{"id":42821,"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-license-order-form-netscape-communications-corp-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-license-order-form-netscape-communications-corp-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-license-order-form-netscape-communications-corp-and.html","title":{"rendered":"Software License Order Form &#8211; Netscape Communications Corp. and Concentric Network Corp."},"content":{"rendered":"<pre>\n                                SOFTWARE LICENSE\n                                   ORDER FORM\n                          (WITH TERMS AND CONDITIONS)\n \n                                  NO. 002933\n \n \nConcentric Network Corporation ('LICENSEE')\n--------------------------------------------------------------------------------\n               Full legal name of entity signing this Order Form\n\n10590 N. Tantau Avenue\n--------------------------------------------------------------------------------\n \nCupertino                          California               95014  U.S.A.\n--------------------------------------------------------------------------------\nCity                               State                    Zip \/ Country\n \n---------------------------\nContact Person: Mike Anthofer   Telephone: (408) 342-2800    Fax: (408) 342-2876\n                -------------              --------------         --------------\n\nLicensee is incorporated in the state\/country of Florida\n                                                 -------------------------------\n \nTERRITORY (Country):  United States and English-speaking Canada  ('TERRITORY')\n \n \nIMPORTANT NOTICE: UPON EXECUTION BY THE PARTIES, LICENSEE WILL HAVE THE RIGHT TO\nUSE THE NETSCAPE PRODUCTS INDICATED IN ATTACHMENT A ('PRODUCTS') SOLELY IN\nCONNECTION WITH PERFORMING ITS OBLIGATIONS ARISING FROM THE 'CO-MARKETING\nSERVICES AGREEMENT' BETWEEN NETSCAPE AND LICENSEE OF EVEN DATE HEREWITH ('CO-\nMARKETING AGREEMENT'), AT THE PRICING SET FORTH HEREIN. BY SIGNING THIS ORDER\nFORM, LICENSEE AGREES TO ALL THE TERMS AND CONDITIONS ATTACHED (COLLECTIVELY THE\n'AGREEMENT'). THIS AGREEMENT DOES NOT ALLOW ANY FULFILLMENT BY A RESELLER. IF\nLICENSEE DESIRES FULFILLMENT BY A RESELLER, LICENSEE MUST NEGOTIATE DIRECTLY\nWITH A NETSCAPE AUTHORIZED RESELLER.\n \nDEFINITIONS: ALL CAPITALIZED TERMS IN THIS AGREEMENT WILL HAVE THE MEANINGS\nSPECIFIED IN THIS AGREEMENT OR, IF NOT EXPRESSLY DEFINED IN THIS AGREEMENT, THEY\nWILL HAVE THE MEANINGS SPECIFIED IN THE CO-MARKETING AGREEMENT.\n \n \nNETSCAPE COMMUNICATIONS                   CONCENTRIC NETWORK CORPORATION\nCORPORATION ('NETSCAPE')\n\n    \/s\/Mike Homer                             \/s\/Henry R. Nothhaft\nBy: ________________________________      By: __________________________________\n               Signature                                 Signature\n\n       Mike Homer                                Henry R. Nothhaft\nName: ______________________________      Name: ________________________________\n              Print or Type                             Print or Type\n\n       SVP Marketing                             Pres. &amp; CEO\nTitle: _____________________________      Title: _______________________________\n\n                     23 June 97                 23 June 97 \nDate of Acceptance: ________________      Date: ________________________________\n                   ('EFFECTIVE DATE')\n \n          501 E. Middlefield Rd.\n Address: __________________________\n\n Mountain View, CA 94043 \n ___________________________________\n \n\n \nAGREEMENT CONSISTS OF:\n \n1. Software License Order Form\n2. Attachment A - Products and Pricing\n3. Attachment B - Terms and Conditions\n4. Attachment C - Expert Alliance Support Program\n\n                                       2\n\n \n                                  ATTACHMENT A\n\n                              PRODUCTS AND PRICING\n\n\n\n1.   Products ('PRODUCTS'):\n\n\n\n------------------------------------------------------------------------------- \nPRODUCTS (DESCRIPTION,            LICENSEE\nPLATFORMS &amp; LANGUAGES)         ACKNOWLEDGMENT      PER USER     SUBSCRIPTION\n                                (INITIAL FOR         FEE**        FEE\/USER **\n                             RECEIPT OF PRODUCT)*\n--------------------------------------------------------------------------------\n                                                       \nSERVER PRODUCT(S)\n                                                      [*]       [*] year \nSuiteSpot                                                       \n                                                                \n                                                                \n------------------------------------------------------------------------------- \n\n                                        \n*  Licensee acknowledges that it has already received the Product next to its\n   initials and agrees that Netscape has fulfilled its delivery obligation for\n   such Product.\n\n** Above pricing [*] in any end user license agreement included with the\n   Products. This pricing is based on a [*], Licensee will [*]. Netscape agrees\n   not to charge Licensee any license fees until January 1, 1998. Above pricing\n   applies to SuiteSpot 3.0 and the next Major Update and is valid until the\n   expiration of the initial Term under the Co-Marketing Agreement.\n\n2.  Support:  Netscape shall provide Licensee with [*] support program [*] of\nthe Co-Marketing Agreement. Terms of such support are set forth in Attachment C\nhereto.\n\n3.  Deliverables:  Netscape will deliver to Licensee 1 master reproduction copy\nof each Product above and associated documentation, in any format generally\navailable from Netscape as of the Effective Date.  All deliveries shall be\nF.C.A. Netscape origin (INCOTERMS 1990).\n\n Ship To Address for Deliverables                    Bill To Address\n----------------------------------              -------------------------\n      (Not a P.O. address)\n \n10590 N. Tantau Avenue                          10590 N. Tantau Avenue\nCupertino, CA  95014                            Cupertino, CA  95014\nAttention: Mike Anthofer                        Attention: Mike Anthofer\nTelephone: (408) 342-2800                       Telephone: (408) 342-2800\n                                                Fax: (408) 342-2876\n\n\nSales Tax Resale\/Exemption \n Certificate No. (if applicable): ____________________________________\n                  (ORIGINAL CERTIFICATE MUST BE FURNISHED TO NETSCAPE)\n\n\nVAT Registration No. (if Europe, Middle East or Africa): \n                                                         _______________________\n\nNetscape Sales Rep:  Jeff Shardell\n\n\n[*] Certain information on this page has been omitted and filed separately \nwith the Securities and Exchange Commission. Confidential treatment has been \nrequested with respect to the omitted portions.\n\n\n                                       3\n\n \n                                  ATTACHMENT B\n                              TERMS AND CONDITIONS\n\n1.  FEES AND PAYMENT SCHEDULE. [*] Netscape shall invoice Licensee based on the\nmonthly reports submitted pursuant to Section 6.  All invoiced amounts are due\nand payable net 30 of date of invoice. Past due amounts shall bear interest at\nthe lower of 1-1\/2% per month or the maximum rate allowed by law until paid in\nfull. All prices in Attachment A are in U.S. Dollars and exclude any applicable\ntaxes.  Licensee is responsible for all applicable national, state and local\ntaxes, value added or sales taxes, levies and assessments pertaining to the sale\nof the Products (except taxes based upon Netscape's net income from the sale of\nthe Products to Licensee) except to the extent Licensee provides Netscape with a\nvalid tax exemption certificate.\n\n2.  PRODUCT LICENSE.  Subject to the terms and conditions in this Agreement,\nNetscape grants Licensee the right to make, without change, and use internally\nthat number of copies of the Products necessary to meet its obligations under\nthe Co-Marketing Agreement to provide Services to Users of Customers.  A 'USER'\nmeans any employee, consultant or other agent performing services for the\nbenefit of a Customer who has access in any way to any Server Product or update\nthereto, as of the point in time when such Products are first made available for\naccess by such User.  Subject to Section 3 below, Licensee may copy the Products\nin any combination.  Licensee may also make, without change,  that number of\ncopies of the documentation provided with the Products necessary to support the\nProducts copied.  All copies of Products and related documentation are for\nLicensee's internal use only and may not be resold or redistributed.\n'LICENSEE'S INTERNAL USE' shall mean internal use by Licensee in accordance with\nthe terms of this Agreement and the Co-Marketing Agreement.  Each copy of\nProducts and related documentation must contain all notices regarding\ncopyrights, trademarks and other proprietary rights in the materials originally\nprovided to Licensee.  All Products and copies hereunder are subject to the\n'License Grant' terms of the then current end user license agreement included\nwith such Products ('EULAS'), as amended by this Agreement. The applicable\n'License Grant' terms in the current EULA are set forth in this Agreement.  In\nthe event of an inconsistency between this Agreement and any then current EULA\nwith respect to a subject matter other than the 'License Grant' terms, the terms\nof this Agreement shall govern.\n\n3.  RELATIONAL DATABASE AND NETSCAPE CLIENT PRODUCTS.  If the Product licensed\nhereunder includes an Informix database product, then notwithstanding Section 2\nabove, Licensee may only install one copy of the database product on a single\ncomputer upon which the Product is installed.   Except for the Enterprise Server\nPro and LiveWire Pro, Licensee may only use the database as a repository for the\nProduct's data and may not be used for any other purpose.  The database may be\naccessed only by tools intended for use with the Product.   The Informix\ndatabase may be used only (i) for the purpose of developing Netscape web server\napplications ('Web Server Applications'); and (ii) to reproduce and distribute a\nsingle copy of the runtime version of the Informix database for use solely as a\ncomponent of a Web Server Application and only on a single computer for up to\nthirty-two (32) connections (the 'Deployment System'). A 'connection' means a\ncomputer process generated by the designated computer to service on-line users\nof the Web Server Applications. A single connection may support a multitude of\nusers, the exact number of which depends on the particular circumstances.\nMultiple Web Server Applications may reside on the Deployment System, provided\nthat all such applications access only the single copy of the Informix Developer\nDatabase and all Web Server Applications together use no more than thirty-two\n(32) connections. Licensee may use the Informix database to develop any number\nof Web Server Applications, but once Licensee has distributed a single runtime\nversion of the Informix database in any one Web Server Application, Licensee may\nnot distribute the Informix database in another copy of that Web Server\nApplication or as part of any subsequent Web Server Application. In order to\nprovide a database product as part of Licensee's Web Server Application either\nLicensee must purchase a separate LiveWire Pro license for each recipient, or\neach recipient to whom Licensee distributes a Web Server Application must\nlicense its own copy of a database product. Licensee may not establish direct\nconnections with the Informix database other than through the Enterprise Pro or\nLiveWire Pro software or use the Informix database for any purpose other than\ndeveloping and executing Web Server Applications.\n\nLicensee may use the Visigenic VisiBroker development component of the Product\non no more than one computer by no more than one developer.  The single allowed\ndeveloper may use both VisiBroker for C++ and VisiBroker for Java. Licensee may\nuse the Visigenic runtime component of the Software to invoke object\nimplementations, provided that the invoking application (i) is one or more\ncomponents of the Product or (ii) interoperates with and runs on the same\ncomputer as the Product.  If the Product is Enterprise Pro, Licensee may run the\nserver-side JavaScript compiler on an unlimited number of computers.  If the\nProduct contains header files, Licensee may copy and use the header files solely\nto create and distribute programs to interface with the server Application\nProgram Interfaces.  Licensee may not modify the header files.  If the Product\ncontains Java classes other than classes which are a part of the \n\n[*] Certain information on this page has been omitted and filed separately \nwith the Securities and Exchange Commission. Confidential treatment has been \nrequested with respect to the omitted portions.\n\n\n                                       4\n\n \nProduct's programming interface ('Sample Java Classes'), Licensee may copy and\nuse the Sample Java Classes solely to create and distribute programs to\ninterface with the Products.\n\nThe standard Netscape client product ('SNCP') or the premium Netscape client\nproduct ('PNCP') is bundled with the Server Product ordered hereunder.  Licensee\nmay make copies of such SNCP and\/or PNCP only in the same quantities as it\ncopies the Server Product(s) with which such SNCP or PNCP are bundled, and all\nsuch copies must be made for the sole purpose of using the applicable Server\nProduct(s) in accordance with this Agreement and not to obtain additional copies\nof the SNCP or PNCP.\n\n4.  LICENSE RESTRICTIONS.  Licensee may make a single copy of the Products for\narchival purposes, provided such copy contains all of the original Products'\nproprietary notices.  Licensee shall not modify, translate, reverse engineer,\ndecompile, disassemble (except solely to the extent an applicable statute\nexpressly and specifically prohibits such restrictions), or create derivative\nworks based on the Products.  Licensee may not copy the Products other than as\nspecified in this Agreement.  Licensee shall not publish or provide any results\nof benchmark tests run on the Products to a third party without Netscape's prior\nwritten consent; rent, lease, grant a security interest in, or otherwise\ntransfer rights to the Products; or remove any proprietary notices or labels on\nthe Products.\n\n5.  TITLE.  Title, ownership rights and intellectual property rights in the\nProducts shall remain in Netscape and\/or its suppliers.  The Products are\nprotected by copyright and other intellectual property laws and by international\ntreaties.  Title and related rights in the content accessed through the Products\nis the property of the applicable content owner and is protected by applicable\nlaw.\n\n6.  RECORDS; REPORTING; AUDIT.  Licensee shall maintain accurate records\nreflecting the number of Customers and Users, the quantity of copies made of the\nProducts, a description of the Products, the version number of the Products, the\nplatforms and the language of the Products.  In addition to the reports required\nunder the Co-Marketing Agreement, Licensee agrees, subject to the first sentence\nin Section 1 of this Attachment B, to provide Netscape with monthly reports\nwhich include the number of Users and number of subscriptions therefor.  Such\nreports shall be received by Netscape within 15 days after the end of any month\nduring any calendar quarter.  With respect to the third month in any calendar\nquarter, Licensee agrees to provide Netscape with an estimate of the number of\nUsers and number of subscriptions therefor in the last week of such third month,\nand, within 15 days after the end of such third month, provide Netscape with a\nmonthly report stating the final number of Users and number of subscriptions\ntherefor.  Netscape may conduct an audit to verify compliance with the terms of\nthis Agreement, which shall be conducted at Netscape's expense unless the\nresults establish that inaccuracies in Licensee's reports have resulted in\nunderpayment to Netscape of more than 5% of the amount actually due, in which\ncase Licensee shall pay all amounts due and bear the expense of the audit.\n\n7.  SUPPORT.   Netscape will provide support to Licensee in accordance with\nNetscape's  then-current support terms and conditions for the support program\nselected by Licensee on Attachment A, for the number of Users set forth in\nAttachment A for the period for which Netscape has received payment therefor.\n\n8.  SOFTWARE SUBSCRIPTION.  Licensee shall be entitled to  software subscription\n('SOFTWARE SUBSCRIPTION') for the number of Users reported in Licensee's monthly\nreport under Section 6 provided Licensee purchases subscription concurrent with\npurchase of a User license.  Software Subscription entitles Licensee to the\nbenefits set forth in Netscape's then-current Software Subscription program,\nincluding major and minor updates and the ability to switch operating system\nplatforms at no additional charge. Subscriptions not purchased concurrent with\npurchase of a User license and subscription fees for subsequent years shall be\nat Netscape's then current charges.\n\n9.  INDEMNITY.  (a)  Netscape shall defend or settle, at its option, any action\nbrought against Licensee to the extent it is based on a claim that use or\nreproduction by Licensee of the Netscape-owned portion of the Product hereunder\ndirectly infringes any valid patent as of the Effective Date, copyright or trade\nsecret in the United States and\/or Canada ('Intellectual Property Rights').\nNetscape will pay resulting costs, damages and legal fees finally awarded\nagainst Licensee in such action which are attributable to such claim provided\nthat: (i) Licensee promptly notifies Netscape in writing of any such claim; (ii)\nNetscape has sole control of the defense and all related settlement\nnegotiations; and (iii) Licensee cooperates with Netscape, at Netscape's\nexpense, in defending or settling such claim.  Should a Product become, or be\nlikely to become in Netscape's opinion, the subject of infringement of such\ncopyright or trade secret, Netscape may (I) procure for Licensee the right to\ncontinue using the same or (II) replace or modify it to make it non-infringing.\nShould Licensee's use of the Product under this Agreement be enjoined as a\nresult of any alleged infringement of an Intellectual Property Right, Netscape\nwill (x) procure for Licensee the right to continue using the same, (y) replace\nor modify to make it non-infringing, or if (x) and (y) are not commercially\nreasonable for Netscape, (z) credit Licensee a sum equal to the unamortized\namount of the license fees received by Netscape under this Agreement for the\ninfringing Product amortized on a straight-line basis on a monthly basis over\nthree years from the date such fee is accrued under Section 1 of this Attachment\nB. Netscape shall have no obligation or liability for, and Licensee shall\ndefend, indemnify and hold Netscape harmless from and against, any claim based\nupon: (A) use of other than the then-current, unaltered version of the Product,\nunless the infringing portion is also in the then-current, unaltered release;\n(B) \n\n                                       5\n\n \nuse, operation or combination of the Product with non-Netscape programs, data,\nequipment or documentation if such infringement would have been avoided but for\nsuch use, operation or combination; (C) Licensee's or its agent's activities\nafter Netscape has notified Licensee that Netscape believes such activities may\nresult in such infringement; (D) compliance with Licensee's designs,\nspecifications or instructions for the Product; (E) any modifications or marking\nof the Product not specifically authorized in writing by Netscape; (F) any\nunauthorized use of any Netscape intellectual property; (G) any content provided\nby Licensee and\/or any material to which Users can link through such content; or\n(H) third party software. The foregoing states the entire liability of Netscape\nand the exclusive remedy of Licensee with respect to infringement of any\nintellectual property right, whether under theory of warranty, indemnity or\notherwise.\n\n(b) Licensee shall indemnify, hold harmless and, at Netscape's request, defend\nNetscape and\/or its suppliers from and against any and all claims, liabilities,\nlosses, damages, expenses and costs (including attorneys' fees and costs)\nrelating to Licensee's use or reproduction of the Product or Documentation,\nexcept to the extent that Netscape is responsible under Section 9(a) above.\n\n10.  LIMITATION OF LIABILITY.  (a) TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN\nNO EVENT SHALL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS\nOF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT,\nSPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF NETSCAPE HAS\nBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE\nOF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  (b) EXCEPT AS SPECIFIED IN THE\nINDEMNITY SECTION SET FORTH ABOVE, IN NO EVENT WILL NETSCAPE OR ITS SUPPLIERS BE\nLIABLE FOR ANY CLAIM AGAINST LICENSEE BY ANY END USER OR THIRD PARTY.  (c) IN NO\nEVENT SHALL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR (I) ANY REPRESENTATION OR\nWARRANTY MADE TO ANY THIRD PARTY BY LICENSEE OR ANY OF THEIR RESPECTIVE AGENTS;\n(II) FAILURE OF THE PRODUCT TO PERFORM EXCEPT AS, AND TO THE EXTENT, OTHERWISE\nEXPRESSLY PROVIDED HEREIN; (III) FAILURE OF THE PRODUCT TO PROVIDE SECURITY;\n(IV) ANY USE OF THE PRODUCT OR THE DOCUMENTATION; (V) THE RESULTS OR INFORMATION\nOBTAINED OR DECISIONS MADE BY USERS OF THE PRODUCT OR THE DOCUMENTATION; OR (VI)\nANY CONTENT PROVIDED BY LICENSEE AND\/OR ANY MATERIAL TO WHICH USERS CAN LINK\nTHROUGH SUCH CONTENT. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE LICENSEE'S\nSOLE AND EXCLUSIVE REMEDIES.  (d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO\nTHE CONTRARY AND EXCEPT FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OF\nNETSCAPE, NETSCAPE'S ENTIRE LIABILITY TO LICENSEE FOR DAMAGES CONCERNING\nPERFORMANCE OR NONPERFORMANCE BY NETSCAPE OR IN ANY WAY RELATED TO THE SUBJECT\nMATTER OF THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES\nIS BASED IN CONTRACT OR IN TORT, SHALL NOT EXCEED THE AMOUNT RECEIVED BY\nNETSCAPE FROM LICENSEE DURING THE 12 MONTHS PRIOR TO SUCH CLAIM FOR THE PRODUCT\nGIVING RISE TO SUCH CLAIM.\n\n\n11.  TERM AND TERMINATION.  The term of this Agreement shall be coterminous with\nthe Co-marketing Agreement. Subject to the Co-Marketing Agreement, either party\nmay terminate this Agreement if the other defaults in a material obligation\nhereunder and does not cure such default within 30 days after receiving notice\nof such default from the nonbreaching party. In addition, this Agreement (a)\nshall expire automatically if Licensee: (i) ceases to do business in the normal\ncourse, (ii) becomes or is declared insolvent or bankrupt, (iii) is the subject\nof any proceeding relating to liquidation or insolvency which is not dismissed\nwithin 90 calendar days, or (iv) makes an assignment for the benefit of its\ncreditors or (b) may be terminated immediately by Netscape if Licensee attempts\nto derive any source code or breaches any confidentiality provisions hereunder.\nUpon termination, all rights and obligations hereunder (except for any Licensee\noutstanding payment obligations) shall terminate.\n\n12.  CONFIDENTIALITY.   This provision shall be governed by the confidentiality\nprovision in the Co-Marketing Agreement.\n\n13.  NOTICE.  Any notice required or permitted hereunder shall be in English, in\nwriting and shall be deemed to be properly given upon the earlier of (a) actual\nreceipt by the addressee (including facsimile or e-mail) or (b) 5 business days\nafter deposit in the mail, postage prepaid, when mailed by registered or\ncertified airmail, return receipt requested, or (c) 2 business days after being\nsent via private industry courier to the respective parties at the addresses set\nforth in the Agreement or to such other person or address as the parties may\nfrom time to time designate in a writing.  Notices to Netscape shall be to the\nattention of the Legal Department, Netscape Communications Corporation, 501 East\nMiddlefield Road, Mountain View, California 94043.\n\n14.  MISCELLANEOUS.  (a) This Agreement shall be governed by the laws of the\nState of California, U.S.A., without reference to its conflicts of law\nprovisions.  (b) Any dispute regarding this Agreement shall be subject to the\nexclusive jurisdiction of the applicable court in Santa Clara County in the\nState of California, and each party irrevocably submits to the jurisdiction and\nvenue of any such proceeding and agree that service of process may be effected\nin the same manner notice is given hereunder. Notwithstanding the foregoing,\nNetscape reserves the right to invoke the jurisdiction of any competent court to\nremedy or prevent violation of any provision in the Agreement relating to\npayment, Netscape Confidential Information or Netscape intellectual property.\n(c) This Agreement will not be governed by the United Nations Convention of\nContracts for the International Sale of Goods.  (d) A waiver by either party of\nany term or \n\n                                       6\n\n \ncondition of this Agreement or any breach thereof, in any one instance, shall\nnot waive such term or condition or any subsequent breach thereof. (e) Neither\nparty shall be in default or be liable for any delay, failure in performance\n(excepting the obligation to pay) or interruption of service resulting directly\nor indirectly from any cause beyond its reasonable control. (f) The relationship\nbetween Netscape and Licensee is that of independent contractors and neither\nLicensee nor its agents shall have any authority to bind Netscape in any way.\n(g) If any dispute arises under this Agreement, the prevailing party shall be\nreimbursed by the other party for any and all legal fees and costs associated\ntherewith. (h) The headings to the sections of this Agreement are used for\nconvenience only and shall have no substantive meaning. (i) This Agreement may\nbe amended only by a writing signed by both parties. (j) The provisions of this\nAgreement which require or contemplate performance after the expiration or\ntermination of this Agreement shall be enforceable notwithstanding said\nexpiration or termination. (k) Licensee may not assign or otherwise transfer\nthis Agreement or any rights or obligations herein without the prior express\nwritten consent of Netscape, except that Licensee can assign all of its rights\nand obligations under this Agreement to an entity purchasing all or\nsubstantially all of its stock or assets so long as the acquiring party agrees\nin writing to comply with all of the terms and conditions of this Agreement. (l)\nThis Agreement shall be binding upon and shall inure to the benefit of the\nparties, their successors and permitted assigns. (m) This Agreement may be\nexecuted in counterparts or by facsimile, each of which shall be an original,\nand all of which together shall constitute one and the same agreement. (n) This\nAgreement constitutes the entire agreement between the parties concerning the\nsubject matter hereof and supersedes all prior and contemporaneous agreements\n(including the Enterprise License Agreement provided with the Products) and\ncommunications, whether oral or written, between the parties relating to the\nsubject matter hereof, and all past courses of dealing or industry custom. The\nterms and conditions hereof shall prevail over any conflicting purchase order or\nother written instrument submitted by Licensee. (o) If any provision in this\nAgreement should be held illegal or unenforceable by a court having\njurisdiction, such provision shall be modified to the extent necessary to render\nit enforceable without losing its intent, or severed from this Agreement if no\nsuch modification is possible, and other provisions of this Agreement shall\nremain in full force and effect. (p) Netscape may use Licensee's name in any\ncustomer reference list or in any press release issued by Netscape regarding the\nlicensing of the Product and\/or provide Licensee's name and the names of the\nProducts licensed by Licensee to third parties. (q) If Netscape is required by a\nthird party software supplier to cease and to cause its licensees to cease use\nor distribution of a particular revision of the Products, Licensee agrees to\ncomply herewith if Netscape (i) provides Licensee with 30 days prior written\nnotice and (ii) replaces such affected Product with a functionally equivalent\nProduct as soon as commercially practicable. (r) This Agreement is in the\nEnglish language only, which language shall be controlling in all respects. (s)\nLicensee agrees to comply and shall ensure compliance with all then-current\napplicable laws, rules and regulations governing this Agreement, including all\napplicable export laws, rules and regulations of the U.S. Government or other\napplicable agencies. (t) The Products are not fault-tolerant and is not\ndesigned, manufactured or intended for use or resale as on-line control\nequipment in hazardous environments requiring fail-safe performance, such as in\nthe operation of nuclear facilities, aircraft navigation or communication\nsystems, air traffic control, direct life support machines, or weapons systems,\nin which the failure of the Products could lead directly to death, personal\ninjury, or severe physical or environmental damage ('High Risk Activities').\nNetscape and its suppliers specifically disclaim any express or implied warranty\nof fitness for High Risk Activities.\n\n                                       7\n\n \n                                  ATTACHMENT C\n                        EXPERT ALLIANCE SUPPORT PROGRAM\n                   DEFINITIONS, PRICING AND LICENSEE CONTACTS\n\n\n1.  DEFINITIONS.  As used in this Attachment C, 'END USER' means any user of the\nNetscape software ('PRODUCT') authorized by Licensee pursuant to Agreement.\n'PROGRAM ERRORS' means 1 or more reproducible deviations in the standard,\nunmodified Product from the applicable specifications shown in the\ndocumentation. 'Major Updates' are designated by a change in the number to the\nleft of the decimal point of the number appearing after the product name.\n\n\n2.  PRICING.  [*]\n\n\nA.  Expert Alliance: (12 hours\/day; 5 days\/week; after-hours pager service for\n    ---------------                                                           \n    priority 1 issues only)\n\n    i)   Annual flat fee: [*] for an assigned Netscape support engineer, 4\n         authorized technical contacts (list technical contacts below),\n         unlimited number of support requests from Licensee, problem diagnosis\n         for selected Netscape beta products, technical bulletins from Netscape,\n         1 introductory site visit by Netscape, technical support usage reports,\n         regularly scheduled conference calls with Netscape, quarterly support\n         review by Netscape and access to a private web site for Netscape's\n         Expert Alliance customers.\n\n   ii)   Optional Add-On Support (available only in conjunction with the\n         purchase of Services under Section A (i)):\n\n         (a) Dedicated Netscape support engineer: [*] per year (replaces\n             assigned Netscape support engineer described under Section A(i))\n\n         (b) Additional assigned Netscape support engineer: [*] per year\n\n         (c) Additional Licensee Contact: [*] per contact per year\n\n\n3. LICENSEE'S TECHNICAL CONTACTS:\n\nTechnical Contact #1: David Schairer\n\nPhone:                    Fax:                    E-mail: \n                                  \nTechnical Contact #2: Warren Smith\n \nPhone:                    Fax:                    E-mail: \n                             \nTechnical Contact #3: _________________________________________________________\n \nPhone: __________________ Fax: ______________ E-mail: _________________________\n \nTechnical Contact #4:  # ______________________________________________________\n \nPhone: __________________ Fax: ______________ E-mail: _________________________\n \n\n          ----------------------------------------------------------- \n          Visit http:\/\/help.netscape.com\/mktg for general information\n                about Netscape's support services and operating hours.\n          ----------------------------------------------------------- \n\n\n1.  FRONT-LINE SUPPORT.   Licensee, and not Netscape, will provide front-line\ntechnical support to its End Users.  Such support includes but is not limited\nto, call receipt, entitlement verification, call screening, installation\nassistance, problem identification and diagnosis, product defect determination,\nefforts to create a repeatable demonstration of the Program Error and, if\napplicable, the distribution of any defective media.  Licensee agrees that any\ndocumentation distributed by Licensee to its End Users will clearly and\nconspicuously state that End Users should call Licensee for technical support\nfor the Product.  Netscape will have no obligation to furnish any assistance,\ninformation or documentation with respect to the Product, directly to End Users.\nIf Netscape is being contacted by a significant number of End Users, Netscape\nwill use reasonable efforts to (i) verify support eligibility for such End\nUsers, and (ii) refer such End Users to Licensee for support. If Netscape\ncontinues to be contacted by a significant number of End Users, then, upon\nNetscape's request, Licensee and Netscape will cooperate to minimize such\ncontact.  Thereafter, if Netscape continues to be contacted by a significant\nnumber of End Users for front-line support, then Licensee shall pay to Netscape\nNetscape's then current charges for any End User identified by Netscape as\nobtaining such support.\n\n\n[*] Certain information on this page has been omitted and filed separately \nwith the Securities and Exchange Commission. Confidential treatment has been \nrequested with respect to the omitted portions.\n\n                                       8\n\n \n2.  SERVICES.  Netscape will provide back-end support to Licensee for Program\nErrors not resolved by Licensee pursuant to Licensee's support policies and in\naccordance herewith.  This support includes efforts to identify defective source\ncode and to provide corrections, workarounds and\/or patches to correct Program\nErrors.  Netscape will provide Licensee with a telephone number and an e-mail\naddress which Licensee may use to report Program Errors during Netscape's local\nbusiness hours.  For priority 1, Licensee agrees to notify Netscape via both\ntelephone and e-mail. On Attachment C, Licensee has identified 4 members of its\ncustomer support staff to act as technical liaisons responsible for all\ncommunications with Netscape's technical support representatives.  Such liaisons\nwill have sufficient technical expertise, training and\/or experience, for\nLicensee to perform its obligations hereunder.  Licensee may substitute its\ncontacts at any time by providing 1 week's prior written and\/or electronic\nnotice thereof to Netscape.\n\nFor the introductory site visit by Netscape, travel costs and related expenses\nare paid by Netscape for up to 2 days.  Upon Licensee's request, Netscape\nengineers can extend the site visit for 3 additional days, provided that\nLicensee shall pay for all costs and expenses related to such extended stay.\n\nNetscape will use reasonable commercial efforts to resolve each significant\nProgram Error by providing either a reasonable workaround, an object code patch\nor a specific action plan for how Netscape will address the problem and an\nestimate of how long it will take to rectify the defect.  Netscape reserves the\nright to charge Licensee additional fees at its then-standard rates for services\nperformed in connection with reported Program Errors which are later determined\nto have been due to hardware or software not supplied by Netscape.\nNotwithstanding the foregoing, Netscape has no obligation to perform services in\nconnection with Program Errors resulting from hardware or software not supplied\nby Netscape.  Netscape agrees to support a given revision of the Product for the\nshorter of (i) 12 months from the date such revision is superseded by the next\nsequential Product revision; or (ii) until such revision is superseded by 2\nsequential Product revisions.  (For example, Netscape will support version 2.1\nfor the shorter of 12 months from the date version 2.2 or 3.0 (if 3.0 is the\nnext sequential release), is released by Netscape, or until version 2.1 is\nsuperseded by 2 sequential releases (2.2 and 2.3 or 2.2 and 3.0, as the case may\nbe.)\n\nNetscape will make reasonable efforts to correct significant Program Errors that\nLicensee identifies, classifies and reports to Netscape and that Netscape\nsubstantiates.  Netscape may reclassify Program Errors if it reasonably believes\nthat Licensee's classification is incorrect.  Licensee will provide sufficient\ninformation for Netscape to enable Netscape to duplicate the Program Error\nbefore Netscape's response obligations will commence.  Unless otherwise\nauthorized in writing by Netscape, Netscape will not be required to correct any\nProgram Error caused by (a) incorporation, attachment of a feature, program, or\ndevice to the Product, or any part thereof; (b) any nonconformance caused by\naccident, transportation, neglect, misuse, alteration, modification, or\nenhancement of the Product; (c) the failure to provide an installation\nenvironment recommended for the Product; (d) use of the Product for other than\nthe specific purpose for which the Product is intended; (e) use of the Product\non any systems other than the specified hardware platform for such Product; (f)\nif applicable, use of defective media or defective duplication of the Product;\nor (g) failure to incorporate any Product revision or patch previously released\nby Netscape which corrects such Program Error.  For Program Error reports\nreceived by Netscape during Netscape's local business hours, Netscape will use\nreasonable commercial efforts to communicate with Licensee about the Program\nError via telephone or e-mail within the targeted response times set forth at\nthe end of these terms and conditions.\n\n3.  PURCHASE ORDERS.  Licensee must place a written purchase order to initiate\nServices under this Agreement and to renew or change the selection of Services\nthereafter.  Each purchase order must contain the following (i) reference to the\nAgreement number; (ii) the level of Service, fees and charges therefor, and bill\nto address (if different).  No terms and conditions set forth in any purchase\norder or instrument issued by Licensee in connection with the Services shall be\nbinding upon Netscape.\n\n \nTARGETED RESPONSE TIMES:\n\n--------------------------------------------------------------------------------\n                                                             STATUS UPDATES    \n                                               INITIAL       (PROVIDED UPON    \nPRIORITY    FAILURE DESCRIPTION               RESPONSE       LICENSEE'S REQUEST\n                                                TIME         AFTER NETSCAPE'S  \n                                                             INITIAL RESPONSE)  \n--------------------------------------------------------------------------------\n    1       Enterprise-critical                1 hour        By customer       \n            (Product is not                                  agreement        \n            functioning)                                        \n--------------------------------------------------------------------------------\n    2       Severe Impact - Product            2 working     Once per         \n            inconsistency which                hours         working day \n            significantly decreases Licensee    \n            productivity (periodic work         \n            stoppages, feature crashes)         \n--------------------------------------------------------------------------------\n                                                                             \n\n                                       9\n\n \n--------------------------------------------------------------------------------\n    3       Degraded Operations: Product       4 working     Once every 3       \n            inconsistency which slightly       hours         working days     \n            impairs customer productivity\n            (Licensee can work around problem)\n--------------------------------------------------------------------------------\n    4       Minimal Impact: desired change     next work     Release notes or\n            in Product (documentation          day           plan for next\n            update, cosmetic defects,                        release         \n            enhancement requests)                                         \n--------------------------------------------------------------------------------\n\n                                       10\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7174,8328],"corporate_contracts_industries":[9513,9519],"corporate_contracts_types":[9613,9616],"class_list":["post-42821","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-concentric-network-corp","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_industries-technology__software","corporate_contracts_industries-telecommunications__telephone","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\/42821","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=42821"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42821"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42821"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42821"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}