NETSCAPE COMMUNICATIONS CORPORATION
SOURCE CODE LICENSE AGREEMENT
This Source Code License Agreement ('License Agreement') is entered into
by and between NETSCAPE COMMUNICATIONS CORPORATION, a Delaware corporation,
with principal offices at 501 East Middlefield Road, Mountain View, CA 94043
('Netscape'), and TVSOFT CORPORATION, a Delaware corporation, with principal
offices at 477 Potrero Road, Sunnyvale, CA 94086 ('TVsoft').
RECITALS
A. Netscape develops and markets a range of software products and
services that link people and information over networks.
B. Netscape and various other parties have entered into a Stockholder
Agreement (as defined in Section 1.16 below) and various other documents
related to the formation of TVsoft.
C. The parties believe that a potential market exists for software
products and services specifically designed to provide access to the Internet
through consumer devices, and that such market is not addressed by Netscape's
current product line.
D. The parties desire that TVsoft develop products specifically aimed at
such potential market, while Netscape continues to develop and promote such
other aspects of network-based applications as Netscape deems appropriate.
E. Netscape desires to grant, and TVsoft desires to accept, in
consideration for the TVsoft stock issued to Netscape under the Common Stock
Purchase Agreement (as defined in Section 1.4 below) and other good and
valuable consideration, a license to certain Netscape technology in order for
TVsoft to create new products for this market as further specified herein.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. DEFINITIONS. For purposes of this License Agreement, the following terms
shall have the following meanings:
1.1 'Affiliate' moans a corporation, company or other entity more than
fifty percent (50%) of the outstanding shares or securities (representing the
right to vote for the election of directors or other managing authority) of
which are now or hereafter, owned or controlled, directly or indirectly, by a
party hereto, but such corporation, company or other entity shall be deemed
to be an Affiliate only so long as such ownership or control exists.
1.2 'API' means application programming interface.
1.3 'Code' means computer programming code.
(a) 'Object Code' means computer programming code in binary form,
which is intended to be directly executable by a computer after suitable
processing and linking but without the intervening steps of compilation or
assembly.
(b) 'Source Code' means computer programming code in a form other
than Object Code form, and related programmer comments and documentation,
which may be printed out or displayed in human readable form, among other
forms.
1.4 'Common Stock Purchase Agreement' means that certain Common Stock
Purchase Agreement entered into between the parties dated as of ______________.
1.5 'Consumer Hardware Device' means a product which meets the criteria
of all of items (a)-(c) below:
(a) is primarily intended for use by consumers as one or more of the
following and permits access to the Internet:
(i) game console;
(ii) digital set top box;
(iii) digital viewing device (DVD);
(iv) smart television (TV);
(v) hand held personal digital assistant;
(vi) other Internet consumer devices which generally have an
actual 'street' retail price to consumers in the U.S. of less than
Five Hundred United States Dollars (U.S. $500.00);
(b) is not a personal computer or any successor product to the
multipurpose personal computer (including those that function as servers);
and
(c) does not use a Microsoft Windows, Apple Macintosh or
UNIX operating system, or any new release, new version, successor,
follow-on or replacement of any such operating system, other than any such
release, version, successor, follow-on or
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replacement that is designed primarily for use in connection with one or
more of the devices listed in subsection (a) above.
1.6 'Derivative Work' means a work which is based upon one or more
pre-existing copyrightable works such as a revision, modification,
translation, abridgment, compilation, condensation or expansion or any other
form in which such pre-existing work may be recast, transformed, or adapted,
and which, if prepared without the consent of the author of the pre-existing
work, would be a copyright infringement.
1.7 'Distribution Channel' of a party means any third party appointed
by such party (including without limitation, Source Code OEMs, OEMs, VARs,
distributors and subdistributors) or by any such entity that has been
appointed by such party, but excluding end users, to reproduce, sublicense
and/or distribute product(s) of such party in accordance with the terms
hereof.
1.8 'Divestiture Event' shall be deemed to occur upon the earlier to
occur of (i) the date Netscape ceases to be a holder of at least 35% of the
total issued and outstanding shares of TVsoft; (ii) the date of the IPO (as
defined in Section 1(b) of the Stockholder Agreement); (iii) the date
Netscape is no longer the single largest shareholder of TVsoft; or (iv) the
expiration or termination of the time period in which Netscape has the right
to exercise the Buyout or the IPO Buyout (as such terms are defined in
Sections 3(a) and 3(e), respectively of the Stockholder Agreement). TVsoft
agrees to give Netscape prompt written notice upon the occurrence of a
Divestiture Event under clause (i) or (iii) above.
1.9 'Effective Date' means the date on which the Common Stock Purchase
Agreement is executed by TVsoft and Netscape.
1.10 'End User' means any third party licensed by a party or its
Distribution Channel to use, but not to further distribute, a product of such
party hereunder.
1.11 'Netscape Product' means any and all products whether now in
existence or hereafter developed or distributed by or for Netscape which (a)
are Derivative Works of TVsoft Technology and (b) are not software products
that are primarily intended for use on one or more Consumer Hardware Devices
and that are reasonably expected to compete with any TVsoft Product.
1.12 'Netscape Technology' means the Netscape technology and related
documentation set forth on Attachment A.
1.13 'Netscape Technology Updates' means (a) the Source Code for Minor
Updates, Major Updates and Maintenance Updates to the Netscape Technology and
(b) any updates to the Netscape Tools which are released internally at
Netscape for general use by Netscape software developers and (c) related
documentation. As used in this Section 1.13, 'Minor Update' means a new
version of a product for which there is a change in the number immediately to
the right of the decimal point in the release number, 'Major Update' means a
new version of a product for which there is a change in the number to the
left of the decimal point in the release number, and 'Maintenance Update'
means a new version of
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a product for which there is a change in the number two places to the right
of the decimal point in the release number.
1.14 'Netscape Tools' means the Netscape development tools set forth on
Attachment A.
1.15 'Source Code OEM' means a manufacturer of Consumer Hardware Devices.
1.16 'Stockholder Agreement' means that certain Stockholders and Voting
Agreement entered into between Netscape, TVsoft, Wei Yen and the holders of
TVsoft's Series A Preferred Stock dated as of ______________.
1.17 'Subsidiary' means a corporation, company or other entity one
hundred percent (100%) of the outstanding shares or securities (representing
the right to vote for the election of directors or other managing authority)
of which are now or hereafter, owned or controlled, directly or indirectly,
by a party hereto, but such corporation, company or other entity shall be
deemed to be a Subsidiary only so long as such ownership or control exists.
1.18 'Technology' means Netscape Technology and/or TVsoft Technology, as
the context requires.
1.19 'TVsoft Product' means a software product which (a) is a Derivative
Work of the Netscape Technology; and (b) requires restructuring of the
Netscape Technology so that it is specifically designed for one or more
Consumer Hardware Devices; and (c) operates on one or more Consumer Hardware
Devices; and (d) does not run on a Microsoft Windows, Apple Macintosh or UNIX
operating system, or any new release, new version, successor, follow-on or
replacement of any such operating system other than any such release,
version, successor, follow-on or replacement that is designed primarily for
use in connection with one or more of the devices listed in Section 1.5(a)
above; and in no event shall a TVsoft Product be directed to the market for
personal computers or successor products to the multipurpose personal
computer (including those that function as servers).
1.20 'TVsoft Technology' means all Source Code, development tools,
Object Code and documentation created or modified by or for TVsoft and based
on the Netscape Technology or Netscape Tools, including, but not limited to,
any Derivative Works of Netscape Technology or Netscape Tools, and all
related documentation.
1.21 'Update Period' means the time period beginning with the Effective
Date of this License Agreement and ending on the date of a Divestiture Event.
2. GRANT OF LICENSE TO TVSOFT. Subject to the terms and conditions of this
License Agreement, Netscape hereby grants and TVsoft hereby accepts the
licenses described in this Section 2, each of which shall be world-wide,
non-exclusive (except as specifically set forth in Section 8.2 below), fully
paid-up and nontransferable (except as provided in Section 17.3).
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2.1 INTERNAL USE -- SOURCE CODE AND OBJECT CODE. A license to use
internally, reproduce, display, modify and create Derivative Works of the
Source Code and Object Code versions of the Netscape Technology for the sole
purpose of creating TVsoft Products and using such TVsoft Products internally.
2.2 EXTERNAL DISTRIBUTION -- OBJECT CODE. A license to reproduce,
distribute, license and sublicense the Object Code version of TVsoft
Products, including any Derivative Works of the Netscape Technology contained
therein, to Distribution Channels and End Users solely for use with Consumer
Hardware Devices, and to sublicense the rights in this Section 2.2 to
TVsoft's Distribution Channels.
2.3 EXTERNAL DISTRIBUTION -- SOURCE CODE. A license:
(a) to sublicense the Source Code of TVsoft Products, including
any Derivative Works of the Netscape Technology contained therein, to a
TVsoft Subsidiary solely (i) for further development, internationalization
and support of such TVsoft Products; and (ii) entering into written
agreements with Source Code OEMs which meet the requirements of subsection
(b) below.
(b) to sublicense the Source Code of TVsoft Products, including
any Derivative Works of the Netscape Technology contained therein, to Source
Code OEMs solely for the purpose of and to the extent necessary to port such
TVsoft Products to operate with the Source Code OEMs' Consumer Hardware
Devices; provided that (i) TVsoft shall use its best efforts to minimize
exposure of the Source Code OEMs to Source Code for Netscape Technology (such
as, for example, by compiling critical modules for the Source Code
Licensees); and (ii) each such license must be pursuant to a written
agreement meeting the requirements of Section 12.6 below.
(c) to enter into written Source Code escrow arrangements
customary in the industry with Source Code OEMs providing that (i) such
Source Code OEMs may have access to the Source Code for TVsoft Products for
such Source Code OEMs' Consumer Hardware Devices in the event that TVsoft
ceases to do business in the normal course and Netscape does not assume
TVsoft's obligations for support and maintenance of such TVsoft Products;
(ii) upon release of the Source Code for TVsoft Products, such Source Code
OEMs may use and modify the Source Code (provided that TVsoft shall use its
best efforts to limit the scope of permitted use and modification to use and
modification only as necessary to correct errors in such TVsoft Product(s)),
and may only distribute the Object Code version of such modified Source Code
as permitted under this License Agreement; and (iii) the Source Code OEMs are
obligated to keep such Source Code confidential according to terms
substantially similar to those set forth in Section 12.6.
TVsoft may not grant its Source Code OEMs any rights to Netscape Technology or
Derivative Works thereof except as part of a TVsoft Product. Except as
specifically set forth in this Section 2.3, TVsoft may not grant any third party
any rights to Netscape Technology or Derivative Works thereof in Source Code
form.
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2.4 INTERNAL USE -- NETSCAPE TOOLS. A license to use internally,
reproduce, display, modify and create Derivative Works of the Source Code and
Object Code versions of the Netscape Tools for the sole purpose of creating
TVsoft Products.
2.5 THIRD PARTY CODE.
(a) TVsoft acknowledges that the Netscape Technology may contain
Source Code or Object Code licensed by Netscape from a third party ('Third
Party Code'), and that Netscape may not have the right to sublicense Third
Party Code to TVsoft under the terms of this License Agreement. If Netscape
does have the right to sublicense Third Party Code to TVsoft for the purposes
set forth in this License Agreement, then Netscape will include such Third
Party Code and any Netscape Derivative Works thereof in the Netscape
Technology to be delivered to TVsoft hereunder. All licenses granted by
Netscape under this License Agreement are subject to compliance by TVsoft
with any applicable license restrictions, payment by TVsoft of any royalties
or other fees and Netscape receiving any required consents with respect to
Third Party Code. A list of Third Party Code in the Netscape Technology as of
the Effective Date of this License Agreement which Netscape does not have the
right to sublicense to TVsoft, and any such required restrictions, royalties
or other fees, and consents for Third Party Code which Netscape does have the
right to sublicense, is set forth in Attachment B hereto.
(b) Netscape agrees that, in the event there is Third Party Code
in the Netscape Technology that cannot be sublicensed by Netscape to TVsoft
under this License Agreement, Netscape will introduce TVsoft to appropriate
personnel at the vendor of such Third Party Code and, as the parties deem
appropriate, will approach such vendor, together with TVsoft, and use its
good faith commercially reasonable efforts to cause such vendor to consent to
the sublicense of such Third Party Code to TVsoft on commercially reasonable
terms.
(c) Netscape agrees to use its good faith, commercially reasonable
efforts to obtain the right to sublicense Third Parry Code to TVsoft under
this License Agreement in its agreements entered into after the Effective
Date for any Third Party Code that may be included in Netscape Technology
Updates.
(d) TVsoft shall provide to Netscape such information as Netscape
may reasonably request from time to time to verify compliance by TVsoft with
the applicable restrictions and royalty or other fee obligations for Third
Party Code that is sublicensed to TVsoft. In the event of any material
default of such restrictions or royalty or other fee obligations, Netscape
may deliver to TVsoft a written notice of termination of TVsoft's rights with
respect to such Third Party Code. If such breach is not corrected within
thirty (30) days after receipt of such notice, Netscape may terminate
TVsoft's rights with respect to such Third Party Code effective immediately
upon notice to TVsoft.
2.6 RIGHTS NOT GRANTED. This License Agreement does not grant any right
or license to TVsoft other than those expressly provided herein, and no other
grant or license is to be implied by or inferred from any provision of this
License Agreement.
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2.7 PATENTS: AUDIO-VISUAL EFFECTS. The licenses granted under Sections
2.1-2.5 above include, subject to the same limitations as provided therein
and elsewhere in this License Agreement: (a) a nonexclusive license under any
patent or patent applications that are (i) owned by Netscape or (ii) licensed
by Netscape from a third party ('Netscape Third Party Patents') during the
term of this License Agreement with the right to grant sublicenses under the
terms of this License Agreement and subject to compliance by TVsoft with any
applicable license restrictions, payment by TVsoft of any royalties or other
fees and Netscape receiving any required consents with respect to such Third
Party Patents; and (b) a nonexclusive license (including the right to perform
and display) to pictorial, graphic and audio-visual works, including without
limitation icons, screens and characters, that are included in or result from
execution of the Netscape Technology.
2.8 SUPPORT BY TVSOFT. TVsoft shall use its best efforts to meet its
commitments to its Source Code OEMs, Distribution Channels and End Users with
respect to the support and maintenance of TVsoft Products, all in accordance
with TVsoft's obligations to provide such support and maintenance.
3. INVENTIONS.
3.1 INVENTIONS DEFINED. As used in this Section 3, 'Invention' means
any new or improved idea, design, development, discovery, concept or other
invention that is patentable subject matter and that is made and developed in
the course of creating TVsoft Products hereunder.
3.2 JOINT INVENTIONS. Netscape and TVsoft shall jointly own any
Inventions that are made and developed jointly by Netscape and TVsoft ('Joint
Inventions'). The parties shall agree from time to time regarding
responsibility for prosecution and maintenance of patents on Joint
Inventions. Subject to TVsoft's obligations set forth herein with respect to
Netscape Technology, Netscape Tools and Derivative Works thereof, each party
shall have the right to fully exploit, commercialize, license and enforce any
Joint Inventions and jointly owned patents issuing thereon without the
consent of the other party and without a duty to account to the other party
for profits issuing thereon.
3.3 TVSOFT INVENTIONS. TVsoft shall be the sole owner of any Inventions
that are made and developed solely by TVsoft ('TVsoft Inventions'). As used
in the Section 3.3, 'TVsoft Licensed Patents' means any issued patents that
claim any TVsoft Invention that covers or reads on any Netscape Technology or
Netscape Tools, or any Derivative Work of Netscape Technology or Netscape
Tools. TVsoft hereby grants to Netscape a perpetual, irrevocable,
non-exclusive, non-transferable (except as provided in Section 17.3) and
fully paid-up right and license, with the right to grant and authorize
sublicenses, under any and all TVsoft Licensed Patents, to make, have made,
use, offer to sell, sell, import and export any products and items (except as
specifically set forth in Section 8.2 below).
3.4 INVENTIONS GENERALLY. Ownership of Inventions shall be determined
with reference to the rules of inventorship under U.S. patent law
notwithstanding whether such Inventions may be patentable. Each party shall
keep the other party reasonably informed regarding patent prosecution and
maintenance of Inventions under this Section 3. Until and except to the
extent that any Invention is publicly disclosed
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in a patent or patent application, such Invention shall be considered to be
Confidential Information of the patent applicant(s) under the provisions of
Section 12.
4. GRANT OF LICENSE TO NETSCAPE. Effective as of the earlier of the date of
a Divestiture Event or of Netscape's termination of this License Agreement
under Section 15.2, and subject to the terms and conditions of this License
Agreement, TVsoft hereby grants and Netscape hereby accepts the licenses
described in this Section 4, each of which shall be world-wide, non-exclusive
(except as specifically set forth in Section 8.3 below), fully paid-up and
nontransferable (except as provided in Section 17.3).
4.1 INTERNAL USE - SOURCE AND OBJECT CODE. A license to use internally,
reproduce, display, modify and create Derivative Works of the Source Code and
Object Code versions of the TVsoft Technology for the sole purpose of
creating Netscape Products and using such Netscape Products internally.
4.2 EXTERNAL DISTRIBUTION -- OBJECT CODE. A license to reproduce,
distribute, license and sublicense the Object Code version of the Netscape
Product(s), including the Derivative Works of the TVsoft Technology contained
therein, to Distribution Channels and End Users and to sublicense the rights
in this Section 4.2 to Netscape's Distribution Channels.
4.3 EXTERNAL DISTRIBUTION -- SOURCE CODE. A license:
(a) to sublicense the Source Code of Netscape Products, including
any Derivative Works of the TVsoft Technology contained therein, to Netscape
Subsidiaries solely (i) for further development, internationalization and
support of such Netscape Products, and (ii) entering into written agreements
with licensees of Netscape Products which meet the requirements of
subsections (b) and (c) below.
(b) to sublicense the Source Code of Netscape Products, including
any Derivative Work(s) of the TVsoft Technology contained therein, to
Netscape's Source Code licensees of such Netscape Products solely for further
development, internationalization or support of such Netscape Products and
any Derivative Works thereof, provided that Netscape shall use its best
efforts to minimize exposure of the Source Code licensees to Source Code for
TVsoft Technology (such as, for example, by compiling critical modules for
the licensee) and each such license must be pursuant to a written agreement
meeting the requirements of Section 12.6 below.
(c) to enter into written Source Code escrow arrangements
customary in the industry with Netscape's licensees of Netscape Products
providing that (i) such licensees may have access to the Source Code for
licensed Netscape Products in the event that Netscape ceases to do business
in the normal course; (ii) upon release of the Source Code for Netscape
Products, such licensees may use and modify the Source Code (provided that
Netscape shall use its best efforts to limit the scope of permitted use and
modification to use and modification only as necessary to correct errors in
the Netscape Products), and may only distribute the Object Code version of
such modified Source Code as permitted
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under this License Agreement; and (iii) the licensee is obligated to keep
such Source Code confidential according to terms substantially similar to
those set forth in Section 12.6.
Netscape may not grant its licensees any rights to TVsoft Technology or
Derivative Works thereof except as part of a Netscape Product. Except as
specifically set forth in this Section 4.3, Netscape may not grant any third
party any rights to TVsoft Technology or Derivative Works thereof in Source
Code form.
4.4 INTERNAL USE -- TVSOFT TOOLS. A license to use internally,
reproduce, display, modify and create Derivative Works of the Source Code and
Object Code versions of the TVsoft Tools for the sole purpose of creating
Netscape Products.
4.5 THIRD PARTY CODE.
(a) Netscape acknowledges that the TVsoft Technology may contain
Source Code or Object Code licensed by TVsoft from a third party ('TVsoft
Third Party Code'), and that TVsoft may not have the right to sublicense
TVsoft Third Party Code to Netscape under the terms of this License
Agreement. If TVsoft does have the right to sublicense TVsoft Third Party
Code to Netscape for the purposes set forth in this Agreement, then TVsoft
will include such TVsoft Third Party Code and any TVsoft Derivative Works in
the TVsoft Technology to be delivered to Netscape hereunder. All licenses
granted by TVsoft under this License Agreement are subject to compliance by
Netscape with any applicable license restrictions, payment by Netscape of any
royalties or other fees and TVsoft receiving any required consents with
respect to TVsoft Third Party Code.
(b) TVsoft agrees that, in the event there is TVsoft Third Party
Code that cannot be sublicensed by TVsoft to Netscape under this License
Agreement, TVsoft will introduce Netscape to appropriate personnel at the
vendor of such TVsoft Third Party Code and, as the parties deem appropriate,
will approach such vendor, together with Netscape, and use its good faith
commercially reasonable efforts to cause such vendor to consent to the
sublicense of such TVsoft Third Party Code to Netscape on commercially
reasonable terms.
(c) TVsoft agrees to use its good faith, commercially reasonable
efforts to obtain the right to sublicense TVsoft Third Party Code to Netscape
under this License Agreement in its agreements entered into after the
Effective Date for any TVsoft Third Party Code that may be included in TVsoft
Technology.
(d) Netscape shall provide to TVsoft such information as TVsoft
may reasonably request from time to time to verify compliance by Netscape
with the applicable restrictions and royalty or other fee obligations for
TVsoft Third Party Code that is sublicensed to Netscape. In the event of any
material default of such restrictions or royalty or other fee obligations,
TVsoft may deliver to Netscape a written notice of termination of Netscape's
rights with respect to such TVsoft Third Party Code. If such breach is not
corrected within thirty (30) days after receipt of such notice, TVsoft may
terminate Netscape's rights with respect to such TVsoft Third Party Code
effective immediately upon notice to Netscape.
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4.6 RIGHTS NOT GRANTED. This License Agreement does not grant any
right or license to Netscape other than those expressly provided herein, and
no other grant or license is to be implied by or inferred from any provision
of this License Agreement.
4.7 PATENTS: AUDIO-VISUAL EFFECTS. The licenses granted under
Sections 4.1-4.5 above include, subject to the same limitations as provided
therein and elsewhere in this License Agreement: (a) a nonexclusive license
under any patent or patent applications that are (i) owned by TVsoft or (ii)
licensed by TVsoft from a third party ('TVsoft Third Party Patents') during
the term of this License Agreement with the right to grant sublicenses under
the terms of this License Agreement and subject to compliance by Netscape
with any applicable license restrictions, payment by Netscape of any
royalties or other fees and TVsoft receiving any required consents with
respect to such TVsoft Third Party Patents; and (b) a nonexclusive license
(including the right to perform and display) to pictorial, graphic and
audio-visual works, including without limitation icons, screens and
characters, that are included in or result from execution of the TVsoft
Technology.
5. DELIVERY.
5.1 INITIAL DELIVERY BY NETSCAPE. Within ten (10) days after the
Effective Date, Netscape shall deliver to TVsoft one (1) copy of the
Netscape Technology.
5.2 DELIVERY OF UPDATES BY NETSCAPE. During the Update Period,
Netscape shall provide access to TVsoft, on mutually agreeable terms, to all
activities relating to the development of Netscape Technology Updates. Each
Netscape Technology Update shall be considered to be Netscape Technology or
Netscape Tools, as applicable, for the purposes of this License Agreement.
After the expiration of the Update Period, Netscape shall have no further
obligation hereunder to deliver any Source Code, Object Code or other
technology to TVsoft or to provide access to TVsoft to any development
activities of Netscape.
5.3 DELIVERY OF TVSOFT TECHNOLOGY BY TVSOFT. Within thirty (30) days
after the earlier of a Divestiture Event or of Netscape's termination of this
Agreement under Section 15.3, TVsoft shall provide to Netscape one (1) copy
of all of the then existing TVsoft Technology. TVsoft shall provide to
Netscape a complete copy the TVsoft Technology that is then used internally
for development by TVsoft and a complete copy of the TVsoft Technology for
the most recently commercially released version(s) of the TVsoft Products.
5.4 MANNER OF DELIVER. Except for carrier, which shall be the
delivering party's choice, the delivering party under this Section 5 shall
deliver any item hereunder in accordance with the receiving party's
instructions. The delivering party shall deliver all items via a carrier of
the delivering party's choice with freight and insurance prepaid and
separately invoiced to the receiving party. At the receiving party's request,
the delivering party shall deliver items to be delivered hereunder by
electronic transmission whenever practicable, and provided that the receiving
party shall pay any sales tax and related charges that may be assessed
(whenever assessed) by the relevant taxing authority. The receiving party
acknowledges that electronic transmission may be subject to reasonable
procedure requirements (such
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as use of FTP or a modem) that may be necessary for the electronic
transmission to be in compliance with applicable export control laws. The
delivering party shall be responsible for and shall bear any and all risk of
loss of, or damage to, any item until delivery to the site specified by the
receiving party. Upon delivery, risk of loss and damage shall pass to the
receiving party; provided, however, that the delivering party shall bear any
loss or damage, whenever occurring, that results from the delivering party's
inadequate packaging or other preparation for shipping. In the event of any
loss or damage to any item while the delivering party bears the risk of loss,
the delivering party's sole obligation and liability shall be to redeliver
the item.
6. TECHNICAL SUPPORT.
6.1 PROCEDURE. The parties intend to develop a technical assistance
plan which will allow each party to receive assistance (the 'Assisted Party')
in its use of the other party's Technology in a fashion which does not
disrupt the operations of the providing party ('Assisting Party'). Prior to
completion of the plan, each party will designate one (1) technical
assistance liaison, and all requests for technical assistance shall be in
writing.
6.2 TECHNICAL ASSISTANCE PLAN. The technical assistance plan will
include the following components: (a) identification of one (1) designated
technical assistance liaison for each party, (b) procedures for the Assisted
Party's designated liaisons to ask and receive assistance from the Assisting
Party, (c) resolution procedures if designated personnel are unable to
respond to the Assisted Party's requests, (d) the period of time covered by
the Assisting Party's technical assistance obligation, (e) hours in which
technical assistance will be available, and (f) such other items as the
parties deem appropriate.
6.3 SCOPE OF TECHNICAL ASSISTANCE. Technical Assistance under this
Section 6 means that the Assisting Party will attempt in good faith to answer
questions concerning its Source Code that arise in connection with
development by the Assisted Party, as more fully set forth in the Technical
Assistance Plan, and subject to such limitations as the parties shall agree
in the Technical Assistance Plan.
6.4 NOTICE. Any documentation distributed by TVsoft for TVsoft
Products will clearly and conspicuously state that support questions should
be addressed to TVsoft or its Distribution Channel. If Netscape is
nevertheless contacted by TVsoft's customers or its Distribution Channels,
then, upon the request of Netscape, the parties will cooperate to eliminate
such contact. Netscape has no obligation to respond to requests for technical
assistance or support from TVsoft's End Users or Distribution Channels.
7. DISTRIBUTION TERMS.
7.1 GOVERNMENT RESTRICTED RIGHTS. Each party agrees to comply with
and shall require its Distribution Channels to comply with all applicable
laws, rules and regulations to preclude the acquisition of unlimited rights
to technical data pertaining to the other party's Technology to a
governmental agency, and to ensure the inclusion of the appropriate notices
required by U.S. Government agencies or other applicable agencies.
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7.2 PROTECTION OF LICENSOR'S RIGHTS. Except as expressly permitted
herein, each party shall not copy, distribute, modify, translate, decompile,
reverse engineer, disassemble, or otherwise determine or attempt to determine
Source Code for the other party's products. Each party shall cooperate with
the other party in any legal action to prevent or stop unauthorized use,
reproduction or distribution of other party's Source Code, Object Code,
Technology or Confidential Information provided hereunder.
7.3 END USER AGREEMENTS. Each party shall distribute its products
that contain Derivative Works of the other party's Technology under the terms
of end user agreements that are reasonably calculated to protect the other
party's rights and contain protective provisions consistent with industry
practices for the type of product being distributed, as such practices may
change and evolve from time to time.
7.4 EXPORT. TVsoft 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.
7.5 DISTRIBUTION CHANNEL AGREEMENTS. Each party shall use its
reasonable commercial efforts to have in place agreements containing
provisions substantially equivalent to the provisions of Sections 7.2, 7.3
and 7.4 above with those of its Distribution Channels to whom it distributes
Derivative Works of the other party's Technology.
8. TRADEMARKS AND MARKETING.
8.1 TRADEMARKS. The parties shall enter into a mutually agreed
Trademark License Agreement regarding trademarks and branding for the TVsoft
Products.
8.2 TVSOFT'S MARKETING RIGHT. Until the occurrence of a Divestiture
Event, Netscape agrees that Netscape and its Affiliates (other than TVsoft)
will not (i) develop, market or distribute software products (in Source Code
or Object Code form) which are designed for use primarily on Consumer
Hardware Devices; or (ii) grant any third party any Source Code license for
the purpose of developing, marketing or distributing software products which
are designed for use primarily on Consumer Hardware Devices; or (iii) grant
any third party any license for Object Code which Netscape knows and intends
will be used on Consumer Hardware Devices; provided that in no event shall
the limitation of clause (iii) be deemed to require Netscape to include in
its Object Code license agreements a prohibition on the use of its software
products on Consumer Hardware Devices (notwithstanding whether such Object
Code license agreements may also include a Source Code escrow provision).
8.3 NETSCAPE'S MARKETING RIGHT. Because Netscape Technology and
Netscape Confidential Information will be pervasive within TVsoft, TVsoft
agrees that during the Update Period, TVsoft and its Affiliates will not
develop, license, market or distribute any product that is directed to the
market for personal computers or any successor products to the multipurpose
personal computer (including those that function as servers), or that uses a
Microsoft Windows, Apple Macintosh or UNIX operating system, or any new
release, new version, successor, follow-on or replacement of any such
operating
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system (other than any such release, version, successor, follow-on or
replacement that is designed primarily for use in connection with one or more
of the devices listed in Section 1.5(a) above), or license any technology for
the purpose of developing, licensing, marketing or distributing any product
that is directed to the market for personal computers or any successor
products to the multipurpose personal computer (including those that function
as servers), or that uses a Microsoft Windows, Apple Macintosh or UNIX
operating system, or any new release, new version, successor, follow-on or
replacement of any such operating system (other than any such release,
version, successor, follow-on or replacement that is designed primarily for
use in connection with one or more of the devices listed in Section 1.5(a)
above), or participate with, or sublicense any third party to engage in any
such activities.
8.4 EXCEPTIONS. TVsoft may, in its discretion, make exceptions to the
limitations in Section 8.2 above, and Netscape may, in its discretion, make
exceptions to the limitations set forth in Section 8.3 above, in each case,
upon the request by the other party with respect to business opportunities
that would otherwise be prohibited. Any such exceptions shall be embodied in
a writing signed by the party making the exception.
8.5 TREATMENT OF APIS -- PROCESS AND COMPATIBILITY.
(a) The parties will work together to develop a process whereby
Netscape will make TVsoft aware of new APIs that Netscape expects to include
in Netscape Technology Updates, and TVsoft will make Netscape aware of new
APIs that TVsoft expects to include in TVsoft Products, in each case as soon
as commercially feasible.
(b) In the event that TVsoft uses functions of the Netscape
Technology in TVsoft Products, then TVsoft shall preserve in TVsoft Products
the same API for such function as is present in the Netscape Technology;
however, with respect to additional software other than Netscape Technology or
Derivative Works thereof that are included in TVsoft Products, TVsoft may
include other APIs as it determines in its sole discretion.
8.6 STANDARDS. TVsoft will support Netscape's applicable Internet
standards in the marketplace.
9. TAXES. TVsoft shall be responsible for and shall pay all taxes now or
hereafter imposed on or in connection with this License Agreement or with any
sublicense granted hereunder, including, but not limited to, sales, use or
value-added taxes, duties, withholding taxes and other assessments.
10. RECORDS AND AUDITS
10.1 RECORDS. TVsoft shall maintain full, tree and accurate records
of licenses granted hereunder to Source Code OEMs and any other agreements
and practices involving the Source Code version of Netscape Technology.
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10.2 AUDIT OF RECORDS. Netscape shall have the right, during normal
business hours, to have an independent third party auditor review and analyze
the relevant records and facilities of TVsoft to verify compliance with the
provisions of this License Agreement. Any such audit shall be conducted at
Netscape's expense. Netscape shall give TVsoft at least ten (10) business
days' prior written notice of any such audit. Audits under this Section 10.2
may take place no more frequently than once in any twelve (12) month period;
provided, that if any such audit discloses any material breach of this
License Agreement, then the next succeeding audit may be conducted after six
(6) months.
11. PROPRIETARY RIGHTS.
11.1 NETSCAPE PROPRIETARY RIGHTS. Title to and ownership of all
copies of the Netscape Technology, Netscape Technology Updates and Netscape
Tools, whether in machine-readable or printed form, and all related technical
know-how provided by Netscape and all intellectual property rights therein
and thereto, are and shall remain the exclusive property of Netscape or its
suppliers. TVsoft shall not knowingly take any action to jeopardize, limit or
interfere in any manner with Netscape's ownership of and rights with respect
to the Netscape Technology, Netscape Technology Updates and Netscape Tools.
Any Derivative Works made by TVsoft or its licensees outside the scope of the
licenses granted herein shall belong exclusively to Netscape. TVsoft shall
inform Netscape promptly in writing of any such Derivative Works and shall
execute and cause to be executed such instruments and documents and take such
other actions as Netscape shall reasonably request from time to time to
effect the foregoing assignment.
11.2 NETSCAPE PROPRIETARY NOTICES. TVsoft shall ensure that all
copies of the Netscape Technology, TVsoft Products and related documentation
conspicuously display a notice substantially in the following form:
portions Copyright -C- 1994 -1996 (or other appropriate
year(s)), Netscape Communications Corporation. All
Rights Reserved.
If TVsoft is unsure of the appropriate year(s), it shall consult with
Netscape to obtain the correct designation. If the copyright symbol -C-
cannot technically be reproduced, TVsoft shall use the word 'Copyright'
followed by the notation '(c)' in its place.
11.3 TVSOFT PROPRIETARY RIGHTS. Title to and ownership of all copies
of Derivative Works of the Netscape Technology, Netscape Technology Updates
and Netscape Tools made by TVsoft within the scope of the license granted
herein, whether in machine-readable or printed form and all related technical
know-how developed by TVsoft and all intellectual property rights therein,
are and shall remain the exclusive property of TVsoft or its suppliers, in
all cases subject to Netscape's and its suppliers' rights in the Netscape
Technology, Netscape Technology Updates and Netscape Tools.
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12. CONFIDENTIAL INFORMATION AND DISCLOSURE
12.1 CONFIDENTIAL INFORMATION. For the purposes of this License
Agreement, 'Confidential Information' of Netscape means (i) the Netscape
Technology, Netscape Technology Updates and Netscape Tools; (ii) information
regarding Netscape's business, marketing and technical plans (other than
documentation and information expressly intended for use by and released to
end users or the general public), and (iii) any and all other information, of
whatever type and in whatever medium, that is disclosed in any form by
Netscape to TVsoft and identified as Confidential Information. 'Confidential
Information' of TVsoft means (i) TVsoft Technology and TVsoft tools, (ii)
information regarding TVsoft's business, marketing and technical plans (other
than documentation and information expressly intended for use by and released
to end users or the general public), and (iii) any and all other information
of whatever type and in whatever medium, that is disclosed in any form by
TVsoft to Netscape and identified as Confidential Information.
12.2 PRESERVATION OF CONFIDENTIALITY; NON-DISCLOSURE. Each party
('Receiving Party') shall hold all Confidential Information of the other
party ('Disclosing Party') in trust and in strict confidence for the sole
benefit of the Disclosing Party and for the exercise of the limited rights
expressly granted to the Receiving Party under this License Agreement. The
Receiving Party shall take all steps reasonably necessary to preserve the
confidentiality of the Confidential Information of the Disclosing Party, and
to prevent it from falling into the public domain or in the possession of
persons other than those persons to whom disclosure is authorized hereunder,
including but not limited to those steps that the Receiving Party takes to
protect the confidentiality of its own most highly confidential information.
Except as may be expressly authorized by the Disclosing Party in writing, the
Receiving Party shall not at any time, either before or after any termination
of this License Agreement, directly or indirectly: (i) disclose any
Confidential Information to any person other than an employee, subcontractor
or permitted Source Code licensee of the Receiving Party who needs to know or
have access to such Confidential Information for the purposes of this License
Agreement, and only to the extent necessary for such purposes (and with
respect to any Source Code, only in accordance with Section 12.6 below); (ii)
except as otherwise provided in this License Agreement, duplicate the
Confidential Information for any purpose whatsoever; or (iii) use the
Confidential Information for any reason or purpose other than as permitted in
this License Agreement.
12.3 NOTICE TO DISCLOSING PARTY. If at any time the Receiving Party
becomes aware of any unauthorized duplication, access, use, possession or
knowledge of any Confidential Information, including use of Confidential
Information beyond the scope of the applicable license grant(s), the Receiving
Party shall immediately notify the Disclosing Party. The Receiving Party
shall provide any and all reasonable assistance to the Disclosing Party to
protect the Disclosing Party's proprietary rights in any Confidential
Information that the Receiving Party or its employees or permitted
subcontractors or Source Code licensees may have directly or indirectly
disclosed or made available and that may be duplicated, accessed, used,
possessed or known in a manner or for a purpose not expressly authorized by
this License Agreement including but not limited to enforcement of
confidentiality agreements, commencement and prosecution in good faith (alone
or with the Disclosing Party) of legal action, and reimbursement for all
reasonable attorneys' fees (and all related costs), costs and expenses
incurred by the Disclosing Party to
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protect its proprietary rights in the Confidential Information. The Receiving
Party shall take all reasonable steps requested by the Disclosing Party to
prevent the recurrence of any unauthorized duplication, access, use,
possession or knowledge of the Confidential Information.
12.4 ACCOUNTING, ETC. If either party violates or fails to comply
with any of the terms or conditions of this Section 12, the other party shall
be entitled to an accounting and repayment of all forms of compensation,
commissions, remuneration or benefits which such other party directly or
indirectly realizes as a result of or in connection with any such violation
or failure to comply. Such remedy shall be in addition to and not in
limitation of any injunctive relief or other remedies to which either party
may be entitled under this License Agreement or otherwise, at law or in
equity.
12.5 EXCEPTIONS. The foregoing restrictions will not apply to
information to the extent that the Receiving Party can demonstrate such
information: (i) was known to the Receiving Party at the time of disclosure
to the Receiving Party by the Disclosing Party as shown by the files of the
Receiving Party in existence at the time of disclosure; (ii) becomes part of
information publicly available through no fault of the Receiving Party; (iii)
has been rightfully received from a third party authorized by the Disclosing
Party to make such disclosure without restriction; (iv) has been approved for
release by prior written authorization of the Disclosing Party; or (v) has
been disclosed by court order or as otherwise required by law (including
without limitation to the extent that disclosure may be required under
Federal or state securities laws), provided that the Receiving Party has
notified the Disclosing Party immediately upon learning of the possibility of
any such court order or legal requirement and has given the Disclosing Party
a reasonable opportunity (and cooperated with the Disclosing Party) to
contest or limit the scope of such required disclosure (including application
for a protective order). Information shall not be deemed known to the
Receiving Party or publicly known for purposes of the above exceptions (A)
merely because it is embraced by more general information in the prior
possession of the Receiving Party or others, or (B) merely because it is
expressed in public material in general terms not specifically the same as
Confidential Information.
12.6 TREATMENT OF SOURCE CODE. Source Code for the Netscape
Technology, Netscape Technology Updates, Netscape Tools, TVsoft Technology
and TVsoft Products and any Derivative Works thereof shall be Confidential
Information under the foregoing terms of this Section 12 and shall in
addition be subject to the terms of this Section 12.6.
(a) TVsoft will limit access to the Source Code of the Netscape
Technology, Netscape Technology Updates and Netscape Tools solely to TVsoft
employees and on-site independent contractors ('Contractors') with a need to
know for purposes of this License Agreement, and will limit access to the
Source Code of TVsoft Products containing Derivative Works of the Netscape
Technology only to employees, Source Code licensees (authorized pursuant to
Section 2.3) and Contractors who have a need to know for purposes of this
License Agreement. In the event that any third party acquires a majority of
the outstanding capital stock of TVsoft entitled to vote in the election of
directors, or in the event of assignment of this Agreement by TVsoft pursuant
to Section 17.3, then TVsoft agrees that:
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(i) its employees and Contractors who have had access to
the Source Code of the Netscape Technology, Netscape
Technology Updates, Netscape Tools, Derivative Works of
any of the foregoing or TVsoft Products containing
Derivative Works of the foregoing will not, for a period
of six (6) months after the effective date of such
acquisition or assignment (as applicable), participate
in the development of any product that competes with the
Netscape Products or TVsoft Products for TVsoft or for
the acquiring party or assignee (as applicable);
provided, that the foregoing provisions of this clause
(i) shall not be deemed to limit any such employee or
Contractor from continuing to participate in the
development of TVsoft Products hereunder, and
(ii) its employees and Contractors who have had access
to the Source Code of the Netscape Technology, Netscape
Technology Updates or Netscape Tools will not, for a
period of six (6) months after such employee or
Contractor has ceased to have access to such Source
Code, participate in the development of any product that
competes with the Netscape Products or TVsoft Products
for the acquiring party or assignee (as applicable); (A)
provided, that the foregoing provisions of this clause
(ii) shall not be deemed to limit any such employee or
Contractor from continuing to participate in the
development of TVsoft Products hereunder; (B) provided,
further, that the foregoing provisions of this clause
(ii) shall terminate two (2) years after the effective
date of such acquisition or assignment (as applicable);
and (C) provided, further, that for the purposes of this
clause (ii), loss of access to the Source Code for
Netscape Technology, Netscape Technology Updates and
Netscape Tools shall be deemed to occur upon the return
or destruction of all copies of such Source Code under
Section 17.3 or otherwise, although such return or
destruction shall not be considered to be the exclusive
means of demonstrating such loss of access.
Netscape will limit access to the Source Code of the TVsoft Technology solely
to Netscape employees and Contractors with a need to know for purposes of
this License Agreement, and will limit access to the Source Code of Netscape
Products containing Derivative Works of the TVsoft Technology only to
employees, Source Code licensees (authorized pursuant to Section 4.3) and
Contractors, who have a need to know for purposes of this License Agreement
(b) The Receiving Party shall have in place a confidentiality
agreement with each of its employees, Source Code licensees and Contractors
who are given access to the Source Code, which requires the employee,
Contractor or Source Code licensee to comply with the requirements of this
License Agreement. At Netscape's or TVsoft's written request, designated
Source Code shall be marked 'Netscape Confidential' or 'TVsoft Confidential,'
respectively.
(c) Each party shall use its best efforts to protect the
confidentiality of the other party's Source Code, including methods of
limiting access. The Receiving Party will use the other party's Source Code
in a building with restricted access or in a locked room; and only on
computer systems with security
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protection which is adequate to prevent unauthorized parties from accessing
such Source Code. TVsoft shall not permit access to the Source Code of the
TVsoft Products or Netscape Technology electronically except for individually
controlled distributions to permitted Source Code licensees with protections
adequate to avoid receipt by unauthorized parties. Each party shall be liable
for the conduct of its employees, agents, representatives and independent
contractors who in any way breach this section of this License Agreement.
(d) If the Receiving Party decides, where permitted by the
scope of the licenses granted in this License Agreement, to license the
Source Code version of the other party's Technology, such license shall be
subject to the terms of Section 2.3 or 4.3, as applicable and protective
terms no less protective than the terms of this Section 12.6.
12.7 CONFIDENTIALITY OF AGREEMENT. The terms and conditions of this
License Agreement shall be treated as Confidential Information; provided that
each party may disclose the terms and conditions of this License Agreement:
(i) to legal counsel; (ii) in confidence, to accountants, banks and financing
sources and their advisors; (iii) in connection with the enforcement of this
License Agreement or rights under this License Agreement; (iv) as required by
law or regulations; and (v) to others, as mutually agreed by the parties.
Both parties shall treat the fact that the parties have entered into this
License Agreement as Confidential Information until a mutually agreed public
announcement is released.
12.8 REMEDIES. The Receiving Party acknowledges that any breach of
any of its obligations with respect to confidentiality or use of Confidential
Information hereunder is likely to cause or threaten irreparable harm to the
Disclosing Party and, accordingly, the Receiving Party agrees that in such
event the Disclosing shall be entitled to seek equitable relief to protect
its interest therein, including, but not limited to, preliminary and
permanent injunctive relief, as well as money damages.
13. WARRANTY DISCLAIMER. THE NETSCAPE TECHNOLOGY, NETSCAPE TECHNOLOGY
UPDATES, NETSCAPE TOOLS AND TVSOFT TECHNOLOGY ARE PROVIDED ON AN 'AS IS'
BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF SUCH
ITEMS LIES WITH THE RECEIVING PARTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES
AN ESSENTIAL PART OF THIS LICENSE AGREEMENT.
14. LIMITATION OF LIABILITY. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO
EVENT SHALL EITHER PARTY OR ITS VENDORS OF THIRD PARTY CODE 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, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE) EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, OR FOR ANY CLAIM AGAINST SUCH PARTY BY ANY THIRD PARTY; PROVIDED,
HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY TO A BREACH BY EITHER
PARTY OF SECTION 12, A BREACH BY TVSOFT OF SECTION 2 OR A BREACH BY NETSCAPE
OF SECTION 4. IN NO EVENT WILL EITHER PARTY OR ITS
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VENDORS OF THIRD PARTY CODE BE LIABLE FOR (A) ANY REPRESENTATION OR WARRANTY
MADE BY THE OTHER PARTY OR ITS DISTRIBUTION CHANNELS OR AGENTS TO ANY THIRD
PARTY; (B) FAILURE OF THE OTHER PARTY'S TECHNOLOGY TO PERFORM; (C) FAILURE OF
THE OTHER PARTY'S TECHNOLOGY TO PROVIDE SECURITY; OR (D) ANY USE OF THE OTHER
PARTY'S TECHNOLOGY OR THE RESULTS OR INFORMATION OBTAINED OR DECISIONS MADE BY
END USERS OF THE OTHER PARTY'S TECHNOLOGY.
15. TERM AND TERMINATION
15.1 EFFECTIVE DATE. This License Agreement will not be binding upon
the parties until it has been signed by or on behalf of each party, in which
event it shall be effective as of the Effective Date. This License Agreement
shall continue in force unless and until earlier terminated as provided herein.
15.2 TERMINATION FOR MATERIAL DEFAULT.
(a) For the purposes of this Section 15.2, 'Material
Default' shall mean a material failure by a party to: (i) deliver any material
item that it is obligated to deliver to the other party under this License
Agreement, if such item is in existence at the time of the failure; or (ii)
comply with the material provisions of Section 2 (for TVsoft) or Section 4 (for
Netscape); or (iii) comply with the provisions of Section 12; or (iv) comply
with the provisions of Section 8.2 (for Netscape) or Section 8.3 (for TVsoft).
(b) If either party believes that the other party is in Material
Default, it may deliver to the other party a written notice of termination
for Material Default. If such Material Default is not corrected within thirty
(30) days after receipt of such notice, the non-defaulting party may
terminate this License Agreement effective immediately upon notice to the
defaulting party.
15.3 EFFECT OF TERMINATION FOR MATERIAL DEFAULT. Upon termination of
this License Agreement, (a) all licenses granted herein to the defaulting party
under Section 2 (if TVsoft is the defaulting party) or Section 4 (if Netscape is
the defaulting party) shall terminate (but those licenses that are irrevocable
under Section 3 shall not terminate), and (b) all licenses granted herein to the
non-defaulting party under Section 2 (if TVsoft is the non-defaulting party)
shall survive with respect to Netscape Technology that was delivered (or
required to be delivered) under Section 5.2 prior to the effective date of
termination or Section 4 (if Netscape is the non-defaulting party) shall survive
with respect to TVsoft Technology that was delivered or is required to be
delivered under Section 5.3; provided that the defaulting party may continue to
use a reasonable number of copies of the Netscape Technology under Section 2 (if
TVsoft is the defaulting party) or the TVsoft Technology under Section 4 (if
Netscape is the defaulting party) for support of customers existing as of the
termination date. The non-defaulting party's surviving license is subject to
termination for Material Default as provided herein. In addition, any and all
End User licenses granted prior to the effective date of termination of the
applicable license shall survive and the defaulting party and its Distribution
Channels shall have the right to distribute any products remaining in inventory
after the effective date of termination of the applicable license.
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15.4 SURVIVAL. Sections 3, 5.3, 6.1-6.3 (according to the terms of
the technical assistance plan developed pursuant thereto) 6.4, 7, 10-14, 15.3,
15.5, 16 and 17 of this License Agreement, and Sections 2 and 4 of this License
Agreement to the extent set forth in Section 15.3 above, shall remain in effect
in accordance with their terms, binding the parties and their legal
representatives and successors beyond any expiration or termination of this
License Agreement. All other provisions shall terminate.
15.5 REMEDIES CUMULATIVE. Except as expressly provided in Section
5.4, the remedies herein are cumulative, and nothing in this section is intended
to preclude a party from exercising any remedy available at law or equity,
including without limitation rights and remedies available under applicable
patent, copyright, trade secret and other intellectual property laws, rules and
regulations, due to a Material Default or any other breach.
16. CHANGES OVER TIME. The parties acknowledge that, because of the rapid pace
of technological change and evolution in the industries associated with the
Internet and software related thereto, many of the underlying facts and
circumstances (including assumptions regarding the facts and circumstances) that
were the basis for the allocation of various rights and obligations pursuant to
this Agreement are likely to change over time as such industries evolve. In
drafting this License Agreement, the parties have addressed relevant facts and
issues as they exist with current technologies and today's business models;
however, the parties also intend for this License Agreement to remain in force
throughout the term as such technologies and business models change over time,
with appropriate modifications to reflect such equitable adjustments as are
required to maintain a substantially comparable allocation of rights and
obligations in light of changed circumstances. The parties do not intend for
this License Agreement to be effectively nullified or abrogated because of
changed circumstances, but rather intend that the intent and purpose of this
License Agreement be preserved as circumstances change. To such end, the parties
agree that certain provisions regarding the parties' respective rights and
obligations under this License Agreement, while drafted to address current
circumstances, are also intended to reflect general principles to be implemented
by the parties in a pragmatic and meaningful way as such circumstances change.
Notwithstanding the foregoing, the provisions of this Section 16 shall not
apply to those rights and/or obligations that should not be affected by changes
in technology and/or business models.
17. MISCELLANEOUS
17.1 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing in English and shall be deemed to be
properly given upon the earlier of (a) actual receipt by the addressee or (b)
seven (7) calendar days after deposit in the mail, postage prepaid, when mailed
by registered or certified airmail, return receipt requested, or (c) 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 Section 17.1. Notices to Netscape and TVsoft shall be attention
to: General Counsel and President, respectively.
17.2 WAIVER AND AMENDMENT. The waiver by either party of a breach of
or a default under any provision of this License Agreement, shall not be
construed as a waiver of any subsequent breach of the
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same or any other provision of this License 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 License Agreement
shall be effective unless in writing and signed by a duly authorized signatory
of Netscape and TVsoft.
17.3 ASSIGNMENT. This License Agreement and the licenses granted
hereunder are to a specific legal entity or legal person (not including
Subsidiaries or Affiliates except to the extent specifically set forth herein),
and are not assignable by TVsoft or Netscape, nor are the obligations imposed on
TVsoft or Netscape delegable; provided, however, that:
(a) with respect to TVsoft, after the earlier of (i)
consummation of an IPO (as defined in Section (b) of the
Stockholder Agreement) or (ii) the date that is one
hundred and thirty-five (135) days after a Divestiture
Event other than an IPO, TVsoft may assign this License
Agreement to an entity that succeeds to all or
substantially all of the business or assets of TVsoft;
provided, further, that in the event of such an
assignment, (x) Netscape shall have the right to require
TVsoft to return or destroy, at Netscape's option, all
copies of the Source Code for Netscape Technology,
Netscape Tools and Netscape Technology Updates and
TVsoft shall have the right to return or destroy all
such copies, and (y) the provisions of Section 12.6
shall apply. Any attempt by TVsoft to sublicense (except
as expressly permitted herein), assign or transfer any
of the rights, duties or obligations under this License
Agreement in derogation hereof whether by operation of
law or otherwise shall be null and void; and
(b) with respect to Netscape, Netscape shall have the
right to assign this License Agreement to an entity that
succeeds to all or substantially all of the business or
assets of Netscape.
17.4 COMPLIANCE WITH APPLICABLE LAWS. The parties shall at all times
comply with all applicable regulations and orders of their respective countries
and all conventions and treaties to which their countries are a party or
relating to or in any way affecting this License Agreement and the performance
by the parties of this License Agreement. Each party, at its own expense, shall
negotiate and obtain any approval, license or permit required in the performance
of its obligations, and shall declare, record or take such steps to render this
License Agreement binding, including, without limitation, the recording of this
License Agreement with any appropriate governmental authorities (if required).
17.5 LEGAL COSTS AND EXPENSES. In the event either party retains the
services of an attorney or attorneys to enforce the terms of this License
Agreement or to file or defend any action arising out of this License Agreement,
then the prevailing party in any such action shall be entitled, in addition to
any other rights and remedies available to it at law or in equity, to recover
from the other party its reasonable fees for attorneys and expert witnesses,
plus such court costs and expenses as may be fixed by any court of competent
jurisdiction. The term 'prevailing party' for the purposes of this Section shall
include a
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defendant who has by motion, judgment, verdict or dismissal by the court,
successfully defended against any claim that has been asserted against it.
17.6 GOVERNING LAW: JURISDICTION. This License 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
disputes regarding this License 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.
This License 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.
17.7 RELATIONSHIP OF THE PARTIES. No agency, partnership, joint
venture, or employment is created as a result of this License Agreement and
neither party nor its agents have any authority of any kind to bind the other
party in any respect whatsoever.
17.8 CAPTIONS AND SECTION HEADINGS. The captions and section and
paragraph headings used in this License Agreement are inserted for convenience
only and shall not affect the meaning or interpretation of this License
Agreement.
17.9 SEVERABILITY. If the application of any provision or provisions
of this License 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 License 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.
17.10 ENTIRE AGREEMENT. This License 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 License Agreement and all past courses of
dealing or industry custom. The terms and conditions of this License Agreement
shall prevail, notwithstanding any variance with any other written instrument
submitted by either party, whether formally rejected or not.
-22-
IN WITNESS WHEREOF, the parties have caused this License Agreement to be
executed by duly authorized representatives of the parties effective as of
the Effective Date.
NETSCAPE COMMUNICATIONS TVSOFT CORPORATION
CORPORATION
By: /s/ Jim Sha By:
---------------------- -------------------
Signature Signature
Name: JIM SHA Name:
--------------------- ------------------
Print or Type Print or Type
Title: SR. VICE PRESIDENT, Title:
NEW VENTURES
-------------------- ----------------------
Date: 7/9/96 Date:
--------------------- ------------------
IN WITNESS WHEREOF, the parties have caused this License Agreement to be
executed by duly authorized representatives of the parties effective as of
the Effective Date.
NETSCAPE COMMUNICATIONS TVSOFT CORPORATION
CORPORATION
By: By: /s/ Wei Yen
------------------- --------------------
Signature Signature
Name: Name: WEI YEN
------------------ -------------------
Print or Type Print or Type
Title: Title: President & CEO
----------------- ------------------
Date: Date: 7/9/96
------------------ -------------------
ATTACHMENT A
NETSCAPE TECHNOLOGY
Netscape Technology: Source Code, Object Code and related documentation for:
(1) Netscape Navigator, LAN Edition, version 2.0,
(2) Netscape Navigator Gold, LAN Edition, version 2.0,
(3) Netscape Chat, version 2.0
(4) Netscape LiveMedia version 2.0
(5) Netscape Live3D, version 2.0
(6) Netscape Power Pack
(7) Netscape Navigator, LAN Edition. version 3.0 (currently in beta)
(8) other Netscape client software products (which shall be
identified by the parties in writing from time to time by amendment
to this Attachment A)
Netscape Tools: To be identified by the parties from time to time in writing
by amendment to this Attachment A.
Netscape will use its good faith, reasonable commercial efforts to identify
other Netscape client software products and tools that it believes may be
appropriate for addition to this Attachment A and to discuss with TVsoft
whether such products and tools should be added to this Attachment A.
NETSCAPE COMMUNICATIONS TVSOFT CORPORATION
CORPORATION
By: /s/ Jim Sha By:
---------------------- ----------------------
Signature Signature
Name: JIM SHA Name:
-------------------- -------------------
Print or Type Print or Type
Title: SR. VICE PRESIDENT, Title:
NEW VENTURES
------------------- -------------------
Date: Date:
-------------------- ------------------
ATTACHMENT A
NETSCAPE TECHNOLOGY
Netscape Technology: Source Code, Object Code and related documentation for:
(1) Netscape Navigator, LAN Edition, version 2.0,
(2) Netscape Navigator Gold, LAN Edition, version 2.0,
(3) Netscape Chat, version 2.0
(4) Netscape LiveMedia version 2.0
(5) Netscape Live3D, version 2.0
(6) Netscape Power Pack
(7) Netscape Navigator, LAN Edition. version 3.0 (currently in beta)
(8) other Netscape client software products (which shall be
identified by the parties in writing from time to time by
amendment to this Attachment A)
Netscape Tools: To be identified by the parties from time to time in writing
by amendment to this Attachment A.
Netscape will use its good faith, reasonable commercial efforts to identify
other Netscape client software products and tools that it believes may be
appropriate for addition to this Attachment A and to discuss with TVsoft
whether such products and tools should be added to this Attachment A.
NETSCAPE COMMUNICATIONS TVSOFT CORPORATION
CORPORATION
By: By: /s/ Wei Yen
------------------- -------------------
Signature Signature
Name: Name: WEI YEN
------------------ -------------------
Print or Type Print or Type
Title: Title: President & CEO
----------------- -----------------
Date: Date: 7/9/96
----------------- -----------------
ATTACHMENT B
THIRD PARTY CODE
(1) RSA
(2) Borland Just In Time Compiler
(3) Java
(4) other Third Party Code licensed in Object Code form only (which
shall be identified by the parties in writing from time to time by
amendment to this Attachment B)
Whether the above Third Party Code can be licensed by Netscape to
TVsoft hereunder, and any restrictions, fees or consents under
Section 2.5 will be identified in writing by Amendment to this
Attachment B.
NETSCAPE COMMUNICATIONS TVSOFT CORPORATION
CORPORATION
By: /s/ Jim Sha By:
------------------- ---------------------
Signature Signature
Name: JIM SHA Name:
------------------ -------------------
Print or Type Print or Type
Title: SR. VICE PRESIDENT, Title:
NEW VENTURES
-------------------- -------------------
Date: 7/9/96 Date:
----------------- --------------------
ATTACHMENT B
THIRD PARTY CODE
(1) RSA
(2) Borland Just In Time Compiler
(3) Java
(4) other Third Party Code licensed in Object Code form only (which
shall be identified by the parties in writing from time to time by
amendment to this Attachment B)
Whether the above Third Party Code can be licensed by Netscape to
TVsoft hereunder, and any restrictions, fees or consents under
Section 2.5 will be identified in writing by Amendment to this
Attachment B.
NETSCAPE COMMUNICATIONS TVSOFT CORPORATION
CORPORATION
By: By: /s/ Wei Yen
------------------- -------------------
Signature Signature
Name: Name: WEI YEN
------------------ -------------------
Print or Type Print or Type
Title: Title: President & CEO
----------------- -----------------
Date: Date: 7/9/96
----------------- -----------------
Source Code License Agreement - Netscape Communications Corp. and TVsoft Corp.
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