Oem License Agreement

NETSCAPE COMMUNICATIONS CORPORATION
AND
ORACLE CORPORATION
OEM LICENSE AGREEMENT


No.________________


This OEM License Agreement ("Agreement") is entered into by and between Oracle Corporation, a company organized under the laws of Delaware, with principal offices at 500 Oracle Parkway, Redwood Shores, CA 94065 ("Oracle"), and the Netscape entity identified below as a signatory to the Agreement ("Netscape"), effective as of the date of execution by Netscape ("Effective Date").


WHEREAS, Oracle markets and distributes computer software products.


WHEREAS, Netscape has proprietary or remarketing rights to certain computer software products.


WHEREAS, Netscape wishes to grant to Oracle and Oracle desires to obtain certain license rights to such computer software products more particularly described below in accordance with the terms and conditions of this Agreement.


NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties, and obligations of the parties.


1. Definitions


For purposes of this Agreement, the following terms shall have the following meanings:


1.1. "Exhibit(s)" means the Exhibits to this Agreement which are attached hereto and incorporated herein:


1.1.1 Exhibit A (Description of Netscape Products) which sets forth a
description of each Netscape Product licensed hereunder.


1.1.2 Exhibit B (Pricing, Payment Schedules and Deliverables) which sets
forth pricing for Oracle, payment schedules, and specific items to
be delivered to Oracle.


1.1.3 Exhibit C (Netscape's End User License Agreement) which sets forth
Netscape's terms and conditions of licensing applicable to an end
user customer.


1.1.4 Exhibit D (OEM Maintenance and Support) which sets forth Netscape's
and Oracle's maintenance and support obligations.


1.1.5 Exhibit E-1 (Oracle Preferred Product(s)) which sets forth a
description of Oracle Products which may be bundled with the
Netscape Preferred Product in accordance with Section 3.1. Exhibit
E-2 (Oracle Non-Preferred Product(s)) which sets forth a description
of Oracle Products which may be bundled with the Netscape Products.


1.1.6 Exhibit F (Netscape Trademark Usage Guidelines)


1.1.7 Exhibit G (Third Party Code)


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1.1.8 Exhibit H (Oracle Subsidiaries)


1.2 "Derivative Work(s)" means a revision, modification, translation, abridgment, condensation or expansion of a Netscape Product or Documentation or any form in which a Netscape Product or Documentation may be recast, transformed, or adapted, which, if prepared without the consent of Netscape, would be a copyright infringement.


1.3 "Distributor" means any third party appointed by Oracle or Subsidiaries pursuant to this Agreement to distribute the Netscape Products to End Users in accordance with the terms hereof. For the purposes of this Agreement, where applicable, "Distributors" shall be deemed to include "Subsidiaries."


1.4 "Documentation" means those software user manuals, reference manuals and installation guides, or portions thereof, which are distributed in conjunction with the Netscape Products set forth in Exhibit A.


1.5 "End User" means any third party licensed by Oracle or a Distributor to use, but not to further distribute, the Netscape Products except that if such third party is a corporation or other entity, then, for the purpose of license fee accrual, "End User" means each individual within such corporation or entity licensed by Oracle pursuant to this Agreement to use, but not to further distribute, the Netscape Product.


1.6 "Major and Minor Updates" mean updates, if any, to the Netscape Products. Major Updates involve additions of substantial functionality while Minor Updates do not. Major Updates are designated by a change in the number to the left of the decimal point of the number appearing after the product name while Minor Updates are designated by a change in such number to the right of the decimal point. Netscape is the sole determiner of the availability and designation of an update as a Major or Minor Update. Major Updates exclude software releases which are reasonably designated by Netscape as new products. Where used herein "Updates" shall mean Major Updates or Minor Updates interchangeably.


1.7 "Netscape Preferred Product" means Netscape Navigator 3.0 or subsequent versions and Navio client products upon their production release/FCS (First Customer Ship).


1.8 "Netscape Product(s)" means the executable version (but not the source code version) of the computer software products listed or described in Exhibit A as Netscape may update and provide hereunder from time to time.


1.9 "Subsidiaries" means Network Computer Inc. and Oracle's wholly-owned or majority-owned subsidiaries (which are not Competitors of Netscape) as listed on Exhibit H, attached hereto, to be updated in writing by Oracle from time to time. For the purposes of this Agreement, "Competitors" shall mean Microsoft, Spyglass and such other companies as mutually agreed to by the parties. All payments or reports to Netscape under this Agreement shall be made or submitted by Oracle. Oracle shall be responsible for any breach of the terms of this Agreement by Subsidiaries.


1.10 "Program Errors" means one or more reproducible deviations in the Netscape Products from the applicable specifications shown in the Documentation.


1.11 "Oracle Product(s)" means Oracle's or Subsidiaries' computer products developed and marketed by Oracle and/or Subsidiaries, as described in Exhibits E-1 and E-2, with which the Netscape Products are distributed under this Agreement.


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2. Grant Of Licenses and Rights


2.1. Licenses


2.1.1 License. Subject to the terms and conditions of this Agreement,
Netscape hereby grants and Oracle hereby accepts, a nonexclusive and
nontransferable worldwide right and license to (i) reproduce,
without change, the Netscape Products (in executable form only) on
any tangible media with a right to sublicense this right to
reproduce to Subsidiaries and/or Distributors and (ii) distribute by
sublicense such Netscape Product copies to Subsidiaries and/or
Distributors and/or End Users only in conjunction with an Oracle
Product. Oracle is expressly prohibited from any marketing and/or
distribution of Netscape Products unless each copy is bundled with
an Oracle Product. Oracle may grant Distributors the rights under
this Subsection 2.1.1 to other Distributors regardless of tier and
Oracle and all Distributors shall have the right to distribute the
Netscape Products to End Users. Oracle may grant End Users the right
to copy the Netscape Product bundled with any Oracle Product except
for the Oracle Network Computer so long as such End User also
receives the right to copy for the Oracle Product. Each copy of the
Netscape Product (i) distributed hereunder to an End User or (ii)
which an End User with a right to copy has the right to make
hereunder shall be deemed a "shipment" of an Oracle Product with the
Netscape Product under Section 4.1.1. In addition, Netscape grants
Oracle a royalty free license to use 100 copies of Netscape
Navigator LAN (object code) solely for internet development purposes
and not for redistribution. At Oracle's written request for
electronic distribution rights under this Agreement, Netscape agrees
not to unreasonably withhold permission therefor.


2.1.2 License Restrictions. Subject to Sections 14.11 and 14.12, Oracle
agrees not to copy (except as expressly permitted herein), modify,
translate, decompile, reverse engineer, disassemble, or otherwise
determine or attempt to determine source code for the executable
code of the Netscape Products or to create any Derivative Works
based upon the Netscape Products or Documentation, and agrees not to
permit or authorize anyone else to do so; provided, however, that if
Oracle's address set forth above is located within a Member State of
the European Union, then such activities shall be permitted solely
to the extent, if any, permitted by Article 6 of the Council
Directive of 14 May 1991 on the legal protection of computer
programs, and implementing legislation thereunder.


2.1.3 Documentation License. Subject to the terms and conditions of this
Agreement, Netscape hereby grants and Oracle hereby accepts a
nonexclusive and nontransferable worldwide right and license, in
accordance with Subsection 2.1.1 above, to use and reproduce the
Documentation, and to distribute the Documentation solely in
conjunction with the Netscape Products. Such distribution may be to
Distributors and End Users.


2.1.4 Licenses Dependent on Bundling. The licenses granted in Section
2.1.1 are conditional upon bundling each Netscape Product as
required therein. If Oracle fails to so bundle the Netscape
Products, and licenses a Netscape Product on a "stand-alone" basis,
the licenses shall be immediately revocable by Netscape in addition
to any other remedies Netscape may have.


2.1.5 Third Party License. If all or any part of the Netscape Products or
Updates delivered to Oracle has been licensed to Netscape by a third
party software supplier then, notwithstanding anything to the
contrary contained in this


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Agreement, Oracle is granted a sublicense to the third party
software subject to the same terms and conditions as those contained
in the agreement between Netscape and such third party software
supplier. In addition, Netscape reserves the right to substitute any
third party software in the Netscape Products so long as the new
third party software does not materially affect the functionality of
the Netscape Products. Netscape represents that the current release
of the Netscape Products contains no third party software which
would require Oracle to agree to any terms and conditions in
addition to those set forth in this Agreement.


2.1.6 Trial Licenses for Evaluation. During the term of this Agreement,
Oracle and/or its Distributors and/or Subsidiaries may distribute,
up to a maximum combined total of fifty (50) licenses pursuant to
Sections 2.1.1 and 2.1.3 solely for purposes of evaluation at no
license fee ("Trial Licenses"). Each Trial License shall not exceed
a period of sixty (60) consecutive days per customer from the date
of delivery of the Netscape Product to such customer. A customer may
be a prospective End User or Distributor. Oracle shall pay Netscape
the applicable license fees for any Trial Licenses in excess of
sixty (60) days. Each such Trial License shall be sublicensed under
an End User License Agreement which provides for such trial use.


2.2 Export


Oracle shall and shall require its Distributors to comply fully with all then current applicable laws, rules and regulations relating to the export of technical data, including, but not limited to any regulations of the United States Office of Export Administration and other applicable governmental agencies and Oracle acknowledges that by virtue of certain security technology embedded in the Netscape Products, that export of such software may not be legal. Oracle shall and shall require its Distributors to conspicuously mark all packaging containing the Netscape Products identified by Netscape as not for export with a "Not For Export" notice. Netscape agrees to cooperate in providing information requested by Oracle as necessary to obtain any required licenses and approvals. When distributing the Netscape Products and Documentation in countries where an enforceable copyright law covering the same does not exist, Oracle or its Distributors shall obtain a written agreement signed by the customer prohibiting the customer from making unauthorized copies of the same.


Oracle warrants that neither it nor its Distributors will grant sublicenses in or ship any Netscape Products to a country until it (or the Distributor) has completed all necessary government formalities in such country and upon reasonable request by Netscape, Oracle (or its Distributor) provides evidence of completion of such formalities to Netscape. Oracle will indemnify Netscape for any losses, costs, liability, and damages incurred by Netscape as a result of a failure by Oracle or its Distributors to comply with the necessary government requirements in any country. The obligations under this Section shall survive the expiration or termination of this Agreement. Upon Netscape's reasonable request, Oracle shall make records available to Netscape to allow Netscape to confirm Oracle's compliance with this Section.


To the extent that Netscape discontinues licensing the Netscape Products in certain countries and denies other resellers the right to sublicense in such countries, Netscape may from time to time deny Oracle the right to sublicense in such certain countries in order to protect Netscape's interests if, in the reasonable opinion of Netscape's counsel, such countries (i) do not provide adequate protection for Netscape'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 Netscape's counsel, are injurious to Netscape's interests in the Netscape Products.


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3. Marketing and Distribution


3.1 Nonexclusivity of Arrangement


In consideration for the promises contained herein, beginning on the Effective Date of this Agreement until the Renewal Date, Oracle agrees that with respect to Oracle Preferred Products, Netscape Product (Exhibits A and B) shall be the preferred software to be bundled with the Oracle Preferred Products in cases where such third party non-Oracle software is bundled. For purposes of this Agreement, the term "preferred" means that the only third party non-Oracle software primarily designed for viewing HTML documents over standard Internet protocols that Oracle shall bundle with the Oracle Preferred Products shall be Netscape Product (Exhibits A and B); provided, however, that if an End User specifically requests that a third party product with Internet browser functionality be provided with any Oracle Preferred Product, Oracle may provide such third party product with the Oracle Preferred Product solely for such End-User. In addition, subject to the applicable terms and conditions of this Agreement, Oracle shall have the right at its sole discretion to bundle Netscape Products (Exhibits A and B) on a non-preferred basis with the Oracle Non-Preferred Products.


For the time period set forth above, Oracle agrees to make commercially reasonable efforts to treat Netscape Product at least as favorably as it treats any other third party products distributed with Oracle Preferred Products that are competitive with the Netscape Product. Specifically, such third party product will not be shipped by default under the or with the Oracle Preferred Products.


3.2 Public Announcements and Promotional Materials


Netscape and Oracle shall cooperate with each other so that each party may issue a press release concerning this Agreement on a mutually agreed upon release date, provided that each party must approve, in writing, such press release prior to its release. Netscape shall cooperate with Oracle in its development of the initial marketing and sales materials used to promote the distribution of the Netscape Products.


3.3 Terms Relating to Distribution


3.3.1 General Restrictions on Distribution


Oracle agrees to comply with and shall require its Distributors to
comply with all applicable laws, rules and regulations to preclude
the acquisition of unlimited rights to technical data, software and
documentation provided with the Netscape Product to a governmental
agency, and ensure the inclusion of the appropriate "U.S. Government
End Users" notices required by the U.S. Government agencies or other
applicable agencies.


3.3.2 Distributor License Agreement


Oracle shall procure from each Distributor an executed copy of a
distribution license ("Distributor License Agreement") sufficient to
ensure that such Distributors are required to comply with the
relevant terms of this Agreement.


3.3.3 End User License Agreements


Oracle and its Distributors shall distribute the Netscape Products
to End Users only under the terms of, and shall ensure that the
Netscape Products are subject to, applicable end user license
agreements with terms at least as restrictive as


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those set forth in the end user license agreement attached hereto as
Exhibit C ("End User License Agreement").


3.3.4 Third Party Requirements. In the event that Netscape is required by
a third party software supplier to cease and to cause its licensees
to cease reproduction and distribution of a particular revision of
the Netscape Products, Oracle agrees to comply herewith provided
Netscape provides Oracle with thirty (30) days prior written notice
and further provided Netscape replaces such affected Netscape
Product with a functionally equivalent Netscape Product as soon as
commercially practicable, before Oracle is required to cease
reproduction and distribution of such third party software.


3.4 Enforcement of Sublicense Agreements


Oracle and its Distributors shall use commercially reasonable efforts to enforce each Distributor License Agreement and End User License Agreement, whichever may be relevant, with at least the same degree of diligence used in enforcing similar agreements governing others, which in any event shall be that sufficient to adequately enforce such agreements. Oracle shall use commercially reasonable efforts to protect Netscape's copyright, shall notify Netscape of any breach of a material obligation under a Distributor License Agreement or an End User License Agreement affecting Netscape Products, and will cooperate with Netscape in any legal action to prevent or stop unauthorized use, reproduction or distribution of Netscape Products.


4. Fees and Payment


4.1 Prepaid License Fees


4.1.1 Oracle shall pay to Netscape the non-refundable prepaid license fees
("Prepaid License Fees") specified in Exhibit B hereto. Upon
exhaustion of the Prepaid License Fees, Oracle shall pay to Netscape
the license fee specified in Exhibit B for each license granted by
Oracle and/or Distributors to End Users in connection with the
distribution of all or any portion of a Netscape Product or Update.
Subject to the terms of this Agreement, the Prepaid License Fees
shall be credited against the license fees accruing under this
Agreement during the Initial Term of the Agreement. License fees
shall accrue for any license to a Netscape Product at the time
revenue is recognized by Oracle for shipment of an Oracle Product
with the Netscape Product. In the event that Oracle distributes (i)
at no charge Oracle Products containing the Netscape Product or (ii)
Oracle Products containing the Netscape Product which Oracle does
not intend to recognize revenue on at time of shipment, license fee
hereunder shall still accrue at the time of shipment.


4.1.2 Service Fees. Oracle shall pay to Netscape the service fees set
forth in Exhibit B for maintenance and support services described in
Exhibit D hereto.


4.2 Payment and Taxes


4.2.1 Payments. All payments shall be made in United States dollars, at
Netscape's option, (i) at Netscape's address as indicated in this
Agreement or at such other address as Netscape may from time to time
indicate by proper notice hereunder or (ii) by wire transfer to a
bank and account number designated by Netscape. Payments, if any,
shall accompany the applicable quarterly report under Section 4.3.


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4.2.2 Taxes. All prices are in U.S. Dollars and are exclusive of any
applicable taxes. Oracle shall pay, indemnify and hold Netscape
harmless from all import duties, customs fees, levies or imposts,
and all sales, use, value added or other taxes of any nature, other
than taxes on Netscape's net income, including penalties and
interest, and all government permit or license fees assessed upon or
with respect to any products sold or licensed to Oracle and any
services rendered to Oracle (except to the extent Oracle provides
Netscape with a valid tax exemption certificate). If any applicable
law requires Oracle to withhold amounts from any payments to
Netscape hereunder, Oracle shall effect such withholding, remit such
amounts to the appropriate taxing authorities and promptly furnish
Netscape with tax receipts evidencing the payments of such amounts.


4.3 Quarterly Reports


To the extent permitted and consistent with Oracle's standard business practices, Oracle and its Distributors shall maintain accurate records of distribution to Distributors and/or End Users pursuant to Section 2.1.1 (ii) by Country and Zip Code/Country Code, description of Netscape Product and quantity, and any further information as Netscape may from time to time reasonably request. Oracle shall report to Netscape within forty-five (45) calendar days after the end of each Oracle fiscal quarter, the type, if applicable, and number of licenses granted for the Netscape Products during such prior quarter by Oracle to Distributors and End Users including zip/postal code and/or country therefor. Oracle shall require its Distributors and each Distributor shall require its Distributors to report this information to Oracle on a quarterly basis and Oracle will include it in the report for the quarter in which Oracle received the information. For the purposes of this Agreement, "Oracle fiscal quarter" commences on the first day of June, September, December and March of each year during the term of this Agreement.


4.4 Audit of Records


4.4.1 Oracle shall keep and maintain full, true, and accurate records
containing all data reasonably required for verification of amounts
to be paid, and the quantity of Netscape Products distributed.
Netscape shall have the right, no more than once every year during
normal business hours upon at least thirty (30) days prior notice,
to audit and analyze, by a nationally recognized independent public
accounting firm, the relevant records of Oracle to verify compliance
with the provisions of this Agreement. The audit shall be conducted
at Netscape's expense unless the results of such audit establish
that inaccuracies have resulted in underpayment to Netscape of more
than five percent (5%) of the amount actually due, in which case
Oracle shall pay all amounts due and bear the expenses of the audit.
Results of such audit will be held confidential.


4.4.2 Upon Netscape's request that Oracle perform an audit of any first
tier Distributor's books and records with respect to distribution of
the Netscape Products, Oracle shall promptly perform such audit at
its own cost, or provide Netscape with written notice of its
election not to audit such Distributor and permit Netscape, at
Netscape's cost and with reasonable assistance from Oracle, to audit
such Distributor. Netscape shall be responsible for the reasonable
expenses associated with such audit unless the results of such audit
establish that inaccuracies have resulted in underpayment to
Netscape of more than five percent (5%) of the amount actually due,
in which case Oracle shall pay all amounts due and bear the expenses
of the audit. Results of such audit will be held confidential.


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4.4.3 Upon Netscape's request that Oracle perform an audit of any End
User's books and records with respect to reproduction and use of the
Netscape Products, Oracle shall promptly perform such audit at its
own cost, or provide Netscape with written notice of its election
not to audit such End User and permit Netscape, at Netscape's cost
and with reasonable assistance from Oracle, to audit such End User.
Netscape shall be responsible for the reasonable expenses associated
with such audit unless the results of such audit establish that
inaccuracies have resulted in underpayment to Netscape of more than
five percent (5%) of the amount actually due, in which case Oracle
shall pay all amounts due and bear the expenses of the audit.
Results of such audit will be held confidential.


5. Deliverables, Updates, and Technical Support


5.1 Deliverables


Netscape shall provide Oracle with the deliverables indicated in Exhibit B ("Deliverables"). All deliveries under this Agreement shall be F.C.A. Netscape. "F.C.A." means Free Carrier Alongside and shall have the definition in INCOTERMS 1990.


5.2 Updates and Technical Support


Netscape shall provide Oracle with Updates as they become available from Netscape at the pricing, terms and conditions specified in Exhibits B and D.


6. Trademarks and Trade Names/License to Use


Whenever Oracle makes reference to the Netscape Products or the functionality of the Netscape Products provided within the Oracle Product, Oracle shall use, and is hereby granted a worldwide non-transferable, non-exclusive and restricted license to use (with no right to sublicense), "Netscape Navigator Included" and those Netscape trademarks and trade names relating to the applicable Netscape Products in any advertising, marketing, technical or other materials related to such Netscape Products which are distributed by Oracle or its Dist ...