TECHNOLOGY LICENSE AGREEMENT
(SOURCE CODE)
This Technology License Agreement (the "Agreement") is made by and between
Oracle Corporation ("Oracle"), a Delaware corporation, and Versatility, Inc.
("Versatility"), a ___________________ corporation with offices at 11781 Lee
Jackson Memorial Highway, 7th Floor, Fairfax, VA 22033, as of the Effective Date
set forth below. The parties hereby agree as follows:
I. DEFINITIONS
1.1 Distributor
"Distributor" shall mean a third party, including any Oracle subsidiary, that is
appointed by Oracle or its Distributor to market and sublicense Versatility
Technology under the terms of this Agreement. The term "Distributor" shall
include, but not be limited to, resellers, original equipment manufacturers,
value added relicensors, dealers, agents and subdistributors.
1.2 Documentation
"Documentation" shall mean the installation guides, user guides and manuals for
use of the Versatility Technology in printed and machine-readable form.
1.3 Intellectual Property Rights
"Intellectual Property Rights" shall mean all patent, copyright, trade secret,
trademark and other proprietary and intellectual property rights, including
moral rights.
1.4 Natural Successors
"Natural Successors" shall mean any product that substantially replaces a
particular product or substantially replaces such product in a particular market
segment.
1.5 Object Materials
"Object Materials" shall mean materials, in machine-readable form, necessary to
run the Versatility Technology, including all computer programming code,
substantially or entirely in binary form, which is directly executable by a
computer after suitable processing but without the intervening steps of
compilation or assembly and all help, message, and overlay files.
1.6 Quarters
"Quarters" shall be deemed to commence on the first day of June, September,
December and March of each year of this Agreement.
1.7 Subsidiary
"Subsidiary" shall mean any corporation, partnership, firm, entity or any person
in which Oracle, directly or indirectly, holds any ownership interest.
1.8 Source Materials
"Source Materials" shall mean the complete source code from which Object
Materials are compiled. Source Materials shall include, without limitation, the
fully commented source code and internal system documentation for the
Versatility Technology, as well as all other materials, in both machine readable
and hard-copy form, which are used to develop or test the Versatility
Technology. "Fully commented source code" shall mean source code that includes
all comments made by or for Versatility. Source Materials shall include all
electronically readable source documentation, design documents, data models,
help materials, tutorial programs, and appropriate debug code, including those
developed by or for Versatility during the term of this Agreement.
1.9 Sublicense/Sublicensee
"Sublicense" shall mean any license granted by Oracle or its Distributors for
use of Versatility Technology. "Sublicensee" shall be a party who is granted a
Sublicense, either directly by Oracle or indirectly by a Distributor.
1.10 Updates
"Updates" shall mean any releases (including any preproduction releases) of
Versatility Technology created on or after the Effective Date, including bug
fixes, improvements, enhancements, new versions or releases and other changes
thereto.
1.11 Versatility Technology
"Versatility Technology" shall mean the computer software specified in Exhibit A
hereto owned or distributed by Versatility, any Updates, Natural Successors and
translations or localizations of the Versatility Technology. Unless otherwise
specified, "Versatility Technology" shall include Source Materials, Object
Materials and Documentation.
II. LICENSES GRANTED
2.1 Delivery of Versatility Technology
2.1.A Delivery.
Versatility shall deliver a complete set of the Versatility Technology
to Oracle on the Effective Date of this Agreement and shall deliver all
Updates of the Versatility Technology until December 31, 1999 promptly
upon completion and in no event later than when such Updates are
delivered to any other licensee.
2.2 Development and Technical Support License
Versatility grants to Oracle a worldwide, paid-up, royalty-free, perpetual,
non-exclusive, right and license to use, copy and modify the Versatility
Technology, including using the Versatility Technology for any development
purposes and for technical support of Sublicensees. Oracle and its Subsidiaries
shall have the right to allow their third party consultants ("Agent(s)") to use
the Versatility Technology on behalf of Oracle or the Subsidiary under the terms
and conditions of this Agreement.
2.3 Sublicensing License
2.3.A Scope of License.
Versatility hereby grants to Oracle a worldwide, perpetual (except as
otherwise provided on Article V), non-exclusive right and license to
market, reproduce, distribute and grant Sublicenses of the Versatility
Technology (excluding Source Materials) for use on all operating
environments. Oracle shall use the same or equivalent terms for
sublicensing the Versatility Technology as it does for licensing
Oracle's software products.
Versatility also grants to Oracle the right and license to sublicense
Source Materials to third parties solely to the extent necessary and
for the purpose of allowing such third parties to port or localize the
Source Materials, so long as any such third party is subject to the
same terms and conditions which Oracle normally imposes in connection
with any grant of rights to its own source code. Versatility also
grants to Oracle the right to sublicense the Versatility Technology,
including the Source Materials, to any Subsidiary to allow the
Subsidiary to use the Versatility Technology in accordance with the
terms and conditions of this Agreement as they apply to Oracle, so long
as any such Subsidiary is subject to the same terms and conditions
which Oracle normally imposes in connection with any grant of rights in
its own source code. Versatility also grants to Oracle the right (i) to
deposit Source Materials in escrow and (ii) release and deliver Source
Materials to Oracle's Sublicensees and Distributors, provided that the
Source Materials are released only in conjunction with Oracle source
materials and are subject to substantially equivalent conditions and
protections used for the release of its own source materials. It is
expressly understood that, notwithstanding any other provision of this
Agreement, Oracle shall have no right to sublicense Source Materials,
except as stated in this paragraph.
2.3.B Distributors.
Versatility grants Oracle the right to license, sublicense and
authorize Distributors to market and sublicense the Object Materials
and Documentation of the Versatility Technology under the terms of this
Agreement, including the right to license, sublicense and authorize
other distributors to exercise the same rights.
2.3.C Trial Sublicenses.
Versatility grants to Oracle a worldwide, royalty-free license to
grant, at no charge, trial sublicenses of the Object Materials and
Documentation of the Versatility Technology, consistent with Oracle's
policies for granting trial licenses for its own programs.
2.3.D Trademarks.
Oracle and its Distributors are entitled to market, reproduce,
distribute and sublicense the Object Materials and Documentation of the
Versatility Technology under Oracle trademarks. Versatility shall not
have the right to use such Oracle trademarks without the prior written
approval of Oracle.
2.4 Internal Use License
Versatility hereby grants to Oracle and its Subsidiaries a worldwide, perpetual
(except as otherwise provided in Article V), paid-up, royalty-free non-exclusive
right and internal-use license to reproduce, install and use the Versatility
Technology, including Updates, to operate its business at no additional charge.
This internal use license does not apply to any service bureau, outsourcing or
equivalent business of Oracle; any such service bureau business licenses would
be subject to per user license fees.
2.5 Intellectual Property Rights
Versatility further grants to Oracle and its Distributors a perpetual (except as
otherwise provided in Article V), worldwide, nonexclusive, nontransferable and
paid-up license to all Intellectual Property Rights which Versatility now owns
or hereafter acquires which are necessary to use the Versatility Technology
under this Agreement; such Intellectual Property Rights are included in the
licenses granted to Oracle under this Agreement. Other than as licensed herein,
Versatility shall retain all right, title and interest to the Versatility
Technology, including the Intellectual Property Rights. Oracle shall retain all
right, title and interest to the Intellectual Property Rights in any
modifications, extensions or derivative works of the Versatility Technology that
Oracle develops or has developed on its behalf.
Versatility shall take all action necessary to maintain the validity and
enforceability of Versatility's Intellectual Property Rights in the Versatility
Technology and shall promptly enforce its rights and remedies against third
parties who infringe such Intellectual Property Rights.
2.6 Third Party Royalties
Versatility shall have sole responsibility for payment of all royalties and
other charges with respect to third party materials included in the Versatility
Technology, if any. Oracle shall have no obligation to pay or account for such
royalties or other charges.
2.7 Marketing
Except as expressly specified in this Agreement, Oracle shall have no obligation
to distribute or market the Versatility Technology or any products containing
the Versatility Technology. Oracle shall have full freedom and flexibility in
the design and implementation of its marketing efforts, and may discontinue any
marketing efforts at any time.
III. FEES AND PAYMENTS
3.1 License Fees
3.1.A Prepaid Sublicense Fees.
Oracle agrees to pay Versatility the sum of $2,000,000.00 in prepaid
sublicense fees ("Prepaid Sublicense Fees") which shall be payable in
three equal monthly installments on each of September 1, October 1 and
November 1. Upon termination or expiration of this Agreement under
Section 4.3.A or Section 5.2 below, Versatility shall refund to Oracle
the full amount of the Prepaid Sublicense Fees.
3.1.B Sublicense Fees.
In consideration for the rights granted by Versatility to Oracle under
this Agreement, Oracle will pay to Versatility a fee equal to 30% of
the Net Fees Oracle receives for Sublicenses of the Versatility
Technology ("Sublicense Fees") until the earlier of (i) six years from
the Effective Date of this Agreement or (ii) the payment by Oracle of a
total of Twelve Million Dollars ($12,000,000) in Sublicense Fees.
Thereafter, the licenses granted to Oracle to the Versatility
Technology under this Agreement shall be deemed to be royalty-free and
fully paid-up. In determining the Sublicense Fees due to Versatility,
Oracle shall have the right to apply the Prepaid Sublicense Fees to
reduce the Sublicense Fee due to Versatility until such time as the
Prepaid Sublicense Fee has been exhausted.
"Net Fees" shall mean license fees received by Oracle or any Subsidiary
from its Sublicensees and from its istributors net of any return
adjustments, third party commissions, shipping costs, or sales, use or
other taxes paid. In the event that Oracle or its Distributors
sublicense the Versatility Technology with other Oracle products or
services for a single price, Net Fees from such Sublicense shall equal
the total Net Fees from the Sublicense multiplied by a fraction
A/(A+B), where A equals the list price of the Versatility Technology
sublicensed separately and B equals the list price of the other
products or services. If the Versatility Technology is (i) licensed in
a site license or package deal and fees for the Versatility Technology
are not distinguishable from fees for other Oracle products that are
part of the site license or package deal or (ii) bundled with or
incorporated into another Oracle product such that the Versatility
Technology does not have a separate list price, the Net Fees for the
Versatility Technology shall be based on the fee allocation agreed to
by Oracle and the Sublicensee for the products specified in the site
license or package deal or on the fee allocation made by Oracle's
internal procedures, provided such allocation reasonably reflects the
relative value of the Versatility Technology to the other Oracle
products.
Oracle and its Distributors are free to determine unilaterally the
pricing of Versatility Technology Sublicenses to their Sublicensees and
Distributors.
No Sublicense Fee or other charge shall be payable by Oracle for any
use of the Versatility Technology (i) for Oracle's internal use; (ii)
for development, technical support or maintenance activities; (iii) for
marketing, updates, trial Sublicenses, porting, documentation,
demonstrations, training, educational uses, or any other products or
services; or (iv) as back-up copies. The foregoing rights and licenses
shall be deemed to be paid-up.
3.2 Payment Terms
Within forty-five (45) days of the end of each Quarter, Oracle shall pay to
Versatility all Sublicense Fees accruing to Versatility for that particular
Quarter less any unused Prepaid Sublicense Fees. Sublicense Fees shall be deemed
to accrue in the Quarter in which Oracle recognizes the revenue.
3.3 Reporting
Within forty-five (45) days of the last day of each Quarter, Oracle shall send
Versatility a report listing, for that Quarter, the revenues due to Versatility
under this Agreement as a result of Oracle's and its Distributors' Sublicensing
activities under this Agreement and the deduction by Oracle of any unused
Prepaid Sublicense Fees from those revenues.
IV. TECHNICAL RESPONSIBILITIES
4.1 Oracle Technical Responsibilities
Oracle and its Distributors shall provide all technical support to their
Sublicensees and Distributors, including installation assistance, training,
maintenance and consulting.
4.2 Versatility Technical Support Responsibilities
4.2.A Ongoing Support Services.
Versatility will provide Oracle with the following technical support
services ("Technical Support") until December 31,1999:
(i) Telephone consultation, assistance and advice at the highest
level of support generally provided to any other end user or
Distributor of Versatility;
(ii) Reasonable efforts to make corrections to errors reported in
the Versatility Technology as such corrections are first made
available to any other Versatility distributor or licensee;
and
(iii) Updates no later than when they are first made available to
any other Versatility distributor or licensee.
4.3 Versatility Development Commitments
4.3.A Versatility Commitments.
Versatility shall develop and deliver the modifications to the
Versatility Technology specified on Exhibit B (the "Deliverables")
within the timeframes specified on Exhibit B. If Versatility fails to
commence promptly the definition, design and development of the
Deliverables on Exhibit B, Oracle shall have the option to terminate
this Agreement by providing written notice to Versatility. Within five
days of such notice, Versatility shall refund to Oracle all Prepaid
Sublicense Fees.
4.3.B Acceptance Procedure.
Upon completion of any Deliverable, Versatility shall promptly provide
a complete copy thereof to Oracle. At Oracle's request, Versatility
will demonstrate to Oracle the functionality of the Deliverable and
shall provide Oracle with assistance in any additional review and
testing of such Deliverable in accordance with any applicable
acceptance criteria and test suites. Upon accepting any Deliverable
submitted by Versatility, Oracle shall provide to Versatility a written
acceptance of such Deliverable. If Oracle, in its reasonable
discretion, determines that any submitted Deliverable does not meet the
acceptance criteria mutually agreed upon by the parties in Exhibit B,
Oracle shall have thirty (30) business days after Versatility's
submission of the Deliverable ("Acceptance Period") to give written
notice thereof to Versatility specifying the deficiencies in detail.
Versatility shall submit a revised Deliverable to Oracle within 10 days
of receiving such notice from Oracle. After completing any such cure,
Versatility shall resubmit the Deliverable for review and testing as
set forth above. This resubmission and retesting procedure will be
repeated until Oracle accepts the applicable Deliverables or terminates
this Agreement, in Oracle's sole discretion.
4.3.C License to Deliverables.
All software (including modifications and documentation but excluding
the Deliverables), products, inventions, documents, writings and other
materials prepared or produced by Versatility in performing Services
for Oracle under this Agreement, (collectively, the "Developments")
shall be the sole and exclusive property of Oracle, subject to
Versatility's underlying rights in the pre-existing Versatility
Technology and subject to the Deliverables being the sole and exclusive
property of Versatility. Versatility agrees that the Developments shall
be works made for hire to the extent permitted by applicable law, and
that Oracle shall retain all Intellectual Property Rights in the
Developments. In the event that any of the Developments do not qualify
as works made for hire, Versatility hereby assigns to Oracle at no
additional consideration all right, title and interest and all
Intellectual Property Rights in such Developments and all extensions
and renewals thereof. Versatility agrees to execute a written
assignment of such rights in the Developments to Oracle and any other
documents necessary for Oracle to establish, preserve, perfect or
enforce its Intellectual Property Rights in the Developments if so
requested by Oracle. Versatility hereby agrees not to assert at any
time, and otherwise waives, any "moral rights" that Versatility may
have in the Developments, and Versatility hereby assigns to Oracle all
moral rights therein.
V. TERM
5.1 Initial Term
This Agreement shall become effective on the Effective Date, and unless it is
terminated as set forth herein shall remain in effect perpetually.
5.2 Termination of the Agreement
5.2.A Breach of Merger Agreement.
If Oracle breaches the Agreement and Plan of Merger between Oracle and
Versatility (the "Merger Agreement") in any material respect and fails
to cure such breach within twenty (20) business days after written
notice of such breach from Versatility to Oracle or Oracle fails for
any reason to pay the sublicense fees set forth in Section 3.1.A, then
Versatility shall have the option of terminating this Agreement by
providing Oracle with written notice of such termination within twenty
(20) business days after the date of the written notice of breach from
Versatility to Oracle, which termination shall not be effective unless
and until Versatility refunds all but $360,000 of the Prepaid
Sublicense Fees to Oracle within one hundred eighty (180) days of
providing Oracle notice of termination.
5.2.B Acceptance of Superior Offer
If (i) the Merger Agreement is being or has been terminated and
Versatility is obligated to pay Oracle a Termination Fee (as defined in
the Merger Agreement) under the Merger Agreement, (ii) Versatility
refunds to Oracle all but $360,000 of the Prepaid Sublicense Fees prior
to or simultaneously with the payment of such Termination Fee, and
(iii) the Termination Fee is paid in accordance with the terms of the
Merger Agreement, then this Agreement shall terminate upon repayment by
Versatility of such Prepaid Sublicense Fees and payment of the
Termination Fee.
5.3 Use of Source Materials
If any of the following events occur: (i) any assignment of substantially all of
Versatility's assets for the benefit of creditors or the appointment of a
receiver to take possession of substantially all of Versatility's assets; (ii)
any dissolution of or substantial attachment or execution of judgment against
Versatility's assets; (iii) the filing of any voluntary or involuntary petition
in bankruptcy, or any similar law, by or against Versatility which is not
dismissed within forty-five (45) days of filing; or (iv) Versatility rejects
this Agreement at any time while in bankruptcy, then Oracle shall immediately
receive and have a worldwide, perpetual, irrevocable license to use all Source
Materials, Object Materials, Documentation and other materials related to the
Versatility Technology then in Oracle's possession to (i) continue to exercise
the license rights granted under this Agreement; and (ii) provide technical
support to Sublicensees, including making all necessary changes, modifications,
additions and enhancements to the Source Materials.
5.4 Continued Rights
In the event of termination of this Agreement, in whole or in part, any
Sublicense granted by Oracle or its Distributors prior to such expiration or
under the terms of this Article VI, shall survive and continue. Without limiting
the generality of the foregoing, (i) Oracle may Sublicense and distribute any
inventory of the Versatility Technology, including work in process, on hand at
the time of such termination or expiration; (ii) Oracle may continue to exercise
the rights and licenses granted hereunder for a period of up to eighteen (18)
months after termination or expiration, so long as such use is to support
existing customers using Versatility Technology or to satisfy then-existing
contractual commitments; and (iii) Oracle may continue to exercise the rights
and licenses granted hereunder as necessary to provide maintenance and technical
support for Sublicensees.
5.5 Survival
In addition to the provisions of Sections 5.3 and 5.4 above, the parties' rights
and obligations under Sections 2.4 (Internal Use License), 2.5 (Intellectual
Property Rights), 7.1 (Nondisclosure), 7.4 (Assignment) and Article VI
(Representations and Warranties) shall survive expiration or termination of this
Agreement.
VI. REPRESENTATIONS AND WARRANTIES
6.1 No Conflict
Versatility represents and warrants that it is under no obligation or
restriction, nor will it assume any such obligation or restriction, that does or
would in any way interfere or conflict with, or that does or would present a
conflict of interest concerning, the performance to be rendered by Versatility
or the rights and licenses granted to Oracle herein.
6.2 Intellectual Property Warranty and Infringement Indemnity
Versatility represents and warrants that (a) Versatility is the sole and
exclusive owner of the Versatility Technology,; (b) Versatility has full and
sufficient right, title and authority to assign or grant the rights and/or
licenses granted to Oracle under this Agreement; (c) the Versatility Technology
has not been published under circumstances which have caused a loss of
Intellectual Property Rights therein; (d) except as set forth on Schedule 5.2,
the Versatility Technology does not contain any materials developed by a third
party; (e) the Versatility Technology does not infringe any Intellectual
Property Rights, privacy, publicity or similar rights of any third party, nor
has any claim (whether or not embodied in an action, past or present) of such
infringement been threatened or asserted, and no such claim is pending against
Versatility or, to best of Versatility's knowledge, against any entity from
which Versatility has obtained such rights; and (f) the certificate of
authorship, attached hereto as Exhibit C, is complete and accurate.
Versatility shall, at Versatility's expense, indemnify, defend and hold Oracle
and its directors, officers, employees, agents, Distributors and Sublicensees
harmless from and against any and all liabilities, losses, damages, costs and
expenses (including reasonable attorneys fees) incurred by Oracle in connection
with any claim that the Versatility Technology licensed and used within the
scope of this Agreement infringes an Intellectual Property Right of any third
party, provided that: (a) Oracle promptly notifies Versatility in writing of the
claim; and (b) at Versatility's request and expense, Oracle provides Versatility
with all reasonable assistance, information and authority to perform the
foregoing. Versatility will not enter into a settlement agreement without
Oracle's written consent, which consent will not be unreasonably withheld.
Versatility shall have no liability for any claim of infringement if such
infringement is caused by modifications made by Oracle to the Versatility
Technology and the unmodified Versatility Technology does not infringe the third
party's Intellectual Property Rights.
In the event the Versatility Technology is held or is believed by Versatility to
infringe the Intellectual Property Rights of a third party, Versatility shall
have the option, at its expense to: (a) modify the Versatility Technology to be
non-infringing while retaining full functionality and equivalent performance; or
(b) obtain for Oracle, at no additional cost to Oracle, a license to continue
using the Versatility Technology.
Failure to comply with the obligations described in this Section 6.2 shall
constitute a material breach of this Agreement.
6.3 Product Warranty
Versatility warrants that the Versatility Technology will perform the functions,
and comply in all material respects with the specifications, described in the
specifications identified in the Documentation when operated on the appropriate
hardware/operating system environment. Versatility also warrants that the
Versatility Technology, including, without limitation, any time-and-date-related
codes, data entry features and internal subroutines thereof, is designed (a) to
automatically accommodate the change in the date from December 31, 1999 to
January 1, 2000 without negatively affecting the Versatility Technology's
performance; and (b) to accurately accept, reflect and calculate all dates that
are relevant to the Versatility Technology's performance. THESE WARRANTIES ARE
THE EXCLUSIVE PRODUCT WARRANTIES AND IN LIEU OF ALL OTHER PRODUCT WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.4 Limitation of Liability
EXCEPT FOR LIABILITY UNDER SECTION 6.2 ABOVE AND EXCEPT FOR LIABILITY UNDER
SECTION 7.1 HEREOF, (i) NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
RELIANCE, COVER, OR LOSS OF ANTICIPATED PROFITS, EVEN IF THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) NEITHER PARTY'S LIABILITY
FOR DAMAGES RELATING IN ANY WAY TO THIS AGREEMENT OR THE CONDUCT OF THE PARTIES
IN FURTHERANCE HEREOF UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT, PRODUCT
LIABILITY, BREACH OF IMPLIED DUTY, OR OTHERWISE SHALL EXCEED $12,000,000.
The provisions of this Article VI allocate the risks under this Agreement
between Versatility and Oracle and are an intrinsic part of the bargain between
the parties. The fees provided for in this Agreement reflect this allocation of
risks and the limitation of liability specified herein.
VII. MISCELLANEOUS
7.1 Nondisclosure
It is expected that the parties may disclose to each other certain information
which may be considered confidential and trade secret information ("Confidential
Information"). Confidential Information shall include: (a) the Source Materials;
(b) Confidential Information disclosed by either party in writing that is marked
as confidential at the time of disclosure; or (c) Confidential Information
disclosed by either party in any other manner and is identified as confidential
at the time of disclosure and is also summarized and designated as confidential
in a written memorandum delivered to the receiving party within thirty (30) days
of the disclosure.
Confidential Information shall not include information which: (a) is or becomes
public knowledge through no fault of the recipient; (b) was in the receiving
party's possession before receipt from the party providing such Confidential
Information; (c) is rightfully received by the receiving party from a third
party without any duty of confidentiality; (d) is disclosed to a third party by
the party providing the Confidential Information without a duty of
confidentiality on the third party; (e) is independently developed by the other
party; (f) is disclosed under operation of law; or (g) is disclosed with the
prior written approval of the party providing such Confidential Information.
Except as otherwise specified herein, the disclosing party shall retain all
Intellectual Property Rights in any Confidential Information disclosed to the
other party. The parties agree, both during the term of this Agreement and for a
period of five (5) years after termination or expiration of this Agreement to
hold each other's Confidential Information in confidence and to protect the
disclosed Confidential Information by using the same degree of care to prevent
the unauthorized use, dissemination or publication of the Confidential
Information as they use to protect their own confidential information of a like
nature. The parties agree not to make each other's Confidential Information
available in any form to any third party except as otherwise required to
exercise the licenses granted in this Agreement or to use each other's
Confidential Information for any purpose other than the implementation of this
Agreement. Each party agrees to restrict disclosure of the Confidential
Information to those of its employees who have a "need to know" and to take all
reasonable steps to ensure that Confidential Information is not disclosed or
distributed by its employees in violation of the provisions of this Agreement,
including requiring that its employees sign general agreements of
confidentiality that apply to third-party technology as well as to its own
technology.
In addition, notwithstanding the above, each party may use the residuals from
the other party's Confidential Information. The term "residuals" as used in this
paragraph shall mean the Confidential Information in nontangible form (i.e., not
in written or other documentary form, including tape or disk) which may be
retained by those employees of Versatility or Oracle who have had access to the
other's Confidential Information including ideas, concepts, know-how, or
techniques contained therein. Neither party shall have any obligation to limit
or restrict the assignment of such employees or to pay royalties for any work
resulting from the use of residuals.
7.2 Independent Development/Freedom of Action
Each party acknowledges that the other party is in the software development
business. Nothing in this Agreement shall be construed to preclude either party
from developing, using, marketing, licensing, and/or selling any independently
developed software which has the same or similar functionality as Versatility
Technology or any other products, so long as such activities do not breach any
of the other provisions of this Agreement or infringe the Intellectual Property
Rights of the other party.
Additionally, nothing in this Agreement shall be construed to limit Oracle's
right to obtain services or software programs from other sources, to prohibit
either party from acquiring and marketing competitive materials, to restrict
Oracle from making, having made, using, marketing, leasing, licensing, selling
or otherwise disposing of any products or services whatsoever, nor to limit
Oracle's right to deal with any other vendors, suppliers, contractors or
customers.
7.3 Governing Law and Jurisdiction
This Agreement, and all matters arising out of or relating to this Agreement,
shall be governed by the laws of the State of California and shall be deemed to
be executed in Redwood City, California.
7.4 Assignment
Except for an assignment by Oracle to any parent corporation, Subsidiary or
successor in interest to Oracle, which shall not relieve Oracle of its rights
and obligations under this Agreement and shall only be effective if such
permitted assignee shall agree to be bound by all of the provisions of this
Agreement, neither party may assign any rights, duties, obligations or
privileges under this Agreement without the prior written consent of the other
party, which consent shall not be unreasonably withheld. A change in control or
ownership shall be deemed to be an assignment under this Section.
7.5 Notice
All notices required to be given hereunder shall be in writing and shall be
deemed to have been given upon deposit in first class mail, sent through a
nationally recognized courier service, or transmission by confirmed
telefacsimile as follows:
For Versatility: Versatility, Inc.
11781 Lee Jackson Memorial Highway
Seventh Floor
Fairfax, CA 22033
Attn: Paul Zoukis
With copy to: Tucker, Flyer & Lewis
1615 L Street, NW
Suite 400
Washington D.C., 20036
Attn: Jack L. Lewis
For Oracle: Oracle Corporation
500 Oracle Parkway
Redwood City, CA 94065
Attn: General Counsel
Oracle Corporation
500 Oracle Parkway
Redwood City, CA 94065
Attn: Executive Vice President, Corporate Development
7.6 Relationship Between the Parties
In all matters relating to this Agreement, Oracle and Versatility shall act as
independent contractors. Neither party will represent that it has any authority
to assume or create any obligation, expressed or implied, on behalf of the other
party, or to represent the other party as agent, employee or in any other
capacity. Neither party shall have any obligation, expressed or implied, except
as expressly set forth herein.
7.7 Publicity
Neither party shall disclose to any third party any details of this Agreement,
or even the fact of its without the specific prior written approval of the other
party, which approval shall not be unreasonably withheld, or as required by law
in order to enforce its rights under this Agreement. Nothing in this Agreement
confers upon Versatility any right to use Oracle's trademarks, trade names or
service marks in connection with any product, service, promotion or publication.
7.8 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 riot,
fire, flood, explosion, earthquake or other natural disaster, government
regulation, 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.
7.9 Entire Agreement
This Agreement and the Merger Agreement set forth the entire agreement between
the parties and supersedes prior proposals, agreements and representations
between them, whether written or oral, relating to the subject matter contained
herein. This Agreement may be changed only if agreed to in writing and signed by
an authorized signatory of each party.
7.10 Export
The parties agree to comply fully with all laws and regulations to assure that
the Versatility Technology or any direct product thereof, is not exported,
directly or indirectly, in violation of law. Upon Oracle's request, Versatility
shall advise Oracle of all relevant export classifications of the Versatility
Technology and shall promptly advise Oracle of any changes with respect to such
classification.
7.11 Severability
If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
7.12 Counterparts
This Agreement may be executed in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
7.13 No Waiver
The failure of any party to enforce any of the provisions hereof shall not be
construed to be a waiver of the right of such party thereafter to enforce such
provisions.
The Effective Date of this Agreement shall be August 20, 1998. This Agreement
shall not be effective until both parties have signed.
ORACLE CORPORATION VERSATILITY, INC.
By: /s/ David J. Roux By: /s/ Paul J. Zoukis
Name: David J. Roux Name: Paul J. Zoukis
Title: Exec. Vice President Title: President and
Chief Executive Officer