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Oracle / MatrixOne - Business Alliance Agreement ( Andra )
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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 Adra Systems, Inc. (legal name) with its principal place of business at Two Executive Drive, Chelmsford, Massachusetts (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 deliver 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 changes. 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 Sublicenses (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 grants to the Alliance Member a nonexclusive license to use
the Development Licenses the Alliance Member obtains under this
Agreement 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 Sublicenses 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 Member's 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 that 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
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 re-ordered. 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 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 data; 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 elated 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 using the Programs. Oracle may audit the relevant books and records of the Alliance Member to ensure the 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 of 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. His 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 to 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
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
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. Service 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
Oracle does not warrant that the Programs will run properly on all
Hardware, that the Programs will meet requirement of the Alliance
Member of 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,
PreProduction Releases of Programs, and Computer Based Training
Products are Distributed "As is."
The Alliance Member shall not make any warranty on Oracle's
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 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
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 it 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
2.3B hereof in such 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 additional 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 with 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 he 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 ember to the contrary, the copyright
to the Program included in any such application package shall remain
in Oracle. Other than specified above, on any reproduction or
translation of any Programs, Documentation, or promotional material,
the Alliance Member agrees to reproduce Oracle's copyright notices
8.3 Trademarks
"Oracle" any other trademarks and service marks adopted by Oracle to identify the Programs and other Oracle productions 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 market beginning with the letters "Ora," or any other mark likely to cause confusion wit 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, product 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 Relationship 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 tot his 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, 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 reaming provisions or 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 Untied 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 or 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 damage hereunder shall in no event exceed the amount of fees 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.
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 Untied 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 7(c)(1)(ii) of the Department of
Defense Regulations Supplement ("DFARS") 252.227-013. Rights in Technical
Data and Computer Software (October 1988) and the 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 or 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 b 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.
It is expressly agreed that he 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 shrink wrap or break-the-seal license agreement included i...
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