09/08/98
TECHNOLOGY
LICENSE
AGREEMENT
between
ORACLE CORPORATION
and
NETWORK COMPUTER, INC.
SIGNATURE PAGE
This Technology License Agreement (the "Agreement") is made by and between
Oracle Corporation, a Delaware corporation ("Oracle") and Network Computer, Inc.
("NCI"), a Delaware corporation.
AGREEMENT ACKNOWLEDGMENT
The undersigned hereby acknowledge that they have read and that they fully
understand the terms of this Agreement.
The undersigned hereby agree that by signing below they become parties to this
Agreement and agree to be bound by all terms, conditions, and obligations
contained herein.
The Effective Date of this Agreement shall be September 8, 1998.
------------------
ORACLE CORPORATION NETWORK COMPUTER INC.
By: /s/ RAY LANE By: /s/ DAVID ROUST
-------------------------------- --------------------------------
Name: Ray Lane Name: David Roust
-------------------------- --------------------------
Title: President & CCO Title: CEO
------------------------- -------------------------
EXECUTED IN DUPLICATE
Page: 1
RECITALS
A. Oracle designs, develops, markets, licenses and supports information
systems software products with a wide variety of uses, including
database management, applications development, decision support,
programmer management, programmer tools, computer network
communications, end user applications, and office automation.
B. NCI owns all rights, title, and interest in, or has been licensed by
the owner of, the NCI Technology (as hereinafter defined).
C. Oracle desires to promote, market and distribute sublicenses of the NCI
Technology through its worldwide distribution channels to corporations,
governments, institutions and other entities.
D. NCI desires to grant Oracle a license to market and sublicense the NCI
Technology as specified in this Agreement.
Therefore, in consideration of the mutual promises and covenants set forth
below, Oracle and NCI agree as follows:
ARTICLE I
DEFINITIONS
1.1 DISTRIBUTOR
"Distributor" shall mean a third party that is appointed by Oracle or its
Distributor to market and sublicense all or part of the NCI Technology under the
terms of this Agreement, including "ISP Distributor" who are appointed by Oracle
to distribute NCI's Consumer Software and "SI Distributor" who are appointed by
Oracle to distribute NCI's Corporate Software.
1.2 DOCUMENTATION
"Documentation" shall mean the installation guides, user guides and manuals for
use of the NCI Technology in printed and machine-readable form.
1.3 INTELLECTUAL PROPERTY RIGHTS
"Intellectual Property Rights" shall mean all patent, copyright, trade secret,
trademark and other intellectual property rights.
1.4 NCI TECHNOLOGY
"NCI Technology" shall mean the NCI Consumer Software, the NCI Corporate
Software and the NCI SDK Software. Additional software may be added to Exhibit A
(including localized versions of the NCI Technology) upon mutual written
agreement of the parties.
1.5 NCI CONSUMER SOFTWARE
Page: 2
"NCI Consumer Software" shall mean the computer software specified as "NCI
Consumer Software" on Exhibit A owned or distributed by NCI and any Updates
thereto. Unless otherwise specified, "NCI Consumer Software" shall include
Object Materials and Documentation.
1.6 NCI CORPORATE SOFTWARE
"NCI Corporate Software" shall mean the computer software specified as "NCI
Corporate Software" on Exhibit A owned or distributed by NCI and any Updates
thereto. Unless otherwise specified, "NCI Corporate Software" shall include
Object Materials and Documentation.
1.7 NCI SDK SOFTWARE
"NCI SDK Software" shall mean the computer software specified as a "Software
Development Kit" on Exhibit A owned or distributed by NCI and any Updates
thereto. Unless otherwise specified, "NCI SDK Software" shall include Object
Materials and Documentation.
1.8 NCI PRICE LIST
"NCI Price List" shall mean NCI's suggested retail price list for the NCI
Technology. A current copy of NCI's Price List is attached hereto as Exhibit C
and may be updated by NCI from time to time by providing sixty days written
notice of such update to Oracle's Vice President of Worldwide Operations. All
prices in the NCI Price List are in U.S. dollars.
1.9 OBJECT MATERIALS
"Object Materials" shall mean materials, in machine-readable form, necessary to
run the NCI Technology, including all computer programming code, substantially
or entirely in binary form, which is directly executable by a computer after
suitable processing but without the intervening steps of compilation or assembly
and all help, message, and overlay files.
1.10 ORACLE
"Oracle" shall mean Oracle Corporation and any Oracle Subsidiary. "Oracle
Subsidiary" shall mean any corporation, partnership or firm, in which Oracle,
directly or indirectly, holds a fifty percent (50%) or more ownership interest.
1.11 SUBLICENSE/SUBLICENSEE
"Sublicense" shall mean any license granted by Oracle or its Distributors for
use of NCI Technology. "Sublicensee" shall be a party who is granted a
Sublicense, either directly by Oracle or indirectly by a Distributor.
1.12 UPDATES
"Updates" shall mean any releases (including any preproduction releases) of NCI
Technology created on or after the Effective Date, including bug fixes,
improvements, enhancements, new versions or releases, and successor products
thereto (including any product that substantially replaces the NCI Technology or
portion thereof in a particular market segment) which NCI provides to Oracle as
a supported licensee of the NCI Technology under NCI's Technical Support
Services policies.
Page: 3
1.14 YEARS, QUARTERS
For the purposes of this Agreement, "Quarters" shall be deemed to commence on
the first day of June, September, December and March of each year of this
Agreement and each year of the Agreement shall be determined using the Effective
Date as the first day of the first year.
ARTICLE II
LICENSES GRANTED
2.1 DELIVERY OF NCI TECHNOLOGY
NCI shall deliver to Oracle the NCI Technology, including a complete set of
Object Materials and Documentation for the NCI Technology (except for NC Cards)
on the Effective Date of this Agreement and shall deliver all Updates of the NCI
Technology promptly upon completion, and in no event later than when such
Updates are delivered to any other licensee. In addition, NCI shall deliver
pre-production releases of the NCI Technology ("Beta NCI Technology") to Oracle
promptly upon completion and in no event later than when such Beta NCI
Technology is delivered to any other licensee subject to Oracle's execution of
NCI's standard Beta Agreement.
NCI shall deliver to Oracle the number of NC Cards requested by Oracle as soon
as commercially feasible after receiving a purchase order from Oracle for the NC
Cards.
2.2 DEVELOPMENT AND TECHNICAL SUPPORT LICENSE
NCI grants to Oracle a worldwide, royalty-free, non-exclusive, paid-up right and
license to execute, copy, reproduce, display, perform, develop, create
derivative works based on or otherwise use, change and/or maintain the Object
Materials and Documentation. Oracle shall only port, localize, translate and/or
customize the NCI Technology upon NCI's request under the terms and conditions
of the Services Agreement between Oracle and NCI effective as of the date
hereof.
NCI also grants to Oracle a worldwide, royalty-flee, non-exclusive, paid-up
right and license to use, execute, copy, reproduce, display, and/or perform the
NCI Technology as required to provide technical support services to end users of
the NCI Technology, provided that the foregoing grant shall be subject to any
applicable restrictions on internal use of embedded third party technology which
Oracle receives prior written notice of from NCI and which are imposed by NCI's
license agreements in effect with third party vendors. A current list of third
party restrictions is set forth on Exhibit G and Oracle shall comply with those
restrictions which specifically apply to internal use of the NCI Technology.
NCI also grants to Oracle a worldwide, royalty-flee, non-exclusive, paid-right
and license to use, execute, copy, reproduce, display and/or perform the NCI
Beta Technology for internal evaluation purposes only. Oracle shall have no
right to sublicense the NCI Beta Technology without the prior written approval
of the General Counsel and NCI Oracle Channel Manager (as defined on Exhibit E)
or other NCI designated representative. If such approval is granted, Oracle
shall have the right to sublicense the NCI Beta Technology under the terms and
conditions specified in Section 2.3 below for the NCI Technology.
Page: 4
2.3 SUBLICENSING LICENSE
2.3.A SCOPE OF LICENSE.
Subject to the terms set forth herein, NCI hereby grants to Oracle a
worldwide, non-exclusive right and license to market, reproduce,
distribute and grant Sublicenses of the Object Materials and
Documentation of the NCI Technology including all Updates for use the
designated systems specified on NCI's Price List; provided, however,
that Oracle may not sublicense, without NCI's prior consent, the NCI
Technology to any customer listed on Exhibit D. Unless otherwise agreed
by the parties, Oracle and Distributors shall sublicense the NCI
Technology to end users under the applicable NCI standard end user
license agreement attached hereto as Exhibit H (the "NCI License") or
as such agreements are modified by NCI from time to time (which
modifications shall not impose any liability upon Oracle). For example,
the NCI SDK Software shall be sublicensed under the NCI SDK End User
License attached as part of Exhibit H. The NCI Technology provided by
NCI to Oracle under this Agreement shall contain an electronic version
of the applicable NCI License which shall be automatically presented to
the end user for acceptance during the installation process. Oracle
shall have no liability for its distribution of the NCI Technology
under an NCI License.
2.3.B DISTRIBUTORS.
NCI grants Oracle the right to license, sublicense and authorize
Distributors to market and sublicense to end users the Object Materials
and Documentation. of the NCI Technology including all Updates under
the terms of this Agreement, excluding the right to license, sublicense
and authorize other distributors to exercise the same rights unless NCI
has given its prior written approval to grant the Distributor the right
to appoint sub-distributors, which approval shall not be unreasonably
withheld. Except for ISP Distributors, Oracle will appoint Distributors
to grant sublicenses to the NCI Technology under the same terms and
conditions under which Oracle appoints Distributors to sublicense its
own products. A copy of Oracle's current distribution agreement is
attached as Exhibit B hereto. For ISP Distributors, Oracle will appoint
ISP Distributors to grant sublicenses to the NCI Consumer Software
under the same terms and conditions under which Oracle appoints
Distributors to sublicense its own products provided that Oracle shall
also have each ISP Distributor execute an ISP Addendum substantially in
the form attached hereto as Exhibit I.
2.3.C TRADEMARKS.
During the term of the Agreement, NCI hereby grants to Oracle and its
Distributors a nonexclusive, fully paid up license to use in connection
with marketing and distributing the NCI Technology the product name(s)
and trademark(s) used by NCI to identify the NCI Technology, subject to
Oracle's and Distributors' compliance with NCI's Signature Guidelines
attached as Exhibit F hereto, and to use such product names and
trademarks with Oracle trademarks in a manner that identifies such
products as parts of the Oracle product set. Oracle and Distributors
shall attribute all NCI product names and trademarks to NCI in Oracle's
use of such product names and trademarks.
2.4 INTERNAL USE LICENSE
Oracle shall have the perpetual, unrestricted right to reproduce, install and
use the NCI Technology, including Updates for its own internal use at no
additional charge; provided that Oracle's right to reproduce and distribute the
NCI Technology internally shall be limited to the term of this Agreement. This
right of internal use applies only to Oracle and Oracle Subsidiaries, and shall
not be extended to other Distributors and Sublicensees. Oracle will pay a
mutually agreed upon royalty to NCI for such internal use only if: (i)
Page: 5
NCI is obligated to pay a third party a royalty for the internal use license
grant to Oracle; and (ii) NCI provides Oracle with advance written notice of
this obligation and the amount of the royalty; and (iii) Oracle agrees in
writing to pay such royalty. If the parties are unable to agree upon such
royalty, Oracle's internal right to use and reproduce the applicable portion of
the NCI Technology requiring a third party royalty will cease. Other than as
specified in the preceding sentence, Oracle's internal use license shall be
fully paid up and royalty free.
2.5 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
NCI further grants to Oracle a worldwide, nonexclusive, nontransferable and
paid-up license to all Intellectual Property Rights necessary to use the NCI
Technology in accordance with the license granted under this Agreement; such
Intellectual Property Rights are included in the licenses granted to Oracle
under this Agreement.
Other than as licensed herein, NCI shall retain all right, title and interest to
NCI Technology and the NCI Beta Technology and any modification, enhancement,
localization or extension of the NCI Technology developed by Oracle under this
Agreement ("Modifications"). Modifications shall exclude any Application
Modifications as defined below. NCI hereby grants to Oracle a non-exclusive,
irrevocable, perpetual, worldwide, royalty free, fully paid-up license to use,
reproduce, modify, create derivative works based on, and sublicense the
Applications Modifications, including the right to sublicense through
distributors.
"Applications Modifications" shall mean any modifications, adaptations or
derivatives to NCI's SDK Software developed by or on behalf of Oracle which are
either (i) solely artwork modifications or (b) HTML or JAvaScript code (not
object) modifications specific to Oracle's Sublicenssee's implementation of the
NCI Technology. The parties shall jointly own all right, title and interest in
and to any Applications Modifications. Each party shall have non-exclusive,
undivided, equal ownership in the Application Modifications. Each party may
exercise any and all rights of ownership and may sublicense such rights in the
Application Modifications as if such rights were solely owned by each such
party, without permission of the other party, royalty-free and without duty to
account. Nothing in this paragraph shall grant to Oracle a license in the
underlying NCI Technology or NCI a license in any pre-existing Oracle programs
of Intellectual Property Rights.
NCI shall have sole responsibility for payment of all royalties and other
charges with respect to third party materials included in the NCI Technology, if
any. Oracle shall have no obligation to pay or account for such royalties or
other charges.
2.6 JOINT MARKETING AND SALES ACTIVITIES
The parties agree to undertake the joint marketing efforts identified on Exhibit
E. Except as specified on Exhibit E, Oracle shall have no obligation to market
the NCI Technology or any products containing the NCI Technology if it so
chooses, shall have full freedom and flexibility in the design and
implementation of its marketing efforts, and may discontinue any marketing
efforts at any time.
2.7 QUARTERLY MEETINGS
The parties agree to hold quarterly review meetings as necessary to review
business opportunities and marketing strategies.
ARTICLE III
Page: 6
FEES AND PAYMENTS
3.1 SUBLICENSE FEES
Oracle will pay to NCI a fee equal to seventy percent (70%) of the Net Fees
Oracle receives for Sublicenses of the NCI Technology, excluding NC Cards
("Sublicense Fee"). In no case, however,' shall the Sublicense Fee be less than
forty-nine percent (49%) of the NCI Price List for the NCI Technology which was
sublicensed ("Minimum Sublicense Fee"), except as the parties may agree in
writing on a case by case basis. The Minimum Sublicense Fee shall be calculated
effective the date the NCI Technology is shipped, and shall be calculated based
on the NCI Price List attached as Exhibit C. NCI may amend the NCI Price List no
more than once every six months upon sixty (60) days written notice to Oracle's
Vice President of Worldwide Operations. Notwithstanding any other provision of
this Agreement, if Oracle issues a written Sublicense quote, for a period of
nine months after the date of submission of the quote to the customer, the
Minimum Sublicense Fee applicable to the NCI Technology identified in the quote
shall be based on NCI's Price List in effect on the date the quote was issued.
"Net Fees" shall mean fees received by Oracle from its Sublicensees and from its
Distributors net of any return adjustments for NCI Technology returned within 90
days of shipment, shipping costs, or sales, use or other taxes paid. In the
event that Oracle or its Distributors sublicenses the NCI Technology with other
Oracle products or services for a single price, Net Fees from such Sublicense
shall equal the total Net Fees from the Sublicense multiplied by a fraction
A/(A+B), where A equals the list price of the NCI Technology sublicensed
separately and B equals the list price of the other products or services. If the
NCI Technology is bundled in a site license or package deal, and fees for the
NCI Technology are not distinguishable from fees for other Oracle products that
are part of the site license or package deal, the Net Fees for the NCI
Technology shall be based on the fee allocation agreed to by Oracle and the
Sublicensee for the products specified in the site license or package deal or on
the fee allocation made by Oracle's internal procedures, provided such
allocation reasonably reflects the relative value of the NCI Technology to the
other Oracle products.
Oracle agrees not to sublicense the NCI Technology in a manner which is
inconsistent with Oracle's then current standard pricing structure for products
without the prior written approval of NCI. Oracle agrees not to sublicense the
NCI Technology to a Sublicensee where the number of users/devices of the NCI
Technology is not specified in the Sublicense without NCI's prior written
consent.
NCI warrants to Oracle that the Sublicense Fees and other charges under this
Agreement shall not exceed those offered to others for similar rights, services
or products under similar terms and conditions. NCI agrees that if, while this
Agreement is in effect, NCI offers to any other person or entity equivalent
rights (including license grants), services or products at lesser Sublicense
Fees or charges, thereupon and thereafter NCI shall make available to Oracle
such lesser Sublicense Fees and charges for all such rights, services or
products. NCI agrees to notify Oracle at the time it offers such lesser
Sublicense Fees or charges to others.
Oracle and its Distributors are free to determine unilaterally the pricing of
NCI Technology Sublicenses to their Sublicensees and Distributors; provided,
however, that Oracle will not grant an end user a license discount that is
greater for the NCI Technology than for the most heavily discounted Oracle
program(s) of a like nature included in the same transaction, where the
discounts are calculated as a percentage of Oracle's then-current list license
fees. No Sublicense Fee or other charge shall be payable by Oracle for any use
of
Page: 7
the NCI Technology under this Agreement (i) for Oracle's internal use; (ii) for
development, technical support or maintenance activities; (iii) for marketing,
updates, trial Sublicenses (for which Oracle does not receive a license fee from
the Sublicensee), porting, documentation, demonstrations, training, educational
uses, or any other products or services; or (iv) as back-up copies. The
foregoing rights and licenses shall be deemed to be paid-up.
3.2 NC CARD FEES
Oracle shall pay to NCI a fee for each NC Card received from NCI under Section
2.1.B ("NC Cards") above which shall be equal to the amount paid by NCI for such
NC Card. NCI shall invoice Oracle for such NC Card Fees on a monthly basis and
shall provide Oracle with adequate written documentation to support the amount
charged for such NC Cards.
ARTICLE IV
PAYMENT TERMS AND REPORTING
4.1 PAYMENT TERMS
Within forty-five (45) days of the end of each Quarter, Oracle shall pay to NCI
all Sublicense Fees and Technical Support Fees accruing to NCI for that
particular Quarter. Sublicense Fees and Technical Support Fees shall be deemed
to accrue in the Quarter in which the NCI Technology is shipped. All other fees
shall be due and payable forty-five days from the receipt of an invoice from NCI
for such fees. The fees listed in this Agreement do not include taxes; if NCI is
required to pay sales, use, value-added or other similar taxes (excluding taxes
based on NCI's income) based on the licenses granted under this Agreement, then
such taxes shall be billed to and paid by Oracle.
4.2 REPORTING
Within forty-five (45) days of the last day of each Quarter, Oracle shall send
NCI a report detailing, for that Quarter the revenues due to NCI under this
Agreement as a result of Oracle's and its Distributors' Sublicensing activities
under this Agreement.
4.3 RECORDS; INSPECTION
Oracle shall keep accurate books of account and records pertaining to the
Sublicense activities and revenues of Oracle and the Sublicense revenues from
its Distributors to the extent such records are required in the ordinary course
of Oracle's business. No more than once during any twelve (12) month period,
NCI, at NCI's sole expense and based on a good faith belief that the reports
provided by Oracle are in error, shall be entitled to employ an independent
Certified Public Accountant who is not compensated based on the results of the
audit, and who is acceptable to Oracle (which acceptance shall not be
unreasonably withheld), to inspect such books of account and records upon
reasonable notice to Oracle, and at a reasonable time during normal business
hours for the purpose of verifying the Sublicense Fees and Technical Support
Fees payable to NCI pursuant to this Agreement. Unless necessary to establish in
a court of law NCI's right to payment of Sublicense Fees and Technical Support
Fees payable hereunder, NCI's auditor shall hold all information obtained in
strict confidence; shall not disclose such information to any other person or
entity (except NCI's executive officers) or its Board of Directors who shall be
subject to the same obligations of confidentiality as NCI's auditor) without
Oracle's prior written consent; and shall not disclose to NCI any information
regarding Oracle's business other than any noncompliance by Oracle with the fees
payment provisions
Page: 8
hereof. If an audit reveals that Oracle has underpaid fees to NCI, NCI shall
invoice Oracle for such underpaid fees and Oracle shall pay any such fees which
are undisputed.
ARTICLE V
TECHNICAL RESPONSIBILITIES
5.1 TECHNICAL SUPPORT SERVICES
Oracle and its Distributors shall provide all technical support to their
Sublicensees and Distributors, including installation assistance, training,
maintenance, and consulting. The parties have negotiated a separate Technical
Support Services Agreement effective as of the date hereof. NCI shall provide
Technical Support to Oracle for the NCI Technology as specified in the Technical
Support Services Agreement.
ARTICLE VI
TERM AND TERMINATION
6.1 INITIAL TERM--3 YEARS
This Agreement shall become effective on the Effective Date set forth on the
Signature Page attached hereto, and unless it is terminated shall be effective
for three (3) years from the Effective Date.
6.2 TERMINATION OF THE AGREEMENT
6.2.A TERMINATION.
Either party may terminate this Agreement at any time upon one hundred
and eighty days written notice; however, termination shall not relieve
Oracle of its obligation to pay all fees that have accrued against
Oracle under this Agreement. Such termination shall not limit either
party's ability to pursue other legal remedies available, including
injunctive relief.
6.2.B BREACH.
Either party may terminate this Agreement upon written notice if the
other party materially breaches the Agreement and (i) fails to commence
bona fide efforts to correct the breach within 90 days following
written notice specifying the breach or (ii) fails to cure the breach
within 180 days following written notice specifying the breach.
6.2.C FORCE MAJEURE.
Neither party shall be liable TO the other for failure or delay in the
performance of a required obligation if such failure or delay is caused
by riot, fire, flood, explosion, earthquake or other natural disaster,
government regulation, or other similar cause beyond such party's
control, provided that such party gives prompt written notice of such
condition and resumes its performance as soon as possible, and provided
further that the other party may terminate this Agreement if such
condition continues for a period of one hundred eighty (180) days.
6.3 RIGHTS UPON TERMINATION
6.3.A CONTINUED RIGHTS.
Page: 9
The termination of this Agreement shall not affect any paid-up right or
license granted hereunder. In the event of termination of this
Agreement, in whole or in part, any Sublicense granted by Oracle or its
Distributors to an end user prior to such termination or under the
terms of this Article VI, shall survive and continue. Except where NCI
has terminated the Agreement due to Oracle's material breach under
Section 6.2.B above, in the event of termination of expiration of the
Agreement, (i) Oracle may Sublicense and distribute any inventory of
the NCI Technology, including work in process, on hand at the time of
such termination, (ii) Oracle may continue to exercise the rights and
licenses granted hereunder for a period of up to six (6) months after
termination to fill any orders received by Oracle or its Distributors
from Sublicensees prior to the effective date of termination, and
(iii) Oracle may continue to exercise the rights and licenses granted
hereunder as necessary to provide maintenance and technical support for
Sublicensees.
6.3.B SURVIVAL.
In addition to the provisions of Sections 6.3.A and 6.3.B above, the
parties' rights and obligations under Sections 2.3 (Internal Use
License), 2.4 (Intellectual Property Rights), 8.1 (Nondisclosure), 8.3
(Governing Law and Jurisdiction), 8.4 (Assignment), 8.5 (Notice) and
Articles VI (Term and Termination), and VII (Representations and
Warranties) shall survive expiration or termination of this Agreement.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 NO CONFLICT
NCI represents and warrants that it is under no obligation or restriction, nor
will it assume any such obligation or restriction, that does or would in any way
adversely affect the performance to be rendered by NCI or the rights and
licenses granted to Oracle herein.
7.2 INTELLECTUAL PROPERTY WARRANTY AND INFRINGEMENT INDEMNITY
NCI will defend and indemnify Oracle against a claim that NCI Technology
infringe a copyright or patent or other intellectual property right, provided
that: (a) Oracle notifies NCI in writing within 30 days of the claim; (b) NCI
has sole control of the defense and all related settlement negotiations; and (c)
Oracle provides NCI with the assistance, information and authority necessary to
perform NCI's obligations under this Section. Reasonable out-of-pocket expenses
incurred by Oracle in providing such assistance will be reimbursed by NCI. NCI
shall have no liability for any claim of infringement (i) based on use of a
superseded or altered release of NCI Technology if the infringement would have
been avoided by the use of a current unaltered release of the NCI Technology
which NCI provides to Oracle; (ii) arising from any use by Oracle or its
Distributors of any product not provided by NCI but used in combination with the
NCI Technology (excluding however, non-NCI software or products necessary or
appropriate to use the NCI Technology, such as a computer or operating system)
if such claim would have been avoided by the exclusive use of the NCI Technology
or (iii) based on use of a version of the NCI Technology which has been modified
by Oracle or its Distributors if the infringement would have been avoided by the
use of the unmodified NCI Technology.
In the event the NCI Technology are held or are believed by NCI to infringe, NCI
shall have the option, at its expense, to (a) modify the NCI Technology to be
noninfringing; or (b) obtain for Oracle a license to continue using the NCI
Technology. If it is not commercially reasonable to perform either of the above
options, then NCI may terminate the license for the infringing NCI Technology
and refund the license fees
Page: 10
paid for the NCI Technology. This Section 7.2 states NCI's entire liability and
Oracle's exclusive remedy for infringement.
7.3 PRODUCT WARRANTY
NCI warrants for a period o done year from the delivery of the NCI Technology by
Oracle or a Distributor to an end user that the NCI Technology will perform the
functions, and comply in all material respects with the specifications,
described in the Documentation when operated on the appropriate
hardware/operating system environment specified in the Documentation.. In
addition, NCI warrants that the NCI Technology including, without limitation,
any time-and-date-related codes, data entry features and internal subroutines
thereof, is designed (a) to automatically accommodate the change in the dated
from December 31, 1999 to January 1, 2000 without negatively affecting the NCI
Technology's performance, and (b) to accurately accept, reflect and calculate
all dates that are relevant to the NCI Technology's performance, and (b) to
accurately accept, reflect, and calculate all dates that are relevant to the NCI
Technology's performance. THESE WARRANTIES ARE THE EXCLUSIVE PRODUCT WARRANTIES
AND IN LIEU OF ALL OTHER PRODUCT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS
FOR A PARTICULAR PURPOSE, NCI DOES NOT WARRANT THAT THE NCI TECHNOLOGY WILL
OPERATE IN COMBINATIONS OR ON PLATFORMS OR OPERATING SYSTEMS OTHER THAN AS
SPECIFIED IN THE DOCUMENTATION OR THAT THE OPERATION OF THE NCI TECHNOLOGY WILL
BE UNINTERRUPTED OR ERROR FREE.
7.4 LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, incidental, special
or consequential damages, or damages for loss of profits, revenue, data or use,
incurred by either party or any third party, whether in an action in contract or
tort, even if the other party or any other person has been advised of the
possibility of such damages, Except for claims involving the intellectual
property rights of a party, each party's liability for damages hereunder shall
in no event exceed double the amount of fees paid by Oracle under this
Agreement, and if such damages result from Oracle's or a Sublicensee's sue of
the NCI Technology or services, such liability shall be limited to fees paid for
the relevant NCI Technology or services gibing rise to the liability.
The provisions of this Article VII allocate the risks under this Agreement
between NCI and Oracle and are an intrinsic part of the bargain between the
parties. The fees provided for in this Agreement reflect this allocation of
risks and the limitation of liability specified herein.
ARTICLE VIII
MISCELLANEOUS
8.1 NONDISCLOSURE
It is expected that the parties may disclose to each other certain information
which may be considered confidential and trade secret information ("Confidential
Information"). Confidential Information shall include: (a) the NCI Technology
and Oracle products; (b) Confidential Information disclosed by either party in
writing that is marked as confidential at the time of disclosure; or (c)
Confidential Information disclosed by either party in any other manner and is
identified as confidential at the time of disclosure and is also summarized and
designated as confidential in a written memorandum delivered to the receiving
party within thirty (30) days of the disclosure.
Page: 11
Confidential information shall not include information which (a) is or becomes a
part of the public domain through no act or omission of the other party; (b) was
in the receiving party's possession before receipt from the party providing such
Confidential Information; (c) is rightfully received by the receiving party from
a third party without any duty of confidentiality; (d) is disclosed to a third
party by the party providing the Confidential Information without a duty of
confidentiality on the third party; (e) is independently developed by the other
party; (f) is disclosed under operation of law; or (g) is disclosed with the
prior written approval of the party providing such Confidential Information.
All Confidential Information owned solely by one party and disclosed to the
other party shall remain solely the property of the disclosing party. The
parties agree, both during the term of this Agreement and for a period of five
(5) years after termination or expiration of this Agreement to hold each other's
Confidential Information in confidence and to protect the disclosed Confidential
Information by using the same degree of care to prevent the unauthorized use,
dissemination or publication of the Confidential Information as they use to
protect their own confidential information of a like nature. The parties agree
not to make each other's Confidential Information available in any form to any
third party or to use each other's Confidential Information for any purpose
other than the implementation of this Agreement. Each party agrees to restrict
disclosure of the Confidential Information to those of its employees who have a
"need to know" and to take all reasonable steps to ensure that Confidential
Information is not disclosed or distributed by its employees in violation of the
provisions of this Agreement.
In addition, notwithstanding the above, each party may use the residuals from
the other party's Confidential Information. The term "residuals" as used in this
paragraph shall mean the Confidential Information in nontangible form (i.e., not
in written or other documentary form, including tape or disk) which may be
retained by those employees of NCI or Oracle who have had access to the other's
Confidential Information including ideas, concepts, know-how, or techniques
contained therein. Neither party shall have any obligation to limit or restrict
the assignment of such employees or to pay royalties for any work resulting from
the use of residuals.
8.2 INDEPENDENT DEVELOPMENT/FREEDOM OF ACTION
Each party acknowledges that the other party is in the software development
business. Nothing in this Agreement shall be construed to preclude either party
from developing, using, marketing, licensing, and/or selling any independently
developed software which has the same or similar functionality as NCI Technology
or Oracle products, or any other products, so long as such activities do not
infringe the Intellectual Property Rights of the other party.
Additionally, nothing in this Agreement shall be construed to limit either
party's right to obtain services or software programs from other sources, to
prohibit either party from acquiring and marketing competitive materials, to
restrict either party from making, having made, using, marketing, leasing,
licensing, selling or otherwise disposing of any products or services
whatsoever, nor to limit either party's right to deal with any other vendors,
suppliers, contractors or customers.
8.3 GOVERNING LAW AND JURISDICTION
This Agreement, and all matters arising out of or relating to this Agreement,
shall be governed by the procedural and substantive laws of the State of
California and shall be deemed to be executed in Redwood City, California. Any
legal action or proceeding relating to this Agreement shall be instituted in a
state or
Page: 12
federal court in San Francisco or San Mateo County, California. Oracle and NCI
agree to submit to the jurisdiction of, and agree that venue is proper in, these
courts in any such legal action or proceeding.
8.4 ASSIGNMENT
Except for an assignment by Oracle to any parent corporation, Oracle Subsidiary,
or successor in interest to Oracle, neither party may assign any rights, duties,
obligations or privileges under this Agreement without the prior written consent
of the other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, either party may assign any rights, duties,
obligations or privileges under this Agreement without the prior written consent
of the other party in the event of a merger, acquisition or sale of all or
substantially all of the assigning party's assets.
8.5 NOTICE
All notices required to be given hereunder shall be in writing and shall be
deemed to have been given upon deposit in first class mail, sent through a
nationally recognized courier service, or transmission by confirmed
telefacsimile as follows:
For NCI: Network Computer, Inc.
1000 Bridge Parkway
Redwood Shores, CA 94065
Attn: General Counsel
For Oracle: Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
Attn: General Counsel
8.6 INTERPRETATION
This Agreement, including any exhibits, addenda, schedules and amendments, has
been negotiated at arm's length and between persons sophisticated and
knowledgeable in the matters dealt with in this Agreement. Each party has been
represented by experienced and knowledgeable legal counsel. Accordingly, any
role of law (including California Civil Code Section 1654) or legal decision
that would require interpretation of any ambiguities in this Agreement against
the party that has drafted it is not applicable and is waived. The provisions of
this Agreement shall be interpreted in a reasonable manner to effect the
purposes of the parties and this Agreement.
8.7 ENTIRE AGREEMENT
Except for the Technical Support Services Agreement between the parties dated
August 12, 1998, this Agreement sets forth the entire agreement between the
parties and supersedes prior proposals, agreements, and representations between
them, whether written or oral, relating to the subject matter contained herein.
This Agreement may be changed only if agreed to in writing and signed by an
authorized signatory of each party.
8.8 EXPORT
The parties agree to comply fully with all laws and regulations to assure that
neither NCI Technology, nor any direct product thereof, is exported, directly or
indirectly, in violation of law. Upon Oracle's request, NCI shall advise Oracle
of all relevant export classifications of the NCI Technology and shall promptly
advise Oracle of any changes with respect to such classification.
Page: 13
8.9 SEVERABILITY
If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
8.10 COUNTERPARTS
This Agreement may be executed in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
8.11 NO WAIVER
The failure of any party to enforce any of the provisions hereof shall not be
construed to be a waiver of the right of such party thereafter to enforce such
provisions.
8.12 FEDERAL GOVERNMENT SUBLICENSES
If Oracle or a Distributor grants a Sublicense to the United States government,
the NCI Technology shall be provided with "Restricted Rights" and Oracle will
place a legend, in addition to applicable copyright notices, on the
documentation, and on the tape or diskette label, substantially similar to the
following:
RESTRICTED RIGHTS LEGEND
"Programs delivered subject to the DOD FAR Supplement are "commercial computer
software" and use, duplication and disclosure of the Programs shall be subject
to the licensing restrictions set forth in the applicable licensing agreement.
Otherwise, Programs delivered subject to the Federal Acquisition Regulations are
"restricted computer software" and use, duplication and disclosure of the
Programs shall be subject to the restrictions in FAR 52..227-14 Rights in Data--
General, including Alternate m (June 1987)."
8.13 PUBLICITY
Neither party shall disclose to any third party any details of this Agreement,
or even the fact of its existence, without the specific prior written approval
of the other party, which approval shall not be unreasonably withheld, or as
required by law in order to enforce its rights under this Agreement.
Page: 14
EXHIBIT A
NCI TECHNOLOGY
NCI CONSUMER SOFTWARE
Custom Connect Server Suite
Custom Connect Server Deployment License Fees
NCI CORPORATE SOFTWARE
NC Administration Server
NC Desktop Deployment Licenses
NC Smart Card
NCI SDKS
TV Navigator SDK for x86
TV Navigator Customization Kit
TV Navigator Content Development Kit
Page: 15
EXHIBIT B
"ORACLE LOGO"
ORACLE ALLIANCE AGREEMENT
This Oracle Alliance Agreement (the "Agreement") is between Oracle Corporation
("Oracle") and the Alliance Member identified below. The terms of this Agreement
shall apply to each Program license granted and to all services provided by
Oracle under this Agreement, which will be identified on one or more Order
Forms.
1. DEFINITIONS
1.1 "COMMENCEMENT DATE" means the date on which the Programs are delivered
by Oracle, or if no delivery is necessary, the Effective Date set forth
on the relevant Order Form.
1.2 "DESIGNATED SYSTEM" shall mean the computer hardware and operating system
designated on the relevant Order Form or Sublicense report for use in
conjunction with a Sublicensed Program, Development License, or Marketing
Support License.
1.3 "DOCUMENTATION" means the user guides and manuals for installation and use
of the Program software. Documentation is provided in CD-ROM or bound form,
whichever is generally available.
1.4 "ORDER FORM" shall mean the document in hard copy or electronic form by
which the Alliance Member orders Program licenses, Sublicenses, and
services, and which is agreed to by the parties. The Order Form shall
reference the Effective Date of this Agreement.
1.5 "PROGRAM" shall mean the software in object code form distributed by Oracle
for which the Alliance Member is granted a license or grants a Sublicense
pursuant to this Agreement; and the media, Documentation, and Updates
therefor.
1.6 "SUBLICENSE ADDENDA" shall mean the addenda to this Agreement specifying
additional Sublicense terms and Sublicense rates and fees for the various
types of Sublicenses which may be granted by the Alliance Member.
1.7 "SUBLICENSE" shall mean a nonexclusive, nontransferable right granted by or
through the Alliance Member to an end user to use an object code copy of
the Programs with the Value-Added Package under authority of a Sublicense
Addendum. "Sublicensee" shall mean a third party who is granted a
Sublicense of the Programs with the Value-Added Package for such party's
own internal data processing purposes and not for purposes of any further
distribution.
1.8 "TECHNICAL SUPPORT" means Program support provided under Oracle's policies
in effect on the date Technical Support is ordered.
1.9 "UPDATE" shall mean a subsequent release of a Program which Oracle makes
generally available for Program Licenses at no additional license fee other
than media and handling charges, provided the Alliance Member has ordered
Technical Support for such licenses for the relevant time period. Updates
shall not include any release, option or future product which Oracle
licenses separately.
1.10 "VALUE-ADDED PACKAGE" shall mean the hardware or software products or
services having added value which are developed, sold, and/or licensed with
the Programs to a Sublicense by the Alliance Member, as provided under the
applicable Sublicense Addenda.
2. RIGHTS GRANTED
2.1 DEVELOPMENT LICENSES AND TRIAL LICENSES
A. Oracle grants to the Alliance Member a nonexclusive license to use the
Development Licenses the Alliance Member obtains under this Agreement and
applicable Sublicense Addenda, as follows:
1. to develop or prototype the Value-Added Package on the Designated System
or on a backup system if the Designated System is inoperative, up to any
applicable maximum number of designated Users or other such limitation as
may be applicable;
2. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package;
3. to provide training and technical support to employees and to customers
solely in conjunction with the Value-Added Package;
4. to use the Documentation provided with the Programs in support of the
Alliance Member's authorized use of the Programs; and 5. to copy the
Programs for archival or backup purposes; no other copies shall be made
without Oracle's prior written consent. All titles, trademarks, and
copyright and restricted rights notices shall be reproduced in such copies.
All archival and backup copies of the Programs are subject to the terms of
this Agreement.
B. The Alliance Member may order temporary trial licenses ("Trial
Licenses") for its evaluation purposes only, and not for development or
prototype purposes, for use during a period specified in the Order Form.
Each Order Form for Trial Licenses shall clearly state the trial period and
shall identify that the order is for a Trial License.
2.2 MARKETING SUPPORT LICENSES
Oracle grants to the Alliance Member a nonexclusive license to use the
Marketing Support Licenses the Alliance Member obtains under this Agreement
and applicable Sublicense Addenda, as follows: A. to demonstrate the
Programs to potential Sublicensees solely in conjunction with the
Value-Added Package, up to any applicable maximum number of designated
Users or other such limitation as may be applicable; B. to develop
customized prototypes of the Value-Added Package for prospective
Sublicensees on the Designated System if the Alliance Member does not
receive any fees related to the development of such customized prototypes;
Page: 16
C. to use the Documentation provided with the Programs in support of the
Alliance Member's authorized use of the Programs; and
D. to copy the Programs for archival or backup purposes; no other copies
shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be reproduced
in such copies. All archival and backup copies of the Programs are subject
to the terms of this Agreement.
2.3 SUBLICENSING
A. LICENSE TO SUBLICENSE PROGRAMS
As further set forth in the applicable Sublicense Addenda, Oracle
hereby grants the Alliance Member a nonexclusive, nontransferable license
to market and grant Sublicenses as set forth in such Sublicense Addenda and
at the rates and fees set forth in such Sublicense Addenda. The Alliance
Member shall only have the right to Sublicense Programs pursuant to an
effective Sublicense Addendum between the parties hereto.
The Alliance Member shall Sublicense the Programs solely through a
written Sublicense agreement as provided under Section 2.3.B. Upon Oracle's
request, the Alliance Member shall provide Oracle with a copy of the
Alliance Member's standard Sublicense agreement
B. SUBLICENSE AGREEMENT
Every Sublicense agreement shall include, at a minimum, contractual
provisions which:
1. Restrict use of the Programs to object code, subject to the restrictions
provided under the applicable Sublicense Addenda and consistent with the
Sublicense fees payable to Oracle;
2. Prohibit (a) transfer of the Programs except for temporary transfer in
the event of computer malfunction; (b) assignment, timesharing and rental
of the Programs; and (c) title to the Programs from passing to the
Sublicensee or any other party;
3. Prohibit the reverse engineering, disassembly or decompilation of the
Programs and prohibit duplication of the Programs except for a single
backup or archival copy;
4. Disclaim, to the extent permitted by applicable law, Oracle's liability
for any damages, whether direct, indirect, incidental or consequential,
arising from the use of the Programs;
5. Require the Sublicensee, at the termination of the Sublicense, to
discontinue use and destroy or return to the Alliance Member all copies of
the Programs and Documentation;
6. Prohibit publication of any results of benchmark tests run on the
Programs;
7. Require the Sublicensee to comply fully with all relevant export laws
and regulations of the United States to assure that neither the Programs,
nor any direct product thereof, are exported, directly or indirectly, in
violation of United States law; and
8. Specify Oracle as a third party beneficiary of the Sublicense agreement
to the extent permitted by applicable law.
C. MARKETING/SUBLICENSING PRACTICES
In marketing and Sublicensing the Programs, the Alliance Member shall:
1. Not engage in any deceptive, misleading, illegal, or unethical practices
that may be detrimental to Oracle or to the Programs;
2. Not make any representations, warranties, or guarantees to Sublicensees
concerning the Programs that are inconsistent with or in addition to those
made in this Agreement or by Oracle; and
3. Comply with all applicable federal, state, and local laws and
regulations in performing its duties with respect to the Programs.
2.4 LIMITATIONS ON USE
The Alliance Member shall not use or duplicate the Programs (including
the Documentation) for any purpose other than as specified in this
Agreement or make the Programs available to unauthorized third parties. The
Alliance Member shall not (a) use the Programs for its internal data
processing or for processing customer data; (b) rent, electronically
distribute, or timeshare the Programs or market the Programs by interactive
cable or remote processing services or otherwise distribute the Programs
other than as specified in this Agreement; or (c) cause or permit the
reverse engineering, disassembly, or decompilation of the Programs, except
to the extent required to obtain interoperability with other independently
created software or as specified by law.
2.5 TITLE
Oracle shall retain all title, copyright, and other proprietary rights in
the Programs and any modifications or translations thereof. The Alliance Member
and its Sublicensees do not acquire any rights in the Programs other than those
specified in this Agreement.
2.6 TRANSFER OF PROGRAMS
The Alliance Member may transfer a Development License or Marketing
Support License within its organization upon notice to Oracle; transfers
are subject to the terms and fees specified in Oracle's transfer policy in
effect at the time of the transfer.
2.7 USE OF PROGRAMS BY THIRD PARTIES
The Alliance Member and each Sublicensee (as the case may be) shall
have the right to allow third parties to use each such party's licensed
Programs for the licensee's operations so long as the applicable licensee
ensures that use of the Programs is in accordance with the terms of this
Agreement or the applicable Sublicense agreement.
3. TECHNICAL SERVICES
3.1 TECHNICAL SUPPORT SERVICES
Technical Support services ordered by the Alliance Member will be
provided under Oracle's Technical Support policies in effect on the date
Technical Support is ordered.
3.2 TRAINING SERVICES
Oracle will provide training services agreed to by the parties under
the terms of this Agreement. For any on-site services requested by the
Alliance Member, the Alliance Member shall reimburse Oracle for actual,
reasonable travel and out-of-pocket expenses incurred.
4. FEES AND PAYMENTS
4.1 LICENSE FEES AND SUBLICENSE FEES
The Alliance Member may order Development Licenses or Marketing
Support Licenses at the standard Program license fees set forth in the
Price List or at the fees otherwise provided in a Sublicense Addendum. For
Page: 17
each Sublicense granted by the Alliance Member, the Alliance Member
agrees to pay Oracle a Sublicense fee as set forth in the applicable
Sublicense Addenda. The Alliance Member shall not be relieved of its
obligation to pay Sublicense fees owed to Oracle by the nonpayment of such
fees by the Sublicensee.
The Alliance Member is free to determine unilaterally its own license
fees to its Sublicensees. If the Alliance Member or a Sublicensee upgrades
the Programs to a larger computer, transfers the Programs outside the
United States and/or to another operating system, or increases the licensed
number of Users, the Alliance Member will pay additional Sublicense fees to
Oracle as provided under Oracle's transfer policies and rates in effect at
the time the Program is upgraded or transferred.
4.2 TECHNICAL SUPPORT FEES
Technical Support services ordered by the Alliance Member for
Development Licenses and Marketing Support Licenses will be provided under
Oracle's Technical Support policies and rates in effect on the date
Technical Support is ordered.
4.3 GENERAL PAYMENT TERMS
Except as otherwise provided in a Sublicense Addendum, all fees shall
be due and payable 30 days from the invoice date. Fees due by the Alliance
Member shall not be subject to set off for any claims against Oracle. All
payments made shall be in United States currency and shall be made without
deductions based on any taxes or withholdings, except where such deduction
is based on Oracle's gross income. Any amounts payable by the Alliance
Member hereunder which remain unpaid after the due date shall be subject to
a late charge equal to 1.5% per month from the due date until such amount
is paid. The Alliance Member agrees to pay applicable media and shipping
charges. The Alliance Member shall issue a purchase order, or alternative
document acceptable to Oracle, on or before the Effective Date of the
applicable Order Form.
4.4 TAXES
The fees listed in this Agreement do not include taxes; if Oracle is
required to pay sales, use, property, value-added, or other taxes based on
the licenses, Sublicenses or services granted under this Agreement or on
the Alliance Member's or a Sublicensee's use of Programs or services, then
such taxes shall be billed to and paid by the Alliance Member. This shall
not apply to taxes based on Oracle's income.
5. RECORDS
5.1 RECORDS INSPECTION
The Alliance Member shall maintain adequate books and records in
connection with activity under this Agreement. Such records shall include,
without limitation, executed Sublicense agreements, the information
required in or related to the Sublicense reports required under a
Sublicense Addendum, the number of copies of Programs used or Sublicensed
by the Alliance Member, the computers on which the Programs are installed,
and the number of Users using the Programs. Oracle may audit the relevant
books and records of the Alliance Member and Alliance Member's use of the
Programs. Any such audit shall be conducted during regular business hours
at the Alliance Member's offices and shall not interfere unreasonably with
the Alliance Member's business activities. If an audit reveals that the
Alliance Member has underpaid fees to Oracle, the Alliance Member shall be
invoiced for such underpaid fees. Audits shall be made no more than once
annually.
5.2 NOTICE OF CLAIM
The Alliance Member will notify Oracle legal department promptly in
writing of: (a) any claim or proceeding involving the Programs that comes
to its attention; and (b) any material change in the management or control
of the Alliance Member.
6. TERM AND TERMINATION
6.1 TERM
This Agreement shall become effective on the Effective Date and shall
be valid until the expiration or termination of all Sublicense Addenda
hereunder, unless terminated earlier as set forth herein. If not otherwise
specified on the Order Form, each Program license granted under this
Agreement shall remain in effect perpetually under the terms of this
Agreement unless the license or this Agreement is terminated as provided in
this Article 6. The term of each Sublicense Addendum hereunder shall be as
set forth in each such Addendum.
6.2 TERMINATION BY THE ALLIANCE MEMBER
The Alliance Member may terminate any Program license or any
Sublicense Addenda at any time; however, termination shall not relieve the
Alliance Member's obligations specified in Section 6.5.
6.3 TERMINATION BY ORACLE
Oracle may terminate any Program license, any Sublicense Addenda, or
this Agreement upon written notice if the Alliance Member materially
breaches this Agreement and fails to correct the breach within 30 days
following written notice specifying the breach.
6.4 FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in the
performance of a required obligation if such failure or delay is caused by
strike, riot, fire, flood, natural disaster, or other similar cause beyond
such party's control, provided that such party gives prompt written notice
of such condition and resumes its performance as soon as possible, and
provided further that the other party may terminate this Agreement if such
condition continues for a period of one hundred eighty (180) days.
6.5 EFFECT OF TERMINATION
Upon expiration or termination of a Sublicense Addendum or this
Agreement, all of the Alliance Member's rights to market and Sublicense the
Programs as set forth in such Sublicense Addendum or this Agreement shall
cease.
The termination of this Agreement, a Sublicense Addendum, or any
license shall not limit either party from pursuing any other remedies
available to it, including injunctive relief, nor shall such termination
relieve the Alliance Member's obligation to pay all fees that have accrued
or that are owed by the Alliance Member under a Sublicense Addendum or any
Order Form, or that appear in a Sublicense report. The parties rights and
obligations under Sections 2.4, 2.5, 2.6 and Articles 4, 5, 6, 7, and 8
shall survive termination of this Agreement. Upon
Page: 18
termination, the Alliance Member shall cease using, and shall return or
destroy, all copies of the applicable Programs.
7. INDEMNITY, WARRANTIES, REMEDIES
7.1 INFRINGEMENT INDEMNITY
Oracle will defend and indemnify the Alliance Member against a claim
that Programs infringe a copyright or patent or other intellectual property
right, provided that: (a) the Alliance Member notifies Oracle in writing
within 30 days of the claim; (b) Oracle has sole control of the defense and
all related settlement negotiations; and (c) the Alliance Member provides
Oracle with the assistance, information and authority necessary to perform
Oracle's obligations under this Section. Reasonable out-of-pocket expenses
incurred by the Alliance Member in providing such assistance will be
reimbursed by Oracle. Oracle shall have no liability for any claim of
infringement based on use of a superseded or altered release of Programs if
the infringement would have been avoided by the use of a current unaltered
release of the Programs which Oracle provides to the Alliance Member.
In the event the Programs are held or are believed by Oracle to
infringe, Oracle shall have the option, at its expense, to (a) modify the
Programs to be noninfringing; or (b) obtain for the Alliance Member a
license to continue using the Programs. If it is not commercially
reasonable to perform either of the above options, then Oracle may
terminate the license for the infringing Programs and refund the license
fees paid for those Programs. This Section 7.1 states Oracle's entire
liability and the Alliance Member's exclusive remedy for infringement.
7.2 WARRANTIES AND DISCLAIMERS
A. PROGRAM WARRANTY
Oracle warrants for a period of one year from the Commencement Date
that each unmodified Program will perform the functions described in the
Documentation.
B. MEDIA WARRANTY
Oracle warrants the tapes, diskettes or other media to be free of
defects in materials and workmanship under normal use for 90 days from the
Commencement Date.
C. SERVICES WARRANTY
Oracle warrants that its Technical Support and training services will
be performed consistent with generally accepted industry standards. This
warranty shall be valid for 90 days from performance of service.
D. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL OPERATE IN COMBINATIONS
OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT THE OPERATION OF THE
PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE. PRE-PRODUCTION RELEASES OF
PROGRAMS AND COMPUTER-BASED TRAINING PRODUCTS ARE DISTRIBUTED "AS IS."
The Alliance Member shall not make any warranty on Oracle's behalf.
7.3 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 7.2 above, the
Alliance Member's exclusive remedy, and Oracle's entire liability, shall
be:
A. FOR PROGRAMS
The correction of Program errors that cause breach of the warranty, or
if Oracle is unable to make the Program operate as warranted, the Alliance
Member shall be entitled to recover the fees paid to Oracle for the Program
license.
B. FOR MEDIA
The replacement of defective media returned within 90 days of the
Commencement Date.
C. FOR SERVICES
The reperformance of the services, or if Oracle is unable to perform
the services as warranted, the Alliance Member shall be entitled to recover
the fees paid to Oracle for the unsatisfactory services.
7.4 INDEMNIFICATION OF ORACLE
The Alliance Member agrees to enforce the terms of its Sublicense
agreements required by this Agreement so as to effect a timely cure of any
Sublicense breach, and to notify Oracle of any known breach of such terms.
The Alliance Member will defend and indemnify Oracle against:
A. All claims and damages to Oracle arising from any use by the Alliance
Member or its Sublicensees of any product not provided by Oracle but used
in combination with the Programs if such claim would have been avoided by
the exclusive use of the Programs; and
B. All claims and damages to Oracle caused by the Alliance Member's failure
to include the required contractual terms set forth in Section 2.3.B hereof
in each Sublicense agreement.
7.5 EQUITABLE RELIEF
The Alliance Member acknowledges that any breach of its obligations
with respect to proprietary rights of Oracle will cause Oracle irreparable
injury for which there are inadequate remedies at law and that Oracle shall
be entitled to equitable relief in addition to all other remedies available
to it.
8. GENERAL TERMS AND CONDITIONS
8.1 NONDISCLOSURE
By virtue of this Agreement, the parties may have access to
information that is confidential to one another ("Confidential
Information"). Confidential Information shall be limited to the Programs,
the terms and pricing under this Agreement, and all information clearly
identified as confidential.
A party's Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of
the other party; (b) was in the other party's lawful possession prior to
the disclosure and had not been obtained by the other party either directly
or indirectly from the disclosing party; (c) is lawfully disclosed to the
other party by a third party without restriction on disclosure; or (d) is
independently developed by the other party. The Alliance Member shall not
disclose the results of any benchmark tests of the Programs to any third
party without Oracle's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two years
after termination of this Agreement. The parties agree, unless required by
Page: 19
law, not to make each other's Confidential Information available in any
form to any third party for any purpose other than the implementation of
this Agreement. Each party agrees to take all reasonable steps to ensure
that Confidential Information is not disclosed or distributed by its
employees or agents in violation of the terms of this Agreement.
8.2 COPYRIGHTS
The Programs are copyrighted by Oracle. The Alliance Member shall
retain all Oracle copyright notices on the Programs used by the Alliance
Member under its Development Licenses or Marketing Support Licenses. The
Alliance Member shall include the following on all copies of the Programs
in software Value-Added Packages incorporating the Programs distributed by
the Alliance Member:
A. A reproduction of Oracle's copyright notice; or
B. A copyright notice indicating that the copyright is vested in the
Alliance Member containing the following
1. A "c" in a circle and the word "copyright";
2. The Alliance Member's name;
3. The date of copyright; and
4. The words "All Rights Reserved."
Such notices shall be placed on the Documentation, the sign-on screen
for any software Value-Added Package incorporating the Programs, and the
diskette or tape labels. Notwithstanding any copyright notice by the
Alliance Member to the contrary, the copyright to the Program included in
any such application package shall remain in Oracle. Other than as
specified above, on any reproduction or translation of any Programs,
Documentation, or promotional material, the Alliance Member agrees to
reproduce Oracle's copyright notices intact.
8.3 TRADEMARKS
"Oracle" and any other trademarks and service marks adopted by Oracle
to identify the Programs and other Oracle products and services belong to
Oracle; the Alliance Member will have no rights in such marks except as
expressly set forth herein and as specified in writing from time to time.
The Alliance Member's use of Oracle's trademarks shall be under Oracle's
trademark policies and procedures in effect from time-to-time. The Alliance
Member agrees not to use the trademark "ORACLE," or any mark beginning with
the letters "Ora," or any other mark likely to cause confusion with the
trademark "ORACLE" as any portion of the Alliance Member's tradename,
trademark for the Alliance Member's Value-Added Package, or trademark for
any other products of the Alliance Member. The Alliance Member shall have
the right to use the trademark "ORACLE" and other Oracle trademarks solely
to refer to Oracle's Programs, products and services.
The Alliance Member agrees with respect to each registered trademark
of Oracle, to include in each advertisement, brochure, or other such use of
the trademark, the trademark symbol "circle R" and the following statement:
is a registered trademark of Oracle Corporation,
-----------------------
Redwood City, California
Unless otherwise notified in writing by Oracle, the Alliance Member
agrees, with respect to every other trademark of Oracle, to include in each
advertisement, brochure, or other such use of the trademark, the symbol
"TM" and the following statement:
is a trademark of Oracle Corporation,
-----------------------
Redwood City, California
The Alliance Member shall not market Oracle Programs in any way which
implies that Oracle Programs are the proprietary product of the Alliance
Member or of any party other than Oracle. Oracle shall not have any
liability to the Alliance Member for any claims made by third parties
relating to the Alliance Member's use of Oracle's trademarks.
8.4 RELATIONSHIPS BETWEEN PARTIES
In all matters relating to this Agreement, the Alliance Member will
act as an independent contractor. The relationship between Oracle and the
Alliance Member is that of licensor/licensee. Neither party will represent
that it has any authority to assume or create any obligation, express or
implied, on behalf of the other party, nor to represent the other party as
agent, employee, franchisee, or in any other capacity. Nothing in this
Agreement shall be construed to limit either party's right to independently
develop or distribute software which is functionally similar to the other
party's product, so long as proprietary information of the other party is
not included in such software.
8.5 ASSIGNMENT
The Alliance Member may not assign or otherwise transfer any rights
under this Agreement without Oracle's prior written consent.
8.6 NOTICE
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given when
mailed by first class mail to the first address listed in the relevant
Order Form (if to the Alliance Member) or to Oracle address on the Order
Form (if to Oracle).
To expedite order processing, the Alliance Member agrees that Oracle
may treat documents faxed by the Alliance Member to Oracle as original
documents; nevertheless, either party may require the other to exchange
original signed documents.
8.7 GOVERNING LAW/JURISDICTION
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the substantive and procedural laws of the
State of California and shall be deemed to be executed in Redwood City,
California. The parties agree that any legal action or proceeding relating
to this Agreement shall be instituted in any state or federal court in San
Francisco or San Mateo County, California. Oracle and the Alliance Member
agree to submit to the jurisdiction of, and agree that venue is proper in,
these courts in any such legal action or proceeding.
8.8 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force and effect.
8.9 EXPORT
Page: 20
The Alliance Member agrees to comply fully with all relevant export
laws and regulations of the United States ("Export Law") to assure that
neither the Programs, nor any direct product thereof, are (a) exported,
directly or indirectly, in violation of Export Laws; or (b) are intended to
be used for any purposes prohibited by the Export Laws, including, without
limitation, nuclear, chemical, or biological weapons proliferation.
8.10 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE'S LIABILITY FOR
DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY THE
ALLIANCE MEMBER UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM THE
ALLIANCE MEMBER'S OR SUBLICENSEE'S USE OF THE PROGRAM OR SERVICES, SUCH
LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE RELEVANT PROGRAM OR
SERVICES GIVING RISE TO THE LIABILITY.
The provisions of this Agreement allocate the risks between Oracle and
the Alliance Member. Oracle's pricing reflects this allocation of risk and
the limitation of liability specified herein.
8.11 FEDERAL GOVERNMENT SUBLICENSES
If the Alliance Member grants a Sublicense to the United States
government, the Programs shall be provided with "Restricted Rights" and the
Alliance Member will place a legend, in addition to applicable copyright
notices, on the documentation, and on the tape or diskette label,
substantially similar to the following:
RESTRICTED RIGHTS LEGEND
"Programs delivered subject to the DOD FAR Supplement are "commercial
computer software" and use, duplication and disclosure of the Programs
shall be subject to the licensing restrictions set forth in the applicable
license agreement. Otherwise, Programs delivered subject to the Federal
Acquisition Regulations are "restricted computer software" and use,
duplication and disclosure of the Programs shall be subject to the
restrictions in FAR 52.227-14, Rights in Data-- General, including
Alternate III (June 1987)."
8.12 WAIVER
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or breach.
Except for actions for nonpayment or breach of Oracle's proprietary rights
in the Programs, no action, regardless of form, arising out of this
Agreement may be brought by either party more than two years after the
cause of action has accrued.
8.13 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties
and supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document, usage
or custom shall be deemed to amend or modify this Agreement.
It is expressly agreed that the terms of this Agreement and any Order
Form shall supersede the terms in any Alliance Member purchase order or
other ordering document. This Agreement shall also supersede the terms of
any unsigned or "shrinkwrap" license included in any package, media, or
electronic version of Oracle-furnished software and any such software shall
be licensed under the terms of this Agreement, provided that the use
limitations contained in an unsigned ordering document shall be effective
for the specified licenses.
Page: 21
The Effective Date of this Agreement shall be
----------------------------------
EXECUTED BY THE ALLIANCE MEMBER:
--------------------------------------------------------- EXECUTED BY ORACLE CORPORATION:
Authorized Signature: Authorized Signature:
------------------------------------ ------------------------------------
Name: Name:
---------------------------------------------------- ----------------------------------------------------
Title: Title:
--------------------------------------------------- ---------------------------------------------------
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation.
7-97
Page: 22
EXHIBIT C
NCI PRICE LIST
(to be provided by NCI)
Page: 23
EXHIBIT D
PROHIBITED CUSTOMER LIST
AT&T
Pacific Century Group
Pacific Convergence Corp.
AOL
Cable and Wireless
NTL
TCI
Time Warner Cable
Media One
Comcast
Cox Cable
US West
Rogers Cable
Direct TV
GTE
Sprint
MCI
Bell South
Nynex
Southwest Bell
Ameritech
Bell Canada
Page: 24
EXHIBIT E
JOINT SALES & MARKETING ACTIVITIES
1. NCI shall provide to Oracle core marketing materials for the NCI Technology
in electronic format as soon as such materials are available but no later
than when such materials are provided to any other distributor of the NCI
Technology. The core marketing materials shall include but not be limited
to data sheets, company brochures and demonstration materials. NCI grants
to Oracle the right to reproduce, modify and integrate (in whole or in
part) these core marketing materials into Oracle marketing materials.
Oracle's use of NCI's trademarks contained in these core marketing
materials shall be subject to NCI's Signature Guidelines, a copy of which
is attached as Exhibit F.
2. NCI shall appoint an Oracle channel management team who will be responsible
for managing the relationship between Oracle and NCI with respect to
Oracle's reselling of the NCI Technology, including appointing a point
person to act as the primary point of contact between Oracle and NCI
related to this Agreement (the "Oracle Channel Manager"). In addition, the
revenue sharing currently specified in the Agreement is predicated upon a
joint sales model. As requested by Oracle, NCI shall provide substantial
sales assistance as requested by Oracle on all transactions of the NCI
Technology. For each sale in which NCI has provided substantial assistance,
Oracle shall use reasonable efforts to notify NCI if Oracle executes a
Sublicense with the particular customer for the NCI Technology.
3. NCI shall use reasonable efforts to provide the necessary hardware to allow
Oracle to demonstrate the NCI Technology to potential customers at
discounted reseller rates.
4. Oracle shall use reasonable efforts to notify NCI of, and allow NCI to
participate in (subject to the Sublicensees consent), any public
announcement of Sublicenses of the NCI Technology by Oracle to end users.
However, nothing contained herein shall require Oracle to obtain NCI's
prior consent before making such a public announcement.
5. NCI shall use reasonable efforts to keep Oracle informed of future product
plans and roadmaps. Where identified as such, this information shall be
considered NCI Confidential Information under section 8.1 of the Agreement
and shall not be disclosed to third parties (including Oracle customers)
without the prior written consent of NCI. Such consent may be provided by
NCI's Oracle Channel Manager or another NCI representative as designated by
NCI.
6. Unless otherwise specified, each party shall bear its own costs for the
marketing and sales activities described above.
Page: 25
EXHIBIT F
NCI SIGNATURE GUIDELINES
Page: 26
EXHIBIT G
THIRD PARTY RESTRICTIONS ON
EMBEDDED NCI TECHNOLOGY
THE FOLLOWING THIRD PARTY RESTRICTIONS APPLY TO THE NCI TECHNOLOGY TO THE EXTENT
THAT THEY INCORPORATE ANY OF THE THIRD PARTY SOFTWARE LISTED BELOW. ANY
CAPITALIZED TERMS THAT ARE NOT DEFINED HEREIN HAVE THE SAME DEFINITION AS IN THE
AGREEMENT.
1. REGARDING BITSTREAM SOFTWARE - IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDE
BITSTREAM SOFTWARE SUBLICENSED FROM NCI, YOU MUST COMPLY WITH THE FOLLOWING
RESTRICTIONS AND OBLIGATIONS.
1.1. LICENSEE MUST REPRODUCE EACH BITSTREAM COPYRIGHT, TRADEMARK AND/OR
PATENT NOTICE, AS APPLICABLE IN ITS ENTIRETY, IN THE SAME LOCATION AS
IT APPEARS, IN ELECTRONIC OR PRINTED FORM, ON THE NCI SOFTWARE OR
SDK(S) AS DELIVERED TO LICENSEE.
2. REGARDING RSA SOFTWARE - IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDES RSA
SOFTWARE SUBLICENSED FROM NCI, YOU MUST COMPLY WITH THE FOLLOWING
RESTRICTIONS AND OBLIGATIONS:
2.1. LICENSEE SHOULD INCLUDE WITHIN THE SPLASH SCREENS, USER DOCUMENTATION,
PRINTED PRODUCT COLLATERAL, PRODUCT PACKAGING AND ADVERTISEMENTS FOR
THE NCI TECHNOLOGY, THE RSA "LICENSEE SEAL" FROM THE FORM ATTACHED
HERETO AS APPENDIX "A" ALONG WITH A STATEMENT THAT THE NCI TECHNOLOGY
CONTAINS THE RSA SOFTWARE. LICENSEE AGREES NOT TO REMOVE OR DESTROY
ANY PROPRIETARY, TRADEMARK OR COPYRIGHT MARKINGS OR NOTICES PLACED
UPON OR CONTAINED WITHIN THE SOFTWARE OR DOCUMENTATION PROVIDED BY
NCI.
2.2. LICENSEE MUST IN ALL PROPOSALS AND AGREEMENTS WITH THE UNITED STATES
GOVERNMENT IDENTIFY AND LICENSE THE NCI TECHNOLOGY, INCLUDING ANY RSA
OBJECT CODE, AS FOLLOWS: (I) FOR ACQUISITION BY OR ON BEHALF OF
CIVILIAN AGENCIES, AS NECESSARY TO OBTAIN PROTECTION AS "COMMERCIAL
COMPUTER SOFTWARE AND RELATED DOCUMENTATION IN ACCORDANCE WITH THE
TERMS OF NCI'S OR LICENSEE'S CUSTOMARY LICENSE, AS SPECIFIED IN 48
C.F.R. 12.212 OF THE FEDERAL ACQUISITION REGULATIONS AND ITS SUCCESSOR
REGULATIONS, OR (II) FOR ACQUISITION BY OR ON BEHALF OF UNITS OF THE
DEPARTMENT OF DEFENSE, AS NECESSARY TO OBTAIN PROTECTION AS
"COMMERCIAL COMPUTER SOFTWARE" AS DEFINED IN 48 C.F.R. 227.7014(A)(1)
OF THE DEPARTMENT OF DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT
(DFARS) AND RELATED DOCUMENTATION IN ACCORDANCE WITH THE TERMS OF
NCI'S OR LICENSEE'S CUSTOMARY LICENSE, AS SPECIFIED IN 4:8 C.F.R.
227.7202.1 OF DFARS AND ITS SUCCESSOR REGULATIONS.
2.3 IN THE EVENT THAT LICENSEE INCLUDES AN "ABOUT BOX" OR SIMILAR
REFERENCE IN THE NCI TECHNOLOGY, LICENSEE AGREES TO INSERT AND
MAINTAIN IN THE "ABOUT BOX" (1) THE RSA "LICENSEE SEAL" INDICATED IN
APPENDIX "A", AND (2) A HYPERTEXT LINK TO RSA'S HOMEPAGE AT AN
RSA-DESIGNATED URL (CURRENTLY WWW. RSA.COM), WHICH LOGO AND POINTER
SHALL APPEAR ON THE FIRST PAGE OF SUCH "ABOUT BOX" AND IN NO LESS
PROMINENT LOCATION AND SIZE THAN ANY OTHER THIRD PARTY LOGO INCLUDED
THEREIN.
2.4. LICENSEE FURTHER AGREES TO INCLUDE IN ANY SECURITY ADVISORY MADE
AVAILABLE TO THIRD PARTIES, WHETHER IN PRINTED OR ELECTRONIC FORMAT,
THE RSA "LICENSEE SEAL" INDICATED IN EXHIBIT "A" AND A BRIEF
DESCRIPTION OF THE RSA SOFTWARE SUBLICENSED HEREUNDER AND ITS RELEVANT
APPLICABILITY TO THE SUBJECT MATTER OF THE SECURITY ADVISORY. FOR THE
PURPOSES OF THE AGREEMENT, "SECURITY ADVISORY" MEANS ANY TUTORIAL, FAQ
OR SIMILAR MANUAL OR INSTRUCTIONAL DOCUMENTATION DESCRIBING DATA
SECURITY USED BY OR AVAILABLE IN THE NCI TECHNOLOGY.
3. REGARDING HEADSPACE SOFTWARE - IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDE
HEADSPACE MIDI SOFTWARE OR MUSIC CONTENT SUBLICENSED FROM NCI, YOU MUST
COMPLY WITH THE FOLLOWING RESTRICTIONS AND OBLIGATIONS:
3.1. IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDES AN "ABOUT BOX" OR
SIMILAR REFERENCE, LICENSEE MUST INCLUDE REFERENCES TO HEADSPACE, INC.
AND THE RMF LOCK), AS WELL AS A LINK TO THE HEADSPACE, INC. WEB SITE,
IN THE AREA DESIGNATED BY LICENSEE FOR SUCH "ABOUT BOX". THE RMF LOGO
IS INCLUDED AS APPENDIX "B", ATTACHED HERETO, AND INCORPORATED HEREIN
BY THIS REFERENCE.
4. REGARDING PROGRESSIVE NETWORKS SOFTWARE - IN THE EVENT THAT THE NCI
TECHNOLOGY INCLUDES PROGRESSIVE NETWORKS SOFTWARE SUBLICENSED FROM NCI, YOU
MUST COMPLY WITH THE FOLLOWING RESTRICTIONS AND OBLIGATIONS:
Page: 27
4.1. LICENSEE MUST USE PROGRESSIVE NETWORKS' (PN) MARKS IN ACCORDANCE WITH
PN'S USAGE POLICIES ATTACHED HERETO AS APPENDIX "C" AND INCORPORATED
HEREIN BY THIS REFERENCE. SUCH MARKS MAY BE USED SOLELY IN CONJUNCTION
ON WITH LICENSEE'S ADVERTISING, MARKETING AND DISTRIBUTION OF THE NCI
TECHNOLOGY INCORPORATING PN'S SOFTWARE.
4.2. TO THE EXTENT THE NCI TECHNOLOGY INCLUDES AN IMPLEMENTATION OF AN
"ABOUT BOX" OR SIMILAR REFERENCE, LICENSEE MUST INCLUDE A REFERENCE TO
"PROGRESSIVE NETWORKS" AND "REALNETWORKS" AS FOLLOWS: "THE
REALNETWORKS PLAYER IS INCLUDED UNDER LICENSE FROM PROGRESSIVE
NETWORKS, INC. COPYRIGHT 1995:1997, PROGRESSIVE NETWORKS, INC.
REALNETWORKS AND THE REALNETWORKS LOGO ARE REGISTERED TRADEMARKS OF
PROGRESSIVE NETWORKS, INC. ALL RIGHTS RESERVED."
4.3. LICENSEE ACKNOWLEDGES THAT USE, DUPLICATION OR DISCLOSURE OF THE PN
SOFTWARE BY THE GOVERNMENT IS SUBJECT TO RESTRICTIONS SET FORTH IN
SUBPARAGRAPHS (A) THROUGH (D) OF THE COMMERCIAL COMPUTER-RESTRICTED
RIGHTS CLAUSE AT FAR 52.227.19 WHEN APPLICABLE, OR IN SUBPARAGRAPH
(C)(I)(II) OF THE RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE
CLAUSE AT DFARS 252.227-7013, OR IN SIMILAR CLAUSES IN THE NASA FAR
SUPPLEMENT. CONTRACTOR/MANUFACTURER IS PROGRESSIVE NETWORKS, INC.;
1111 THIRD AVENUE; SUITE 500; SEATTLE, WASHINGTON, 98101.
5.0 REGARDING JAVA SOFTWARE - IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDE JAVA
SOFTWARE FROM SUN MICROSYSTEMS, INC. ("SUN") OR JAVASOFT, YOU MUST COMPLY
WITH THE FOLLOWING RESTRICTIONS AND OBLIGATIONS:
5.1 THE NCI TECHNOLOGY CONTAINING JAVA SOFTWARE THAT YOU DISTRIBUTE SHALL
INCLUDE IN THE DOCUMENTATION, OR IN OTHER TERMS AND CONDITIONS OF
SALE, NOTICES SUBSTANTIALLY SIMILAR TO THOSE CONTAINED ON AND IN THE
NCI SOFTWARE, SDKS AND RELATED DOCUMENTATION. YOU SHALL REQUIRE AN END
USER LICENSE AGREEMENT FOR EACH UNIT OF THE PRODUCT PROVIDING ACCESS
TO THE NCI TECHNOLOGY SHIPPED, INCLUDING WITHOUT LIMITATION, WARRANTY,
LIMITATION OF LIABILITY, RESTRICTED RIGHTS FOR GOVERNMENT, NO TRANSFER
OF TITLE, HIGH RISK ACTIVITIES, ETC. IF YOU USE A PACKAGE DESIGN FOR
THE NCI TECHNOLOGY, SUCH PACKAGE DESIGN SHALL INCLUDE AN
ACKNOWLEDGMENT OF SUN AS THE SOURCE OF THE JAVA SOFTWARE AND SUCH
OTHER NOTICES AS SPECIFIED BELOW.
5.2. JAVA APPLETS IN ANY HYPERTEXT MARKUP LANGUAGE (HTML) OR STANDARD
GENERALIZED MARKUP LANGUAGE (SGML)-BASED BROWSER WHICH IS SHIPPED AS
PART OF THE NCI TECHNOLOGY SHALL USE THE DOCUMENT TYPE DEFINITION
("DTD") AS SPECIFIED BY SUN MICROSYSTEMS.
5.3. THE FOLLOWING DISCLAIMER MUST BE PROVIDED TO EACH USER OF THE NCI
TECHNOLOGY: THIS PRODUCT IS NOT FAULT-TOLERANT AND IS NOT DESIGNED,
MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL
EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL SAFE PERFORMANCE,
SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT
MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THIS PRODUCT
COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR
ENVIRONMENTAL DAMAGE.
5.4. THE FOLLOWING NOTICES AND ACKNOWLEDGMENTS MOST BE PROVIDED TO EACH
USER OF THE NCI TECHNOLOGY AS DESCRIBED BELOW:
5.4.1. ON LICENSEE'S WEB SITE THAT DESCRIBES SUCH NCI TECHNOLOGY,
LICENSEE MUST INCLUDE THE FOLLOWING: JAVA LOCK), JAVA APPLET
INTEROPERABILITY MARK*, AND MESSAGE "POWERED BY JAVA TM FROM
SUN MICROSYSTEMS, INC." WITH A HYPERTEXT LINK TO THE ERROR!
BOOKMARK NOT DEFINED,
5.4.2. IN ANY NCI TECHNOLOGY DOCUMENTATION, SPLASH SCREEN OR OTHER
LOCATION WHERE NOTICES, ATTRIBUTION AND PROPRIETARY MARKINGS
ARE LISTED, LICENSEE MUST INCLUDE THE FOLLOWING: JAVA LOGO,
JAVA APPLET INTEROPERABILITY MARK, THE MESSAGE "POWERED BY
JAVA-TM- TECHNOLOGY FROM SUN MICROSYSTEMS, INC." AND
APPLICABLE COPYRIGHT NOTICES ASSOCIATED WITH A HYPERTEXT
LINK TO THE ERROR! BOOKMARK NOT DEFINED.. THE SPLASH SCREEN,
IF ANY, SHOULD BE A MINIMUM SIZE OF TWELVE (12) SQUARE
INCHES.
5.5. LICENSEE SHALL NOT REMOVE ANY COPYRIGHT NOTICES, TRADEMARK NOTICES OR
OTHER PROPRIETARY LEGENDS OF SUN OR ITS SUPPLIERS CONTAINED ON OR IN
THE SOFTWARE OR ANY DOCUMENTATION PROVIDED BY NCI. LICENSEE SHALL
COMPLY WITH ALL REASONABLE REQUESTS BY SUN TO INCLUDE SUN'S COPYRIGHT
AND/OR OTHER PROPRIETARY RIGHTS NOTICES ON THE NCI TECHNOLOGY,
DOCUMENTATION OR RELATED MATERIALS AS SPECIFIED IN THIS SECTION.
5.6. LICENSEE MUST COMPLY WITH SUN'S STANDARD TRADEMARK AND LOCK) USAGE
POLICIES. SPECIFICALLY, SUN'S MARKS MUST ONLY BE USED IN THE TEXT OF
ANY MATERIALS (NOT IN HEADLINES OR GRAPHICS) AND IN THE SAME TYPESIZE
AND TYPESTYLE AS THE SURROUNDING TEXT; THE MARKS MUST BE USED AS
ADJECTIVES, NOT AS NOUNS' AND SUN'S MARKS MUST BE
Page: 28
IDENTIFIED WITH THE APPLICABLE -Registered Trademark- OR -TM-
NOTICES AND ATTRIBUTED TO SUN IN AN APPROPRIATE LOCATION IN ANY
MATERIALS, AS STATED ABOVE. INFORMATION REGARDING SUN'S WEB LOGO
TRADEMARK POLICIES CAN BE FOUND AT.WWW.SUN.COM/LOGCOS/TRADEMARK.HTML.
*The Java Applet Interoperability Mark has not been designed by Sun
Microsystems, Inc., but may include such designation as "Java 1,0
Applet Compatible." Sun may change such logo, message and hypertext
link on reasonable advance notice.
Page: 29
APPENDIX "A" TO EXHIBIT G
RSA SEAL AND TRADEMARKS
RSA Licensee Seal: [Logo]
You are also permitted to use the following RSA trademarks, as applicable, in
ads, product packaging, documentation or collateral materials, provided that you
use the correct trademark designator, depicted below, and identify RSA as the
owner of the mark.
RC2-Registered Trademark- Symmetric Block Cipher, RC4-Registered Trademark-
Symmetric Stream Cipher
RC5-TM- Symmetric Block Cipher
BSAFE-TM-, TIPEM-TM-
RSA Public Key Cryptosystem-TM
MD-TM-, MD2-TM-, MD4-TM-, MD5-TM-
RSA has reserved the right to update this Appendix "A' from time to time upon
reasonable notice to you.
Page: 30
APPENDIX "B" TO EXHIBIT G
RMF LOGO
[Logo]
Page: 31
APPENDIX "C" TO EXHIBIT G
PROGRESSIVE NETWORKS TRADEMARK USAGE POLICY
REALNETWORKS-Registered Trademark- (text form)
PN-Registered Trademark- (text form)
PROGRESSIVE NETWORKS-Register Mark- (text form)
REALMEDIA-Trademark- (textform)
REALVIDEO-Trademark- (text form)
REALPLAYER-Trademark- (text form)
WEBACTIVE-Registered Trademark- (text from)
1. When using a Progressive Networks' trademark ("PN Mark"), use the
registered trademark symbol -Registered Trademark- or the -TM- symbol, as
indicated in the above example, on the most prominent (or if none is
prominent, the first) appearance of a PN Mark. For any PN Mark that is not
registered, the -TM- symbol should be used in place of the registered
trademark symbol -Registered Trademark-. Once marked, it is not normally
necessary to mark subsequent appearances of the trademark in the piece. Every
appearance of PN Logos in stylized form should always appear with the
appropriate -Registered Trademark- or -TM- symbol, and may be used only under
license with PN - unauthorized use is strictly prohibited. Shown above are a
list of current PN Marks that reflects the registration status of the PN
Marks. This list will be updated from time to time.
2. When using a PN Mark, never vary the spelling, add or delete hyphens, make
one word two, or use a possessive or plural form of the PN Mark. PN word marks
must always be used as adjectives followed by a generic term (such as "software"
or "system"), and never as nouns or verbs.
3. Progressive Networks is the owner of all right, title, and interest in the PN
Marks and Licensee agrees that it will not challenge the validity of Progressive
Networks' ownership of the PN Marks. Licensees shall not reproduce or use (or
authorize the reproduction or use of) the PN Marks in any manner other than
expressly authorized by Progressive Networks.
4. Progressive Networks may from time to time modify the PN Marks. Progressive
Networks will use commercially reasonable efforts to give licensees advance
notice of such modifications.
5. In order to assure compliance, you will, upon request from Progressive
Networks, provide samples of any marketing and advertising materials that
include the PN Marks.
6. In any place where they appear together, the PN Marks and any associated text
must be at least as large as the trademark and text of another vendor.
IMPORTANT INFORMATION ABOUT USING THE TEXT FORM
OF THE WORD REALNETWORKS-Registered Trademark-
1. When using the word RealNetworks, use the registered trademark symbol
-Register Trademark-symbol, as indicated in the above example, on the most
prominent (or if none is prominent, the first) appearance of its use on a
page. For any PN Mark that is not registered, the -TM- symbol should be used
in place of the registered trademark symbol -Registered Trademark-. Once
marked with the -Registered Trademark- symbol, it is not normally necessary
to mark subsequent appearances of the trademark in the piece.
2. When using the word RealNetworks, never vary the spelling, add or delete
hyphens, make one word two, or use a possessive or plural form of the word.
RealNetworks must always be used as an adjective followed by a generic term
(such as "software" or "system"), and never as a noun or verb.
Page: 32
EXHIBIT H
NCI END USER LICENSE AGREEMENT
NCI END USER LICENSE AGREEMENT
REDISTRIBUTION NOT PERMITTED
IMPORTANT--READ CAREFULLY. BY CLICKING ON THE "ACCEPT" BUTTON OR OPENING THE
PACKAGE, LICENSEE IS CONSENTING TO BE BOUND BY THIS AGREEMENT. IF LICENSEE DOES
NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "DO NOT ACCEPT"
BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE, OR, ALTERNATIVELY, RETURN
THE PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND OR CREDIT.
This agreement ("Agreement") is between you ("Licensee") and the party
who provided you the device running this NCI software ("Licensor") for the
license to use such software ("Software") and the related end-user documentation
("Documentation").
1. GRANT OF LICENSES GRANT. Subject to the payment of the applicable license
fees and all the terms and conditions of this Agreement, Licensor grants to
Licensee only a non-exclusive, non-transferable, non-sublicenseable license
to use a single object code copy of the Software, only in accordance with
the applicable Documentation.
2. RESTRICTIONS. Licensee shall not (and Licensee shall not allow a third
party to): modify, translate, or create derivative works based on the
Software; decompile, disassemble, or otherwise reverse engineer the
Software (except to the extent applicable laws specifically prohibit such
restriction); copy the Software (except for one copy made solely for
archival purposes, provided that any such copy must contain all of the
original Software's proprietary notices); rent, lease, grant a security
interest in, ,or permit concurrent use of, or otherwise transfer rights to
the Software. Licensee shall not remove, alter or destroy any form of the
notice, proprietary markings or other labels placed upon or contained
within the Software or Documentation.
3. TITLE/OWNERSHIP. As between the parties, title, ownership rights, and
intellectual property rights in the Software and all copies and portions
thereof, whether or not incorporated into other software, shall remain in
Network Computer, Inc. ("NCI") and/or its suppliers. The Software is
protected by the copyright laws and treaties. Title and related rights in
the content accessed through the Software is the property of the applicable
content owner and may be protected by applicable law. This License does not
give Licensee title or any other rights to Software or the content accessed
through the Software.
4. TERMINATION. The Agreement is effective until terminated. This license will
terminate automatically if Licensee fails to comply with the limitations
described herein. Upon termination' (a) Licensee shall immediately cease
all use of the Software and destroy all copies of the Software and
Documentation; and (b) Except for the license granted in Section 1 and
except as otherwise expressly provided herein, the terms of this Agreement
shall survive termination. Termination is not an exclusive remedy and all
other remedies will be available whether or not the license is terminated.
5. DISCLAIMER OF WARRANTY. SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT
WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY EXPRESSED OR IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT. FURTHER, LICENSOR, NCI AND THEIR RESPECTIVE LICENSORS AND
SUPPLIERS DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE
SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR
REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR WRITTEN
MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE
LICENSEE UNDERSTANDS THAT NEITHER LICENSOR NOR NCI IS RESPONSIBLE FOR OR
HAS LIABILITY FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES
PROVIDED BY ANY THIRD PARTY. IN ADDITION, THE SECURITY MECHANISMS
IMPLEMENTED BY OR WITHIN SOFTWARE HAVE INHERENT LIMITATIONS, AND LICENSEE
MUST DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS LICENSEE'S
REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF
THE AGREEMENT. SOME JURISDICTIONS
Page: 33
DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT
APPLY TO LICENSEE AND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY
JURISDICTION. NCI SHALL HAVE THE RIGHT TO ENFORCE THE OBLIGATIONS
HEREUNDER, AND ALL LIMITATIONS AND DISCLAIMERS MADE HEREUNDER SHALL BE ON
BEHALF OF NCI AS WELL AS LICENSOR.
6. EXPORT CONTROLS. None of the Software or any portion thereof, underlying
information or technology or Documentation may be exported or reexported or
provided to (a) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any
other country to which the U.S. has embargoed goods (or any national or
resident thereof); or (b) anyone on the U.S. Treasury Department's list of
Specially Designated Nationals or the U.S. Commerce Department's Table of
Denial Orders. By using the Software, Licensee is agreeing to the foregoing
and Licensee is representing and warranting that Licensee is not located
in, under the control of, or a national or resident of any such country or
on any such list. NotwithStanding the above, Licensee agrees not to export
or reexport the Software or Documentation without the appropriate U.S. or
foreign government license, if one is required.
In addition, if the licensed Software is identified as a
"not-for-export" product (for example, on the box, media or in the installation
process), then the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN
CANADA BY CANADIAN CITIZENS, THE SOFTWARE MAY NOT BE EXPORTED OUTSIDE THE UNITED
STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S.
GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A
CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY USING
THE SOFTWARE, LICENSEE IS AGREEING TO THE FOREGOING AND LICENSEE IS WARRANTING
THAT LICENSEE IS NOT A "FOREIGN PERSON" OR UNDER THE CONTROL OF A FOREIGN
PERSON.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW,
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE OR STRICT LIABILITY), CONTRACT, OR OTHERWISE, SHALL
LICENSOR, NCI, OR THEIR RESPECTIVE LICENSORS OR SUPPLIERS BE LIABLE TO
LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE OR INTERRUPTION, LOSS OR
INACCURACY OR CORRUPTION OF DATA, COMPUTER FAILURE OR MALFUNCTION, COST OF
PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR ANY AND ALL
OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL LICENSOR OR NCI BE
LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT LICENSOR RECEIVED FROM
LICENSEE FOR THE LICENSE PERTAINING TO THE SOFTWARE, EVEN IF LICENSOR OR
NCI SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY
CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO
LIABILITY FOR DEATH OR PERSONAL INJURY, TO THE EXTENT APPLICABLE LAW
PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE.
8. HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments .requiring fail-safe performance, such
as in the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, direct life support machines,
or weapons systems, in which the failure of the Software could lead
directly to death, personal injury, or severe physical or environmental
damage ("High Risk Activities"). Licensor and NCI, and their respective
licensors and suppliers, specifically disclaim any express or implied
warranty of fitness for High Risk Activities.
9. MISCELLANEOUS. This Agreement represents the complete agreement concerning
this license and may amended only by a writing executed by both parties. If
any provision of this Agreement is held to be unenforceable, such provision
shall be reformed only to the extent necessary to make it enforceable. This
Agreement shall be governed by California law, without regard to the
conflicts of law provisions thereof. The application the United Nations
Convention of Contracts for the International Sale of Goods is expressly
excluded.
Page: 34
10. U.S. GOVERNMENT END USERS. As defined in FAR section 2.101, the Software
and Documentation licensed in this Agreement are "commercial items" and
according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be
"commercial computer software" and "commercial computer software
documentation." Consistent with DFAR section 227.7202 and FAR section
12.212 (and similar clauses in NASA FAR Supplement and all related
successor rules), any use, modification, reproduction, release,
performance, display, disclosure, or exploitation of the Software and any
accompanying documentation by the US. Government shall be governed solely
by the terms of this Agreement and shall be prohibited except to the extent
expressly permitted by the terms of this Agreement. Contractor/manufacturer
is Network Computer, Inc.
Page: 35
SDK LICENSE AGREEMENTS
NCI TV NAVIGATOR-TM- CONTENT DEVELOPMENT KIT
LICENSE AGREEMENT
The following terms shall apply to any NCI NAVIGATOR CONTENT DEVELOPMENT KITs
licensed to ISP (referred to as "You") hereunder.
REDISTRIBUTION OF THIS CONTENT DEVELOPMENT KIT ("CDK") OR ANY DOCUMENTATION
PROVIDED TO YOU BY NETWORK COMPUTER, INC. ("NCI") IS STRICTLY PROHIBITED.
THE MEDIA CONTAINED IN THIS PACKAGE INCLUDE A NUMBER OF SEPARATE PROGRAMS. YOU
ARE PERMITTED TO USE ONLY THOSE PROGRAMS FOR WHICH YOU HAVE PAID THE APPLICABLE
LICENSE FEE TO NCI. FURTHERMORE, YOUR USE OF THIS CDK IS SUBJECT TO ALL THE
TERMS AND CONDITIONS SET FORTH BELOW.
LICENSE.
This CDK is licensed, not sold, to You for use only under the terms of this
Agreement, and NCI and its licensors reserve all rights not expressly granted to
You. You own the media on which this CDK was originally fixed, but NCI and its
licensors retain ownership of all copies of the programs and content comprising
this CDK (collectively the "Programs"), You (the original licensee of this CDK)
may:
(a) use this CDK on a single computer by one user at a time in accordance with
the accompanying documentation. (b) make one copy of the Programs as provided to
You for purposes of backup; provided that such copy includes a reproduction of
any notices appearing in or on such Programs.
LICENSE RESTRICTIONS.
(a) Unauthorized copying of this CDK, the Programs or the written materials
included in this package is expressly forbidden. You may be held legally
responsible for any Copyright infringement which is caused or encouraged by Your
failure to abide by the terms of this agreement.
(b) You may not market, distribute, or transfer copies of this CDK or the
Program to others or electronically transfer this CDK or the Programs from one
computer to another over a network.
(C) You may not: (i) permit other individuals to use this CDK or the Programs;
(ii) modify, translate, reverse engineer, decompile, disassemble (except to the
extent applicable laws specifically prohibit such restriction), or create
derivative works based on this CDK or the Programs; (iii) copy this CDK or the
Programs (except as expressly provided herein); (iv) rent, lease, grant a
security interest in, or otherwise transfer rights to this CDK or the Programs;
or (v) remove any proprietary notices or labels in or on this CDK or the
Programs.
(d) You understand that NCI and its licensors may update or revise this CDK
and/or the Programs and in so doing incurs no obligation to furnish such updates
to You unless You have purchased current support and maintenance services from
NCI as described in the section below titled Technical Support.
(e) Upon transfer of this CDK, any Program or any copy thereof, the licensed
granted hereunder shall terminate immediately.
(f) You shall use this CDK solely for Your internal purposes.
To the extent European Economic Community ("EEC") law is applicable, the above
restrictions on reverse engineering, decompiling, disassembling or reducing any
machine, readable software or component to human-readable form is limited so
that it prohibits such activity only to the maximum extent such activity may be
prohibited without violating the EEC Directive on the legal protection of
computer programs.
HARDWARE LOANS.
In the event that NCI has provided You any hardware (including, without
limitation, the NCI Reference Platform) for use with the CDK, You shall
return to NCI any such hardware immediately upon the earlier of (i) NCI's
written request to You or (ii) the date agreed upon by the parties in any
separate written agreement for the return of such hardware. NCI shall retain
all right, title and interest in and to such hardware at all times,
including, without
Page: 36
limitation, the period while such hardware is located at Your facilities.
DISCLAIMER OF WARRANTY.
THIS CDK IS PROVIDED ON AN "AS IS" BASIS. NCI AND ITS LICENSORS EXPRESSLY
DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS CDK
AND ANY RESULTS CREATED USING THIS CDK IS BORNE BY YOU. IN ADDITION, THE
SECURITY MECHANISMS IMPLEMENTED BY THIS CDK AND RESULTS GENERATED THROUGH ITS
USE HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE CDK AND SUCH
RESULTS SUFFICIENTLY MEET YOUR SECURITY REQUIREMENTS, THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME JURISDICTIONS DO
NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY
AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.
TITLE.
Title, ownership rights, and intellectual property rights in this CDK and the
Programs shall remain in NCI and/or its licensors. This CDK is protected by
the copyright laws and treaties.
CONFIDENTIALITY.
NCI and its licensors consider this CDK and the Programs to contain valuable
trade secrets of NCI and its licensors, the unauthorized disclosure of which
could cause irreparable harm to NCI and/or its licensors. You agree to use
reasonable efforts not to disclose the Programs to any third parties and not
to use the Programs other than for the purposes authorized by this Agreement.
This confidentiality obligation shall continue after any termination of this
Agreement.
TERMINATION.
This Agreement is effective until terminated. The Sections of this Agreement
titled License Restrictions, Disclaimer of Warranty, Limitation of Liability,
Title, Confidentiality and Miscellaneous shall survive any termination or
expiration of this Agreement. This Agreement will terminate automatically
upon Your failure to comply with any of the limitations described herein.
Upon any termination or expiration of this Agreement, You must, at NCI's
option, return or destroy the CDK, any documentation provided by NCI and any
copies thereof and shall return to NCI all hardware (including, without
limitation, the NCI Reference Profile), if any, provided by NCI to You for
use with the CDK, if any.
EXPORT CONTROLS.
None of this CDK or any underlying information or technology may be
downloaded or otherwise exported or reexported (i) into (or to a national or
resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any
other country to which the U.S. has embargoed goods; or (ii) to anyone on the
U.S. Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders. By using this CDK, You are
agreeing to the foregoing and You are representing and warranting that You
are not located in, under the control of, or a national or resident of any
such country or on any such list.
SUPPORT AND MAINTENANCE.
Upon mutual agreement of the parties and subject to NCI's standard support
and maintenance terms and conditions (including payment of NCI's then-current
support and maintenance fees), NCI shall provide to You support and
maintenance for the CDK licensed hereunder.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR
OTHERWISE, SHALL NCI OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES. IN NO EVENT WILL NCI BE LIABLE FOR ANY DAMAGES IN EXCESS
OF THE AMOUNT NCI RECEIVED FROM YOU FOR A LICENSE TO THIS CDK, EVEN IF NCI
SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM
BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY
FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH
LIMITATION. FURTHERMORE, SOME
Page: 37
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
THE WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF
THE BASIS OF THE BARGAIN BETWEEN YOU AND NCI.
HIGH RISK ACTIVITIES.
The CDK and results created using the CDK are not fault-tolerant and is not
designed, manufactured or intended for use or resale as 0n-line control
equipment in hazardous environments requiring fail, safe performance, such as
in the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons
systems, in which the failure of the CDK and results created using the CDK
could lead directly to death, personal injury, or severe physical or
environmental damage ("High Risk Activities"), NCI and its licensors
specifically disclaim any express or implied warranty of fitness for High
Risk Activities.
MISCELLANEOUS.
This Agreement represents the complete agreement concerning this license and
may amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY
PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO
THE TERMS SET FORTH HEREIN, AND NOT THOSE IN YOUR PURCHASE ORDER. If any
provision of this Agreement is held to be unenforceable, such provision shall
be reformed only to the extent necessary to make it enforceable and the
remaining provisions of this Agreement will not be affected or impaired in
any way. This Agreement shall be governed by California law without regard to
the conflict of laws provisions thereof. The application the United Nations
Convention of Contracts for the International Sale of Goods is expressly
excluded. If any legal action or proceeding is brought for the enforcement of
this Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred in such action or proceeding, in
addition to any other relief to which such party may be entitled.
U.S. GOVERNMENT RESTRICTED RIGHTS.
If this CDK is acquired by or on behalf of a unit or agency of the United
States Government, this provision applies, if the Programs are acquired by or
on behalf of a unit or agency of the United States Government, this provision
applies. The Programs: (a) were developed at private expense, are existing
computer software and no part of them were developed with government funds,
(b) are a trade secret Of NCI or its licensors for all purposes of the
Freedom of Information act, (c) are "restricted computer software" submitted
with restricted rights in accordance with subparagraphs (a) through (d) of
the Commercial Computer Software, Restricted Rights clause at 52.227-19 and
its successors, (d) in all respects are proprietary data belonging solely to
NCI or its licensors, (c) are unpublished and all rights are reserved under
the copyright laws of the United States. For units of the Department of
Defense (DoD), the programs are licensed only with "Restricted Rights" as
that term is defined in the DoD supplement to the Federal Acquisition
Regulation 252.227-7013 (c)(1)(ii), Rights in Technical Data and Computer
Software and its successors, and use, duplication or disclosure is subject to
restrictions as set forth in subdivision (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at 252.227-7013 or to NCI's
standard commercial license, as applicable. Contractor/manufacturer is
Network Computer, Inc., 1000 Bridge Parkway, Redwood Shores, CA 94065. If
this CDK or the Programs are acquired under a GSA Schedule, the Government
has agreed to refrain from changing or removing any insignia or lettering
from this CDK, the Programs and any documentation provided (except for backup
purposes).
Should You have any questions concerning this Agreement, or if You wish to
contact NCI for any reason, please write: Network Computer, Inc., Attention:
Customer Service, 1000 Bridge Parkway, Redwood Shores, CA 94065.
Page: 38
NCI TV NAVIGATOR-Trademark- SDK LICENSE AGREEMENT
The following terms shall apply to any NCI NAVIGATOR SOFTWARE DEVELOPMENT
TOOLKITs licensed to ISP (referred to as "Licensee") hereunder.
REDISTRIBUTION OF THIS SOFTWARE DEVELOPMENT TOOLKIT ("SDK") OR ANY
DOCUMENTATION PROVIDED TO LICENSEE BY NCI IS STRICTLY PROHIBITED.
REDISTRIBUTION OF ANY RESULTS CREATED USING THIS SDK ARE PROHIBITED UNLESS
SUCH RIGHT HAS BEEN GRANTED PURSUANT TO A WRITTEN LICENSE AGREEMENT EXECUTED
BY NCI AND LICENSEE (THE "RESELLER AGREEMENT") AND THEN ONLY AS LICENSED
THEREBY.
THE MEDIA CONTAINED IN THIS PACKAGE INCLUDE A NUMBER OF SEPARATE PROGRAMS,
INCLUDING THE TORNADO FOR NCI TV NAVIGATOR, ADD-ON COMPONENTS AND TOOL
PROGRAMS FOR USE WITH TORNADO FOR NCI TV NAVIGATOR, AND THE NCI TV NAVIGATOR
SYSTEM COMPONENTS. LICENSEE IS PERMITTED TO USE ONLY THOSE PROGRAMS FOR WHICH
LICENSEE HAS PAID THE LICENSE FEE AND OBTAINED A PASS KEY FROM NCI ALLOWING
LICENSEE ACCESS TO THE PROGRAM. LICENSEE HAS NOT LICENSED A PROGRAM UNTIL
LICENSEE HAS PAID THE LICENSE FEE AND OBTAINED THE PASS KEY. FURTHERMORE,
LICENSEE'S USE OF THIS SDK IS SUBJECT TO ALL THE TERMS AND CONDITIONS SET
FORTH BELOW.
LICENSE.
This SDK is licensed, not sold, to Licensee for use only under the terms of
this agreement, and NCI and its licensors reserve all rights not expressly
granted to Licensee. Licensee owns the media on which this SDK was originally
fixed, but NCI and its licensors retain ownership of all copies of the
programs comprising this SDK (collectively the "Programs"). Licensee (the
original licensee of this SDK) may:
(a) use this SDK on a single computer by one user at a time. Use is limited
to development of the Product or Products as defined in the Reseller
Agreement which may only be performed at the site set forth herein or, if
applicable, only at the location of Licensee's principal office as set forth
in the Reseller Agreement. Furthermore, use is limited to development for a
Product or Products which execute on a single target architecture, as set
forth herein or, if applicable, the target architecture set forth in the
Reseller Agreement. The number of authorized seats may be increased only upon
approval of NCI and payment of additional license fees.
(b) make one copy of Tornado for NCI TV Navigator or Tornado for NCI TV
Navigator Component Program licensed by Licensee or portions thereof except
for the directory "bin", sub directory "h", and the files entitled "makefile"
in directories "config/all" and "config/(target)". Such copy shall be in
tangible object code form only for physical incorporation into a Product or
Products as defined in the Reseller Agreement that Licensee develops using
this SDK, provided that such copy includes a reproduction of any notices
appearing in or on the programs included in this SDK. Such copy shall be used
for development processes only and be accessed only as part of the Target
Application and not on a stand alone or independent basis.
(c) make one copy of any licensed programs in tangible object code form for
purposes of backup; provided that such copy includes a reproduction of any
notices appearing in or on such program.
LICENSE RESTRICTIONS.
(a) Unauthorized copying of this SDK, the Programs or the written materials
included in this package is expressly forbidden. Licensee may be held legally
responsible for any copyright infringement which is caused or encouraged by
Licensee's failure to abide by the terms of this agreement.
(b) Licensee may not market, distribute, or transfer copies of this SDK or
the Program to others or electronically transfer this SDK or the Programs
from one computer to another over a network.
(c) Licensee may not: (i) permit other individuals to use this SDK or the
Programs; (ii) modify, translate, reverse engineer, decompile, disassemble
(except to the extent applicable laws specifically prohibit such
restriction), or create derivative works based on this SDK or the Programs;
(iii) copy this SDK or the Programs (except as expressly provided herein);
(iv) rent, lease, grant a security interest in, or otherwise transfer rights
to this SDK or the Programs; or (v) remove any proprietary notices or labels
in or on this SDK or the Programs.
(d) Licensee understands that NCI and its licensors may update or revise this
SDK and/or the Programs and in so doing incurs no obligation to furnish such
updates to Licensee unless Licensee has purchased current support and
maintenance services from NCI as described in the section below titled
Technical Support.
(e) Use of this SDK and the Programs is subject to proper AND complete
installation of the NCI TV Navigator System Components pursuant to the
instructions and procedures provided to Licensee by NCI.
(f) Upon transfer of this SDK, any Program or any copy thereof, the licensed
granted hereunder shall terminate immediately.
Page: 39
(g) Unless otherwise agreed by the parties in writing, any and all
development by Licensee of device drivers must be performed at NCI's premises.
To the extent European Economic Community ("EEC") law is applicable, the
above restrictions on reverse engineering, decompiling, disassembling or
reducing any machine-readable software or component to human-readable form is
limited so that it prohibits such activity only to the maximum extent such
activity may be prohibited without violating the EEC Directive on the legal
protection of computer programs.
HARDWARE LOANS.
In the event that NCI has provided Licensee any hardware (including, without
limitation, the NCI Reference Platform) for use with the SDK, Licensee shall
return to NCI any such hardware immediately upon the earlier of (i) NCI's
written request to Licensee or (ii) the date agreed upon by the parties in
any separate written agreement for the return of such hardware. NCI shall
retain all right, title and interest in and to such hardware at all times,
including, without limitation, the period while such hardware is located at
Licensee's facilities.
DISCLAIMER OF WARRANTY.
THIS SDK IS PROVIDED ON AN "AS IS" BASIS. NCI AND ITS LICENSORS EXPRESSLY
DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION,
THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS
SDK AND ANY RESULTS CREATED USING THIS SDK IS BORNE BY LICENSEE. IN ADDITION,
THE SECURITY MECHANISMS IMPLEMENTED BY THIS SDK AND RESULTS GENERATED THROUGH
ITS USE HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE SDK
AND SUCH RESULTS SUFFICIENTLY MEET LICENSEE'S SECURITY REQUIREMENTS. THIS
DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME
JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS
DISCLAIMER MAY NOT APPLY AND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY
BY JURISDICTION.
TITLE.
Title, ownership rights, and intellectual property rights in this SDK and the
Programs shall remain in NCI and/or its licensors. This SDK is protected by
the copyright laws and treaties.
CONFIDENTIALITY.
NCI and its licensors consider this SDK and the Programs to contain valuable
trade secrets of NCI and its licensors, the unauthorized disclosure of which
could cause irreparable harm to NCI and/or its licensors. Licensee agrees to
use reasonable efforts not to disclose the Programs to any third parties and
not to use the Programs other than for the purposes authorized by this
Agreement. This confidentiality obligation shall continue after any
termination of this Agreement.
TERMINATION.
This Agreement is effective until terminated, The Sections of this Agreement
titled License Restrictions, Disclaimer of Warranty, Limitation of Liability,
Title, Confidentiality and Miscellaneous shall survive any termination or
expiration of this Agreement. This Agreement will terminate automatically
upon Licensee's failure to comply with any of the limitations described
herein or in the Reseller Agreement by and between NCI and Licensee.
Licensee hereby acknowledges that unless and until Licensee enters into a
Reseller Agreement, Licensee shall use the SDK solely for its internal
evaluation purposes.
On any termination or expiration of this Agreement, Licensee must, at NCI's
option, return or destroy the SDK, any documentation provided by NCI and any
copies thereof and shall return to NCI all hardware (including, without
limitation, the NCI Reference Profile), if any, provided by NCI to Licensee
for use with the SDK.
EXPORT CONTROLS.
None of this SDK or any underlying information or technology may be
downloaded or otherwise exported or reexported (i) into (or to a national or
resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any
other country to which the U.S. has embargoed goods; or (ii) to anyone on the
U.S. Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders. By using this SDK, Licensee is
Page: 40
agreeing to the foregoing and Licensee is representing and warranting that
Licensee is not located in, under the control of, or a national or resident
of any such country or on any such list.
SUPPORT AND MAINTENANCE.
Upon mutual agreement of the parties and subject to NCI's standard support
and maintenance terms and conditions (including payment of NCI's then-current
support and maintenance fees), NCI shall provide to Licensee support and
maintenance for the SDK licensed hereunder.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR
OTHERWISE, SHALL NCI OR ITS LICENSORS BE LIABLE TO LICENSEE OR ANY OTHER
PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES. IN NO EVENT WILL NCI BE LIABLE FOR ANY DAMAGES IN EXCESS
OF THE AMOUNT NCI RECEIVED FROM LICENSEE FOR A LICENSE TO THIS SDK, EVEN IF
NCI SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY
CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO
LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS
SUCH LIMITATION. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND
EXCLUSION MAY NOT APPLY TO LICENSEE. THE WARRANTY DISCLAIMERS AND LIMITATION
OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN
LICENSEE AND NCI.
HIGH RISK ACTIVITIES.
The SDK and results created using the SDK are not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail-safe performance, such as
in the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons
systems, in which the failure of the SDK and results created using the SDK
could lead directly to death, personal injury, or severe physical or
environmental damage ("High Risk Activities"). NCI and its licensors
specifically disclaim any express or implied warranty of fitness for High
Risk Activities.
MISCELLANEOUS.
This Agreement represents the complete agreement concerning this license and
may amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY
PURCHASE ORDER PLACED BY LICENSEE IS EXPRESSLY MADE CONDITIONAL ON LICENSEE'S
ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN LICENSEE'S PURCHASE
ORDER. If any provision of this Agreement is held to be unenforceable, such
provision shall be reformed only to the extent necessary to make it
enforceable and the remaining provisions of this Agreement will not be
affected or impaired in any way, This Agreement shall be governed by
California law without regard to the conflict of laws provisions thereof. The
application the United Nations Convention of Contracts for the International
Sale of Goods is expressly excluded. If any legal action or proceeding is
brought for the enforcement of this Agreement, or because of any alleged
dispute, breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred in
such action or proceeding, in addition to any other relief to which such
party may be entitled.
U.S. GOVERNMENT RESTRICTED RIGHTS.
If this SDK is acquired by or on behalf of a unit or agency of the United
States Government, this provision applies. If the Programs are acquired by or
on behalf of a unit or agency of the United States Government, this provision
applies. The Programs: (a) were developed at private expense, are existing
computer software and no part of them were developed with government funds,
(b) are a trade secret of NCI or its licensors for all purposes of the
Freedom of Information act, (c) are "restricted computer software" submitted
with restricted rights in accordance with subparagraphs (a) through (d) of
the Commercial Computer Software-Restricted Rights clause at 52.227-i9 and
its successors, (d) in all respects are proprietary data belonging solely to
NCI or its licensors, and (e)are unpublished and all rights are reserved
under the copyright laws of the United States. For units of the Department of
Defense (DoD), the programs are licensed only with "Restricted Rights" as
that term is defined in the DoD supplement to the Federal Acquisition
Regulation 252,227-7013 (c)(1)(ii), Rights in Technical Data and Computer
Software and its successors, and use, duplication or disclosure is subject to
restrictions as set forth in subdivision (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at 252.227-7013 or to NCI's
standard commercial license,
Page: 41
as applicable, Contractor/manufacturer is Network Computer, Inc., 1000 Bridge
Parkway, Redwood Shores, CA 04065. If the Programs are acquired under a GSA
Schedule, the Government has agreed to refrain from changing or removing any
insignia or lettering from the Programs or the documentation as provided or
from producing copies of manuals or media {except for backup purposes).
Page: 42
EXHIBIT I
ISP ADDENDUM
Page: 43
INTERNET SERVICE PROVIDER AGREEMENT
This ISP Agreement ("Agreement") is between Network Computer, Inc., a
Delaware corporation, with its principal place of business at 1000 Bridge
Parkway, Redwood Shores, California 94065 ("NCI") and ________________ a
___________corporation, with its principal place of business at 1000 Bridge
Parkway, ________________ ("ISP"). The parties agree as follows:
1. DEFINITIONS
1.1 "DERIVATIVE WORK(S)" shall mean a revision, modification, translation,
abridgment, condensation, or expansion of NCI Products (as defined
below) or any form in which NCI Products may be recast, transferred, or
adapted, which, if prepared without the consent of NCI, would be a
copyright infringement; (ii) any adaptation, subset, addition,
improvement or combination of the NCI Products, which, if prepared
without the consent of NCI, would be a patent infringement; and (iii)
any new material, information or data derived from the NCI Products,
including new material which may be protectable by copyright, patent or
other proprietary rights, which, if prepared without the consent of
NCI, would be trade secret misappropriation or infringement.
1.2 "INTERNET SERVICES" shall mean the Internet applications and services
offered by or through ISP to Subscribers (as defined below), which
applications and services utilize the NCI Server Software and which
applications and/or services are described on Exhibit A.
1.3 "NC CARD" shall mean a card which may be distributed to Subscribers
through which Subscribers are authorized to access the Internet
Services. ISP shall control the look of the NC Cards provided to ISP
provided that such look shall be subject to the review and approval of
NCI consistent with the then-current NCI NC Card (Elements and Usages
guidelines (which approval shall not be unreasonably withheld). ISP
acknowledges that, once activated for a Subscriber, NC Cards may not be
reused and/or reactivated for another Subscriber.
1.4 "NCI APPROVED NETWORK COMPUTER DEVICE" shall mean a network computer
device distributed under a Network Computer Manufacturer's and/or ISP's
label which is approved by NCI as conforming to the applicable NCI
set-top box design standards and contains a validly licensed copy of
the software identified as NCI Client Software on Exhibit A hereto.
1.5 "NCI CLIENT SOFTWARE" shall mean the NCI TV NavigatorTM software.
1.6 "NETWORK COMPUTER MANUFACTURERS" shall mean third parties authorized in
advance by NCI who manufacture and distribute NCI Approved Network
Computer Devices.
1.7 "NCI LOGOS" shall mean for any particular country, the trademarks and
logos set forth on EXHIBIT A hereto and any other trademarks, service
marks, logos or trade names adopted by NCI and supplied to ISP from
time to time under this Agreement.
1.8 "NCI SOFTWARE" shall mean, collectively, the NCI server software (the
"NCI Server Software") described on Exhibit A attached hereto, as may
be amended by the parties from time to time; the user guides and
manuals for use of the software provided to ISP hereunder ("Software
Documentation"); and Updates provided to ISP hereunder. Unless
expressly provided herein, references to the NCI Server Software shall
not include the SDKs or Betas (as defined below).
1.9 "PROGRAM ERRORS" shall mean one or more reproducible deviations in the
NCI Server Software, NCI Client Software Updates or SDKs from the
applicable functional specifications set forth in the Software
Documentation or SDK Documentation, as applicable.
1.10 "SDKS" shall mean, collectively, NCI Custom Connect Server software
development kit, the NCI TV Navigator software development kit, the NCI
TV Content development kit; the user guides and manuals for use of the
SDKs provided to ISP hereunder ("SDK Documentation"); and Updates
provided to ISP hereunder. Unless expressly provided herein, references
to the SDKs shall not include the Betas (as defined below).
1.11 "SUBSCRIBER" shall mean each end user customer of ISP that validly
acquires a Subscription to access the NCI Server Software using the NCI
Client Software through the NC Card and/or through an NCI Approved
Network Computer Device solely as part of the Internet Services. ISP
shall only grant Subscriptions to Subscribers located in the Territory.
1.12 "SUBSCRIPTION" shall mean a nonexclusive, cancelable right granted by
or through ISP to a Subscriber to access the NCI Server Software using
the NCI Client Software through the NC Card and/or through an NCI
Approved Network Computer Device solely as part of the Internet
Services. All Subscriptions are non-transferable and are not permitted
to be transferred from one Subscriber to another Subscriber.
1.13 "TERRITORY" shall mean _________________________.
1.14 "UPDATE" shall mean minor updates of the NCI Server Software, NCI
Client Software, and/or SDKs which are made generally commercially
available by NCI to its customers for no additional fee.
2. LICENSE GRANT
2.1 LICENSES GRANTED TO ISP
A. SDK LICENSES
Subject to the terms and conditions of this Agreement and in
consideration of the fees specified in Section _______NCI hereby grants
to ISP a license to use _____ (___) NCI Custom Connect Server SDK
developer seats, ______ (___) NCI TV Navigator SDK developer seats, and
the NCI TV Content Development Kit for the following purposes in
accordance with the terms and conditions set forth herein and in the
applicable SDK license agreements (current versions of which are
attached as Exhibit C hereto, and incorporated herein by reference)
making HTML or JavaScript code modifications, such as making
ISP-specific user interface look and feel modifications and creating
code in order to integrate ISP's software or other applications with
the NCI Software and the NCI Client Software Updates. To the extent
that there are any conflicts between the principal terms of this
Agreement and the SDK license agreements, the terms of this Agreement
will prevail.
B. DEPLOYMENT LICENSES
Subject to the terms and conditions of this Agreement and in
consideration of the fees specified in Section _________, NCI hereby
grants to ISP a nonexclusive, nonassignable license in the Territory
to (a) reproduce, install, and use the resulting server and client
created by ISP using the NCI Custom Connect Server SDK, NCI TV
Navigator SDK, the NCI TV Content Development Kit, (b) to grant
Subscriptions to access the NCI Server Software to Subscribers in
the Territory optionally through Smart Cards and as otherwise
limited herein and (c) to reproduce, and distribute NCI Client
Software Updates to Subscribers.
ISP shall be responsible for copying and deploying the NCI Server
Software and the NCI Client Software Updates as part of the Internet
Services.
C. SUBSCRIPTION AGREEMENTS
ISP shall grant Subscriptions to Subscribers in the Territory with
respect to the NCI Software solely through written and enforceable
agreements between ISP and each Subscriber (e.g., written shrinkwrap
or electronic wrapper agreements) as provided in this Section
("Subscription Agreements"). Upon NCI's request, ISP shall provide
NCI with copies of ISP's standard Subscription Agreement. Every
Subscription Agreement shall include, at a minimum, contractual
provisions which:
1. Prohibit title to the NCI Software from passing to the
Subscriber or any other party;
2. Disclaim, to the extent permitted by applicable law, NCI's
liability for any damages, whether direct, indirect, incidental or
consequential, arising from the use of the NCI Software;
3. Prohibit the reverse engineering, disassembly or decompilation
of the NCI Software by either the Subscriber or any other party; and
4. Require the Subscriber, at the termination of the relevant
agreement, to discontinue use of the NCI Software and either destroy
the NCI Software or return the NCI Software to ISP.
5. Contain the following disclaimer: This service/product is not
fault-tolerant and is not designed, manufactured or intended for use
or resale as on-line control equipment in hazardous environments
requiring fail-safe performance, such as in the operation of nuclear
facilities, aircraft navigation or communications systems, air
traffic control, direct life support machines, or weapons systems,
in which the failure of this product could lead directly to death,
personal injury, or severe physical or environmental damage.
ISP shall not grant access to the NCI Server Software through any
process other than Subscription as described herein. D. ENFORCEMENT ISP
shall use best efforts to protect NCI's proprietary rights and to
enforce each Subscription Agreement. ISP shall notify NCI, in writing
of any breach of a material obligation under Subscription Agreement
affecting the NCI Software, NCI Client Software Updates or the Software
Documentation. ISP will reasonably cooperate with NCI in any legal
action to prevent or stop unauthorized use, reproduction or
distribution of the NCI Software, SDKs, or the NCI Client Software
Updates,
2.2 BETA LICENSE
NCI may, at its discretion deliver ISP experimental versions of the NCI
Software or SDKs in the form of beta or pre-release versions ("Betas")
subject to the following terms:
(i) Subject to all restrictions set forth in this Agreement,
NCI grants to ISP a limited, non-exclusive and non-transferable license
to use the Betas solely at address set forth above and only for the
purpose of evaluating and testing such Betas. Except as expressly set
forth herein, the license granted to ISP in this Section 2.2
("Beta License") shall not be for any other purpose, and any other
use by ISP shall constitute a material breach of this Agreement.
(ii) ISP will supply NCI with an evaluation report every
month, with the first evaluation report due one (1) month after NCI
delivers the applicable Beta (collectively, the "Evaluation Reports").
The Evaluation Reports shall set forth in reasonable detail the tests
performed, the results of those tests, problems or deficiencies
encountered in the testing process, suggested solutions to the problems
and recommended action for modification of the Betas based on ISP's
test results. The Evaluation Reports shall be delivered via electronic
mail to the following email address: beta@nci.com or as otherwise
agreed to by the parties.
(iii) ISP shall cease using and destroy all copies of any
Betas provided hereunder upon the earlier of (a) NCI's delivery of the
production version of such software; (b) NCI's written notice to ISP;
and (c) termination of this Agreement.
(iv) Betas are considered confidential information of NCI.
2.3 LIMITATIONS ON USE
A. ISP shall not use or duplicate the NCI Software, the SDKs or the
Betas for any purpose other than as specified in this Agreement or make
the NCI Software, the SDKs or the Betas available to unauthorized third
parties. ISP shall not cause or permit the reverse engineering,
disassembly, or decompilation of the NCI Software. ISP may copy the NCI
Server Software, the SDKs and the Betas solely for archival or backup
purposes.
3. TERMINATION
3.1 EFFECT OF TERMINATION
A. Upon expiration of this Agreement or termination by ISP of this
Agreement in accordance with Section ____ regarding termination for
breach, (i) all ISP's rights to market and grant Subscriptions to new
Subscribers for the NCI Software shall cease, and (ii) provided ISP
continues to pay to NCI the Technical Support Fees as set' forth in the
Agreement, all licenses granted herein to ISP shall continue solely for
the purposes of providing the Internet Services to Post Termination
Subscribers for the duration of the term of such Post Termination
Subscribers' Subscription Agreement. A "Post Termination Subscribe('
shall mean a Subscriber who, as of the effective date of such
expiration or termination of this Agreement, has executed, and is not
in breach of, a valid non-renewable Subscription Agreement. Thereafter,
upon the termination of any Subscription Agreement, ISP shall require
the applicable Subscriber to cease using the NCI Software and the NCI
Client Software Updates. After all of the Subscription Agreements have
terminated, all licenses granted herein shall terminate and ISP shall
cease using the NCI Software, the NCI Client Software Updates, the
SDKs, and the Betas and shall either destroy or return to NCI, at NCI's
option, all copies in all forms of the NCI Software, the SDKs, and the
Betas.
B. Upon termination by NCI of this Agreement, in accordance with
Section regarding termination for breach all licenses granted herein
shall terminate and ISP's rights to fulfill, market and grant
Subscriptions for the NCI Software (as set forth in this Agreement)
and to reproduce and distribute the NCI Client Software Updates
shall cease, and ISP shall cease using the NCI Software, the NCI
Client Software Updates, the SDKs, and the Betas and shall require
all Subscribers to cease using the NCI Software and the NCI Client
Software Updates. ISP shall either destroy or return to NCI, at
NCI's option, all copies in all forms of the NCI Software, the NCI
Client Software Updates, the SDKs, and the Betas.
C. The termination of this Agreement or any license shall not limit
either party from pursuing any other remedies available to it,
including injunctive relief, nor shall such termination relieve
ISP's obligation to pay all fees that have accrued or that ISP has
agreed to pay under this Agreement, any ordering document under this
Agreement, or any Subscription Reports required
The parties' rights and obligations under s 2.3, and Articles 3, 4, 5,
6, 7 excluding 7.3, and 8 shall survive termination of this Agreement.
4. INDEMNIFICATION
ISP will defend and indemnify NCI against: (a) all claims and damages
to NCI arising from: any use by ISP and/or Subscribers of any product
or service not provided by NCI but used in combination with the NCI
Software and/or NCI Client Software Updates if such claim would have
been avoided by the exclusive use of the NCI Software and/or the NCI
Client Software Updates; and (b) all claims and damages to NCI caused
by ISP's failure to include the required contractual terms set forth in
the last paragraph of Section 2.2 hereof in each agreement; and (c) all
claims and damages to NCI caused by a Subscriber's breach of any Of the
applicable provisions required by the last paragraph of Section 2.1C
hereof; provided that: (a) NCI notifies ISP in writing within thirty
(30) days of the claim; (b) ISP has sole control of the defense and
all related settlement negotiations; and (c) NCI provides ISP with
the assistance, information and authority necessary to perform ISP's
obligations under this Section. Reasonable out-of-pocket expenses
incurred by NCI in providing such assistance will be reimbursed by
ISP.
5. WARRANTIES/REMEDIES
5.1 NCI'S SOFTWARE WARRANTY
NCI warrants for a period of ninety (90) days from the Effective Date
that the unmodified NCI Software, NCI Client Software Updates, NCI
Custom Connect Server software development kit, and the NCI TV
Navigator software development kit will perform the functions
substantially as described in the applicable documentation when
operated as described in the software documentation.
5.2 SERVICES WARRANTY
NCI warrants that the services provided hereunder will be performed
consistent with generally accepted industry standards. This warranty
shall be valid for ninety (90) days from performance of the applicable
services.
5.3 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 5, ISP's sole and
exclusive remedy, and NCI's entire liability, shall be:
A. FOR THE NCI'S SOFTWARE
In NCI's discretion, either correction of Program Errors that cause
breach of the warranty or a refund of the portion of the fees paid
to NCI with respect to affected NCI Software, the NCI Client
Software Updates, the NCI Custom Connect Server software development
kit or the NCI TV Navigator software development kit.
B. FOR SERVICES
In NCI's discretion, either the reperformance of the services or a
refund of the portion of the fees paid to NCI applicable to such
services.
6. DISCLAIMERS
THE BETAS ARE PROVIDED "AS IS."
7. INTELLECTUAL PROPERTY
7.1 GENERAL
A. NCI shall retain all right, title and interest in and to the NCI
Software, the SDK, Betas, NCI Client Software Updates (collectively,
the "NCI Products"), NCI Logos and Derivative Works. ISP shall have no
ownership interest in and, other than the license specified in this
Agreement, shall acquire no rights in the NCI Products, NCI Logos or
Derivative Works.
In the event that ISP creates any Derivative Works, ISP shall, upon
completion of any such Derivative Works, deliver to NCI a copy of such
Derivative Works. ISP hereby assigns to NCI for no additional
consideration all right, title and interest in and to the Derivative
Works, including the right to any extensions and renewals thereof.
If-so requested by NCI, ISP agrees to execute a written assignment of
the Derivative Works to NCI and to execute any other documents
necessary for NCI to establish, preserve or enforce its right in the
Derivative Works. NCI shall not be obligated to pay ISP any royalties
or sublicense fees for the transfer or assignment of any rights
specified herein.
B. ISP shall retain all right, title and interest in and to the ISP
Logos and any modifications, adaptations or derivatives to the SDKs
which are (i) either (a) solely. artwork modifications or (b) HTML or
JavaScript code (not object) modifications specific to ISP's software
and (ii) are carried out by ISP or by a third party on behalf of ISP
("ISP Application Modifications"). NCI shall have no ownership interest
in and, other than the license specified in this Agreement, shall
acquire no rights in the ISP Application Modifications or the ISP
Logos.
7.2 COPYRIGHTS
The NCI Software, NCI Client Software Updates, the SDKs, and the Betas
are copyrighted by NCI or its licensor(s). ISP shall (i) retain all NCI
copyright notices on the NCI Software, NCI Client Software Updates, the
SDKs, and the Betas used by ISP under the licenses granted hereunder,
and (ii) comply with all third party licensor restrictions, a current
list of which is set forth on Exhibit D hereto. ISP shall include a
reproduction of NCI's copyright notice on all copies of the NCI
Software, NCI Client Software Updates, the SDKs, and the Betas deployed
by ISP in whatever form.
Such notices shall be prominently placed on the introductory splash
screen for the Internet Services.
Notwithstanding any copyright notice by ISP to the contrary, the
copyright to the NCI Software included in any such Internet Services
shall remain in NCI.
7.3 TRADEMARKS
The NCI Logos belong to NCI; ISP will have no rights in such marks
except as expressly set forth herein and as specified in writing from
time to time. ISP shall use and is hereby granted a non-transferable,
non-exclusive, non-assignable and restricted license during the term of
this Agreement and in the Territory, to use the NCI Logos on all uses
and/or copies of the NCI Software NCI Client Software Updates, and
Software Documentation made in accordance with this Agreement and on
all marketing and promotional materials referencing the NCI Software or
Internet Services, subject to NCI's prior written approval in each
instance. ISP's use of the NCI Logos shall be in accordance with (i)
NCI's signature guidelines in effect at the time as updated from time
to time by NCI and (ii) NCI's branding requirements in effect at the
time as updated from time to time by NCI, a current version of which is
set forth in Exhibit B attached hereto. ISP agrees not to use the NCI
Logos or any other mark likely to cause confusion with the NCI
trademarks as any portion of ISP's tradename, trademark for the NCI
Software, or trademark for any other products of ISP. All such usage
shall inure to NCI's benefit. ISP agrees not to register any NCI Logos
without NCI's express prior written consent. ISP shall not contest
NCI's ownership of, or rights in, the NCI Logos. From time to time, at
NCI's request, ISP shall supply a reasonable number of samples of the
NCI Software, Software Documentation, and all other materials bearing
any of the NCI Logos so that NCI may conduct quality control reviews to
ensure that usage of the NCI Logos complies with the terms of this
Section. In the event that NCI notifies ISP that ISP has failed to
comply as set forth herein, ISP shall suspend distribution and use of
the NCI Software until ISP has satisfied NCI that the foregoing
requirements have been met. ISP agrees with respect to each registered
trademark of NCI, to include in each advertisement, brochure, or other
such use of the trademark, the trademark symbol "circle R" and the
following statement: ______is a registered trademark of Network
Computer, Inc., Redwood Shores, California Unless otherwise notified in
writing by NCI, ISP agrees with respect to the NCI Logos to include in
each advertisement, brochure, or other such use of the trademark, the
symbol "TM" and the following statement: ___ (NCI Logo/trademark) __ is
a trademark of Network Computer, Inc., Redwood Shores, California ISP
shall not market the NCI Software in any way which implies that the NCI
Software is the proprietary product of ISP or of any party other than
NCI. NCI shall not have any liability to ISP for any claims made by
third parties relating to ISP's use of the NCI Logos.
8. GENERAL TERMS
8.1 GOVERNING LAW
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the substantive and procedural laws of
the State of California without regard to the conflicts of laws
provisions thereof and shall be deemed to be executed in Redwood
Shores, California. The parties agree that any legal action or
proceeding relating to this Agreement shall be instituted in any state
or federal court in San Francisco or San Mateo County, California. NCI
and ISP agree to submit to the jurisdiction of, and agree that venue is
proper in, these courts in any such legal action or proceeding.
8.2 EXPORT
ISP agrees to comply fully with all relevant export laws and
regulations of the U.S. and any other applicable jurisdiction, as
promulgated from time to time ("Export Laws") to assure that the NCI
Software, the SDKs, the Betas, and any direct product thereof, are not
(a) exported, directly or indirectly, in violation of Export Laws; and
(b) intended to be used for any purposes prohibited by the Export Laws,
including, without limitation, nuclear, chemical, or biological weapons
proliferation.
The effective date of this Agreement shall be , 1998
----------------------------
(the "Effective Date").
Executed by ISP: Executed by NCI:
Authorized Signature: Authorized Signature:
------------------------------------ ------------------------------------
Name: Name:
---------------------------------------------------- ----------------------------------------------------
Title: Title:
--------------------------------------------------- ---------------------------------------------------
EXHIBIT A
NCI SERVER SOFTWARE:
NCI CUSTOM CONNECT SERVER -TM- software, Version
--------------
Designated System: Sun Solaris
-----------
SDKS:
NCI CUSTOM CONNECT SERVER -TM- SDK Version
--------------
Designated System: Sun Solaris
-----------
Development Seats -
----------
NCI TV Navigator SDK, Version
--------------
Designated System: Windows NT
Development Seats -
----------
NCI TV Content Development Kit
Designated System: Windows NT
----------
INTERNET SERVICES
Internet Services shall' refer to those Internet, and ISP's services (utilizing
the NCI Server Software) and content accessible by Subscribers. ISP hereby
represents and warrants that the Internet Services (and related customer
support) provided to Subscribers by ISP shall be of equal or greater quality,
availability, and responsiveness as all other similar services provided by or on
behalf of ISP (and in no case less than the comparable industry standards) and
(ii) shall be consistent with NCI's reasonable criteria as determined by
periodic quality evaluations performed from time to time by or on behalf of NCI.
NCI LOGO
NCI-TM-
nic design logo
NCI Custom Connect Server-TM-
NCI TV Navigator-TM-
EXHIBIT B
NCI BRANDING REQUIREMENTS
1. On ISP's default root page, default personalized root page, and bookmark
lists, the NCI nic design logo or other NCI Logo designated by NCI as a
selectable icon shall be placed in a prominent location and shall be visible at
all times without further navigation and, if the background is dynamic, must be
visible for at least 30 seconds each visit or until the user leaves the page. A
prominent location is defined as not requiring the user to scroll or otherwise
navigate in order to see the logo on entrance to the root page.
2. The content provided through the NCI selectable icon or NCI Content Portals
(TV Bar) shall not be blocked or restricted in any fashion except by
user-elected restrictions (e.g. parental control filters).
3. On all NC Cards distributed by ISP targeting an NCI Approved Network Computer
Device, the NC Card will display the NCI nic design logo or other NCI Logo
designated by NCI on the top side of the card in accordance with the
then-current NCI signature guidelines.
4. On all major marketing and communication materials presented by ISP that
specifically target NCI Approved Network Computer Device ISP will include the
NCI nic design logo or other NCI Logo designated by NCI in a prominent location
in accordance with the then-current NCI signature guidelines.
5. Whenever a navigational or application toolbar is displayed in conjunction
with a NCI application, the NCI Logo shall be present on such toolbar. The NCI
Logo that is displayed will be presented in a form that is in accordance with
the NCI signature guidelines.
EXHIBIT C
SDK LICENSES
NCI TV NAVIGATOR-TM- CONTENT DEVELOPMENT KIT
LICENSE AGREEMENT
The following terms shall apply to any NCI NAVIGATOR CONTENT DEVELOPMENT KITs
licensed to ISP (referred to as "You") hereunder.
REDISTRIBUTION OF THIS CONTENT DEVELOPMENT KIT ("CDK") OR ANY DOCUMENTATION
PROVIDED TO YOU BY NETWORK COMPUTER, INC. ("NCI") IS STRICTLY PROHIBITED.
THE MEDIA CONTAINED IN THIS PACKAGE INCLUDE A NUMBER OF SEPARATE PROGRAMS.
YOU ARE PERMITTED TO USE ONLY THOSE PROGRAMS FOR WHICH YOU HAVE PAID THE
APPLICABLE LICENSE FEE TO NCI. FURTHERMORE, YOUR USE OF THIS CDK IS SUBJECT
TO ALL THE TERMS AND CONDITIONS SET FORTH BELOW.
LICENSE.
This CDK is licensed, not sold, to You for use only under the terms of this
Agreement, and NCI and its licensors reserve all rights not expressly granted
to You. You own the media on which this CDK was originally fixed, but NCI and
its licensors retain ownership of all copies of the programs and content
comprising this CDK (collectively the "Programs"). You (the original licensee
of this CDK) may:
(a) use this CDK on a single computer by one user at a time in accordance
with the accompanying documentation.
(b) make one copy of the Programs as provided to You for purposes of backup;
provided that such copy includes a reproduction of any notices appearing in
or on such Programs.
LICENSE RESTRICTIONS.
(a) Unauthorized copying of this CDK, the Programs or the written materials
included in this package is expressly forbidden. You may be held legally
responsible for any copyright infringement which is caused or encouraged by
Your failure to abide by the terms of this agreement.
(b) You may not market, distribute, or transfer copies of this CDK or the
Program to others or electronically transfer this CDK or the Programs from
one computer to another over a network.
(c) You may not: (i) permit other individuals to use this CDK or the
Programs; (ii) modify, translate, reverse engineer, decompile, disassemble
(except to the extent applicable laws specifically prohibit such
restriction), or create derivative works based on this CDK or the Programs;
(iii) copy this CDK or the Programs (except as expressly provided herein);
(iv) rent, lease, grant a security interest in, or otherwise transfer rights
to this CDK or the Programs; or (v) remove any proprietary notices or labels
in or on this CDK or the Programs.
(d) You understand that NCI and its licensors may update or revise this CDK
and/or the Programs and in so doing incurs no obligation to furnish such
updates to You unless You have purchased current support and maintenance
services from NCI as described in the section below titled Technical Support.
(e) Upon transfer of this CDK, any Program or any copy thereof, the licensed
granted hereunder shall terminate immediately.
(f) You shall use this CDK solely for Your internal purposes.
To the extent European Economic Community ("EEC") law is applicable, the
above restrictions on reverse engineering, decompiling, disassembling or
reducing any machine, readable software or component to human-readable form
is limited so that it prohibits such activity only to the maximum extent such
activity may be prohibited without violating the EEC Directive on the legal
protection of computer programs.
HARDWARE LOANS.
In the event that NCI has provided You any hardware (including, without
limitation, the NCI Reference Platform) for use with the CDK, You shall
return to NCI any such hardware immediately upon the earlier of (i) NCI's
written request to You or (ii) the date agreed upon by the parties in any
separate written agreement for the return of such hardware. NCI shall retain
all right, title and interest in and to such hardware at all times,
including, without limitation, the period while Such hardware is located at
Your facilities.
DISCLAIMER OF WARRANTY.
THIS CDK IS PROVIDED ON AN "AS IS" BASIS. NCI AND ITS LICENSORS EXPRESSLY
DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION,
THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS
CDK AND ANY RESULTS CREATED USING THIS CDK IS BORNE BY YOU. IN ADDITION, THE
SECURITY MECHANISMS IMPLEMENTED BY THIS CDK AND RESULTS GENERATED THROUGH ITS
USE HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE CDK AND SUCH
RESULTS SUFFICIENTLY MEET YOUR SECURITY REQUIREMENTS. THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME JURISDICTIONS
DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT
APPLY AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.
TITLE.
Title, ownership rights, and intellectual property rights in this CDK and the
Programs shall remain in NCI and/or its licensors. This CDK is protected by
the copyright laws and treaties.
CONFIDENTIALITY.
NCI and its licensors consider this CDK and the Programs to contain valuable
trade secrets of NCI and its licensors, the unauthorized disclosure of which
could cause irreparable harm to NCI and/or its licensors. You agree to use
reasonable efforts not to disclose the Programs to any third parties and not
to use the Programs other than for the purposes authorized by this Agreement.
This confidentiality obligation shall continue after any termination of this
Agreement.
TERMINATION.
This Agreement is effective until terminated. The Sections of this Agreement
titled License Restrictions, Disclaimer of Warranty, Limitation of Liability,
Title, Confidentiality and Miscellaneous shall survive any termination or
expiration of this Agreement. This Agreement will terminate automatically
upon Your failure to comply with any of the limitations described herein.
Upon any termination or expiration of this Agreement, You must, at NCI's
option, return or destroy the CDK, any documentation provided by NCI and any
copies thereof and shall return to NCI all hardware (including, without
limitation, the NCI Reference Profile), if any, provided by NCI to You for
use with the CDK, if any.
EXPORT CONTROLS.
None of this CDK or any underlying information or technology may be
downloaded or otherwise exported or reexported (i) into (or to a national or
resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any
other country to which the U.S. has embargoed goods; or (ii) to anyone on the
U.S. Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders. By using this CDK, You are
agreeing to the foregoing and You are representing and warranting that You
are not located in, under the control of, or a national or resident of any
such country or on any such list.
SUPPORT AND MAINTENANCE.
Upon mutual agreement of the parties and subject to NCI's standard support
and maintenance terms and conditions (including payment of NCI's then-current
support and maintenance fees), NCI shall provide to You support and
maintenance for the CDK licensed hereunder.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR
OTHERWISE, SHALL NCI OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES. IN NO EVENT WILL NCI BE LIABLE FOR ANY DAMAGES IN EXCESS
OF THE AMOUNT NCI RECEIVED FROM YOU FOR A LICENSE TO THIS CDK, EVEN IF NCI
SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM
BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY
FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH
LIMITATION. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND
EXCLUSION MAY NOT APPLY TO You. THE WARRANTY DISCLAIMERS AND LIMITATION OF
LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU
AND NCI.
HIGH RISK ACTIVITIES.
The CDK and results created using the CDK are not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail, safe performance, such as
in the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons
systems, in which the failure of the CDK and results created using the CDK
could lead directly to death, personal injury, or severe physical or
environmental damage ("High Risk Activities"). NCI and its licensors
specifically disclaim any express or implied warranty of fitness for High
Risk Activities.
MISCELLANEOUS.
This Agreement represents the complete agreement concerning this license and
may amended only by a writing executed by both parties, THE ACCEPTANCE OF ANY
PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO
THE TERMS SET FORTH HEREIN, AND NOT THOSE IN YOUR PURCHASE ORDER. If any
provision of this Agreement is held to be unenforceable, such provision shall
be reformed only to the extent necessary to make it enforceable and the
remaining provisions of this Agreement will not be affected or impaired in
any way. This Agreement shall be governed by California law without regard to
the conflict of laws provisions thereof. The application the United Nations
Convention of Contracts for the International Sale of Goods is expressly
excluded. If any legal action or proceeding is brought for the enforcement of
this Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred in such action or proceeding, in
addition to any other relief to which such party may be entitled.
U.S. GOVERNMENT RESTRICTED RIGHTS.
If this CDK is acquired by or on behalf of a unit or agency of the United
States Government, this provision applies, if the Programs are acquired by or
on behalf of a unit or agency of the United States Government, this provision
applies. The Programs: (a) were developed at private expense, are existing
computer software and no part of them were developed with government funds,
(b) are a trade secret of NCI or its licensors for all purposes of the
Freedom of Information act, (c) are "restricted computer software" submitted
with restricted rights in accordance with subparagraphs (a) through (d) of
the Commercial Computer Software-Restricted Rights clause at 52.227-19 and
its successors, (d) in all respects are proprietary data belonging solely to
NCI or its licensors, (c) are unpublished and all rights are reserved under
the copyright laws of the United States. For units of the Department of
Defense (DoD), the programs are licensed only with "Restricted Rights" as
that term is defined in the DoD supplement to the Federal Acquisition
Regulation 252.227-7013 (c)(1)(ii), Rights in Technical Data and Computer
Software and its successors, and use, duplication or disclosure is subject to
restrictions as set forth in subdivision (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at 252.227-7013 or to NCI's
standard commercial license, as applicable. Contractor/manufacturer is
Network Computer, Inc., 1000 Bridge Parkway, Redwood Shores, CA 94065. If
this CDK or the Programs are acquired under a GSA Schedule, the Government
has agreed to refrain from changing or removing any insignia or lettering
from this CDK, the Programs and any documentation provided (except for backup
purposes).
Should You have any questions concerning this Agreement, or if You wish to
contact NCI for any reason, please write: Network Computer, Inc., Attention:
Customer Service, 1000 Bridge Parkway, Redwood Shores, CA 94065.
NCI TV NAVIGATOR-TM- SDK LICENSE AGREEMENT
The following terms shall apply to any NCI NAVIGATOR SOFTWARE DEVELOPMENT
TOOLKITs licensed to ISP (referred to as "Licensee") hereunder.
REDISTRIBUTION OF THIS SOFTWARE DEVELOPMENT TOOLKIT ("SDK") OR ANY
DOCUMENTATION PROVIDED TO LICENSEE BY NCI IS STRICTLY PROHIBITED.
REDISTRIBUTION OF ANY RESULTS CREATED USING THIS SDK ARE PROHIBITED UNLESS
SUCH RIGHT HAS BEEN GRANTED PURSUANT TO A WRITTEN LICENSE AGREEMENT EXECUTED
BY NCI AND LICENSEE (THE "RESELLER AGREEMENT") AND THEN ONLY AS LICENSED
THEREBY.
THE MEDIA CONTAINED IN THIS PACKAGE INCLUDE A NUMBER OF SEPARATE PROGRAMS,
INCLUDING THE TORNADO FOR NCI TV NAVIGATOR, ADD-ON COMPONENTS AND TOOL
PROGRAMS FOR USE WITH TORNADO FOR NCI TV NAVIGATOR, AND THE NCI TV NAVIGATOR
SYSTEM COMPONENTS. LICENSEE IS PERMITTED TO USE ONLY THOSE PROGRAMS FOR WHICH
LICENSEE HAS PAID THE LICENSE FEE AND OBTAINED A PASSKEY FROM NCI ALLOWING
LICENSEE ACCESS TO THE PROGRAM. LICENSEE HAS NOT LICENSED A PROGRAM UNTIL
LICENSEE HAS PAID THE LICENSE FEE AND OBTAINED THE PASS KEY. FURTHERMORE,
LICENSEE'S USE OF THIS SDK IS SUBJECT TO ALL THE TERMS AND CONDITIONS SET
FORTH BELOW.
LICENSE.
This SDK is licensed, not sold, to Licensee for use only under the terms of
this agreement, and NCI and its licensors reserve all rights not expressly
granted to Licensee. Licensee owns the media on which this SDK was originally
fixed, but NCI and its licensors retain ownership of all copies of the
programs comprising this SDK (collectively the "Programs"). Licensee (the
original licensee of this SDK) may:
(a) use this SDK on a single computer by one user at a time. Use is limited
to development of the Product or Products as defined in the Reseller
Agreement which may only be performed at the site set forth herein or, if
applicable, only at the location of Licensee's principal office as set forth
in the Reseller Agreement. Furthermore, use is limited to development for a
Product or Products which execute on a single target architecture, as set
forth herein or, if applicable, the target architecture set forth in the
Reseller Agreement. The number of authorized seats may be increased only upon
approval of NCI and payment of additional license fees.
(b) make one copy of Tornado for NCI TV Navigator or Tornado for NCI TV
Navigator Component Program licensed by Licensee or portions thereof except
for the directory "bin", sub directory "h", and the files entitled "make
file" in directories "config/all" and "config/(target)". Such copy shall be
in tangible object code form only for physical incorporation into a Product
or Products as defined in the Reseller Agreement that Licensee develops using
this SDK, provided that such copy includes a reproduction of any notices
appearing in or on the programs included in this SDK. Such copy shall be used
for development processes only and be accessed only as part of the Target
Application and not on a stand alone or independent basis.
(c) make one copy of any licensed programs in tangible object code form for
purposes of backup; provided that such copy includes a reproduction of any
notices appearing in or on such program.
LICENSE RESTRICTIONS.
(a) Unauthorized copying of this SDK, the Programs or the written materials
included in this package is expressly forbidden. Licensee may be held legally
responsible for any copyright infringement which is caused or encouraged by
Licensee's failure to abide by the terms of this agreement.
(b) Licensee may not market, distribute, or transfer copies of this SDK or
the Program to others or electronically transfer this SDK or the Programs
from one computer to another over a network.
(c) Licensee may not: (i) permit other individuals to use this SDK or the
Programs; (ii) modify, translate, reverse engineer, decompile, disassemble
(except to the extent applicable laws specifically prohibit such
restriction), or create derivative works based on this SDK or the Programs;
(iii) copy this SDK or the Programs (except as expressly provided herein);
(iv) rent, lease, grant a security interest in, or otherwise transfer rights
to this SDK or the Programs; or (v) remove any proprietary notices or labels
in or on this SDK or the Programs.
(d) Licensee understands that NCI and its licensors may update or revise this
SDK and/or the Programs and in so doing incurs no obligation to furnish such
updates to Licensee unless Licensee has purchased current support and
maintenance services from NCI as described in the section below titled
Technical Support.
(e) Use of this SDK and the Programs is subject to proper AND complete
installation of the NCI TV Navigator System Components pursuant to the
instructions and procedures provided to Licensee by NCI.
(f) Upon transfer of this SDK, any Program or any copy thereof, the licensed
granted hereunder shall terminate immediately.
(g) Unless otherwise agreed by the parties in writing, any and all
development by Licensee of device drivers must be performed at NCI's premises.
To the extent European Economic Community ("EEC") law is applicable, the
above restrictions on reverse engineering, decompiling, disassembling or
reducing any machine-readable software or component to human-readable form is
limited so that it prohibits such activity only to the maximum extent such
activity may be prohibited without violating the EEC Directive on the legal
protection of computer programs.
HARDWARE LOANS.
In the event that NCI has provided Licensee any hardware (including, without
limitation, the NCI Reference Platform) for use with the SDK, Licensee shall
return to NCI any such hardware immediately upon the earlier of (i) NCI's
written request to Licensee or (ii) the date agreed upon by the parties in
any separate written agreement for the return of such hardware. NCI shall
retain all right, title and interest in and to such hardware at all times,
including, without limitation, the period while such hardware is located at
Licensee's facilities.
DISCLAIMER OF WARRANTY.
THIS SDK IS PROVIDED ON AN "AS IS" BASIS. NCI AND ITS LICENSORS EXPRESSLY
DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION,
THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS
SDK AND ANY RESULTS CREATED USING THIS SDK IS BORNE BY LICENSEE. IN ADDITION,
THE SECURITY MECHANISMS IMPLEMENTED BY THIS SDK AND RESULTS GENERATED THROUGH
ITS USE HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE SDK
AND SUCH RESULTS SUFFICIENTLY MEET LICENSEE'S SECURITY REQUIREMENTS. THIS
DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME
JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS
DISCLAIMER MAY NOT APPLY AND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY
BY JURISDICTION.
TITLE.
Title, ownership rights, and intellectual property rights in this SDK and the
Programs shall remain in NCI and/or its licensors. This SDK is protected by
the copyright laws and treaties.
CONFIDENTIALITY.
NCI and its licensors consider this SDK and the Programs to contain valuable
trade secrets of NCI and its licensors, the unauthorized disclosure of which
could cause irreparable harm to NCI and/or its licensors. Licensee agrees to
use reasonable efforts not to disclose the Programs to any third parties and
not to use the Programs other than for the purposes authorized by this
Agreement. This confidentiality obligation shall continue after any
termination of this Agreement.
TERMINATION.
This Agreement is effective until terminated. The Sections of this Agreement
titled License Restrictions, Disclaimer of Warranty, Limitation of Liability,
Title, Confidentiality and Miscellaneous shall survive any termination or
expiration of this Agreement. This Agreement will terminate automatically
upon Licensee's failure to comply with any of the limitations described
herein or in the Reseller Agreement by and between NCI and Licensee.
Licensee hereby acknowledges that unless and until Licensee enters into a
Reseller Agreement, Licensee shall use the SDK solely for its internal
evaluation purposes.
On any termination or expiration of this Agreement, Licensee must, at NCI's
option, return or destroy the SDK, any documentation provided by NCI and any
copies thereof and shall return to NCI all hardware (including, without
limitation, the NCI Reference Profile), if any, provided by NCI to Licensee
for use with the SDK.
EXPORT CONTROLS.
None of this SDK or any underlying information or technology may be
downloaded or otherwise exported or reexported (i) into (or to a national or
resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any
other country to which the U.S. has embargoed goods; or (ii) to anyone on the
U.S. Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders. By using this SDK, Licensee is
agreeing to the foregoing and Licensee is representing and warranting that
Licensee is not located in, under the control of, or a national or resident
of any such country or on any such list.
SUPPORT AND MAINTENANCE.
Upon mutual agreement of the parties and subject to NCI's standard support
and maintenance terms and conditions (including
payment of NCI's then-current support and maintenance fees), NCI shall
provide to Licensee support and maintenance for the SDK licensed hereunder.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR
OTHERWISE, SHALL NCI OR ITS LICENSORS BE LIABLE TO LICENSEE OR ANY OTHER
PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES. IN NO EVENT WILL NCI BE LIABLE FOR ANY DAMAGES IN EXCESS
OF THE AMOUNT NCI RECEIVED FROM LICENSEE FOR A LICENSE TO THIS SDK, EVEN IF
NCI SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR: ANY
CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO
LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS
SUCH LIMITATION. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND
EXCLUSION MAY NOT APPLY TO LICENSEE. THE WARRANTY DISCLAIMERS AND LIMITATION
OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN
LICENSEE AND NCI.
HIGH RISK ACTIVITIES.
The SDK and results created using the SDK are not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail-safe performance, such as
in the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons
systems, in which the failure of the SDK and results created using the SDK
could lead directly to death, personal injury, or severe physical or
environmental damage ("High Risk Activities"). NCI and its licensors
specifically disclaim any express or implied warranty of fitness for High
Risk Activities.
MISCELLANEOUS,
This Agreement represents the complete agreement concerning this license and
may amended only by a writing executed by both parties, THE ACCEPTANCE OF ANY
PURCHASE ORDER PLACED BY LICENSEE IS EXPRESSLY MADE CONDITIONAL ON LICENSEE'S
ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN LICENSEE'S PURCHASE
ORDER. If any provision of this Agreement is held to be unenforceable, such
provision shall be reformed only to the extent necessary to make it
enforceable and the remaining provisions of this Agreement will not be
affected or impaired in any way. This Agreement shall be governed by
California law without regard to the conflict of laws provisions thereof. The
application the United Nations Convention of Contracts for the International
Sale of Goods is expressly excluded. If any legal action or proceeding is
brought for the enforcement of this Agreement, or because of any alleged
dispute, breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs incurred in
such action or proceeding, in addition to any other relief to which such
party may be entitled.
U.S. GOVERNMENT RESTRICTED RIGHTS.
If this SDK is acquired by or on behalf of a unit or agency of the United
States Government, this provision applies. If the Programs are acquired by or
on behalf of a unit or agency of the United States Government, this provision
applies. The Programs: (a) were developed at private expense, are existing
computer software and no part of them were developed with government funds,
(b) are a trade secret of NCI or its licensors for all purposes of the
Freedom of Information act, (c) are "restricted computer software" submitted
with restricted rights in accordance with subparagraphs (a) through (d) of
the Commercial Computer Software-Restricted Rights clause at 52.227-19 and
its successors, (d) in all respects are proprietary data belonging solely to
NCI or its licensors, and (e)are unpublished and all rights are reserved
under the copyright laws of the United States. For units of the Department of
Defense (DoD), the programs are licensed only with "Restricted Rights" as
that term is defined in the DoD supplement to the Federal Acquisition
Regulation 252.227-7013 (c)(1)(ii), Rights in Technical Data and Computer
Software and its successors, and use, duplication or disclosure is subject to
restrictions as set forth in subdivision (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at 252.227-7013 or to NCI's
standard commercial license, as applicable. Contractor/manufacturer is
Network Computer, Inc., 1000 Bridge Parkway, Redwood Shores, CA 94065. If the
Programs are acquired under a GSA Schedule, the Government has agreed to
refrain from changing or removing any insignia or lettering from the Programs
or the documentation as provided or from producing copies of manuals or media
(except for backup purposes).
EXHIBIT D
THIRD PARTY RESTRICTIONS
The following third party restrictions apply to Internet Services to the
extent that they incorporate any of the third party software listed below.
Any capitalized terms that are not defined herein have the same definition as
in the Agreement.
1. REGARDING BITSTREAM SOFTWARE--In the event that the Internet Services
include Bitstream software sublicensed from NCI, you must comply with the
following restrictions and obligations: 1.1. Licensee must reproduce each
Bitstream copyright, trademark and/or patent notice, as applicable in its
entirety, in the same location as it appears, in electronic or printed
form, on the NCI Software or SDK(s) as delivered to Licensee.
2. REGARDING RSA SOFTWARE--In the event that the Internet Services includes
RSA software sublicensed from NCI, you must comply with the following
restrictions and obligations:
2.1. Licensee should include within the splash screens, user
documentation, printed product collateral, product packaging and
advertisements for the Internet Services, the RSA "Licensee Seal"
from the form attached hereto as Appendix "A" along with a statement
that the Internet Services contains the RSA Software, Licensee agrees
not to remove or destroy any proprietary, trademark or copyright
markings or notices placed upon or contained within the software or
documentation provided by NCI.
2.2 Licensee must in all proposals and agreements with the United States
government identify and license the Internet Services, including any
RSA object Code, as follows: (i) for acquisition by or on behalf of
civilian agencies, as necessary to obtain protection as "commercial
computer software" and related documentation in accordance with the
terms of NCI's or Licensee's customary license, as specified in 48
C.F.R. 12.212 of the Federal Acquisition Regulations and its
successor regulations, or (ii) for acquisition by or on behalf of
units of the Department of Defense, as necessary to obtain protection
as "commercial computer software" as defined in 48 C.F.R.
227.7014(a)(1) of the Department of Defense Federal Acquisition
Regulation Supplement (DFARS) and related documentation in accordance
with the terms of NCI's or Licensee's customary license, as specified
in 48 C.F.R. 227.7202.1 of DFARS and its successor regulations.
2.3. In the event that Licensee includes an "About Box" or similar
reference in the Internet Services, Licensee agrees to insert and
maintain in the "About Box" (1) the RSA "Licensee Seal" indicated in
Appendix "A", and (2) a hypertext link to RSA's homepage at an
RSA-designated URL (currently www.rsa.com), which logo and pointer
shall appear on the first page of such "About Box" and in no less
prominent location and size than any other third party logo included
therein.
2.4. Licensee further agrees to include in any Security Advisory made
available to third parties, whether in printed or electronic format,
the RSA "Licensee Seal" indicated in Exhibit "A" and a brief
description of the RSA software sublicensed hereunder and its
relevant applicability to the subject matter of the Security
Advisory. For the purposes of the Agreement, "Security Advisory"
means any tutorial, FAQ or similar manual or instructional
documentation describing data security used by or available in the
Internet Services.
3. REGARDING HEADSPACE SOFTWARE--In the event that the Internet Services
include Headspace MIDI software or music content sublicensed from NCI, you
must comply with the following restrictions and obligations:
3.1. In the event that the Internet Services includes an "About Box" or
similar reference, Licensee must include references to Headspace,
Inc. and the RMF logo, as well as a link to the Headspace, Inc. web
site, in the area designated by Licensee for such "About Box". The
RMF logo is included as Appendix "B", attached hereto, and
incorporated herein by this reference.
4. REGARDING PROGRESSIVE NETWORKS SOFTWARE--In the event that the Internet
Services includes Progressive Networks software sublicensed from NCI, you
must comply with the following restrictions and obligations:
4.1. Licensee must use Progressive Networks' (PN) marks in accordance with
PN's usage policies attached hereto as Appendix "C" and incorporated
herein by this reference. Such marks may be used solely in Connection
with Licensee's advertising, marketing and distribution of the
Internet Services incorporating PN's software.
4.2. To the extent the Internet Services includes an implementation of an
"About Box" or similar reference, Licensee must include a reference
to "Progressive Networks" and "RealNetworks" as follows: "The
RealNetworks Player is included under license from Progressive
Networks, Inc. Copyright 1995-1997, Progressive Networks, Inc.
RealNetworks and the RealNetworks logo are registered trademarks of
Progressive Networks, Inc. All rights reserved,"
4.3. Licensee acknowledges that use, duplication or disclosure of the PN
software by the Government is subject to restrictions set forth in
subparagraphs (a) through (d) of the Commercial Computer-Restricted
Rights clause at FAR 52.227-19 when applicable, or in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software
clause at DFARS 252.227- 7013, or in similar clauses in the NASA FAR
supplement. Contractor/manufacturer is Progressive Networks, Inc.;
1111 Third Avenue; Suite 500; Seattle, Washington, 98101.
5. REGARDING JAVA SOFTWARE--In the event that the Internet Services include
Java Software from Sun Microsystems, Inc. ("Sun") or Javasoft, you must
comply with the following restrictions and obligations:
5.1. The Internet Services containing Java software that you distribute
shall include in the documentation, or in other terms and conditions of
sale, notices substantially similar to those contained on and in the NCI
Software, SDKs and related
APPENDIX "A" TO EXHIBIT D
RSA SEAL AND TRADEMARKS
RSA Licensee Seal: [Logo]
You are also permitted to use the following RSA trademarks, as applicable, in
ads, product packaging, documentation or collateral materials, provided that you
use the correct trademark designator, depicted below, and identify RSA as the
owner of the mark.
RC2-Registered Trademark- Symmetric Block Cipher, RC4-Registered Trademark-
Symmetric Stream Cipher
RC5-TM- Symmetric Block Cipher
BSAFE-TM-, TIPEM-TM-
RSA Public Key Cryptosystem-TM-
MD-TM-, MD2-TM-, MD4-TM-, MD5-TM-
RSA has reserved the right to update this Appendix "A" from time to time upon
reasonable notice to you.
APPENDIX "B" TO EXHIBIT D
RMF LOGO
[Logo]
APPENDIX "C" TO EXHIBIT D
PROGRESSIVE NETWORKS TRADEMARK USAGE POLICY
REALNETWORKS-Registered Trademark- (text form)
PN-Register Trademark- (text form)
PROGRESSIVE NETWORKS-Registered Trademark- (text form)
REALMEDIA-TM- (text form)
REALVIDEO-TM- (text form)
REALPLAYER-TM- (text form)
WEBACTIVE -Registered Trademark- (text from)
1. When using a Progressive Networks' trademark ("PN Mark"), use the
registered trademark symbol -Registered Trademark- or the -TM- symbol, as
indicated in the above example, on the most prominent (or if none is
prominent, the first) appearance of a PN Mark. For any PN Mark that is not
registered, the -TM- symbol should be used in place of the registered
trademark symbol -Registered Trademark-. Once marked, it is not normally
necessary to mark subsequent appearances of the trademark in the piece. Every
appearance of PN Logos in stylized form should always appear with the
appropriate -Registered Trademark- or -TM-symbol, and may be used only under
license with PN - unauthorized use is strictly prohibited. Shown above are a
list of current PN Marks that reflects the registration status of the PN
Marks. This list will be updated . from time to time.
2. When using a PN Mark, never vary the spelling, add or delete hyphens, make
one word two, or use a possessive or plural form of the PN Mark. PN word
marks must always be used as adjectives followed by a generic term (such as
"software" or "system"), and never as nouns or verbs.
3. Progressive Networks is the owner of all right, title, and interest in the
PN Marks and Licensee agrees that it will not challenge the validity of
Progressive Networks' ownership of the PN Marks. Licensees shall not
reproduce or use (or authorize the reproduction or use of) the PN Marks in
any manner other than expressly authorized by Progressive Networks.
4. Progressive Networks may from time to time modify the PN Marks.
Progressive Networks will use commercially reasonable efforts to give
licensees advance notice of such modifications.
5. In order to assure compliance, you will, upon request from Progressive
Networks, provide samples of any marketing and advertising materials that
include the PN Marks.
6. In any place where they appear together, the PN Marks and any associated
text must be at least as large as the trademark and text of another vendor.
IMPORTANT INFORMATION ABOUT USING THE TEXT FORM
of the Word RealNetworks -Registered Trademark-
1. When using the word RealNetworks, use the registered trademark symbol
-Registered Trademark-symbol, as indicated in the above example, on the most
prominent (or if none is prominent, the first) appearance of its use on a
page. For any PN Mark that is not registered, the -TM- symbol should be used
in place of the registered trademark symbol -Registered Trademark-. Once
marked with the -Registered Trademark- symbol, it is not normally necessary
to mark subsequent appearances of the trademark in the piece.
2. When using the word RealNetworks, never vary the spelling, add or delete
hyphens, make one word two, or use a possessive or plural form of the word.
RealNetworks must always be used as an adjective followed by a generic
term'(such as "software" or "system"), and never as a noun or verb.
[LOGO] NETWORK COMPUTER, INC.
-------------------------------------------------------------------------------
NCI-TM- RESELLER PRICE LIST
VALID SEPTEMBER 1ST TO NOVEMBER 30, 1998
NCI-TM- CUSTOM CONNECT-TM- SERVER SUITE
CUSTOM CONNECT SERVER SUITE DEVELOPMENT LICENSES
-------------------------------------------------------------------------------
The Custom Connect development license is sold to service providers who are
developing and installing a Custom Connect system to service NCI clients. The
license entitles the service provider to develop, customize and install the
Custom Connect components and test those components against a defined number of
client devices in a development environment only. By purchasing the license, the
service provider agrees to the following:
1) License is a distribute and use license only
2) Service provider will distribute client software updates online as
required by the OEM
3) Service provider will only update client boxes with NCI-supplied client
software appropriate to the OEM
PART # DESCRIPTION PRICE
------ ----------- -----
N105 I0 Custom Connect Server Suite for Windows NT $215,000
N10530 Custom Connect Server Suite for Solaris UNIX $215,000
N10540 Custom Connect Server Developer License $35,000
Allows the customer to install and use the SDK tools for Custom Connect
N10550 Custom Connect Server Replication Fee - per server $30,000
Allows the customer to deploy on multiple server systems for scaling and redundancy
CUSTOM CONNECT SERVER DEPLOYMENT LICENSES
-------------------------------------------------------------------------------
The deployment license is sold to ISPs who are providing service to the NCI
software. Software for client software updates will be provided through NCI. By
purchasing the license, the ISP must agree to the following:
1) License is a distribute and use license only
2) ISP will distribute client software updates online as needed by the OEM
3) ISP will only update client boxes with the appropriate OEM client
software
CUSTOM CONNECT SERVER DEPLOYMENT LICENSE FEES--MONTHLY PAYMENT
The monthly payment includes all support, maintenance and upgrades (specified)
for the CCS and TV Navigator software.
PRICE PER SUB PER MONTH
--------------------------
PART # DESCRIPTION W/MINORS W/MAJORS
------ ----------- -------- --------
N10651 0 to 50K license fee per active client $3.00 $3.30
N10652 50,001 to 100K license fee per active client $2.60 $2.85
N10653 100,001 to 250K license fee per active client $2.25 $2.50
N10654 250,001 to 500K license fee per active client $2.00 $2.20
N10655 500,001 to IM license fee per active client $1.75 $1.95
N10656 1M+ license fee per active client $1.40 $1.55
CUSTOM CONNECT SERVER DEPLOYMENT LICENSE FEES--ONE-TIME PAYMENT
The one-time payment does not include support, maintenance or upgrades that are
purchased through an NCI Support program listed at the end of this price list.
PART # DESCRIPTION PRICE
------ ----------- -----
N10751 0 to 50K license fee per activated client $48.00
N10752 50,001 to 100K license fee per activated client $41.00
N10753 100,001 to 250K license fee per activated client $35.00
N10754 250,001 to 500K license fee per activated client $31.00
N10755 500,001 to 1M license fee per activated client $27.00
N10756 IM+ license fee per activated client $23.00
[LOGO] NETWORK COMPUTER, INC.
-------------------------------------------------------------------------------
CUSTOM CONNECT SERVER DEPLOYMENT LICENSE FEES--MULTI-USER, ONE-TIME PAYMENT
Multi-user is defined as more than six users per device (i.e.--kiosk, office
setting, hotel). The multi-user, one-time payment does not include support,
maintenance or upgrades that are purchased through an NCI Support program
listed at the end of this price list.
PART # DESCRIPTION PRICE
------ ----------- -----
N10851 0 to 250 license fee per activated client $100.00
N10852 251 to 1K license fee per activated client $80.00
N10853 1,001 to 2,500 license fee per activated client $70.00
N10854 2,501 to 5,000 license fee per activated client $62.00
N10855 5,001 to 10,000 license fee per activated client $56.00
N10856 10,001 + license fee per activated client $50.00
Page 2
[LOGO] NETWORK COMPUTER, INC.
-------------------------------------------------------------------------------
NCI-TM- NC ADMINISTRATION SERVER-TM- AND NC DESKTOP-TM-
NC ADMINISTRATION SERVER DEPLOYMENT LICENSES
-------------------------------------------------------------------------------
N50600 NC Administration Server for Solaris $995.00
Includes 5 NC Desktop user licenses and 5 NC Cards
N50700 NC Administration Server for Windows NT $995.00
Includes 5 NC Desktop user licenses and 5 NC Cards
NC DESKTOP DEPLOYMENT LICENSES
-------------------------------------------------------------------------------
N50601 0-1,000 client license per unit $149.00
N50602 1,001-2,500 client license per unit $139.00
N50603 2,501-10,000 client license per unit $119.00
N50604 10,000+ NC client license per unit $ 99.00
N10120 Smart card--per unit, 4 color artwork $5, no discount available
SUPPORT PROVIDED AND PRICED THROUGH ORACLE
Page 3
[LOGO] NETWORK COMPUTER, INC.
-------------------------------------------------------------------------------
NCI-TM- DEVELOPMENT TOOLS AND TRAINING
DEVELOPMENT KITS
-------------------------------------------------------------------------------
N28900 TV Navigator SDK for x86--40-bit encryption $70,000
This SDK is for customers who need to add or modify functionality
of the applications or drivers provided with the TV Navigator client.
Customer must be proficient in C/C++, HTML and JavaScript.
-- Software, documentation and first user license for SDK and
WindRiver Tornado tools
-- NT150 Hardware Reference Platform unit
N28901 TV Navigator SDK for x86--non-SSL version $70,000
N28905 TV Navigator SDK for x86--additional user license $30,000
-- Additional user license and documentation for SDK, Tornado tools
-- NT150 Hardware Reference Platform unit
N28920 TV Navigator Customization Kit--40-bit encryption $50,000
This kit includes all the tools and content necessary to customize,
test, and deploy new versions of the TV Navigator user
interface. Also enables the creation of new HTML and JavaScript
applications. Customer needs to be proficient in HTML and
JavaScript.
-- Includes software, first user license, NT150 Hardware Reference
Platform, floppy drive kit
N28921 TV Navigator Customization Kit--non-SSL version $50,000
N28922 TV Navigator Customization Kit--128-bit encryption version $50,000
N28925 TV Navigator Customization Kit $20,000
-- Additional user license and NT150 Hardware Reference Platform unit
N28910 TV Navigator Content Development Kit no charge
This kit is for customers who need to modify or create server side HTML and
JavaScript based pages.
N67220 TV Navigator Content Development Kit phone support, per registered user $1,000 per month, up front
TRAINING
-------------------------------------------------------------------------------
Training cannot be discounted and is subject to availability. For all
training classes, no credits will be issued for seats not filled in a class.
Customer may cancel up to 5 business days before the class and receive a credit,
otherwise, class fee will be collected and no spot held in the next training
class.
N65100 TV Navigator SDK training--1 day training at NCI for up to five
participants $5,000
This course covers the use of the SDK tools as well as setting up
the tool environment (Tornado)
N65200 TV Navigator Customization Kit training--1 day training at NCI for up to five participants $5,000
This course covers how to create/modify applications in the TV Navigator environment
N67100 Custom Connect Server training--2 day training at NCI for up to $8,000
five participants
This course covers how to install and maintain the Custom Connect
Server environment
N68100 NC Administration Server training--2 day training at NCI for up to five participants $8,000
This course covers how to install and maintain the NC Server environment
Page 4
[LOGO] NETWORK COMPUTER, INC.
-------------------------------------------------------------------------------
NCI-TM- RESELLER PRICE LIST- JAPAN ADDENDUM
VALID JUNE 1ST TO AUGUST 31, 1998
Custom Connect Server Deployment License Fees---ONE-TIME PAYMENT
The one-time payment does not include support, maintenance or upgrades that
are purchased through Oracle Support
PART # DESCRIPTION PRICE
------ ----------- -----
N10751 0 to 50K license fee per activated client $36.00
N10752 50,001 to 100K license fee per activated client $34.00
N10753 100,001 to 250K license fee per activated client $32.00
N10754 250,001 to 500K license fee per activated client $30.00
N10755 500,001 to IM license fee per activated client $28.00
N10756 1M+ license fee per activated client $25.00
NCI-TM- NC ADMINISTRATION SERVER-TM- AND NC DESKTOP-TM-
NC DESKTOP DEPLOYMENT LICENSES
----------------------------------------------------------------------------------------
N50701 0-1,000 client license per unit $195.00
N50702 1,001-2,500 client license per unit $169.00
N50703 2,501-10,000 client license per unit $139.00
N50704 10,000+ client license per unit $119.00
Page 5
NETWORK COMPUTER INC.
SIGNATURE
NCI IDENTITY GUIDELINES
[LOGO]
THE CORPORATE SIGNATURE IS THE MOST POWERFUL ELEMENT OF THE NCI CORPORATE
IDENTITY. IT'S EXISTENCE WITHOUT FURTHER EXPLANATION IDENTIFIES A PRODUCT OR
SERVICE WHICH BELONGS TO NCI LIKE YOUR OWN SIGNATURE, ITS CONSISTENT
APPEARANCE IS ESSENTIAL TO PRESERVING ITS INDIVIDUALITY.
THE NCI CORPORATE IDENTITY PROGRAM PROVIDES APPROVED GUIDELINES FOR
USING THE CORPORATE SIGNATURE. PROPER USAGE OF OUR SIGNATURE ALLOWS
CUSTOMERS, PARTNERS, PRESS, ANALYSTS AND THE PUBLIC TO EASILY RECOGNIZE AND
IDENTIFY THE NCI BRAND.
SIGNATURE ELEMENTS AND USAGE
The NCI corporate signature consists of the logotype--the letters "N" and "C"
centered on either side of a bar with the superscript-TM- always
following and the tagline "Network Computer, Inc." The following guidelines
are designed to help you apply the logotype and tagline properly.
NCI SOFTWARE BRAND
The logo without the tagline is used to denote NO, software. This brand logo
should be used on devices and by manufacturers in promotion of the software.
All signature guidelines apply.
LOGOTYPE TRADEMARK USAGE
--------------------------- ---------------------------------
THE NCI LOGOTYPE IS THE THE SUPERSCRIPT -TM- SHOULD
MAIN ELEMENT OF OUR COMPANY ALWAYS FOLLOW THE LOGOTYPE
SIGNATURE. IT SHOULD ALWAYS ALIGNED TO THE TOP RIGHT OF
BE THE DOMINANT ELEMENT OF THE "C': THE -Trademark- SHOULD
THE SIGNATURE. ALWAYS APPEAR WITH THE LOGO.
[Logo]
TAGLINE TAGLINE USAGE
---------------------------- ------------------------------
THE TAGLINE IS A SECONDARY RED BAR. THE TAGLINE IS NOT THE TAGLINE IS OMITTED WHEN
ELEMENT OF THE SIGNATURE. IT TO BE REPLACED BY, OR USED THE LENGTH OF THE LOGOTYPE IS
SHOULD BE SET IN BANK GOTHIC IN CONJUNCTION WITH OTHER LESS THAN 25 MM (6 PICAS),
MEDIUM AND JUSTIFIED LEFT TAGLINES AND MUST ALWAYS THE STANDARD SIZE FOR MOST
AND RIGHT WITH THE LOGOTYPE, APPEAR IN THE ENGLISH COLLATERAL APPLICATIONS. THE
ITS PLACEMENT IS DETERMINED, LANGUAGE, TAGLINE SHOULD NOT BE USED
AS ABOVE, BY THE HEIGHT OF WHEN THE SIGNATURE IS PLACED
"X," WHICH IS EXACTLY THREE WITHIN AN ADDRESS BLOCK, SUCH
(3) TIMES THE WIDTH OF THE AS ON THE BACK OF BROCHURES.
SIGNATURE STAGING
Staging refers to the area directly surrounding the signature. To ensure its
visibility and integrity, the no: signature staging area must be clear of
other elements such as type, images, or other signatures.
[Logo]
SIGNATURE
CLEARSPACE
THE CLEARSPACE SURROUNDING
ALL SIDES OF THE SIGNATURE
IS ALWAYS EQUAL TO THE HEIGHT
OF THE RED BAR.
SIGNATURE USAGE WITH PARTNER LOGOS
When combined, the NCI and partner logos must be applied correctly and with
proper respect to each other. The NCI and partner logos should be in similar
size. Examples of partnership logos are shown below.
SIGNATURE COLORS
The consistent and correct use of NCI colors is essential to creating and
maintaining a strong worldwide brand identity. The NCI logotype should be
printed only in NCI red and black on a white background, or the letters "N"
and "C" may be reversed to white on a black background. When printing on
backgrounds other than white or black, use NCI, red and black logo on white
background. Please see "SIGNATURE STAGING" for space requirements. Specific
examples are illustrated below.
TWO OR MORE
COLORS
-----------------------------
WHEN PRINTING WITH TWO OR
[Logo] MORE COLORS, THE LOGOTYPE
IS PRINTED WITH NCI RED
(OR, IF USING PROCESS COLORS,
100 PERCENT MAGENTA AND
100 PERCENT YELLOW). THE
TAGLINE IS PRINTED BLACK
WHEN ON A WHITE OR
[Logo] LIGHT-COLORED BACKGROUND, AND
WHITE WHEN ON A BLACK OR
DARK-COLORED BACKGROUND.
ONE COLOR
-----------------------------
WHEN PRINTING WITH ONE
COLOR, THE LOGOTYPE AND
[Logo] TAGLINE ARE PRINTED BLACK
ON A WHITE BACKGROUND, AND
WHITE ON A BLACK BACKGROUND.
[Logo] THE BOXES ON THE LEFT
ARE EXAMPLES OF BACKGROUNDS
ONLY. THE NCI SIGNATURE SHOULD
NOT BE USED IN ANY BOX.
SPECIFICATIONS FOR NCI RED
AND BLUE CAN BE FOUND IN THE
COLOR SECTION OF THIS GUIDE.
IMPROPER SIGNATURE USAGE
Examples of established and approved corporate signatures are shown in the
SIGNATURE ELEMENTS section of this style guide. A selection of reproducible
cor-porate signatures is available on the NCI web site at www.nc.com. Below
are examples of improper signature usage.
[Logo] SIGNATURE COLORS SHOULD NOT
BE ALTERED IN ANY WAY.
[Logo] THE RELATIONSHIP OF LOGOTYPE TO
TAGLINE SHOULD NOT BE CHANGED.
[Logo] NO PART OF THE SIGNATURE MAY BE
DISTORTED, REDRAWN, OR REDESIGNED.
[Logo] THE TYPEFACE OF THE TAGLINE
SHOULD NOT BE CHANGED.
[Logo] GRAPHIC ELEMENTS SHOULD NOT BE ADDED
TO THE SIGNATURE.
[Logo] SIGNATURE COLORS SHOULD NOT
BE A PERCENTAGE OF A COLOR.
SIGNATURE USAGE WITH HARDWARE
For hardware devices, the NCI brand logo--the NCI logotype without the
tagline--should appear. It is importanT that it be represented clearly,
maintaining the required space around the logo. Manufacturers should use the
standard black and NCI red brand logo unless the device color is black. For
black hardware, the optional NCI brand logo which includes "N" and "C" in
white with the NCI red line should be used. Please see SIGNATURE STAGING and
SIGNATURE USAGE WITH PARTNER LOGOS for more specific guidelines. The logo
should never appear smaller than 20mm in width and shall maintain the correct
aspect ratio.
Hardware manufacturers with limitations that
prohibit the recommended placement and usage should
contact an NCI representative. Below are examples
of how the NCI brand logo is represented on various
hardware devices.
LOGO
The Net brand logo should appear on OEM hardware in the same treatment as the
OEM logo. The following display methods are listed in order of preference.
1) A molded, color logo that sits in a depressed area so that the top of the
logo is flush with the face of the device.
2) A molded, color logo that sits on top of the face of the device.
[Logo]
SIGNATURE USAGE WITH HARDWARE (CONT.)
SET TOP BOX
The NCI. logo shall be placed on thefront bezel of the OEM product.
Recommended position is centered on the horizontal centerline of the
bezel. SEE PREVIOUS PAGE FOR EXAMPLE.
DISPLAYS
The NCI brand logo should be centered at the top of the device.
[Logo]
KEYBOARD AND REMOTE
The NCI logo shall be placed on any remote control or keyboard bundled with
or sold in conjunction with the OEM product. Recommended position is centered
at the top or bottom of the top face of the remote or keyboard.
[Logo]
SMART CARD
The NCI logo shall be placed on the topside of any smart card that is bundled
with or sold in conjunction with the OEM product. The logo shall appear on
the tab of the smart card that extends from the OEM product.
[Logo]
SIGNATURE USAGE WITH SOFTWARE
When designing for television display, the Net brand logo--the NCI logotype
WITHOUT the tagline--should be used. It should never appear smaller than 47
pixels in width and 18 pixels in height on any display 320 x 240 pixels or
larger.
In order to achieve image stabilization, logo colors may be altered for
television display. We recommend equalizing the NCI logo so that the darkest
black is 90% black and the lightest white is 10% black, In addition, it may
be necessary to alter the NCI logo color to avoid video artifacts such as
chroma crawl, video bleeding, and clamping. If logo colors are changed, they
must be made one color so that the "N ", the bar, and the "C" are all the
same color.
Software vendors with limitations that prohibit the placement and usage
should contact your NCI representative.
Detailed on-screen color guidelines and example NCI brand graphics and logos
are available from NCI.
INITIAL POWER-ON
At initial power-on or after power loss, the NCI logo shall display for no
less than five seconds immediately after the user turns on the OEM Product.
SOFT POWER-ON
An NCI logo shall display for no less than three seconds immediately after
the user turns the O EM Product on from a soft power state (for example,
power has been supplied to the box since last use).
[Logo]
SIGNATURE USAGE WITH SOFTWARE (CONT.)
STATUS BAR
NCI reserves the right to determine the logo and/or sound byte that shall be
placed on the Status Bar. Note that this requirement applies to NCI
applications or core TV Navigator functionality that use the Status Bar.
[Logo]
MENU BAR
NCI reserves the right to determine the logo that shall be placed on the Menu
Bar.
[Logo]
TV BAR
The NCI logo shall be placed on the TV Bar. In addition, a content portal
frame accessible from the TV Bar allows OEMs and ISP partners to provide a
link to content or applications of their choosing in addition to the provided
NCI link.
[Logo]
SIGNATURE USAGE WITH ISP BRANDING
On the default root page, default personalized root page, and favorite lists,
the NCI logo as a selectable icon shall be placed in a prominent location and
shall be visible at all times without further navigation. If the background
is dynamic, the logo must be visible for at least 30 seconds each visit or
until the user leaves the page. A prominent location is defined as not
requiring the user to scroll or otherwise navigate in order to see the logo
on entrance to the page.
The content provided through the NCI selectable icon or NCI content portal
shall not be blocked or restricted in any fashion except by user-elected
restrictions (e.g., parental control filters).
SIGNATURE USAGE WITH PROMOTIONAL MATERIALS
AUTO DEMO
The NCI logo will be included in any point of sale auto demo used to sell the
OEM product, The logo will be on-screen for no less than 5 seconds
MARKETING MATERIALS
The Net logo shall be placed on all major marketing or communications
materials created for the OEM product.
PACKAGING
The NCI logo shall be placed on the primary surfaces of all packaging for the
OEM product or peripherals.
NCI USAGE AND TRADEMARK SPECIFICATIONS
In writing about Network Computer, Inc., it is acceptable to use "NO," as the
company name. Use the full company name followed by the abbreviation
-"Network Computer, Inc. (NCI)"- in the initial reference, and NCI in all
other references.
A trademark is a name, symbol, logotype, or signature that identifies a
company, product, or service. Please use the following guidelines for
trademark usage:
-- The trademark symbol should appear next to the first reference to NCI
and any other name which is a trademark of NCI.
-- "NCI" should be used as a noun, and should not be made plural,
possessive or hyphenated.
For example: NCI develops software for Internet appliances.
-- The Statement "NCI is a trademark of Network Computer, Inc." must be
used as a trademark citation in the appropriate area of the printed
piece, usually at the end of a document or on the copyright page.
-- When referencing other companies' trademarks, the following statement
should be included as a footnote to the text: "All other company and
product names mentioned are used for identification purposes only, and
may be trademarks of their respective owners."
Further information regarding NCI trademarks may be obtained from your NCI
representative,
TYPOGRAPHY
In order to create and maintain a consistent look throughout our corporate
identity program, the same families/style of typography should be used at all
times. The type fonts used by N =l are Bank Gothic Medium, Adobe Garamond
Regular, and Adobe Garamond Italic. Letter spacing and line spacing (leading)
have been carefully constructed and should not be respaced, reset, or
otherwise altered.
[Logo] BANK GOTHIC
MEDIUM
-----------------------------
THIS TYPE/FACE IS USED
PREDOMINANTLY IN TITLES AND
HEADINGS. IT IS THE ONLY
MEMBER OF THE BANK GOTHIC
FAMILY THAT IS TO BE USED.
WORDS APPEARING IN THIS
TYPEFACE SHOULD ALWAYS BE
TYPED IN ALL CAPITOL LETTERS.
ITS PROPER USAGE IS SPECIFIED
ACCORDING TO THE APPLICATION.
[Logo] ADOBE GARAMOND
REGULAR
THE USE OF ADOBE GARAMOND REGULAR
VARIES FROM TITLES TO TEXT. THIS
FAMILY OF GARAMOND DIFFERS FROM
OTHER STYLES AND SHOULD BE USED
AT ALL TIMES. ITS PROPER USAGE IS
SPECIFIED ACCORDING TO THE APPLICATION.
[Logo] ADOBE GARAMOND
ITALIC
ADOBE GARAMOND ITALIC GENERALLY
APPEARS IN CAPTIONS TO CHARTS AND IMAGES,
AND TO EMPHASIZE SPECIFIC INFORMATION.
ITS PROPER USAGE IS SPECIFIED ACCORDING TO THE
APPLICATION.
COLOR
Color is a very important part of the NCI identity. Its application is
specified for the signature, type, and various other elements used in our
collateral. Properly used, it helps customers, vendors, and employees,
identify NCI quickly and easily,
[Logo]
NCI RED BLACK NCI BLUE
----------------------------------- ----------------------------------- -----------------------------------
NCI RED IS USED MAINLY AS THE BLACK IS USED FOR THE SIGNATURE NCI BLUE IS USED IN A VARIETY
SIGNATURE COLOR. ITS USE IN WHEN PRINTING IN ONLY ONE COLOR. OF APPLICATIONS. IT DOES NOT
OTHER AREAS OF A PIECE SHOULD THE TAGLINE ALWAYS PRINTS BLACK, DETRACT FROM THE IMPACT OF
BE LIMITED SO AS NOT TO DETRACT EXCEPT WHEN IT REVERSES TO WHITE THE NCI RED AND IS LEGIBLE
FROM THE SIGNATURE. THE PANTONE OUT OF A BLACK BACKGROUND. WHEN USED FOR TEXT. THIS
MATCHING SYSTEM EQUIVALENT IS 485. COLOR CANNOT BE REPRESENTED
THE 4-COLOR PROCESS EQUIVALENT IS BY A PERCENTAGE OF BLACK. IT
100 PERCENT MAGENTA AND 100 PERCENT SHOULD NOT BE REPRESENTED
YELLOW. BY ITS 4-COLOR EQUIVALENT. THE
PANTONE MATCHING SYSTEM
EQUIVALENT IS 5405.
DESIGN TIP
------------------------------
WHEN CHOOSING A COLOR PALETTE,
COLORS SHOULD NOT OVERWHELM THE
NCI RED. THE SIGNATURE AND ITS
COLOR SHOULD NEVER LOSE IMPACT
DUE TO A BRIGHTER COLOR.
GLOSSARY
BASELINE
The imaginary line along which the bottom edge of most lower case and all
capital letters align.
BLEED
An image that extends beyond the trim marks of a page or other defined area
is said to "bleed."
CAP HEIGHT
The height of an upper case or capital letter.
COMPENDIA
Independent or supporting materials, such as CD-ROM, Video, Audio, Electronic
Media.
CORPORATE SIGNATURE
The NCI corporate signature consists of the Corporate logotype, tagline, and
appropriate trademarks.
EM
A unit of measurement used with type which is exactly as wide and as high as
the point size being set.
FLUSH
This typographic term refers to the alignment of successive lines of type
with either margin. (As opposed to "random.")
FONT
See Typeface.
GRID An arrangement of horizontal and vertical divisions that serve as
positioning guidelines.
LEADING
Leading is the amount of space, measured in points, between lines of type.
LETTER SPACING
This refers to the amount of space between individual letters of typeset copy.
LOGOTYPE
This refers to the corporate and product names in their specified typographic
form only.
PANTONE MATCHING SYSTEM
This is a standardized color system known around the world.
GLOSSARY (CONT.)
PICA
The pica is the basic typographic unit of measurement; there are six picas to
one inch / 25.4 mm.
POINT
The point is the smallest unit of measurement used in
typesetting and printing. Twelve points equal one pica;
there are 72 points to one inch / 25.4 mm.
RULE
This is a straight line produced by either commercial
typesetting equipment or by hand.
SANS SERIF
A typeface without serifs is referred to as sans serif.
SERIF
A serif is the short line that angles from the main stroke of a letter.
SPACE ABOVE/SPACE AFTER
These typesetting terms are used by QuarkXPRESS to denote spacing between
items. Refer to the Formats dialogue box found under Style.
TRADEMARK
A trademark is a name, symbol, logotype, or signature that identifies a
company, product, or service. Trademarks may be officially registered and may
only be used by the owner or manufacturer.
UPPER CASE, LOWER CASE[
These typographic terms refer to the use of capital letters (upper case) and
small letters (lower case).
TYPEFACE
The particular design of a complete set of letters, numbers, and punctuation
is called a typeface. It is also referred to as a font.
[Logo]
[Logo]
NETWORK COMPUTER INC.
100 BRIDGE PARKWAY
REDWOOD SHORES
CALIFORNIA 94065
U.S.A.
PHONE +650.631-4683
FAX +650.631.4683
HTTP://WWW.NC.COM
NCI IS A REGISTERED TRADEMARK OF NETWORK COMPUTER, INCORPORATED.
ORACLE IS A REGISTERED TRADEMARK OF ORACLE CORPORATION.
COPYRIGHT 1998, NETWORK COMPUTER, INC. ALL RIGHTS RESERVED,
PRINTED IN THE U.S.A.