{"id":42227,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/development-and-license-agreement-nettaxi-online-communities.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"development-and-license-agreement-nettaxi-online-communities","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/development-and-license-agreement-nettaxi-online-communities.html","title":{"rendered":"Development and License Agreement &#8211; Nettaxi Online Communities Inc. and eBay Inc."},"content":{"rendered":"<pre>\n                        NETTAXI ONLINE COMMUNITIES, INC.\n                        DEVELOPMENT AND LICENSE AGREEMENT\n\n     THIS  NETTAXI  ONLINE  COMMUNITIES  DEVELOPMENT  AND  LICENSE  AGREEMENT,\nincluding  the  Exhibits  (the  \"Agreement\"),  effective  as  of  May, 1999 (the\n\"Effective  Date\"),  is  hereby  entered  into  by  and  among  Nettaxi  Online\nCommunities, Inc., a Delaware corporation having principal offices at 2165 South\nBascom  Avenue,  Campbell,  California  95008  (\"Nettaxi\")  and eBay, a Delaware\ncorporation,  having  principal  offices at 2005 Hamilton Avenue, Suite 350, San\nJose,  California  95125  (\"eBay\").\n\n1.     DEFINITIONS.\n1.1     \"Artwork\" means the custom artwork for the eBay Product sleeves prepared\n     by  Nettaxi.\n\n1.2     \"Character\"  means  a  distinct  and identifiable personality, animal or\nentity  of  a  party  or  its  licensors  which  is  contained  on a Storyboard.\n\n1.3     \"eBay  Competitor\"  means  any  entity  providing  an  Internet\nperson-to-person  auction  service  or  any  such  similar  service.\n\n1.4     \"eBay  Content\"  means  all  content  or  information (including without\nlimitation  any  text,  music,  sound,  photographs,  video,  graphics,  data or\nsoftware),  in any medium, provided by eBay for use in conjunction with the eBay\nTutorial.  \"eBay  Content\"  does  not  include  the  Storyboard.\n\n1.5     \"eBay  Product\"  means the CD-ROMs containing the elements enumerated in\nthe  Statement  of  Work.\n\n1.6     \"eBay  Trademarks\"  means  the  trademarks, services marks, logos, trade\nnames,  domain name, and slogans of eBay designated by eBay for Nettaxi's use in\nconjunction  with  Nettaxi's  performance  under  this  Agreement.\n\n1.7     \"eBay  Tutorial\"  means the tutorial program designed, written, prepared\nand  delivered  by  Nettaxi  from  the  Storyboard,  which  for purposes of this\nAgreement,  constitutes  a  file,  within  a  larger  training program, commonly\nreferred  to  as  \"Internet  in  the  City.\"\n\n1.8     \"Golden  Master\"  means  a version of the eBay Product from which copies\ncan  be  made.\n\n1.9     \"Intellectual  Property  Rights\"  means all current and future worldwide\npatents  and  other patent rights, utility models, copyrights, mask work rights,\ntrade  secrets,  trademark,  and  all other intellectual property rights and the\nrelated  documentation  or  other  tangible  expression  thereof.\n\n\n1.10     \"Nettaxi  Content\"  means all content or information (including without\nlimitation  any  text,  music,  sound,  photographs,  video,  graphics,  data or\nsoftware,  Characters),  in  any  medium, provided by Nettaxi displayed on or in\nconjunction  with  the  Products,  other  than  the  Storyboard.\n\n1.11     \"Nettaxi  Product\" means the CD-ROMs containing the elements enumerated\nin Exhibit A including but not limited to Nettaxi's \"Internet the City\" Product.\n\n1.12     \"Nettaxi Trademarks\" means the trademarks, services marks, logos, trade\n     names, domain name, and slogans of Nettaxi designated by Nettaxi for eBay's\nuse  in  conjunction  with  eBay's  performance  under  this  Agreement.\n\n1.13     \"Products\"  shall  mean  collectively, the eBay Product and the Nettaxi\nProduct.\n\n1.14     \"Registered  User\"  means  a  user  who completes the eBay registration\nprocess  by  confirming  his  or her registration with an eBay-supplied password\nsent  to  such  user  by  email.\n\n1.15     \"Software\"  means  software of Nettaxi or its licensors included in the\nProducts.\n\n1.16     \"Specifications\" means the Specification for the Products enumerated in\n     Exhibit  A  and  any  other  Specification for the Products to be developed\nunder  the  terms  of  this Agreement as set forth in the Statement of Work. The\nSpecifications  shall  comply with the following general product description:  a\nshort  form  version of Internet the City containing: (i) a custom designed eBay\nbuilding  with  the eBay logo prominently displayed within the \"City\", linked to\nthe  eBay  Tutorial; (ii) a general description of the manner in which Nettaxi's\nservices  can  enhance  an  end user's use of the eBay services; (iii) a NETTAXI\nBuilding  with corresponding tutorial program designed to familiarize users with\nthe  services  offered  by  NETTAXI;  (iv) a World Wide Web Building designed to\nfamiliarize users with the basic functions and protocol of the Internet; and (v)\nand  internet  service  provider  bundle.  It  is also anticipated that the eBay\nbuilding,  eBay  logo  and  linked eBay Tutorial will be included in the Nettaxi\nProduct.\n\n1.17     \"Statement  of  Work\" shall mean the information set forth in Exhibit A\n(other  than  the  Specifications).\n\n1.18     \"Storyboard\"  means eBay's artwork, verse content, and storyboard for a\ntutorial  about  the eBay site and the functions available on such site, and any\ncopy,  Characters,  scripting  and  other  works of authorship included therein.\n\n2.     DEVELOPMENT.\n\n2.1     STORYBOARD.  On or before May 21, 1999, eBay shall deliver ideas for the\n     Storyboard  to  Nettaxi.\n\n\n2.2     DEVELOPMENT.  Using  the  Storyboard,  Nettaxi  will  develop  the  eBay\nTutorial  and  the Artwork in accordance with the Specifications, which shall be\nmutually  developed by the parties, and the Statement of Work. In the event that\nthe  parties  are  unable  to  mutually  agree  upon  the  development  of  the\nSpecifications,  eBay  may,  in  its  sole  discretion,  elect  to terminate the\nAgreement and refund to Nettaxi any amounts actually paid to Nettaxi pursuant to\n\n     Section  7  of  this  Agreement.\n\n2.3     CHANGES.  If  during  development,  eBay proposes in writing a change to\nthe  Statement  of Work or the Specifications, Nettaxi agrees to attempt in good\nfaith  to  make such changes.  In the event any such change materially increases\nNettaxi's development costs hereunder or requires a modification to the schedule\n\n     for  development,  eBay  and  Nettaxi  shall  negotiate  in  good faith for\nadjustment  to  the  development  charges  payable by eBay to Nettaxi and to the\nschedule  for  development.\n\n2.4     OWNERSHIP.\n\n(A)     OWNERSHIP  BY  NETTAXI. Nettaxi shall own all right, title, and interest\nin the Nettaxi Content, Nettaxi's Characters, the Software, the product designed\n     and  developed  by Nettaxi commonly referred to as \"Internet the City\", the\nNettaxi  Trademarks, and any derivatives, improvements or modifications thereof,\nand  all  Intellectual  Property  Rights  therein  (collectively,  the  \"Nettaxi\nProperty\").  eBay shall execute such documents, render such assistance, and take\nsuch  other  action  as Nettaxi may reasonably request, at Nettaxi's expense, to\napply  for,  register,  perfect,  confirm,  and  protect Nettaxi's rights to the\nNettaxi  Property.\n\n(B)     OWNERSHIP  BY EBAY. eBay shall own all right, title, and interest in the\neBay  Content,  the  eBay  Trademarks,  the  Storyboard,  the  Artwork, the eBay\nTutorial,  and  any  derivatives,  improvements or modifications thereof and all\nIntellectual  Property  Rights therein, excluding the Nettaxi Property.  Nettaxi\nshall execute such documents, render such assistance, and take such other action\n     as  eBay  may  reasonably request, at eBay expense, to apply for, register,\nperfect, confirm, and protect eBay's rights as set forth in this Section 2.4(b).\n\n3.     ACCEPTANCE.\n\n3.1     EBAY  TUTORIAL.  When completed, Nettaxi shall deliver the eBay Tutorial\nto  eBay  to  test  whether,  in  eBay's  reasonable opinion, the completed eBay\nTutorial  conforms  to  the Storyboard and the Specifications. The eBay Tutorial\nshall  not  be  deemed  to be approved by eBay unless eBay gives Nettaxi written\nnotice  of such approval.  However, if no notice of approval is delivered within\ntwenty  (20)  days,  it shall be deemed accepted.  If eBay rejects the completed\neBay  Tutorial,  eBay shall provide a notice of rejection specifying the reasons\nfor  rejection.  Nettaxi  shall  use commercially reasonable efforts to promptly\nredeliver the corrected eBay Tutorial to eBay for acceptance testing pursuant to\n     the  process  described  in  this Section 3.1 until approved. Once the eBay\nTutorial  is  approved,  Nettaxi  shall  use  commercially reasonable efforts to\ndiligently  implement its obligations under the Statement of Work to develop and\nmanufacture  the  Products.\n\n\n\n3.2     EBAY PRODUCT.  When completed, Nettaxi shall deliver the eBay Product to\n     eBay  to  test  whether,  in  eBay's reasonable opinion, the completed eBay\nProduct  substantially  conforms  to  the  Specifications  and  any  applicable\nStatement  of  Work. The eBay Product shall not be deemed to be approved by eBay\nunless eBay gives Nettaxi written notice of such approval. However, if no notice\nof  approval  is delivered within twenty (20) days, it shall be deemed accepted.\nIf  eBay  rejects  the  completed  eBay  Product, eBay shall provide a notice of\nrejection  specifying  the reasons for rejection. Nettaxi shall use commercially\nreasonable  efforts to promptly redeliver the corrected eBay Product to eBay for\nacceptance  testing  pursuant to the process described in this Section 3.2 until\napproved.  Once  the  eBay  Product  is approved, Nettaxi shall use commercially\nreasonable  efforts  to diligently implement its obligations under the Statement\nof  Work  to  manufacture  the  eBay  Product.\n\n3.3     CUSTOM  ARTWORK. Nettaxi shall deliver to eBay the Artwork for approval.\nThe Artwork shall not be deemed to be approved by eBay unless eBay gives Nettaxi\n     written  notice  of  such  approval.  However,  if no notice of approval is\ndelivered  within twenty (20) days, it shall be deemed accepted. If eBay rejects\nthe Artwork, eBay shall provide a notice of rejection specifying the reasons for\nrejection.  Nettaxi  shall  use  commercially  reasonable  efforts  to  promptly\nredeliver  the  corrected Artwork to eBay for acceptance testing pursuant to the\nprocess  described  in  this  Section  3.3  until  approved. Once the Artwork is\napproved,  Nettaxi  shall; (a) use commercially reasonable efforts to diligently\nimplement its obligations under the Statement of Work to develop and manufacture\nthe Products, (b) not use the Artwork without eBay's prior approval, and (c) not\nchange  the  Artwork  in  any  way  without  eBay's  prior  written  approval.\n\n4.     IMPLEMENTATION.\n\n4.1     SHIPMENT  AND  EXPENSES.  Shipment  of the eBay Product shall be made to\neBay  at  an address specified in writing by eBay.  Nettaxi shall bear all costs\nand  expenses  related to manufacturing the Products.  All eBay Product shall be\ndelivered  DDP  eBay's  facilities.\n\n4.2     ORDER  QUANTITIES.\n\n(A)     INITIAL ORDER QUANTITY.  Nettaxi will provide 150,000 copies of the eBay\n     Product  (\"Initial  Order  Quantity\")  to eBay at no charge, within 90 days\nfollowing eBay's approval of the eBay Product (\"Initial Order Quantity Period\").\nDuring  the  Initial  Order  Quantity  Period, Nettaxi shall deliver to eBay the\namount  of  copies  of the Initial Order Quantity that eBay shall request within\nthirty  (30)  days  of  any  such  request.\n\n(B)     ADDITIONAL  ORDER QUANTITIES.  After the Initial Order Quantity has been\ndelivered  to  eBay,  eBay may order, and Nettaxi shall deliver, such reasonable\nquantities of additional eBay Product as eBay may require in the quantity and on\n     the  schedule  described on any purchase order submitted by eBay to Nettaxi\n(\"Purchase  Order\").  All  Purchase  Orders  are  hereby  accepted  by  Nettaxi.\n\n\n\n(C)     PURCHASE  ORDERS.\n\n(I)     Purchase  Orders  shall  be governed by the terms of this Agreement, and\nnothing  contained in any such Purchase Order shall in any way modify such terms\nof  purchase  or add any additional terms or conditions.  Any such additional or\ninconsistent  terms  shall  be  deemed  rejected.\n\n(II)     In  the  event  that Nettaxi notifies eBay that it is unable to fulfill\nany  eBay  order  (subsequent  to delivery of the Initial Order Quantity) or any\neBay order remains unfulfilled for a period of 30 days (unless eBay, in its sole\n     discretion,  agrees  in writing to extend this 30 day period) eBay shall be\nentitled  to  receive  a  copy  of  the  Golden  Master  of  the  eBay  Product.\n\n4.3     NONCONFORMING DELIVERIES.  If, at any time, eBay determines that an eBay\n     Product  delivered by Nettaxi does not conform to the Specifications or the\nterms  of  this  Agreement,  is  on  defective  media,  or  otherwise  is  not\ndistributable by eBay, eBay may return such Product to Nettaxi at Nettaxi's sole\nexpense  and,  within  5  days,  Nettaxi shall redeliver an equivalent number of\nconforming  replacement  eBay  Product  to  eBay  DDP  eBay's  facility.\n\n5.     LICENSE  GRANTS.\n\n5.1     EBAY  LICENSE  TO  NETTAXI.  Subject to the terms and conditions of this\nAgreement, eBay hereby grants to Nettaxi a nonexclusive, worldwide, royalty-free\n     right  to  (a)  use,  reproduce,  distribute,  create  derivative works of,\npublicly  perform,  publicly display and digitally perform the Storyboard solely\nto transform such Storyboard into the eBay Tutorial and to reproduce, distribute\n(through multiple tiers of distribution), publicly perform, publicly display and\ndigitally perform the eBay Tutorial only as incorporated on the Products, (b) to\nuse,  reproduce,  distribute,  create  derivative  works  of,  publicly perform,\npublicly  display  and  digitally perform any Characters owned by eBay solely as\nnecessary  to  exercise  the  rights  granted  in clause (a) above; and (c) use,\nreproduce,  distribute  (through  multiple  tiers  of  distribution),  create\nderivative  works  of,  publicly perform, publicly display and digitally perform\nthe  eBay  Content  and  Artwork  solely in conjunction with the Products and in\naccordance  with  the  Specifications.\n\n5.2     NETTAXI  LICENSE  TO  EBAY.  Subject to the terms and conditions of this\nAgreement,  Nettaxi  hereby  grants eBay a nonexclusive, worldwide, royalty-free\nright  (a) to use, reproduce (only in the event eBay is given the Golden Master)\nand  distribute  (through  multiple  tiers  of  distribution), publicly display,\npublicly  perform,  digitally  perform the eBay Product; (b) to use, distribute,\ncreate  derivative  works  of,  publicly perform, publicly display and digitally\nperform the eBay Tutorial; and (c) to use and distribute (through multiple tiers\n     of  distribution)  Nettaxi's Characters solely in conjunction with the eBay\nTutorial.\n\n5.3     RESTRICTIONS.  Characters  shall  be  used  substantially  in  the  form\nprovided  to  the other party and without material modification.  eBay shall not\nreverse  engineer,  decompile  or  disassemble  the  eBay  Product  or use other\ntechniques  to  derive  the  trade secrets embedded in the eBay Product. Nettaxi\nagrees that only the approved version of the eBay Tutorial may be distributed by\nNettaxi  in  conjunction  with  the  Nettaxi  Product.\n\n5.4     CONTENT STANDARDS.  eBay shall not provide any eBay Content, and Nettaxi\n     shall  not  provide  any  content in the eBay Tutorial (other than the eBay\nContent)  Nettaxi  Content,  that:  (a)  infringes  any intellectual property or\npublicity\/privacy  right; (b) violates any law or regulation; (c) is defamatory,\nobscene,  harmful  to  minors  or  child pornographic; (d) contains any viruses,\nTrojan  horses,  worms,  time  bombs,  cancelbots  or other computer programming\nroutines  that  are  intended  to  damage,  detrimentally  interfere  with,\nsurreptitiously  intercept  or  expropriate  any  system,  data  or  personal\ninformation;  or  (e)  is  materially  false,  misleading  or  inaccurate.\n\n5.5     PROPRIETARY  RIGHTS  NOTICES.  All  copies  of  the  eBay Tutorial shall\ncontain  the  proprietary  rights  notices  of  both parties in a location to be\nmutually  determined.\n\n5.6     SUBLICENSING.  Except  where  permitted under this Agreement, the rights\ngranted  herein  are  not  sublicenseable.  Notwithstanding  the  foregoing:\n\n(I)     In the event that Nettaxi delivers to eBay the Golden Master of the eBay\n     Product as provided for in Section 4.2(c) of this Agreement, Nettaxi hereby\ngrants  to  eBay the right to sublicense its right to reproduce the eBay Product\nsolely  for the purposes of granting such right to a third party manufacturer to\nreproduce  the  eBay  Product  for  delivery  to  eBay.\n\n(II)     eBay  grants  to Nettaxi the right to sublicense its right to reproduce\nthe  eBay  Tutorial  solely  for  the purposes of granting such right to a third\nparty  manufacturer  to  reproduce  the  Products  for  delivery  to  Nettaxi.\n\n6.     TRADEMARKS.\n\n6.1     LICENSE GRANT FROM NETTAXI.  Subject to the terms and conditions of this\n     Agreement,  Nettaxi  hereby  grants  to  eBay  the worldwide, nonexclusive,\nroyalty-free  right  to  use  the  Nettaxi  Trademarks  in  conjunction with the\nmarketing  of  the  eBay  Product.\n\n6.2     LICENSE  GRANT  FROM  EBAY.  Subject to the terms and conditions of this\nAgreement,  eBay  hereby  grants  to  Nettaxi  the  worldwide,  nonexclusive,\nroyalty-free  right  to  use  the  eBay  Trademarks only in conjunction with the\nmarketing  of  the  Nettaxi  Product.\n\n6.3     TRADEMARK  RESTRICTIONS.  The  owner of a Trademark (defined as the eBay\nTrademark  and  the Nettaxi Trademark, collectively) may terminate the foregoing\ntrademark  license  if,  in its reasonable discretion, the licensee's use of the\nTrademarks  tarnishes,  blurs  or  dilutes  the  quality  associated  with  the\nTrademarks  or  the  associated goodwill and such problem is not cured within 10\ndays  of  notice of breach; alternatively, instead of terminating the license in\ntotal,  the  owner may specify that certain uses by the licensee may not contain\nthe  Trademarks.  Title  to and ownership of the owner's Trademarks shall remain\nwith  the  owner.  The  licensee  shall  use  the Trademarks exactly in the form\nprovided  and  in  conformance  with any trademark usage policies.  The licensee\nshall  not  take  any  action  inconsistent  with  the  owner's ownership of the\nTrademarks,  and  any  benefits  accruing  from  use  of  such  Trademarks shall\nautomatically  vest  in  the owner.  The licensee shall not form any combination\nmarks  with  the  other  party's  Trademarks.\n\n7.     PAYMENT\n\n7.1     DEVELOPMENT COSTS.  eBay shall pay Nettaxi $50,000 on the Effective Date\n     of  this  Agreement  for  Nettaxi's  development  of  the  eBay  Tutorial.\n\n7.2     EBAY  PRODUCT  COSTS. For any amount of the eBay Product ordered by eBay\nabove  the  Initial  Order  Quantity,  eBay agrees to pay Nettaxi $.75 per unit.\n\n7.3     REGISTERED  USER  FEE.\n(A)     Except  as  specified  below  in  Section 7.3(b), eBay shall pay Nettaxi\n$10.00  for  each  Registered  User  (the \"Bounty\") that registers by way of the\nunique  URL  on  the  Nettaxi  Product  distributed  by Nettaxi.  eBay shall pay\nNettaxi  $2.00  for each Registered User that registers by way of the unique URL\non  the  eBay  Product  distributed  by  eBay. All Bounty payments shall be made\nwithin  30  days  following  the  end  of  a  calendar  quarter.\n(B)     In  no  event  shall eBay owe a Bounty (i) for Registered Users who have\none  or  more  existing  accounts  with eBay, or (ii) for Registered Users whose\naccounts  are  terminated  by  eBay within 90 days following their registration.\n7.4     TAXES.  All  payments  made  by  eBay include, and Nettaxi shall pay all\nsales,  use  and  other  taxes  associated  with such payments or related to the\nparties' performance of their obligations or exercise of their rights under this\n     Agreement,  excluding  taxes  based  on  eBay's  net  income.\n8.     RECORDS  AND  AUDITS.\neBay  shall  maintain  accurate records with respect to the number of Registered\nUsers  and  the source URL's of the Registered Users.  Nettaxi may, upon no less\nthan 30 days prior written notice to eBay and not more than once per year, cause\nan  accountant  to  inspect  the foregoing records during eBay's normal business\nhours.  If  an audit requested by Nettaxi reveals that eBay has underreported by\n10%  or  more  for  any  audited  period  of  time,  eBay  shall pay Nettaxi all\nreasonable  costs  and  expenses  incurred  by Nettaxi in conducting such audit,\nincluding,  but not limited to, any amounts paid to any auditor or attorney and,\nin  addition,  make  the  underreported payments or refund pro rata based on the\nunderreported  performance,  as  applicable.\n9.     EXCLUSIVITY.\n9.1     During  the  term  of  this  Agreement:\n(A)     Nettaxi's  license grant with respect to any Nettaxi Content on the eBay\nProduct shall be exclusive as to eBay with respect to any other Internet auction\n     site.\n(B)     Nettaxi's  license  grant  to eBay for any Nettaxi Intellectual Property\nRights  contained  in  the  eBay  Tutorial  shall  be  exclusive in the field of\ntutorials  for  Internet  auction  sites.\n\n\n\n10.     TERM  AND  TERMINATION.\n10.1     TERM.  This  Agreement  shall  commence on the Effective Date and shall\ncontinue  for 3 years, unless earlier terminated as provided in this Section 10.\n     Thereafter  the  parties  may  mutually  agree  to renew this Agreement for\nadditional  1  year  terms.\n10.2     TERMINATION  FOR  BREACH.  Either  Nettaxi  or  eBay may terminate this\nAgreement if the other party materially breaches this Agreement and such failure\n     continues  for  a  period  of thirty (30) days following receipt of written\nnotice  thereof  by  the  breaching  party.\n10.3     EFFECTS  OF  TERMINATION.  Upon  expiration  or  termination:\n(A)     All  licenses  granted  hereunder  shall  terminate;  however,  eBay may\ncontinue  to distribute the eBay Product for as long as necessary to deplete its\ninventory.\n(B)     Nettaxi  shall  only  be  obligated  to  deliver, and eBay shall only be\nobligated  to pay for, those quantities of eBay Product which are the subject of\nany  Purchase Order that Nettaxi has accepted in writing; provided that eBay may\ncontinue  to distribute the eBay Product for as long as necessary to deplete its\ninventory.\n(C)     All  obligations  of  eBay to pay Nettaxi any Bounty pursuant to Section\n7.3  of  this  Agreement  shall  be  terminated.\n10.4     SURVIVAL.  Sections  1,  2.4,  10.3, 10.4, 12, 14, and 15 shall survive\ntermination  of  this  Agreement.\n11.     WARRANTIES.\n11.1     PERFORMANCE OF SERVICES.  Nettaxi warrants that (a) it, and each of the\n     subcontractors  that  it uses to provide and perform the services set forth\nin  the  Statement  of  Work  (\"Services\"),  will  have the necessary knowledge,\nskills,  experience,  qualifications  and  resources  to provide and perform the\nServices  in  accordance  with  this  Agreement;  and  (b)  the Services will be\nperformed  in  a  diligent,  workmanlike  manner which meets or exceeds industry\nstandards  applicable  to  the  performance  of  such  services.\n11.2     OPERATION.  Nettaxi  warrants  that  the  Products shall conform to the\nSpecifications.\n\n\n\n11.3     DISCLAIMER.  EXCEPT  AS  OTHERWISE  EXPRESSLY STATED HEREIN, EACH PARTY\nPROVIDES  ALL  MATERIALS AND SERVICES TO THE OTHER PARTY \"AS IS,\" AND EACH PARTY\nDISCLAIMS  ALL  WARRANTIES  AND  CONDITIONS,  EXPRESS,  IMPLIED  OR  STATUTORY,\nINCLUDING  WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,\nMERCHANTABILITY  AND  FITNESS  FOR  A  PARTICULAR  PURPOSE.  EXCEPT AS OTHERWISE\nEXPRESSLY  STATED  HEREIN,  NETTAXI  DOES  NOT WARRANT THAT THE PRODUCTS OPERATE\nUNINTERRUPTED  OR  ERROR-FREE.  Each  party acknowledges that it has not entered\ninto this Agreement in reliance upon any warranty or representation except those\n     specifically  set  forth  herein.\n12.     INDEMNIFICATION.\nEach  party  (the  \"Indemnifying  Party\")  shall  indemnify the other party (the\n\"Indemnified  Party\")  against  any  and all claims, losses, costs and expenses,\nincluding reasonable attorneys' fees, which the Indemnified Party may incur as a\nresult  of  claims  in  any  form by third parties arising from the Indemnifying\nParty's acts, omissions or misrepresentations to the extent that the Indemnified\nParty  is deemed a principal of the Indemnifying Party.  In addition, eBay shall\nindemnify  Nettaxi  against  any  and  all  claims,  losses, costs and expenses,\nincluding  reasonable  attorneys'  fees,  which Nettaxi may incur as a result of\nclaims  in  any  form  by third parties arising from eBay Content.  In addition,\nNettaxi  shall  indemnify  eBay  against  any  and all claims, losses, costs and\nexpenses, including reasonable attorneys' fees, which eBay may incur as a result\nof  claims  in  any  form  by third parties arising from the Products (excluding\nthose  attributable  to eBay Content.  The foregoing obligations are conditioned\non  the  Indemnified  Party:  (i)  giving  the  Indemnifying Party notice of the\nrelevant  claim,  (ii)  cooperating  with  the  Indemnifying  Party,  at  the\nIndemnifying Party's expense, in the defense of such claim, and (iii) giving the\nIndemnifying  Party  the right to control the defense and settlement of any such\nclaim,  except  that  the Indemnifying Party shall not enter into any settlement\nthat  affects the Indemnified Party's rights or interest without the Indemnified\nParty's  prior  written approval.  The Indemnified Party shall have the right to\nparticipate  in  the  defense  at  its  expense.\n13.     COMPLIANCE  WITH  LAWS.\nAt  its  own  expense,  Nettaxi  shall  comply  with  all  applicable  laws  and\nregulations  regarding  the performance of its obligations under this Agreement.\n\n\n\n14.     LIMITATION  OF  LIABILITY.\nIN  NO  EVENT  SHALL  EITHER  PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF\nPROFITS  OR  FOR  INDIRECT,  SPECIAL,  INCIDENTAL,  EXEMPLARY,  PUNITIVE  OR\nCONSEQUENTIAL  DAMAGES  OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING,\nWITHOUT  LIMITATION,  NEGLIGENCE),  WARRANTY,  GUARANTEE  OR  ANY OTHER LEGAL OR\nEQUITABLE  GROUNDS,  EVEN  IF  SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF\nSUCH  DAMAGES.  NEITHER  PARTY  SHALL  MAKE REPRESENTATIONS OR WARRANTIES TO ANY\nREGISTERED USER OR THIRD PARTY ON BEHALF OF THE OTHER PARTY AND IN NO EVENT WILL\nEITHER  PARTY  BE  LIABLE  TO THE OTHER PARTY FOR ANY REPRESENTATION OR WARRANTY\nMADE  TO  ANY  REGISTERED  USER  OR  THIRD  PARTY  BY  THE  OTHER  PARTY.\nEXCEPT  WITH  RESPECT  TO SECTION 12, IN NO EVENT SHALL EITHER PARTY'S LIABILITY\nUNDER  THIS  AGREEMENT  EXCEED  THE  AMOUNTS  ACTUALLY  PAID  BY EBAY TO NETTAXI\nHEREUNDER.\n15.     GENERAL  PROVISIONS.\n15.1     GOVERNING  LAW.  This  Agreement  will  be  governed  and  construed in\naccord-ance  with  the  laws of the State of California without giving effect to\nconflict  of  laws  principles.  Both parties submit to personal jurisdiction in\nCalifornia  and  further  agree  that  any  cause  of  action arising under this\nAgreement  shall  be  brought  in  a  court  in  Santa Clara County, California.\n15.2     SEVERABILITY; HEADINGS.  If any provi-sion herein is held to be invalid\n     or  unenforceable for any reason, the remaining provisions will continue in\nfull  force without being impaired or invalidated in any way.  The parties agree\nto  replace  any  invalid  provision  with  a  valid provision that most closely\napproximates  the intent and economic effect of the invalid provision.  Headings\nare  for  reference  purposes  only  and  in  no  way define, limit, construe or\ndescribe  the  scope  or  extent  of  such  section.\n15.3     PUBLICITY.  Neither  party  shall  issue  any  press release or similar\npublicity  statement regarding this Agreement without the prior approval of both\nparties  (not  to  be  unreasonably  withheld)  or  as  required  by  law.\n15.4     FORCE MAJEURE.  Either party shall be excused from any delay or failure\n     in  performance hereunder caused by reason of any occurrence or contingency\nbeyond  its  reasonable  control,  including  but  not  limited to, acts of God,\nearthquake,  labor  disputes  and  strikes,  riots,  war,  and  governmental\nrequirements.  Notwithstanding the foregoing, a change in economic conditions or\ntechnology  shall  not  be  deemed  a  Force Majeure event.  The obligations and\nrights  of  the party so excused shall be extended on a day-to-day basis for the\nperiod of time equal to that of the underlying cause of the delay.  In the event\nof  a  force  majeure  materially  affecting the parties' performance under this\nAgreement  that  lasts  for  more  than 30 days, either party may terminate this\nAgreement.\n\n15.5     INDEPENDENT  CONTRACTORS.  The parties are independent contractors, and\nno  agency,  partnership,  joint  venture,  employee-employer  or\nfranchisor-franchisee  relationship  is  intended  or created by this Agreement.\nNeither  party  shall  make  any  warranties or representations on behalf of the\nother  party.\n15.6     TERMINATION  FOR  ASSIGNMENT\/CHANGE  OF  CONTROL.  By providing written\nnotice,  eBay  may, in its sole discretion, immediately terminate this Agreement\nif  Nettaxi  acquires or is acquired by an eBay Competitor. By providing written\nnotice,  Nettaxi  may,  in  its  sole  discretion,  immediately  terminate  this\nAgreement  if  eBay acquires or is acquired by an entity that develops tutorials\nand  provides  services  substantially  similar to those provided by Nettaxi for\neBay  pursuant  to  this  Agreement.\n15.7     NOTICE.  Any  notices hereunder shall be given to the appropriate party\nat  the  address  specified  above  or  at such other address as the party shall\nspecify  in  writing.  Notice  shall be deemed given: upon personal delivery; if\nsent  by  fax, upon confirmation of receipt; or if sent by a reputable overnight\ncourier  with  tracking  capabilities,  1  day  after  the  date  of  mailing.\n15.8     ENTIRE  AGREEMENT;  WAIVER.  This  Agreement  sets  forth  the  entire\nunderstanding  of  the  parties  with  respect  to the subject matter hereof and\nsupersedes  all  prior  contracts,  memoranda,  agreements,  arrangements,\ncommunications  and  discussions,  whether  oral or written with respect to such\nsubject  matter. The parties hereby expressly reject any conflicting term in any\npurchase  order,  invoice,  order  acknowledgment  or any similar business form,\nwhich terms shall have no effect.  It may be changed only by a writing signed by\n     both  parties.  The  waiver  of a breach of any provision of this Agreement\nwill  not  operate  or  be  interpreted  as  a waiver of any other or subsequent\nbreach.\n15.9     COUNTERPARTS.  This  Agreement  may  be  executed  in  one  or  more\ncounterparts,  each  of which shall be deemed an original and all of which shall\nbe  taken  together  and  deemed  to  be  one  instrument.\n     15.10     ATTORNEYS'  FEES.  In  addition  to any other relief awarded, the\nprevailing  party  in any action arising out of this Agreement shall be entitled\nto  its  attorneys'  fees  and  costs.\n\n     IN  WITNESS  WHEREOF,  the  parties  have  duly executed and delivered this\nAgreement  as  of  the  Effective  Date  set  forth  above.\nEBAY,  INC.:          NETTAXI  ONLINE  COMMUNITIES,  INC.:\n\n     By:  \/s\/  Steve Westly                By:  \/s\/  Robert Rositano Jr.\n          --------------------------            ------------------------\n     Title:  VP Business Dev               Title:  CEO\n          --------------------------            ------------------------\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8329],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9620],"class_list":["post-42227","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-nettaxi-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42227","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42227"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42227"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42227"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42227"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}