Exhibit 10.3
NETWORK USER LICENSE AGREEMENT
between
THE NASDAQ STOCK MARKET, INC.
and
ORACLE CORPORATION
This Network User License Agreement ("User Agreement") shall be governed by the
terms of the Software License and Services Agreement between The Nasdaq Stock
Market, Inc. ("Client") and Oracle Corporation ("Oracle") effective November 30,
1993 (the "Agreement") and the terms set forth below.
1. PROGRAMS AND DEFINITIONS
1.1 LICENSED PROGRAMS
1.1.1 "Licensed Programs" means the Programs in the Program Set(s)
that are currently available in production release as of the
Effective Date for use on the corresponding Hardware and as
specified in the License Type.
Program Set A: Hardware
Programs (Computer/Operating System) License Type
Oracle7 Sequent Dynix/ PTX Deployment
procedural option Unisys Dynix/ PTX
distributed option Sun 4/ Solaris
parallel server option Sun 4/ Sun OS
SQL*Net SCO/ Unix
SQL*Net TCP/IP Macintosh/ Mac OS
SQL*Plus PC Compatible/ Netware
PC Compatible/ OS/2
PC Compatible/ MS DOS
Program Set B: Hardware
Programs (Computer/Operating System) License Type
Oracle 7 Sequent Dynix/ PTX Full-use
procedural option Unisys Dynix/ PTX
distributed option Sun 4/ Solaris
parallel server option Sun 4/ Sun OS
SQL*Net SCO/Unix
SQL*Net TCP/IP Macintosh/ Mac OS
CDE Tools bundle PC Compatible/ OS/2
(SQL*Forms/Menu, PC Compatible/ MS DOS
SQL*Plus, PC Compatible/ MS WINDOWS
SQL*Reportwriter)
Pro*C
The "Hardware" shall be defined as the Computer/Operating System
combinations listed above that are owned, leased to, or under the sole
control of Client or an Agent at a location where the Licensed Programs
are installed and used in accordance with Paragraph 1.8 C. of the
Agreement.
1.1.2 During the User Agreement Term, Client may add Computer/Operating
System combinations, except those for massively parallel processors,
("Additional Hardware") to the Hardware specified above on the
following Program Set at no additional charge, provided: (i) the
Licensed Programs are available in production release status on the
Additional Hardware at the time Client elects to add the Additional
Hardware; and (ii) Client has continuously maintained Technical Support
for the Licensed Programs.
Program Set Number of Additional Hardware
----------------------------------------------------------------------
Program Set A 10
Program Set B 10
Oracle shall ship to the Client Location five (5) master copies of the
Licensed Programs for each Additional Hardware added. These Licensed
Programs may only be copied and installed in accordance with Section 4
of this User Agreement.
Client acknowledges that the Licensed Programs for use on the
Additional Hardware specified above may not be currently available and
may not become available during the User Agreement Term. Client agrees
that it has not relied on the availability of such Licensed Programs in
executing this User Agreement and further agrees that the availability
of such Licensed Programs will not affect Client's payment obligations
under Section 2 below. Oracle is under no obligation and does not imply
that it will make available any Programs or Program/Hardware
combinations that are not currently available.
1.1.3 During the User Agreement Term after Client has added all Additional
Hardware allowed under Section 1.1.2 above, Client may exchange a
Computer/Operating System listed in the Hardware or added to the
Hardware under Section 1.1.2 above ("Prior Hardware") for a
Computer/Operating System (except those for massively parallel
processors) ("New Hardware"), at no charge provided that Client is
under Technical Support services for the Licensed Programs on the Prior
Hardware at the time the transfer is ordered.
Oracle shall ship to the Client Location five (5) master copies of the
Licensed Programs for each New Hardware added. These Licensed Programs
may only be copied and installed in accordance with Section 4 of this
User Agreement.
Client acknowledges that the Licensed Programs for use on the New
Hardware specified above may not be currently available and may not
become available during the User Agreement Term. Client agrees that it
has not relied on the availability of such Licensed Programs in
executing this User Agreement and further agrees that the availability
of such Licensed Programs will not affect Client's payment obligations
under Section 2 below. Oracle is under no obligation and does not imply
that it will make available any Programs or Program/Hardware
combinations that are not currently available.
1.1.4 During the User Agreement Term, for each of the Current Programs
specified below which have already been licensed to Client under this
User Agreement the no charge technical support Update for each shall be
made available to Client on the applicable Hardware and for the
applicable License Type when and if such Programs are made available in
production release; provided Client is under contract with Oracle to
receive Technical Support for each of the current Programs specified
below at the time the applicable technical support Update for each is
released:
Current Programs Update License Type
SQL*Forms/SQL*Menu Oracle Forms Full-use
SQL*ReportWriter Oracle Reports
1.2 LICENSE TYPE
"Full Use Programs" are defined as an unaltered version of the Licensed
Programs with all functions intact.
"Deployment Programs" are limited to use solely in conjunction with and
in support of a Client Entity's business Application(s) ("Client
Application(s)") and as restricted below. The combination of the
Deployment Programs and a Client Application shall be defined as the
Application Package.
a. The Application Package under Client Application control may
be used to create new tables or alter tables only to the
extent necessary to implement the Application Package's
functions. The Application Package may not allow use of the
Deployment Programs' Create or Alter commands or any other
command that would allow the User to create tables or alter
tables outside the scope of those necessary for the operation
of the Client Application(s).
b. The Application Package may not allow use of the Deployment
Programs' SQL*Forms modules or any other functionality that
would enable modification of forms created by the Application
Package or generation of new forms.
c. The Application Package may not allow use of the Deployment
Programs outside the scope of the Application Package, or to
be used to create any new application programs, or expand the
functionality of the Application Package, or for any general
database management.
1.3 USER
A. For Program Set A, one "Concurrent User" is defined as one individual
employed by Client, an Entity Employee, Agent Individual, or Subscriber
Designee who may use the Programs under Paragraph 1.8 of the Agreement,
or one individual authorized by a Sublicensee in accordance with
Exhibit A to this User Agreement to access one or more Oracle instances
online within Client or a Client Entity at the same point in time from
the same device. Each additional process (e.g., a report, update, or
query requested through an application program, or batch process) shall
also be counted as a Concurrent User.
If multiplexing software or hardware (which is software or hardware
whose primary purpose is to reduce the number of Concurrent Users
directly connected to an Oracle instance, e.g. a TP monitor) is used,
then the number of Concurrent Users shall be measured as the number of
distinct inputs to the multiplexing front-end. Otherwise, the number of
Concurrent Users shall be measured as the number of unique connections
to the same Oracle instance.
B. For Program Set B, "Concurrent User(s)" is defined as each session
connected to the database by individuals employed by Client (or an
Entity Employee, Agent Individual, or Subscriber Designee who may use
the Programs under Paragraph 1.8 of the Agreement) on the specified
Computer at the same point in time. This includes all batch processes
and on-line users. If multiplexing software or hardware (e.g. a TP
monitor) is used to reduce the number of sessions directly connected to
the database, the number of Concurrent Users must be measured as the
number of distinct inputs to the multiplexing front-end.
C. The maximum number of Concurrent Users of the Program Sets on the
Hardware shall be as follows:
Program Set Number of Concurrent Users
Program Set A 2,250 Concurrent Users
Program Set B 48 Concurrent Users
All references to User in this User Agreement shall mean Concurrent
User.
1.3.1 During the User Agreement Term, Client shall have the option to
increase the number of Concurrent Users of the Licensed Programs in
Program Sets A and B for use on the relevant Hardware in additional
User Increments (with a minimum of one User Increment per order) as
specified below:
Number of
Concurrent Maximum Number of
Users per User Increments Client may Additional Fee
Program Set User Increment Acquire under this Option per User Increment
Program Set A ***** * *****
***** *****
***** *****
***** *****
Program Set B ***** *****
---------
* *****Confidential Treatment has been requested for the redacted portions.
The confidential redacted portions have been filed with the Securities and
Exchange Commission.
Orders placed against this option must be sequential (i.e. For a
purchase of 1200 additional Concurrent Users for Program Set A, Client
would pay (i) ***** per 100 Concurrent Users for the first 500
Concurrent Users, (ii) ***** per 100 Concurrent Users for the second
500 Concurrent Users, and (iii) ***** per 100 Concurrent Users for the
next 200 Concurrent Users). The total number of additional Concurrent
Users is not reset to zero after each purchase (i.e. If Client chose to
purchase another 700 Concurrent Users for Program Set A after the above
mentioned 1200 Concurrent User purchase, Client would pay (i) ***** per
100 Concurrent Users for the first 300 Concurrent Users and (ii) *****
per 100 Concurrent Users for the next 400 Concurrent Users). For each
order, applicable sales tax will be added to the Additional Fee. All
applicable fees shall be due and payable on the date that Client
notifies Oracle in writing of its exercise of this option. Upon
election, this payment obligation is noncancelable, and the sum paid is
nonrefundable, except as provided in the Agreement. At the time of each
order , Client may obtain Standard Technical Support services from
Oracle as set forth in Section 6.2 below at the following fees:
Technical Support Fee as a Percentage of the
Additional Fee per Concurrent User
Year of
User Agreement Term Increment ordered
First Year *****
Second Year *****
Third Year *****
Fourth Year *****
1.4 USER AGREEMENT TERM
The "User Agreement Term" shall be from the Effective Date to December
31, 1998.
1.5 TERRITORY
The "Territory" shall be defined as the Client Entities facilities in
the United States. The "Territory" from which a Subscriber Designee may
access a Program, in accordance with Paragraph 1.8 of the Agreement,
shall be worldwide except for the countries and nationals thereof
excluded in this Section 1.5. During the User Agreement Term, Client
may request from Oracle written permission to add additional countries
to the Territory, which permission shall not be unreasonably withheld.
Such additional countries shall exclude the following countries and
nationals thereof: Afghanistan, People's Republic of China, Laos,
Latvia, Lithuania, Mongolia, Romania, Libya, Hungary, Poland, Albania,
Bulgaria, Czechoslovakia, Estonia, the geographic area formerly
comprising the Union of Soviet Socialist Republics, Cuba, Cambodia,
North Korea, Vietnam, South Africa (Military and Police), Iran, Iraq,
Syria, Haiti, Montenegro, Serbia and any other country or entity to
which the United States Department of Commerce or other United States
government agency prohibits shipment. Client shall have the right to
request from Oracle written permission to install the Licensed Programs
in such countries and/or have Users in such countries upon Oracle's
prior written consent, which shall not be unreasonably withheld. Client
acknowledges that the Program(s) are subject to export controls imposed
on Oracle and Client by the U.S. Export Administration Act of 1979, as
amended (the "Act"), and the regulations promulgated thereunder (the
Act and the regulations shall be referred to collectively as the "DOC
Regulations"). Client certifies that neither the Program(s) nor any
direct product thereof are intended to be used for any purposes
prohibited by the DOC Regulations, including, without limitation,
nuclear, chemical, or biological weapons proliferation. Further, Client
shall not transfer the Program(s) outside of the Territory for which
Client has rights under this User Agreement. Client agrees to comply
fully with all relevant regulations of the United States Departments of
Commerce, Treasury, and State, and all other U.S. governmental agencies
to assure the Program(s) are not exported in violation of U.S.
governmental agency regulations. The obligations under this Section
shall survive the expiration of this User Agreement. Upon Oracle's
reasonable request, Client shall make records available to Oracle to
allow Oracle to confirm compliance with Client's obligations as set
forth under this Section.
1.6 CLIENT
For purposes of this User Agreement, the term "Client" means Client and
Client Entities, as defined in the Agreement, and located in the United
States as of the Effective Date. If the Territory is expanded pursuant
to Section 1.5 to include other countries, "Client" shall be further
defined to include additional Client Entities as provided in the
Agreement located in the additional countries.
2. FEES AND PAYMENTS
The license fee for this User Agreement shall be ***** * Client shall
be granted the one-time only right to apply ***** in license fees
previously paid to Oracle, which are associated with the termination of
Client's Program licenses under Customer Support Identification (CSI)
number ***** as a credit toward such User Agreement license fees.
Client's Program licenses under CSI numbers ***** shall also be
terminated. Therefore, Client's total license fee payment obligation
under this User Agreement shall be ***** This fee shall be due and
payable in two installments the first installment of ***** shall be due
and payable within ***** days of the Effective Date and the second
installment of ***** shall be due and payable on November 29, 1994.
This payment obligation is noncancelable and the sum paid is
nonrefundable, except as provided in the Agreement. The pricing
specified herein is specific to this User Agreement and the fees
contained herein may not be reduced by any existing credits or any
other discounts. Except as specified under Section 1.3.1 above,
licenses for any additional Users, Programs, Hardware, or Operating
Systems that are acquired under the Agreement shall be at terms and
fees as determined when such additional licenses are acquired.
Applicable sales tax shall be charged to Client based on the point of
delivery of the master copy and paid under the terms of the Agreement.
Client is responsible for payment of any use tax or other tax arising
from use of the Licensed Programs in any other Location.
---------
* *****Confidential Treatment has been requested for the redacted portions.
The confidential redacted portions have been filed with the Securities and
Exchange Commission.
3. LICENSE GRANT
In consideration for the payment specified in Section 2 above, Oracle
grants to Client a non-exclusive, non-transferable license to use the
Licensed Programs for the applicable License Type on the applicable
Hardware, as specified in Sections 1.1.1, 1.1.2, and 1.1.3 in the
Territory under the terms of the Agreement, for up to the maximum
number of Concurrent Users specified in Section 1.3 C. above as
increased, if at all, for additional fees under Section 1.3.1 above.
During the User Agreement Term, Client shall be permitted to
reconfigure its Computers and its use of the Licensed Programs provided
that (i) Client does not install the Licensed Programs outside the
Territory; (ii) the Licensed Programs are installed only on the
Hardware as listed in Section 1.1.1. plus Additional Hardware and New
Hardware added, if any, under Sections 1.1.2 and 1.1.3 ("Total
Hardware"); and (iii) the total number of Concurrent Users specified in
Section 1.3 C. plus Concurrent Users added, if any, under Section 1.3.1
("Total Concurrent Users") who may access the Licensed Programs
installed on the Total Hardware does not exceed the Total Concurrent
Users. Upon expiration of the User Agreement Term, the Licensed
Programs on the Computers comprising the Hardware shall be fixed in
accordance with Section 4 below.
4. DELIVERY AND INSTALLATION
Oracle shall deliver to Client ***** copies of the software media and
***** sets of documentation ("master copy") for each Licensed Program
for use on the applicable Hardware to the following Client location:
0000 Xxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("Client Location").
Client shall be responsible for copying the software media and
installing the Licensed Programs. Unless otherwise specified herein,
Client shall acquire no right to copy documentation. The Acceptance
Period for each of the Licensed Programs shall commence on delivery of
the master copy of the Licensed Programs, and all subsequent copies
shall be deemed accepted upon acceptance of the master copy. Upon
expiration of the User Agreement Term, the Concurrent Users, server
Computers, and types of Computer/Operating Systems shall be fixed for
the Territory as follows: (1) the number of Concurrent Users for the
Licensed Programs within each Program Set shall be fixed at the total
number of Concurrent Users acquired for the Program Set under Sections
1.3 C. and 1.3.1 above; (2) the types of Computer/Operating Systems
shall be fixed to the Hardware types acquired under Sections 1.1.1,
1.1.2, and 1.1.3 above ("Total Hardware"); and (3) the number and
make/model of server Computers shall be fixed at the number of server
Computers upon which the Licensed Programs are installed as of the
expiration of the User Agreement Term ("Installed Servers") plus an
additional number of server Computers, within the Total Hardware, equal
to ***** * of the Installed Servers ("Uninstalled Servers") upon which
the Licensed Programs may be installed after the User Agreement Term.
The number of personal computers will not be fixed. Upon fixing of the
Licensed Programs on the Computers, the Program licenses shall be
perpetual subject to the terms of the Agreement. Thereafter, unless
this User Agreement is extended or modified, Program licenses for use
on additional Computers or licenses for additional Users shall be
acquired separately.
---------
* *****Confidential Treatment has been requested for the redacted portions.
The confidential redacted portions have been filed with the Securities and
Exchange Commission.
During the User Agreement Term, Client may order Oracle documentation
for the Licensed Programs at Oracle's standard fees in effect when each
order is placed less the Discount Percentage corresponding to the List
Price of Documentation for a single order.
List Price of Documentation Discount Percentage
------------------------------------------------------
(Single Order)
$1,000 - $1,999 ***** *
$2,000 - $3,999 *****
$4,000 - $5,999 *****
$6,000 and over *****
5. REPORTING
On each anniversary of the Effective Date, Client shall notify Oracle
in writing of: (i) the number of personal computers and the location,
models and serial numbers of all server Computers on which the Licensed
Programs are installed; (ii) the Computer/Operating Systems on which
the Licensed Programs are installed; and (iii) the number of users
using each Program Set. When reporting, ordering or communicating with
Oracle under this User Agreement, Client shall reference: (a) this User
Agreement (include Effective Date); and (b) the contract number and
Effective Date of the Agreement.
6. TECHNICAL SUPPORT
6.1 Until November 30, 1994 ("First Support Year"), Client shall receive
Standard Technical Support services for all Licensed Programs licensed
under this User Agreement (except for additional Concurrent Users
acquired under Section 1.3.1 above and additional Programs acquired
under Section 9 below) payable in advance for an annual Technical
Support fee of ***** . For the remaining years of the User Agreement
Term, provided Client has continuously maintained Technical Support
services, Client may acquire Standard Technical Support services for
all Licensed Programs licensed under this User Agreement (except for
additional Concurrent Users acquired under Section 1.3.1 above and
additional Programs acquired under Section 9 below) payable in advance
in annual installments as specified below. After the User Agreement
Term, Client may obtain annual Technical Support services from Oracle
under Oracle's Technical Support fees and policies in effect when such
services are ordered, but in any event in accordance with the
Agreement.
Support Year Technical Support Fee
-----------------------------------------------
Second Year ***** *
Third Year *****
Fourth Year *****
6.2 Client shall designate and provide to Oracle the name of one (1) Client
employee who shall serve as an on-site technical contact ("Technical
Contact") to act as the sole liaison between Client and Oracle for the
Technical Support services provided under this User Agreement. Client
shall also provide the names of two (2) employees who shall serve as
backups to the Technical Contact. Notwithstanding the foregoing, Client
may designate up to an additional fifty (50) individuals authorized by
Client to use the Telephone Assistance portion of Technical Support
services. Client shall notify Oracle whenever the designated Technical
Contact responsibilities are transferred to another employee. For any
Technical Support updates to the Licensed Programs provided during the
User Agreement Term, Oracle shall ship to the Client Location five (5)
Technical Support update copies for each Hardware type. Client shall be
responsible for copying and installing the updates on the Computers for
which the Licensed Programs are licensed.
---------
* *****Confidential Treatment has been requested for the redacted portions.
The confidential redacted portions have been filed with the Securities and
Exchange Commission.
7. VERIFICATION
Oracle may, at its expense, audit the number of copies of the Licensed
Programs in use by Client, the Computers on which the Licensed Programs
are installed, and the number of users using the Licensed Programs. Any
such audit shall be scheduled in advance and shall be conducted during
hours agreed upon by the parties, at Client's facilities and shall not
interfere unreasonably with Client's business activities. If an audit
reveals that Client has underpaid fees to Oracle, Client shall be
invoiced for the underpaid fees based on the Price List in effect when
the audit is completed. Audits shall be conducted no more than once
annually.
8. ASSIGNMENT
The rights granted under this User Agreement may not be assigned or
transferred to any third party without the express written consent of
Oracle Corporation. However, Client may, upon written notice to Oracle,
assign all Client's rights and obligations under this User Agreement to
a Client Entity, provided that prior to such assignment the Client
Entity agrees in writing to be bound by the terms of this User
Agreement and the Agreement.
9. ADDITIONAL PROGRAMS
9.1 During the User Agreement Term, Client may order, for installation in
the United States, production release versions of all Programs
available in production release and listed in Oracle's U.S. Price List
in effect when such Programs are ordered, except those Programs
designated by Oracle as Manufacturing Programs. The license fee for
such Programs shall be at a discount of ***** * off Oracle's standard
list license fees as listed in Oracle's U.S. Price List in effect when
such Programs are ordered, plus applicable sales tax. Such license fees
shall be due and payable on Client's written election of the option
provided hereunder. This payment obligation is noncancelable and the
sum paid is nonrefundable except as provided in the Agreement. During
the User Agreement Term, Client may purchase annual Basic Technical
Support for the Programs licensed under this Section 9.1 payable in
advance for an annual Basic Technical Support fee of ***** of the
discounted Program license fees paid to Oracle for the Programs. After
the User Agreement Term, Client may obtain Technical Support services
from Oracle for such Programs under Oracle's Technical Support fees and
policies in effect when such services are ordered, but in any event in
accordance with the Agreement. Programs acquired under this Section 9.1
shall not become part of any Program Set or be a Licensed Program (as
defined in Section 1.1 above) under this User Agreement.
Client acknowledges that the Programs specified in this Section 9 above
may not be currently available and may not become available during the
User Agreement Term. Client agrees that it has not relied on the
availability of such Programs in executing this User Agreement and
further agrees that the availability of these Programs will not affect
Client's payment obligations under this User Agreement. Oracle is under
no obligation to make available any Programs or Program/Hardware
combinations that are not currently available.
10. TRAINING
In consideration for the payment to Oracle of ***** within ***** of the
Effective Date, Client shall receive ***** Oracle standard Training
Units which are valid for ***** from the Effective Date of this User
Agreement to be used as provided under the Price List in effect as of
the Effective Date. When the ***** Training Units have expired or been
used up, Client may, during the remainder of the User Agreement Term,
purchase additional Training Units at a discount of ***** off list
price, and to be used as provided in the Price List in effect when the
Training Units are ordered. Each Training Unit may be used to acquire
one (1) day of instruction, excluding Client's expenses, for one (1)
Client employee at an Oracle Education Center in the United States.
11. Documentation
During the User Agreement Term, Client shall have the option, to
receive the annual copying rights stated in this Section for the fees
stated in this Section. In consideration for the payment to Oracle of
***** * Oracle shall deliver to Client Location one (1) copy of
copy-ready documentation for each of the Licensed Programs licensed
herein. Client shall have the right to make ***** copies of such
documentation for a period of ***** beginning on the date Client
exercises this option. During the same year, Client shall also have the
right to make ***** copies of any updates to such documentation
released by Oracle before the end of that year. Such updates shall be
shipped to Client in copy-ready form. Documentation copied under this
Section may only be used with the Licensed Programs licensed under this
User Agreement. This payment shall be due and payable on the date
Client exercises this option. This payment obligation is noncancelable
and the sum paid is nonrefundable, except as provided in the Agreement.
Thereafter, Client may renew the annual right to make ***** copies of
documentation at Oracle's standard fees in effect when Client exercises
the renewal option.
12. CONFIDENTIALITY
Client and Oracle agree that the pricing and terms of this User
Agreement shall be considered as Confidential Information under the
Agreement.
13. CONFLICT
In the event of conflict between this User Agreement and the Agreement,
this User Agreement will control.
14. SURVIVAL
Sections 1.2, 1.3, 1.5, 1.6, 3, the first paragraph of 4, 5, 6.2, 7, 8,
12, 13, and 14 shall survive expiration of this User Agreement.
15. Pricing Warranty
During the term of this User Agreement, Oracle shall provide Client
Entities with the relevant percentages of discount stated in this User
Agreement for future procurements of Programs or Services in the United
States. In the event that Client Entity orders Programs or Services for
which Oracle ***** during the User Agreement Term, Oracle will provide
***** * to Client Entities during the User Agreement Term. ***** The
term ***** shall not include any entity where it is acting as a third
party re-seller or where the entity is a federal, state or local
government or is an educational institution or a charitable
organization. This Section states Oracle's sole liability and Client
Entities' exclusive remedy for this obligation.
---------
* *****Confidential Treatment has been requested for the redacted portions.
The confidential redacted portions have been filed with the Securities and
Exchange Commission.
The Effective Date of this User Agreement is November 30, 1993.
THE NASDAQ STOCK MARKET, INC. ORACLE CORPORATION
By: By:
------------------------ -----------------------------
Name: Name:
------------------------ -----------------------------
Title: Title:
------------------------ -----------------------------
--------
* ***** Confidential Treatment has been requested for the redacted portions. The
confidential redacted portions have been filed with the Securities and Exchange
Commission.
