ORACLE
RUNTIME SUBLICENSE ADDENDUM
This document (the "Addendum") is between Oracle Corporation ("Oracle") and
FileNet Corporation (the "Alliance Member') and shall be governed by the terms
of the Business Alliance Program Agreement between the Alliance Member and
Oracle effective July 1, 1996 (the "Agreement") and the terms set forth below.
1.SUBLICENSES
1.1 Sublicense Programs and Terms
The Alliance Member may only Sublicense Runtime Programs for which
the Alliance Member has previously acquired a Supported Development
License for the applicable Designated System. Notwithstanding any other
provision of this Agreement, the Alliance Member shall have no right to
Sublicense Programs designated as Oracle Applications Programs, Oracle
Express Programs, Limited Production Programs, or other Programs
specified by Oracle from time-to-time without the prior written consent
of Oracle.
The Alliance Member shall have the right to market and grant
Sublicenses of Runtime Programs under the conditions set forth in the
Agreement and under the following restrictions:
A. Sublicense Runtime Programs with the Application Program in the
Application Package for use on Designated Systems to Sublicensees.
Each copy of the Runtime Programs distributed shall be for the
Sublicensee's own internal use in the Territory only on a single
Designated System limited to a maximum number of Users; and
B. Make and deliver to the Sublicensee a single copy of the Runtime
Programs in the Application Package for each Sublicense granted.
The Alliance Member shall use all practical means available, both
contractual and technical, to control the restricted use of each
Runtime Program Sublicense. If a Sublicensee uses the Runtime Program
beyond the limited functionality described in Section 1.2 hereof, the
Alliance Member or Distributor shall immediately notify the Sublicensee
of such unauthorized use and if the Sublicensee fails to discontinue
such unauthorized use following notification either terminate the
Sublicense or forward to Oracle one hundred percent (100%) of the
applicable Full Use standard Program license fees in effect at the time
the payment is made to Oracle together with a written request by the
Sublicensee for a Full Use Program license from Oracle. Oracle must
approve, in writing, the Sublicensee's request before continued use of
the Programs by the Sublicensee shall be deemed authorized.
1.2 Runtime Programs
For the purposes of this Addendum, "Runtime Program(s)" shall mean
Programs which shall be limited to use solely for the purpose of
running the Alliance Member's Application Program, and may not be used
to create or alter tables or reports except as necessary for operating
the Alliance Member's Application Program. "Full Use Programs" shall
mean unaltered versions of the Programs with all functions intact.
1.3 Value-Added Package
For the purposes of this Addendum, "Application Program(s)" shall
mean the Alliance Members value added application software, described
in the attached Application Package Attachment with which the Runtime
Programs are to be coupled. "Application Package(s)" shall mean the
Runtime Programs coupled with the Application Programs. For purposes of
the Agreement, the Application Program shall be regarded as the
Alliance Member's Value-Added Package.
1.4 Trial Sublicenses
The Alliance Member and its Distributors shall be entitled to
grant, at no charge, up to a maximum combined total of ten (10)
temporary Trial Sublicenses of the Application Package at any one time.
Such Sublicenses shall be for evaluation purposes only and shall be for
a period not to exceed thirty (30) days. The Alliance Member shall pay
Oracle Sublicense fees for any Trial Sublicenses in excess of thirty
(30) days. Each such Trial Sublicense shall be Sublicensed under a
Sublicense agreement which provides for such trial use.
1.5 Distributors
Oracle grants the Alliance Member the right to appoint third
parties ("Distributors") to market and Sublicense the Runtime Programs
in the Territory, under the terms of the Agreement and this Addendum.
However, Distributors shall have no right to make copies of the
Programs for Sublicensing and shall obtain all such Programs from the
Alliance Member. Each Distributor shall execute a written agreement
with the Alliance Member binding the Distributor to provisions
substantially similar to those contained in Sections 2.3, 2.5, 2.6,
5.1, 5.2.6.1, 6.3, 6.4, 6.5, 7.2.D, 7.5,8.1, 8.2, 8.3, &5, 8.7, 8.9,
and 8.11 of the Agreement and to those contained in Sections 1 (except
1.5), 3, 4, 5, and 8 of this Addendum. Each obligation of the Alliance
Member under such provisions shall also be applicable to each
Distributor. Each Distributor agreement shall also contain any other
provisions necessary for the Alliance Member to satisfy its commitments
under the Agreement. The Alliance Member shall notify Oracle promptly
in writing of the appointment of each such Distributor.
In addition, the Alliance Member shall keep executed Distributor
agreements and records .of the Distributor information required under
the Alliance Member's Sublicense reports, and shall allow Oracle to
inspect such information as specified under the Agreement. The Alliance
Member will defend and indemnify Oracle against all damages to Oracle
caused by (i) the Distributors' failure to include the required
contractual terms set forth in Section 2.3.B of the Agreement in each
Sublicense agreement, and (ii) the Distributors' breach of any of the
applicable provisions required in its Distributor agreement.
1.6 Documentation
The Alliance Member shall be responsible for providing
documentation for Sublicensees. The Alliance Member shall have the
right to incorporate portions of the Documentation into the Alliance
Members documentation, subject to the provisions of Section 8.2 of the
Agreement.
2. SUBLICENSE FEES
2.1 Sublicense Fees and Rate
Application Package, the Alliance Member agrees to pay Oracle a
Sublicense fee equal to forty percent (40%) of the applicable license
fee for each such Program, as specified in the applicable Price List
and Alliance Member Price List supplement to such Price List in effect
at the time the applicable Programs are Sublicensed.
As further specified in Section 6 of this Addendum, Sublicense
fees shall be due and payable within twenty (20) days of the last day
of each month. 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.
On or after each anniversary during the Term of this Addendum,
Oracle may amend the Sublicense fee percentage rate set forth above
based on Oracle's then-current standard Sublicense fee percentage rate
schedule and the actual amount of Sublicense fees received by Oracle
hereunder.
2.2 Price List for Sublicenses
Notwithstanding any other provision of the Agreement, the
applicable Price List for determining Sublicense fees shall be the
standard Price List in effect at the time the Application Package is
Sublicensed.
Notwithstanding any other provision of this Agreement, if the
Alliance Member issues a written Sublicense quote and such quote is
accepted by the applicable Sublicensee, for a period of ninety (90)
days after the date of submission of the quote to the Sublicensee, the
Sublicense fee applicable to the Programs identified in the quote shall
be based on the Price List in effect on such date.
2.3 Users
The Sublicense fees for a Program shall be based and priced on the
applicable User Level for the maximum number of Users for such Program,
as specified in the Price List. The Alliance Member shall have the
right to Sublicense Programs on any User basis specified in the Price
List in effect at the time the applicable Program is Sublicensed.
3. TERM
This Addendum shall become effective on the Effective Date of this
Addendum and shall be valid for three (3) years (the "Term") from the
Effective Date, unless terminated as provided in the Agreement. Any
renewal of this Addendum shall be subject to renegotiation of terms and
fees.
Unless the expiration or termination is for default by the
Alliance Member, the Alliance Member may continue using the release of
the Programs then in the Alliance Member's possession on the Designated
Systems for which Development Licenses were granted, solely for the
purpose of continuing technical support for Sublicense granted prior to
termination. Such continued use of the Programs shall be subject to all
the provisions of this Agreement, including, without limitation,
payment of the Technical Support Fees specified herein.
4. TERRITORY
The Alliance Member shall have the right to market and grant
Sublicenses of Programs in the United States only (the 'Territory").
5. TECHNICAL SUPPORT
5.1 Technical Support for Sublicensees
A. Installation
The Alliance Member or its Distributors will be responsible for
any assistance needed to install the Application Package at Sublicensee
sites.
B. Sublicensing Support
The Alliance Member is responsible for providing all technical
support, training and consultations to its Sub licensees and
Distributors. In consideration of the payments specified in Section
5.2, the Alliance Member shall have the right to use the Oracle
Technical Support services acquired for its Supported Development
Licenses to provide technical support services to its Sublicensees as
further set forth in the Agreement. The Alliance Member shall
continuously maintain Oracle Technical Support services for the
Development Licenses during the period during which the Alliance Member
provides technical support services to any Sublicensees. Any questions
from the Alliance Members Sublicensees or Distributors will be referred
by Oracle to the Alliance Member,
5.2 Technical Support Fees
For Technical Support services for Sublicensees, each year the
Alliance Member agrees to pay Oracle annual Technical Support Fees for
each Runtime Program Sublicensed under this Addendum, a previous
Alliance Member Addendum, or previous distribution agreement between
the parties hereto where the Sublicensee received technical support
services for such Runtime Program during the applicable support period.
Annual Technical Support Fees for a Program shall be equal to the
applicable Technical Support percentage rate for the highest Technical
Support services level selected by the Alliance Member for Technical
Support services for any Development License used under this Addendum
of the cumulative Sublicense fees accrued to Oracle for such supported
Program.
Upon December 31 of each year, the Alliance Member shall provide
Oracle a report setting forth all of the Alliance Members' Sublicenses
and those Sublicensed Programs which were supported by the Alliance
Member during the calendar year. The report shall also include the
applicable Technical Support Fees due and payable to Oracle for such
calendar year. The Alliance Member shall provide Oracle with payment of
all Technical Support Fees for such calendar year required under the
applicable December 31 report with such report in the form of a check
made out in the amount of such fees. All Technical Support Fees paid to
Oracle are noncancelable and nonrefundable.
6. SUBLICENSE REPORTS
Within twenty (20) days of the last day of each month, the
Alliance Member shall send Oracle a report detailing for that month:
A. For each Sublicensed Application Package shipped during the prior
month, Sublicensee name, address, make/model and operating system of
the Designated System, date of shipment, Runtime Programs shipped,
maximum number of licensed Users, whether the Sublicense is a Trial
Sublicense, and total Sublicense fees and Technical Support Fees due
to Oracle;
B. For each Application Program licensed to end-users to be used with
previously installed software licensed by Oracle in conjunction with
the Application Program, Sublicensee name, address, make/model and
operating system of the computer, and date of installation; and
C.The Distributor agreements executed during the prior month, including
names and addresses of the Distributors.
The Alliance Member shall require its Distributors to report this
information to the Alliance Member on a monthly basis and will include
it in the report for the month in which the Alliance Member received
the information. The Alliance Member shall provide Oracle with payment
of all fees required under the monthly report with such report in the
form of a check made out in the amount of such fees.
7. ADDITIONAL LICENSES
During the Term, the Alliance Member may order production release
versions of Oracle off-the-shelf Programs available as production
release as of the Effective Date of this Addendum and listed on the
Price List in effect as of such date. The license fee for Development
Licenses shall be equal to Oracle's standard list license fees in
effect when an order is placed. The Alliance Member shall have the
right to order Programs for use as Marketing Support Licenses at no
further charge to the Alliance Member. The Alliance Member may obtain
Technical Support services from Oracle for such Programs under Oracle's
applicable Technical Support fees and policies in effect when such
services are ordered.
The Effective Date of this Addendum shall be July 1, 1996.
Executed by FileNet Corporation: Executed by Oracle Corporation:
Authorized Signature:/s/X. X. Xxxxxxxx Authorized Signature:/s/Xxxxx Xxxxxxxxx
Name: X. X. Xxxxxxxx Name: Xxxxx Xxxxxxxxx
Title: V P. Operations Title: Manager - Western Region
Channels Sales Support
ORACLE
Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
(000) 000-0000
Oracle is a registered trademark of Oracle Corporation.
8-95
APPLICATION PACKAGE ATTACHMENT
Name of Application Program and Application Package which the Alliance Member
will be Sublicensing under the Agreement (may not contain the trademarks
"Oracle" or "Ora" or any portion thereof):
Description of Application Package:
Modules:
Functions and Objectives:
AMENDMENT ONE
to the
RUNTIME SUBLICENSE ADDENDUM
to the
BUSINESS ALLIANCE PROGRAM AGREEMENT
between
FILENET CORPORATION
and
ORACLE CORPORATION
This Amendment One shall serve to amend the Runtime Sublicense Addendum dated
July 1' 1996 (the "Addendum") to the Business Alliance Program Agreement
between FileNet Corporation (the "Alliance Member") and Oracle Corporation
("Oracle") dated July 1, 1996 (the "Agreement").
The Addendum is amended as follows:
1. Insert the following at the end of the first paragraph of Section 1.1:
"Notwithstanding any provision to the contrary in the Agreement, during
the Term of this Addendum, provided the annual revenue received by the
Alliance Member for Sublicenses to the Alliance Member constitutes less
than fifty percent (50%) of the Alliance Member's total annual revenue
for Runtime Sublicenses, the Alliance Member may acquire Runtime
Programs for its own internal use as a Sublicensee under all terms and
discount rates of this Agreement.
2. Delete Section 1.4 and replace it with the following:
"1.4 Trial Sublicenses
The Alliance Member shall be entitled to grant, at no charge, up to
____*______ temporary Trial Sublicenses of the Programs at any one
time. Such Sublicenses shall be for evaluation purposes only and shall
be for a period not to exceed ____*_____ days. The Alliance Member
shall pay Oracle Sublicense fees for any Trial Sublicenses in excess of
____*_____ days or for any Trial Sublicenses for which the Alliance
Member is compensated. Each such Trial Sublicense shall be Sublicensed
under a Sublicense agreement which provides for such trial use or under
an Oracle Trial License Agreement, as the applicable Oracle Agreement."
3. In Section 2.1, delete the first sentence and replace it with the
following:
"For each copy of the Programs Sublicensed by the Alliance Member or
its Distributor in the Application Package, the Alliance Member agrees
to pay Oracle a Sublicense fee equal to _______*________ percent __*__
of the applicable license fee for each RDBMS Program and ____*____
percent __*__ of the applicable license fee for any other Program, as
specified in the applicable Price List and Alliance Member
* Confidential portion has been filed separately with the Securities and
Exchange Commission.
Price List supplement to such Price List in effect at the time the
applicable Programs are Sublicensed."
4. In line 5 of Section 2.2, insert the following after "Sublicensed":
", except that, until January 1, 1997, the applicable Price List for
determining shall be the standard Sublicense fees of only the Oracle7
RDBMS Program only Oracle Reseller U.S. Price List in effect as of July
1, 1995."
5. After the first paragraph of Section 2.2 insert the following new
paragraph:
"All Sublicense fees for Sublicenses installed outside the United
States shall be based on the license fees for the Programs as set forth
on the applicable Global Price List."
6. Insert the following at the end of Section 2.3:
"Unless otherwise agreed to by the parties in writing, the term "User"
shall include "Named Users" and/or "Concurrent Devices/Concurrent
Accesses". Unless otherwise agreed to by the parties in writing, a
"Named User" is defined as an individual authorized by Sublicensee to
use the Programs, regardless of whether the individual is actively
using the Programs at any given time and "Concurrent Devices/Concurrent
Accesses" are defined as the maximum number of input devices accessing
the Programs at any given point in time. (If multiplexing software or
hardware (e.g., a TP monitor) is used, this number must be measured at
the multiplexing front end.) "Multiplexing" includes but is not limited
to any utility of function which allows Users to access the database in
a sequential fashion."
7. In Section 3, replace "three (3) years" with "four (4) years".
8. Delete the body of Section 4 in its entirety and insert the following:
"4. TERRITORY
The Alliance Member shall have the right to market and grant
Sublicenses of Programs in the Application Package in all countries
worldwide (the "Territory"), subject to the terms of this Section.
Oracle may from time to time deny the Alliance Member the right to
Sublicense in certain countries in the Territory in order to protect
Oracle's interests if, in the reasonable opinion of Oracle's counsel,
such countries (i) do not provide adequate protection for Oracle's
proprietary rights through copyright, trade secret, patent, or other
laws; or (ii) have laws or regulations or the government has committed
acts which in the opinion of Oracle's counsel, are injurious to
Oracle's interests in the Programs.
The Alliance Member acknowledges that the Programs are subject to
export controls imposed on Oracle and the Alliance Member by the U.S.
Export Administration Act, United States Departments of Commerce,
Treasury, and State regulations and directives, and other United States
law ("Export laws"). The Alliance Member certifies that neither the
Programs nor any direct product thereof are (i) exported, directly or
indirectly, in violation of Export laws; or (ii) are intended to be
used for any purposes prohibited by the Export laws, including, without
limitation, nuclear, chemical, or biological weapons proliferation.
Furthermore, the Alliance Member shall not transfer the Programs
outside of the territory for which the Alliance Member has Sublicense
fights under this Agreement.
The Alliance Member warrants that neither it nor its Distributors
will grant Sublicenses in or ship any Programs to a country until it
(or the Distributor) has completed all necessary government formalities
in such country and upon reasonable request by Oracle, the Alliance
Member (or its Distributor) provides evidence of completion of such
formalities to Oracle. The Alliance Member will indemnify Oracle for
any losses, costs, liability, and damages incurred by Oracle as a
result of a failure by the Alliance Member 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 Addendum. Upon Oracle's reasonable request, the
Alliance Member shall make records available to Oracle to allow to
confirm the Alliance Member's compliance with this Section."
8. Replace the last sentence of the first paragraph of Section 5.2 with
the following:
"For supported Programs Sublicensed on or prior to ____*_____
days from the Effective Date of the Agreement, annual Technical Support
Fees shall be equal to ________*________ percent __*__of the cumulative
Sublicense fees accrued to Oracle for such supported Program. For
supported Programs Sublicensed after ____*_____ days from the Effective
Date of the Agreement, annual Technical Support Fees shall be equal to
____*_____ percent __*__ of the cumulative Sublicense fees accrued to
Oracle for such supported Program."
9. Delete the first sentence of Section 6 and insert the following:
"Within forty-five (45) days of the last day of each quarterly period
ending March 31, June 30, September 30, December 31 (each such period,
a "Quarter"), the Alliance Member shall send to Oracle payment and a
report detailing for that Quarter:"
Also, in Sections 2.1, 5, and 6, delete the word "month" and insert the
word "Quarter" and delete the word "monthly" and insert the word
"Quarterly" in each instance in which such words occur.
10. Delete the second sentence of Section 7 and insert the following:
"The license fee for Development Licenses shall be equal to Oracle's
standard list license fee in effect when an order is placed.
Notwithstanding the above, the Alliance Member shall be granted a
discount on each Development License ordered of ______*______ percent
* Confidential portion has been filed separately with the Securities and
Exchange Commission.
__*__off Oracle's standard list license fees in effect when an order is
placed."
11. Add the following new Section after Section 7:
"9. COMMISSIONS
During the Term of this Addendum, Oracle agrees to pay the
Alliance Member a fee ("Commission")equal to no more than __*__ percent
__*__of the net license fees Oracle receives from Programs licensed by
Oracle to end-users in the United States, as a direct result of the
Alliance Member's marketing efforts. Unless otherwise mutually agreed
to in writing by the Alliance Member and Oracle, Commissions shall only
be paid provided that: A. Oracle obtains from the end-user an Oracle
Software License and Services Agreement, or other terms to govern the
applicable software license as agreed to in writing by Oracle and the
end-user; B. The Alliance Member provides to Oracle a completed
Commission Request Form which is accepted in writing by Oracle at least
five (5) days prior to the date of license of the applicable Programs,
and the end-user pays Oracle all required license fees; C. The Alliance
Member's marketing efforts precede the license grant from Oracle; and
D. The net license fees represent new revenue to Oracle.
The Alliance Member's Commission shall be calculated on fees for
perpetual software licenses only. The Alliance Member shall not earn a
Commission based on Technical Support fees or fees for other services
or products provided to the end-user by Oracle. Oracle reserves the
fight to withhold payment of the Commissions due to non-collectability
of revenues from the end-user or if the Alliance Member employs
marketing practices not approved by Oracle. Commissions shall be paid
for Program licenses installed in the United States only. If one or
more other Alliance Members seek to obtain Commission for a Program
license for which the Alliance Member is seeking Commission, Oracle
shall reasonably reduce or adjust the Commission rate specified above
to apportion payment of commissions between all Alliance Members which
in Oracle's reasonable judgment are entitled to payment of commissions.
A copy of the Commission Request Form is attached hereto as Exhibit A."
Other than the modifications set forth above, the terms and conditions
of the Addendum and the Agreement remain unchanged, and in full force
and effect.
* Confidential portion has been filed separately with the Securities and
Exchange Commission.
The Effective Date of this Amendment One is July 1, 1996.
FILENET CORPORATION ORACLE CORPORATION
By: /s/ X. X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
Name: X. X. Xxxxxxxx Name: Xxxxx Xxxxxxxxx
Title:V P. Operations Title: Manager - Western Region
Channels Sales Support
EXHIBIT A
CONIMISSION REQUEST FORM
Company Name:
Address:
City: State: Zip:
Contact Name/Title: Phone Number:
Type of Business Organization:
Annual Revenue $: # of Employees:
Existing Software:
Proposed Software Solution:
Hardware Platform/Operating System:
Oracle Programs:
Projected Order Date:
Projected Dollar amount of Order:
Amount of Commission requested:
Alliance Member direct marketing efforts:
Additional Information:
Any Commission payable under this Commission Request Form shall be specific to
the license of Programs as specified above to the end user set forth above. The
amount of Commission specified above shall not be applicable to any other
Program licenses by Oracle.
The Effective Date of this Commission Request Form shall be
Executed by the Alliance Member: Executed by Oracle Corporation:
Authorized Signature: Authorized Signature:
Name: Name:
Title: Title:
