Dynatrace redistribution license agreement for Oracle Instant Client

Dynatrace LLC ("Dynatrace") acquired Oracle Instant Client from Oracle America, Inc. ("Oracle") under the terms of the Oracle Network License Agreement (the "OTNLA") as specified at the following URL: http://www.oracle.com/technetwork/licenses/distribution-license-152002.html.

The content referenced by this URL as of 1st of August, 2017 is appended to this agreement as Exhibit A merely to provide context for the understanding of the terms and obligations referenced herein.

In the section entitled "Programs Redistribution", the OTNLA specifies that Dynatrace’s "nonexclusive, nontransferable right to copy and distribute unmodified Programs and Programs Documentation" is subject to certain requirements. Particularly, "prior to distributing the Programs and Programs Documentation", the OTNLA requires that You, Dynatrace’s "end user", "execute an agreement binding [You] to terms, with respect to the Programs and Programs Documentation, materially consistent and no less restrictive than those contained in this sections and the sections of [the OTNLA]…"

In accordance with this provision of the OTNLA, Dynatrace requires that You agree and execute this "Dynatrace Redistribution License Agreement for Oracle Instant Client" (the "Agreement") prior to acquiring Oracle Instant Client from Dynatrace, by download from a Dynatrace server or otherwise. If You are not willing to be bound by this Agreement, then do not download or otherwise acquire Oracle Instant from Dynatrace. Download or use of Oracle Instant client shall serve as Your execution of this Agreement.

I. Definitions

  • "Oracle" refers to Oracle America, Inc.
  • "You" and "Your" refers to (a) a company or organization (each an "Entity") accessing the Programs, if use if the Programs will be on behalf of such Entity; or (b) an individual accessing the Programs, if use of the Programs will not be on behalf of an Entity.
  • "Contractors" refers to Your agents and contractors (including, without limitation, outsourcers).
  • "Program(s)" refers to Oracle Instant Client and any updates, error corrections and/or Program Documentation provided by Oracle.
  • "Program Documentation" refers to Program user manuals and Program installation manuals, if any. If available, Program Documentation may be delivered with the Programs and/or may be accessed from www.oracle.com/documentation.
  • "Associated Product" refers to the Oracle product(s), if any, and as identified in the Programs documentation or on Oracle’s Programs download site, with which the Programs are intended to enable or enhance interoperation with Your application(s).
  • "Separate Terms" refers to separate license terms that are specified in the Program Documentation, readmes or notice files and that apply to Separately Licensed Third Party Technology.
  • "Separately Licensed Third Party Technology" refers to third party technology that is licensed under Separate Terms and not under the terms of the OTNLA.
  • "Dynatrace" refers to Dynatrace LLC, or any of its affiliated Dynatrace entities.

II. Fee Acknowledgement

You hereby acknowledge that Dynatrace has charged You no additional fee to receive the Programs.

III. Third Party Beneficiary

Oracle is, and You acknowledge Oracle as, a third party beneficiary of this Agreement.

IV. No Right to Redistribution

You SHALL NOT distribute the Programs and Programs Documentation to any third parties and acknowledge that you have no right to do so.

V. End User Information

You agree to provide Dynatrace and/or Oracle with Your:
(a) Name;
(b) Address; and
(c) Date of Acquisition of the Programs or Programs Documentation under this Agreement.

VI. Grant

Pursuant to the section entitled "Programs Redistribution" of the OTNLA, Dynatrace hereby provides You the nonexclusive, nontransferable righto receive a copy of Oracle Instant Client from Dynatrace in conjunction with the acquisition of certain Dynatrace applications.

VII. Terms and Restrictions

The terms of this section are intended to be materially consistent with and no less restrictive than those contained in the sections entitled "Programs Redistributions", "License Rights and Restrictions" (excluding the redistribution right granted to Dynatrace; You may not distribute Programs and Programs Documentation to any third parties), "Ownership", "Export Controls", "Disclaimer of Warranties; Limitation of Liability", "No Technical Support", "Audit; Termination" (excluding Oracle’s audit right), "Relationship Between the Parties", and U.S. Government End Users" of the OTNLA.

a. Programs Redistribution

You agree to:
(a) Defend and indemnify Oracle and Dynatrace against all claims and damages caused by Your use of the Programs and Programs Documentation and/or distribution of the Programs and Programs Documentation in breach of this Agreement, and/or failure to abide by this Agreement;
(b) Permit Dynatrace to keep, and to assist with the creation of, executed copies of this Agreement and records of Your information including name, address, date of distribution and identity of Programs distributed;
(c) Allow Dynatrace or Oracle to inspect Your executed copy of this Agreement upon request; and,
(d) To notify Dynatrace and Oracle of any breach of the terms of this Agreement.

b. License Rights and Restrictions

You may not:
(a) Remove or modify any Program markings or any notice of Oracle’s or a licensor’s proprietary rights;
(b) Use the Programs to provide third party training unless Oracle expressly authorizes such use on the Program’s download page;
(c) Assign this Agreement or distribute, give or transfer the Programs or an interest in them to any third party (the foregoing shall not be construed to limit the rights You may otherwise have with respect to Separately Licensed Third Party Technology);
(d) Cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the Programs; and
(e) Disclose results of any Program benchmark tests without Oracle’s prior written consent.

The Programs may contain source code that, unless expressly licensed in the OTNLA for other purposes (for example, licensed under an open source license), is provided solely for reference purposes pursuant to the terms of this Agreement and may not be modified.

All rights not expressly granted in this Agreement are reserved by Oracle. If You want to use the Programs or Your application for any purpose other than as expressly permitted under this Agreement, You must obtain from Oracle or an Oracle reseller a valid Programs license under a separate agreement permitting such use. However, You acknowledge that the Programs may not be intended for production use and/or Oracle may not make a version of the Programs available for production or other purposes; any development or other work You undertake with the Programs is at Your sole risk.

c. Ownership

Oracle or its licensors retain all ownership and intellectual property rights to the Programs.

d. Export Controls

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Programs. You agree that such export control laws govern Your use of the Programs (including technical data) and any services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). You agree that no data, information, program and/or materials resulting from Programs or services (or direct products thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purposes prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology. Accordingly, You confirm:

  • You will not download, provide, make available or otherwise export or re-export the Programs, directly or indirectly, to countries prohibited by applicable laws and regulations nor to citizens, nationals or residents of those countries.
  • You are not listed on the United States Department of Treasury lists of Specially Designated Nationals and Blocked Persons, Specially Designated Terrorist, and Specially Designated Narcotics Traffickers, nor are You listed on the United States Department of Commerce Table of Denial Orders.
  • You will not download or otherwise export or re-export the Programs, directly or indirectly, to persons on the above mentioned lists.
  • You will not use the Programs for, and will not allow the Programs to be used for, any purposes prohibited by applicable laws, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction.

e. Disclaimer of Warranties; Limitation of Liability

THE PROGRAMS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. ORACLE AND DYNATRACE FURTHER DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

IN NO EVENT WILL ORACLE OR DYNATRACE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USED, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ORACLE OR DYNATRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ORACLE AND DYNATRACE’S ENTIRE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS (U.S. $1,000).

f. No Technical Support

Neither Oracle nor Dynatrace is obligated to provide technical support, phone support or updates to You for the Programs provided under this Agreement.

g. Audit; Termination

You may terminate this Agreement by destroying all copies of the Programs. This Agreement shall automatically terminate without notice if You fail to comply with any of the terms of this Agreement, in which case You shall promptly destroy all copies of the Programs.

h. Relationship Between the Parties

Oracle is an independent contractor and You agree that no partnership, joint venture, or agency relationship exists between You and Oracle. Oracle and You will be responsible for paying Your own employees, including employment related taxes and insurance. Nothing in this Agreement shall be construed to limit either Your or Oracle’s right to independently develop or distribute software that is functionally similar to the other party’s products, so long as proprietary information of the other party is not included in such software.

i. U.S. Government End Users

Programs and/or Programs Documentation delivered to U.S. Government end users are "commercial computer software" pursuant to the applicable Federal Acquisition Regulation and agency-specific supplemental regulations. As such, use, duplication, disclosure, modification, and adaptation of the Programs and/or Programs Documentation shall be subject to the license terms and license restrictions set forth in this Agreement. No other rights are granted to the U.S. Government.

VIII. Third Party Technology

The Programs may contain or require the use of third party technology that is provided with the Programs. Oracle may provide certain notices to You in Program Documentation, readmes or notice files in connection with such third party technology. Third party technology will be licensed to You either under the terms of this Agreement or, if specified in the Program Documentation, readmes or notice files, under Separate Terms. Your rights to use the Separately Licensed Third Party Technology under Separate Terms are not restricted in any way by this Agreement. However, for clarity, notwithstanding the existence of a notice, third party technology that is not Separately Licensed Third Party Technology shall be deemed part of the Programs and is licensed to You under the terms of this Agreement.

IX. Source Code for Open Source Software

For software that You receive in binary form that is licensed under an open source license that gives you the right to receive the source code for that binary, You can obtain a copy of the applicable source code from https://oss.oracle.com/sources/ or http://www.oracle.com/goto/opensourcecode. If the source code for such software was not provided to You with the binary, You can also receive a copy of the source code on physical media by submitting a written request pursuant to the instructions in the "Written Offer for Source Code" section of the latter website.

X. Information Collection

The Programs’ installation and/or autoupdate processes, if any, may transmit a limited amount of data to Oracle or its service provider about those processes to help Oracle understand and optimize them. In accordance with the OTNLA, Oracle does not associate the data with personally identifiable information. Refer to Oracle’s Privacy Policy at www.oracle.com/privacy.

XI. Entire Agreement

You agree that this Agreement is the complete agreement for the Programs and this Agreement supersedes al prior or contemporaneous agreements or representations, including any clickwrap, shrinkwrap or similar licenses, or license agreements for prior versions of the Programs. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in writing signed by authorized representatives of You and of Dynatrace. If any term of this Agreement may be found invalid or unenforceable, the remaining provisions will remain effective.

XII. Jurisdiction

The parties agree that the substantive laws of the Commonwealth of Massachusetts shall apply in any legal action, without regard to conflict of laws principles, and that, except as required by applicable laws, exclusive jurisdiction and venue for all legal actions arising under the Agreement shall be Middlesex Superior Court, Massachusetts