Oracle Solaris Development Addendum to the Oracle PartnerNetwork Agreement

This Oracle Solaris Development Addendum (the "addendum") is between you and the Oracle entity with which you entered into the Oracle PartnerNetwork Agreement ("Oracle") and shall be governed by the terms of the Oracle PartnerNetwork Agreement between Oracle and you (the “agreement”) and the terms set forth below. Definitions used in the agreement shall have the same meaning under this addendum, unless expressly stated otherwise. If there is a direct conflict between a term of this addendum and a term of the agreement with regard to the subject matter of this addendum, the terms of this addendum shall prevail.

1. Definitions. For the purposes of this addendum only the following definitions shall apply:

The term “application program” refers to an application program developed by you which complies with the following requirements: (a) the application program must be generally commercially available to commercial customers and must not be intended for the exclusive use of a specific end user or group; (b) the application program must be accompanied by end user documentation; (c) the application program must be on your commercial price list; and (d) the application program must be supported by your technical support organization.

The term “integrated software” refers to software which is essential to the functionality of Oracle hardware (e.g. firmware) including any patches, updates and user documentation that are provided to you.

The term “Solaris operating system” refers to the Solaris operating system software, including any patches, updates and user documentation, that Oracle provides to you under this Addendum.

2. Development Licenses. Oracle grants you a nonexclusive, nontransferable, limited, development license to use the Solaris operating system and integrated software to (a) demonstrate, develop, integrate or prototype your application program for the intended use of commercial customers; and (b) provide technical support for employees and end users solely in connection with your application program and limited to the extent necessary to resolve the functioning of your application program. Development licenses may not be used to develop or administer your application program for the exclusive use of a specific end user. Development licenses may be used to create a prototype or proof of concept of your application program to secure an end user’s purchase of your application program. Your use of the development licenses shall be subject to the terms of this addendum and the agreement.

For the purpose of supporting the development licenses, you will be given access to the technical support benefits applicable to your partner level as set forth in the OPN policies for the Solaris operating system and the integrated software, provided that you continuously meet the applicable partner level criteria and requirements set forth in the OPN policies. These benefits are subject to change at Oracle’s discretion. Technical support services are provided under Oracle’s technical support policies in effect at the time the services are provided. The technical support policies, incorporated in this agreement, are subject to change at Oracle’s discretion; however, Oracle policy changes will not result in a material reduction in the level of services provided for the Solaris operating system and/or integrated software during the period for which your OPN membership is valid. You should review the technical support policies and you may access the current version of the technical support policies at http://www.oracle.com/partners (log in, select Membership / Agreements and Policies).

3. Current Membership In the Oracle PartnerNetwork. Your use of the development licenses pursuant to this addendum is conditioned upon (i) your membership in the Oracle PartnerNetwork at the Gold, Platinum or Diamond membership level throughout the term of this addendum; (ii) your acceptance by Oracle in the Solaris Knowledge Zone; and (iii) your continuous compliance with the criteria in the Oracle Solaris Development Initiative, which are subject to change at any time at Oracle’s sole discretion, unless otherwise agreed by you and Oracle in writing.

4. Program Delivery; Ownership and Restrictions; and Export. The phrase “programs” under the Program Delivery, Ownership and Restrictions, and Export sections of the agreement shall include the Solaris operating system and integrated software.

5. Warranties; Disclaimers and Remedies.

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a. For the Solaris operating system and integrated software licenses granted above, the phrase “programs” under the Warranties; Disclaimers and Remedies section of the agreement shall include the Solaris operating system and integrated software when they are used on hardware not manufactured by or for Oracle provided such hardware is certified by Oracle and listed on the Hardware Compatibility List (HCL) at http://www.sun.com/bigadmin/hcl.

b. For the Solaris operating system and integrated software licenses granted above, when used on Oracle hardware, the Warranties, Disclaimers and Remedies section in the agreement is deleted and replaced with the following:

“i. Oracle provides a limited warranty for (i) the Solaris operating system and the integrated software, and (ii) the operating system media and the integrated software media (collectively, “media”). Oracle warrants that when you use the Solaris operating system and the integrated software on Oracle hardware, the Solaris operating system and integrated software will not cause in the Oracle hardware material defects in materials and workmanship for one year from the date the Solaris operating system and integrated software are delivered to you (i.e., via physical shipment or electronic download). Oracle warrants that the media will be free from material defects in materials and workmanship for a period of 90 days from the date the media is shipped to you.

ii. FOR ANY BREACH OF THE ABOVE WARRANTIES, YOUR EXCLUSIVE REMEDY AND ORACLE’S ENTIRE LIABILITY SHALL BE: (i) THE REPAIR OR, AT ORACLE’S OPTION AND EXPENSE, REPLACEMENT OF THE SOLARIS OPERATING SYSTEM and/or INTEGRATED SOFTWARE, OR (ii) IF SUCH REPAIR OR REPLACEMENT IS NOT REASONABLY ACHIEVABLE, THE REFUND OF THE FEES YOU PAID ORACLE FOR THE SOLARIS OPERATING SYSTEM and/or INTEGRATED SOFTWARE AND THE REFUND OF ANY UNUSED PREPAID TECHNICAL SUPPORT FEES YOU HAVE PAID FOR THE DEFECTIVE PRODUCT. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE ABOVE ITEMS, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

iii. ORACLE DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SOLARIS OPERATING SYSTEM, INTEGRATED SOFTWARE OR MEDIA.”

6. Indemnification. Provided you maintain your membership in the Oracle PartnerNetwork at the Gold, Platinum or Diamond level, then the phrase “programs” under the Indemnification section of the agreement shall include the Solaris operating system and integrated software.

7. Term This addendum shall become effective on the date shown in the notification to you of your acceptance into the Oracle Solaris Development Initiative and shall be valid for the term of the agreement. This addendum shall automatically terminate (a) if the agreement is terminated; (b) if your membership in the Oracle PartnerNetwork at the Gold, Platinum or Diamond membership level lapses; (c) you cease to be in the Solaris Knowledge Zone; or (d) you cease to meet the criteria in the Oracle Solaris Development Initiative. In addition, notwithstanding anything to the contrary in the agreement, this addendum may be terminated by either party at any time upon written notice to the other party if such other party breaches this addendum and fails to correct the breach within thirty 30 days following written notice specifying the breach.

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