NETSCAPE COMMUNICATIONS CORPORATION
AND
CONCENTRIC RESEARCH CORPORATION
OEM LICENSE AGREEMENT
NO. ________________
This OEM License Agreement ("Agreement") is entered into on this 27th day of
July, 1995 ("Effective Date") by and between Netscape Communications
Corporation, a Delaware corporation ("Netscape"), with principal offices at 501
East Middlefield Road, Mountain View, CA 94043 and Concentric Research
Corporation, a Florida corporation ("Concentric"), with principal offices at
400 Forty-First Street, Bay City, MI 48708.
WHEREAS, Concentric markets and provides data communications and interactive on-
line products and services including Internet access services.
WHEREAS, Netscape has proprietary or remarketing rights to certain computer
software products.
WHEREAS, Netscape wishes to grant to Concentric and Concentric desires to obtain
certain license rights to such computer software products more particularly
described below in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following terms and conditions, which set forth the rights,
duties, and obligations of the parties.
SECTION 1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following
meanings:
1.1 "Attachment(s)" means the attachments to this Agreement which are attached
hereto and incorporated herein:
1.1.1 Attachment A (Description of Netscape Products) which sets forth a
description of each Netscape Product licensed hereunder.
1.1.2 Attachment B (Pricing, Payment Schedules and Deliverables) which
sets forth pricing for Concentric, payment schedules, and specific
items to be delivered to Concentric.
1.1.3 Attachment C (Netscape's Trademarks) which sets forth the trademarks
over which Netscape claims ownership.
1.1.4 Attachment D (Netscape's End User License Agreements) which sets
forth Netscape's terms and conditions of licensing applicable to an
end user customer.
1.1.5 Attachment E (OEM Maintenance and Support) which sets forth
Netscape's and Concentric's maintenance and support obligations.
1.1.6 Attachment F (Concentric Products(s)) which sets forth a description
of Concentric Products which will be bundled with the Netscape
Products.
1.2 "Derivative Work(s)" means a revision, modification, translation,
abridgment, condensation or expansion of a Netscape Product or
Documentation or any form in which a Netscape Product or Documentation may
be recast, transferred, or adapted, which, if prepared without the consent
of Netscape, would be a copyright infringement.
1.3 "Distributor" means any third party which acquires possession of the
Netscape Products from Concentric without becoming a Netscape Product End
User and distributes such media, Netscape's end user license agreement, and
Concentric Product to an End User.
1.4 "Documentation" means those software user manuals, reference manuals and
installation guides, or portions thereof, which are distributed in
conjunction with the Netscape Products set forth in Attachment A.
1.5 "End User" means any third party licensed by Concentric or a Distributor to
use, but not to further distribute, the Netscape Products.
1.6 "Major and Minor Updates" mean updates, if any, to the Netscape Products.
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 such 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 or Minor Updates interchangeably.
1.7 "Netscape Product(s)" means the executable version (but not the source code
version) of the computer software products listed or described in
Attachment A as Netscape may update and provide hereunder from time to
time.
1.8 "Program Errors" means one or more reproducible deviations in the Netscape
Products from the applicable specifications shown in the Documentation.
1.9 "Concentric Product(s)" means Concentric's bulletin board and related
Internet access service products developed and marketed by Concentric, as
described in Attachment F, with which the Netscape Products are bundled for
distribution.
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 and Concentric hereby accepts, a
nonexclusive, nontransferable license to (i) use and reproduce,
without change, the Netscape Products (in executable form only)
on any tangible media and (ii) distribute by sublicense such
Netscape Product copies to Distributors and End Users only in
conjunction with a Concentric Product.
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Concentric is expressly prohibited from any retail distribution
of the Netscape Products and shall not permit or authorize anyone
else to do so. Concentric is also expressly prohibited from any
marketing and/or distribution directly or indirectly (e.g.
through Distributors) of Netscape Products unless each copy is
bundled with a Concentric Product. Such reproduction shall occur
only at the location of Concentric's principal office first set
forth above unless an alternate location is otherwise specified
in writing to Netscape. Concentric may grant Distributors the
right to grant further sublicenses to distribute copies of the
Netscape Products to other Distributors regardless of tier and
Concentric and all Distributors shall have the right to
distribute the Netscape Products to End Users. Subject to the
terms and conditions of this Agreement, Netscape hereby grants
and Concentric hereby accepts a nonexclusive, nontransferable
license to use the Milan Customer Registration Process 1.1
document solely in conjunction with the Netscape Products to
register End Users for Concentric Products. Concentric shall not
disclose, provide, or otherwise make available said document to
any third party.
2.1.2 Source Code Restrictions. Concentric agrees not to decompile,
reverse engineer, disassemble, or otherwise determine or attempt
to determine source code for the executable code of the Netscape
Products or to create any Derivative Works based upon the
Netscape Products or Documentation, and agrees not to permit or
authorize anyone else to do so.
2.1.3 Documentation License. Subject to the terms and conditions of
this Agreement, Netscape hereby grants and Concentric hereby
accepts a nonexclusive, nontransferable license to use and
reproduce the Documentation, and to distribute the Documentation
solely in conjunction with the Netscape Products. Such
reproductions shall occur only at Concentric's principal office
first set forth above, unless an alternate location is otherwise
specified in writing to Netscape. Such distribution may be to
Distributors and End Users.
2.1.4 Licenses Dependent on No Retail Distribution and Bundling. The
licenses granted in Paragraph 2.1.1 are conditional upon no
retail distribution of, and the marketing and bundling of, each
Netscape Product as required therein. If Concentric distributes
through the retail channel, or fails to so bundle the Netscape
Products, the licenses shall be immediately revocable by Netscape
in addition to any other remedies Netscape may have.
2.2 Export
Concentric 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 Concentric
acknowledges that by virtue of certain security technology embedded in the
Netscape Products, that export of such software may not be legal. Netscape
agrees to cooperate in providing information requested by Concentric as
necessary to obtain any required licenses and approvals. When distributing
the Netscape Products and Documentation in countries where an enforceable
copyright law covering the same does not
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exist, Concentric or its Distributors shall obtain a written agreement
signed by the customer prohibiting the customer from making unauthorized
copies of the same.
SECTION 3. MARKETING AND DISTRIBUTION
3.1 Nonexclusivity
Concentric understands that Netscape may enter into arrangements similar
to this Agreement with third parties.
3.2 Public Announcements and Promotional Materials
Netscape and Concentric shall cooperate with each other so that each
party may issue a press release concerning this Agreement, provided that
each party must approve any press release prior to its release. Netscape
shall cooperate with Concentric in its development of the initial
marketing and sales materials used to promote the distribution of the
Netscape Products.
3.3 Terms Relating to Distribution
3.3.1 General Restrictions on Distribution
Concentric agrees to comply with and shall require its
Distributors 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
Netscape Product to a governmental agency, and ensure the
inclusion of the appropriate "Restricted Rights" or "Limited
Rights" notices required by the U.S. Government agencies.
3.3.2 Distributor License Agreement
Concentric shall procure from each Distributor an executed copy
of a distribution license ("Distributor License Agreement")
sufficient to ensure that such Distributors are required to
comply with the relevant terms of this Agreement.
3.3.3 End User License Agreements
Concentric and its Distributors shall distribute the Netscape
Products to End Users only under the terms of, and shall ensure
that the Netscape Products are subject to applicable end user
license agreements with terms at least as restrictive as those
set forth in the end user license agreements attached hereto as
Attachment D ("End User License Agreements").
3.3.4 Enforcement of Sublicense Agreements
Concentric and its Distributors shall use commercially reasonable efforts
to enforce each Distributor License Agreement and End User License
Agreement, whichever may be relevant, 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.
Concentric shall use commercially reasonable efforts to protect
Netscape's copyright, shall notify Netscape of any breach of a material
obligation under a Distributor License Agreement or an End User License
Agreement affecting Netscape Products, and will cooperate with Netscape
in any legal action to prevent or stop unauthorized use, reproduction or
distribution of Netscape Products.
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SECTION 4. FEES AND PAYMENT
4.1 Prepaid License Fees
4.1.1 Concentric shall pay to Netscape the non-refundable royalty
license fees ("License Fees") specified in Attachment B hereto.
In addition, upon exhaustion of the License Fees, Concentric
shall pay to Netscape the royalties per license granted by
Concentric and Distributors to End Users as specified in
Attachment B in connection with the distribution of all or any
portion of a Netscape Product or Update. The License Fees shall
be credited against the royalties accruing under this Agreement
in accordance with Attachment B hereto. Licenses will accrue in
the applicable corresponding quantity upon: (a) the initial date
of Concentric's internal use; (b) distribution by Concentric of a
Netscape Product copy to a Distributor or End User; (c)
authorization by Concentric to increase the authorized number of
copies and (d) the initial date of Concentric's internal use or
shipment by Concentric to an End User or Distributor of an
Update. Concentric shall pay Netscape such royalties accrued
during each month within thirty (30) days following the end of
such month and each such payment shall be accompanied by a
monthly royalty report as described in Paragraph 4.3 below.
4.1.2 Service Fees. Concentric shall pay to Netscape the service fees
set forth on Attachment B for maintenance and support services
set forth in Attachment E hereto.
4.2 Payment and Taxes
4.2.1 Payments. All payments shall be made in United States dollars at
Netscape's address as indicated in this Agreement or at such
other address as Netscape may from time to time indicate by
proper notice hereunder.
4.2.2 Taxes. All fees and royalties are exclusive of all taxes, duties
or levies, however designated or computed. Concentric shall be
responsible for and pay all taxes based upon the transfer, use,
distribution of Netscape Products, or the 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 net income.
In lieu thereof, Concentric shall provide to Netscape a tax or
other levy exemption certificate acceptable to the taxing or
other levying authority.
4.3 Monthly Reports
Concentric and its Distributors shall maintain accurate records of End
Users, including the name and address of each End User, the specific
platforms distributed to each End User, and any further information as
Netscape may from time to time reasonably request to be maintained.
Concentric shall report to Netscape within Thirty (30) calendar days after
the end of each month, the type and number of licenses granted for the
Netscape Products during such prior month by Concentric to Distributors and
End Users.
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4.4 Audit of Records
Concentric shall keep and maintain full, true, and accurate records
containing all data reasonably required for verification of amounts to be
paid, and the quantity of Netscape Products distributed. Netscape shall
have the right, during normal business hours upon at least five (5)
business days prior notice, to have a nationally recognized independent
auditor audit and analyze the relevant records of Concentric to verify
compliance with the provisions of this Agreement. The audit shall be
conducted not more than twice every twelve (12) months at Netscape's
expense unless there is inadequate record keeping or the results of such
audit establish that inaccuracies in the monthly royalty reports have
resulted in underpayment of royalties to Netscape more than five percent
(5%) of the amount actually due in any month, in which case Concentric
shall bear the expenses of the audit.
SECTION 5. DELIVERABLES, UPDATES, AND TECHNICAL SUPPORT
5.1 Deliverables
Netscape shall provide Concentric with the deliverables indicated in
Attachment B ("Deliverables"). All deliveries under this Agreement shall be
F.O.B. Netscape.
5.2 Updates and Technical Support
Netscape shall provide Concentric with Updates as they become available
from Netscape at the pricing, terms and conditions specified in Attachment
B.
SECTION 6. TRADEMARKS AND TRADE NAMES
6.1 License to Use
Whenever Concentric makes reference to the Netscape Products or the
functionality of the Netscape Products provided within the Concentric
Product, then Concentric shall use (and is hereby granted a non-
transferable, non-exclusive restricted license to use) those Netscape
trademarks and trade names relating to the applicable Netscape Products in
any advertising, marketing, technical or other materials related to such
Netscape Products which are distributed by Concentric or its Distributors
in connection with this Agreement. Concentric need not use Netscape's
trademarks and trade names in any country in which their connotation is
offensive and 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. Concentric shall
clearly indicate Netscape's ownership of such trademarks or trade names
specified in Netscape's trademark and trade name listing indicated in
Attachment C. All such usage shall inure to Netscape's benefit. Concentric
agrees not to register, and agrees to obtain the agreement of its
Distributors not to register, any Netscape trademarks or trade names
without Netscape's express prior written consent. Upon Netscape's request
from time to time Concentric agrees to provide Netscape with copies of
goods bearing Netscape's trademarks and trade names so that Netscape can
verify their adequate quality. Concentric shall suspend use of Netscape
trademarks and trade names if such quality is reasonably deemed inferior by
Netscape until Concentric has taken such
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steps as Netscape may reasonably require to solve the quality deficiencies.
A list of Netscape's current trademark registrations and pending
applications is indicated in Attachment C. Netscape reserves the right to
update Attachment C from time to time in accordance with the notice
requirements under this Agreement.
SECTION 7. PROPRIETARY RIGHTS
7.1 Proprietary Rights
Title to and ownership of all copies of the Netscape Products 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 its suppliers. Concentric shall not take any action to
jeopardize, limit or interfere in any manner with Netscape's ownership of
and rights with respect to the Netscape Products and Documentation.
Concentric shall have only those rights in or to the Netscape Products and
Documentation granted to it pursuant to this Agreement.
7.2 Proprietary Notices
7.2.1 No Alteration of Notices. Concentric and its employees and agents
shall not remove or alter any trademark, trade name, copyright,
or other proprietary notices, legends, symbols, or labels
appearing on or in copies of the Netscape Products and
Documentation delivered to Concentric by Netscape and shall use
the same notices, legends, symbols, or labels in and on copies of
Netscape Products and Documentation made pursuant to Section 2.1
as are contained in and on such Netscape Products and
Documentation.
7.2.2 Notice. Each portion of the Netscape Products and Documentation
reproduced by Concentric shall include the intellectual property
notice or notices appearing in or on the corresponding portion of
such materials as delivered by Netscape hereunder. Concentric
shall ensure that all copies of the Netscape Products made
pursuant to this Agreement conspicuously display the following
notice:
Copyright (C)1994 (or other appropriate year(s)), Netscape
Communications Corporation. All Rights Reserved.
If Concentric is unsure of the appropriate year(s), it shall consult
Netscape to obtain the correct designation. Such notice shall be on labels
on all media containing Netscape Products. If the copyright symbol "(C)"
cannot technically be reproduced, Concentric shall use the word "Copyright"
followed by the notation "(c)" in its place.
SECTION 8. CONFIDENTIAL INFORMATION AND DISCLOSURE
8.1 Confidential Information
Each party agrees to maintain all Confidential Information in confidence to
the same extent that it protects its own similar Confidential Information
and to use such Confidential Information only as permitted under this
Agreement. For purposes of this Agreement
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"Confidential Information" shall mean information 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 marked "Confidential" or if disclosed verbally, reduced to
writing and marked "Confidential" within thirty (30) days after the date of
disclosure. Each party agrees to take all reasonable precautions to prevent
any unauthorized disclosure or use of Confidential Information including,
without limitations disclosing Confidential Information only to its
employees (a) with a need to know to further permitted uses of such
information and (b) who are parties to appropriate agreements sufficient to
comply with this Section 8, and (c) who are informed of the nondisclosure/
non-use obligations imposed by this Section 8 and both parties shall take
appropriate steps to implement and enforce such non-disclosure/non-use
obligations. The foregoing restrictions on disclosure and use shall survive
for Three (3) years following termination of this Agreement but shall not
apply with respect to any Confidential Information which (i) was or becomes
publicly known through no fault of the receiving party; (ii) was rightfully
known or becomes rightfully known to the receiving party without
confidential or proprietary restriction from a source other than the
disclosing party; (iii) is independently developed by the receiving party
without the participation of individuals who have had access to the
Confidential Information; (iv) is approved by the disclosing party for
disclosure without restriction in a written document which is signed by a
duly authorized officer of such disclosing party; and (v) the receiving
party is legally compelled to disclose; provided, however, that prior to
any such compelled disclosure, the receiving party will (a) assert the
privileged and confidential nature of the Confidential Information against
the third party seeking disclosure and (b) cooperate fully with the
disclosing party in protecting against any such disclosure and/or obtaining
a protective order narrowing the scope of such disclosure and/or use of the
Confidential Information. In the event that such protection against
disclosure is not obtained, the receiving party will be entitled to
disclose the Confidential Information, but only as and to the extent
necessary to legally comply with such compelled disclosure.
8.2 Confidentiality of Agreement
Unless required by law, and except to assert its rights hereunder or for
disclosures to its own employees on a "need to know" basis, Concentric
agrees not to disclose the terms of this Agreement or matters relating
thereto without the prior written consent of Netscape, which consent shall
not be unreasonably withheld.
SECTION 9. WARRANTIES
9.1 Limited Warranty
Subject to the limitations set forth in this Agreement, Netscape warrants
only to Concentric that the Netscape Products when properly adapted,
installed, and used will substantially conform to the specifications in the
Documentation in effect when the Netscape Products are shipped to
Concentric. Netscape's warranty and obligation shall extend for a period of
Ninety (90) days ("Warranty Period") from the date Netscape first delivers
the Netscape Products to
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Concentric. All warranty claims not made in writing or not received by
Netscape within the time period specified above shall be deemed waived.
Netscape's warranty and obligation is solely for the benefit of Concentric,
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.
9.2 EXCLUSIVE WARRANTY
THE EXPRESS WARRANTY SET FORTH IN PARAGRAPH 9.1 CONSTITUTES THE ONLY
WARRANTY WITH RESPECT TO THE NETSCAPE PRODUCTS. NETSCAPE MAKES NO OTHER
REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER
IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE NETSCAPE PRODUCTS.
NETSCAPE EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. NETSCAPE DOES NOT WARRANT, FOR EXAMPLE, THAT THE
NETSCAPE PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE NETSCAPE PRODUCTS
WILL BE SECURE OR UNINTERRUPTED. THERE IS ALSO NO IMPLIED WARRANTY OF
NONINFRINGEMENT; THE SOLE REMEDY FOR INFRINGEMENT IS PROVIDED IN SECTION
10.
9.3 Defects Not Covered by Warranties
If Netscape's ability to perform warranty services is affected thereby,
Netscape shall have no obligations under the warranty provisions set forth
in Section 9.1: (a) in the event Concentric incorporates, attaches or
otherwise engages any attachment, feature, program, or device to the
Netscape Products, or any part thereof; or (b) if any nonconformance is
caused by: accident; transportation; neglect or misuse; alteration,
modification, or enhancement of the Netscape Products by Concentric;
failure to provide a suitable installation environment; use of supplies or
materials not meeting specifications; use of the Netscape Products for
other than the specific purpose for which the Netscape Products are
designed; use of the Netscape Products on any systems other than the
specified hardware platform for such Netscape Products; or Concentric's use
of defective media or defective duplication of the Netscape Products.
9.4 Exclusive Remedy
If Concentric finds what it believes to be errors or a failure of the
Netscape Products to meet specifications which significantly affects
performance, and provides Netscape with a written report during the
Warranty Period, Netscape will use reasonable efforts to correct promptly,
at no charge to Concentric, any such errors or failures. This is
Concentric's sole and exclusive remedy for any express or implied
warranties hereunder.
SECTION 10. INDEMNIFICATION
10.1 Netscape shall defend any action brought against Concentric to the extent
it is based on a claim that reproduction or distribution by Concentric of
the Netscape Products furnished hereunder within the scope of a license
granted hereunder directly infringes any valid United States patent, United
States copyright, United States trademark or trade secret in the United
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States. Netscape will pay resulting costs, damages and legal fees finally
awarded against Concentric in such action which are attributable to such
claim provided that Concentric (a) promptly 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.
10.2 Should a Netscape Product become, or be likely to become in Netscape's
opinion, the subject of infringement of such copyright, patent, trademark
or trade secret, Netscape may procure for Concentric (i) the right to
continue using the same or (ii) replace or modify it to make it non-
infringing. Netscape shall have no liability for and Concentric shall
indemnify and hold Netscape harmless from and against any claim based upon:
(a) use of other than the then current, unaltered version of the Netscape
Product, unless the infringing portion is also in the then current,
unaltered release;(b) use, operation or combination of Netscape Products
with non-Netscape programs, data, equipment or documentation if such
infringement would have been avoided but for such use, operation or
combination; (c) Concentric's or its agent's activities after Netscape has
notified Concentric that Netscape believes such activities may result in
such infringement (Out this shall not release Netscape from its
indemnification obligations prior to such notification); (d) compliance
with Concentric's designs, specifications or instructions; (e) any
modifications or marking of the Netscape Products not specifically
authorized in writing by Netscape; (f) Concentric's use of any trademarks
other than those listed in Attachment C; or (g) third party software. The
foregoing states the entire liability of Netscape and the exclusive remedy
of Concentric with respect to infringement of copyrights, patents,
trademarks or trade secrets.
10.3 Concentric agrees to indemnify and hold Netscape harmless from any claims,
damages and costs incurred by Netscape related to defective disks or
defective duplication in copies of the Netscape Products distributed by
Concentric.
SECTION 11. LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF SECTIONS 2.1 OR 8, IN NO EVENT SHALL NETSCAPE OR ITS
SUPPLIERS OR CONCENTRIC 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 A PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), OR FOR ANY CLAIM
BY ANY THIRD PARTY, EXCEPT AS PROVIDED IN THE SECTION ENTITLED
"INDEMNIFICATION". IN NO EVENT WILL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR
(a) ANY REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY CONCENTRIC,
ANY AGENT OF CONCENTRIC OR DISTRIBUTOR; (b) FAILURE OF THE NETSCAPE
PRODUCTS TO PERFORM AS SPECIFIED HEREIN EXCEPT AS, AND TO THE EXTENT,
OTHERWISE EXPRESSLY PROVIDED HEREIN; (c) FAILURE OF THE NETSCAPE PRODUCTS
TO PROVIDE SECURITY; OR (d) ANY USE OF THE
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NETSCAPE PRODUCTS OR THE DOCUMENTATION OR THE RESULTS OR INFORMATION
OBTAINED OR DECISIONS MADE BY END USERS OF THE NETSCAPE PRODUCTS OR THE
DOCUMENTATION. THE REMEDIES PROVIDED HEREIN ARE CONCENTRIC'S SOLE AND
EXCLUSIVE REMEDIES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, NETSCAPE'S ENTIRE LIABILITY TO CONCENTRIC FOR DAMAGES CONCERNING
PERFORMANCE OR NONPERFORMANCE BY NETSCAPE 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
OF FEES RECEIVED BY NETSCAPE FROM CONCENTRIC.
SECTION 12. TERM OF AGREEMENT
Unless sooner terminated under the provisions of Section 13, or otherwise
rightfully terminated, this Agreement shall remain in effect for a period
of two (2) years from the Effective Date. Thereafter it shall remain in
effect; provided however, either party may terminate this Agreement for
convenience effective at the end of such initial two (2) year term or at
any time thereafter upon at least sixty (60) days prior written notice.
SECTION 13. DEFAULT AND TERMINATION
13.1 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.
13.2 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.
13.3 Effect on Rights
13.3.1 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.
13.3.2 Except as specified in Paragraphs 13.4 and 13.5 below, upon
termination or expiration of this Agreement, all licenses for
Netscape Products and Documentation granted under this Agreement
shall terminate.
13.3.3 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
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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.
13.4 Effect of Termination
Within thirty (30) calendar days after termination of this Agreement,
Concentric shall either deliver to Netscape or destroy all copies of the
Netscape Products and Documentation (except as provided in Section 13.5)
and any other materials provided by Netscape to Concentric hereunder in its
possession or under its control, and shall furnish to Netscape an affidavit
signed by an officer of Concentric certifying that, to the best of its
knowledge, such delivery or destruction has been fully effected.
Notwithstanding the foregoing, and provided Concentric fulfills its
obligations specified in this Agreement with respect to such items,
Concentric may continue to use and retain copies of the Netscape Products
and Documentation to the extent, but only to the extent, necessary to
support and maintain Netscape Products rightfully distributed to End Users
by Concentric prior to termination of this Agreement.
13.5 Continuing Obligations
13.5.1 Payment of Accrued Fees and Royalties. Within Thirty (30)
calendar days of termination of this Agreement, Concentric shall
pay to Netscape all sums then due and owing. Any other such sums
shall subsequently be promptly paid as they become due and owing.
13.5.2 Continuance of Sublicenses. Notwithstanding the termination of
this Agreement, all End User sublicenses which have been properly
granted by Concentric and Distributors pursuant to this Agreement
prior to its termination shall survive.
13.5.3 Other Continuing Obligations. The respective rights and
obligations of Netscape and Concentric under the provisions of
Paragraphs 2.1.2, 2.2, 3.3.1, 3.4, 9.1, 9.2, 9.3, 9.4, 13.3,
13.4, 13.5 and Sections 4, 6, 7, 8, 10, 11 and 14 shall survive
termination of this Agreement.
SECTION 14. GENERAL PROVISIONS
14.1 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 U.S. mail, postage prepaid, when mailed by
registered or certified U.S. mail, return receipt requested, or two (2)
business days after being sent via private industry courier to the
respective parties at the addresses first set forth above or to such other
person or address as the parties may from time to time designate in a
writing delivered pursuant to this Paragraph 14.1. Notices to Netscape and
Concentric shall be attention to: Legal Department.
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14.2 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 Concentric.
14.3 Assignment
This Agreement and the licenses granted hereunder are to a specific legal
entity or legal person, not including corporate subsidiaries or affiliates
of Concentric, and are not assignable by Concentric, nor are the
obligations imposed on Concentric delegable without the prior written
consent of Netscape. Notwithstanding the foregoing, Concentric may assign
this Agreement to a successor in interest to the whole of Concentric's
business created to effect a change in the state of incorporation of
Concentric. 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.
14.4 Governing Law
This Agreement is entered into in the State of California, U.S.A., and this
Agreement 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 (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.
14.5 Relationship of the Parties
No agency, partnership, joint venture, or employment is created as a result
of this Agreement and neither Concentric nor its agents have any authority
of any kind to bind Netscape in any respect whatsoever.
14.6 Captions and Section Headings
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.
14.7 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
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extent necessary to make such provision or provisions valid and enforceable
when applied to such particular facts and circumstances.
14.8 Force Majeure
Either party shall be excused from any delay or failure in performance
hereunder, except the payment of monies by Concentric to Netscape, 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, 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.
14.9 Entire Agreement
This Agreement, including the Attachments hereto, 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
Concentric, whether formally rejected by Netscape or not.
AUTHORIZED SIGNATURES
In order to bind the parties to this Agreement, their duly authorized
representatives have signed their names below on the dates indicated.
NETSCAPE COMMUNICATIONS CONCENTRIC NETWORK
CORPORATION CORPORATION
By: /s/ Conway Rulon-Miller By: /s/ Henry R. Nothhaft
-------------------------------- --------------------------------
Name: Conway (Todd) Rulon-Miller Name: Henry R. Nothhaft
------------------------------ ------------------------------
Title: VP Sales Title: CEO
----------------------------- -----------------------------
Date: 7-28-95 Date: 7-28-95
------------------------------ ------------------------------
REVIEWED BY
NETSCAPE LEGAL
Initial
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ATTACHMENT A
NETSCAPE PRODUCT DESCRIPTIONS
OEM License Agreement - Netscape Communications Corp. and Concentric Research Corp.
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