{"id":42828,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/source-code-license-agreement-netscape-communications-corp-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"source-code-license-agreement-netscape-communications-corp-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/source-code-license-agreement-netscape-communications-corp-and.html","title":{"rendered":"Source Code License Agreement &#8211; Netscape Communications Corp. and TVsoft Corp."},"content":{"rendered":"<pre>                       NETSCAPE COMMUNICATIONS CORPORATION\n                          SOURCE CODE LICENSE AGREEMENT\n\n    This Source Code License Agreement ('License Agreement') is entered into \nby and between NETSCAPE COMMUNICATIONS CORPORATION, a Delaware corporation, \nwith principal offices at 501 East Middlefield Road, Mountain View, CA 94043 \n('Netscape'), and TVSOFT CORPORATION, a Delaware corporation, with principal \noffices at 477 Potrero Road, Sunnyvale, CA 94086 ('TVsoft').\n\n                                    RECITALS\n\n    A. Netscape develops and markets a range of software products and \nservices that link people and information over networks.\n\n    B. Netscape and various other parties have entered into a Stockholder \nAgreement (as defined in Section 1.16 below) and various other documents \nrelated to the formation of TVsoft.\n\n    C. The parties believe that a potential market exists for software \nproducts and services specifically designed to provide access to the Internet \nthrough consumer devices, and that such market is not addressed by Netscape's \ncurrent product line.\n\n    D. The parties desire that TVsoft develop products specifically aimed at \nsuch potential market, while Netscape continues to develop and promote such \nother aspects of network-based applications as Netscape deems appropriate.\n\n    E. Netscape desires to grant, and TVsoft desires to accept, in \nconsideration for the TVsoft stock issued to Netscape under the Common Stock \nPurchase Agreement (as defined in Section 1.4 below) and other good and \nvaluable consideration, a license to certain Netscape technology in order for \nTVsoft to create new products for this market as further specified herein.\n\n    NOW, THEREFORE, the parties agree as follows:\n\n                                    AGREEMENT\n\n1.  DEFINITIONS. For purposes of this License Agreement, the following terms \nshall have the following meanings:\n\n\n\n    1.1  'Affiliate' moans a corporation, company or other entity more than \nfifty percent (50%) of the outstanding shares or securities (representing the \nright to vote for the election of directors or other managing authority) of \nwhich are now or hereafter, owned or controlled, directly or indirectly, by a \nparty hereto, but such corporation, company or other entity shall be deemed \nto be an Affiliate only so long as such ownership or control exists.\n\n    1.2  'API' means application programming interface.\n\n    1.3  'Code' means computer programming code.\n\n         (a)  'Object Code' means computer programming code in binary form, \nwhich is intended to be directly executable by a computer after suitable \nprocessing and linking but without the intervening steps of compilation or \nassembly.\n\n         (b)  'Source Code' means computer programming code in a form other \nthan Object Code form, and related programmer comments and documentation, \nwhich may be printed out or displayed in human readable form, among other \nforms.\n\n    1.4  'Common Stock Purchase Agreement' means that certain Common Stock \nPurchase Agreement entered into between the parties dated as of ______________.\n\n    1.5  'Consumer Hardware Device' means a product which meets the criteria \nof all of items (a)-(c) below:\n\n         (a)  is primarily intended for use by consumers as one or more of the \n     following and permits access to the Internet:\n\n              (i)   game console;\n              (ii)  digital set top box;\n              (iii) digital viewing device (DVD);\n              (iv)  smart television (TV);\n              (v)   hand held personal digital assistant;\n              (vi)  other Internet consumer devices which generally have an \n         actual 'street' retail price to consumers in the U.S. of less than \n         Five Hundred United States Dollars (U.S. $500.00);\n\n         (b)  is not a personal computer or any successor product to the \n     multipurpose personal computer (including those that function as servers);\n     and\n\n         (c)  does not use a Microsoft Windows, Apple Macintosh or\n     UNIX operating system, or any new release, new version, successor,\n     follow-on or replacement of any such operating system, other than any such\n     release, version, successor, follow-on or \n\n                                     -2-\n\n\n\n\n     replacement that is designed primarily for use in connection with one or \n     more of the devices listed in subsection (a) above.\n\n     1.6  'Derivative Work' means a work which is based upon one or more \npre-existing copyrightable works such as a revision, modification, \ntranslation, abridgment, compilation, condensation or expansion or any other \nform in which such pre-existing work may be recast, transformed, or adapted, \nand which, if prepared without the consent of the author of the pre-existing \nwork, would be a copyright infringement.\n\n     1.7  'Distribution Channel' of a party means any third party appointed \nby such party (including without limitation, Source Code OEMs, OEMs, VARs, \ndistributors and subdistributors) or by any such entity that has been \nappointed by such party, but excluding end users, to reproduce, sublicense \nand\/or distribute product(s) of such party in accordance with the terms \nhereof.\n\n     1.8  'Divestiture Event' shall be deemed to occur upon the earlier to \noccur of (i) the date Netscape ceases to be a holder of at least 35% of the \ntotal issued and outstanding shares of TVsoft; (ii) the date of the IPO (as \ndefined in Section 1(b) of the Stockholder Agreement); (iii) the date \nNetscape is no longer the single largest shareholder of TVsoft; or (iv) the \nexpiration or termination of the time period in which Netscape has the right \nto exercise the Buyout or the IPO Buyout (as such terms are defined in \nSections 3(a) and 3(e), respectively of the Stockholder Agreement). TVsoft \nagrees to give Netscape prompt written notice upon the occurrence of a \nDivestiture Event under clause (i) or (iii) above.\n\n     1.9  'Effective Date' means the date on which the Common Stock Purchase \nAgreement is executed by TVsoft and Netscape.\n\n     1.10 'End User' means any third party licensed by a party or its \nDistribution Channel to use, but not to further distribute, a product of such \nparty hereunder.\n\n     1.11 'Netscape Product' means any and all products whether now in \nexistence or hereafter developed or distributed by or for Netscape which (a) \nare Derivative Works of TVsoft Technology and (b) are not software products \nthat are primarily intended for use on one or more Consumer Hardware Devices \nand that are reasonably expected to compete with any TVsoft Product.\n\n     1.12 'Netscape Technology' means the Netscape technology and related \ndocumentation set forth on Attachment A.\n\n     1.13 'Netscape Technology Updates' means (a) the Source Code for Minor \nUpdates, Major Updates and Maintenance Updates to the Netscape Technology and \n(b) any updates to the Netscape Tools which are released internally at \nNetscape for general use by Netscape software developers and (c) related \ndocumentation. As used in this Section 1.13, 'Minor Update' means a new \nversion of a product for which there is a change in the number immediately to \nthe right of the decimal point in the release number, 'Major Update' means a \nnew version of a product for which there is a change in the number to the \nleft of the decimal point in the release number, and 'Maintenance Update' \nmeans a new version of \n\n                                     -3-\n\n\n\na product for which there is a change in the number two places to the right \nof the decimal point in the release number.\n\n     1.14 'Netscape Tools' means the Netscape development tools set forth on \nAttachment A.\n\n     1.15 'Source Code OEM' means a manufacturer of Consumer Hardware Devices.\n\n     1.16 'Stockholder Agreement' means that certain Stockholders and Voting \nAgreement entered into between Netscape, TVsoft, Wei Yen and the holders of \nTVsoft's Series A Preferred Stock dated as of ______________.\n\n     1.17 'Subsidiary' means a corporation, company or other entity one \nhundred percent (100%) of the outstanding shares or securities (representing \nthe right to vote for the election of directors or other managing authority) \nof which are now or hereafter, owned or controlled, directly or indirectly, \nby a party hereto, but such corporation, company or other entity shall be \ndeemed to be a Subsidiary only so long as such ownership or control exists.\n\n     1.18 'Technology' means Netscape Technology and\/or TVsoft Technology, as \nthe context requires.\n\n     1.19 'TVsoft Product' means a software product which (a) is a Derivative \nWork of the Netscape Technology; and (b) requires restructuring of the \nNetscape Technology so that it is specifically designed for one or more \nConsumer Hardware Devices; and (c) operates on one or more Consumer Hardware \nDevices; and (d) does not run on a Microsoft Windows, Apple Macintosh or UNIX \noperating system, or any new release, new version, successor, follow-on or \nreplacement of any such operating system other than any such release, \nversion, successor, follow-on or replacement that is designed primarily for \nuse in connection with one or more of the devices listed in Section 1.5(a) \nabove; and in no event shall a TVsoft Product be directed to the market for \npersonal computers or successor products to the multipurpose personal \ncomputer (including those that function as servers).\n\n     1.20 'TVsoft Technology' means all Source Code, development tools, \nObject Code and documentation created or modified by or for TVsoft and based \non the Netscape Technology or Netscape Tools, including, but not limited to, \nany Derivative Works of Netscape Technology or Netscape Tools, and all \nrelated documentation.\n\n     1.21 'Update Period' means the time period beginning with the Effective \nDate of this License Agreement and ending on the date of a Divestiture Event.\n\n2.  GRANT OF LICENSE TO TVSOFT. Subject to the terms and conditions of this \nLicense Agreement, Netscape hereby grants and TVsoft hereby accepts the \nlicenses described in this Section 2, each of which shall be world-wide, \nnon-exclusive (except as specifically set forth in Section 8.2 below), fully \npaid-up and nontransferable (except as provided in Section 17.3).\n\n                                     -4-\n\n\n\n     2.1  INTERNAL USE -- SOURCE CODE AND OBJECT CODE. A license to use \ninternally, reproduce, display, modify and create Derivative Works of the \nSource Code and Object Code versions of the Netscape Technology for the sole \npurpose of creating TVsoft Products and using such TVsoft Products internally.\n\n     2.2  EXTERNAL DISTRIBUTION -- OBJECT CODE. A license to reproduce, \ndistribute, license and sublicense the Object Code version of TVsoft \nProducts, including any Derivative Works of the Netscape Technology contained \ntherein, to Distribution Channels and End Users solely for use with Consumer \nHardware Devices, and to sublicense the rights in this Section 2.2 to \nTVsoft's Distribution Channels.\n\n     2.3  EXTERNAL DISTRIBUTION -- SOURCE CODE. A license:\n\n          (a)  to sublicense the Source Code of TVsoft Products, including \nany Derivative Works of the Netscape Technology contained therein, to a \nTVsoft Subsidiary solely (i) for further development, internationalization \nand support of such TVsoft Products; and (ii) entering into written \nagreements with Source Code OEMs which meet the requirements of subsection \n(b) below.\n\n          (b)  to sublicense the Source Code of TVsoft Products, including \nany Derivative Works of the Netscape Technology contained therein, to Source \nCode OEMs solely for the purpose of and to the extent necessary to port such \nTVsoft Products to operate with the Source Code OEMs' Consumer Hardware \nDevices; provided that (i) TVsoft shall use its best efforts to minimize \nexposure of the Source Code OEMs to Source Code for Netscape Technology (such \nas, for example, by compiling critical modules for the Source Code \nLicensees); and (ii) each such license must be pursuant to a written \nagreement meeting the requirements of Section 12.6 below.\n\n           (c)  to enter into written Source Code escrow arrangements \ncustomary in the industry with Source Code OEMs providing that (i) such \nSource Code OEMs may have access to the Source Code for TVsoft Products for \nsuch Source Code OEMs' Consumer Hardware Devices in the event that TVsoft \nceases to do business in the normal course and Netscape does not assume \nTVsoft's obligations for support and maintenance of such TVsoft Products; \n(ii) upon release of the Source Code for TVsoft Products, such Source Code \nOEMs may use and modify the Source Code (provided that TVsoft shall use its \nbest efforts to limit the scope of permitted use and modification to use and \nmodification only as necessary to correct errors in such TVsoft Product(s)), \nand may only distribute the Object Code version of such modified Source Code \nas permitted under this License Agreement; and (iii) the Source Code OEMs are \nobligated to keep such Source Code confidential according to terms \nsubstantially similar to those set forth in Section 12.6.\n\nTVsoft may not grant its Source Code OEMs any rights to Netscape Technology or\nDerivative Works thereof except as part of a TVsoft Product. Except as\nspecifically set forth in this Section 2.3, TVsoft may not grant any third party\nany rights to Netscape Technology or Derivative Works thereof in Source Code\nform.\n\n                                     -5-\n\n\n\n     2.4  INTERNAL USE -- NETSCAPE TOOLS. A license to use internally, \nreproduce, display, modify and create Derivative Works of the Source Code and \nObject Code versions of the Netscape Tools for the sole purpose of creating \nTVsoft Products.\n\n     2.5  THIRD PARTY CODE.\n\n          (a)  TVsoft acknowledges that the Netscape Technology may contain \nSource Code or Object Code licensed by Netscape from a third party ('Third \nParty Code'), and that Netscape may not have the right to sublicense Third \nParty Code to TVsoft under the terms of this License Agreement. If Netscape \ndoes have the right to sublicense Third Party Code to TVsoft for the purposes \nset forth in this License Agreement, then Netscape will include such Third \nParty Code and any Netscape Derivative Works thereof in the Netscape \nTechnology to be delivered to TVsoft hereunder. All licenses granted by \nNetscape under this License Agreement are subject to compliance by TVsoft \nwith any applicable license restrictions, payment by TVsoft of any royalties \nor other fees and Netscape receiving any required consents with respect to \nThird Party Code. A list of Third Party Code in the Netscape Technology as of \nthe Effective Date of this License Agreement which Netscape does not have the \nright to sublicense to TVsoft, and any such required restrictions, royalties \nor other fees, and consents for Third Party Code which Netscape does have the \nright to sublicense, is set forth in Attachment B hereto.\n\n          (b)  Netscape agrees that, in the event there is Third Party Code \nin the Netscape Technology that cannot be sublicensed by Netscape to TVsoft \nunder this License Agreement, Netscape will introduce TVsoft to appropriate \npersonnel at the vendor of such Third Party Code and, as the parties deem \nappropriate, will approach such vendor, together with TVsoft, and use its \ngood faith commercially reasonable efforts to cause such vendor to consent to \nthe sublicense of such Third Party Code to TVsoft on commercially reasonable \nterms.\n\n          (c)  Netscape agrees to use its good faith, commercially reasonable \nefforts to obtain the right to sublicense Third Parry Code to TVsoft under \nthis License Agreement in its agreements entered into after the Effective \nDate for any Third Party Code that may be included in Netscape Technology \nUpdates.\n\n          (d)  TVsoft shall provide to Netscape such information as Netscape \nmay reasonably request from time to time to verify compliance by TVsoft with \nthe applicable restrictions and royalty or other fee obligations for Third \nParty Code that is sublicensed to TVsoft. In the event of any material \ndefault of such restrictions or royalty or other fee obligations, Netscape \nmay deliver to TVsoft a written notice of termination of TVsoft's rights with \nrespect to such Third Party Code. If such breach is not corrected within \nthirty (30) days after receipt of such notice, Netscape may terminate \nTVsoft's rights with respect to such Third Party Code effective immediately \nupon notice to TVsoft.\n\n     2.6  RIGHTS NOT GRANTED. This License Agreement does not grant any right \nor license to TVsoft other than those expressly provided herein, and no other \ngrant or license is to be implied by or inferred from any provision of this \nLicense Agreement.\n\n                                     -6-\n\n\n\n\n     2.7  PATENTS: AUDIO-VISUAL EFFECTS. The licenses granted under Sections \n2.1-2.5 above include, subject to the same limitations as provided therein \nand elsewhere in this License Agreement: (a) a nonexclusive license under any \npatent or patent applications that are (i) owned by Netscape or (ii) licensed \nby Netscape from a third party ('Netscape Third Party Patents') during the \nterm of this License Agreement with the right to grant sublicenses under the \nterms of this License Agreement and subject to compliance by TVsoft with any \napplicable license restrictions, payment by TVsoft of any royalties or other \nfees and Netscape receiving any required consents with respect to such Third \nParty Patents; and (b) a nonexclusive license (including the right to perform \nand display) to pictorial, graphic and audio-visual works, including without \nlimitation icons, screens and characters, that are included in or result from \nexecution of the Netscape Technology.\n\n     2.8  SUPPORT BY TVSOFT. TVsoft shall use its best efforts to meet its \ncommitments to its Source Code OEMs, Distribution Channels and End Users with \nrespect to the support and maintenance of TVsoft Products, all in accordance \nwith TVsoft's obligations to provide such support and maintenance.\n\n3. INVENTIONS.\n\n     3.1  INVENTIONS DEFINED. As used in this Section 3, 'Invention' means \nany new or improved idea, design, development, discovery, concept or other \ninvention that is patentable subject matter and that is made and developed in \nthe course of creating TVsoft Products hereunder.\n\n     3.2  JOINT INVENTIONS. Netscape and TVsoft shall jointly own any \nInventions that are made and developed jointly by Netscape and TVsoft ('Joint \nInventions'). The parties shall agree from time to time regarding \nresponsibility for prosecution and maintenance of patents on Joint \nInventions. Subject to TVsoft's obligations set forth herein with respect to \nNetscape Technology, Netscape Tools and Derivative Works thereof, each party \nshall have the right to fully exploit, commercialize, license and enforce any \nJoint Inventions and jointly owned patents issuing thereon without the \nconsent of the other party and without a duty to account to the other party \nfor profits issuing thereon.\n\n     3.3  TVSOFT INVENTIONS. TVsoft shall be the sole owner of any Inventions \nthat are made and developed solely by TVsoft ('TVsoft Inventions'). As used \nin the Section 3.3, 'TVsoft Licensed Patents' means any issued patents that \nclaim any TVsoft Invention that covers or reads on any Netscape Technology or \nNetscape Tools, or any Derivative Work of Netscape Technology or Netscape \nTools. TVsoft hereby grants to Netscape a perpetual, irrevocable, \nnon-exclusive, non-transferable (except as provided in Section 17.3) and \nfully paid-up right and license, with the right to grant and authorize \nsublicenses, under any and all TVsoft Licensed Patents, to make, have made, \nuse, offer to sell, sell, import and export any products and items (except as \nspecifically set forth in Section 8.2 below).\n\n     3.4  INVENTIONS GENERALLY. Ownership of Inventions shall be determined \nwith reference to the rules of inventorship under U.S. patent law \nnotwithstanding whether such Inventions may be patentable. Each party shall \nkeep the other party reasonably informed regarding patent prosecution and \nmaintenance of Inventions under this Section 3. Until and except to the \nextent that any Invention is publicly disclosed \n\n                                     -7-\n\n\n\nin a patent or patent application, such Invention shall be considered to be \nConfidential Information of the patent applicant(s) under the provisions of \nSection 12.\n\n4.  GRANT OF LICENSE TO NETSCAPE. Effective as of the earlier of the date of \na Divestiture Event or of Netscape's termination of this License Agreement \nunder Section 15.2, and subject to the terms and conditions of this License \nAgreement, TVsoft hereby grants and Netscape hereby accepts the licenses \ndescribed in this Section 4, each of which shall be world-wide, non-exclusive \n(except as specifically set forth in Section 8.3 below), fully paid-up and \nnontransferable (except as provided in Section 17.3).\n\n     4.1  INTERNAL USE - SOURCE AND OBJECT CODE. A license to use internally, \nreproduce, display, modify and create Derivative Works of the Source Code and \nObject Code versions of the TVsoft Technology for the sole purpose of \ncreating Netscape Products and using such Netscape Products internally.\n\n     4.2  EXTERNAL DISTRIBUTION -- OBJECT CODE. A license to reproduce, \ndistribute, license and sublicense the Object Code version of the Netscape \nProduct(s), including the Derivative Works of the TVsoft Technology contained \ntherein, to Distribution Channels and End Users and to sublicense the rights \nin this Section 4.2 to Netscape's Distribution Channels.\n\n     4.3 EXTERNAL DISTRIBUTION -- SOURCE CODE. A license:\n\n         (a)  to sublicense the Source Code of Netscape Products, including \nany Derivative Works of the TVsoft Technology contained therein, to Netscape \nSubsidiaries solely (i) for further development, internationalization and \nsupport of such Netscape Products, and (ii) entering into written agreements \nwith licensees of Netscape Products which meet the requirements of \nsubsections (b) and (c) below.\n\n         (b)  to sublicense the Source Code of Netscape Products, including \nany Derivative Work(s) of the TVsoft Technology contained therein, to \nNetscape's Source Code licensees of such Netscape Products solely for further \ndevelopment, internationalization or support of such Netscape Products and \nany Derivative Works thereof, provided that Netscape shall use its best \nefforts to minimize exposure of the Source Code licensees to Source Code for \nTVsoft Technology (such as, for example, by compiling critical modules for \nthe licensee) and each such license must be pursuant to a written agreement \nmeeting the requirements of Section 12.6 below.\n\n          (c)  to enter into written Source Code escrow arrangements \ncustomary in the industry with Netscape's licensees of Netscape Products \nproviding that (i) such licensees may have access to the Source Code for \nlicensed Netscape Products in the event that Netscape ceases to do business \nin the normal course; (ii) upon release of the Source Code for Netscape \nProducts, such licensees may use and modify the Source Code (provided that \nNetscape shall use its best efforts to limit the scope of permitted use and \nmodification to use and modification only as necessary to correct errors in \nthe Netscape Products), and may only distribute the Object Code version of \nsuch modified Source Code as permitted\n\n                                     -8-\n\n\n\n\nunder this License Agreement; and (iii) the licensee is obligated to keep \nsuch Source Code confidential according to terms substantially similar to \nthose set forth in Section 12.6.\n\nNetscape may not grant its licensees any rights to TVsoft Technology or \nDerivative Works thereof except as part of a Netscape Product. Except as \nspecifically set forth in this Section 4.3, Netscape may not grant any third \nparty any rights to TVsoft Technology or Derivative Works thereof in Source \nCode form.\n\n     4.4  INTERNAL USE -- TVSOFT TOOLS. A license to use internally, \nreproduce, display, modify and create Derivative Works of the Source Code and \nObject Code versions of the TVsoft Tools for the sole purpose of creating \nNetscape Products.\n\n     4.5  THIRD PARTY CODE.\n\n          (a)  Netscape acknowledges that the TVsoft Technology may contain \nSource Code or Object Code licensed by TVsoft from a third party ('TVsoft \nThird Party Code'), and that TVsoft may not have the right to sublicense \nTVsoft Third Party Code to Netscape under the terms of this License \nAgreement. If TVsoft does have the right to sublicense TVsoft Third Party \nCode to Netscape for the purposes set forth in this Agreement, then TVsoft \nwill include such TVsoft Third Party Code and any TVsoft Derivative Works in \nthe TVsoft Technology to be delivered to Netscape hereunder. All licenses \ngranted by TVsoft under this License Agreement are subject to compliance by \nNetscape with any applicable license restrictions, payment by Netscape of any \nroyalties or other fees and TVsoft receiving any required consents with \nrespect to TVsoft Third Party Code.\n\n          (b)  TVsoft agrees that, in the event there is TVsoft Third Party \nCode that cannot be sublicensed by TVsoft to Netscape under this License \nAgreement, TVsoft will introduce Netscape to appropriate personnel at the \nvendor of such TVsoft Third Party Code and, as the parties deem appropriate, \nwill approach such vendor, together with Netscape, and use its good faith \ncommercially reasonable efforts to cause such vendor to consent to the \nsublicense of such TVsoft Third Party Code to Netscape on commercially \nreasonable terms.\n\n          (c)  TVsoft agrees to use its good faith, commercially reasonable \nefforts to obtain the right to sublicense TVsoft Third Party Code to Netscape \nunder this License Agreement in its agreements entered into after the \nEffective Date for any TVsoft Third Party Code that may be included in TVsoft \nTechnology.\n\n          (d)  Netscape shall provide to TVsoft such information as TVsoft \nmay reasonably request from time to time to verify compliance by Netscape \nwith the applicable restrictions and royalty or other fee obligations for \nTVsoft Third Party Code that is sublicensed to Netscape. In the event of any \nmaterial default of such restrictions or royalty or other fee obligations, \nTVsoft may deliver to Netscape a written notice of termination of Netscape's \nrights with respect to such TVsoft Third Party Code. If such breach is not \ncorrected within thirty (30) days after receipt of such notice, TVsoft may \nterminate Netscape's rights with respect to such TVsoft Third Party Code \neffective immediately upon notice to Netscape.\n\n                                     -9-\n\n\n\n\n\n     4.6    RIGHTS NOT GRANTED.  This License Agreement does not grant any \nright or license to Netscape other than those expressly provided herein, and \nno other grant or license is to be implied by or inferred from any provision \nof this License Agreement.\n\n     4.7    PATENTS: AUDIO-VISUAL EFFECTS.  The licenses granted under \nSections 4.1-4.5 above include, subject to the same limitations as provided \ntherein and elsewhere in this License Agreement: (a) a nonexclusive license \nunder any patent or patent applications that are (i) owned by TVsoft or (ii) \nlicensed by TVsoft from a third party ('TVsoft Third Party Patents') during \nthe term of this License Agreement with the right to grant sublicenses under \nthe terms of this License Agreement and subject to compliance by Netscape \nwith any applicable license restrictions, payment by Netscape of any \nroyalties or other fees and TVsoft receiving any required consents with \nrespect to such TVsoft Third Party Patents; and (b) a nonexclusive license \n(including the right to perform and display) to pictorial, graphic and \naudio-visual works, including without limitation icons, screens and \ncharacters, that are included in or result from execution of the TVsoft \nTechnology.\n\n5.   DELIVERY.\n\n     5.1    INITIAL  DELIVERY BY NETSCAPE.  Within ten (10) days after the \nEffective Date,  Netscape shall deliver to TVsoft one (1) copy of the \nNetscape Technology.\n\n     5.2    DELIVERY OF UPDATES BY NETSCAPE.  During the Update Period, \nNetscape shall provide access to TVsoft, on mutually agreeable terms, to all \nactivities relating to the development of Netscape Technology Updates. Each \nNetscape Technology Update shall be considered to be Netscape Technology or \nNetscape Tools, as applicable, for the purposes of this License Agreement. \nAfter the expiration of the Update Period, Netscape shall have no further \nobligation hereunder to deliver any Source Code, Object Code or other \ntechnology to TVsoft or to provide access to TVsoft to any development \nactivities of Netscape.\n\n     5.3    DELIVERY OF TVSOFT TECHNOLOGY BY TVSOFT.  Within thirty (30) days \nafter the earlier of a Divestiture Event or of Netscape's termination of this \nAgreement under Section 15.3, TVsoft shall provide to Netscape one (1) copy \nof all of the then existing TVsoft Technology. TVsoft shall provide to \nNetscape a complete copy the TVsoft Technology that is then used internally \nfor development by TVsoft and a complete copy of the TVsoft Technology for \nthe most recently commercially released version(s) of the TVsoft Products.\n\n     5.4    MANNER OF DELIVER.  Except for carrier, which shall be the \ndelivering party's choice, the delivering party under this Section 5 shall \ndeliver any item hereunder in accordance with the receiving party's \ninstructions. The delivering party shall deliver all items via a carrier of \nthe delivering party's choice with freight and insurance prepaid and \nseparately invoiced to the receiving party. At the receiving party's request, \nthe delivering party shall deliver items to be delivered hereunder by \nelectronic transmission whenever practicable, and provided that the receiving \nparty shall pay any sales tax and related charges that may be assessed \n(whenever assessed) by the relevant taxing authority. The receiving party \nacknowledges that electronic transmission may be subject to reasonable \nprocedure requirements (such\n\n\n                                    -10-\n\n\n\n\nas use of FTP or a modem) that may be necessary for the electronic \ntransmission to be in compliance with applicable export control laws. The \ndelivering party shall be responsible for and shall bear any and all risk of \nloss of, or damage to, any item until delivery to the site specified by the \nreceiving party. Upon delivery, risk of loss and damage shall pass to the \nreceiving party; provided, however, that the delivering party shall bear any \nloss or damage, whenever occurring, that results from the delivering party's \ninadequate packaging or other preparation for shipping. In the event of any \nloss or damage to any item while the delivering party bears the risk of loss, \nthe delivering party's sole obligation and liability shall be to redeliver \nthe item.\n\n6.   TECHNICAL SUPPORT.\n\n     6.1   PROCEDURE.  The parties intend to develop a technical assistance \nplan which will allow each party to receive assistance (the 'Assisted Party') \nin its use of the other party's Technology in a fashion which does not \ndisrupt the operations of the providing party ('Assisting Party'). Prior to \ncompletion of the plan, each party will designate one (1) technical \nassistance liaison, and all requests for technical assistance shall be in \nwriting.\n\n     6.2   TECHNICAL ASSISTANCE PLAN.  The technical assistance plan will \ninclude the following components: (a) identification of one (1) designated \ntechnical assistance liaison for each party, (b) procedures for the Assisted \nParty's designated liaisons to ask and receive assistance from the Assisting \nParty, (c) resolution procedures if designated personnel are unable to \nrespond to the Assisted Party's requests, (d) the period of time covered by \nthe Assisting Party's technical assistance obligation, (e) hours in which \ntechnical assistance will be available, and (f) such other items as the \nparties deem appropriate.\n\n     6.3   SCOPE OF TECHNICAL ASSISTANCE.  Technical Assistance under this \nSection 6 means that the Assisting Party will attempt in good faith to answer \nquestions concerning its Source Code that arise in connection with \ndevelopment by the Assisted Party, as more fully set forth in the Technical \nAssistance Plan, and subject to such limitations as the parties shall agree \nin the Technical Assistance Plan.\n\n     6.4   NOTICE.  Any documentation distributed by TVsoft for TVsoft \nProducts will clearly and conspicuously state that support questions should \nbe addressed to TVsoft or its Distribution Channel. If Netscape is \nnevertheless contacted by TVsoft's customers or its Distribution Channels, \nthen, upon the request of Netscape, the parties will cooperate to eliminate \nsuch contact. Netscape has no obligation to respond to requests for technical \nassistance or support from TVsoft's End Users or Distribution Channels.\n\n7.   DISTRIBUTION TERMS.\n\n     7.1   GOVERNMENT RESTRICTED RIGHTS.  Each party agrees to comply with \nand shall require its Distribution Channels to comply with all applicable \nlaws, rules and regulations to preclude the acquisition of unlimited rights \nto technical data pertaining to the other party's Technology to a \ngovernmental agency, and to ensure the inclusion of the appropriate notices \nrequired by U.S. Government agencies or other applicable agencies.\n\n\n                                    -11-\n\n\n\n\n     7.2   PROTECTION OF LICENSOR'S RIGHTS.  Except as expressly permitted \nherein, each party shall not copy, distribute, modify, translate, decompile, \nreverse engineer, disassemble, or otherwise determine or attempt to determine \nSource Code for the other party's products. Each party shall cooperate with \nthe other party in any legal action to prevent or stop unauthorized use, \nreproduction or distribution of other party's Source Code, Object Code, \nTechnology or Confidential Information provided hereunder.\n\n     7.3   END USER AGREEMENTS.  Each party shall distribute its products \nthat contain Derivative Works of the other party's Technology under the terms \nof end user agreements that are reasonably calculated to protect the other \nparty's rights and contain protective provisions consistent with industry \npractices for the type of product being distributed, as such practices may \nchange and evolve from time to time.\n\n     7.4   EXPORT.  TVsoft shall comply fully with all then current \napplicable laws, rules and regulations relating to the export of technical \ndata, including, but not limited to any regulations of the United States \nOffice of Export Administration and other applicable governmental agencies.\n\n     7.5   DISTRIBUTION CHANNEL AGREEMENTS.  Each party shall use its \nreasonable commercial efforts to have in place agreements containing \nprovisions substantially equivalent to the provisions of Sections 7.2, 7.3 \nand 7.4 above with those of its Distribution Channels to whom it distributes \nDerivative Works of the other party's Technology.\n\n8.   TRADEMARKS AND MARKETING.\n\n     8.1   TRADEMARKS.  The parties shall enter into a mutually agreed \nTrademark License Agreement regarding trademarks and branding for the TVsoft \nProducts.\n\n     8.2   TVSOFT'S MARKETING RIGHT.  Until the occurrence of a Divestiture \nEvent, Netscape agrees that Netscape and its Affiliates (other than TVsoft) \nwill not (i) develop, market or distribute software products (in Source Code \nor Object Code form) which are designed for use primarily on Consumer \nHardware Devices; or (ii) grant any third party any Source Code license for \nthe purpose of developing, marketing or distributing software products which \nare designed for use primarily on Consumer Hardware Devices; or (iii) grant \nany third party any license for Object Code which Netscape knows and intends \nwill be used on Consumer Hardware Devices; provided that in no event shall \nthe limitation of clause (iii) be deemed to require Netscape to include in \nits Object Code license agreements a prohibition on the use of its software \nproducts on Consumer Hardware Devices (notwithstanding whether such Object \nCode license agreements may also include a Source Code escrow provision).\n\n     8.3   NETSCAPE'S MARKETING RIGHT.  Because Netscape Technology and \nNetscape Confidential Information will be pervasive within TVsoft, TVsoft \nagrees that during the Update Period, TVsoft and its Affiliates will not \ndevelop, license, market or distribute any product that is directed to the \nmarket for personal computers or any successor products to the multipurpose \npersonal computer (including those that function as servers), or that uses a \nMicrosoft Windows, Apple Macintosh or UNIX operating system, or any new \nrelease, new version, successor, follow-on or replacement of any such \noperating\n\n\n                                     -12-\n\n\n\nsystem (other than any such release, version, successor, follow-on or \nreplacement that is designed primarily for use in connection with one or more \nof the devices listed in Section 1.5(a) above), or license any technology for \nthe purpose of developing, licensing, marketing or distributing any product \nthat is directed to the market for personal computers or any successor \nproducts to the multipurpose personal computer (including those that function \nas servers), or that uses a Microsoft Windows, Apple Macintosh or UNIX \noperating system, or any new release, new version, successor, follow-on or \nreplacement of any such operating system (other than any such release, \nversion, successor, follow-on or replacement that is designed primarily for \nuse in connection with one or more of the devices listed in Section 1.5(a) \nabove), or participate with, or sublicense any third party to engage in any \nsuch activities.\n\n     8.4   EXCEPTIONS.  TVsoft may, in its discretion, make exceptions to the \nlimitations in Section 8.2 above, and Netscape may, in its discretion, make \nexceptions to the limitations set forth in Section 8.3 above, in each case, \nupon the request by the other party with respect to business opportunities \nthat would otherwise be prohibited. Any such exceptions shall be embodied in \na writing signed by the party making the exception.\n\n     8.5   TREATMENT OF APIS -- PROCESS AND COMPATIBILITY.\n\n           (a)   The parties will work together to develop a process whereby \nNetscape will make TVsoft aware of new APIs that Netscape expects to include \nin Netscape Technology Updates, and TVsoft will make Netscape aware of new \nAPIs that TVsoft expects to include in TVsoft Products, in each case as soon \nas commercially feasible.\n\n           (b)   In the event that TVsoft uses functions of the Netscape \nTechnology in TVsoft Products, then TVsoft shall preserve in TVsoft Products \nthe same API for such function as is present in the Netscape Technology; \nhowever, with respect to additional software other than Netscape Technology or \nDerivative Works thereof that are included in TVsoft Products, TVsoft may \ninclude other APIs as it determines in its sole discretion.\n\n     8.6   STANDARDS.  TVsoft will support Netscape's applicable Internet \nstandards in the marketplace.\n\n9.   TAXES.  TVsoft shall be responsible for and shall pay all taxes now or \nhereafter imposed on or in connection with this License Agreement or with any \nsublicense granted hereunder, including, but not limited to, sales, use or \nvalue-added taxes, duties, withholding taxes and other assessments.\n\n10.  RECORDS AND AUDITS\n\n     10.1   RECORDS.  TVsoft shall maintain full, tree and accurate records \nof licenses granted hereunder to Source Code OEMs and any other agreements \nand practices involving the Source Code version of Netscape Technology.\n\n\n                                     -13-\n\n\n\n     10.2 AUDIT OF RECORDS.  Netscape shall have the right, during normal \nbusiness hours, to have an independent third party auditor review and analyze \nthe relevant records and facilities of TVsoft to verify compliance with the \nprovisions of this License Agreement. Any such audit shall be conducted at \nNetscape's expense. Netscape shall give TVsoft at least ten (10) business \ndays' prior written notice of any such audit. Audits under this Section 10.2 \nmay take place no more frequently than once in any twelve (12) month period; \nprovided, that if any such audit discloses any material breach of this \nLicense Agreement, then the next succeeding audit may be conducted after six \n(6) months.\n\n11.  PROPRIETARY RIGHTS.\n\n     11.1   NETSCAPE PROPRIETARY RIGHTS.  Title to and ownership of all \ncopies of the Netscape Technology, Netscape Technology Updates and Netscape \nTools, whether in machine-readable or printed form, and all related technical \nknow-how provided by Netscape and all intellectual property rights therein \nand thereto, are and shall remain the exclusive property of Netscape or its \nsuppliers. TVsoft shall not knowingly take any action to jeopardize, limit or \ninterfere in any manner with Netscape's ownership of and rights with respect \nto the Netscape Technology, Netscape Technology Updates and Netscape Tools. \nAny Derivative Works made by TVsoft or its licensees outside the scope of the \nlicenses granted herein shall belong exclusively to Netscape. TVsoft shall \ninform Netscape promptly in writing of any such Derivative Works and shall \nexecute and cause to be executed such instruments and documents and take such \nother actions as Netscape shall reasonably request from time to time to \neffect the foregoing assignment.\n\n     11.2   NETSCAPE PROPRIETARY NOTICES.  TVsoft shall ensure that all \ncopies of the Netscape Technology, TVsoft Products and related documentation \nconspicuously display a notice substantially in the following form:\n\n                    portions Copyright -C- 1994 -1996 (or other appropriate\n                    year(s)), Netscape Communications Corporation. All\n                    Rights Reserved.\n\n     If TVsoft is unsure of the appropriate year(s), it shall consult with \nNetscape to obtain the correct designation. If the copyright symbol -C- \ncannot technically be reproduced, TVsoft shall use the word 'Copyright' \nfollowed by the notation '(c)' in its place.\n\n     11.3   TVSOFT PROPRIETARY RIGHTS.  Title to and ownership of all copies \nof Derivative Works of the Netscape Technology, Netscape Technology Updates \nand Netscape Tools made by TVsoft within the scope of the license granted \nherein, whether in machine-readable or printed form and all related technical \nknow-how developed by TVsoft and all intellectual property rights therein, \nare and shall remain the exclusive property of TVsoft or its suppliers, in \nall cases subject to Netscape's and its suppliers' rights in the Netscape \nTechnology, Netscape Technology Updates and Netscape Tools.\n\n\n                                    -14-\n\n\n\n12.  CONFIDENTIAL INFORMATION AND DISCLOSURE\n\n     12.1   CONFIDENTIAL INFORMATION.  For the purposes of this License \nAgreement, 'Confidential Information' of Netscape means (i) the Netscape \nTechnology, Netscape Technology Updates and Netscape Tools; (ii) information \nregarding Netscape's business, marketing and technical plans (other than \ndocumentation and information expressly intended for use by and released to \nend users or the general public), and (iii) any and all other information, of \nwhatever type and in whatever medium, that is disclosed in any form by \nNetscape to TVsoft and identified as Confidential Information. 'Confidential \nInformation' of TVsoft means (i) TVsoft Technology and TVsoft tools, (ii) \ninformation regarding TVsoft's business, marketing and technical plans (other \nthan documentation and information expressly intended for use by and released \nto end users or the general public), and (iii) any and all other information \nof whatever type and in whatever medium, that is disclosed in any form by \nTVsoft to Netscape and identified as Confidential Information.\n\n     12.2   PRESERVATION OF CONFIDENTIALITY; NON-DISCLOSURE.  Each party \n('Receiving Party') shall hold all Confidential Information of the other \nparty ('Disclosing Party') in trust and in strict confidence for the sole \nbenefit of the Disclosing Party and for the exercise of the limited rights \nexpressly granted to the Receiving Party under this License Agreement. The \nReceiving Party shall take all steps reasonably necessary to preserve the \nconfidentiality of the Confidential Information of the Disclosing Party, and \nto prevent it from falling into the public domain or in the possession of \npersons other than those persons to whom disclosure is authorized hereunder, \nincluding but not limited to those steps that the Receiving Party takes to \nprotect the confidentiality of its own most highly confidential information. \nExcept as may be expressly authorized by the Disclosing Party in writing, the \nReceiving Party shall not at any time, either before or after any termination \nof this License Agreement, directly or indirectly: (i) disclose any \nConfidential Information to any person other than an employee, subcontractor \nor permitted Source Code licensee of the Receiving Party who needs to know or \nhave access to such Confidential Information for the purposes of this License \nAgreement, and only to the extent necessary for such purposes (and with \nrespect to any Source Code, only in accordance with Section 12.6 below); (ii) \nexcept as otherwise provided in this License Agreement, duplicate the \nConfidential Information for any purpose whatsoever; or (iii) use the \nConfidential Information for any reason or purpose other than as permitted in \nthis License Agreement.\n\n     12.3   NOTICE TO DISCLOSING PARTY.  If at any time the Receiving Party \nbecomes aware of any unauthorized duplication, access, use, possession or \nknowledge of any Confidential Information, including use of Confidential \nInformation beyond the scope of the applicable license grant(s), the Receiving\nParty shall immediately notify the Disclosing Party. The Receiving Party \nshall provide any and all reasonable assistance to the Disclosing Party to \nprotect the Disclosing Party's proprietary rights in any Confidential \nInformation that the Receiving Party or its employees or permitted \nsubcontractors or Source Code licensees may have directly or indirectly \ndisclosed or made available and that may be duplicated, accessed, used, \npossessed or known in a manner or for a purpose not expressly authorized by \nthis License Agreement including but not limited to enforcement of \nconfidentiality agreements, commencement and prosecution in good faith (alone \nor with the Disclosing Party) of legal action, and reimbursement for all \nreasonable attorneys' fees (and all related costs), costs and expenses \nincurred by the Disclosing Party to\n\n\n\n                                    -15-\n\n\n\nprotect its proprietary rights in the Confidential Information. The Receiving \nParty shall take all reasonable steps requested by the Disclosing Party to \nprevent the recurrence of any unauthorized duplication, access, use, \npossession or knowledge of the Confidential Information.\n\n     12.4   ACCOUNTING, ETC.  If either party violates or fails to comply \nwith any of the terms or conditions of this Section 12, the other party shall \nbe entitled to an accounting and repayment of all forms of compensation, \ncommissions, remuneration or benefits which such other party directly or \nindirectly realizes as a result of or in connection with any such violation \nor failure to comply. Such remedy shall be in addition to and not in \nlimitation of any injunctive relief or other remedies to which either party \nmay be entitled under this License Agreement or otherwise, at law or in \nequity.\n\n     12.5   EXCEPTIONS.  The foregoing restrictions will not apply to \ninformation to the extent that the Receiving Party can demonstrate such \ninformation: (i) was known to the Receiving Party at the time of disclosure \nto the Receiving Party by the Disclosing Party as shown by the files of the \nReceiving Party in existence at the time of disclosure; (ii) becomes part of \ninformation publicly available through no fault of the Receiving Party; (iii) \nhas been rightfully received from a third party authorized by the Disclosing \nParty to make such disclosure without restriction; (iv) has been approved for \nrelease by prior written authorization of the Disclosing Party; or (v) has \nbeen disclosed by court order or as otherwise required by law (including \nwithout limitation to the extent that disclosure may be required under \nFederal or state securities laws), provided that the Receiving Party has \nnotified the Disclosing Party immediately upon learning of the possibility of \nany such court order or legal requirement and has given the Disclosing Party \na reasonable opportunity (and cooperated with the Disclosing Party) to \ncontest or limit the scope of such required disclosure (including application \nfor a protective order). Information shall not be deemed known to the \nReceiving Party or publicly known for purposes of the above exceptions (A) \nmerely because it is embraced by more general information in the prior \npossession of the Receiving Party or others, or (B) merely because it is \nexpressed in public material in general terms not specifically the same as \nConfidential Information.\n\n     12.6   TREATMENT OF SOURCE CODE.  Source Code for the Netscape \nTechnology, Netscape Technology Updates, Netscape Tools, TVsoft Technology \nand TVsoft Products and any Derivative Works thereof shall be Confidential \nInformation under the foregoing terms of this Section 12 and shall in \naddition be subject to the terms of this Section 12.6.\n\n            (a)   TVsoft will limit access to the Source Code of the Netscape \nTechnology, Netscape Technology Updates and Netscape Tools solely to TVsoft \nemployees and on-site independent contractors ('Contractors') with a need to \nknow for purposes of this License Agreement, and will limit access to the \nSource Code of TVsoft Products containing Derivative Works of the Netscape \nTechnology only to employees, Source Code licensees (authorized pursuant to \nSection 2.3) and Contractors who have a need to know for purposes of this \nLicense Agreement. In the event that any third party acquires a majority of \nthe outstanding capital stock of TVsoft entitled to vote in the election of \ndirectors, or in the event of assignment of this Agreement by TVsoft pursuant \nto Section 17.3, then TVsoft agrees that:\n\n\n\n                                    -16-\n\n\n\n\n\n                  (i) its employees and Contractors who have had access to\n                  the Source Code of the Netscape Technology, Netscape\n                  Technology Updates, Netscape Tools, Derivative Works of\n                  any of the foregoing or TVsoft Products containing\n                  Derivative Works of the foregoing will not, for a period\n                  of six (6) months after the effective date of such\n                  acquisition or assignment (as applicable), participate\n                  in the development of any product that competes with the\n                  Netscape Products or TVsoft Products for TVsoft or for\n                  the acquiring party or assignee (as applicable);\n                  provided, that the foregoing provisions of this clause\n                  (i) shall not be deemed to limit any such employee or\n                  Contractor from continuing to participate in the\n                  development of TVsoft Products hereunder, and\n\n                  (ii) its employees and Contractors who have had access\n                  to the Source Code of the Netscape Technology, Netscape\n                  Technology Updates or Netscape Tools will not, for a\n                  period of six (6) months after such employee or\n                  Contractor has ceased to have access to such Source\n                  Code, participate in the development of any product that\n                  competes with the Netscape Products or TVsoft Products\n                  for the acquiring party or assignee (as applicable); (A)\n                  provided, that the foregoing provisions of this clause\n                  (ii) shall not be deemed to limit any such employee or\n                  Contractor from continuing to participate in the\n                  development of TVsoft Products hereunder; (B) provided,\n                  further, that the foregoing provisions of this clause\n                  (ii) shall terminate two (2) years after the effective\n                  date of such acquisition or assignment (as applicable);\n                  and (C) provided, further, that for the purposes of this\n                  clause (ii), loss of access to the Source Code for\n                  Netscape Technology, Netscape Technology Updates and\n                  Netscape Tools shall be deemed to occur upon the return\n                  or destruction of all copies of such Source Code under\n                  Section 17.3 or otherwise, although such return or\n                  destruction shall not be considered to be the exclusive\n                  means of demonstrating such loss of access.\n\nNetscape will limit access to the Source Code of the TVsoft Technology solely \nto Netscape employees and Contractors with a need to know for purposes of \nthis License Agreement, and will limit access to the Source Code of Netscape \nProducts containing Derivative Works of the TVsoft Technology only to \nemployees, Source Code licensees (authorized pursuant to Section 4.3) and \nContractors, who have a need to know for purposes of this License Agreement\n\n            (b)   The Receiving Party shall have in place a confidentiality \nagreement with each of its employees, Source Code licensees and Contractors \nwho are given access to the Source Code, which requires the employee, \nContractor or Source Code licensee to comply with the requirements of this \nLicense Agreement. At Netscape's or TVsoft's written request, designated \nSource Code shall be marked 'Netscape Confidential' or 'TVsoft Confidential,' \nrespectively.\n\n            (c)   Each party shall use its best efforts to protect the \nconfidentiality of the other party's Source Code, including methods of \nlimiting access. The Receiving Party will use the other party's Source Code \nin a building with restricted access or in a locked room; and only on \ncomputer systems with security\n\n\n                                    -17-\n\n\n\n\nprotection which is adequate to prevent unauthorized parties from accessing \nsuch Source Code. TVsoft shall not permit access to the Source Code of the \nTVsoft Products or Netscape Technology electronically except for individually \ncontrolled distributions to permitted Source Code licensees with protections \nadequate to avoid receipt by unauthorized parties. Each party shall be liable \nfor the conduct of its employees, agents, representatives and independent \ncontractors who in any way breach this section of this License Agreement.\n\n            (d)   If the Receiving Party decides, where permitted by the \nscope of the licenses granted in this License Agreement, to license the \nSource Code version of the other party's Technology, such license shall be \nsubject to the terms of Section 2.3 or 4.3, as applicable and protective \nterms no less protective than the terms of this Section 12.6.\n\n     12.7   CONFIDENTIALITY OF AGREEMENT.  The terms and conditions of this \nLicense Agreement shall be treated as Confidential Information; provided that \neach party may disclose the terms and conditions of this License Agreement: \n(i) to legal counsel; (ii) in confidence, to accountants, banks and financing \nsources and their advisors; (iii) in connection with the enforcement of this \nLicense Agreement or rights under this License Agreement; (iv) as required by \nlaw or regulations; and (v) to others, as mutually agreed by the parties. \nBoth parties shall treat the fact that the parties have entered into this \nLicense Agreement as Confidential Information until a mutually agreed public \nannouncement is released.\n\n     12.8   REMEDIES.  The Receiving Party acknowledges that any breach of \nany of its obligations with respect to confidentiality or use of Confidential \nInformation hereunder is likely to cause or threaten irreparable harm to the \nDisclosing Party and, accordingly, the Receiving Party agrees that in such \nevent the Disclosing shall be entitled to seek equitable relief to protect \nits interest therein, including, but not limited to, preliminary and \npermanent injunctive relief, as well as money damages.\n\n13.  WARRANTY DISCLAIMER. THE NETSCAPE TECHNOLOGY, NETSCAPE TECHNOLOGY \nUPDATES, NETSCAPE TOOLS AND TVSOFT TECHNOLOGY ARE PROVIDED ON AN 'AS IS' \nBASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY \nWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND \nNON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF SUCH \nITEMS LIES WITH THE RECEIVING PARTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES \nAN ESSENTIAL PART OF THIS LICENSE AGREEMENT.\n\n14.  LIMITATION OF LIABILITY. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO \nEVENT SHALL EITHER PARTY OR ITS VENDORS OF THIRD PARTY CODE BE LIABLE FOR ANY \nLOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF \nBUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF \nANY KIND, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING \nNEGLIGENCE) EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH \nDAMAGES, OR FOR ANY CLAIM AGAINST SUCH PARTY BY ANY THIRD PARTY; PROVIDED, \nHOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY TO A BREACH BY EITHER \nPARTY OF SECTION 12, A BREACH BY TVSOFT OF SECTION 2 OR A BREACH BY NETSCAPE \nOF SECTION 4. IN NO EVENT WILL EITHER PARTY OR ITS\n\n\n                                    -18-\n\n\n\n\n\nVENDORS OF THIRD PARTY CODE BE LIABLE FOR (A) ANY REPRESENTATION OR WARRANTY\nMADE BY THE OTHER PARTY OR ITS DISTRIBUTION CHANNELS OR AGENTS TO ANY THIRD\nPARTY; (B) FAILURE OF THE OTHER PARTY'S TECHNOLOGY TO PERFORM; (C) FAILURE OF\nTHE OTHER PARTY'S TECHNOLOGY TO PROVIDE SECURITY; OR (D) ANY USE OF THE OTHER\nPARTY'S TECHNOLOGY OR THE RESULTS OR INFORMATION OBTAINED OR DECISIONS MADE BY\nEND USERS OF THE OTHER PARTY'S TECHNOLOGY.\n\n15.  TERM AND TERMINATION\n\n     15.1  EFFECTIVE DATE. This License Agreement will not be binding upon\nthe parties until it has been signed by or on behalf of each party, in which\nevent it shall be effective as of the Effective Date. This License Agreement\nshall continue in force unless and until earlier terminated as provided herein.\n\n     15.2  TERMINATION FOR MATERIAL DEFAULT.\n\n           (a) For the purposes of this Section 15.2, 'Material\nDefault' shall mean a material failure by a party to: (i) deliver any material\nitem that it is obligated to deliver to the other party under this License\nAgreement, if such item is in existence at the time of the failure; or (ii)\ncomply with the material provisions of Section 2 (for TVsoft) or Section 4 (for\nNetscape); or (iii) comply with the provisions of Section 12; or (iv) comply\nwith the provisions of Section 8.2 (for Netscape) or Section 8.3 (for TVsoft).\n\n           (b) If either party believes that the other party is in Material \nDefault, it may deliver to the other party a written notice of termination \nfor Material Default. If such Material Default is not corrected within thirty \n(30) days after receipt of such notice, the non-defaulting party may \nterminate this License Agreement effective immediately upon notice to the \ndefaulting party.\n\n     15.3  EFFECT OF TERMINATION FOR MATERIAL DEFAULT. Upon termination of\nthis License Agreement, (a) all licenses granted herein to the defaulting party\nunder Section 2 (if TVsoft is the defaulting party) or Section 4 (if Netscape is\nthe defaulting party) shall terminate (but those licenses that are irrevocable\nunder Section 3 shall not terminate), and (b) all licenses granted herein to the\nnon-defaulting party under Section 2 (if TVsoft is the non-defaulting party)\nshall survive with respect to Netscape Technology that was delivered (or\nrequired to be delivered) under Section 5.2 prior to the effective date of\ntermination or Section 4 (if Netscape is the non-defaulting party) shall survive\nwith respect to TVsoft Technology that was delivered or is required to be\ndelivered under Section 5.3; provided that the defaulting party may continue to\nuse a reasonable number of copies of the Netscape Technology under Section 2 (if\nTVsoft is the defaulting party) or the TVsoft Technology under Section 4 (if\nNetscape is the defaulting party) for support of customers existing as of the\ntermination date. The non-defaulting party's surviving license is subject to\ntermination for Material Default as provided herein. In addition, any and all\nEnd User licenses granted prior to the effective date of termination of the\napplicable license shall survive and the defaulting party and its Distribution\nChannels shall have the right to distribute any products remaining in inventory\nafter the effective date of termination of the applicable license.\n\n\n                                      -19-\n\n\n\n\n     15.4  SURVIVAL. Sections 3, 5.3, 6.1-6.3 (according to the terms of\nthe technical assistance plan developed pursuant thereto) 6.4, 7, 10-14, 15.3,\n15.5, 16 and 17 of this License Agreement, and Sections 2 and 4 of this License\nAgreement to the extent set forth in Section 15.3 above, shall remain in effect\nin accordance with their terms, binding the parties and their legal\nrepresentatives and successors beyond any expiration or termination of this\nLicense Agreement. All other provisions shall terminate.\n\n     15.5  REMEDIES CUMULATIVE. Except as expressly provided in Section\n5.4, the remedies herein are cumulative, and nothing in this section is intended\nto preclude a party from exercising any remedy available at law or equity,\nincluding without limitation rights and remedies available under applicable\npatent, copyright, trade secret and other intellectual property laws, rules and\nregulations, due to a Material Default or any other breach.\n\n16. CHANGES OVER TIME. The parties acknowledge that, because of the rapid pace\nof technological change and evolution in the industries associated with the\nInternet and software related thereto, many of the underlying facts and\ncircumstances (including assumptions regarding the facts and circumstances) that\nwere the basis for the allocation of various rights and obligations pursuant to\nthis Agreement are likely to change over time as such industries evolve. In\ndrafting this License Agreement, the parties have addressed relevant facts and\nissues as they exist with current technologies and today's business models;\nhowever, the parties also intend for this License Agreement to remain in force\nthroughout the term as such technologies and business models change over time,\nwith appropriate modifications to reflect such equitable adjustments as are\nrequired to maintain a substantially comparable allocation of rights and\nobligations in light of changed circumstances. The parties do not intend for\nthis License Agreement to be effectively nullified or abrogated because of\nchanged circumstances, but rather intend that the intent and purpose of this\nLicense Agreement be preserved as circumstances change. To such end, the parties\nagree that certain provisions regarding the parties' respective rights and\nobligations under this License Agreement, while drafted to address current\ncircumstances, are also intended to reflect general principles to be implemented\nby the parties in a pragmatic and meaningful way as such circumstances change.\nNotwithstanding the foregoing, the provisions of this Section 16 shall not\napply to those rights and\/or obligations that should not be affected by changes\nin technology and\/or business models.\n\n17.  MISCELLANEOUS\n\n     17.1  NOTICES. Any notice or other communication required or\npermitted hereunder shall be in writing in English and shall be deemed to be\nproperly given upon the earlier of (a) actual receipt by the addressee or (b)\nseven (7) calendar days after deposit in the mail, postage prepaid, when mailed\nby registered or certified airmail, return receipt requested, or (c) two (2)\nbusiness days after being sent via private industry courier to the respective\nparties at the addresses first set forth above or to such other person or\naddress as the parties may from time to time designate in a writing delivered\npursuant to this Section 17.1. Notices to Netscape and TVsoft shall be attention\nto: General Counsel and President, respectively.\n\n     17.2  WAIVER AND AMENDMENT. The waiver by either party of a breach of\nor a default under any provision of this License Agreement, shall not be\nconstrued as a waiver of any subsequent breach of the\n\n\n                                      -20-\n\n\n\n\nsame or any other provision of this License Agreement, nor shall any delay or\nomission on the part of either party to exercise or avail itself of any right or\nremedy that it has or may have hereunder operate as a waiver of any right or\nremedy. No amendment or modification of any provision of this License Agreement\nshall be effective unless in writing and signed by a duly authorized signatory\nof Netscape and TVsoft.\n\n     17.3  ASSIGNMENT. This License Agreement and the licenses granted\nhereunder are to a specific legal entity or legal person (not including\nSubsidiaries or Affiliates except to the extent specifically set forth herein),\nand are not assignable by TVsoft or Netscape, nor are the obligations imposed on\nTVsoft or Netscape delegable; provided, however, that:\n\n           (a) with respect to TVsoft, after the earlier of (i)\n           consummation of an IPO (as defined in Section (b) of the\n           Stockholder Agreement) or (ii) the date that is one\n           hundred and thirty-five (135) days after a Divestiture\n           Event other than an IPO, TVsoft may assign this License\n           Agreement to an entity that succeeds to all or\n           substantially all of the business or assets of TVsoft;\n           provided, further, that in the event of such an\n           assignment, (x) Netscape shall have the right to require\n           TVsoft to return or destroy, at Netscape's option, all\n           copies of the Source Code for Netscape Technology,\n           Netscape Tools and Netscape Technology Updates and\n           TVsoft shall have the right to return or destroy all\n           such copies, and (y) the provisions of Section 12.6\n           shall apply. Any attempt by TVsoft to sublicense (except\n           as expressly permitted herein), assign or transfer any\n           of the rights, duties or obligations under this License\n           Agreement in derogation hereof whether by operation of\n           law or otherwise shall be null and void; and\n\n           (b) with respect to Netscape, Netscape shall have the\n           right to assign this License Agreement to an entity that\n           succeeds to all or substantially all of the business or\n           assets of Netscape.\n\n     17.4  COMPLIANCE WITH APPLICABLE LAWS. The parties shall at all times\ncomply with all applicable regulations and orders of their respective countries\nand all conventions and treaties to which their countries are a party or\nrelating to or in any way affecting this License Agreement and the performance\nby the parties of this License Agreement. Each party, at its own expense, shall\nnegotiate and obtain any approval, license or permit required in the performance\nof its obligations, and shall declare, record or take such steps to render this\nLicense Agreement binding, including, without limitation, the recording of this\nLicense Agreement with any appropriate governmental authorities (if required).\n\n     17.5  LEGAL COSTS AND EXPENSES. In the event either party retains the\nservices of an attorney or attorneys to enforce the terms of this License\nAgreement or to file or defend any action arising out of this License Agreement,\nthen the prevailing party in any such action shall be entitled, in addition to\nany other rights and remedies available to it at law or in equity, to recover\nfrom the other party its reasonable fees for attorneys and expert witnesses,\nplus such court costs and expenses as may be fixed by any court of competent\njurisdiction. The term 'prevailing party' for the purposes of this Section shall\ninclude a\n\n\n                                      -21-\n\n\n\n\ndefendant who has by motion, judgment, verdict or dismissal by the court,\nsuccessfully defended against any claim that has been asserted against it.\n\n     17.6  GOVERNING LAW: JURISDICTION. This License Agreement shall be\ngoverned by and construed in accordance with the laws of the State of\nCalifornia, U.S.A., without reference to its conflicts of law provisions. Any\ndisputes regarding this License Agreement shall be subject to the exclusive\njurisdiction of the California state courts in and for Santa Clara County,\nCalifornia (or, if there is exclusive federal jurisdiction, the United States\nDistrict Court for the Northern District of California), and the parties agree\nto submit to the personal and exclusive jurisdiction and venue of these courts.\nThis License Agreement will not be governed by the United Nations Convention of\nContracts for the International Sale of Goods, the application of which is\nhereby expressly excluded.\n\n     17.7  RELATIONSHIP OF THE PARTIES. No agency, partnership, joint\nventure, or employment is created as a result of this License Agreement and\nneither party nor its agents have any authority of any kind to bind the other\nparty in any respect whatsoever.\n\n     17.8  CAPTIONS AND SECTION HEADINGS. The captions and section and\nparagraph headings used in this License Agreement are inserted for convenience\nonly and shall not affect the meaning or interpretation of this License\nAgreement.\n\n     17.9  SEVERABILITY. If the application of any provision or provisions\nof this License Agreement to any particular facts of circumstances shall be held\nto be invalid or unenforceable by any court of competent jurisdiction, then (a)\nthe validity and enforceability of such provision or provisions as applied to\nany other particular facts or circumstances and the validity of other provisions\nof this License Agreement shall not in any way be affected or impaired thereby\nand (b) such provision or provisions shall be reformed without further action by\nthe parties hereto to and only to the extent necessary to make such provision or\nprovisions valid and enforceable when applied to such particular facts and\ncircumstances.\n\n    17.10  ENTIRE AGREEMENT. This License Agreement, including the\nAttachments hereto, constitutes the entire agreement between the parties\nconcerning the subject matter hereof and supersedes all proposals or prior\nagreements whether oral or written, and all communications between the parties\nrelating to the subject matter of this License Agreement and all past courses of\ndealing or industry custom. The terms and conditions of this License Agreement\nshall prevail, notwithstanding any variance with any other written instrument\nsubmitted by either party, whether formally rejected or not.\n\n\n                                      -22-\n\n\n\n\n     IN WITNESS WHEREOF, the parties have caused this License Agreement to be \nexecuted by duly authorized representatives of the parties effective as of \nthe Effective Date.\n\nNETSCAPE COMMUNICATIONS               TVSOFT CORPORATION\nCORPORATION\n\nBy:  \/s\/ Jim Sha                     By:\n    ----------------------                    -------------------\n        Signature                              Signature\n\nName:    JIM SHA                     Name:\n     ---------------------                     ------------------\n        Print or Type                          Print or Type\n\nTitle: SR. VICE PRESIDENT,           Title:\n       NEW VENTURES\n      --------------------                 ----------------------\n\nDate:  7\/9\/96                        Date:\n     ---------------------                     ------------------\n\n\n\n\n\n\n     IN WITNESS WHEREOF, the parties have caused this License Agreement to be \nexecuted by duly authorized representatives of the parties effective as of \nthe Effective Date.\n\nNETSCAPE COMMUNICATIONS               TVSOFT CORPORATION\nCORPORATION\n\nBy:                                   By:   \/s\/ Wei Yen\n    -------------------                    --------------------\n         Signature                              Signature\n\nName:                                 Name:  WEI YEN\n     ------------------                     -------------------\n        Print or Type                           Print or Type\n\nTitle:                                Title:  President &amp; CEO\n      -----------------                      ------------------\n\nDate:                                 Date:   7\/9\/96\n     ------------------                     -------------------\n\n\n\n\n\n                                  ATTACHMENT A\n\n                               NETSCAPE TECHNOLOGY\n\nNetscape Technology: Source Code, Object Code and related documentation for:\n\n     (1)   Netscape Navigator, LAN Edition, version 2.0,\n     (2)   Netscape Navigator Gold, LAN Edition, version 2.0,\n     (3)   Netscape Chat, version 2.0\n     (4)   Netscape LiveMedia version 2.0 \n     (5)   Netscape Live3D, version 2.0 \n     (6)   Netscape Power Pack\n     (7)   Netscape Navigator, LAN Edition. version 3.0 (currently in beta)\n     (8)   other Netscape client software products (which shall be\n           identified by the parties in writing from time to time by amendment\n           to this Attachment A)\n\nNetscape Tools: To be identified by the parties from time to time in writing \nby amendment to this Attachment A.\n\nNetscape will use its good faith, reasonable commercial efforts to identify \nother Netscape client software products and tools that it believes may be \nappropriate for addition to this Attachment A and to discuss with TVsoft \nwhether such products and tools should be added to this Attachment A.\n\nNETSCAPE COMMUNICATIONS               TVSOFT CORPORATION\nCORPORATION\n\nBy:  \/s\/ Jim Sha                      By:\n   ----------------------                 ----------------------\n         Signature                              Signature\n\nName:   JIM SHA                       Name:\n     --------------------                    -------------------\n       Print or Type                            Print or Type\n\nTitle: SR. VICE PRESIDENT,            Title:\n       NEW VENTURES\n      -------------------                    -------------------\n\nDate:                                 Date:\n     --------------------                     ------------------\n\n\n\n\n\n                                  ATTACHMENT A\n\n                               NETSCAPE TECHNOLOGY\n\nNetscape Technology: Source Code, Object Code and related documentation for:\n\n     (1) Netscape Navigator, LAN Edition, version 2.0,\n     (2) Netscape Navigator Gold, LAN Edition, version 2.0,\n     (3) Netscape Chat, version 2.0\n     (4) Netscape LiveMedia version 2.0 \n     (5) Netscape Live3D, version 2.0 \n     (6) Netscape Power Pack\n     (7) Netscape Navigator, LAN Edition. version 3.0 (currently in beta)\n     (8) other Netscape client software products (which shall be \n         identified by the parties in writing from time to time by\n         amendment to this Attachment A)\n\nNetscape Tools: To be identified by the parties from time to time in writing \nby amendment to this Attachment A.\n\nNetscape will use its good faith, reasonable commercial efforts to identify \nother Netscape client software products and tools that it believes may be \nappropriate for addition to this Attachment A and to discuss with TVsoft \nwhether such products and tools should be added to this Attachment A.\n\nNETSCAPE COMMUNICATIONS                TVSOFT CORPORATION\nCORPORATION\n\nBy:                                   By:  \/s\/ Wei Yen\n   -------------------                    -------------------\n        Signature                               Signature\n\nName:                                 Name:    WEI YEN\n     ------------------                     -------------------\n        Print or Type                           Print or Type\n\nTitle:                                Title: President &amp; CEO\n      -----------------                      -----------------\n\nDate:                                 Date:  7\/9\/96\n     -----------------                     -----------------\n\n\n\n\n\n                                   ATTACHMENT B\n\n                                 THIRD PARTY CODE\n\n(1) RSA\n(2) Borland Just In Time Compiler\n(3) Java\n(4) other Third Party Code licensed in Object Code form only (which\n    shall be identified by the parties in writing from time to time by\n    amendment to this Attachment B)\n\nWhether the above Third Party Code can be licensed by Netscape to\nTVsoft hereunder, and any restrictions, fees or consents under\nSection 2.5 will be identified in writing by Amendment to this\nAttachment B.\n\nNETSCAPE COMMUNICATIONS               TVSOFT CORPORATION\nCORPORATION\n\nBy: \/s\/ Jim Sha                       By:\n   -------------------                    ---------------------\n        Signature                              Signature\n\nName:    JIM SHA                      Name:\n     ------------------                     -------------------\n       Print or Type                            Print or Type\n\nTitle: SR. VICE PRESIDENT,            Title:\n       NEW VENTURES\n      --------------------                  -------------------\n\nDate:    7\/9\/96                       Date:\n     -----------------                     --------------------\n\n\n\n\n\n                                  ATTACHMENT B\n\n                                THIRD PARTY CODE\n\n(1) RSA\n(2) Borland Just In Time Compiler\n(3) Java\n(4) other Third Party Code licensed in Object Code form only (which\n    shall be identified by the parties in writing from time to time by\n    amendment to this Attachment B)\n\nWhether the above Third Party Code can be licensed by Netscape to\nTVsoft hereunder, and any restrictions, fees or consents under\nSection 2.5 will be identified in writing by Amendment to this\nAttachment B.\n\nNETSCAPE COMMUNICATIONS               TVSOFT CORPORATION\nCORPORATION\n\nBy:                                   By:  \/s\/ Wei Yen\n   -------------------                    -------------------\n        Signature                              Signature\n\nName:                                 Name:   WEI YEN\n     ------------------                     -------------------\n       Print or Type                           Print or Type\n\nTitle:                                Title: President &amp; CEO\n      -----------------                      -----------------\n\nDate:                                 Date:  7\/9\/96\n     -----------------                     -----------------\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8051,8328],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9616],"class_list":["post-42828","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-liberate-technologies","corporate_contracts_companies-netscape-communications-corp","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\/42828","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=42828"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42828"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42828"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42828"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}