DON_ESL_050918_fill-in-form.docx

DRAFT IS FOR DISCUSSION PURPOSES ONLY

DEPARTMENT OF THE NAVY

ORACLE ENTERPRISE SOFTWARE LICENSE TERMS AND CONDITIONS

THIS ENTERPRISE SOFTWARE LICENSE TERMS AND CONDITIONS (“ESL”) BETWEEN THE DEPARTMENT OF THE NAVY AND CONTRACTOR SHALL APPLY TO THE ORACLE SOFTWARE PROGRAMS AND/OR SERVICES THAT YOU ORDER UNDER THE CONTRACT. THIS ESL SHALL TAKE PRECEDENCE OVER ANY CONFLICTING TERMS IN THE CONTRACT OR ANY ORDER ISSUED UNDER THE CONTRACT EXCEPT TO THE EXTENT THAT SUCH ORDER CONTAINS TERMS AND CONDITIONS NEGOTIATED BY THE PARTIES THAT EXPRESSLY SUPERSEDE THE TERMS AND CONDITIONS CONTAINED HEREIN AND THAT HAVE BEEN APPROVED IN ACCORDANCE WITH SECTION I.24 (Orders) BELOW.

A. Definitions and Term

1. Definitions

“You” and “your” refers to the entity for which programs and/or services are being ordered from Contractor under the Contract and do not refer to the contracting office issuing the order.

The term “ancillary programs” refers to third party materials specified in the program documentation, which may only be used for the purposes of installing or operating the programs with which the ancillary programs are delivered.

“DON” refers to the United States Department of the Navy. 32 CFR 700.203(b) states that DON “is composed of the following: (1) The Office of the Secretary of the Navy; (2) The Office of the Chief of Naval Operations; (3) The Headquarters, Marine Corps; (4) The entire operating forces, including naval aviation, of the Navy and of the Marine Corps, and the reserve components of those operating forces; (5) All field activities, headquarters, forces, bases, installations, activities and functions under the control or supervision of the Secretary of the Navy; and (6) The Coast Guard when the Coast Guard is operating as a service in the Navy.” 32 CFR 700.204 states that the principal elements of DON (“PEDs”, and each a “PED”) are: “(a) The Department of the Navy consists of three elements[:] the Navy Department, the Operating Forces of the Navy and the Marine Corps, and the Shore Establishment[;] (b) The Navy Department refers to the central executive offices of the Department of the Navy located at the seat of Government. The Navy Department is organizationally comprised of the Office of the Secretary of the Navy, the Office of the Chief of Naval Operations, and the Headquarters, Marine Corps. In addition, the Headquarters, Coast Guard, is included when the Coast Guard is operating as a service in the Navy[;] (c) The operating forces of the Navy and the Marine Corps comprise the several fleets, seagoing forces, Fleet Marine Forces, other assigned Marine Corps Forces, the Military Sealift Command and other forces and activities that may be assigned thereto by the President or the Secretary of the Navy[; and] (d) The shore establishment is comprised of shore activities with defined missions approved for establishment by the Secretary of the Navy.” For the purposes of this ESL, DON does not include:

a. U.S. Navy Bureau of Medicine;

b. any entity for which DON is serving as a DoD Executive Agent in accordance with DoD Directive 5101.1, DoD Executive Agent, including but not limited to Defense Activity for Non-Traditional Education Support; Defense Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome Prevention Program; Defense Resources Management Institute; Development and Maintenance of the “Catch a Serial Offender” Program Server and Searchable Database; Force Protection of Military Sealift Assets; High School News Service; Maritime Domain Awareness; Non-Lethal Weapons; and Printed Circuit Board and Interconnect Technology;

c. any entity for which the DON is serving as a DoD Combatant Command Support Agent (CCSA) in accordance with DoD Directive (DoDD) 5100.03, Support of the Headquarters of Combatant and Subordinate Unified Commands, including but not limited to HQ U.S. Pacific Command, HQ U.S. Forces Japan, HQ Alaskan Command, and HQ Special Operations Command Pacific and subordinate unified command headquarters thereunder; AND

d. any entity or successor/reorganized entity for which the Department of the Navy Special Access Program Central Office is/or becomes the oversight authority or cognizant authority in accordance with DoD Directive 5205.07, Special Access Program (SAP) Policy.

“User”, “users”, “authorized user”: refers to DON civilian employees; DON military personnel including those on active duty or in the reserve or National Guard; United States and foreign military or civilian personnel assigned, attached, or detailed to DON; DON contractors; devices; and persons who or devices which have access to, use or are tracked by programs. The preceding shall apply when considering who or what within the DON, including each of the PEDs, may use the properly licensed and supported Oracle software for purposes related to the missions, business, or operations of DON, except where the metric for the particular Oracle software offering precludes such a definition, for instance with an order for Unlimited Deployment Programs (“Unlimited License Agreement” or “ULA”) or Enterprise License Agreement (“ELA”).

“Contractor”: means , an Oracle authorized reseller and licensor.

“Contract”: refers to Contract No. between DON and Contractor.

“Oracle”: refers to Oracle America, Inc., a wholly owned subsidiary of Oracle Corporation; Oracle Corporation is a Delaware corporation.

The term “program documentation” refers to the program user manual and program installation manual(s). Program documentation shall be in the English language. DON may make a reasonable number of copies of program documentation for DON’s business, missions, and operations purposes. DON is responsible for ensuring that all copyright notices, trademarks, and other restrictive legends are maintained on the copies.

The term “programs” refers to the software products owned or distributed by Oracle which you have ordered, program documentation, and any program updates acquired through technical support.

The term “services” refers to technical support services which you have ordered. Technical support services must be provided in the English language.

The term “3rd Party Cloud Environments” refers to hardware that is owned by Oracle or third parties (including the U.S. Government), cloud hosting providers, and/or offered as a service by a third party.

The term “virtual core” is a full core in a non hyper-threaded environment.

2. Term The software licenses acquired under this ESL have rights granted in accordance with Section B below. This ESL shall be in effect for the placement of new orders during the shorter of the term of the Contract or 5 years from the effective date of the Contract unless mutually agreed by the parties.

B. Rights Granted

Upon Contractor’s acceptance of your order, DON has the non-exclusive, non-assignable (except as permitted by Section I.2 (Other / Transfers and Assignments) below or in the applicable order with Contractor), royalty free, perpetual (unless otherwise specified in your order with Contractor), limited right to use the programs and receive any services you ordered solely for the business, missions, or operations of DON and subject to the terms of this ESL, including the Oracle License Definitions and Rules v120117 incorporated herein and attached hereto as Exhibit A, the order, the Contract and the program documentation. DON may allow its agents and its contractors (including, without limitation, outsourcers) to use the programs and the services for these purposes and DON is responsible for their compliance with this ESL, including the Oracle License Definitions and Rules, the order, the Contract, and the program documentation in such use. For programs that are specifically designed to allow DON’s customers and suppliers to interact with DON in the furtherance of the business, missions, or operations of DON, such use is allowed.

C. 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 under your order resulting from services. DON may make a sufficient number of copies of each program for DON’s licensed use and one copy of each program media.

Third party technology that may be appropriate or necessary for use with some Oracle programs is specified in the program documentation. Such third party technology is licensed to DON under the terms of the third party technology license agreement specified in the program documentation and not under the terms of the Contract or this ESL.

DON may not:

· use the programs in a rental or timesharing subscription service, hosting or outsourcing capacity;

· remove or modify any program markings or any notice of Oracle’s or its licensors’ proprietary rights;

· make the programs or materials resulting from the services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the services DON has acquired);

· 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), operating system or integrated software; or

· disclose results of any program benchmark tests, except to the employees of the Department of Defense entities; this exception does not include the Department of Defense contractors or other non-employees..

D. Warranties, Disclaimers and Exclusive Remedies

For the sake of clarity, this is the Oracle manufacturer’s warranty; nevertheless, this warranty shall be accessed by DON through Contractor. This Oracle manufacturer’s warranty covers the programs and/or services ordered by DON.

Oracle warrants that a program licensed to DON will operate in all material respects as described in the applicable program documentation for one year from delivery (i.e. via physical shipment or electronic download). DON must notify Oracle of any program warranty deficiency within one year from delivery. ORACLE DOES NOT GUARANTEE THAT THE PROGRAMS WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT ORACLE WILL CORRECT ALL PROGRAM ERRORS.

Oracle also warrants that services will be provided in a professional manner consistent with industry standards. DON must notify Oracle of any services warranty deficiencies within 180 days from performance of the deficient services.

FOR ANY BREACH OF THE ABOVE WARRANTIES, DON’S EXCLUSIVE REMEDY AND ORACLE’S ENTIRE LIABILITY SHALL BE: (A) THE CORRECTION OF PROGRAM ERRORS THAT CAUSE BREACH OF THE WARRANTY; OR, IF ORACLE CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER DON MAY END DON’S PROGRAM LICENSE AND RECOVER THE FEES PAID TO ORACLE FOR THE PROGRAM LICENSE DISTRIBUTED TO DON; OR (B) THE REPERFORMANCE OF THE DEFICIENT SERVICES PROVIDED BY ORACLE; OR, IF ORACLE CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, DON MAY END THOSE SERVICES AND RECOVER THE FEES PAID TO ORACLE FOR THE DEFICIENT SERVICES PROVIDED BY ORACLE TO DON.

During the warranty period specified above in this Section for the applicable program, Oracle warrants that the programs shall be designed by Oracle so that they do not purposely contain any virus, Trojan horse, key logger, network tracer, or other contaminants that may be used to access, alter, delete, threaten, infect, assault, vandalize, defraud, disrupt, damages, disable, inhibit, or shut down DON’S computer systems, databases or software in a manner other than in accordance with this ESL (“Virus”). Notwithstanding the aforementioned remedies, in the event that upon delivery any program contains a Virus, then upon DON’S written notice, as Oracle’s sole liability and DON’S exclusive remedy, Oracle will provide DON with another copy of the program or software deliverables resulting from the services free of the Virus.

Additionally, Oracle warrants that (1) a program licensed to DON will operate in all material respects as described in the applicable program documentation for one year after delivery, and (2) as of the effective date of this ESL, Oracle has not designed a program licensed to DON under this ESL to contain any Disabling Devices (as defined below) unless otherwise disclosed to DON in the ordering document or applicable documentation. DON must notify Oracle of any program warranty deficiency within one year after delivery. For the purpose of this Section, a "Disabling Device" shall mean code intentionally embedded in a program by Oracle for the sole purpose of completely halting all use of the program on conditions set by Oracle.

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.

E. Limitation of Liability

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE. CONTRACTOR’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO AN ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF THE FEES YOU PAID CONTRACTOR UNDER THE ORDER, AND IF SUCH DAMAGES RESULT FROM DON’S USE OF PROGRAMS, HARDWARE, OPERATING SYSTEM, INTEGRATED SOFTWARE OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO THE FEES YOU PAID CONTRACTOR FOR THE DEFICIENT PROGRAM, HARDWARE, OPERATING SYSTEM, INTEGRATED SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY.

F. Technical Support

Technical support consists of annual technical support services you may have ordered or will order for the programs, including technical support renewals. Technical Support that is ordered must be ordered under the Contract and this ESL.

If ordered, annual technical support (including first year and all subsequent years) for programs is provided under Oracle’s technical support policies in effect at the time the services are provided. The technical support policies, incorporated herein, 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 supported programs during the period for which technical support has been ordered. You should review the policies prior to entering into an order for the applicable services. You may access the current version of the technical support policies at http://www.oracle.com/us/support/policies/index.html, the current copy of which is attached hereto as Exhibit D. Notwithstanding anything to the contrary, the Oracle’s technical support policies are subject to modification at Oracle’s discretion; however, by any such modification, Oracle will not will not materially reduce the level of services provided during the period for which fees for the applicable technical support services have been ordered. Oracle does not use a covered contractor information system as defined in DFARS 252.204-7012 for the performance of technical support services. The technical support policies state that, “global customer support services and systems are not designed to accommodate special security controls that may be required to store or process certain types of sensitive data." Accordingly, as stated in the technical support policies, You agree not to submit any covered defense information (as defined in DFARS 252.204-7012), health, payment card, CUI or other controlled or sensitive data that require protections greater [such as those in DFARS 252.204-7012 or substantively similar requirements] than those specified in the Oracle Global Customer Support Security Practices to Oracle as part of any service request. Software Update License & Support (or any successor technical support offering to Software Update License & Support, “SULS”) acquired with your order may be renewed annually through Contractor. The order with Contractor will specify your SULS fee for the first renewal year should you renew SULS for the same number of licenses for the same programs as contained in the original order. If you elect not to purchase technical support at the time that the program is ordered, then you may be required to pay reinstatement fees in accordance with Oracle’s technical support policies in effect at the time of reinstatement if you decide to purchase technical support at a later date. Technical support for programs is effective upon shipment of tangible media or upon the effective date of the order if shipment of tangible media is not required.

Invoices for technical support services shall be submitted by Contractor on a quarterly basis (unless otherwise specified in the order) after the completion of such period. Technical support services charges for SULS (or any successor technical support offering to SULS) are classified as Software Maintenance as a Service and must be paid in arrears (31 U.S.C. 3324). PROMPT PAYMENT DISCOUNT, IF APPLICABLE, SHALL BE SHOWN ON THE INVOICE.

Notwithstanding anything in Oracle’s technical support policies to the contrary, you may discontinue technical support at the end of any current technical support term and, at any time thereafter, reinstate technical support by executing an order for such services with Contractor. If you decide to reinstate technical support, you must pay a reinstatement fee. The reinstatement fee shall be the amount that would have been paid by the ordering activity for the past support period had technical support not lapsed. In addition to the reinstatement fee described in the preceding sentence, you must pay the technical support fee for the new support period. This technical support fee for the new support period is computed as follows: (i) if technical support lapsed, then the technical support fee for a twelve month support period shall be the last annual technical support fee you paid for the relevant program; (ii) if you never acquired technical support for the relevant program, then the annual technical support fee shall be the fee that would have been charged if support had been ordered originally for the relevant program per Oracle’s Support pricing policies in effect at the time of reinstatement. Renewal adjustments may be applied to the annual support fee described in (i) and (ii) above.

G. Intellectual Property Indemnification

If someone makes a claim against DON, including the U.S. Government, and its officers, employees and agents, or Oracle (“Recipient” which may refer to DON or Oracle depending upon which party received the Material), that any information, design, specification, instruction, software, data, or material (“Material”) furnished by either DON or Oracle (“Provider”) which may refer to DON or Oracle depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights (including U.S. or foreign patent, trademark and copyright), the Provider will indemnify the Recipient against the claim to the extent permitted by law if the Recipient does the following:

· Notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim;

· Gives the Provider control of the defense, with input from Recipient, and any settlement negotiations, provided that for the U.S. Government the control of the defense and settlement is subject to 28 U.S.C. 516; and

· Gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.

If the Provider believes or it is determined that any of the Material may have violated someone else’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any fees the Recipient may have paid for it. If DON is the Provider and such return materially affects Oracle’s ability to meet its obligations under the relevant order (e.g., impairs Oracle’s ability to perform due to a work statement, schedule or cost impact), then Oracle may, at its option and upon 30 days prior written notice, request termination of the order. Oracle's right to end the license or request termination of the order in accordance with this paragraph shall not apply if the U.S. Government authorizes or consents to use of the Material, and in such cases, Oracle shall have no obligation to indemnify or other liability whatsoever, to the Government or to third parties for infringement, and the exclusive cause of action and remedy for infringement shall be in accordance with 28 U.S.C. 1498, as set forth in 48 C.F.R. 27.201-1(a). The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. Oracle will not indemnify DON to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Oracle. Oracle will not indemnify DON for infringement caused by DON’S actions against any third party if the Oracle program(s) as delivered to DON and used in accordance with the terms of the order and the ESL would not otherwise infringe any third party intellectual property rights. Oracle will not indemnify DON for any infringement claim that is based on: (1) a patent that DON was made aware of prior to the effective date of the order with Contractor (pursuant to a claim, demand, or notice); or (2) DON’s actions prior to the effective date of the order with Contractor.

With respect to the U.S. Government, herein in the form of DON, the foregoing indemnification shall not apply as to the United States indemnifying Oracle or any other party; however, Oracle reserves the right to seek indemnification from the U.S. Government in accordance with the preceding paragraphs should Federal statute permit such indemnification.

This Section G provides the parties’ exclusive remedy for any infringement claims or damages.

H. FEDERAL ACQUISITION REGULATION (FAR) CLAUSES

The following clauses are incorporated by reference into this ESL:

1. FAR 52.212-4, Contract Terms and Conditions - Commercial Items (JANUARY 2017), subsections (b) Assignment; (d) Disputes; (g) Invoice; (i) Payment; (q) Other compliances; (r) Compliance with laws unique to Government contracts; (u) unauthorized obligations. In accordance with FAR 12.302 (b), the remaining subsections of FAR 52.212-4 have been tailored consistent with customary commercial practice and are addressed in other sections of the Contract, order or this ESL.

2. FAR 52.203-13, Contractor Code of Business Ethics and Conduct (OCT 2015) (41 U.S.C. 3509)

3. FAR 52.219-8, Utilization of Small Business Concerns (NOV 2016) (15 U.S.C. 637(d)(2) and (3))

4. FAR 52.222-21, Prohibition of Segregated Facilities (APR 2015)

5. FAR 52.222-26, Equal Opportunity (SEP 2016) (E.O. 11246)

6. FAR 52.222-35, Equal Opportunity for Veterans (OCT 2015) (38 U.S.C. 4212)

7. FAR 52.222-36, Equal Opportunity for Workers with Disabilities (JUL 2014) (29 U.S.C. 793)

8. FAR 52.222-37, Employment Reports on Veterans (FEB 2016) (38 U.S.C. 4212)

9. FAR 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (DEC 2010) (E.O. 13496). Flow down required in accordance with paragraph (f) of FAR clause 52.222-40.

10. FAR 52.222-50, Combating Trafficking in Persons (MAR 2015) (22 U.S.C. chapter 78 and E.O. 13627) or Alternate I (MAR 2015) of FAR 52.222-50 (22 U.S.C. chapter 78 and E.O. 13627), as applicable in the relevant order.

11. FAR 52.222-54, Employment Eligibility Verification (OCT 2015) (E.O. 12989)

I. Other

1. FAR 52.227-19 does not apply to this ESL or any orders under the Contract.

2. Transfers and Assignments

a. Except as set forth in Section I.2.b below or in the applicable order, DON may not assign orders or give, transfer, or assign the programs and/or any services or an interest in them to another individual or entity. If DON grants a security interest in the programs and/or any services deliverables, the secured party has no right to use or transfer the programs and/or any services deliverables, and if DON decides to finance its acquisition of programs and/or any services, DON will follow Oracle’s policies regarding financing which are at http://oracle.com/contracts. The foregoing shall not be construed to limit the rights DON may otherwise have with respect to the Linux operating system, third party technology or separate works licensed under open source or similar license terms.

b. The DON is authorized to transfer or assign (i)software licenses ordered under the Contract and this ESL, except as may be limited elsewhere in this Section I.2, or (ii) DON’s rights in the programs as expressly granted in a particular order such as a ULA order Such authorization includes sublicensing, assignment or transfer among or between (i) PEDs, (ii) outsourcers (with “outsourcers” defined, for the purpose of this Section I.2 as a third party which provides IT infrastructure support to DON and which requires access to the licenses under this ESL), and/or (iii) contractors (acting in support of DON’s missions, business, or operations). DON may authorize any portion of the software to be copied onto or accessed from the computer of an authorized user (as defined in Section A above), except as may be explicitly precluded in this ESL.

i. Transfers: Where DON is the Licensee, PEDs may transfer the programs as necessary and in accordance with the other terms of this Subsection b. and the MOA process.

ii. Assignments:

A. DON is authorized to assign the licenses to a DON outsourcer or DON contractor so long as the use of such licenses is expressly limited to executing DON’s mission, business, or operations and not the internal business operations and/or mission of the assignee, unless otherwise agreed to by Oracle and Contractor in writing.

B. For licenses that were acquired expressly for joint task force programs, assignment of these licenses among other non-DON DOD parties to the joint task force may be allowed so long as the use is limited to the mission and purpose of the relevant joint task force. Such assignments, those made to entities other than DON PEDs, shall only occur with the express written consent of Oracle and Contractor. Any deviation shall be subject to a separate agreement specifying conditions for the management and maintenance of the software licenses, which agreement shall not impose any more restrictive covenants than are provided to DON in Contractor’s order as modified herein.

C. The assignment of licenses will be without cost to any party involved in the assignment of licenses except as may be required elsewhere in this Section I.2. It is further understood that assignee will be responsible for all future software maintenance fees for any assigned licenses.

iii. Limited Use Licenses: Should DON desire to transfer or assign limited use licenses, DON must first migrate the limited licenses from their existing form into a transferrable/assignable license. Such migration must be coordinated through the designated DON contracting officer for this ESL and with Oracle in order to properly migrate and account for the licenses, the relevant Technical Support streams, and the associated migration fees.

iv. Predecessor Licenses: Predecessor licenses are those licenses acquired prior to the execution of the Contract and not otherwise subject to the terms and conditions of the Contract and this ESL. For 5 years from the effective date of Contract, DON may transfer and/or assign predecessor licenses in accordance with this Section.

DON shall complete any documentation required by Oracle and Contractor to effect the transfer or assignment of software licenses, continuation of Technical Support for the transferee or assignee, and the payment of associated fees, if any. All license transfers or assignments will be without cost to the DON, except as otherwise identified in this Section I.2, provided that the software is properly licensed, current with regard to Technical Support, and the DON does not re-market or otherwise intend to resell the licenses to be transferred or assigned.

It is inherently understood that any assignment or transfer will require the DON and the successor transferee or assignee to agree to be bound to the terms and conditions of Contractor’s order as modified herein.

3. Future Availability: In entering into an order under the Contract, you agree and acknowledge that you have not relied on the future availability of any program or updates. However, (a) if you order technical support, the preceding sentence does not relieve Oracle of its obligation to provide such technical support under the relevant order, if and when available, in accordance with Oracle’s then current technical support policies, and (b) the preceding sentence does not change the rights granted to DON for any program licensed under the order, per the terms of this ESL.

4. Accessibility: The extent to which an Oracle product is, prior to any customizations, capable of providing comparable access to individuals with disabilities consistent with the applicable provisions of the Architectural and Transportation Barriers Compliance Board standards set out in 36 CFR Part 1194 (known as 'Section 508') effective as of June, 2001, or the Revised version in Appendix A (known as 'Revised Section 508') effective as of January, 2018 and the Web Content Accessibility Guidelines (WCAG) version 2.0 level AA, respectively, is indicated by the dependencies, comments and exceptions (some of which may be significant, if any) noted on the applicable Voluntary Product Accessibility Templates (VPAT) available at www.oracle.com/us/corporate/accessibility for each product, when they are used in accordance with Oracle's associated documents and other written information, and provided that any assistive technologies and any other products used with them properly interoperate with them. In the event that no VPAT is available for a particular Oracle product, please contact the Oracle Accessibility Program Office at accessible_ww@oracle.com. In some cases, the outcome may be that a product is still being evaluated for accessibility, may be scheduled to meet accessibility standards in a future release, or may not be scheduled to meet accessibility standards at all. Oracle customers may call Oracle Support at 1.800.223.1711. Hearing-impaired customers in the U.S. who wish to speak to an Oracle Support representative may use a telecommunications relay service (TRS). Information about the TRS is available at http://www.fcc.gov/cgb/consumerfacts/trs.html, and a list of telephone numbers is available at https://www.fcc.gov/general/telecommunications-relay-services-directory. International hearing-impaired customers should use the TRS at +1.605.224.1837. An Oracle Support engineer will respond to technical issues according to the standard service request process. Oracle cannot make any commitments about future product directions, including plans to address accessibility or the availability of VPATs. Product direction remains at the sole discretion of Oracle. No other terms, conditions, statements or any other such representations regarding or related to accessibility shall apply to the Oracle products ordered under the Contract and this ESL.

5. Internet Protocol version 6 (IPv6): Prior to any customizations, the Oracle product(s) and service(s) to be delivered under the Contract and this ESL are capable of accommodating Internet Protocol version 6 (IPv6) solely to the extent defined and noted in the relevant product/service documentation available at oracle.com. Please note that such capabilities are subject to the dependencies, comments and exceptions (some of which may be significant, if any) noted in such documentation, and require that Oracle product(s) and service(s) are used in accordance with Oracle's associated documents and other written information and that any other products properly interoperate with them. If no relevant product/service documentation is found addressing IPv6, then Oracle makes no representations as to the capabilities of the product/service in question to accommodate IPv6. Oracle cannot make any commitments about future product directions, including plans to address IPv6. Product direction remains at the sole discretion of Oracle. No other terms, conditions, statements, requirements or any other such representations regarding or related to IPv6 shall apply to the Oracle products and services to be delivered under the Contract and this ESL.

6. Export Laws: 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 laws govern your use of the programs (including technical data), and any services deliverables provided under your order, 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 services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

7. Third-Party Beneficiary: Oracle, as the owner of the intellectual property of the program(s) licensed and the technical support services ordered, is a third party beneficiary of the Contract and the orders for Oracle products issued under this ESL and the Contract. Notwithstanding Oracle’s obligations in this ESL, Oracle does not assume any of Contractor’s obligations thereunder.

8. UCITA: The Uniform Computer Information Transactions Act (“UCITA”) does not apply to the Contract or this ESL nor any order placed under them.

9. Independence: DON understands that Contractor and Oracle’s business partners, including any third party firms retained by DON to provide computer consulting services, are independent of Oracle and are not Oracle’s agents. Oracle is not bound by any acts of any such entity, unless the entity is providing services as an Oracle subcontractor under an engagement ordered directly with Oracle.

10. Trial Programs: DON may order trial programs, or Oracle may include additional programs with an order with Contractor which DON may use for trial, non-production purposes only. DON may not use the trial programs to provide or attend third party training on the content and/or functionality of the programs. DON has 45 days from the delivery date to evaluate these programs (“Trial Period”). If DON decides to use any of these programs after the 45-day trial period, DON must obtain a license for such programs from Oracle or an authorized distributor. If DON decides not to obtain a license for any program after the 45-day trial period, DON will cease using and delete any such programs from its computer systems. Programs licensed for trial purposes are provided “as is” and Oracle does not provide technical support or offer any warranties for these programs. During the Trial Period, DON may use such programs at no additional charge, and DON’s use of such programs during the Trial Period does not constitute an agreement to purchase any program.

11. Audit and Monitoring: This Section sets out the sole audit right under this ESL.

DON, inclusive of its PEDs, will maintain, and promptly provide to Oracle upon its request, but no more frequently than once in a twelve (12) month period, accurate records regarding use of the software by or for DON. If DON becomes aware of any unlicensed use of the software, DON will notify Contractor and Oracle within 15 calendar days, providing reasonable details. The limit of DON’s responsibility for any unlicensed use of the software by any Users employed by or performing services for DON is the requirement that DON purchase additional licenses for the product through Contractor without any penalty. If Oracle provides DON with questions or concerns regarding the certification, DON agrees to meet with Oracle representatives to address Oracle’s concerns.

DON, inclusive of its PEDs, will perform a self-audit, upon the request of Oracle, but no more frequently than once in a twelve (12) month period, and report any change in software program use (hereinafter "True up number"). Oracle may make such a request of an individual PED and will notify DON in the event of such a request. If Oracle requests a self-audit from a PED, Oracle will not make another request of the PED for at least 12 months. Any self–audit, which shall be certified by a DoN employee or military person authorized to do so, shall include, but not be limited to, the number of copies of the programs installed and/or in use by DON, the designated system(s) on which the programs are installed and/or running, and if applicable, the number of users of the programs. DON shall notify Contractor and Oracle of the True up number no later than 90 calendar days after completion of the self-audit. If the self-audit finds that DON is under-licensed, DON will either 1) cease use of the quantity in excess of the DON licensed quantity and work with Oracle and Contractor in good faith to determine the scope of such excess use or 2) make an additional purchase of the product under the Contract, in accordance with any DON price-holds available at the time or otherwise from an authorized Oracle reseller. If additional licenses are purchased, the purchase must be made no later than 60 days after DON’s aforementioned notification. There will be no penalties involved in the procurement of the additional licenses; however, DON may be required to pay for technical support and license fees associated with the unlicensed use wherein such pricing is in accordance with the Contract, any DON price-holds available at the time, or available through an authorized Oracle reseller.

12. License Termination: Upon termination of a program license, DON is required to discontinue use and destroy or return to Contractor all copies of the programs and program documentation associated with the terminated license. Oracle may not terminate program licenses and/or services because Contractor has not paid Oracle for the program licenses and/or services provided that DON provides Oracle proof of payment to Contractor within 15 calendar days of an Oracle request for such proof.

13. Source Code: Source code may be delivered as part of the standard delivery for particular programs; all such source code is subject to the terms of this ESL, including the Oracle License Definitions and Rules v120117, the applicable order, and the applicable program documentation.

14. Territory: Oracle programs ordered under the Contract and this ESL may be installed and used anywhere in the United States and at any U.S. Government civilian or military installation or work site outside the United States, including but not limited to in or on any ship, submarine, aircraft, drone, missile, weapon, or satellite owned by the United States, regardless of where the software was acquired.

15. Confidentiality: By you placing an order under the Contract and this ESL, Oracle, Contractor and DON may have access to information that is confidential to one another (“Confidential Information”). We each agree not to disclose each other’s Confidential Information and we each agree to disclose only information that is not Confidential Information that is required for the performance of obligations under this ESL, the Contract, and/or required to be disclosed by law. For Freedom of Information Act (FOIA) requests for information that the DON FOIA Officer dealing with the FOIA request knows is Oracle’s or Contractor’s Confidential Information, the DON FOIA Officer will inform Oracle or Contractor, as applicable, of the FOIA request. The Contract, this ESL, and the exhibits to both are not Confidential Information of Oracle, Contractor, or DON.

16. Ineffective Provisions: If any document incorporated by reference into this ESL, including the Oracle License Definitions and Rules and Oracle Applications Licensing Table and terms included and/or referenced therein, contains a provision (a) allowing for the automatic termination of DON’s license rights or technical support services; (b) allowing for the automatic renewal of services and/or fees; and/or (c) requiring the governing law to be anything other than Federal law, then, such terms shall not apply and shall have no effect. If any document incorporated by reference into this ESL, including the exhibits hereto and terms included and/or referenced therein, contains an indemnification provision, such provision shall not apply as to the United States indemnifying Oracle or any other party; however, Oracle reserves the right to seek indemnification from the U.S. Government in accordance with the terms of Section G above should Federal statute permit such indemnification.

17. Click-Wrap Licenses: With respect to Oracle Programs ordered under the Contract and this ESL, click-wrap, browse-wrap, shrink-wrap and similar licenses do not apply.

18. URLs: Any Oracle policies referenced by URL in this ESL, except for Oracle Software Technical Support Policies, are for reference purposes only, and their terms do not take precedence over the terms and conditions in this ESL.

19. Entire Agreement: For any order, the order, the Contract and this ESL set forth all the terms to which the parties are binding themselves, and constitute the entire agreement of the parties, on their subject matters. They supersede all prior, simultaneous, and later agreements, understandings, and communications of the parties on their subject matters, except for amendments to them in writing signed by a DON contracting officer authorized to agree to the amendment and an authorized representative of Contractor.

20. Rights of Survivorship: This ESL shall survive unto Oracle, its successor, rights and assigns for the duration of your order placed with Contractor under the Contract and this ESL, inclusive of any associated price hold. The terms and conditions of the program license(s) acquired under the Contract and this ESL shall survive in perpetuity, except for those provisions that terminate by their own terms notwithstanding the acquisition or merger of Oracle by or with another entity.

21. Temporary Expeditionary Deployments Licenses (“TEDLs”):

a. Purpose: In instances where DON licenses are NOT covered by the ULA and as part of Temporary Expeditionary Deployments (“TEDs”), DON may temporarily deploy and install or use on, or access from qualified desktops, laptops, mobile devices, servers, or in 3rd Party Cloud Environments, a reasonable number of currently licensed and supported Oracle programs in addition to those previously licensed under this ESL at no additional cost. TED licenses (“TEDLs”) are limited to real world contingencies which are defined as emergency situations similar to the terrorist attacks in the United States on April 19, 1995, and September 11, 2001, and natural disasters such as Hurricanes Irma, Harvey, Sandy, and Katrina, where temporary duty stations and continuity of operations alternative venues or sites were needed for a substantial period of time due to the destruction of U.S. Government facilities, infrastructure, offices, and work spaces. DON shall use TEDLs in accordance with this ESL.

b. Notice: DON shall notify Contractor and Oracle of the use of TEDLs and the nature of the contingency that caused the use of the TEDLs within 60 calendar days after they were first used, provided that such notice is not required if the certification required by Section I.21.c below has been provided.

c. Certification: After the TED or six (6) calendar months, whichever is shorter, DON will provide a written certification to Oracle that the TEDLs have either been removed from service, or licenses equal to the number of TEDLs not removed from service have been ordered under the Contract and this ESL or otherwise purchased from an authorized Oracle reseller.

22. Data Transfer and Data Sharing: Data transfer is Batch Processing, Multiplexing, and Flat File Environments. Oracle agrees that so long as DON has a valid processor license, the transfer of data or the sharing of data is unrestricted. A valid processor license provides DON all rights concerning data sharing, data access, data transfer and data manipulation. Furthermore, a valid processor license provides for the ability of users to access or receive data from any DON-licensed Oracle database with owner granted permission and any other Oracle database licensed with a processor metric as well as owner granted permission.

23. Data Recovery: Data Recovery methods include four types of environments: Cold, Warm, Red Hot, and White Hot.

a. Cold: In this method, a copy of the physical database structures of the database is made. When the original data is lost, the backup files can be used to reconstruct the lost information that constitutes the Oracle Database. This backup copy includes important parts of the database’s physical structures such as control files, redo logs and data files. These physical files can be stored on a server, storage array, disk drive, or Compact Disc. No additional license is required for the backup copy; however, this Cold environment cannot run concurrently with the production environment it is intended to backup.

b. Warm: In this method, nodes are configured in “clusters” with the first installed node acting as a primary node. If the primary node fails, one of the surviving nodes in the cluster acts as the primary node. In this type of environment, Oracle permits DON to run the properly licensed Oracle software programs on an unlicensed spare computer for up to a total of sixty (60) separate days in any given calendar year. The above right only applies when a number of machines are arranged in a cluster and share one disk array. Once the primary node is repaired, DON must switch back to the primary node. Only one failover node per clustered environment is at no charge for up to sixty (60) separate days in any given calendar year even if multiple nodes are configured as failover nodes. When licensing any Oracle program Options1 or Management Packs2 on a Warm environment, the Options or Management Packs must match the number of licenses of the associated database. Additionally, when licensing by Named User Plus, the user minimums are waived on one failover node only. Any use by DON beyond the right granted in this Section must be licensed separately. In a Warm environment, the same license metric must be used for the production and failover nodes when licensing a given clustered configuration.

c. Red Hot: One or more copies of the primary database are maintained on a separate server(s) at all times. The sites in a Red Hot configuration may be dispersed geographically and are connected. As the primary database is modified, log information generated by the changes are sent to the standby database(s) and subsequently applied to the standby database. If the primary database fails, a standby database can be activated to be the new primary database. In this environment, the primary and the standby databases must be fully licensed. Additionally, the same metric must be used when licensing the databases in a Red Hot environment. If any Option or Management Pack (except RAC) is licensed on the primary server, then it must also be licensed on the Red Hot server. If RAC is on the primary server but not on the standby server, then licensing it is not required.

d. White Hot: This method involves the mirroring of the storage unit or shared disks arrays. To setup a White Hot environment, the Oracle data files, executables, binaries and DLLs are replicated to the mirrored storage unit. In this environment, Oracle must be fully licensed at the primary site, and if it is installed and/or run at the secondary site, it must also be fully licensed there. Additionally, the same metric must be used to license both databases. If any Option or Management Pack (except RAC) is licensed on the primary server, then it must also be licensed on the mirrored server. If RAC is on the primary server, but not on the mirrored server, then licensing it is not required.

1 Database Options are separately licensed products which extend the function of the Database for high availability [for example, but not limited to, Real Application Clusters (“RAC”) and Data Guard], security (for example, but not limited to, Advanced Security, Label Security, and Audit Vault), etc.

2 Database Management Packs are separately licensed products which provide tools for successful deploying and managing the database (for example, Database Lifecycle Management Pack, Diagnostics Pack, and Tuning Pack to name a few).

24. Orders: Any term or condition in an order to be placed that will expressly supersede a term or condition of this ESL must be approved in writing, such as via an email, by the designated DON contracting officer for this ESL, a copy of which shall be attached to such order.