM" shall mean a Program not specified on the Price List
or which is designated as Limited Production by Oracle.
1.6 "SUBLICENSE ADDENDA" shall mean the addenda to this Agreement specifying
additional Sublicense terms and Sublicense rates and fees for the various
types of Sublicenses which may be granted by the Alliance Member.
1.7 "SUBLICENSE" shall mean a nonexclusive, nontransferable right granted by
or through the Alliance Member to an end user to use an object code copy
of the Programs with the Value-Added Package under authority of a
Sublicense Addendum. "Sublicensee" shall mean a third party who is granted
a Sublicense of the Programs with the Value-Added Package for such party's
own internal data processing purposes and not for purposes of any
further distribution.
1.8 "SUPPORTED PROGRAM LICENSE" shall mean a Development License or Marketing
Support License for which the Alliance Member has ordered Technical
Support for the relevant time period. "TECHNICAL SUPPORT" shall mean
Program support provided under Oracle's policies in effect on the date
Technical Support is ordered.
1.9 "UPDATE" shall mean a subsequent release of a Program which is generally
made available for Supported Program Licenses at no additional charge,
other than media and handling charges. Update shall not include any
release, option or future product which Oracle licenses separately.
1.10 "USER," unless otherwise specified in the Order Form or Sublicense report
for a user type specified in the Price List in effect when the Program
is Sublicensed, shall mean a specific individual employed by the Alliance
Member or Sublicensee (as the case may be) who is authorized by such
party to use the Programs, regardless of whether the individual is
actively using the Programs at any given time.
1.11 "VALUE-ADDED PACKAGE" shall mean the hardware or software products or
services having added value which are developed, sold, and/or licensed
with the Programs to a Sublicensee by the Alliance Member, as provided
under the applicable Sublicense Addenda.
2. LICENSES GRANTED
2.1 DEVELOPMENT LICENSES AND TRIAL LICENSES
A. Oracle giants to the Alliance Member a nonexclusive license to
use the Development Licenses the Alliance Member obtains under this
Agreeement and applicable Sublicense Addenda, as follows:
1. to develop or prototype the Value-Added Package on the Designated
System or on a backup system if the Designated System is inoperative,
up to any applicable maximum number of designated Users or other such
limitation as may be applicable;
2. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value Added Package;
3. to provide training and technical support to employees and to
customers solely in conjunction with the Value-Added Package;
4. to use the Documentation provided with the Programs in support of
the Alliance Member's authorized use of the Programs; and
5. to copy the Programs for archival or backup purposes; no other
copies shall be made without Oracle's prior written consent. All
titles, trademarks, and copyright and restricted rights notices shall
be reproduced in such copies. All archival and backup copies of the
Programs are subject to the terms of this Agreement.
B. The Alliance Member may order temporary trial licenses ("Trial
Licenses") for its evaluation purposes only, and not for development
or prototype purposes, for use during a period specified in the Order
Form. Each Order Form for Trial Licenses shall clearly state
the trial period and shall identify that the order is for a Trial
License.
2.2 MARKETING SUPPORT LICENSES
Oracle grants to the Alliance Member a nonexclusive license to use
the Marketing Support Licenses the Alliance Member obtains under this
Agreement and applicable Sublicense Addenda, as follows:
A. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package, up to any applicable maximum
number of designated Users or other such limitation as may be
applicable;
B. to develop customized prototypes of the Value-Added Package for
prospective Sublicensees on the Designated System if the Alliance Member
does not receive any fees related to the development of such
customized prototypes;
C. to use the Documentation provided with the Programs in support of the
Alliance Member's authorized use of the Programs; and
D. to copy the Programs for archival or backup purposes; no other copies
shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be
reproduced in such copies. All archival and backup copies of the
Programs are subject to the terms of this Agreement.
2.3 SUBLICENSING
A. LICENSE TO SUBLICENSE PROGRAMS
As further set forth in the applicable Sublicense Addenda, Oracle
hereby grants the Alliance Member a nonexclusive, nontransferable license
to market and grant Sublicenses as set forth in such Sublicense Addenda
and at the rates and fees set forth in such Sublicense Addenda.
The Alliance Member shall only have the right to Sublicense Programs
pursuant to an effective Sublicense Addendum between the parties hereto.
The Alliance Member shall Sublicense the Programs solely through a
written Sublicense agreement as provided under Section 2.3.B. Upon
Oracle's request, the Alliance Member shall provide Oracle with a copy
of the Alliance Members standard Sublicense agreement.
B. SUBLICENSE AGREEMENT
Every Sublicense agreement shall include, at a minimum, contractual
provisions which:
1. Restrict use of the Programs to object code, subject to the
restrictions provided under the applicable Sublicense Addenda and
consistent with the Sublicense fees payable to Oracle;
2. Prohibit (a) transfer of the Programs except for temporary transfer
in the event of computer malfunction; (b) assignment, timesharing
and rental of the Programs; and (c) title to the Programs from passing
to the Sublicensee or any other party;
3. Prohibit the reverse engineering, disassembly or decompilation of the
Programs and prohibit duplication of the Programs except for a single
backup or archival copy;
4. 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;
5. Require the Sublicensee, at the termination of the Sublicense, to
discontinue use and destroy or return to the Alliance Member all
copies of the Programs and Documentation;
6. Prohibit publication of any results of benchmark tests run on the
Programs;
7. Require the Sublicensee to comply fully with all relevant export
laws and regulations of the United States to assure that neither
the Programs, nor any direct product thereof, are exported, directly
or indirectly, in violation of United States law; and
8. Specify Oracle as a third party beneficiary of the Sublicense
agreement to the extent permitted by applicable law.
C. MARKETING/SUBLICENSING PRACTICES
In marketing and Sublicensing the Programs, the Alliance Member shall:
1. Not engage in any deceptive, misleading, illegal, or unethical
practices that may be detrimental to Oracle or to the Programs;
2. Not make any representations, warranties, or guarantees to
Sublicensees concerning the Programs the are inconsistent with or in
addition to those made in this Agreement or by Oracle; and
3. Comply with all applicable federal, state, and local laws and
regulations in performing its duties with respect to the Programs.
2.4 ACCEPTANCE OF PROGRAMS
For each Program license for which delivery from Oracle is required
under this Agreement, the Alliance Member shall have a 15 day Acceptance
Period, beginning on the Commencement Date, in which to evaluate the
Program. During the Acceptance Period, the Alliance Member may cancel
the license by giving written notice to Oracle and returning the Program
in accordance with Section 6.6 below. Unless such cancellation notice is
given, the license will be deemed to have been accepted by the Alliance
Member at the end of the Acceptance Period.
2.5 LIMITATIONS ON USE
The Alliance Member shall not use or duplicate the Programs (including
the Documentation) for any purpose other than as specified in this
Agreement or make the Programs available to unauthorized third parties.
The Alliance Member shall not (a) use the Programs for its internal data
processing or for processing customer data; (b) rent, electronically
distribute, or timeshare the Programs or market the Programs by
interactive cable or remote processing services or otherwise distribute
the Programs other than as specified in this Agreement; or (c) cause
or permit the reverse engineering, disassembly, or decompilation of
the Programs.
2.6 TITLE
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Oracle shall retain all title, copyright, and other proprietary rights
in the Programs and any modifications or translations thereof. The Alliance
Member and its Sublicensees do not acquire any rights in the Programs
other than those specified in this Agreement.
2.7 TRANSFER OF PROGRAMS
The Alliance Member may transfer a Development License or Marketing
Support License within its organization upon notice to Oracle; transfers
are subject to the terms and fees specified in Oracle's transfer policy
in effect at the time of the transfer.
2.8 USE OF PROGRAMS BY AGENTS
The Alliance Member and each Sublicensee (as the case may be) shall
have the right to allow each such party's own third party agents to use
each such party's licensed Programs as licensed or Sublicensed under
this Agreement so long as the applicable party ensures that its agents
use the Programs in accordance with the terms of this Agreement or the
applicable Sublicense agreement.
2.9 PRE-PRODUCTION PROGRAMS
As an accommodation to the Alliance Member, Oracle may supply the
Alliance Member with pre-production releases of Programs (which may be
labeled "Alpha" or "Beta"). These products are not suitable for
production use.
3. TECHNICAL SERVICES
3.1 TECHNICAL SUPPORT SERVICES
Oracle shall provide Technical Support services ordered by the
Alliance Member under Oracle's Technical Support policies in effect on
the date Technical Support is ordered, subject to the payment by the
Alliance Member of the applicable fees. Reinstatement of lapsed
Technical Support services is subject to Oracle's Technical Support
reinstatement fees in effect on the date Technical Support is reordered.
The Alliance Member may obtain Technical Support services for Limited
Production Programs and pre-production releases of Programs on a time
and materials basis.
3.2 TRAINING SERVICES
Oracle will provide training services agreed to by the parties under
the terms of this Agreement. For any on-site services requested by the
Alliance Member, the Alliance Member shall reimburse Oracle for actual,
reasonable travel and out-of-pocket expenses incurred.
4. FEES AND PAYMENTS
4.1 LICENSE FEES AND SUBLICENSE FEES
The Alliance Member may order Development Licenses or Marketing
Support Licenses at the standard Program license fees set forth in the
Price List or at the fees otherwise provided in a Sublicense Addendum.
For each Sublicense granted by the Alliance Member, the Alliance Member
agrees to pay Oracle a Sublicense fee as set forth in the applicable
Sublicense Addenda. The Alliance Member shall not be relieved of its
obligation to pay Sublicense fees owed to Oracle by the nonpayment of
such fees by the Sublicensee.
The Alliance Member is free to determine unilaterally its own
license fees to its Sublicensees. If the Alliance Member or a
Sublicensee upgrades the Programs to a larger computer, transfers
the Programs outside the United States and/or to another operating
system, or increases the licensed number of Users, the Alliance Member
will pay additional Sublicense fees to Oracle as provided under Oracle's
transfer policies and rates in effect at the time the Program is upgraded
or transferred.
4.2 TECHNICAL SUPPORT FEES
Technical Support services ordered by the Alliance Member for
Development Licenses and Marketing Support Licenses will be provided under
Oracle's Technical Support policies and rates in effect on the date
Technical Support is ordered.
4.3 GENERAL PAYMENT TERMS
Except as otherwise provided in a Sublicense Addendum, invoices for
payment of license fees shall be payable 30 days from the Commencement
Date. Technical Support fees for Sublicenses shall be payable as
specified in the applicable Sublicense Addendum. Technical Support fees
for Development Licenses and Marketing Support Licenses shall be payable
annually in advance, net 30 days from the renewal date; such fees will be
those in effect at the beginning of the period for which the fees are
paid. Fees due by the Alliance Member shall not be subject to set off for
any claims against Oracle. All payments made shall be in United States
currency and shall be made without deductions based on any taxes or
withholdings, except where such deduction is based on gross income.
Any amounts payable by the Alliance Member 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. The Alliance Member
agrees to pay applicable media and shipping charges. The Alliance
Member shall issue a purchase order, or alternative document acceptable
to Oracle, on or before the Effective Date of the applicable Order Form.
4.4 TAXES
The fees listed in this Agreement do not include taxes; if Oracle is
required to pay sales, use, property, value-added, or other federal,
state or local taxes based on the licenses granted under this Agreement,
or the Sublicenses granted by the Alliance Member, then such taxes shall
be billed to and paid by the Alliance Member. This shall not apply to
taxes based on Oracle's income.
5. RECORDS
5.1 RECORDS INSPECTION
The Alliance Member shall maintain adequate books and records in
connection with activity under this Agreement. Such records shall
include, without limitation, executed Sublicense agreements, the
information required in or related to the Sublicense reports required
under a Sublicense Addendum, the number of copies of Programs used or
Sublicensed by the Alliance Member, the computers on which the Programs
are installed, and the number of Users
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using the Programs. Oracle may audit the relevant books and records of
the Alliance Member to ensure compliance with the terms of this Agreement
upon reasonable notice to the Alliance Member. Any such audit shall be
conducted during regular business hours at the Alliance Member's offices
and shall not interfere unreasonably with the Alliance Member's business
activities. If an audit reveals that the Alliance Member has underpaid
fees to Oracle, the Alliance Member shall be invoiced for such
underpaid fees based on the Price List in effect at the time the audit
is completed. If the underpaid fees exceed five percent (5%) of the
applicable license fees or Sublicense fees paid, then the Alliance Member
shall pay Oracle's reasonable costs of conducting the audit.
Audits shall be made no more than once annually.
5.2 NOTICE OF CLAIM
The Alliance Member will notify the Oracle legal department promptly
in writing of: (a) any claim or proceeding involving the Programs that
comes to its attention; and (b) any material change in the management or
control of the Alliance Member.
6. TERM AND TERMINATION
6.1 TERM
This Agreement shall become effective on the Effective Date and
shall be valid until the expiration or termination of all Sublicense
Addenda hereunder, unless terminated earlier as set forth herein. If not
otherwise specified on the Order Form, each Program license granted
under this Agreement shall remain in effect perpetually under the terms
of this Agreement unless the license or this Agreement is terminated as
provided in this Article 6 below. The term of each Sublicense Addendum
hereunder shall be as set forth in each such Addendum.
6.2 TERMINATION BY THE ALLIANCE MEMBER
The Alliance Member may terminate any Program license, any Sublicense
Addenda, or this Agreement at any time; however, termination shall not
relieve the Alliance Member's obligations specified in Sections 6.5 and
6.6.
6.3 TERMINATION BY ORACLE
Oracle may terminate any Program license, any Sublicense Addenda,
or this Agreement upon written notice if the Alliance Member breaches
this Agreement and fails to correct the breach within 30 days following
written notice specifying the breach.
6.4 FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in
the performance of a required obligation if such failure or delay is
caused by strike, riot, fire, flood, natural disaster, or other similar
cause beyond such party's control, provided that such party gives
prompt written notice of such condition and resumes its performance as
soon as possible, and provided further that the other party may terminate
this Agreement if such condition continues for a period of one hundred
eighty (180) days.
6.5 EFFECT OF TERMINATION
Upon expiration or termination of a Sublicense Addendum or this
Agreement, all the Alliance Member's rights to market and Sublicense the
Programs as set forth in such Sublicense Addendum or this Agreement shall
cease.
The termination of this Agreement, a Sublicense Addendum, or any
license shall not limit either party from pursuing any other remedies
available to it, including injunctive relief, nor shall such termination
relieve the Alliance Member's obligation to pay all fees that have
accrued or that the Alliance Member has agreed to pay under a
Sublicense Addendum or any Order Form, other similar ordering document
under this Agreement, or that appear in a Sublicense report. The
parties' rights and obligations under Sections 2.5, 2.6, 2.7 and
Articles 4, 5, 6, 7, and 8 shall survive termination of this Agreement.
6.6 HANDLING OF PROGRAMS UPON TERMINATION
If a license granted under this Agreement expires or otherwise
terminates, the Alliance Member shall: (a) cease using the applicable
Programs; and (b) certify to Oracle within one month after expiration or
termination that the Alliance Member has destroyed or has returned
to Oracle the Programs and all copies. This requirement applies to
copies in all forms, partial and complete, in all types of media and
computer memory, and whether or not modified or merged into other
materials. Before returning Programs to Oracle, the Alliance Member
shall acquire a Return Material Authorization ("RMA") number from Oracle.
7. INDEMNITY, WARRANTIES, REMEDIES
7.1 INFRINGEMENT INDEMNITY
Oracle will defend and indemnify the Alliance Member against a claim
that Programs infringe a copyright or patent, provided that: (a) the
Alliance Member 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) the Alliance Member provides Oracle with the
assistance, information and authority necessary to perform Oracle's
obligations under this Section. Reasonable out-of-pocket expenses
incurred by the Alliance Member in providing such assistance will be
reimbursed by Oracle.
Oracle shall have no liability for any claim of infringement based on
use of a superseded or 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 the Alliance Member.
In the event 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; (b) obtain for the Alliance Member a
license to continue using the Programs; or (c) terminate the license
for the infringing Programs and refund the license fees paid for those
Programs, prorated over a five year term from the Commencement Date.
This Section 7.1 states Oracle's entire liability and the Alliance
Member's exclusive remedy for infringement.
7.2 WARRANTIES AND DISCLAIMERS
A. PROGRAM WARRANTY
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Oracle warrants for a period of one year from the Commencement Date
that each unmodified Program for which the Alliance Member has a
Supported Program License will perform the functions described in the
Documentation provided by Oracle when operated on the Designated
System.
B. MEDIA WARRANTY
Oracle warrants the tapes, diskettes or other media to be free of
defects in materials and workmanship under normal use for 90 days
from the Commencement Date.
C. SERVICES WARRANTY
Oracle warrants that its Technical Support and training 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
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL RUN PROPERTY ON ALL
HARDWARE, THAT THE PROGRAMS WILL MEET REQUIREMENTS OF THE ALLIANCE
MEMBER OR THE SUBLICENSEES OR OPERATE IN THE COMBINATIONS WHICH MAY
BE SELECTED FOR USE BY THE ALLIANCE MEMBER OR THE SUBLICENSEES, THAT THE
OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT
ALL PROGRAM ERRORS WILL BE CORRECTED. LIMITED PRODUCTION PROGRAMS,
PRE-PRODUCTION RELEASES OF PROGRAMS, AND COMPUTER-BASED TRAINING,
PRODUCTS ARE DISTRIBUTED "AS IS."
The Alliance Member shall not make any warranty on Oracle's behalf.
7.3 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 7.2 above, the
Alliance Member'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,
the Alliance Member shall be entitled to 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, the Alliance Member shall be entitled to
recover the fees paid to Oracle for the unsatisfactory services.
7.4 INDEMNIFICATION OF ORACLE
The Alliance Member agrees to enforce the terms of its Sublicense
agreements required by this Agreement and to notify Oracle of any known
breach of such terms. The Alliance Member will defend and indemnify
Oracle against:
A. All claims and damages to Oracle arising from any use by the Alliance
Member or its Sublicensees of any product not provided by Oracle but used
in combination with the Programs if such claim would have been avoided
by the exclusive use of the Programs;
B. All claims and damages to Oracle caused by the Alliance Member's
failure to include the required contractual terms set forth in
Section 2.3.B hereof in each Sublicense agreement; and
C. All claims and damages to Oracle caused by Sublicensees' breach of
any of the applicable provisions required by Section 2.3 hereof.
7.5 EQUITABLE RELIEF
The Alliance Member acknowledges that any breach of its obligations
with respect to proprietary rights of Oracle will cause Oracle
irreparable injury for which there are inadequate remedies at law and
that Oracle shall be entitled to equitable relief in addition to all
other remedies available to it.
8. GENERAL TERMS AND CONDITIONS
8.1 NONDISCLOSURE
Neither party shall, without first obtaining the written consent of
the other party disclose the terms and conditions of this Agreement,
except as may be required to implement and enforce the terms of this
Agreement, or as may be required by legal procedures or by law.
No other information exchanged between the parties shall be deemed
confidential unless the parties otherwise agree in writing. The
Alliance Member shall not disclose the results of benchmark tests or
other evaluation of the Programs to any third party without Oracle's prior
written approval.
8.2 COPYRIGHTS
The Programs are copyrighted by Oracle. The Alliance Member shall
retain all Oracle copyright notices on the Programs used by the Alliance
Member under its Development Licenses or Marketing Support Licenses.
The Alliance Member shall include the following on all copies of the
Programs in software Value-Added Packages incorporating the Programs
distributed by the Alliance Member:
A. A reproduction of Oracle's copyright notice; or
B. A copyright notice indicating that the copyright is
vested in the Alliance Member containing the following
1. A "c" in a circle and the word "copyright";
2. The Alliance Member's name;
3. The date of copyright; and
4. The words "All Rights Reserved."
Such notices shall be placed on the Documentation, the sign-on
screen for any software Value-Added Package incorporating the Programs,
and the diskette or tape labels. Notwithstanding any copyright notice by
the Alliance Member to the contrary, the copyright to the Program
included in any such application package shall remain in Oracle.
Other than as specified above, on any reproduction or translation of
any Programs, Documentation, or
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promotional material, the Alliance Member agrees to reproduce Oracle's
copyright notices intact.
8.3 TRADEMARKS
"0racle" and any other trademarks and service marks adopted by Oracle to
identify the Programs and other Oracle products and services belong to
Oracle; the Alliance Member will have no rights in such marks except as
expressly set forth herein and as specified in writing from time to
time. The Alliance Member's use of Oracle's trademarks shall be under
Oracle's trademark policies and procedures in effect from time-to-time.
The Alliance Member agrees not to use the trademark "ORACLE," or any
mark beginning with the letters "Ora" or any other mark likely to cause
confusion with the trademark "ORACLE" as any portion of the Alliance
Member's tradename, trademark for the Alliance Member's Value-Added
Package, or trademark for any other products of the Alliance Member.
The Alliance Member shall have the right to use the trademark "ORACLE"
and other Oracle trademarks solely to refer to Oracle's Programs,
products and services.
The Alliance Member agrees with respect to each registered trademark
of Oracle, to include in each advertisement, brochure, or other such use
of the trademark, the trademark symbol "circle R" and the following
statement:
_____________ is a registered trademark of Oracle Corporation,
Redwood City, California
Unless otherwise notified in writing by Oracle, the Alliance Member
agrees, with respect to every other trademark of Oracle, to include in
each advertisement, brochure, or other such use of the trademark,
the symbol "TM" and the following statement:
_____________ is a trademark of Oracle Corporation, Redwood City,
California
The Alliance Member shall not market the Oracle Programs in any way
which implies that the Oracle Programs are the proprietary product of the
Alliance Member or of any party other than Oracle. Oracle shall not have
any liability to the Alliance Member for any claims made by third parties
relating to the Alliance Member's use of Oracle's trademarks.
8.4 RELATIONSHIPS BETWEEN PARTIES
In all matters relating to this Agreement, the Alliance Member will
act as an independent contractor. The relationship between Oracle and
the Alliance Member is that of licensor/licensee. 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, franchisee, or in any other capacity.
Nothing in this Agreement shall be construed to limit either party's
right to independently develop or distribute software which is
functionally similar to the other party's product, so long as proprietary
information of the other party is not included in such software.
8.5 ASSIGNMENT
The Alliance Member may not assign or otherwise transfer any rights
under this Agreement without Oracle's prior written consent.
8.6 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 deposited in first class mail to the first address listed in the
relevant Order Form (if to the Alliance Member) or to the Oracle
address on the Order Form (if to Oracle).
To expedite order processing, the Alliance Member agrees that Oracle
may treat documents faxed by the Alliance Member to Oracle as original
documents; nevertheless, either party may require the other to exchange
original signed documents.
8.7 GOVERNING LAW/JURISDICTION
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the substantive and procedural laws of the
State of California and shall be deemed to be executed in Redwood City,
California. The parties agree that any legal action or proceeding
relating to this Agreement shall be instituted in any state or
federal court in San Francisco or San Mateo County, California.
Oracle and the Alliance Member agree to submit to the jurisdiction of,
and agree that venue is proper in, these courts in any such legal action
or proceeding.
8.8 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force and effect.
8.9 EXPORT
The Alliance Member agrees to comply fully with all relevant export
laws and regulations of the United States ("Export Law") to assure that
neither the Programs, nor any direct product thereof, are (a) exported,
directly or indirectly, in violation of Export Laws; or (b) are intended to
be used for any purposes prohibited by the Export Laws, including, without
limitation, nuclear, chemical, or biological weapons proliferation.
8.10 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 OR ANY OTHER PERSON
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE'S LIABILITY
FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FARE PAID BY
THE ALLIANCE MEMBER UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM
THE ALLIANCE MEMBER'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, PRORATED OVER A FIVE-YEAR TERM FROM THE COMMENCEMENT
DATE OF THE APPLICABLE LICENSE OR THE DATE OF PERFORMANCE OF THE APPLICABLE
SERVICES.
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The provisions of this Agreement allocate the risks between Oracle and
the Alliance Member. Oracle's pricing reflects this allocation of risk and
the limitation of liability specified herein.
8.11 FEDERAL GOVERNMENT SUBLICENSES
If the Alliance Member grants a Sublicense to the United States
government, the Programs shall be provided with "Restricted Rights" and the
Alliance Member will place a legend, in addition to applicable copyright
notices, on the documentation, and on the tape or diskette label,
substantially similar to the following:
RESTRICTED RIGHTS LEGEND
"Use, duplication or disclosure by the Government is subject to
restrictions as set forth in subparagraph (c)(1)(ii) of the Department of
Defense Regulations Supplement ("DFARS") 252.227-7013, Rights in Technical
Data and Computer Software (October 1988) and Federal Acquisition
Regulation ("FAR") 52.227-14, Rights in Data-General, including Alternate
III (June 1987), as applicable. Oracle Corporation, 500 Oracle Parkway,
Redwood City, CA 94065."
8.12 WAIVER
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or breach.
Except for actions for non-payment or breach of Oracle's proprietary rights
in the Programs, no action, regardless of form, arising out of this
Agreement may be brought by either party more than one year after the cause
of action has accrued.
8.13 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. This
Agreement may be executed in any number of counterparts, each of which
shall be an original and all of which shall constitute together but one and
the same document.
It is expressly agreed that the terms of this Agreement and any Order
Form shall supersede the terms in any Alliance Member purchase order or
other ordering document. This Agreement shall also supersede the terms of
any shrinkwrap or break-the-seal license agreement included in any package
for Oracle-furnished software, except terms contained in such license
agreement that grant specific use rights for the Programs.
The Effective Date of this Agreement shall be________________________________.
EXECUTED BY CABLEDATA, INC. EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ Michael McGrail Authorized Signature:___________
Name: Michael McGrail Name:___________________________
Title: President Title:__________________________
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation.
1-95
7
AMENDMENT ONE
TO THE
BUSINESS ALLIANCE PROGRAM AGREEMENT
BETWEEN
CABLEDATA, INC.
AND
ORACLE CORPORATION
This Amendment One shall serve to amend the Business Alliance Program Agreement,
and any amendments thereto, between CableData, Inc. (the "Alliance Member") and
Oracle Corporation ("Oracle") dated ___________________ (the "Agreement").
The Agreement is amended as follows:
1. The following shall be inserted at the end of the introductory paragraph
of the Agreement:
"The term "Alliance Member" for purposes of this Agreement shall include
the Alliance Member and the Alliance Member's wholly or majority owned
subsidiaries which are specified on the attached Subsidiary Exhibit as
of the Effective Date. Each Subsidiary must agree in writing to be
bound by the terms of the Agreement."
2. In Section 6.5, delete the first paragraph and replace it with the
following:
"Each Sublicensee of the Alliance Member effective at the time of
expiration or termination of this Agreement shall upon execution of a
Sofware License and Services Agreement (the "SLSA"), have the ability
to place orders for additional Programs directly with Oracle. All orders
placed by the Sublicensee shall be placed pursuant to the Terms and
Conditions of the SLSA between Oracle and such Sublicense."
Other than the modification set forth above, the terms and conditions of the
Agreement remain unchanged, and in full force and effect.
The Effective Date of this Amendment One is_______________________, 1996.
CABLEDATA, INC. ORACLE CORPORATION
By: /s/ Michael McGrail By:
--------------------------------- -----------------------------
Name: Michael McGrail Name:
------------------------------- ---------------------------
Title: President Title:
------------------------------ --------------------------
SUBSIDIARY EXHIBIT
CUO, Inc.
CableData International Ltd.
CableLease, Inc.
ORACLE-Registered Trademark-
FULL USE AND DEPLOYMENT SUBLICENSE ADDENDUM
This document (the "Addendum") is between Oracle Corporation ("Oracle") and
CableData, Inc. (the "Alliance Member") and shall be governed by the terms of
the Business Alliance Program Agreement between the Alliance Member and Oracle
effective __________, 19__ (the "Agreement") and the terms set forth below.
1. PROGRAM DISTRIBUTION
1.1 SUBLICENSE OF PROGRAMS AND TERMS
The Alliance Member shall have the right to market and grant
Sublicenses of Full Use Programs or Deployment Programs which are
available in production release and listed on Oracle's Price List in
effect at the time the Programs are ordered from Oracle to Sublicense to a
Sublicensee; provided, however, the Alliance Member shall have no right to
Sublicense any Programs designated as Oracle Applications Programs, Oracle
Express Programs, Limited Production Programs, or other Programs specified
by Oracle from time-to-time without the prior written consent of Oracle.
The Alliance Member shall have the right to market and grant Sublicenses
of Full Use or Deployment Programs for use on Designated Systems in
conjunction with the Integrated System to Sublicensees. Each copy of the
Full Use or Deployment Programs distributed shall be for the Sublicensee's
own internal use in the Territory only on a single Designated System
limited to a maximum number of Users.
To acquire Programs for Sublicensing to Sublicensees, the Alliance
Member shall order such Programs from Oracle. Each order shall specify
the applicable Programs, maximum number of Users, computer/operating
system configuration, fees, shipping location, and any other information
required by Oracle for processing the order. Orders for Trial Sublicenses
shall be clearly marked on the face of the Order Form.
1.2 DISTRIBUTION UNDER ORACLE AGREEMENT
In addition to the Sublicense rights specified in Section 2.3.A of
the Agreement and notwithstanding the terms of such Section and
Section 3.2.B of the Agreement, the Alliance Member shall have the right
to market and grant Sublicenses of Full Use Programs and Deployment
Programs in conjunction with the Integrated System to Sublicensees under a
standard Oracle Software License and Services Agreement in lieu of
Sublicensing the Programs under a written Sublicense agreement.
The Alliance Member may submit orders for Sublicenses to Oracle for
its acceptance.
With each such order, the Alliance Member shall submit a standard
Oracle Software License and Services Agreement executed by the applicable
Sublicensee, or shall reference on such order that the Programs will be
licensed to the Sublicensee subject to an existing license agreement
effective between the Sublicensee and Oracle (the "Oracle Agreement"). In
addition, as part of the Oracle Agreement, the Alliance Member shall
obtain the Sublicensee's written agreement that the ordered Programs and
services are subject to the terms and conditions of the Oracle Agreement.
If the Sublicensee is a federal agency, the Alliance Member shall
submit with each such order a written document executed by an authorized
Sublicensee contracting officer which contains the following provision:
"This is an open market order placed pursuant to terms identical to the
terms and conditions of Oracle's General Services Administration (GSA)
Schedule A Contract for Oracle Programs current as of the order date, with
the exception of the maximum order lineations, discounts, maintenance,
training units and other discounts specific to the applicable Oracle GSA
Schedule. No other pre-printed or reference terms and conditions shall
apply." This written document shall be deemed the applicable Oracle
Agreement.
For orders which include only shrinkwrapped Oracle Programs, the
Oracle Agreement may consist of a written obligation by the Sublicensee to
use the Programs under the terms of the shrinkwrap license agreement.
The Alliance Member shall indemnify Oracle for any claims, damages,
or losses arising from failure to obtain any Oracle Agreement.
If the order specifies that the Programs are to be delivered to the
Alliance Member, the Alliance Member shall have the right to re-deliver
the Programs with their original packaging to the applicable Sublicensee.
1.3 FULL USE AND DEPLOYMENT PROGRAMS
For the purposes of this Addendum, "Full Use Programs" shall mean
unaltered versions of the Programs with all functions intact. "Deployment
Programs" shall mean Programs which are limited to use solely for the
purpose of running applications, and may not be used to create or alter
tables or reports except as necessary for operating the applications.
1.4 VALUE-ADDED PACKAGE
For the purposes of this Addendum, "Integrated System" shall mean the
hardware and software products having Value-Added which are developed,
sold, and/or licensed with the Programs to a Sublicensee by the Alliance
Member to satisfy such Sublicensee's internal business requirements and
objectives. For purposes of the Agreement, the Integrated System will be
regarded as the Alliance
Member's Value-Added Package which is described in the attached Value-
Added Attachment. The Integrated System shall be regarded as "Value-Added"
if the following materials are provided as part of the Integrated System
by the Alliance Member: (a) non-Oracle developed software; (b) customized
programming or customized consulting; and (c) other computer products or
components.
1.5 TRIAL SUBLICENSES
The Alliance Member shall be entitled to grant, at no charge, up to
ten (10) temporary Trial Sublicenses of the Programs at any one time.
Such Sublicenses shall be for evaluation purposes only and shall be for a
period not to exceed thirty (30) days. The Alliance Member shall pay
Oracle Sublicense fees for any Trial Sublicenses in excess of thirty (30)
days. Each such Trial Sublicense shall be Sublicensed under a Sublicense
agreement which provides for such trial use or under an Oracle Trial
License Agreement, as the applicable Oracle Agreement.
1.6 NO DISTRIBUTORS
The Alliance Member's right to market and grant Sublicenses of Full
Use Programs or Deployment Programs hereunder shall be limited to the
Alliance Member only. The Alliance Member shall not appoint any third
party to distribute the Programs without Oracle's prior written
consent.
1.7 DOCUMENTATION
Oracle shall deliver one copy of the applicable Documentation with
each order of Programs for Sublicensing to Sublicensees.
2. SUBLICENSE FEES
2.1 SUBLICENSE FEES AND RATE
For each copy of the Programs Sublicensed by the Alliance Member, the
Alliance Member agrees to pay Oracle a Sublicense fee equal to [*]
of the applicable license fee for each such Program, as
specified in the applicable Price List and Alliance Member Price List
supplement to such Price List in effect at the time the applicable
Programs are Sublicensed to a Sublicensee. The Sublicense fee shall
be calculated effective on the date of the Sublicense, which shall be
the date the Programs are shipped by Oracle or the effective date of
the order to Oracle for such Programs, if no shipment is required.
Fees for Sublicense of Programs shall be due and payable on the date
that Oracle ships the applicable Programs and shall be deemed overdue if
not paid within thirty-one (31) days of the due date. The Alliance Member
shall not be relieved of its obligation to pay Sublicense fees owed to
Oracle by the nonpayment of such fees by the Sublicensee.
2.2 PRICE LIST
As set forth in the Agreement, the applicable Price List for
determining Sublicense fees shall be the standard Price List in effect at
the time the Program is Sublicensed to a Sublicensee. However, pricing
for any federal agency, pursuant to terms and conditions identical to the
terms and conditions of Oracle's GSA Schedule A Contract for Oracle
Programs current as of the order date, shall be based on Oracle's
published GSA Price List.
Notwithstanding any other provision of this Agreement, if the
Alliance Member issues a written Sublicense quote and such quote is
accepted by the applicable Sublicensee, for a period of ninety (90) days
after the date of submission of the quote to the Sublicensee, the fee
applicable to the Programs identified in the quote shall be based on the
Price List in effect on such date.
2.3 USERS
The fees for Sublicense of a Program shall be based and priced on the
applicable User Level for the maximum number of Users for such Program, as
specified in the Price List. The Alliance Member shall have the right to
Sublicense on any User basis specified in the Price List in effect at the
time the applicable Program is Sublicensed to a Sublicensee.
3. TERM
This Addendum shall become effective on the Effective Date of this
Addendum and shall be valid for one (1) year (the "Term"), unless
terminated as provided in the Agreement. Any renewal of this Addendum
shall be subject to renegotiation of terms and fees.
4. TERRITORY
The Alliance Member shall have the right to market and grant
Sublicenses of Full Use Programs or Deployment Programs in the United
States only (the "Territory").
5. TECHNICAL SUPPORT
5.1 TECHNICAL SUPPORT FOR SUBLICENSEES
A Sublicensee may acquire Technical Support services for Full Use
Programs or Deployment Programs Sublicensed under this Addendum from
Oracle at Oracle's standard rates and fee in effect at the time such
Technical Support services are ordered under an Oracle Technical Support
Services Agreement or Oracle Agreement, as applicable.
5.2 TECHNICAL SUPPORT FEES
Oracle agrees that the Alliance Member shall have the right to offer
Oracle annual Technical Support services to Sublicensees in the United
States that are currently acquiring Full Use Programs or Deployment
Programs. The Alliance Member shall only offer Oracle Technical Support
services with respect to the initial first year of Technical Support for a
Sublicensed Program. The Alliance Member shall only offer Oracle annual
Technical Support services to a Sublicensee provided that:
A. Oracle receives from the Sublicensee an executed, standard Oracle
Technical Support Services Agreement, Oracle Agreement, or other terms to
govern the Technical Support services as agreed to in writing by Oracle
and the Sublicensee;
B. The Full-Use or Deployment Programs are currently Sublicensed by the
Alliance Member;
C. The Alliance Member pays Oracle its required Sublicense fee for the
applicable Sublicensed Programs as provided under the Agreement, and the
Alliance Member pays Oracle the applicable
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
2
Technical Support services fees as set forth herein in advance;
D. The Alliance Member's Sublicense of the Full Use Programs or
Deployment Programs coincides with the agreement to provide Technical
Support Services for such Programs; and
E. The net Technical Support services fees represent new Technical Support
revenue to Oracle.
The Technical Support services fees payable by Alliance Member as
provided above shall be Oracle's standard rates for such services as
provided under the Price List in effect at the time the Technical Support
services are ordered, discounted by ten percent (10%).
6. SUBLICENSE REPORTS
With each order for Programs for Sublicense to a Sublicensee, the
Alliance Member shall send Oracle a report detailing for each Sublicensed
Full Use Program or Deployment Program: Sublicensee name, address,
make/model and operating system of the Designated System. Full Use or
Deployment Programs, maximum number of licensed Users, whether the
Sublicense is a Trial Sublicense, total Program fees and Technical Support
Fees due to Oracle, and specific descriptions of the Integrated System and
Value-Added.
7. ADDITIONAL LICENSES
During the Term, the Alliance Member may order production release
versions of Oracle off-the-shelf Programs available as production release
as of the Effective Date of this Addendum and listed on the Price List in
effect as of such date. The license fee for Development Licenses shall be
equal to Oracle's standard list license fees in effect when an order is
placed. The Alliance Member shall have the right to order Programs for
use as Marketing Support Licenses at no further charge to the Alliance
Member. The Alliance Member may obtain Technical Support services from
Oracle for such Programs under Oracle's applicable Technical Support fees
and policies in effect when such services are ordered.
The Effective Date of this Addendum shall be________________________.
EXECUTED BY CABLEDATA, INC.: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ Michael McGrail Authorized Signature:
------------------- -------------
Name: Michael McGrail Name:
------------------------------------ -----------------------------
Title: President Title:
----------------------------------- ----------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation.
8-95
3
VALUE-ADDED ATTACHMENT
DESCRIPTION OF INTEGRATED SYSTEM:
CableData's Intelecable Solution
HARDWARE COMPONENTS:
IBM RS6000, SP platforms
Tandem Integrity NR platform
Tandem OSS/Non Stop platform
SOFTWARE PRODUCTS OTHER THAN PROGRAMS:
BEA Tuxedo TP monitor middleware products
other 3rd party software programs that may be necessary
SERVICES TO BE PROVIDED BY THE ALLIANCE MEMBER:
Professional services; installation, implementation, support
custom software integration projects
AMENDMENT ONE
TO THE
FULL USE AND DEPLOYMENT SUBLICENSE ADDENDUM
BETWEEN
CABLEDATA, INC.
AND
ORACLE CORPORATION
This Amendment One shall serve to amend the Full Use and Deployment
Sublicense Addendum dated ______________ (the "Addendum") between CableData,
Inc. (the "Alliance Member") and Oracle Corporation ("Oracle").
The Addendum is amended as follows:
1. In Section 1.5, delete the words "ten (10)" and replace them with the
words "twenty (20)."
Also, delete the words "thirty (30)" in each instance in which they appear
in such Section and replace them with the words "ninety (90)."
2. After Section 1.2, add the following new Section:
"1.2.A Pass-Through Order
As set forth in Section 1.2 above, the Alliance Member shall have the
right to distribute Full Use Programs and Deployment Programs under a
standard Oracle Software License and Services Agreement. In addition to
the procedure set forth in Section 1.2 above, if elected by the parties,
Oracle shall issue an Oracle Order Form documenting (i) that the end user
shall receive a license for the applicable Programs under the terms and
conditions of the applicable Software License and Services Agreement
between Oracle and the end user, and (ii) that the Alliance Member shall
be responsible for paying Oracle for the Oracle products and services
provided by Oracle to the end user under the Order Form ("Pass-Through
Order"). All three parties will be required to execute the Pass-Through
Order in order for such order to be effective. Also, the Alliance Member
shall provide its purchase order with such Pass-Through Order. The Pass-
Through Order shall constitute the end user's written agreement that the
ordered products and services are ordered subject to the terms and
conditions of the Oracle Agreement. The fees due to Oracle by the
Alliance Member under such Pass-Through Order shall be equal to the total
amount as set forth on the Pass-Through Order less ten percent (10%) of
the net license fees on the Pass-Through Order."
3. After Section 1.2A, add the following new Section:
"1.2B. COMMISSIONS
During the Term of this Addendum, Oracle agrees to pay the Alliance Member
a fee ("Commission") equal to [*] of the net license fees
Oracle receives from Programs licensed by Oracle to end-users in the
Territory, as a direct result of the Alliance Member's marketing efforts.
Unless otherwise mutually agreed to in writing by the Alliance Member and
Oracle, Commissions shall only be paid provided that:
A. Oracle obtains from the end-user an Oracle Software License and
Services Agreement, or other terms to govern the applicable software
license as agreed to in writing by Oracle and the end-user;
B. The Alliance Member provides to Oracle a completed Commission Request
Form which is accepted in writing by Oracle at least five (5) days prior
to the date of license of the applicable Programs, and the end user pays
Oracle directly for all required license fees;
C. The Alliance Member's marketing efforts precede the license grant from
Oracle; and
D. The net license fees represent new revenue to Oracle.
The Alliance Member's Commission shall be calculated on fees for perpetual
software licenses only. The Alliance Member shall not earn a Commission
based on Technical Support fees or fees for other services or products
provided to the end-user by Oracle. Commissions shall not be paid with
respect to any distribution transactions under Sections 1.2 and 1.2.A of
this Addendum, unless otherwise agreed to in writing by Oracle. Oracle
reserves the right to withhold payment of the Commissions due to
noncollectability of revenues from the end-user or if the Alliance Member
employs marketing practices not approved by Oracle. Commissions shall be
paid for Program licenses installed in the Territory. If one or
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
more other Alliance Members seek to obtain Commission for a Program
license for which the Alliance Member is seeking Commission, Oracle shall
reasonably reduce or adjust the Commission rate specified above to
apportion payment of commissions between all Alliance Members which in
Oracle's reasonable judgement are entitled to payment of commissions. A
copy of the Commission Request Form is attached hereto as Exhibit A."
4. In Section 2.1, add the following new paragraph at the end of such
Section:
"Notwithstanding any other provision of this Section, if Oracle confirms
in writing that the Sublicensee is a party to an existing and effective
agreement with Oracle which allows such Sublicensee to acquire the
Programs to be Sublicensed to such Sublicensee at a greater discount than
the discount provided in this Section, the Sublicense Fee for the
Sublicense of such Programs to such Sublicensee shall be equal to the
Oracle standard Program license fee for such Program as specified in the
applicable Price List specified in the applicable agreement with Oracle,
discounted by the applicable discount for such Program licenses as
specified in such agreement. In order to allow Oracle to verify that such
discount is applicable, Oracle may require the Alliance Member to attach a
copy of the applicable agreement to the Alliance Member's Order Form for
such Programs."
5. In Section 2.2, add the following new sentence to the end of such Section:
"All Sublicense fees for Sublicenses installed outside the United States
shall be based on the Oracle Global Price List in effect at the time the
Programs are Sublicensed."
6. In Section 4, delete the body of such Section in its entirety and replace
it with the following:
"4. TERRITORY
The Alliance Member shall have the right to market and grant Sublicenses
of Programs in the Application Package in all countries worldwide, (the
"Territory"), subject to the terms of this Section. Oracle may from time
to time deny the Alliance Member the right to Sublicense in certain
countries in the Territory in order to protect Oracle's interests if, in
the reasonable opinion of Oracle's counsel, such countries (i) do not
provide adequate protection for Oracle's proprietary rights through
copyright, trade secret, patent, or other laws; or (ii) have laws or
regulations or the government has committed acts which in the opinion of
Oracle's counsel, are injurious to Oracle's interests in the Programs.
The Alliance Member acknowledges that the Programs are subject to export
controls imposed on Oracle and the Alliance Member by the U.S. Export
Administration Act, United States Departments of Commerce, Treasury, and
State regulations and directives, and other United States law ("Export
laws"). The Alliance Member certifies that neither the Programs nor any
direct product thereof are (i) exported, directly or indirectly, in
violation of Export laws; or (ii) are intended to be used for any purposes
prohibited by the Export laws, including, without limitation, nuclear,
chemical, or biological weapons proliferation. Furthermore, the Alliance
Member shall not transfer the Programs outside of the territory for which
the Alliance Member has Sublicense rights under this Agreement.
The Alliance Member warrants that it will not grant Sublicenses in or
ship any Programs to a country until it has completed all necessary
government formalities in such country and upon reasonable request by
Oracle, the Alliance Member provides evidence of completion of such
formalities to Oracle. The Alliance Member will indemnify Oracle for any
losses, costs, liability, and damages incurred by Oracle as a result of a
failure by the Alliance Member to comply with the necessary government
requirements in any country. The obligations under this Section shall
survive the expiration or termination of this Addendum. Upon Oracle's
reasonable request, the Alliance Member shall make records available to
Oracle to allow to confirm the Alliance Member's compliance with this
Section."
7. In Section 7, delete the second sentence of such Section and replace it
with the following:
"The license fee for Development Licenses shall be at a discount of
[*] off Oracle's standard list license fees in effect as of the
Effective Date of this Addendum."
Other than the modifications set forth above, the terms and conditions of the
Addendum remain unchanged, and in full force and effect.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
The Effective Date of this Amendment One is_________________________, 1996.
CABLEDATA, INC. ORACLE CORPORATION
By: By:
------------------------------------ -----------------------------
Name: Michael McGrail Name:
------------------------------------ -----------------------------
Title: President Title:
----------------------------------- ----------------------------
EXHIBIT A
COMMISSION REQUEST FORM
Alliance Member Name:__________________________________________________________
Company Name:__________________________________________________________________
Address:_______________________________________________________________________
City:____________________________ State:__________________________ Zip:________
Contact Name/Title:________________________ Phone Number:______________________
Type of Business Organization:_________________________________________________
Annual Revenue $:___________________________ # of Employees:___________________
Existing Software:_____________________________________________________________
Proposed Software Solution:____________________________________________________
Hardware Platform/Operating System:____________________________________________
Oracle Programs:_______________________________________________________________
Projected Order Date:__________________________________________________________
Projected Dollar amount of Order:______________________________________________
Amount of Commission requested:________________________________________________
Alliance Member direct marketing efforts:______________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Additional Information:________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Any Commission payable under this Commission Request Form shall be specific to
the license of Programs as specified above to the end user set forth above. The
amount of Commission specified above shall not be applicable to any other
Program licenses by Oracle.
The Effective Date of this Commission Request Form shall be__________________.
EXECUTED BY THE ALLIANCE MEMBER: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: Authorized Signature:
---------------- ----------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------