NETSCAPE COMMUNICATIONS CORPORATION
AMENDED AND RESTATED INTERNET SERVICE PROVIDER
NAVIGATOR DISTRIBUTION AGREEMENT
COVER SHEET
EarthLink Network, Inc.
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Full legal name of Network Service Provider ("NSP") NSP is incorporated in the state/country of California
3100 New York Drive If NSP is not a corporation, please specify form of
- --------------------------------------------------- organization
Address of Principal Place of Business ---------------------------------------
Pasadena California 91107
- --------------------------------------------------
City State Zip Nondisclosure Agreement Signed /X/ Yes / / No
Telephone (818) 296-2400 Fax (818) 296-4161 If yes, date April 15, 1996
---------------------------------------- ---------------------------------------
Name and Description of Internet Access and/or
Internet Access service ("NSP's Products"): EarthLink Network Total Access
---------------------------------------------------------
Check Applicable: / / Netscape Navigator LAN /X/ Netscape Dial-Up Kit /X/ Netscape Navigator Gold
IMPORTANT NOTICE: THIS NETSCAPE COMMUNICATIONS CORPORATION INTERNET SERVICE PROVIDER NAVIGATOR
DISTRIBUTION AGREEMENT GIVES YOU THE RIGHT TO MAKE AND DISTRIBUTE COPIES OF THE NAVIGATOR SOFTWARE
CHECKED ABOVE AT THE PRICING SET FORTH IN ATTACHMENT C HERETO. THE NAVIGATOR SOFTWARE MUST BE OFFERED TO
END USERS AS A PACKAGED PRODUCT WITH NSP'S PRODUCT AND MAY NOT BE OFFERED AS A STAND-ALONE PRODUCT. THE
NAVIGATOR SOFTWARE IS ONLY TO BE OFFERED TO END USERS IN THE TERRITORY NOTED BELOW. YOU MUST PROVIDE
QUARTERLY POINT OF SALE REPORTS TO NETSCAPE. CAREFULLY REVIEW THE REST OF THIS AGREEMENT FOR OTHER
IMPORTANT TERMS. FAILURE TO COMPLY WITH THIS AGREEMENT MAY RESULT IN TERMINATION.
TERRITORY (Countries): The United States, Canada and Mexico
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EARTHLINK NETWORK, INC. NETSCAPE COMMUNICATIONS CORPORATION
By: /s/ Charles G. Betty By: /s/ Conway Rulon-Miller
---------------------------------------------- ----------------------------------------
Name: Garry Betty Name: Conway (Todd) Rulon-Miller
-------------------------------------------- --------------------------------------
Title: Its President Title: VP, Sales
------------------------------------------ -------------------------------------
Date: 5/29/96 Date of Acceptance: 5/31/96
------------------------------------------ ------------------------
NSP Technical Contact NETSCAPE AUTHORIZED AGENT
Primary: Michael Mushet Company Name:
--------------------------------------- -------------------------------
Phone: 818 296-2429 By:
----------------------------------------- -----------------------------------------
Fax: 818 296-4161 e-mail: M2@ earthlink.net Name: ---------------------------------------
------------ --------------------
Alternate: Steve Nelson Title:
-------------------------------------- ---------------------------------------
Phone 818-296-2486
Fax: 818 296-4161 e-mail: snelson @ earthlink.net Date:
------------- ------------------------ ---------------------------------------
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* CERTAIN PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED IN REVIEWED BY
CONNECTION WITH A REQUEST TO THE SECURITIES AND EXCHANGE NETSCAPE LEGAL
COMMISSION FOR CONFIDENTIAL TREATMENT OF SUCH PORTIONS. Initial DRM
---
NETSCAPE COMMUNICATIONS CORPORATION
AMENDED AND RESTATED INTERNET SERVICE PROVIDER
NAVIGATOR DISTRIBUTION AGREEMENT
This Amended and Restated Internet Service Provider Navigator Distribution
Agreement ("Agreement") is entered into by and between Netscape
Communications Corporation, a Delaware corporation ("Netscape"), with
principal offices at 501 East Middlefield Road, Mountain View, CA 94043,
U.S.A. and the NSP listed and identified on the cover sheet to this Agreement
("Cover Sheet") as of the date of acceptance by Netscape ("Effective Date").
WHEREAS, NSP markets and provides Internet Access services and/or Internet
Access services.
WHEREAS, NSP and Netscape are parties to that Internet Service Provider
Navigator Distribution Agreement dated May 25, 1995 and the Amendment thereto
dated the same date (as amended, such Internet Service Provider Navigator
Distribution Agreement shall be referred to herein as the "Original
Agreement");
WHEREAS, the parties to this Agreement wish to amend and restate the terms of
the Original Agreement with this Agreement so that the terms of the agreement
remaining between the parties shall be those set forth in this Agreement; and
WHEREAS, NSP desires to obtain rights to use and distribute Netscape's
Navigator selected on the Cover Sheet in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, the parties agree to the following terms and conditions:
SECTION 1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following
meanings:
1.1 "Active User" means a Registered User for which Internet Access
through NSP's Product has not been terminated.
1.2 "Attachment(s)" means the attachments to this Agreement which are
attached hereto and incorporated herein:
1.2.1 Attachment A (End User License Agreement) which set forth
Netscape's terms and conditions of licensing applicable to an
end user customer.
1.2.2 Attachment B (Quarterly Point of Sale Report) which sets
forth the form and information NSP must provide to Netscape
each quarter.
1.2.3 Attachment C (Navigator Pricing and Customization) which
sets forth Netscape's pricing for the current release (as
of Effective Date) of the Navigator selected on the Cover
Sheet by NSP, as amended by Netscape from time to time, and
Netscape's customization obligations.
1.3 "Derivative Work(s)" means a revision, modification, translation,
abridgment, condensation or expansion of the Navigator or
Documentation or any form in which the Navigator or Documentation
may be recast, transferred, or adopted, which, if prepared without
the consent of Netscape, would be copyright infringement.
1.4 "Distributor" means any third party appointed pursuant to this
Agreement by NSP or any Distributor properly appointed hereunder to
distribute the Navigator to End Users in accordance with the terms hereof.
1.5 "Documentation" means Netscape's standard user manuals, reference manuals
and installation guides, or portions thereof, which are distributed as of
the Effective Date generally by Netscape to its other licensees of the
Navigator either in hard copy or electronic copy, as may be updated by
Netscape form time to time and provided to NSP hereunder.
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1.6 "End User" means any third party licensed by NSP or a Distributor
pursuant to this Agreement to use, but not to further distribute, the
Navigator except that if such third party is a corporation or other
entity, then "End User" means each individual within such corporation or
entity licensed by NSP or a Distributor pursuant to this Agreement to
use, but not to further distribute, the Navigator.
1.7 "Internet Access" means connecting, through any medium now known or
hereafter developed or discovered, to the Internet in order to permit
data flow between the Internet and the connected end user.
1.8 "Major and Minor Updates" mean updates, if any, to the Navigator. Major
Updates involve additions of substantial functionality while Minor
Updates do not. Major Updates are designated by a change in the number
to the left of the decimal point of the number appearing after the
product name while Minor Updates are designated by a change in any
number to the right of the decimal point. Netscape is the sole
determiner of the availability and designation of an Update as a Major
or Minor Update. Major Updates exclude software releases which are
reasonably designated by Netscape as new products. Where used herein
"Updates" shall mean Major Updates and Minor Updates interchangeably.
1.9 "NAA" means the applicable Netscape authorized distributor or value
added reseller who has entered into a Netscape Authorized Agent
Agreement with Netscape to act as a Netscape Authorized Agent in
connection with this Agreement solely for administrative purposes on
behalf of Netscape, all in accordance with the terms of the Netscape
Authorized Agent Agreement and this Agreement. All references in this
Agreement to "Netscape/NAA" shall mean the NAA if this Agreement is
entered into among Netscape, NSP and an NAA.
1.10 "Navigator" means the Netscape Dial-Up Kit, Netscape Navigator LAN
and/or Netscape Navigator Gold as selected on the Cover Sheet.
1.11 "Netscape Dial-Up Kit" means, to the extent selected on the Cover Sheet,
the executable current version (but not the source code version) of the
client software Netscape markets under the name "Netscape Dial-Up Kit",
and any Updates that Netscape may provide to NSP hereunder from time to
time.
1.12 "Netscape Navigator Gold" means, to the extent selected on the Cover
Sheet, the executable version (but not the source code version) of the
client category of software Netscape markets under the name "Netscape
Navigator Gold", and any Updates that Netscape may provide to Licensee
hereunder from time to time.
1.13 "Netscape Navigator LAN" means, to the extent selected on the Cover
Sheet, the executable version (but not the source code version) of the
web client software Netscape markets under the name "Netscape Navigator
LAN", and any Updates that Netscape may provide to NSP hereunder from
time to time.
1.14 "NSP's Product" means NSP's Internet Access and/or Intranet Access
services, as described on the Cover Sheet, with which the Navigator is
required to be bundled and distributed.
1.15 "Program Errors" means one or more reproducible deviations in the
Navigator from the applicable functional specifications set forth in the
Documentation.
1.16 "Registered User" means (a) an End User that is provided Netscape
Navigator Gold upon the date the Navigator is distributed to each End
User or (b) an End User that is provided Netscape Navigator LAN or
Netscape Dial-Up Kit upon the date such End User logs on to Licensee's
Product using a user ID and password obtained from Licensee.
1.17 "Territory" shall mean that geographic area set forth on the Cover Sheet.
SECTION 2. GRANT OF LICENSES AND RIGHTS
2.1 Licenses
2.1.1 License. Subject to the terms and conditions of this
Agreement, Netscape hereby grants to NSP and NSP hereby accepts,
a nonexclusive and nontransferable right and license to (i) use
in the Territory the Navigator for NSP's internal business
purposes, (ii) reproduce, without change
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(except as required pursuant to Section 2.1.6), the Navigator (in
executable form only) on any media (provided that NSP shall not
electronically distribute any version of the Navigator containing
128-bit encryption), (iii) distribute in the Territory by
sublicense such Navigator copies to End Users, directly or
indirectly through Distributors, solely for use in
conjunction with NSP's Product and (iv) directly distribute from
NSP's FTP (file transfer protocol) site to Active Users located
in the Territory any Minor Updates provided to NSP by Netscape
pursuant to Section 6.3; provided, that such FTP site shall not
permit any person or entity, other than Active Users, to download
or otherwise access any Update.
2.1.2 Distributors. Subject to the terms and conditions of this
Agreement, NSP may sublicense to Distributors and such
Distributors may sublicense to other Distributors the right and
license to reproduce, without change, the Navigator (in
executable form only) on any tangible media solely as an
incorporated part of NSP's Product and to distribute in the
Territory by sublicense such Navigator copies to End Users,
directly or indirectly through other Distributors, solely for use
in conjunction with NSP's Product.
2.1.3 License Restrictions. NSP agrees not to copy (except as
expressly permitted herein), modify, translate, decompile,
reverse engineer, disassemble, or otherwise determine or attempt
to determine source code from the executable code of the
Navigator or to create any Derivative Works based upon the
Navigator or Documentation, and agrees not to permit or authorize
anyone else, including, without limitation, any Distributor, to
do so. NSP and each Distributor are expressly prohibited from
any marketing and/or distribution of the Navigator(a) unless each
copy of the Navigator is bundled with NSP's Product and (b)
outside of the Territory. NSP shall not be entitled to grant to
any Distributor and no Distributor shall be entitled to grant to
any other Distributor the right or license to electronically
distribute the Navigator, including, without limitation, any
Update.
2.1.4 Documentation License. Subject to the terms and conditions of
this Agreement, Netscape hereby grants and NSP hereby accepts a
nonexclusive and nontransferable right and license to use and
reproduce, without change (except as provided in Section 2.1.6),
the Documentation, and to distribute in the Territory by
sublicense the Documentation to End Users, directly or
indirectly through Distributors, solely in conjunction with the
Navigator. Subject to the terms and conditions contained in this
Agreement, NSP may sublicense to Distributors and such
Distributors may sublicense to other Distributors the right and
license to use and reproduce, without change, the Documentation
and to distribute in the Territory by sublicense the
Documentation to End Users, directly or indirectly through other
Distributors, solely in conjunction with the Navigator.
2.1.5 Licenses Dependent on Bundling and Accounting. The licenses
granted in this Section 2.1 are conditional upon (i) NSP bundling
each copy of the Navigator with NSP's Product and NSP and each
Distributor marketing and distributing each copy of the Navigator
only as so bundled with NSP's Product and only in the Territory
and (ii) NSP establishing and maintaining controls and procedures
sufficient to timely and accurately determine the number of
Registered Users. If (a) NSP fails to so bundle the Navigator,
(b) NSP or any Distributor markets or distributes the Navigator
without NSP'S Product bundled therewith or outside of the
Territory or (c) NSP fails to account for all Registered Users in
accordance with this Section 2.1.5, the licenses granted
hereunder shall be immediately revocable by Netscape in addition
to any other remedies Netscape may have.
2.1.6 Configuration Guide. In the event that the Netscape Dial-Up Kit
is selected on the Cover Sheet, Netscape hereby grants to NSP,
and NSP hereby accepts, a nonexclusive and nontransferable right
and license, in the Territory, to (a) use (with no right to
sublicense) the configuration guide provided by Netscape to NSP
(the "Configuration Guide") to preconfigure the dial-up
parameters and Netscape preferences specified therein solely for
NSP's Product and for no other network service and (b) modify the
"Getting Started" portion of the Documentation for the Netscape
Dial-Up Kit solely to the extent necessary to reflect the
preconfigured parameters and dial-up preferences made by NSP to
the Netscape Dial-Up Kit in accordance with this Section 2.1.6.
Prior to distribution of any Netscape Dial-Up Kit to a Distributor
or End User, NSP shall use the Configuration Guide to
preconfigure the dial-up parameters and Netscape preferences of
each such
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Netscape Dial-Up Kit to: (i) provide Internet Access and/or
Intranet Access to End Users solely through NSP's Product and
(ii) prevent access to any private network not operated by NSP.
NSP is granted no right to license to (x) distribute or
sublicense the Configuration Guide to any third party, including,
without limitation, Distributors, (y) sublicense to any
Distributor the right or license to modify or change all or any
portion of the Navigator or Documentation, and (z) except as
provided in this Section 2.1.6, modify or change all or any
portion of the Navigator or Documentation.
2.1.7 Stack and Dialer. Prior to distribution of any Netscape
Navigator LAN to a Distributor or End User, NSP shall bundle, in
accordance with this Section 2.1.7, each copy of the Netscape
Navigator LAN with NSP's or a third party's stack and dialer.
NSP agrees to bundle each copy of the Netscape Navigator LAN with
such stack and dialer so that such copy of the Netscape Navigator
LAN: (i) provides Internet Access and/or Intranet Access to End
Users solely through NSP's Product and (ii) prevents access to
any public network, other than the Internet, and to any private
network not operated by NSP.
2.1.8 Promotion of Navigators. NSP agrees to treat all Navigators at
least as favorable as it treats any other products distributed by
NSP that are competitive with any Navigator. Specifically, NSP
agrees that it will not market or promote any Navigator or any
other product in a manner that states or could reasonably be
interpreted to imply that the Navigator is inferior or secondary
to the other product. For example, NSP will not market or
promote any other product as "preferred," "premier," "primary" or
the like as compared to any Navigator.
2.1.9 Netscape Now Program. The licenses granted in this Section 2.1
are conditional on (a) NSP's ongoing participation in the
Netscape Now Program, including without limitation, NSP's
compliance with the Netscape Now Program published guidelines as
currently in effect and as may be revised by Netscape and
provided to NSP from time to time during the term of this
Agreement and (b) NSP's placement of a "Netscape Now" button in
conformance with the Netscape Now Program Guidelines on a URL
maintained by NSP in connection with NSP's Product and designated
by NSP as the URL containing information regarding Updates. NSP
acknowledges that it has received and had an opportunity to
review the current Netscape Now Program published guidelines.
2.2 Export. NSP shall comply fully with all then current applicable laws,
rules and regulations relating to the export of technical data, including,
but not limited to any regulations of the United States Office of Export
Administration and other applicable governmental agencies and NSP
acknowledges that by virtue of certain security technology embedded in the
Navigator, that export of such software may not be legal. NSP shall
conspicuously mark all packaging containing Navigators identified by
Netscape as not for export with a "Not for Export" notice. Netscape agrees
to cooperate in providing information requested by NSP as necessary to
obtain any required licenses and approvals. When distributing the
Navigator and Documentation in countries where an enforceable copyright law
covering the same does not exist, NSP shall obtain a written agreement
signed by the End User prohibiting the End User from making unauthorized
copies of the same.
2.3 Compliance With Laws
2.3.1 At its own expenses, NSP shall make, obtain, and maintain in force
at all times during the term of this Agreement, all applicable
filings, registrations, reports, licenses, permits and
authorizations (collectively "Authorizations") in the Territory
in order for NSP to perform its obligations under this Agreement,
Netscape/NAA shall provide NSP with such assistance as NSP may
reasonably request in making or obtaining any such
Authorizations. In the event that the issuance of any
Authorization is conditioned upon an amendment or modification to
this Agreement which is unacceptable to Netscape, Netscape shall
have the right to terminate this Agreement without liability or
further obligation whatsoever to NSP.
2.3.2 NSP shall comply with all laws, regulations and other legal
requirements that apply to this Agreement, including tax and
foreign exchange legislation; advise Netscape/NAA of any
legislation, rule, regulation or other law (including but not
limited to any customs, tax, trade,
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intellectual property or tariff law) which is in effect or which
may come into effect in the Territory after the Effective Date of
this Agreement and which affects the importation of the Navigator
into, or the use and the protection of the Navigator and the
intellectual property right within, the Territory, or which has a
material effect on any provision of this Agreement. NSP will
provide Netscape/NAA with the assurances and official documents
that Netscape/NAA periodically may request to verify NSP's
compliance with this subsection.
2.3.3 NSP shall not, together with its employees and agents, in
conformity with the United States Foreign Corrupt Practices Act
and with Netscape's established corporate policies regarding
foreign business practices, directly or indirectly make and offer
payment, promise to pay, or authorize payment, or offer a gift,
promise to give, or authorize the giving of anything of value for
the purpose of influencing an act or decision of an official of
any government within the Territory or of the United States
Government (including a decision not to act) or inducing such a
person to use his influence to affect any such governmental act
or decision in order to assist Netscape in obtaining, retaining
or directing any such business.
2.4 This Party Licenses. If all or any part of the Navigators delivered to NSP
has been licensed to Netscape by a third party software supplier then,
notwithstanding anything to the contrary contained in this Agreement, NSP
is granted a sublicense to the third party software subject to the same
terms and conditions as those contained in the agreement between Netscape
and such third party software supplier. In addition, Netscape reserves the
right to substitute any third party software in the Navigators so long as
the new third party software does not materially affect the functionality
of the Navigator. Netscape represents that current releases of the
Navigators contain no third party software which would require NSP to agree
to any terms and conditions in addition to those set forth in this
Agreement.
2.5 European Union. In the event that any provisions of this Agreement
prohibits any activity of License or any Distributor in violation of
Article 6 of the Council Directive of 14 may 1991 on the legal protection
of computer programs, and implementing legislation thereunder (the
"Directive"), then, such activity shall be permitted solely to the extent,
if any, that such activity is (i) subject to the jurisdiction of a Member
State of the European Union and (ii) expressly permitted by the Directive.
SECTION 3. MARKETING AND DISTRIBUTION
3.1 Nonexclusivity. NSP understands that Netscape may enter into arrangements
similar to this Agreement with third parties.
3.2 Terms relating to Distribution.
3.2.1 Distribution to Government Agencies. NSP agrees to comply with
all applicable laws, rules and regulations to preclude the
acquisition of unlimited rights to technical data, software and
documentation provided with the Navigator to a governmental
agency, and ensure the inclusion of the appropriate "Restricted
Rights" or "Limited Rights" notices required by the U.S.
Government agencies or other applicable agencies.
3.2.2 Distributor Agreements. Prior to the distribution of any
Navigator to a Distributor, NSP or a then-current Distributor
shall enter into an enforceable written agreement with such
Distributor ("Distributor Agreement") that (i) is sufficient to
ensure that such Distributor is required to comply with the
relevant terms of this Agreement and (ii) expressly names
Netscape as an intended third party beneficiary with the right to
rely on and directly enforce the terms thereof. Without limiting
the generality of the foregoing, each Distributor Agreement shall
include terms no less restrictive than those contained in Section
2.1(iii),2.1.3,2.1.8,2.2,2.3,3.2.1,3.2.3,3.3,7.8 and 9.1 of this
Agreement.
3.2.3 End User License Agreements. Neither NSP nor any Distributor
shall sublicense or otherwise distribute any copy of the
Navigator or Documentation to End users except pursuant to a
written sublicense agreement ("End User License Agreement") that
(i) contains terms and conditions not inconsistent with and no
less restrictive than the terms and conditions set forth in
Netscape's then-current standard end user license agreement for
the Navigator and Documentation (with NSP or
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such Distributor as the "Licensor" thereunder) and (ii) provides,
in 12 point, bold, upper-case type, at the top of each such
agreement and prior to any other text (other than introductory text
regarding acceptance of the agreement), a legend in substantially
the following form:
THE NAVIGATOR AND DOCUMENTATION ARE PROVIDED FOR USE ONLY
(I) WITH THE INTERNET ACCESS OR INTRANET ACCESS SERVICE
INITIALLY OFFERED BY (NSP/DISTRIBUTOR) IN CONJUNCTION WITH
THE DISTRIBUTION OF THE NAVIGATOR AND DOCUMENTATION AND
(II) IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. NO
RIGHT OR LICENSE IS GRANTED TO USE THE NAVIGATOR OR
DOCUMENTATION WITH ANY OTHER INTERNET ACCESS OR INTRANET
ACCESS SERVICE.
A copy of Netscape's current standard end user license
agreement for the Navigator is attached hereto as Attachment A.
Upon delivery by Netscape to NSP of any revised end user license
agreement, NSP and each Distributor shall, as soon as reasonably
practicable, but in any event within ninety (90) days after receipt
thereof from Netscape, use only such End User License Agreements
that have been revised to conform to the terms of this Agreement and
such revised end user license agreement provided by Netscape to
NSP; provided, in the event that the revised end user license
agreement is provided by Netscape to NSP to comply with or conform
to a law, regulation or policy or other third party requirement, NSP
and each Distributor will use only such revised End User License
Agreement within thirty (30) days after receipt by NSP of Netscape's
revised end user license agreement.
3.3 Enforcement of Ancillary Agreements. NSP shall use commercially
reasonable efforts to enforce each Distributor Agreement and End User
License Agreement and NSP shall require each Distributor to use
commercially reasonable efforts to enforce each Distributor Agreement and
each End User License Agreement to which such Distributor is a party, in
each case, with at least the same degree of diligence used in enforcing
similar agreements governing others, which in any event shall be
sufficient to adequately enforce such agreements. NSP shall, and shall
require each Distributor to, use commercially reasonable efforts to protect
Netscape's copyright rights, and NSP shall notify Netscape, and shall
require each Distributor to notify NSP, of any breach of a material
obligation under a Distributor Agreement or an End User License Agreement
affecting the Navigator or Documentation. In addition, NSP will
cooperate, and will require each Distributor to cooperate, with Netscape
in any legal action to prevent or stop unauthorized use, reproduction or
distribution of the Navigator or Documentation.
3.4 Third Party Requirements. In the event that Netscape is required by a
third party software supplier to cease and to cause its licensees to
cease reproduction and distribution of a particular revision of the
Navigator, NSP agrees to comply, and agrees to cause its Distributors
to comply, therewith as soon as commercially practicable provided
Netscape/NAA provides NSP with thirty (30) days prior written notice
and further provided Netscape replaces such affected Navigator with a
functionally equivalent Navigator as soon as commercially practicable.
SECTION 4. FEES AND PAYMENT
4.1 License Fees. NSP shall pay to Netscape/NAA, within thirty (30) days of
the date of Netscape's/NAA's invoice, the applicable per copy license fee
set forth in Attachment C for each license granted by NSP to Registered
Users in connection with the distribution of all or any portion of the
Navigator. Netscape/NAA will invoice NSP on a quarterly basis for
accrued but unpaid license fees based on NSP's Quarterly Point of Sale
Reports submitted in accordance with Section 4.3 below. Per copy license
fees will accrue in the applicable corresponding quantity upon: (a) the
initial date of NSP's internal use of a Navigator or any Update and (b) the
date that an End User first becomes a Registered User.
4.2 Payment and Taxes. All payments shall be made in United States dollars
at Netscape's/NAA's address as indicated in this Agreement or at
such other address as Netscape/NAA may from time to time indicate by
proper notice hereunder or by wire transfer to a bank and account number
designated by Netscape/NAA. All fees are exclusive of all taxes, duties
or levies, however designated or computed. NSP shall be responsible for
and pay all taxes based upon the transfer, use or distribution of the
Navigator, or the
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program storage media, or upon payments due under this Agreement
including, but not limited to, sales, use, or value-added taxes, duties,
withholding taxes and other assessments now or hereafter imposed on or
in connection with this Agreement or with any sublicense granted
hereunder, exclusive of taxes based upon Netscape's (or NAA's) net
income. In lieu thereof, NSP shall provide to Netscape/NAA a tax or
other levy exemption certificate acceptable to the taxing or other
levying authority. If NSP is required by law to make any deduction or to
withhold from any sum payable to Netscape by NSP hereunder, NSP shall
effect such deduction or withholding, remit such amounts to the
appropriate taxing authorities and promptly furnish Netscape with tax
receipts evidencing the payments of such amounts. Any past due amount
shall bear interest at the rate of one percent (1%) per month or the
maximum rate allowed by applicable law, whichever is less, until paid in
full.
4.3 Quarterly Point of Sale Reports. NSP shall maintain accurate
records of Registered Users, including the information (broken down by
month) required in the Quarterly Point of Sale Report attached hereto as
Attachment B, and any further information as Netscape/NAA may from time
to time reasonably request. Irrespective of the Effective Date, NSP
shall submit Quarterly Point of Sale Reports electronically in ASCII tab
or comma delimited fields format to Netscape/NAA on March 10, June 10,
September 10 and December 10 of each year for the quarters December
through February, March through May, June through August, and September
through November, respectively.
4.4 Audit of Records. NSP shall maintain, and shall require its Distributors
to maintain, accurate records containing the information (broken down by
month) required in the Quarterly Point of Sale Report attached hereto as
Attachment B, all data reasonably required for verification of NSP's and
each Distributor's compliance with the terms of this Agreement, amounts
to be paid, the quantity of Navigators and/or Updates distributed by NSP
and each Distributor and the number of Registered Users. Netscape and
NAA each shall have the right, during normal business hours upon at
least five (5) business days prior notice, to direct its auditors to
audit and analyze the relevant records of NSP and its Distributors to
verify compliance with the provisions of this Agreement. The audit shall
be conducted at Netscape's (or NAA's) expense unless there is inadequate
record keeping or the results of such audit establish that
inaccuracies in the Quarterly Point of Sale Reports have resulted in
underpayment to Netscape/NAA of more than five percent (5%) of the
amount actually due in any quarter, in which case NSP shall pay any
additional license fees resulting from the audit and bear the expenses
of the audit.
SECTION 5. DELIVERABLES
5.1 Deliverables. Netscape/NAA shall provide NSP with one (1) gold master of
the release of the Navigator as of the Effective Date in the platforms
described on Attachment C and the applicable Documentation as of the
Effective Date. If NSP has selected the Netscape Dial-Up Kit on the
Cover Sheet, NSP will also receive the Configuration Guide. All
deliveries under this Agreement shall be F.C.A. Netscape, Fremont,
California, U.S.A. or F.C.A. NAA origin, as applicable. "F.C.A." means
Free Carrier Alongside and shall have the definition set forth in
INCOTERMS 1990.
SECTION 6. SUPPORT
6.1 Front Line Support. NSP, and not Netscape/NAA, will provide front-line
technical support to Active Users. NSP shall employ at least two (2)
fully trained full time support personnel and provide support five days
a week during local business hours. Such support includes call receipt,
entitlement verification, call screening, installation assistance,
problem identification and diagnosis, product defect determination,
efforts to create a repeatable demonstration of the Program Error and,
if applicable, the replacement of any defective media. NSP agrees that
any documentation or packaging distributed by NSP shall clearly and
conspicuously state that End Users shall call NSP for technical support
for the Navigator and shall not reference Netscape/NAA in any manner
with respect to support. Netscape/NAA will have no obligation to furnish
any assistance, information or documentation with respect to the
Navigator to any End User. If Netscape/NAA customer support
representatives are being contacted by a significant number of End
Users, then, upon Netscape's/NAA's request, NSP and Netscape (or NAA)
will cooperate to minimize such contact and, if NSP is not able to
minimize such contact to a level which is acceptable to Netscape in its
reasonable determination, NSP hereby agrees to pay Netscape or NAA the
then-current charges for such support.
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6.2 Other Support. In consideration of the License Fee set forth in
Attachment C, Netscape will provide NSP, during the term of this
Agreement, with Netscape's technical support services, as further
described in Attachment D.
6.3 Updates. For the term of this Agreement, Netscape/NAA will provide to
NSP Updates commercially released by Netscape in consideration of the
License Fee set forth in Attachment C. Within three (3) months after the
date that Netscape shall commercially release any Update, NSP shall
distribute to End Users only that version of the Navigator represented
by such Update.
SECTION 7. TRADEMARKS AND TRADE NAMES
NSP shall use, and is hereby granted a non-transferable, non-exclusive
and restricted license, during the term of this Agreement, to use in the
Territory the trademark "Netscape Navigator Included" in any
advertising, marketing, technical, packaging or other materials related
to the Navigator which are distributed by NSP in connection with this
Agreement in accordance with Netscape's then current trademark usage
guidelines to be provided and updated by Netscape from time to time (the
"Guidelines"). NSP shall be entitled to sublicense to Distributors the
right to use in the Territory, and shall require each Distributor to use
in the Territory, "Netscape Navigator Included" in any advertising,
marketing, technical, packaging or other materials related to the
Navigator which are distributed by such Distributor hereunder in
accordance with the Guidelines. Other than the use of "Netscape
Navigator Included," neither NSP nor any Distributor shall use
"Netscape" or "Netscape Navigator" or "Personal Edition" in any
advertising, marketing collateral and/or packaging relating to NSP's
Product. Neither NSP nor any Distributor need use Netscape's trademarks
and trade names in any country in which their connotation is offensive.
NSP will consult with Netscape as to the foreign translation of Netscape
trademarks and trade names so that Netscape can help ensure uniformity
with their use by Netscape or third parties. NSP and each Distributor
shall clearly indicate Netscape's ownership of such trademarks or trade
names. All such usage shall inure to Netscape's benefit. NSP agrees not
to register and agrees not to permit any Distributor to register any
Netscape trademarks or trade names without Netscape's express prior
written consent. Upon Netscape's/NAA's request from time to time NSP
agrees to provide Netscape/NAA with copies of goods bearing Netscape's
trademarks and trade names so that Netscape can verify that the quality
of NSP's and each Distributor's use of such trademarks is comparable to
that of Netscape's use thereof. NSP shall suspend and shall require each
Distributor to suspend use of Netscape trademarks and trade names if
such quality is reasonably deemed inferior by Netscape until NSP and any
such Distributor has taken such steps as Netscape may reasonably require
to solve the quality deficiencies.
SECTION 8. PROPRIETARY RIGHTS
8.1 Proprietary Rights. Title to and ownership of all copies of the
Navigator and Documentation whether in machine-readable or printed form,
and including, without limitation, Derivative Works, compilations, or
collective works thereof and all related technical know-how and all
rights therein (including without limitation rights in patents,
copyrights, and trade secrets applicable thereto), are and shall remain
the exclusive property of Netscape and/or its suppliers. NSP shall not
take any action to jeopardize, limit or interfere in any manner with
Netscape's ownership of and rights with respect to the Navigator and
Documentation. NSP shall have only those rights in or to the Navigator
and Documentation granted to it pursuant to this Agreement.
8.2 Proprietary Notices
8.2.1 No Alteration of Notices. NSP and its employees and agents shall
not, and NSP shall not allow any Distributor to, remove or alter
any trademark, trade name, copyright, or other proprietary notices,
legends, symbols, or labels appearing on or in copies of the
Navigator and Documentation delivered to NSP by Netscape/NAA and
NSP shall use and shall require each Distributor to use the same
notices, legends, symbols, or labels in and on copies of the
Navigator and Documentation made pursuant to this Agreement as are
contained in and on the master copy.
8.2.2 Notice. Each portion of the Navigator and Documentation reproduced
by NSP or any Distributor shall include the intellectual property
notice or notices appearing in or on the corresponding portion of
such materials as delivered by Netscape/NAA hereunder. NSP shall
ensure that all
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copies of the Navigator made by NSP or any Distributor pursuant to
this Agreement conspicuously display a notice substantially in the
following form:
Copyright -C- 1994 Netscape Communications Corporation. All
Rights Reserved.
If NSP is unsure of the appropriate year(s), it shall consult
Netscape/NAA to obtain the correct designation. Such notice shall be
on labels on all media containing the Navigator. If the copyright
symbol "-C-" cannot technically be reproduced, NSP or any Distributor
shall use the word "Copyright" followed by the notation "(c)" in its
place.
SECTION 9. CONFIDENTIAL INFORMATION AND DISCLOSURE
9.1 Confidential Information. The parties agree that all disclosures of the
confidential and/or proprietary information relating to this Agreement
shall be governed by the Nondisclosure Agreement identified on the Cover
Sheet. If there is no Nondisclosure Agreement identified on the Cover
Sheet, then for purposes of this Agreement "Confidential Information" shall
mean Netscape information of a confidential and/or proprietary nature
including, without limitation, computer programs, code, algorithms, names
and expertise of employees, and consultants, know-how, formulas, processes,
ideas, inventions (whether patentable or not), schematics and other
technical, business, financial and product development plans, forecasts,
strategies, and information of like nature. NSP agrees to take all
reasonable precautions, but in no event less than due and reasonable care,
to prevent any unauthorized disclosure or use of Confidential Information
including, without limitations disclosing Confidential only to its
employees (a) with a need to know to further permitted uses of such
information hereunder and (b) who are parties appropriate agreements
sufficient to comply with this Section 9, and (c) who are informed of the
nondisclosure/ non-use obligations imposed by this Section 9. The
foregoing restrictions on disclosure and use shall survive for three (3)
years following any termination of this Agreement, but shall not apply
information which through no fault of NSP becomes publicly available.
9.2 Confidentiality of Agreement. Unless required by law, and except to assert
its rights hereunder or for disclosures to its own employees or
distributors on a "need to know" basis, NSP agrees not to disclose the
terms of this Agreement or matters relating hereto without the prior
written consent of Netscape, which consent shall not be unreasonably
withheld.
SECTION 10. WARRANTIES
10.1 Limited Warranty. Subject to the limitations set forth in this Agreement,
Netscape warrants only to NSP that the Navigator when promptly adapted,
installed, and used will substantially conform to the functional
specifications set forth in the Documentation in effect when the Navigator
is shipped to NSP. Netscape's warranty and obligation shall extend for a
period of ninety (90) days ("Warranty Period") from the date that Netscape
first delivers the Navigator to NSP. All warranty claims not made in
writing or not received by Netscape/NAA within the Warranty Period shall be
deemed waived. Netscape's warranty and obligation is solely for the
benefit of NSP, who has no authority to extend this warranty to any other
person or entity. NETSCAPE MAKES NO WARRANTY THAT ALL ERRORS OR FAILURES
WILL BE CORRECTED.
10.2 EXCLUSIVE WARRANTY. THE EXPRESS WARRANTY SET FORTH IN SECTION 10.1
CONSTITUTES THE ONLY WARRANTY MADE BY NETSCAPE. NETSCAPE MAKES NO OTHER
REPRESENTATION, WARRANTY OR CONDITION, OF ANY KIND WHETHER EXPRESS OR
IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE
NAVIGATOR OR DOCUMENTATION. NETSCAPE EXPRESSLY DISCLAIMS ALL WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE. NETSCAPE DOES NOT WARRANT THAT THE NAVIGATOR OR DOCUMENTATION IS
ERROR-FREE OR THAT OPERATION OF THE NAVIGATOR WILL BE SECURE OR
UNINTERRUPTED AND HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT
THEREOF, THE ABOVE LIMITATION SHALL APPLY TO THE EXTENT ALLOWED BY
APPLICABLE LAW.
10.3 Defects Not Covered by Warranties. Netscape shall have no obligations
under the warranty provisions set forth in Section 10.1 if any
nonconformance is caused by: (a) the incorporation, attachment or otherwise
- 10 -
engagement of any attachment, feature, program, or device, other than by
Netscape, to the Navigator, or any part thereof; or (b) accident;
transportation; neglect or misuse; alteration, modification or enhancement
of the Navigator other than by Netscape; failure to provide a suitable
installation environment; use of supplies or materials not meeting
specifications; use of the Navigator for other than the specific purpose
for which the Navigator is designed; use of the Navigator on any systems
other than the specified hardware platform for such Navigator; or NSP's use
of defective media or defective duplication of the Navigator; or NSP's
failure to incorporate any Update previously released by Netscape which
remedies such nonconformance.
10.4 Exclusive Remedy. If NSP finds what it believes to be errors in or a
failure of the Navigator that prevents that Navigator from substantially
conforming to the functional specifications set forth in the Documentation,
and provides Netscape/NAA with a written report thereof during the Warranty
Period, Netscape/NAA will use reasonable efforts to correct promptly, at no
charge to NSP, any such errors or failures. This is NSP's sole and
exclusive remedy, and Netscape's sole obligation, for breach of any express
or implied warranties hereunder.
SECTION 11. INDEMNIFICATION
11.1 Netscape shall defend any action brought against NSP to the extent it is
based on a claim that reproduction or distribution by NSP of the Navigator
furnished hereunder within the scope of a license granted hereunder
directly infringes any valid United States patent as of the Effective
Date, United States copyright, United States trademark or trade secret in
the United States. Netscape will pay resulting costs, damages and legal
fees finally awarded against NSP in such action which are attributable to
such claim provided that NSP (a) promptly (within twenty (20) days)
notifies Netscape in writing of any such claim and Netscape has sole
control of the defense and all related settlement negotiations, and (b)
cooperates with Netscape, at Netscape's expense, in defending or settling
such claim.
11.2 Should a Navigator become, or be likely to become in Netscape's opinion,
the subject of infringement of such copyright, patent, trademark or trade
secret, Netscape/NAA may procure for NSP (i) the right to continue using
same or (ii) replace or modify it to make it non-infringing. In the event
that Netscape shall determine that neither (i) nor (ii) above is
commercially reasonable, Netscape may terminate this Agreement upon thirty
(30) days prior written notice and refund to NSP the balance of any Prepaid
License Fees received by Netscape and not required to be applied against
payments due under this Agreement, if any. Netscape shall have no
liability for any claim based upon: (a) use of other than an unaltered
version of the then current version of the Navigator or the version of the
Navigator in commercial release immediately prior to the last Update of the
Navigator, unless the infringing portion is also in the current, unaltered
release; (b) use, operation or combination of the Navigator with non-
Netscape programs, data, equipment or documentation if such infringement
would have been avoided but for such use, operation or combination; (c)
NSP's or its agent's activities after Netscape/NAA has notified NSP that
Netscape believes such activities may result in such infringement; (d)
compliance with NSP design, specifications or instructions; (e) any
modification or marking of the Navigator not specifically authorized in
writing by Netscape; (f) NSP's use of any trademarks other than the
Netscape trademarks pursuant to Section 7; or (g) third party software.
The foregoing states the entire liability of Netscape/NAA and the exclusive
remedy of NSP with respect to infringement of any intellectual property
rights whether under theory of warranty, indemnity or otherwise.
11.3 General Indemnification by NSP. NSP agrees to indemnify, hold harmless
and, at Netscape's request, defend Netscape/NAA and their suppliers from
and against any and all claims, liabilities, losses, damages, expenses and
costs (including attorney's fees and costs) arising out of, in connection
with or relating to (i) NSP's failure to include in each Distributor
Agreement or End User License Agreement the contractual terms required to
be included therein pursuant to Section 3.2.2 or 3.2.3 or (ii) except to
the extent that Netscape is responsible for a claim under Section 1.11 and
11.2, NSP's or Distributors' use, distribution or reproduction of the
Navigator, Documentation and/or NSP's Product, including, without
limitation, any claims, liabilities, losses, damages, expenses and costs
arising out of, in connection with or relating to defective reproduction of
or the use of defective media in the reproduction of Navigators, breach of
warranty or support obligations or infringement or misappropriation of
Netscape's intellectual property rights.
- 11 -
SECTION 12. LIMITATION OF LIABILITY
IN NO EVENT SHALL NETSCAPE OR ITS SUPPLIERS (INCLUDING NAA) BE LIABLE FOR
ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF
BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
ANY KIND, EVEN IF NETSCAPE/NAA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY, EXCEPT TO THE EXTENT PROVIDED IN SECTION 11, NEITHER NETSCAPE NOR
ITS SUPPLIERS (INCLUDING NAA) SHALL BE LIABLE FOR ANY CLAIM AGAINST NSP BY
ANY END USER OR THIRD PARTY. IN NO EVENT WILL NETSCAPE OR ITS SUPPLIER
(INCLUDING NAA) BE LIABLE FOR (a) ANY REPRESENTATION OR WARRANTY MADE TO
ANY END USER OR OTHER THIRD PARTY BY NSP, ANY DISTRIBUTOR OR ANY OF THEIR
RESPECTIVE AGENTS; (b) FAILURE OF THE NAVIGATOR TO PERFORM EXCEPT AS, AND
TO THE EXTENT, OTHERWISE EXPRESSLY PROVIDED HEREIN; (c) FAILURE OF THE
NAVIGATOR TO PROVIDE SECURITY; (d) ANY USE OF THE NAVIGATOR OR THE
DOCUMENTATION; OR (e) THE RESULTS OR INFORMATION OBTAINED OR DECISIONS MADE
BY END USERS OF THE NAVIGATOR OR THE DOCUMENTATION. THE REMEDIES PROVIDED
IN THIS AGREEMENT ARE NSP'S SOLE AND EXCLUSIVE WARRANTIES. NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NETSCAPE'S (INCLUDING NAA'S)
ENTIRE LIABILITY TO NSP FOR DAMAGES CONCERNING PERFORMANCE OR
NONPERFORMANCE BY NETSCAPE (INCLUDING NAA) OR IN ANY WAY RELATED TO THE
SUBJECT MATTER OF THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR
SUCH DAMAGES IS BASED IN CONTRACT OR IN TORT, SHALL NOT EXCEED THE AMOUNT
RECEIVED BY NETSCAPE (INCLUDING NAA) FROM NSP DURING TWELVE (12) MONTHS
PRIOR TO SUCH CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION
OR EXCLUSION MAY NOT APPLY TO NSP.
SECTION 13. TERM OF AGREEMENT
Unless sooner terminated under the provisions of Section 14, or otherwise
rightfully terminated; (a) this Agreement shall remain in effect until
December 31, 1997; and (b) thereafter, it shall automatically renew for
successive one (1) year terms. After the initial term of this Agreement,
either party may terminate this Agreement for convenience upon at least one
hundred twenty (120) days prior written notice.
SECTION 14. DEFAULT AND TERMINATION
14.1 Termination for Default. If either party defaults in any of its
obligations under this Agreement, the non-defaulting party, at its option
shall have the right to terminate this Agreement by written notice unless
within thirty (30) calendar days after written notice of such default, the
defaulting party remedies the default, or, in the case of a default which
cannot with due diligence be cured within a period of thirty (30) calendar
days, the defaulting party institutes within the thirty (30) calendar days
steps necessary to remedy the default and thereafter diligently prosecutes
the same to completion. This Agreement may be terminated immediately by
Netscape or NAA in the event of any breach of Sections 2.1 or 9 hereof.
14.2 Bankruptcy. Either party shall have the right to terminate this Agreement
if the other party ceases to do business in the normal course, becomes or
is declared insolvent or bankrupt, is the subject of any proceeding
relating to its liquidation or insolvency which is not dismissed within
ninety (90) calendar days, or makes an assignment for the benefit of its
creditors.
14.3 Effect on Rights
14.3.1 Termination of this Agreement by either party shall not act as a
waiver of any breach of this Agreement and shall not act as a
release of either party from any liability for breach of such
party's obligations under this Agreement.
- 12 -
14.3.2 Except as specified in Sections 14.4 and 14.5 below, upon
termination or expiration of this Agreement, all licenses for the
Navigator and Documentation granted under this Agreement shall
terminate; provided, however, that for a period of one hundred
eighty (180) days from termination of this Agreement following
notice of termination by Netscape pursuant to Section 13, NSP
shall be entitled to distribute, pursuant to the terms of this
Agreement, any copies of the Navigator reproduced on tangible
media by NSP or its Distributors as of the date Netscape provided
notice of termination to NSP.
14.3.3 Except where otherwise specified, the rights and remedies granted
to a party under this Agreement are cumulative and in addition
to, and not in lieu of, any other rights or remedies which the
party may possess at law or in equity, including without
limitation rights or remedies under applicable patent, copyright,
trade secrets, or proprietary rights laws, rules or regulations.
14.4 Return or Destruction of Navigator. Within thirty (30) calendar days
after termination of this Agreement, NSP shall either deliver to
Netscape/NAA or destroy all copies of the Navigator and Documentation
(except as provided in Section 14.5) and any other materials provided by
Netscape/NAA to NSP hereunder in its possession or under its control, and
shall furnish to Netscape/NAA an affidavit signed by an officer of NSP
certifying that, to the best of its knowledge, such delivery or
destruction has been fully effected. For purposes of this Section 14.4,
copies of the Navigator, Documentation and other materials in the
possession or under the control of a Distributor shall be deemed to be
under the control of NSP. Notwithstanding the foregoing, in the event
that this Agreement is terminated for any reason other than by Netscape
pursuant to Section 14.1 and provided NSP fulfills its obligations
specified in this Agreement with respect to such items, NSP may continue
to use and retain copies of the Navigator and Documentation to the
extent, but only to the extent, necessary to support Navigators
rightfully distributed to End Users by NSP, directly or indirectly
through Distributors, prior to termination of this Agreement.
14.5 Continuing Obligations
14.5.1 Payment of Accrued Fees. Within thirty (30) calendar days of
termination of this Agreement, NSP shall pay to Netscape/NAA all
sums then due and owing. Any other such sums shall subsequently
be promptly paid as they become due and owing.
14.5.2 Continuance of Sublicenses. Notwithstanding the termination of
this Agreement, all Registered User sublicenses which have been
properly granted by NSP or any Distributor pursuant to this
Agreement prior to its termination shall survive.
14.5.3 Other Continuing Obligations. Any termination of this Agreement
will be without prejudice to any other rights or remedies of the
parties under this Agreement or at law or in equity and will not
affect any accrued rights or liabilities of either party at the
date of termination, and the following sections of this Agreement
shall survive any expiration or termination of this Agreement:
Sections 2.1.3, 3.3, 4, 8, 9, 10.2, 10.3, 10.4, 11, 12, 14 and
15.
SECTION 15. GENERAL PROVISIONS
15.1 Notices. Any notice, request, demand, or other communication required or
permitted hereunder shall be in writing and shall be deemed to be
properly given upon the earlier of (a) actual receipt by the addressee or
(b) five (5) business days after deposit in the mail, postage prepaid,
when mailed by registered or certified airmail, return receipt requested,
or two (2) business days after being sent via private industry courier to
the respective parties at the addresses set forth in the Cover Sheet or
to such other person or address as the parties may from time to time
designate in a writing delivered pursuant to this Section 15.1. Notices
to Netscape shall be to the attention of: Legal Department.
15.2 Waiver and Amendment. The waiver by either party of a breach of or a
default under any provision of this Agreement, shall not be construed as
a waiver of any subsequent breach of the same or any other provision of
the Agreement, nor shall any delay or omission on the part of either
party to exercise or avail itself of any right or remedy that it has or
may have hereunder operate as a waiver of any right or remedy. No
amendment or modification of any provision of this Agreement shall be
effective unless in writing and signed by a duly authorized signatory of
Netscape and NSP.
- 13 -
15.3 Assignment. This Agreement and the licenses granted hereunder are to a
specific legal entity or legal person, not including corporate
subsidiaries or affiliates of NSP, and are not assignable by NSP (except
to a Delaware corporation into which NSP is merged for the purpose of
reincorporating NSP in the state of Delaware), nor are the obligations
imposed on NSP delegable. Any attempt to sublicense (except as expressly
permitted herein) assign or transfer any of the rights, duties or
obligations under this Agreement in derogation hereof shall be null and
void.
15.4 Governing Law. This Agreement is entered into in the State of
California, U.S.A., and shall be governed by and construed in accordance
with the laws of the State of California, U.S.A., without reference to
its conflicts of law provisions. Any dispute regarding this Agreement
shall be subject to the exclusive jurisdiction of the California state
courts in and for Santa Clara County, California, U.S.A. (or, if there is
exclusive federal jurisdiction, the United States District Court for the
Northern District of California), and the parties agree to submit to the
personal and exclusive jurisdiction and venue of these courts. This
Agreement will not be governed by the United Nations Convention of
Contracts for the International Sale of Goods, the application of which
is hereby expressly excluded.
15.5 Relationship of the Parties. No agency, partnership, joint venture, or
employment is created as a result of this Agreement and neither NSP nor
its agents have any authority of any kind to bind Netscape or NAA in any
respect whatsoever. Notwithstanding NAA's designation, however, NSP
acknowledges that NAA is not authorized to bind Netscape or waive any
conditions of this Agreement without Netscape's express written consent.
15.6 Captions and Section Heading. The captions and section and paragraph
headings used in this Agreement are inserted for convenience only and
shall not affect the meaning or interpretation of this Agreement.
15.7 Severability. If the application of any provision or provisions of this
Agreement to any particular facts of circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then (a)
the validity and enforceability of such provision or provisions as
applied to any other particular facts or circumstances and the validity
of other provisions of this Agreement shall not in any way be affected or
impaired thereby and (b) such provision or provisions shall be reformed
without further action by the parties hereto to and only to the extent
necessary to make such provision or provisions valid and enforceable when
applied to such particular facts and circumstances.
15.8 Force Majeure. Either party shall be excused from any delay or failure
in performance hereunder, except the payment of monies by NSP to
Netscape/NAA, caused by reason of any occurrence or contingency beyond
its reasonable control, including but not limited to, acts of God,
earthquake, labor disputes and strikes, riots, war, novelty of product
manufacture or other unanticipated product development problems, and
governmental requirements. The obligations and rights of the party so
excused shall be extended on a day-to-day basis for the period of time
equal to that of the underlying cause of the delay.
15.9 Entire Agreement. This Agreement, including the Attachments hereto and
any Nondisclosure Agreement referenced on the Cover Sheet, constitutes
the entire agreement between the parties concerning the subject matter
hereof and supersedes all proposals or prior agreements whether oral or
written, and all communications between the parties relating to the
subject matter of this Agreement and all past courses of dealing or
industry custom. The terms and conditions of this Agreement shall
prevail, notwithstanding any variance with any purchase order or other
written instrument submitted by NSP, whether formally rejected by
Netscape/NAA.
15.10 English. This Agreement is in the English language only, which language
shall be controlling in all respects, and all versions hereof in any
other language shall not be binding on the parties hereto. All
communications and notices to be made or given pursuant to this Agreement
shall be in the English language.
15.11 France. If the Territory includes France, NSP acknowledges that under
French law as of the Effective Date, the importation, distribution and/or
use in France of certain Netscape products may not be permitted, and NSP
is not relying upon any such importation, distribution or use in entering
into this Agreement or in fulfillment of its obligations herein.
-14-
15.12 Customer Reference. NSP agrees that Netscape shall have the right to use
NSP's name as a customer reference provided that any Netscape press
release concerning NSP other than as a customer reference shall be
reviewed by NSP prior to its release.
AUTHORIZED SIGNATURES In order to bind the parties to this Agreement, their
duly authorized representatives have executed the Cover Sheet to this Agreement.
SHIP TO ADDRESS FOR DELIVERABLES: BILL TO ADDRESS
___________________________________ ___________________________________
___________________________________ ___________________________________
___________________________________ ___________________________________
Attention:_________________________ Attention:_________________________
Telephone:_________________________ Telephone:_________________________
Fax:_______________________________
Netscape or NAA Sales Rep: Gail Kulick
---------------
Telephone No.: 415.937.4478
---------------
-15-
ATTACHMENT A
BY CLICKING ON THE "ACCEPT BUTTON, USING THE INTERNET OR CORPORATE ("INTRANET")
ACCESS OFFERED BY LICENSOR, OR OPENING THE PACKAGE, YOU ARE CONSENTING TO BE
BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS
AGREEMENT, CLICK THE "DO NOT ACCEPT" BUTTON AND THE INSTALLATION PROCESS WILL
NOT CONTINUE. DO NOT USE THE INTERNET OR INTRANET ACCESS OFFERED BY LICENSOR,
OR RETURN THE PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED FOR USE ONLY (I) WITH THE INTERNET
ACCESS OR INTRANET ACCESS SERVICE INITIALLY OFFERED BY LICENSOR IN CONJUNCTION
WITH THE DISTRIBUTION OF THE SOFTWARE AND DOCUMENTATION AND (II) IN ACCORDANCE
WITH THE TERMS OF THIS AGREEMENT. NO RIGHT OR LICENSE IS GRANTED TO USE THE
SOFTWARE OR DOCUMENTATION WITH ANY OTHER INTERNET OR INTRANET ACCESS.
END USER LICENSE AGREEMENT
REDISTRIBUTION NOT PERMITTED
GRANT. _______________________("Licensor") hereby grants to you a non-exclusive
license to use its accompanying software product ("Software") and accompanying
documentation ("Documentation") on the following terms:
You may:
* use the Software only with the Internet service initially offered by
Licensor in conjunction with the distribution of the Software and
Documentation ("Licensor's Internet Services") which it is bundled;
* use the Software on my single computer;
* use the Software on a second computer so long as the first and second
computers are not used simultaneously; or
* copy the Software for archival purposes, provided any copy must
contain all of the original Software's proprietary notices.
You may not:
* use the Software or Documentation in conjunction with any Internet
access or other network service, other than Licensor's Internet
Services;
* permit other individuals to use the Software except under the terms
listed above; modify translate, reverse engineer, decompile,
disassemble (except to the extent applicable laws specifically
prohibit such restriction), or create derivative works based on the
Software or Documentation;
* copy the Software or Documentation (except for back-up purposes);
* rent, lease, transfer or otherwise transfer rights to the Software
or Documentation; or
* remove any proprietary notices or labels on the Software or
Documentation.
SOFTWARE. If you receive your first copy of the Software electronically, and a
second copy on media, the second copy may be used for archival purposes only.
This license does not grant you any right to any enhancement or update.
TITLE. Title, ownership rights, and intellectual property rights in and to the
Software and Documentation shall remain in Licensor and/or its suppliers. The
Software is protected by the copyright laws of the United States and
International copyright treaties. Title, ownership rights, and intellectual
property rights in and to the content accessed through the Software is the
property of the applicable content owner and may be protected by applicable
copyright or other law. This License gives you no rights to such content.
LIMITED WARRANTY. Licensor warrants that for a period of ninety (90) days from
the date of acquisition, the Software, if operated as directed, will
substantially achieve the functionality described in the Documentation.
Licensor does not Warrant, however, that your use of the Software will be
uninterrupted or that the operation of the Software will be error-free or secure
and hereby disclaims any and all liability on account thereof. In addition, the
security mechanism implemented by the Software has inherent limitations, and you
must determine that the Software sufficiently meets your requirements. Licensor
also warrants that the media containing the Software, if provided by
Licensor, is free from defects in material and workmanship and will so remain
for ninety (90) days from the date you acquired the Software. Licensor's sole
liability for any breach of this warranty shall be, in Licensor's sole
discretion: (i) to replace your defective media; or (ii) to advise you how to
achieve substantially the
-16-
same functionality with the Software as described in the Documentation
through a procedure different from that set forth in the Documentation; or
(iii) if the above remedies are impracticable, to refund the license fee you
paid for the Software. Repaired, corrected, or replaced Software and
Documentation shall be covered by this limited warranty for the period
remaining under the warranty that covered the original Software, or if
longer, for thirty (30) days after the date (a) of shipment to you of the
repaired or replaced Software, or (b) Licensor advised you how to operate the
Software so as to achieve the functionality described in the Documentation.
Only if you inform Licensor of your problem with the Software during the
applicable warranty period and provide evidence of the date you acquired the
Software will Licensor be obligated to honor this warranty. Licensor will use
reasonable commercial efforts to repair, replace, advise or refund pursuant
to the foregoing warranty within 30 days of being so notified.
THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY OR CONDITION MADE BY
LICENSOR. LICENSOR MAKES NO OTHER EXPRESS WARRANTY OR CONDITION AND THERE IS
NO WARRANTY OR CONDITION OF NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. THE
DURATION OF IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION,
WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR
PURPOSE, IS LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD; SOME STATES DO NOT
ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO LIMITATIONS MAY
NOT APPLY TO YOU. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO
MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. NO
WARRANTY IS MADE BY OR ON BEHALF OF ANY SUPPLIER OF LICENSOR. If any
modifications are made to the Software by you during the warranty period; if
the media is subjected to accident, abuse, or improper use; or if you violate
the terms of this Agreement, then this warranty shall immediately be
terminated. This warranty shall not apply if the Software is used on or in
conjunction with hardware or Software other than the unmodified version of
hardware and Software with which the Software was designed to be used as
described in the Documentation.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL
RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY,
TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE
LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY
AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF
LICENSOR'S LIST PRICE FOR A LICENSE TO THE SOFTWARE AND DOCUMENTATION, EVEN
IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR
FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT
APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW
PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
TERMINATION. This license will terminate automatically if you fail to comply
with the limitations described above. On termination, you must destroy all
copies of the Software and Documentation.
EXPORT CONTROLS. None of the Software or underlying information or technology
may be downloaded or otherwise exported or reexported (i) into (or to a
national or resident of) Cuba, Iraq, Libya, North Korea, Yugoslavia, Iran,
Syria or any other country to which the U.S. has embargoed goods; or (ii) to
anyone on the U.S. treasury Department's list of Specially Designated
Nationals or the U.S. Commerce Department's Table of Denial Orders. By
downloading or using the Software, you are agreeing to the foregoing and you
are representing and warranting that you are not located in, under the
control of, or a national or resident of any such country or on any such list.
In addition, if the licensed Software is identified as a not-for-export
product (for example, on the box, media or in the installation process), then
the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY
CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING TECHNOLOGY MAY NOT BE
EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN
PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT
LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT
RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE
AGREEING TO THE FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A "FOREIGN
PERSON" OR UNDER THE CONTROL OF A FOREIGN PERSON.
-17-
MISCELLANEOUS. This Agreement represents the complete agreement concerning
this license between the parties and supersedes all prior agreements and
representations between them. It may be amended only by a writing executed by
both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY
MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE
CONTAINED IN YOUR PURCHASE ORDER. If any provision of this Agreement is held
to be unenforceable for any reason, such provision shall be reformed only to
the extent necessary to make it enforceable. This Agreement shall be governed
by and construed under California law as such law applies to agreements
between California residents entered into and to be performed within
California, except as governed by Federal law. The application of the United
Nations Convention of Contracts for the International Sale of Goods is
expressly excluded.
Third Party Beneficiary. Licensor and you each agree that Netscape
Communications Corporation shall, as an intended third party beneficiary of
this Agreement, have the right to rely upon and directly enforce the terms
set forth herein.
U.S. GOVERNMENT RESTRICTED RIGHTS: Use, duplication or disclosure by the
Government is subject to restrictions set forth in subparagraphs (a) through
(d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when
applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013, or at 252.211-7015, and in
similar clauses in the NASA FAR Supplement. Contractor/manufacturer is
Netscape Communications Corporation, 501 East Middlefield Road, Mountain
View, CA 94043.
-18-
ATTACHMENT B
QUARTERLY POINT OF SALE REPORT
Network Service Provider Name and address: EarthLink Network, Inc.
3100 New York Drive, Suite 201
Pasadena, California 91107
POS Report Contact Name: _______________________________
POS Report Contact Phone: _______________________________
POS Report Contact e:mail _______________________________
Report for (check one):
_____December through February (due March 10)
_____March through May (due June 10)
_____June through August (due September 10)
_____September through November (due December 10)
Number of
Navigators
Number of Initially used
New Registered internally by
Month/Year Navigator Product Price/Unit Users/Month NSP/Month
---------- ----------------- ---------- -------------- --------------
[First Month] _________________ ___________ ______________ ______________
[Second Month] _________________ ___________ ______________ ______________
[Third Month] _________________ ___________ ______________ ______________
NEW REGISTERED USERS DURING THREE MONTH PERIOD OF THIS REPORT
-------------------------------------------------------------
Name Address Navigator Product
---- ------- -----------------
-19-
ATTACHMENT C
NAVIGATOR PRICING AND CUSTOMIZATION
1. PRICING
License Fee Per Copy
--------------------
Netscape Navigator Dial-Up Kit $*******
(Windows 95/NT and Macintosh
platforms)
Netscape Navigator Gold
(Windows 95/NT and Macintosh $*******
platforms)
2. CUSTOMIZATION. In consideration of a fee of $2,000 due and payable on the
Effective Date, Netscape will provide to NSP (i) a beta version of the
Enterprise Kit within thirty (30) days of receipt of the fee and (ii) upon
its general commercial release, the commercially released version of the
Enterprise Kit, both of which are to be used by NSP or a Distributor approved
in advance by Netscape, whose approval will not be unreasonably withheld, for
customization of the Netscape Dial Up Kit to be distributed by NSP or a
Distributor, as applicable. NSP and its Distributors will be responsible for
all necessary customization of the Netscape Dial Up Kit.
* THE TEXT NOTED BY ASTERISKS HAS BEEN REDACTED IN CONNECTION
WITH A REQUEST TO THE SECURITIES AND EXCHANGE COMMISSION FOR
CONFIDENTIAL TREATMENT OF SUCH TEXT.
-20-
ATTACHMENT D
TECHNICAL SUPPORT
TECHNICAL SUPPORT. In consideration of the License Fee set forth in
Attachment C, Netscape will provide NSP, during the period for which support
fees have been paid to Netscape, with Netscape's back-end technical support
services, as further described herein.
BACK-END SUPPORT. Netscape will provide back-end support to NSP for
Program Errors not resolved by NSP pursuant to NSP's support policies and in
accordance with the provisions below. This support includes efforts to
identify defective source code and to provide corrections, workarounds and/or
patches to correct Program Errors. Netscape will provide NSP with a telephone
number and an e-mail address which NSP may use to report Program Errors
during Netscape's local California business hours (5am - 5pm Pacific Standard
Time). For priority 1 or 2 failures, NSP agrees to notify Netscape via both
telephone and e-mail. NSP will identify one (1) member of its customer
support staff and an alternate to act as the primary technical liaisons
responsible for all communications with Netscape's technical support
representatives. Such liaisons will have sufficient technical expertise,
training and/or experience for NSP to perform its obligations hereunder.
Within one (1) week after the Effective Date, NSP will designate its
liaison(s). Notification will be in writing and/or e-mail to Netscape. NSP
may substitute contacts at any time by providing to Netscape one (1) week's
prior written and/or electronic notice thereof.
Netscape will make reasonable efforts to correct significant Program
Errors that NSP identifies, classifies and reports to Netscape and that
Netscape substantiates. Netscape may reclassify Program Errors if it
reasonably believes that NSP's classification is incorrect, NSP will provide
sufficient information to enable Netscape to duplicate the Program Error
before Netscape's response obligations will commence. Netscape will not be
required to correct any Program Error caused by (a) NSP's incorporation or
attachment of a feature, program, or device, other than by Netscape, to the
Navigator, or any part thereof: (b) accident, transportation, neglect,
misuse, alteration, modification, or enhancement of the Navigator other than
by Netscape; (c) the failure to provide a suitable installation environment;
(d) use of the Navigator for other than the specific purpose for which
the Navigator are designed; (e) use of the Navigator on any systems other
than the specified hardware platform for such Navigator; (f) NSP's use of
defective media (other than defective media provided by Netscape to NSP) or
defective duplication of the Navigator; or (g) NSP's failure to incorporate
any Minor Update previously released by Netscape which corrects such Program
Error.
Provided Program Error reports are received by Netscape during
Netscape's local California business hours (5am - 5pm Pacific Standard Time),
Netscape will use its best commercial efforts to communicate with NSP about
the Program Error via telephone or e-mail within the following targeted
response times:
- -------------------------------------------------------------------------------------------------
Priority Failure Description Response Time
- -------------------------------------------------------------------------------------------------
1. Fatal (no useful work can be done) 10 working hours
- -------------------------------------------------------------------------------------------------
2. Severe Impact (functionally disable): errors 1 working day
which result in a lack of application functionality
or cause intermittent system failure
- -------------------------------------------------------------------------------------------------
3. Degraded Operations: errors causing malfunction 3 working days
of non-critical functions
- -------------------------------------------------------------------------------------------------
4. Minimal Impact: attributes and/or options to Future release, on business
utility programs do not operate as stated justifiable basis
- -------------------------------------------------------------------------------------------------
5. Enhancement Request When applicable
- -------------------------------------------------------------------------------------------------
Netscape will use reasonable commercial efforts to resolve each
significant Program Error by providing either a reasonable workaround, an
object code patch, or a specific action plan for how Netscape will address
the problem and an estimate of how long it will take to rectify the defect.
Netscape reserves the right to charge NSP additional fees at its then-standard
rates for services performed in connection with reported Program Errors which
are later determined to have been due to hardware or software not supplied by
Netscape. Notwithstanding the foregoing, Netscape has no obligation to
perform services in connection with (i) Program Errors resulting from
hardware or software not supplied by Netscape; or (ii) which occur in the
Netscape Product release which is not the then-current release or the
commercial release existing immediately before the most recent Update.
-21-
Internet Service Provider Navigator Distribution Agreement - Netscape Communications Corp. and Earthlink Inc.
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