{"id":42798,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/software-distribution-agreement-apple-computer-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-distribution-agreement-apple-computer-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-distribution-agreement-apple-computer-inc-and.html","title":{"rendered":"Software Distribution Agreement &#8211; Apple Computer Inc. and Earthlink Network Inc."},"content":{"rendered":"<pre>\nSOFTWARE DISTRIBUTION AGREEMENT \nMacTCP \n\n[APPLE LOGO] APPLE COMPUTER, INC. \nSoftware Licensing Department \n2420 Ridgepoint Drive MS - 198SWL \nAustin, TX 78754 \n\n\nLicensee  Earthlink Network, Inc.\n         -----------------------------------------------------------------------\n\nIndividual to Contact  Sky Dayton \n                      ----------------------------------------------------------\n\nStreet Address  3171 Los Feliz Boulevard  Suite 203 \n               -----------------------------------------------------------------\n\nCity   Los Angeles   State   CA   Zip Code  S 90039   Country   USA \n      --------------       ------         -----------         -----------------\n\nTelephone Number: (213) 644 9500   x 110 \n                  --------------------------------------------------------------\n\nAppleLink Address: \n                  --------------------------------------------------------------\n\nInternet Address(es)*:  Sky @ Earthlink.Net \n                       ---------------------------------------------------------\n\n                       ---------------------------------------------------------\n*An Internet Address is required to obtain product updates under this Agreement.\n\nApple Computer, Inc. (\"Apple\") and Licensee agree that the following terms and\nconditions shall govern Licensee's use and distribution of the Apple Software. \n\n1 .  DEFINITIONS \n\n1.1  \"Apple Software\" means the object code form of the Apple Software program\n     identified in Exhibit B as the \"Apple Software\" and any subsequent\n     version(s) of the Apple Software that Apple notifies Licensee will be\n     covered by this Agreement. \n\n1.2  \"Distributor\" means an individual or entity that is licensed by Licensee or\n     another Distributor to distribute Licensee Programs to End-Users or other\n     Distributors. \n\n1.3  \"End-User\" means an individual or entity that licenses Licensee Programs\n     for his or its own personal or business purposes, and not for license to\n     others. \n\n1.4  \"Licensee\" means the licensee listed above. \n\n1.5  \"Licensee Programs\" means Licensee's own computer programs listed and\n     described in Exhibit C. \n\n1.6  \"...as incorporated in Licensee Programs...\" means that (i) Licensee\n     Programs depend upon Apple Software for certain elements of their operation\n     and functionality; (ii) Licensee Programs access Apple Software\n     functionality by means of programing libraries and programming interfaces,\n     separately available from Apple; (iii) Licensee Programs incorporate Apple\n     Software by reference by compilation with, and linking to these\n\n\n\n                                                                       EFBO91093\n\n     programming libraries and programming interfaces; and (iv) Apple Software\n     is not distributed independently of Licensee Programs which depend on Apple\n     Software. Licensee Programs may be distributed independently of Apple\n     Software. \n\n1.7  \"Volume Licensing Program\" means a software licensing program that\n     authorizes use of the Apple Software only as incorporated in Licensee\n     Programs on multiple computers - either a specific number of computers, or\n     for a number of computers within a specific number range, where that number\n     does not exceed 2000 computers. \n\n1.8  \"Limited Site Licensing Program\" means a software licensing program that\n     authorizes use of the Apple Software only as incorporated in Licensee\n     Programs on multiple computers - either a specific number of computers, or\n     for a number of computers within a specific number range, where that number\n     is greater than 2000 computers, but does not exceed 5000 computers. \n\n1.9  \"Site Licensing Program\" means a software licensing program that authorizes\n     use of the Apple Software as incorporated in Licensee Programs on multiple\n     computers -  either a specific number of computers, or for a number of\n     computers within a specific number range, where that number is greater than\n     2000 computers and may be any greater number. \n\n1.10 \"Unlimited Site Licensing Program\" means a software licensing program  that\n     authorizes use of the Apple Software as incorporated in Licensee Programs\n     on an unlimited number of computers. \n\n2.   LICENSE. \n\n2.1  Apple hereby grants to Licensee a nonexclusive, nontransferable, worldwide\nlicense to (i) copy and\/or have copied for it the Apple Software for the sole\npurpose of incorporating the Apple Software into Licensee Programs; and (ii)\ndistribute, to End Users and Distributors, the Apple Software in object code\nform solely as incorporated in Licensee Programs which are designed to operate\non or with Apple-labeled or Apple-manufactured CPUs only and solely in\ncompliance with the conditions described in Exhibit B. This license grant is\nexpressly conditioned upon Licensee and\/or Distributor's compliance with the\nfollowing requirements: \n\n(a)  All distributions to End-Users must be subject to an End-User Software\nLicense Agreement no less restrictive or materially less protective of Apple's\nrights in the Apple Software than the Software License attached hereto as\nExhibit D. For each jurisdiction in which Licensee Programs are distributed, it\nis Licensee's responsibility to use an End-User Software License Agreement which\nis enforceable under and complies with the laws of the jurisdiction. \n\n(b)  All Distributors must be subject to binding written agreements that include\nprovisions consistent with and the material substance of Paragraphs 2, 3, 7, 8,\n9 and 12 of this Agreement, and such agreements must be materially no less\nprotective of Apple's rights in the Apple Software than are the terms and\nconditions of this Agreement. \n\n(c)  Licensee may distribute the Apple Software solely as incorporated in\nLicensee Programs as part of a Volume Licensing Program associated with Licensee\nPrograms.  In such cases, Licensee will include a restriction in its Volume\nLicensing Program Agreement with the End-User that the Apple Software shall be\nused by the End-User solely for operation in conjunction with Licensee Programs.\nLicensee agrees to refer End-User queries regarding use of the Apple Software\nwith any other software to Apple, for execution of an Apple Tiered Volume\nLicense Agreement between Apple and the End-User. \n\n\n                                          2\n\n\n\n                                                                       EFBO91093\n\n(d)  Subject to the additional fees described in option D of Exhibit A as the\n\"Limited Site License Option\", Licensee may distribute the Apple Software solely\nas incorporated in Licensee Programs as part of a Limited Site Licensing Program\nassociated with Licensee Programs.  In such cases, Licensee will include a\nrestriction in its Limited Site Licensing Program Agreement with the End-User\nthat the Apple Software shall be used by the End-User solely for operation in\nconjunction with Licensee Programs. Licensee agrees to refer End-User queries\nregarding use of the Apple Software with any other software to Apple, for\nexecution of an Apple Master Software Site License Agreement between Apple and\nthe End-User. \n\n(e)  Subject to the additional fees described in option E of Exhibit A as the\n\"Site License Option\", Licensee may distribute the Apple Software solely as\nincorporated in Licensee Programs as part of a Site Licensing Program associated\nwith Licensee Programs.  In such cases, Licensee will include a restriction in\nits Site Licensing Program Agreement with the End-User that the Apple Software\nshall be used by the End-User solely for operation in conjunction with the\nLicensee Programs.  Licensee agrees to refer End-User queries regarding use of\nthe Apple Software with any other software to Apple for execution of an Apple\nMaster Software Site License Agreement between Apple and the End-User. \n\n(f)  Licensee may not distribute the Apple Software as part of any Unlimited\nSite Licensing Program. \n\n(g)  Licensee is not authorized to distribute the Apple Software Programming\nLibraries under this Agreement. \n\n2.2  Licensee acknowledges that the Apple Software is proprietary to Apple and\nthat Apple retains all right, title, and interest in and to the Apple Software,\nincluding without limitation all copyrights and other proprietary rights. \n\n2.3  Licensee agrees not to reverse engineer, reverse compile, or otherwise\ndisassemble the Apple Software, except as permitted by applicable legislation.\nLicensee may not use, reproduce, sublicense, distribute or dispose of the Apple\nSoftware, in whole or in part, other than as permitted under this Agreement. \n\n2.4  If Apple requests in writing, Licensee shall provide Apple with an archive\ncopy of Licensee Programs in object code form for the sole purpose of monitoring\nLicensee's compliance with the terms of this Agreement. \n\n2.5  Apple will notify Licensee of the availability of updates or extensions to\nthe Apple Software (\"Updates\").  Upon such notification, Licensee will take all \nnecessary steps to obtain Updates, including but not limited to downloading them\nfrom a server as instructed by Apple.  Licensee shall incorporate any Update in \nLicensee Programs, and shall cease distribution of earlier versions of the Apple\nSoftware to the extent that they have been updated, at the first available\nopportunity within Licensee's product cycle, but no later than one hundred\neighty (180) days after Apple has notified Licensee of the availability of such\nUpdate.  Licensee shall make all Updates available to Licensee's End-Users upon\nthe request of the End-Users or Apple. \n\n2.6  Apple hereby grants to Licensee a nonexclusive, nontransferable, worldwide\nlicense to (i) copy and\/or have copied for it and to modify the documentation\nincluded in the Apple Software for  the sole purpose  of incorporating such \ndocumentation into Licensee's documentation in support of the Apple Software as\nincorporated in Licensee Programs; and (ii) distribute such modified\ndocumentation to End Users and Distributors. This license in conditioned on the\nfollowing copyright notice appearing in Licensee's documentation: \n\n          \"Portions of this manual are copyrighted by Apple Computer, Inc.\" \n\n\n                                          3\n\n\n                                                                       EFBO91093\n\n3.   EFFECTIVE DATE; TERMS. \n\n3.1  The Effective Date of this Agreement will be the date of Apple's execution.\nThe initial term will be until December thirtieth (30th) of the current year and\nthe Agreement will automatically renew for subsequent one year periods unless\none of the following events occurs: (i) Licensee fails to pay the applicable\nrenewal fee before the expiration of the current term; (ii) Apple terminates\nthis Agreement at any time pursuant to Section 13; (iii) Apple provides notice\nto Licensee of its intent to terminate for any reason, with or without cause, at\nleast twelve (12) months prior to the effective date of termination; or (iv)\nLicensee provides notice to Apple of its election to terminate this Agreement\nfor any reason, with or without cause.  \n\n3.2  In the event of any termination, Licensee must immediately discontinue all\nuse and distribution of the Apple Software. However, Licensee is entitled to\nretain one (1) copy of the Apple Software, and is not restricted from providing\ncontinued technical support  of Licensee's End-Users, including continued\nsupport regarding the use of Apple Software in conjunction with Licensee's\nPrograms. \n\n4.  CONSIDERATION.  \n\n4.1  In consideration of, and as a condition of the rights granted to Licensee\nby Apple, Licensee agrees to pay Apple the annual license fee and royalty\npayments based on the options selected by Licensee in Exhibit A. If a royalty\noption is specified on Exhibit A, a royalty obligation shall be effective upon\nthe date Licensee begins the sale, license and\/or distribution of Licensee\nPrograms and shall extend as long as Licensee sells, licenses and\/or distributes\nLicensee Programs. \n\n4.2  If an annual license fee is specified on Exhibit A, the license fee for the\ninitial term shall be prorated based upon the number of months remaining in the\ncurrent year and is due and payable in United States currency upon Licensee's\nexecution of this Agreement. The renewal fee for each subsequent term is due on\nthe thirty first (31st) of December of the current year. As a courtesy, Apple\nintends to send renewal notices sixty (60) days prior to the expiration date of\neach term, but all renewal fees are due and payable on or before December 31 of\neach year, whether or not Apple provides such notice. The annual license fee for\nany of the options will not increase more than ten percent (10%) per annum for\nthe first three (3) years of this Agreement. \n\n4.3  If royalty payments are specified on Exhibit A, royalties shall be payable\non an annual calendar basis, within 45 days of the end of the calendar year\n(December 31), with respect to the number of end-user licenses granted by\nLicensee to End-Users under Licensee's Site Licensing Programs.  Royalty\npayments shall be determined in accordance with the schedule specified in\nExhibit A. All payments to Apple shall be made in U.S. currency, with checks\ndrawn on a U.S. bank. Foreign funds will be calculated at the exchange rate at\nwhich the Licensee's foreign currency transactions are translated in U.S.\ndollars at month end reporting. At the time when royalty payments are due,\nLicensee will deliver to Apple a report setting forth the following information:\n(i) Title of Licensee Program; (ii) number of licenses granted to Licensee's\nEnd-Users under Licensee's Site Licensing Programs for the immediately preceding\nyear and in aggregate from inception of this license agreement; and (iii) a\ncalculation of the royalties due and payable to Apple for the immediately\npreceding year and in aggregate from inception of this license agreement. Any\noverdue amounts shall bear interest at the rate of one and one-half (1.5%)\npercent per month or the maximum rate permitted under applicable law, whichever \nis less. \n\n4.4  Apple shall have the right at its expense and on reasonable notice, to have\nan accredited auditing representative audit the records of Licensee to verify\nthe information to be provided in the reports.  If, as a result of such audit, a\ndollar error of over 5% for any quarter or year is found in favor of Apple,\nLicensee will reimburse Apple for the cost of such audit within thirty days of\nsuch  \n\n\n                                          4\n\n                                                                       EFBO91093\n\nfinding. In the event Licensee's royalty reports or payments include any\ninconsistencies or mistakes, Licensee will rectify such statements and will make\nany payments required by such rectification to Apple within thirty (30) days. \nAny overdue amounts shall bear interest at the rate of one and one-half (1.5%)\npercent per month or the maximum rate permitted under applicable law, whichever\nis less. Failure to pay royalties and\/or audit expenses when due as provided in\nthis Section 4 will be grounds for termination of the Agreement under Section 3.\n\n4.5  Licensee shall deliver the royalty payments and royalty reports to: \n      Royalty Accounting - Austin Finance \n      Apple Computer, Inc. \n      2420 Ridgepoint Dr. MS 198 GL \n      Austin, TX 78754 \n\n4.6  Licensee's royalty accounting contact, address and phone number is: \n\n      Contact Name:  Sky Dayton\n      Address:   3171 Los Feliz Boulevard, Suite 203\n      \n      Phone Number: (213) 644 9500  x 110\n\n5.    REPORTS. \n\n5.1  If Licensee chooses option (B), (D) or (E) as specified in Exhibit A,\nLicensee must provide to Apple reports in the form set forth on Exhibit E, as it\nmay be modified from time to time by Apple by notice to Licensee. These\nreports shall be considered confidential information and used for Apple internal\nrevenue reporting purposes only. \n\n5.2  If Licensee chooses option (D) or option (E) as specified in Exhibit A,\nLicensee must provide to Apple reports in the form set forth on Exhibit F, as it\nmay be modified from time to time by Apple by notice to Licensee. These reports\nshall be considered confidential information and used for Apple internal revenue\nreporting purposes only. \n\n5.3  If Licensee chooses option (E) as specified in Exhibit A, Licensee must\nprovide royalty reports to Apple as specified in Paragraph 4.3 above.  \n\n6.   DELIVERY OF MacTCP. \n\nOne copy of the Apple Software shall be delivered by Apple to Licensee upon the\nexecution of this Agreement by both parties and receipt of Licensee's check for\nthe license fee for the initial term. \n\n7.   DISCLAIMER OF WARRANTY. \n\nApple licenses the Apple Software to Licensee on an \"AS IS\" basis.  APPLE MAKES\nNO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED\nWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING\nTHE APPLE SOFTWARE OR ITS USE AND OPERATION ALONE OR IN COMBINATION WITH\nLICENSEE PROGRAMS. Neither Licensee, its employees, agents, or Distributors have\nany right to make any other representation, warranty or promise with respect to\nthe Apple Software. \n\n8.   LIMITATION OF LIABILITY. \n\nIn no event shall Apple be liable for special, incidental or consequential\ndamages arising from the use, sale or distribution of Apple Software by Licensee\nor any third party, whether under theory of \n\n\n                                          5\n\n\n                                                                       EFBO91093\n\ncontract, tort (including negligence), product liability or otherwise.  In no\nevent shall Apple's liability under this Agreement exceed the amount of $500.  \n\n9.   LABELING. \n\n9.1  As a condition of Apple's license grant in Paragraph 2, Licensee shall not\nremove any copyright notices or proprietary legends contained within the Apple\nSoftware.  Further, Licensee shall include a copyright notice in Licensee\nPrograms reflecting the copyright ownership of Licensee and Apple as follows: \n\n          Copyright -C- 19__ [Licensee Name] and its licensors. \n          All rights reserved. \n\n9.2  To the extent permitted by applicable law, Licensee shall also include in a\nconspicuous place in the manual and in bold letters, a warranty disclaimer as\nfollows: \n\n          \"[Licensee Name]'s LICENSOR(S) MAKES NO WARRANTIES, EXPRESS\n          OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED\n          WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR\n          PURPOSE, REGARDING THE SOFTWARE. [Licensee Name]'s\n          LICENSOR(S) DOES NOT WARRANT, GUARANTEE OR MAKE ANY\n          REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE\n          OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY,\n          RELIABILITY, CURRENTNESS OR OTHERWISE. THE ENTIRE RISK AS TO\n          THE RESULTS AND PERFORMANCE OF THE  SOFTWARE IS ASSUMED BY\n          YOU.  THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED\n          BY SOME JURISDICTIONS. THE ABOVE EXCLUSION MAY NOT APPLY TO\n          YOU.\" \n\nLicensee shall also include the following disclaimer of liability language in\nthe same place: \n\n          \"IN NO EVENT WILL [Licensee Name]'s LICENSOR(S), AND THEIR\n          DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY\n          [Licensee Name]'s LICENSOR) BE LIABLE TO YOU FOR  ANY\n          CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING\n          DAMAGES FOR LOSS OF  BUSINESS PROFITS, BUSINESS\n          INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE)\n          ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN\n          IF [Licensee Name]'s LICENSOR HAS BEEN ADVISED OF THE\n          POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO\n          NOT ALLOW THE  EXCLUSION OR LIMITATION  OF LIABILITY FOR\n          CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS\n          MAY NOT APPLY TO YOU. [Licensee Name]'s Licensor's liability\n          to you for actual damages from any cause whatsoever, and\n          regardless of the form of the action (whether in contract,\n          tort (including negligence), product liability or\n          otherwise), will be limited to $50.\" \n\n9.3  During the term of this Agreement, Apple may revise the notice or\ndisclaimer language required by Paragraph 9.2 above.  Licensee shall incorporate\nsuch revisions within ninety (90) days of written notice from Apple. \n\n9.4  Licensee may not use any Apple trademarks, service marks, trade names, or\nlogos in any advertising, brochures, or promotional materials except to denote \ncompatibility with Apple products in the form set forth in Apple's Third Party  \nTrademark Guidelines. \n\n\n                                          6\n\n\n                                                                       EFBO91093\n\n9.5  Licensee shall not refer to the product name \"TCP\/IP Connection for\nMacintosh\" in packaging or other advertising collateral materials for the\nLicensee Programs. \n\n10.  INDEMNIFICATION BY APPLE. \n\nApple shall indemnify, defend and hold Licensee harmless from and against any\nclaim that the Apple Software infringes any United States patent or copyright of\nany third party.  Licensee shall promptly notify Apple of any such claim.  In no\nevent shall Apple's liability to Licensee for damages, losses, liabilities,\ncosts and expenses (including reasonable fees of attorneys and other\nprofessionals) under this Paragraph 10 exceed the total amount paid by Licensee\nto Apple for the license granted hereunder. Notwithstanding the foregoing, Apple\nwill have no liability under this Paragraph 10 for any claim or suit of\ncopyright, trade secret or patent infringement where such claim or suit is based\nupon the combination, operation, or use of the Apple Software with Licensee\nPrograms, if such infringement would have been avoided but for such combination,\noperation or use. \n\n11.  INDEMNIFICATION BY LICENSEE. \n\nExcept as provided in Paragraph 10, Licensee shall indemnify, defend at Apple's\nrequest, and hold Apple harmless from any and all claims, damages, losses,\nliabilities, costs and expenses (including reasonable fees of attorneys and\nother professionals) arising out of or in connection with Licensee's\ndistribution of the Apple Software in combination with Licensee Programs or the\nuse of Licensee Programs in combination with Apple Software. Licensee shall\npromptly notify Apple of any such claim.  \n\n12.  EXPORT. \n\nLicensee certifies that it will not distribute the Apple Software in\ncontravention of any laws or regulations relating to export control, including\nbut not limited to the United States Export Administration Act and associated\nregulations. \n\n13.  TERMINATION FOR CAUSE. \n\nIf any breach of this Agreement by Licensee continues for more than thirty (30)\ndays after receipt of written notice of such breach by Apple, Apple may\nterminate this Agreement by written notice to Licensee, whereupon this license\nand all rights granted to Licensee herein shall immediately cease. Waiver by\nApple of any breach by Licensee shall not be deemed to be a waiver of any other\nor subsequent breach. The rights of Apple under this clause are in addition to \nany other rights and remedies provided by law or under this Agreement. \n\n14.  RELATIONSHIP OF THE PARTIES. \n\nNothing stated in this Agreement will be construed as creating the relationships\nof joint venturers, partners, employer and employee, franchisor and franchisee,\nmaster and servant, or principal and agent. \n\n15.  ASSIGNMENT. \n\nThis Agreement may not be assigned by Licensee without the prior written consent\nof Apple. \n\n                                          7\n\n\n                                                                       EFBO91093\n\n16.  NOTICES. \n\nAny notice required under this Agreement shall be deemed given: (i) when\ndelivered personally; (ii) by telex or facsimile; (iii) five (5) days after\nhaving been sent by registered or certified mail, return receipt requested,\npostage prepaid, (iv) by Internet to the address set forth on the first page of\nthis Agreement for notice to Licensee; or (v) by AppleLink, to the address of\nSW.LICENSE. for any notice to Apple and to the address set forth on the first\npage of this Agreement for any notice to Licensee. All communications will be\nsent to the address noted on the first page of this Agreement. \n\n18.  GOVERNING LAW. \n\nThis Agreement shall be governed by and construed in accordance with the laws of\nthe State of California as applied to agreements entered into and to be\nperformed entirely within California  between California residents.  Any\nlitigation or other dispute resolution between the parties relating to this\nAgreement shall take place in the Northern District of California.  The parties\nconsent to the personal jurisdiction of, and venue in, the state and federal\ncourts within that District. \n\n19.  COMPLETE UNDERSTANDING. \n\nThis Agreement including all Exhibits attached constitutes the entire Agreement \nbetween the parties concerning the use and distribution of Apple Software. Any\nwaiver or amendment of any provision of this Agreement shall be effective only\nif in writing and signed by authorized representatives of both parties. \n\nLICENSEE:  EARTHLINK NETWORK, INC.      APPLE COMPUTER, INC. \n          ------------------------\n\nSignature:  By:  \/s\/ Sky Dayton         Signature:  \/s\/ Rhonda Middleton\n          ----------------------------              ----------------------------\n\nPrinted Name and Title: Sky Dayton,     Title:  Administrator\n                        Its President \n                        --------------\n\nDate Signed:  September 26, 1995        Date Signed (the \"Effective Date\"):\n             -------------------------              October 2, 1995\n                                                    ----------------------------\n\n\n\n\n                                          8\n\n\n                                                   (RETURN TWO SIGNED ORIGINALS)\n\n                               EXHIBIT A: LICENSE FEES\n\nSELECT EACH OF THE OPTIONS YOU WANT BY MARKING THE APPROPRIATE OPTION(S) WITH AN\n\"X\" IN THE SPACE INDICATED. RECORD THE ASSOCIATED FEES IN THE RIGHT HAND COLUMN,\nAND THEN TOTAL THE FEES FOR ALL SELECTED OPTIONS. \n\n1.        REQUIRED: CHOOSE ONLY ONE OF (A) OR (B) \n\nOPTION    DESCRIPTION                        FEE             SELECT       AMOUNT\n- --------------------------------------------------------------------------------\n(A)       Basic MacTCP software              \n          NO requirement for reporting of \n          shipped units                      $5,000 per year    X       5,000.00\n                                                              -----     --------\n(B)       Basic MacTCP software \n          Requirement for reporting of \n          shipped units                      $5,000 per year \n                                                              -----     --------\n2.        OPTIONAL: CHOOSE (C) \n\nOPTION    DESCRIPTION                        FEE             SELECT       AMOUNT\n- --------------------------------------------------------------------------------\n(C)       MacSNMP Extension for MacTCP \n          software                           $2,500 per year \n                                                              -----     --------\n\n3.        Optional: CHOOSE ONLY ONE OF (D) OR (E)\n\nOPTION    DESCRIPTION                        FEE             SELECT       AMOUNT\n- --------------------------------------------------------------------------------\n(D)       Limited Site License Program \n          Option Prerequisite choice of\n          Option B, above                    $5,000 per year\n                                                              -----     --------\n\n(E)       Site License Program Option \n          Prerequisite choice of Option B,\n          above                              $500 per year \n                                             plus             -----     --------\n                                             per-unit \n                                             royalties \n\nOption (E) per unit royalties are determined according to the following\nschedule, based on the CUMULATIVE ANNUAL number of end-user licenses for Apple\nSoftware granted by Licensee to End-Users under Licensee Site License Programs. \nEnd-user licenses granted on a single-user basis, or under the terms of a\nLicensee Volume License Program do NOT count towards the Option (E) royalty\ntier. \n\n     If number of licenses granted is \n     more than      but not greater than          the per-unit royalty is       \n     --------------------------------------------------------------------\n             1                     2,000                            $0.00\n         2,001                     5,000                            $1.00 \n         5,001                    25,000                            $0.75 \n        25,001                   100,000                            $0.60 \n       100,001 and above                                            $0.50 \n\n4. TOTAL AMOUNTS FOR OPTIONS SELECTED             TOTAL FEES PAID       5,000.00\n                                                                        --------\n\n\n                                                                       EFBO91093\n                              EXHIBIT B: APPLE SOFTWARE\n\n\"Apple Software\" referenced in Subparagraph 1.1 of the Agreement means Version\n2.0.6 of Apple's Software Program known as MacTCP consisting of the following:  \n\nBASIC MacTCP FILES: \n\n     MacTCP 2.0.6                                 (REQUIRED) \n     MacTCP Token Ring Extension 2.0.2            (REQUIRED) \n     MacTCP Ping 2.0.2                            (OPTIONAL) \n\nIf Licensee desires to distribute the MacTCP 2.0.6 software, then Licensee must \nalso distribute the MacTCP Token Ring Extension 2.0.2 with Licensee Programs. \nMacTCP Ping 2.0.2 is not required, but may be distributed with Licensee\nPrograms. \n\nMacSNMP EXTENSION FOR MacTCP SOFTWARE FILES: \n\n     SNMP Macintosh Agent                         (REQUIRED) \n     SNMP MacTCP Agent                            (REQUIRED) \n     SNMP Manager                                 (REQUIRED) \n     SNMP TCP\/IP Transport                        (REQUIRED) \n     Library Manager Resources                    (REQUIRED) \n     Shared Library Manager                       (REQUIRED) \n     SNMP Preferences                             (OPTIONAL) \n     MacSNMP Client 1.0.2                         (OPTIONAL) \n\nIf Licensee chooses option (C) in Exhibit A \"MacSNMP Extension for MacTCP\"\nsoftware files, then Licensee must distribute the SNMP Macintosh Agent, SNMP\nMacTCP Agent, SNMP Manager, SNMP TCP\/IP Transport files, Library Manager\nResources, and Shared Library Manager with Licensee Programs. SNMP Preferences\nand MacSNMP Client 1.0.2 are not required, but may be distributed with Licensee \nPrograms. \n\nMacTCP 2.0.2 DOCUMENTATION DISK \n\n\n                                          2\n\n\n                                                                       EFBO91093\n\n                             EXHIBIT C: LICENSEE PROGRAMS\n\n                     SECTION BELOW MUST BE COMPLETED BY LICENSEE\n\n\"Licensee Programs\" referenced in Subparagraph 1.5 of the Agreement means all of\nthe following: \n\n1.   Licensee Program (Title):  EARTHLINK TOTALACCESS\n                              --------------------------------------------------\n\n2.   Description of Licensee Program: \n\n          INTERNET CONNECTIVITY SOFTWARE\n\n1    Licensee Program (Title): \n                                ------------------------------------------------\n\n2.   Description of Licensee Program: \n\n\n\n\n1.   Licensee Program (Title): \n                               -------------------------------------------------\n\n2.   Description of Licensee Program:  \n\n\n                                          3\n\n\n                                                                       EFBO91093\n\n\n                          EXHIBIT D: SOFTWARE LICENSE \n\nPLEASE READ THIS LICENSE CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE\nSOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO\nNOT AGREE TO THE TERMS OF THIS LICENSE, PROMPTLY RETURN THE UNUSED SOFTWARE TO\nTHE PLACE WHERE YOU OBTAINED IT AND YOUR MONEY WILL BE REFUNDED. \n\n1.   LICENSE. The application, demonstration, system and other software\naccompanying this License, whether on disk, in read only memory, or on any other\nmedia (the \"Software\") the related documentation and fonts are licensed to you\nby [Licensee Name]. You own the disk on which the Software and fonts are\nrecorded but [Licensee Name] and\/or [Licensee Name]'s Licensors retain title to\nthe Software, related documentation and fonts. This License allows you to use\nthe Software and fonts on a single Apple computer and make one copy of the\nSoftware and fonts in machine-readable form for backup purposes only. You must\nreproduce on such copy the [Licensee Name] copyright notice and any other\nproprietary legends that were on the original copy of the Software and fonts.\nYou may also transfer all your license rights in the Software and fonts, the\nbackup copy of the Software and fonts, the related documentation and a copy of\nthis License to another party, provided the party reads and agrees to accept the\nterms and conditions of this License. \n\n2.   RESTRICTIONS. The Software contains copyrighted material, trade secrets and\nother proprietary material. In order to protect them, and except as permitted by\napplicable legislation, you may not decompile, reverse engineer, disassemble or\notherwise reduce the Software to a human-perceivable form. You may not modify,\nnetwork, rent, lease, loan, distribute or create derivative works based upon the\nSoftware in whole or in part. You may not electronically transmit the Software\nfrom one computer to another or over a network. \n\n3.   TERMINATION. This License is effective until terminated. You may terminate\nthis License at any time by destroying the Software, related documentation and\nfonts and all copies thereof. This License will terminate immediately without\nnotice from [Licensee Name] if you fail to comply with any provision of this\nLicense. Upon termination you must destroy the Software, related documentation\nand fonts and all copies thereof. \n\n4.   EXPORT LAW ASSURANCES. You agree and certify that neither the Software nor\nany other technical data received from [Licensee Name], nor the direct product\nthereof, will be exported outside the United States except as authorized and as\npermitted by the laws and regulations of the United States. If the Software has\nbeen rightfully obtained by you outside of the United States, you agree that you\nwill not re-export the Software nor any other technical data received from\n[Licensee Name], nor the direct product thereof, except as permitted by the laws\nand regulations of the United States and the laws and regulations of the\njurisdiction in which you obtained the Software. \n\n5.   GOVERNMENT END USERS. If you are acquiring the Software and fonts on behalf\nof any unit or agency of the United States Government, the following provisions\napply. The Government agrees: \n     (i) if the Software and fonts are supplied to the Department of Defense\n(DoD), the Software and fonts are classified as \"Commercial Computer Software\"\nand the Government is acquiring only \"restricted rights\" in the Software, its\ndocumentation and fonts as that term is defined in Clause 252.227-7013(c)(1) of\nthe DFARS; and \n     (ii) if the Software and fonts are supplied to any unit or agency of the\nUnited States Government other than DoD, the Government's rights in the\nSoftware, its documentation and fonts will be as defined in Clause\n52.227-19(c)(2) of the FAR or, in the case of NASA, in Clause 18-52.227-86(d)\nof the NASA Supplement to the FAR.\n\n6.   LIMITED WARRANTY ON MEDIA. [Licensee Name] warrants the diskettes and\/or\ncompact disc on which the Software and fonts are recorded to be free from\ndefects in materials and workmanship under normal use for a period of ninety\n(90) days from the date of purchase as evidenced by a copy of the receipt.\n[Licensee Name]'s entire liability and your exclusive remedy will be replacement\nof the diskettes and\/or compact disc not meeting [Licensee Name]'s limited\nwarranty and which is returned to [Licensee Name] or an [Licensee Name]\nauthorized representative with a copy of the receipt. [Licensee Name] will have\nno responsibility to replace a disk\/disc damaged by accident, abuse or\nmisapplication. ANY IMPLIED WARRANTIES ON THE DISKETTES AND\/OR COMPACT DISC,\nINCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR\nPURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.\nTHIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER\nRIGHTS WHICH VARY BY JURISDICTION.\n\n\n                                          4\n\n                                                                       EFBO91093\n\n7.   DISCLAIMER OF WARRANTY ON APPLE SOFTWARE.  You expressly acknowledge and\nagree that use of the Software and fonts is at your sole risk. The Software,\nrelated documentation and fonts are provided \"AS IS\" and without warranty of any\nkind and [Licensee Name] and [Licensee Name]'s Licensor(s) (for the purposes of\nprovisions 7 and 8, [Licensee Name] and [Licensee Name]'s Licensor(s) shall be\ncollectively referred to as \"[Licensee Name]\") EXPRESSLY DISCLAIM ALL \nWARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED \nWARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. \n[LICENSEE NAME] DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE \nWILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE \nUNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE AND THE FONTS \nWILL BE CORRECTED. FURTHERMORE, [LICENSEE NAME] DOES NOT WARRANT OR MAKE ANY \nREPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE \nAND FONTS OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, \nRELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY \n[LICENSEE NAME] OR AN [LICENSEE NAME] AUTHORIZED REPRESENTATIVE SHALL CREATE A \nWARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE \nSOFTWARE PROVE DEFECTIVE, YOU (AND NOT [LICENSEE NAME] OR AN [LICENSEE NAME] \nAUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, \nREPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF \nIMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. \n\n8.   LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE, SHALL\n[LICENSEE NAME] BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES\nTHAT RESULT FROM THE USE OR INABILITY TO USE THE SOFTWARE OR RELATED\nDOCUMENTATION, EVEN IF [LICENSEE NAME] OR AN [LICENSEE NAME] AUTHORIZED\nREPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME\nJURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR\nINCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT\nAPPLY TO YOU. \nIn no event shall [Licensee Name]'s total liability to you for all damages,\nlosses, and causes of action (whether in contract, tort (including negligence)\nor otherwise) exceed the amount paid by you for the Software and fonts. \n\n9.   CONTROLLING LAW AND SEVERABILITY. This License shall be governed by and\nconstrued in accordance with the laws of the United States and the State of\nCalifornia, as applied to agreements entered into and to be performed entirely\nwithin California between California residents. If for any reason a court of\ncompetent jurisdiction finds any provision of this License, or portion thereof,\nto be unenforceable, that provision of the License shall be enforced to the\nmaximum extent permissible so as to effect the intent of the parties, and the\nremainder of this License shall continue in full force and effect. \n\n10.  COMPLETE AGREEMENT. This License constitutes the entire agreement between\nthe parties with respect to the use of the Software, the related documentation\nand fonts, and supersedes all prior or contemporaneous understandings or\nagreements, written or oral, regarding such subject matter. No amendment to or\nmodification of this License will be binding unless in writing and signed by a\nauthorized representative of [Licensee Name]. \n\n\n                                          5\n\n\n                                                                       EFBO91093\n\n                          EXHIBIT E: LICENSEE UNITS REPORTS \n\nLicensee will provide a report of shipped unit figures of Licensee Programs \nfor the previous twelve (12) month period at the time of execution of this \nAgreement and subsequently on the thirty first Agreement (31st) of December \nof each renewal term of this Agreement in the following form: \n\n\n\nREPORT OF SHIPPED UNITS- MacTCP  \nFOR THE PERIOD JANUARY 1, 199X - DECEMBER 31, 199X \n\nCOMPANY NAME: \n              -----------------------------------------\nPRODUCT NAME: \n              -----------------------------------------\nUNITS SHIPPED: \n              -----------------------------------------\n\n\nThe reports should be sent to the following address: \n\n     Apple Computer, Inc. \n     Attention: MacTCP Product Manager \n     M\/S 303-2E \n     3 Infinite Loop \n     Cupertino, CA 95014 \n\n\n                                          6\n\n\n                                                                       EFBO91093\n\n\n                  EXHIBIT F: LICENSEE (LIMITED) SITE LICENSE REPORTS\n\nLicensee will provide a report of (Limited) Site Licenses of Licensee Programs \non the thirty first (3lst) of December of each renewal term of this Agreement in\nthe following form: \n\nREPORT OF (LIMITED) SITE LICENSE UNITS SHIPPED - MacTCP \nFOR THE PERIOD JANUARY 1, 199X - DECEMBER 31, 199X \n\nCOMPANY NAME:  [LICENSEE NAME] \n                               --------------------------------------------\n\nPRODUCT NAME:  [LICENSEE PROGRAM NAME] \n                                       ------------------------------------\n\nREPEAT FOR EACH (LIMITED) SITE LICENSE EXECUTED OR RENEWED WITH END-USER DURING \nTHE REPORTING PERIOD: \n\nCOMPANY NAME: [END-USER NAME]\n                              --------------------------------------------- \n\nCOMPANY ADDRESS: [END-USER POSTAL MAILING ADDRESS] \n                                                   ------------------------\n\nCONTACT NAME: [END-USER CONTACT PERSON NAME] \n                                             ------------------------------\n\nNUMBER AUTHORIZED USERS: [MAXIMUM AUTHORIZED USERS] \n                                                    -----------------------\n\n\nThe reports should be sent to the following address: \n\nApple Computer, Inc. \nAttention:  MacTCP Product Manager \nM\/S: 303-2E \n3 Infinite Loop \nCupertino, CA 95014 \n\n\n                                          7 \n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6722,7397],"corporate_contracts_industries":[9508,9510],"corporate_contracts_types":[9613,9619],"class_list":["post-42798","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-apple-computer-inc","corporate_contracts_companies-earthlink-inc","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42798","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=42798"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42798"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42798"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42798"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}