Oracle Partnernetwork Embedded Software License Distribution Agreement

Exhibit 10.17


ORACLE PARTNERNETWORK

EMBEDDED SOFTWARE LICENSE DISTRIBUTION AGREEMENT

This Embedded Software License Distribution Agreement (" agreement" ) includes the terms and definitions set out below and any orders and/or monthly reports you submit. This agreement is not effective until accepted by Oracle. If accepted, Oracle will notify you and the terms of this agreement will govern.

A. Agreement Definitions

" You" and " your" refer to the entity that has entered into this agreement with Oracle USA, Inc. (" Oracle" ) to distribute Oracle' s programs with your application program. " You" and " your" also refer to your majority owned subsidiaries. You warrant that you have the authority to bind your majority owned subsidiaries to the terms of this agreement and any applicable order with Oracle and/or report and further warrant that you shall be responsible for a breach of such terms by your majority owned subsidiaries.

The term " application package" refers to your application program into which the programs are embedded, and that is distributed to an end user. You must complete a separate application package registration form for each application package.

The term " application program" refers to an application program or physical device developed by you specified in the applicable application package registration form which is developed to run on the programs and complies with the following requirements: (1) the application program or physical device must be generally commercially available to commercial customers; (2) the application program or physical device must be accompanied by end user documentation; and (3) the application program or physical device must be commercially available to multiple end users and must not be intended for the exclusive use of a specific end user or group.

The term " distribution rights" refers to the right to distribute the programs to an end user embedded with the application package defined in an application package registration form in accordance with the terms of this agreement.

The term " embedded" refers to the following requirements, with which the application package must comply: (i) The programs must be packaged, installed, and configured as an integrated component on the application program' s product media or set of media. When loading the software, the application software must launch the programs silently. If the Oracle Universal Installer (OUI) is available as an installer for one or more of the programs then those programs must be installed by the OUI in silent mode. The application package must include pre-set configurations for the programs you are embedding. The end user must not be permitted to install or configure the programs separately and independently from the application package; (ii) The application program must be designed and developed by you to eliminate program administration tasks by the end user by including all program administration functions within the application program. You may not customize the application package for a single end user or a group of end users. All administration scripts including startup, shutdown, and backup are to be provided by you within the application program. The end user must not be permitted to access the programs directly but rather only through the application program;

(iii) All information from the programs must be accessed by the end user either through prepackaged reports, or add hoc reports that are developed by you, and included in the application package, which do not require or permit the end user to navigate the underlying data schema. If you include Oracle or third party reporting tools in the application package, such tools must be embedded in the application package pursuant to the terms of this agreement; (iv) If the application package must interface with another application or database, the end user is not permitted to directly access the database or use Oracle-supplied APIs to establish the transfer of data. To transfer data, you must set up predefined APIs unique to the application package and management of the data transfer must be done through the application program; * Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as [*****]. A complete version of this exhibit has been filed separately with the Securities Exchange Commission.


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(v) If you include Oracle or third party database tools in the application package, such tools must be embedded in the application package pursuant to the terms of this agreement. The end user may not be permitted to use such tools to access the programs directly, rather all access must be provided by you within the application program;

(vi) You may embed Internet Application Server Java Edition with your application program under the terms of this agreement at no charge only if your application package uses the OC4J J2EE Server as a component of your application package;

(vii) Program upgrades must be certified and distributed as a component of the application package and the end user shall be unable to upgrade the database or other Oracle program technology versions as a separate component; (viii) As you deem necessary, you will provide customer service, support, and education for all program operations to the end user. If you discontinue providing customer service, support, or education for your application package to the end user, Oracle will not be obligated to provide ongoing service, support, or education to the end user. You will notify Oracle of your intention to discontinue any support services provided by you to the end user;

(ix) Only you can access the programs directly for purposes of technical assistance to your end user and such access is limited to providing technical assistance, including troubleshooting, problem resolution, and support assistance. You shall not provide remote or onsite program administration tasks on behalf of the end user that are otherwise prohibited under the terms of this agreement;

(x) The embedded programs and the application program must be priced together on your standard price list and on the end user' s invoice as the price of the application package, and must not be distributed separately; and

(xi) The application program(s) described on the applicable application package registration form and with which the programs are embedded must not be distributed under any other Oracle distribution agreement. The term " end user" refers to a third party that is licensed to use the application program with the embedded programs for its own internal business operations subject to the terms of an end user license agreement as further provided for in this agreement.

The term " end user license agreement" refers to a legally binding written agreement as further described in Section G.

The term " Oracle Finance Division Contract" refers to a contract between you and Oracle (or one of Oracle' s affiliates) that provides for payments over time of some or all of the sums due to Oracle under this agreement.

The term " Oracle PartnerNetwork" refers to Oracle' s partner program that provides access to specified Oracle services, tools and resources. You can access the Oracle PartnerNetwork at http://partner.oracle.com .

The term " Partner Ordering Policy" refers to Oracle' s Partner Ordering Policy in effect at the time a report is submitted to Oracle which is incorporated into this agreement and is subject to change at Oracle' s discretion. You may access the current version of the Partner Ordering Policy at http://partner.oracle.com (log in, select Membership / Agreements & Policies).

The term " programs" refers to the software products owned or distributed by Oracle and set forth on the Oracle Embedded Product and Royalty Matrix which you acquire pursuant to an Oracle PartnerNetwork Agreement with Oracle for development purposes and which you are permitted to distribute to an end user embedded with the application package as provided in this agreement, including program documentation and any program updates acquired through technical support. The term " programs" does not include any Oracle programs which are not included on the Oracle Embedded Product and Royalty Matrix. You may access the Oracle Embedded Product and Royalty Matrix at http://partner.oracle.com (log in, select Membership / Agreements & Policies).

The term " program documentation" refers to the program user manual and program installation manuals. Program documentation for the programs you distribute is delivered with the programs, or the documentation may be accessed online at http://oracle.com/contracts .


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The term " services" refers to technical support or other services which you have ordered. The term " technical support" consists of annual technical support services for the programs as defined in Oracle' s technical support policies in effect at the time such technical support is ordered.

B. Distribution Rights

You must be a member of the Oracle PartnerNetwork in order to distribute programs. Oracle grants you a nonexclusive, nontransferable right to (a) to duplicate the programs for which you have received a development license under an Oracle PartnerNetwork Agreement between you and Oracle and (b) to distribute such programs to end users as part of the application package. The programs must be embedded with your application program and distributed with your application program and cannot be provided separately. Prior to distributing programs, you must obtain an order from the end user for the programs, which order and programs shall be subject to a valid end user license agreement. Each distributed embedded program must be used only for the internal business operations of the end user and must be used only in conjunction with the application package. Each distributed embedded program shall be subject to the terms of this agreement and the terms provided in the end user license agreement. You may distribute the application package to yourself or your affiliated entities and you or such entity shall be considered an end user under this agreement provided that (1) the total fees paid to Oracle for such distribution do not exceed 20% of the total fees paid to Oracle under this agreement, (2) you comply with the requirements of Section G (License Agreement), and (3) you report such distribution in accordance with Section F (Reporting). Oracle shall inform you of any notices that are related to third party software components (including open source software) that are included in a program and that Oracle is required to distribute with such programs. These notices shall be provided to you in at least one of the following ways, at Oracle' s sole discretion: (a) automatically installed with the programs; (b) in the program documentation; or (c) via a supplemental list. You shall reproduce all third party notices in an appropriate location in the application package and/or in its related documentation, as required by the applicable notices or as otherwise directed by Oracle. You must provide the following legend on the sign on screen of the application package, or if the application package is a physical device, you must provide the legend on the label for the media containing the programs and your application program: " The programs included herein are subject to a restricted use license and can only be used in conjunction with this application."

Oracle may request that you acquire any third party, royalty-free license offered generally to the public that Oracle, in its reasonable discretion, determines may be necessary to avoid a claim of infringement for distribution of any program or other Oracle software either by Oracle or by you under the terms of this agreement. In the event you fail to acquire such license, Oracle may terminate this agreement with respect to the relevant program(s) and/or other software on thirty (30) days written notice, and whether or not this agreement is terminated, Oracle shall have no obligation to indemnify you under Section J (Indemnification) for any claim of infringement that would have been avoided by the acquisition of such license.

C. Trial Licenses

Oracle grants you a nonexclusive right for you and your distributors to distribute trial licenses of the application package to no more than 50 end users, at any one time, for the end users' own internal evaluation purposes (and not for development, prototype, training or technical support purposes) pursuant to section G, License Agreement, below. Trial licenses shall be for 30 days and shall be subject to the terms of this agreement and the terms provided in the order. If your end users want to use a trial license for more than 30 days, then they must obtain an appropriate license and pay the appropriate fees. You must pay Oracle a fee for any trial licenses that you distribute that extend for more than 30 days. Programs licensed for trial purposes are provided " as is" and Oracle does not provide technical support or any warranties for these programs.

D. Distributors

You may appoint distributors to distribute the programs embedded with your application package as provided under the terms of this agreement. Distributors have no right to make copies of the programs and shall obtain all programs from you. Each distributor must be subject to a legally binding written agreement between you and the distributor that (a) grant the rights for the distributor to distribute the application package to end users, (b) contains or incorporates provisions which are equivalent to the terms of this agreement, and (c) permits you to audit your distributors' activities under such agreement and report such activities to Oracle or assign your right to audit the distributors' activities to Oracle. In addition, the agreement with your distributors shall require the distributors to distribute the application package subject to terms that are consistent with the terms of this agreement. Any distribution of the application package by your distributors


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shall be subject to an end user license agreement between you and the end user as set forth in Section G (License Agreement) of this agreement. You shall keep executed distributor agreements for Oracle to inspect upon request. You shall defend and indemnify Oracle from all claims and for all damages arising out of the activities of your distributors. E. Ownership and Restrictions

Oracle or its licensors retain all ownership and intellectual property rights to the programs. Oracle retains all ownership and intellectual property rights to anything developed by Oracle and delivered to you resulting from the services. Each end user may make a sufficient number of copies of each program for the licensed use and one copy of each program media.

Third party technology may be necessary for use with some Oracle programs and is specified in the program documentation; specific files (which are identified in the program documentation) of such third party technology (collectively the " Open Source Technology" ) may be included on the same medium or as part of the download of Oracle programs you receive, but is licensed under the Mozilla Public License, Common Public License, GNU Lesser General Public License, Netscape Public License or similar royalty-free/open source license (collectively, the " Open Source Licenses" ).

This agreement does not modify or abridge any rights or obligations you may have in Open Source Technology under applicable Open Source Licenses; however, to the extent that Open Source Technology is incorporated into an Oracle program, your rights and remedies under this agreement with respect to such Open Source Technology (i.e. indemnification) shall apply, but only for your use of the Oracle program that is in compliance with the terms of this agreement and with the terms of any relevant Open Source License. Any use of Open Source Technology outside of your licensed use of applicable Oracle programs is subject to the rights and obligations under such third party technology' s Open Source License. Open Source Technology programs that are separate from Oracle programs are provided as a courtesy to you and are licensed solely under the relevant Open Source License. Any distribution by you of code licensed under an Open Source License, whether alone or with the Oracle program, must be under the Open Source License.

You may not:

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duplicate and/or distribute the programs unless embedded with the application package; ullet

use the programs except as expressly provided in this agreement;

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remove or modify any program markings or any notice of Oracle' s or its licensors proprietary rights; ullet

rent, lease, or timeshare the programs, or provide subscription services for the programs, or permit your end user to do so (unless Oracle expressly permits such access for the specific program license the end user has acquired), or distribute the programs in any manner except as provided under this agreement;

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cause or permit reverse engineering (unless required by law for interoperability), disassembly, or decompilation of the programs (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs);

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disclose results of any program benchmark tests without Oracle' s prior written consent; ullet

engage in any conduct that may be detrimental to Oracle or to the programs; ullet

enter into any agreement which requires you to take any actions that are in conflict with the terms of this agreement; ullet

permit end users to install the programs separately and independently from the application package; or ullet

provide end users access to, or permit end users to make use of any program APIs supplied by Oracle. Oracle reserves any rights not expressly granted to you under this agreement.

F. Reporting

In connection with your distribution activities under this agreement, you shall submit monthly reports for programs distributed with the application package to Oracle in accordance with the Partner Ordering Policy. You should review the Partner Ordering Policy prior to submitting a report. Your monthly report must be complete when submitted to Oracle and may not (a) require any concessions (including requiring Oracle to perform any obligations or to incur any liability not set forth in your monthly report) or (b) be changed after it is submitted to Oracle.

Upon request, you will provide Oracle with a copy of the complete end user license agreement including any addenda or amendments thereto, and any ordering documents or purchase agreements between you and the end user related to the


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order, with any pricing information or any other information reasonably deemed confidential or proprietary removed because the copy(ies) you provide Oracle will not be considered confidential information. At a minimum you must provide information related to the programs, including but not limited to, the end user' s name, the programs distributed, the number of users, the license levels, the license grant to the end user, any definitions related to licensing metrics, the date of the order, and any other information reasonably requested by Oracle.

Where the acquisition of programs and/or technical support is financed or leased, then you will comply with Oracle' s financing and leasing policies which can be accessed at http://partner.oracle.com (log in, select Membership / Agreements & Policies).

G. License Agreement

It is your responsibility to ensure that any distribution of the programs and/or services to an end user is subject to a legally binding end user license agreement for the programs and/or services that you distribute to the end user. The end user license agreement must, at a minimum:

(1) restrict use of the programs to the scope of the application package and to the internal business operations of the end user; (2) prohibit (a) the transfer of the programs except for temporary transfer in the event of computer malfunction if the application package embeds the programs in a physical device; (b) the end user from assigning, giving, or transferring the programs and/or any services ordered or an interest in them to another individual or entity (and if your end user grants a security interest in the programs and/or any services, the secured party has no right to use or transfer the programs and/or any services); (c) timesharing, service bureau, subscription service, or rental use of the programs; and (d) title to the programs from passing to the end user or any other party;

(3) prohibit the reverse engineering (unless required by law for interoperability), disassembly or decompilation of the programs and prohibit duplication of the programs except for a sufficient number of copies of each program for the end user' s licensed use and one copy of each program media;

(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 end user, at the termination of the agreement, to discontinue use and destroy or return to you all copies of the programs and documentation: (6) prohibit publication of any results of benchmark tests run on the programs;

(7) require the end user to comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the programs, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws;

(8) notify the end user that the programs are subject to a restricted license and can only be used in conjunction with the application package and that the end user is not permitted to modify the programs;

(9) not require Oracle to perform any obligations or incur any liability not previously agreed to between you and Oracle; (10) permit you to audit your end user' s use of the programs and report such use to Oracle or to assign your right to audit the end user' s use of the programs to Oracle;

(11) designate Oracle as a third party beneficiary of the end user license agreement;

(12) exclude the application of the Uniform Computer Information Transactions Act; and

(13) inform the end user that some programs may include source code that Oracle may provide as part of its standard shipment of such programs, which source code shall be governed by the terms of the end user license agreement.

You may allow your end users to permit agents or contractors (including, without limitation, outsourcers) to use the programs on their behalf for the purposes set forth in the end user license agreement, subject to the terms of such agreement provided that such end users are responsible for such agents and contractors compliance with the end user license agreement in such use. You shall be financially responsible for all claims and damages to Oracle caused by your failure to include the required contractual terms set forth above in each end user license agreement between you and an end user. Oracle is a third party beneficiary of any end user license agreement between you and the end user, but does not assume any of your obligations thereunder, and you agree that you will not enter into any end user license agreement that excludes Oracle as a third party beneficiary.

You agree to inform Oracle promptly if you are aware of any breach of an end user license agreement. You agree to enforce the terms of an end user license agreement between you and an end user if Oracle requests you to do so to protect its interest, or, at Oracle' s request, to assign to Oracle or its designee the right to enforce such agreement.


5 H. Fees and Taxes

You may place an order or submit a monthly report for programs and/or services with Oracle. You agree to pay Oracle a fee for each order placed for programs and/or services ordered and/or distributed under this agreement, as specified in the applicable order with Oracle and/or report. You also agree to pay Oracle a fee for every application package with which the programs are embedded regardless of an end users prior possession or pre-existing license of these programs unless you are shipping only an updated version of the application package as part of your technical support service for which you are paying technical support fees to Oracle as specified herein. You will not be relieved of your obligation to pay any fees owed to Oracle by the nonpayment of such fees by your end user. You are free to determine the fees charged to an end user for program licenses and services. At your option, fees payable to Oracle for programs distributed to end users with the application package will be equal to either option (a) 20% of the applicable license fee for each individual program based on the Oracle Technology global price list in effect at the time you issue a quote or option (b) the percentage shown in Oracle' s Embedded Product and Royalty Matrix of the applicable standard license fee for the application package based on your standard commercial price list in effect at the time you issue a quote, incorporated in this agreement, and such fees owed to Oracle will not take into account any discounts you have offered to your end users.

In addition, with regard to fees for technical support you provide to end users for perpetual or term licenses of the programs, you agree to pay Oracle a technical support fee as set forth in the Oracle Embedded Product and Royalty Matrix. Technical support may be available to the end user on the date you ship the application package, or the date you distribute the application package to the end user, if shipment is not required. If technical support is provided by you to an end user, you must pay technical support fees to Oracle and the term for which you must pay fees to Oracle for such technical support shall begin on the last day of the month in which the application package is shipped, or distributed if shipment is not required, and if renewed, on that date in each subsequent year thereafter. If the end user does not continuously maintain technical support for the application package, you will be required to pay reinstatement fees to Oracle in accordance with Oracle' s current technical support policies if the end user wants to reinstate technical support. Fees for technical support are due and payable annually in advance.

You must select one of the above fee options for each application package by completing the Application Package Registration Form attached hereto and your selection will be in effect for the term of this agreement. If you select option (a), to view the Oracle Embedded Product and Royalty Matrix, you must log into the OPN web site at http://partner.oracle.com (log in, select Membership / Agreements & Policies). It is your responsibility to access the Oracle Embedded Product and Royalty Matrix to obtain current information. If you select option (a), if Oracle' s Embedded Product and Royalty Matrix changes after you issue a valid written quote for program licenses to an end user, for 90 days after the date you submit the quote to the end user, the fee applicable to the programs identified in the quote shall be based on the Oracle Embedded Product and Royalty Matrix in effect on the date you submit the quote. If you select option (b), you will provide Oracle with a copy of your current standard commercial application package price list at least twice a year so that Oracle may verify the fees due and payable to Oracle.

Except as provided herein, all fees payable to Oracle (including fees for annual technical support which you provide to end users) are due within 20 days of the last day of the month in which the application package is distributed to the end user. If you submit a purchase order to Oracle, fees payable under such purchase order are due within 30 days of the date of the purchase order. You also agree to pay any sales, value-added or other similar taxes imposed by applicable law that Oracle must pay based on the programs and/or services you ordered and/or reported, except for taxes based on Oracle' s income. You agree and you will obtain your end users' agreement that you and your end user have not relied on the future availability of any programs or services in entering into the payment obligations in the applicable order and/or monthly report; however, (a) if you order end user technical support for programs, the preceding sentence does not relieve Oracle of its obligation to provide updates under your ordering document, if-and-when available, in accordance with Oracle' s then current technical support policies and (b) the preceding sentence does not change the rights gr ...