{"id":42565,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/master-software-license-bundling-and-distribution-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"master-software-license-bundling-and-distribution-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/master-software-license-bundling-and-distribution-agreement.html","title":{"rendered":"Master Software License, Bundling And Distribution Agreement &#8211; Apple Computer Inc. and NetTaxi Online Communications Inc."},"content":{"rendered":"<pre>\n                        MASTER SOFTWARE LICENSE, BUNDLING\n                           AND DISTRIBUTION AGREEMENT\n\n                                 CONTRACT #1304\n\n\nTHIS  MASTER  SOFTWARE  LICENSE,  BUNDLING AND DISTRIBUTION AGREEMENT is entered\ninto  as of November 13, 1997 (\"Effective Date\") between Apple Computer, Inc., a\nCalifornia  corporation  having  its  principal  place of business at 1 Infinite\nLoop,  Cupertino,  CA  95014-2084  (\"Apple  Computer\")  and  NETTAXI  Online\nCommunications,  Inc.,  a  Delaware  corporation  having  its principal place of\nbusiness  at  2165  So. Bascom Avenue, Campbell, California 95008 (\"Developer\").\n\n                                    RECITALS\n\nApple  Computer  is  in  the  business  of  manufacture,  sale,  licensing  and\ndistribution  of  computer  including  the  sale and distribution of third party\nproducts  in  combination  with  Apple  manufactured  products.\n\nApple  Computer  desires  the  right,  on  its  own  behalf and on behalf of its\nsubsidiaries,  to  copy and\/or distribute proprietary software products owned by\nDeveloper  to authorized Apple resellers and end users in combination with Apple\nand\/or  third  party  computer  products.\n\nDeveloper desires to grant Apple Computer and its subsidiaries the non-exclusive\nright  to copy and\/or distribution of Developer's proprietary software products,\nand  for  the  exhibits  to  this  Agreement  to define the terms and conditions\nspecific  to  each  respective  product  of  Developer.\n\nNOW  THEREFORE,  Apple  and  Developer  hereby  agree  as  follows:\n\n                                    AGREEMENT\n\n1.     DEFINITIONS\n\n1.1     \"Agreement\"  means  this  Software  License,  Bundling  and Distribution\nAgreement,  including  all  exhibits  and  attachments  hereto.\n\n1.2     \"Apple  means,  collectively,  Apple  Computer  and  all  Apple Computer\nSubsidiaries.\n\n1.3     \"Apple  Software\"  means  any  Apple  labeled  software  product.\n\n1.4     \"Apple's  Subcontractor\"  means  an  independent  subcontractor(s)  who\nprovides  software reproduction, bundling and\/or distribution services to Apple.\n\n1.5     \"Bundle\"  means the combination of (a) software products (\"Soft Bundle\")\nor  (b)  software products and hardware products (\"Hard Bundle\") as specified in\nExhibit  1 which are to be assembled and\/or packaged for sale by Apple as a unit\nunder  this  Agreement, which unit includes a Program Copy (or coupon evidencing\nright\n\n                                      1\n\nto  receive  a  copy)  and  any  related  Documentation.\n\n1.6     \"Confidential  Information\"  means:  (a) any information relating to the\nparties'  product  plans,  designs, costs, prices and names, finances, marketing\nplans, business opportunities, personnel, research, development or know-how; (b)\nany  information  that  is  designated  by  the disclosing party as confidential\nwriting  or,  if  disclosed  orally,  reduced  in  writing  and  designated  as\nconfidential  within  thirty (30) days; and (c) the terms and conditions of this\nAgreement;  provided, however, that \"Confidential Information\" shall not include\ninformation  that:  (i)  was  generally  available  to the public at the time of\nreceipt  from the disclosing party, or thereafter becomes generally available to\nthe public other than through a breach of this Agreement by the recipient party;\n(ii)  is  known  to the recipient party on a non-confidential basis prior to its\nreceipt  from  the  disclosing  party; (iii) is disclosed with the prior written\nconsent  of the disclosing party; (iv) becomes known to the recipient party from\na source other than the disclosing party without breach of this Agreement by the\nrecipient  party;  (v) was required to be disclosed pursuant to law; or (vi) was\ndeveloped  independently  by  personnel  of  the  recipient  party  who  had  no\nsubstantive  knowledge of the disclosing party's Confidential Information at the\ntime  of  such  independent  development.\n\n1.7     \"Customer\"  means any person or entity who purchases a Bundle from Apple\nor  Apple's  Subcontractor,  whether  as  a  Reseller  or  End  User.\n\n1.8     \"Developer\"  means  the  individual  or entity identified in the opening\nparagraph  of  this Agreement, who is either the owner of the Program or who has\nthe  right  to  enter  into  this  Agreement  on  behalf of the owner by written\nagreement  with  the  owner.\n\n1.9     \"Distribution  Area\"  means those countries or geographic regions of the\nworld  in  which  Apple  is  authorized  to distribute the Bundles as defined in\nExhibit  1.\n\n1.10     \"Documentation\"  means the documents or other information pertaining to\neach Program, which items are to be distributed to Customers in combination with\nsaid  Program  (whether in the form of printed materials or software residing on\nthe  same  media  as  the Program), as specified in the corresponding Exhibit 1.\n\n1.11     \"Documentation  Master\" means, if Apple is responsible for reproduction\nof  printed copies of any of the Documentation pursuant to Exhibit 2, the master\ncopy  of  such  Documentation  (in  electronic  or  other  form),  including any\napplicable  artwork  and\/or  film,  to  be  delivered  to  Apple  or  Apple's\nSubcontractor  for  use  in  such  reproduction  process.\n\n1.12     \"End  User\"  means  the purchase of a Bundle a) by a person for his\/her\nown  use;  or  b)  by  an  entity  for  its  internal  use.\n\n1.13     \"Hardware\"  means  any  Apple  labeled  hardware  product.\n\n1.14     \"Program\" means the most current commercially available version of each\nof  Developer's  software  programs  which  Apple  is authorized to copy, bundle\nand\/or  distribute  under  this  Agreement,  or any subsequent Amendment hereto.\n\n1.15     \"Program  Copy\" means a copy of a Program residing on the storage media\nform (e.g., hard disk, CD Rom, floppy diskette) in which it is to be bundled and\ndistributed  to  the  Customer,  as  specified  in  the corresponding Exhibit 1.\n\n                                     2\n\n1.16     \"Program  Master\"  means  the golden master copy of each Program, to be\ndelivered  to  Apple  by  Developer  in  the storage media form described in the\ncorresponding  Exhibit  2  for Apple's use in manufacture of the Program Copies.\n\n1.17     \"Reseller\" means a party authorized by Apple to purchase the Bundle for\nresale  to  End  Users  and\/or  to  other  authorized  resellers.\n\n1.18     \"Subsidiary\"  means  a corporation, partnership, joint venture, limited\nliability  company  or  other  legal  entity at least fifty-one percent (51%) of\nwhose  outstanding shares, securities or other ownership rights representing the\nright  to  vote  for  the  election of directors or other managing authority are\nowned  or  controlled  directly  or  indirectly,  by  another  company.\n\n2.     RIGHT  TO  COPY  AND  DISTRIBUTE\n\n2.1     Rights  Granted.     Developer  hereby  grants  to  Apple a nonexclusive\n        ---------------\nlicense,  as to each Program, to:  (a) make or have made Program Copies from the\nProgram  Master, in the media form specified in the corresponding Exhibit 1; (2)\nmake  or have made copies of the Documentation from the Documentation Master (if\napplicable,  pursuant  to  Exhibit  2);  (3)  assemble  the  Program  Copies and\ncorresponding  Documentation  in  Bundles  for  distribution; (4) distribute the\nProgram  Copies  to  Customers in the Distribution Area as part of a Bundle; and\n(5)  to,  directly  or  indirectly,  do  all  acts  reasonably necessary for the\nmarketing,  distribution, and sale of the Bundle.  Additionally, Apple will have\nthe  right  to  copy,  use  and  distribute,  at no cost, a reasonable number of\nProgram  Copies  of  each Program, as part of its software compatibility testing\nand\/or  its  sales\/marketing demonstration programs.  Developer authorizes Apple\nto  grant  (a)  to Apple's Subcontractor any of the rights granted Apple by this\nSection  2.1;  and  (b)  to  Apple's Resellers any of the same rights to market,\ndistribute  and  sell the Program(s) as part of a Bundle, including the right to\ndistribute  to  other  Resellers.\n\n2.2     No  Obligation.     Apple  shall  have  no  obligation to distribute the\n        --------------\nProgram,  either  as  part  of  a bundle or a standalone unit, with any specific\nApple  Hardware  or  Apple Software or to distribute any given number of Program\nCopies.\n\n2.3     Developer's  Ownership.     Developer  retains  all  rights,  title, and\n        ----------------------\ninterest  to:  (i)  each  Program;  (ii)  Developer's  service marks, trademarks\nand\/or  trade  names;  and  (iii)  all copyrights, patent rights or trade secret\nrights  associated  with  each  of  the  Programs  and  the  Documentation.\n\n2.4     Copyright and Trademark Rights.     In connection with Apple's marketing\n        ------------------------------\nand  distribution  of  the  Bundle,  Developer  grants  to  Apple,  Apple's\nSubcontractors  and  Apple's Resellers the non-exclusive, non transferable right\nduring  the  term  of Apple's rights of distribution under this Agreement to use\n(1)  all  copyrighted  materials  contained in the Program(s) (including but not\nlimited  to  screen  shots  from  the  Program(s)),  the  Documentation, and any\npackaging  or  other  materials  provided  by  Developer  and (2) all trademarks\nassociated  with  the  Program(s).\n\n2.5     Limitations on Use.     Apple shall not use or duplicate any Program for\n        ------------------\nany  purpose  other  than  as  specified  in  this  Agreement.  Apple  shall not\ndisassemble, decompile, reverse engineer, modify or otherwise change any part of\na  Program.\n\n                                      3\n\n3.     DEVELOPER'S  RESPONSIBILITIES\n\n3.1     Transfer  of  Master Copies.     The Developer shall provide to Apple or\n        ---------------------------\nApple's  Subcontractor,  at  no  cost,  the  Program  Master  and,  if  Apple is\nresponsible  for  reproduction  of  the Documentation, the Documentation Master,\nboth  according  to  the  Schedule  set  forth  in  the corresponding Exhibit 2.\n\n3.2     Program  Compatibility.     The Developer shall verify the compatibility\n        ----------------------\nof  the  Program  with  the  Apple  system  software  version  defined  in  the\ncorresponding Exhibit 2.  Upon request, Developer's test methodology and a brief\nsummary of the test results shall be provided to Apple.  Developer shall provide\nto  Apple,  at  no cost, a reasonable number of additional copies of the Program\nfor  testing.  Apple shall have the right to test each Program for compatibility\nwith  the  Apple  Hardware,  Apple Software and\/or any third party product to be\nbundled  with  the  Program.  Apple's acceptance of the Program for inclusion in\nthe  Bundle  (\"Acceptance\") shall be conditioned upon satisfactory completion of\nall  compatibility  testing,  as  determined  by  Apple  in its sole discretion.\n\n3.3     Developer's  Points of Contact.     As set forth in Exhibit 2, Developer\n        ------------------------------\nhas  identified its primary contact, together with a list of its representatives\nhaving  responsibility for resolution of increasingly critical issues related to\nthis Agreement.  In the event of any change in names of these points of contact,\nDeveloper  will  immediately  notify  Apple  of  the replacement representative.\n\n3.4     Delivery  of  Purchased  Documentation.     If  printed  copies  of  the\n        --------------------------------------\nDocumentation  are  to be purchased from Developer pursuant to the corresponding\nExhibit  2,  upon  receipt of an authorized purchase order from Apple or Apple's\nSubcontractor,  Developer  will  deliver  the  number of requested copies of the\nDocumentation  to the address indicated.  Documentation shall be delivered on or\nbefore  the  shipment  date  set  forth  in  the  purchase  order.  In addition,\nDeveloper  will  provide  Apple,  at  no  cost,  with  advance  copies  of  the\nDocumentation according to the schedule set forth in the corresponding Exhibit2.\n\n3.5     End  User  Support.     Developer  will  provide End Users with the same\n        ------------------\nlevel of support normally provided to customers who purchase its Program through\nDeveloper's  standard  primary distribution channels.  This includes, but is not\nlimited to, providing Program upgrades, technical support and related materials.\nApple is under no obligation to provide any End User support or training for any\nProgram.  All  End  User  support requests received by Apple will be referred to\nDeveloper.\n\n3.6     Technical  Support  and  Training.     Developer will provide reasonable\n        ---------------------------------\ntechnical  support  and training to Apple or Apple's Subcontractor, if requested\nby  Apple.  As  set  forth  in  Exhibit  2,  Developer  has  identified  its\nrepresentative(s)  having  primary  responsibility  for  coordinating\/resolving\ntechnical support issues related to the Program.  In the event that Apple elects\nto  participate  in  the  resolution  of  an  End  User's technical problem, the\nDeveloper  shall  provide  a  problem resolution\/response plan to Apple within 2\nworking  days  of  Apple's  request.\n\n3.7     Program  Revisions.     If  Developer  plans  to  revise  a  Program and\n        ------------------\ndistribute such revised version to Developer's customers, at any time during the\nterm  of  this  Agreement  and  for  a  period  of  ninety (90) days thereafter,\nDeveloper  will submit a summary of the intended functional Program revisions to\nApple  at  least  ninety\n\n                                      4\n\n(90)  days  prior  to the schedule release of the revision.  Developer will make\nthe revised version of the Program available to Apple upon release of its golden\nmaster from engineering, but in no event later than its production release date,\nand  under  the  same  terms and conditions as the original versions licensed to\nApple.\n\n4.     FEES  AND  PAYMENT\n\n4.1     Royalty Fees.     Apple or Apple's Subcontractor will pay to Developer a\n        ------------\nroyalty  for each Program Copy. The royalty fee shall be the amount set forth in\nthe  corresponding  Exhibit  1  minus any applicable withholding required by the\ntaxing authority of the country in which the Bundle is distributed (the \"Royalty\nFee\").  Payment  will  be  made  either  by Apple's Subcontractor based on units\nmanufactured  and shipped into Apple's Distribution Centers or by Apple based on\nunits  sold  into the distribution channel.  Apple's and Apple's Subcontractor's\nroyalty obligation will accrue on the date of sale to Apple's Customer; however,\nroyalty  payments  to  Developer  for  any quarter will not be due until 45 days\nafter the end of that quarter, based on the applicable Quarterly Report pursuant\nto  Section 4.3.  Developer may seek payment from Apple if Apple's subcontractor\nfails  to  make  payment  under  this  Section  4.1.\n\n4.2     Withholding  Tax  on  Royalties.     Developer  acknowledges  that if an\n        -------------------------------\nApple Subsidiary is required by any taxing authority in any country in which the\nBundle  is  distributed  to  pay  a  withholding  tax  on royalties paid for the\nProgram,  the  Developer will be subject to and liable for such withholding tax.\nThe  Developer  acknowledges  that  the Apple Subsidiary will act as withholding\nagent  and  remit  the  applicable  withholding  tax  to  the  applicable taxing\nauthority on behalf of the Developer, notwithstanding that Developer may receive\nRoyalty  Fees directly from Apple.  In such instance, the payment of the Royalty\nFee  by  Apple  to  Developer  will  be  made  by  Apple  as  agent of the Apple\nSubsidiary.\n\n4.3     Royalty  Reporting.     As  to  each  Program covered by this Agreement,\n        ------------------\nApple  or  Apple's Subcontractor shall maintain complete and accurate records of\nthe  following:  (i)  the  number  of  Bundles which are either manufactured and\nshipped  to  distribution  or  sold into the Channel; (ii) the number of Program\nCopies  which  are  Reconfigured pursuant to Section 4.5(a); (iii) the number of\nCustomer  Returns  pursuant  to  Section  4.5(b);  and  (iv)  the  amount of any\napplicable  withholding  required  by  the  taxing authority in the countries in\nwhich the Bundle is distributed pursuant to Section 4.2.  Within forty-five (45)\ndays  after  the  close  of  each  calendar  quarter,  Apple  and\/or  Apple's\nSubcontractor  shall  submit  a  report  (\"Quarterly  Report\")  to the Developer\nlisting  the  above  information,  by  each  of  these  four categories, for the\npreceding  quarter.\n\n4.4     Royalty  Payments.     Apple or Apple's Subcontractor shall include with\n        -----------------\neach  Quarterly Report a royalty payment in accordance with Section 4.1 and 4.5.\n\n4.5     Royalty Credits.     Apple and Apple's Subcontractor will be entitled to\n        ---------------\nreceive credits against its royalty payment obligations based on reconfiguration\nof  Bundles  and  Reseller  and  End  User  returns  as  follows:\n\n     (a)     Product  Reconfiguration.  Apple  may,  at any time and in its sole\n             ------------------------\ndiscretion,  elect  to reconfigure its inventory items by removal of the Program\nCopies  from  existing  Bundles  (\"Reconfiguration\").  In  such  event, Apple or\nApple's  Subcontractor  shall  report  in  its\n\n                                      5\n\nQuarterly  Report  the  number of Reconfigurations during the prior quarter.  No\nother  notice  of  Reconfigurations  will  be required to be given to Developer.\n\n     (b)     Returns.  Apple  may  at  any  time,  in its discretion, accept the\n             -------\nreturn of (opened or unopened) Bundles from Resellers and End Users (\"Returns\").\nIn  such  event,  Apple  or  Apple's Subcontractor shall report on its Quarterly\nReport  the  number  of  Returns  during  the prior quarter.  No other notice of\nReturns  will  be  required  to  be  given  to  Developer.\n\n     (c)     Net  Royalty  Credits.  Apple  and  Apple's  Subcontractor  will be\n             ---------------------\nentitled  to  receive  a credit on its quarterly payment obligation equal to the\nnumber  of  Reconfigurations  and Customer Returns, up to a total of one hundred\n(100)  units  in the prior quarter times the applicable Royalty Fee.  If, in any\nquarter,  Apple  does  not  owe the Developer a sum equal to or greater than the\ntotal  credits  due  as  a  result of Reconfigurations and\/or Returns, Developer\nshall  pay  to  Apple the net credit amount within forty-five (45) days from the\ndate  of  the  Quarterly  Report.\n\n     (d)     Expiration\/Termination.  Upon  expiration  or  termination  of this\n             ----------------------\nAgreement, Apple and Apple's Subcontractor will have the right to submit reports\non,  and  obtain  royalty  credits  for,  up  to  one  hundred  (100)  units  of\nReconfigurations  and  Returns  occurring  within  ninety  (90)  days after said\nexpiration  or termination.  Developer shall pay all credits to Apple or Apple's\nSubcontractor  within  forty-five  (45)  days  from  the  date  of such reports.\n\n4.6     Right  to  Audit.  The Developer shall have the right at its expense and\n        ----------------\non  thirty  (30)  days  written  notice, to have an independent certified public\naccountant  audit  the  records  of Apple or Apple's Subcontractor to verify the\ninformation  provided  in the Quarterly Reports.  Records subject to audit under\nthis  section  shall  extend  no  more than three (3) years prior to the request\ndate.  If,  as  a  result  of  such  audit, an underpayment is verified Apple or\nApple's Subcontractor will rectify payment of inconsistencies or mistakes within\nthirty  (30)  days,  and, if greater than ten percent (10%) underpayment for any\nreporting  period  is found, also reimburse Developer for the cost of the audit.\nThe  Developer may exercise its right to audit no more than once per year unless\nan  underpayment  of  over  ten  percent  (10%) has been discovered in the prior\naudit.  In  such  cases,  the Developer shall have the right to audit once every\nthree  months  until  the results of the last audit show less than a ten percent\n(10%) underpayment.  Audit scheduling shall be by mutual agreement between Apple\nor  Apple's  Subcontractor  and  the Developer, and all audits must be completed\nwithin  five  working  days.  Upon  completion  of  the  audit  the  independent\ncertified  public  accountant  shall  provide  a  copy of the report to Apple or\nApple's  Subcontractor.  Developer acknowledges and agrees that all such records\nof  Apple  or Apple's Subcontractor shall be considered Confidential Information\nand  shall  be  subject  to  the  restrictions  set  forth  in Section 8 of this\nAgreement.\n\n4.7     Documentation  Fee.     If  Apple or Apple's Subcontractor will purchase\n        ------------------\nhard  copy  Documentation  from  Developer pursuant to the applicable Exhibit 2,\nDeveloper  will  be entitled to the fee stated therein for each hard copy of the\nDocumentation\n\n                                      6\n\ndelivered  by  Developer  pursuant  to  this  Agreement  (\"Documentation  Fee\").\nDocumentation  Fees  will  be  due  within  forty-five  (45)  days  of  invoice.\nDeveloper  will  not  be entitled to any Documentation-related fees if, instead,\nApple  or  Apple  subcontractor  is  responsible  for  the  copying or hard copy\nreproduction  of  the  Documentation  pursuant  to  the  applicable  Exhibit  2.\n\n4.8     Documentation  Returns.     Unless  otherwise  noted,  for  a  period of\n        ----------------------\nninety  (90)  days  after the expiration or other termination of this Agreement,\nApple  or  Apple's  Subcontractor may return Documentation in Apple's or Apple's\nSubcontractor's  inventory  that  has  been purchased from Developer.  Developer\nshall,  within  thirty (30) days refund or credit Apple or Apple's Subcontractor\nan  amount  equal  to  the  purchase  price  for  such  Documentation  (per  the\ncorresponding  Exhibit  2)  times  the  number  of  copies of such Documentation\nreturned.\n\n5.     REPRESENTATIONS  AND  WARRANTIES\n\n5.1     Ownership.     Developers  represents  and warrants:  (i) that it is the\n        ---------\nowner  of,  or  has  obtained  a license from the owner of, all right, title and\ninterest,  including copyright, if any, in and to all preexisting images, icons,\ncharacters,  graphics,  sounds,  music,  photographs,  recordings,  video, film,\nanimation,  cartoons,  illustrations,  accompanying  text, captions, scripts, or\nrelated  materials  in  each  of  the  Program(s) and Documentation, or that the\npreexisting  images,  icons,  characters,  graphics, sounds, music, photographs,\nrecordings,  video, film, animation, cartoons, illustrations, accompanying text,\ncaptions,  scripts,  or  related  materials  in  each  of  the  Program(s)  and\nDocumentation are within the public domain and not subject to the protections of\ncopyright  law; (ii) that it has obtained or will obtain prior to delivery under\nthis  Agreement,  all licenses and releases required to enable Apple to exercise\nthe license granted in this Agreement, including without limitation, the release\nof  each  person  or  organization  whose  name,  voice,  likeness,  portrayal,\nimpersonation  or  performance  is included in any Program or Documentation; and\n(iii)  that  it  has not previously granted and will not grant any rights in any\nProgram to any third party inconsistent with the rights granted to Apple herein.\n\n5.2     Program  Warranty  to  Apple.     Developer  warrants  that  each of the\n        ----------------------------\nPrograms will perform substantially in accordance with the Documentation for one\nyear  after  delivery  of  the  Program  Master.\n\n5.3     Program  Warranty  to  Customer     Developer  shall  provide  the  sole\n        -------------------------------\nwarranty  to  the  Customer pertaining to the performance of each Program, which\nwarranty  shall  provide,  at  a  minimum,  that  the  Program  is  capable  of\nsubstantially  performing  the  functions  described  in  the Documentation.  In\naddition,  if  Apple or Apple's Subcontractor is to purchase Program Copies from\nDeveloper  rather  than reproducing them from the Program Master, then Developer\nshall  provide  the  sole  warranty to the Customer pertaining to the media upon\nwhich  the  Program  resides.  Developer  will  incorporate  this  warranty  or\nwarranties  into the Program Master and\/or the Documentation Master delivered to\nApple  or Apple's Subcontractor (or, if Apple or Apple's Subcontractor purchases\nthe  Documentation  from  Developer  rather  than  reproducing  it  from  the\nDocumentation  Master,  into  the  Documentation).  In  no  event shall Apple be\nliable  to  the Developer for any failure by a Customer to comply with the terms\nand  conditions  of  any  end-user  license  agreement  for  the  Program.\n\n5.4     No  Apple  Program  Warranty.     Apple  shall  not provide any warranty\n        ----------------------------\nwhatsoever\n\n                                    7\n\nto  Customer  with  respect  to  the  Program, including, without limitation any\nwarranty  related  to  Program content or functionality, or any warranty against\nviruses or bugs contained in the Program.  In no event will Apple be responsible\nto  Customer  for any damage caused by any Program.  Apple may provide a limited\nwarranty  on  the  media on which the Program Copy resides when it is Apple's or\nApple's  Subcontractor  responsibility  to reproduce the Program Copy onto media\nfrom  the  Program  Master.\n\n5.5     Replacement  Copies  of  the  Program.     In the event that Apple or an\n        -------------------------------------\nApple  authorized service provider elects to provide Customer with a replacement\nfor a defective or damaged Program Copy, no additional fee will be due Developer\nfor  the  replacement  copy  or  the  related  Documentation.\n\n6.     INDEMNIFICATION\n\n6.1     Proprietary  Rights Indemnity.     Developer agrees to defend, indemnify\n        -----------------------------\nand  hold harmless Apple and Apple's affiliates, directors, officers, employees,\nagents  and  contractors  from  any and all losses, damages, liabilities, costs,\nexpenses (including reasonable attorney's fees), judgments or settlement amounts\narising  out  of or in connection with any claim that the marketing, sale or use\nof  a  Program infringes any patent, copyright, trademark, trade secret, privacy\nright,  right  of  publicity  or  other  proprietary  right  of  a  third party.\n\n6.2     Duty  to  Correct.     If any Program becomes or is likely to become the\n        -----------------\nsubject  of  a  claim  or  action  covered by Section 6.1 Developer will, at its\nexpense, either:  (i) procure for Apple the past right to make, use and sell and\nthe  future  right to continue to make, use and sell the Program or (ii) replace\nor modify the Program to make it non-infringing, provided that the same function\nis performed by the replacement or modified Program to Apple's satisfaction.  If\nDeveloper  reasonably  believes  that  the past and future rights to continue to\nmake,  use  and  sell  cannot  be procured and the Program cannot be replaced or\nmodified  at reasonable expense, Developer may discontinue the Program by notice\nto  Apple, whereupon Apple will cease further marketing and distribution of that\nProgram  and  the  Agreement  will  be  terminated partially as to that Program.\n\n6.3     General  Indemnity.     Developer  agrees  to defend, indemnify and hold\n        ------------------\nharmless  Apple,  and Apple's affiliates, directors, officers, employees, agents\nand  contractors,  from  and  against  any and all losses, damages, liabilities,\ncosts,  expenses  (including  costs  and  reasonable fees of attorneys and other\nprofessionals),  judgments or settlement amounts arising out of or in connection\nwith  a  claim  that any of the Program(s) caused injury or damage to persons or\nproperty,  or  a  claim that any Program failed to perform as represented or was\ndefective.\n\n7.     LIMITATION  OF  LIABILITY\n\n     EXCEPT  AS  SPECIFICALLY PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE\nLIABLE  FOR  ANY  INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR\nRELATING  TO  BREACH  OR  FAILURE  TO PERFORM UNDER THIS AGREEMENT, EVEN IF THAT\nPARTY  HAS  BEEN  ADVISED  OF  THE  POSSIBILITY  OF SUCH DAMAGES.  Apple's total\nliability  (i.e.,  the  total  liability  of  Apple  Computer  and  all  Apple\nsubsidiaries) for all damages, losses and causes of action, whether in contract,\ntort  (including  negligence)  or  otherwise,  shall  in  no  event  exceed  the\n\n                                     8\n\namount  paid  by  Apple  (i.e.,  Apple  Computer  and all Apple subsidiaries) to\nDeveloper  pursuant  to  this  Agreement.\n\n8.     CONFIDENTIALITY\n\n8.1     Disclosure:  Standard  of Care.     The parties acknowledge that, in the\n        ------------------------------\ncourse  of performance of their obligations under this Agreement, each party may\ndisclose  Confidential  Information  to  the other.  Each party will protect the\nother's  Confidential  Information  from unauthorized dissemination and use with\nthe  same  degree of care that each such party uses to protect and safeguard its\nown  like  information,  but  not  less  than  the  degree of care that would be\nexercised  by a prudent person given the sensitivity and strategic value of such\nConfidential  Information.  Confidential  Information shall be disclosed only to\nthe  employees  of the recipient who have a \"need to know\" and who have executed\nan internal nondisclosure agreement at least as restrictive as the terms of this\nAgreement.  Developer  shall  not  disclose  any Confidential Information to any\nthird  party without first obtaining Apple's written consent to such disclosure.\n\n8.2     No  Warranties,  Reproductions  or  Liability.     In  furnishing  any\n        ---------------------------------------------\nConfidential  Information  hereunder,  Apple  makes  no  warranty,  guarantee or\nrepresentation,  either  express  or  implied  (a) as to the adequacy, accuracy,\nsufficiency or freedom from defect of such Confidential Information, or (b) that\nthe use or reproduction of any Confidential Information received hereunder shall\nbe  free  from  any  patent,  trade  secret  or  copyright  infringement.\n\n9.     TERM  AND  TERMINATION\n\n9.1     Term.  This  Agreement  shall  commence  on  the  Effective  Date, shall\n        ----\ncontinue in full force and effect for  a  period  of  one (1) year, and shall be\nautomatically  renewed  thereafter  for  successive one (1) year periods  unless\nnotice of intent not to renew is received by either party  at  least ninety (90)\ndays days  prior  to  the  commencement  of  any  subsequent  term.\n\n9.2     Termination  Without  Cause.     Apple shall have the right to terminate\n        ---------------------------\nthis  Agreement  at  will,  with or without cause, upon thirty (30) days written\nnotice.\n\n9.3     Termination For Cause.     Either party will have the right to terminate\n        ---------------------\nthis  Agreement  immediately  upon  written  notice  at  any  time  if:\n\n     (a)     The  other  party  is  in material breach of any term, condition or\ncovenant  of  this Agreement other than those contained in Section 8.1 and fails\nto cure that breach within thirty (30) days after written notice of such breach;\n\n     (b)     The  other  party  is  in material breach of any term, condition or\ncovenant  of  this  Agreement  contained  in  Section  8.1;  or\n\n     (c)     The  other  party:  (i)  becomes  insolvent;  (ii) fails to pay its\ndebts  or  perform  its  obligations  in the ordinary course or business as they\nmature;  or  (iii)  makes  an  assignment  for  the  benefit  of  creditors.\n\n9.4     Archiving\/Destruction  of  Program Master Copies.     Upon expiration or\n        ------------------------------------------------\ntermination  of  this Agreement, Apple or, if applicable, Apple's Subcontractor,\nshall  archive  or  destroy  each  Program  Master  and,  if  applicable,  each\n\n                                     9\n\nDocumentation  Master  received  from  Developer.\n\n9.5     Right  to  Distribute  After  Termination.     Upon  expiration  or\n        -----------------------------------------\ntermination  other  than  for  cause  of  the  Agreement  and subject to payment\n        --\nobligations in Section 4, Apple and Apple's Subcontractor shall continue to have\nthe  right  to  (a) distribute Program Copies of the Program(s) until the end of\nthe  product  life  cycle  of  all Bundles current at the time of termination or\nexpiration;  and  (b) distribute all Bundles in inventory until such bundles are\nexhausted.\n\n10.     GENERAL  TERMS\n\n10.1     Nonexclusivity.     Nothing  in  this  Agreement  shall  prevent either\n         --------------\nparty  from  entering  into  a  similar  agreement  with  any other party.  This\nAgreement  shall  not be construed to restrict either party from engaging in any\nactivities  with respect to the other party's competitors' products or services.\n\n10.2     Relationship  of  the  Parties.     In  all  matters  relating  to this\n         ------------------------------\nAgreement,  Apple  is  an  independent contractor.  Neither party will represent\nthat  it  has  any  authority  to  assume  or  create any obligation, express or\nimplied,  on  behalf of the other party.  Nothing stated in this Agreement shall\nbe construed as constituting Apple and Developer as partners or joint venturers,\nor  as  creating the relationship of employer and employee, principal and agent,\nmaster  and  servant,  or  licensor  and  licensee  between Apple and Developer.\n\n10.3     No  Assignment.     This  Agreement  is  not assignable by either party\n         --------------\nwithout  the  prior  written consent of the other party.  The provisions of this\nAgreement  shall  be binding upon and inure to the benefit of the parties, their\nsuccessors,  and  permitted  assigns.\n\n10.4     Notice.     All  notices  sent  to Apple shall be sent to the following\n         ------\naddress:\n\n     Apple  Computer,  Inc.\n     One  Infinite  Loop\n     M\/S  35-SC\n     Cupertino,  CA  95014\n     ATTN:  Susan  Priore\n     Software  Business  Management\n\n     And  copied  to  the  following  address:\n\n     Apple  Computer,  Inc.\n     900  E.  Hamilton  Ave.\n     M\/S  73LG\n     Campbell,  CA  95009\n     ATTN:  LAW  DEPARTMENT\n\n10.5     Governing  Law\/Venue.     This  Agreement  shall  be  governed  by  and\n         --------------------\nconstrued  in  accordance  with the laws of the State of California, except that\nbody  of  law  known  as  Conflicts  of Law.  All actions or proceedings arising\ndirectly  or  indirectly  between  the  parties, other than those for injunctive\nrelief,  shall  be litigated in courts located within the County of Santa Clara,\nCalifornia.  Developer  consents  to  the jurisdiction thereof and agrees not to\ndisturb  such  choice  of  forum.  If Developer is not a resident of California,\nDeveloper waives the personal service of any and all process upon it, and agrees\nthat  all  such  service\n\n                                     10\n\nor  process  may  be  made  by  certified  or  registered  mail,  return receipt\nrequested,  addressed  to  Developer.\n\n10.6     Severability.     In  the  event  that  any  of  the provisions of this\n         ------------\nAgreement  shall  be held by a court or other tribunal of competent jurisdiction\nto  be  invalid or unenforceable, the remaining portions of this Agreement shall\nremain  in full force and effect and shall be construed so as to best effectuate\nthe  intention  of  the  parties  in  executing  it.\n\n10.7     No  Waiver     Failure by either party to enforce any provision of this\n         ----------\nAgreement  shall  not be deemed a waiver of the right to thereafter enforce that\nor  any  other  provision  of  this  Agreement.\n\n10.8     Survival.     Any obligations which either expressly or by their nature\n         --------\nare  to  continue  after  the  termination or expiration of this Agreement shall\nsurvive  and  remain  in  effect.\n\n10.9     Modification.     Any  modifications  of  this  Agreement  must  be  in\n         ------------\nwriting  and  signed  by  both  parties  hereto.\n\n10.10     Force  Majeure.     Neither  party  shall be liable for any failure or\n          --------------\ndelay  in  the  performance  of  an  obligation hereunder on account of strikes,\nriots,  fires,  explosions,  acts of God, war, governmental action, or any other\ncause  which  is  beyond  the  reasonable  control  of  such  party.\n\n10.11     Entire  Agreement.     This Agreement constitutes the entire agreement\n          -----------------\nbetween  the  parties with respect to the subject matter hereof, and any and all\nwritten or oral Agreements heretofore existing between the parties are expressly\ncanceled.  Developer  acknowledges that it is not entering this Agreement on the\nbasis  of  any  representations  not  expressly  contained  herein.\n\nIN  WITNESS  WHEREOF,  the  parties have caused this Agreement to be executed by\ntheir  duly  authorized  representatives.\n\n\nNETTAXI  ONLINE                         APPLE  COMPUTER,  INC.\nCOMMUNICATIONS,  INC.\n\nBY:                                     BY:\n\nNAME:                                   NAME:\n\nTITLE:                                  TITLE:\n\nDATE:                                   DATE:\n\n                                    11\n\n                                    EXHIBIT 1\n\n              PRODUCT DESCRIPTION, PRODUCT PRICING AND DISTRIBUTION\n\n\n\nProgram  Name\/Version                         Price Per Copy\n---------------------                         --------------\nInternet  the  City  V1.0                     $         1.00\n  For  Macintosh  (2  CD's)\n\n\nDocumentation\n-------------\nRegistration  Card                                  -0-\nSoftware  License  Agreement\nUser  Manual\n\n\nLanguage  Versions:\n-------------------\nU.S.  English\n\n\nCustomers:\n----------\nAll  Apple  Customers\n\n\nDistribution  Area:\n-------------------\nWorldwide\n\n\nMedia  Type(s):  ___  Floppy   X   CD   ___ Zip ______  Other\n                              ---\n\nOther  Terms:\n-------------\n\n1)   Developer shall provide all artwork  required to duplicate the Documenation\n     to Apple or Apple's Subcontractor and grand Apple and Apple's Subcontractor\n     the right to duplicate the  Documentation  for  distribution in the Bundle.\n     Fees for the Documentation shall be paid by Apple or Apple's  Subcontractor\n     directly to the  printer(s)  with no fee for the  Documentation  due to the\n     developer.  Apple shall have  financial  liability for all inventory of the\n     Documentation  duplicated by Apple or Apple's Subcontractor a nd shall give\n     up the right to return such  Documentation as stated in Section 4.3 and 4.4\n     of the Agreement.  In the event that Apple or Apple's  subcontractor choose\n     to purchase the Documentation directly from the Developer,  the price shall\n     be negotiated and agreed to betwwen the parties at that time.\n\n\n                                    12\n\n                                    EXHIBIT 2\n                             DEVELOPER DELIVERABLES\n\n\n                                                                       Delivery\nProgram  Name\/Version             Deliverables                         Schedule\n---------------------             ------------                         --------\nInternet the City V1.0            Compatibility  Testing  Complete     11\/13\/97\n                                  Program Copies for Testing           11\/14\/97\n                                  Program  Master                      11\/14\/97\n                                  Documentation Master                 11\/14\/97\n                                  If  applicable\n                                  Hard Copy Documentation (#_____)       N\/A\n                                  If applicable\n\nTHE  PROGRAM  MUST  BE  COMPATIBLE  WITH  THE  FOLLOWING:\n\n                         APPLE'S  SYSTEM  SOFTWARE  VERSION  8.0  AND  8.1\n\n\nDeveloper  Contacts\n-------------------\n\nPrimary  Contact:  Bob  Rositano,  408-879-9880,  rar@nettaxi.com\n                                                  ---------------\nEscalation  Contact(s):\nDeveloper's  Technical  Representative\n--------------------------------------\nPrimary  Technical  Support  Representative:\n  Brian  Stroh,  888-879-9880,  bstroh@nettaxi.com\n\n                                   13\n\n                               SMITH &amp; ASSOCIATES\n                                Attorneys at Law\n                                Eighteenth Floor\n                            1901 Avenue of the Stars\n                          Los Angeles, California 90067\n                            Telephone (310) 277-1250\n                            Facsimile (310) 286-1816\n\nApple  Computer\nSusan  Prior\nRe:  \"Internet the City\" CD-ROM\nDate:  11\/11\/97\n\nDear  Susan:\n\nWe  understand  the  current  situation concerning Apple's current contract with\nSimply Interactive, Inc. and are conveying to you in writing what has transpired\nover  the  course  of  the  last  60  days.\nSimply  Interactive,  Inc.  (the  Company)  was  acquired as of (August 6, 1997)\npursuant to default provisions entered into between Simply Interactive, Inc. and\nSSN  properties  (a  California Corporation) all assets, product, contracts, and\nintellectual  property  rights  then  became  the  assets  of  SSN  properties.\nDuring  the  course  of  this  transaction SSN entered into an agreement to then\nsell,  assign,  grant  and convey all property\/contract rights to NETTAXI Online\nCommunities,  Inc.  (a  Delaware  Corporation).\nThe  conveyance and transfer of these assets includes \"Internet the City\" CD-ROM\nsoftware,  and  any  excising  contracts  relating  to  the  software  that were\ncurrently  established  and held by Simply Interactive, Inc. \"re: Apple Computer\nContract.\"\nAs  of  November  1,  SSN  properties has transferred and conveyed all property,\nsoftware, and contract rights to NETTAXI Online Communities, Inc.  From this day\nforward  NETTAXI  at  its  sole discretion may amend, transfer, or establish new\ncontracts\/relationships with any and all vendors relating to Simply Interactive,\nInc.  or  the  \"Internet  the  City\"  CD-ROM  software.\nNETTAXI  is in good standing and is a Delaware Corporation.  Current officers of\nthe  company  are:\n\nRobert  A.  Rositano  Jr.  Chairman\/CEO               Company  Address:\nDean  Rositano  President\/COO                         2165  S.  Bascom  Ave.\n                                                      Campbell,  CA  95008\n                                                      888  879  9880\nCustomer Service Contact: Brian Stroh                 408  879  9880\n\nShould  you  require  any further information or documentation please advise the\nundersigned  and  it  will  be  forthcoming.\n\n                              Very  truly  yours,\n\n                         \/S\/  John  Holt  Smith\n                              -----------------\n                              John  Holt  Smith\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6722,8329],"corporate_contracts_industries":[9508,9513],"corporate_contracts_types":[9613,9616],"class_list":["post-42565","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-apple-computer-inc","corporate_contracts_companies-nettaxi-inc","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42565","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=42565"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42565"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42565"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42565"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}