09/08/98
TECHNOLOGY
LICENSE
AGREEMENT
between
ORACLE CORPORATION
and
NETWORK COMPUTER, INC.
SIGNATURE PAGE
This Technology License Agreement (the "Agreement") is made by and between
Oracle Corporation, a Delaware corporation ("Oracle") and Network Computer, Inc.
("NCI"), a Delaware corporation.
AGREEMENT ACKNOWLEDGMENT
The undersigned hereby acknowledge that they have read and that they fully
understand the terms of this Agreement.
The undersigned hereby agree that by signing below they become parties to this
Agreement and agree to be bound by all terms, conditions, and obligations
contained herein.
The Effective Date of this Agreement shall be September 8, 1998.
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ORACLE CORPORATION NETWORK COMPUTER INC.
By: /s/ RAY LANE By: /s/ DAVID ROUST
-------------------------------- --------------------------------
Name: Ray Lane Name: David Roust
-------------------------- --------------------------
Title: President & CCO Title: CEO
------------------------- -------------------------
EXECUTED IN DUPLICATE
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RECITALS
A. Oracle designs, develops, markets, licenses and supports information
systems software products with a wide variety of uses, including
database management, applications development, decision support,
programmer management, programmer tools, computer network
communications, end user applications, and office automation.
B. NCI owns all rights, title, and interest in, or has been licensed by
the owner of, the NCI Technology (as hereinafter defined).
C. Oracle desires to promote, market and distribute sublicenses of the NCI
Technology through its worldwide distribution channels to corporations,
governments, institutions and other entities.
D. NCI desires to grant Oracle a license to market and sublicense the NCI
Technology as specified in this Agreement.
Therefore, in consideration of the mutual promises and covenants set forth
below, Oracle and NCI agree as follows:
ARTICLE I
DEFINITIONS
1.1 DISTRIBUTOR
"Distributor" shall mean a third party that is appointed by Oracle or its
Distributor to market and sublicense all or part of the NCI Technology under the
terms of this Agreement, including "ISP Distributor" who are appointed by Oracle
to distribute NCI's Consumer Software and "SI Distributor" who are appointed by
Oracle to distribute NCI's Corporate Software.
1.2 DOCUMENTATION
"Documentation" shall mean the installation guides, user guides and manuals for
use of the NCI Technology in printed and machine-readable form.
1.3 INTELLECTUAL PROPERTY RIGHTS
"Intellectual Property Rights" shall mean all patent, copyright, trade secret,
trademark and other intellectual property rights.
1.4 NCI TECHNOLOGY
"NCI Technology" shall mean the NCI Consumer Software, the NCI Corporate
Software and the NCI SDK Software. Additional software may be added to Exhibit A
(including localized versions of the NCI Technology) upon mutual written
agreement of the parties.
1.5 NCI CONSUMER SOFTWARE
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"NCI Consumer Software" shall mean the computer software specified as "NCI
Consumer Software" on Exhibit A owned or distributed by NCI and any Updates
thereto. Unless otherwise specified, "NCI Consumer Software" shall include
Object Materials and Documentation.
1.6 NCI CORPORATE SOFTWARE
"NCI Corporate Software" shall mean the computer software specified as "NCI
Corporate Software" on Exhibit A owned or distributed by NCI and any Updates
thereto. Unless otherwise specified, "NCI Corporate Software" shall include
Object Materials and Documentation.
1.7 NCI SDK SOFTWARE
"NCI SDK Software" shall mean the computer software specified as a "Software
Development Kit" on Exhibit A owned or distributed by NCI and any Updates
thereto. Unless otherwise specified, "NCI SDK Software" shall include Object
Materials and Documentation.
1.8 NCI PRICE LIST
"NCI Price List" shall mean NCI's suggested retail price list for the NCI
Technology. A current copy of NCI's Price List is attached hereto as Exhibit C
and may be updated by NCI from time to time by providing sixty days written
notice of such update to Oracle's Vice President of Worldwide Operations. All
prices in the NCI Price List are in U.S. dollars.
1.9 OBJECT MATERIALS
"Object Materials" shall mean materials, in machine-readable form, necessary to
run the NCI Technology, including all computer programming code, substantially
or entirely in binary form, which is directly executable by a computer after
suitable processing but without the intervening steps of compilation or assembly
and all help, message, and overlay files.
1.10 ORACLE
"Oracle" shall mean Oracle Corporation and any Oracle Subsidiary. "Oracle
Subsidiary" shall mean any corporation, partnership or firm, in which Oracle,
directly or indirectly, holds a fifty percent (50%) or more ownership interest.
1.11 SUBLICENSE/SUBLICENSEE
"Sublicense" shall mean any license granted by Oracle or its Distributors for
use of NCI Technology. "Sublicensee" shall be a party who is granted a
Sublicense, either directly by Oracle or indirectly by a Distributor.
1.12 UPDATES
"Updates" shall mean any releases (including any preproduction releases) of NCI
Technology created on or after the Effective Date, including bug fixes,
improvements, enhancements, new versions or releases, and successor products
thereto (including any product that substantially replaces the NCI Technology or
portion thereof in a particular market segment) which NCI provides to Oracle as
a supported licensee of the NCI Technology under NCI's Technical Support
Services policies.
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1.14 YEARS, QUARTERS
For the purposes of this Agreement, "Quarters" shall be deemed to commence on
the first day of June, September, December and March of each year of this
Agreement and each year of the Agreement shall be determined using the Effective
Date as the first day of the first year.
ARTICLE II
LICENSES GRANTED
2.1 DELIVERY OF NCI TECHNOLOGY
NCI shall deliver to Oracle the NCI Technology, including a complete set of
Object Materials and Documentation for the NCI Technology (except for NC Cards)
on the Effective Date of this Agreement and shall deliver all Updates of the NCI
Technology promptly upon completion, and in no event later than when such
Updates are delivered to any other licensee. In addition, NCI shall deliver
pre-production releases of the NCI Technology ("Beta NCI Technology") to Oracle
promptly upon completion and in no event later than when such Beta NCI
Technology is delivered to any other licensee subject to Oracle's execution of
NCI's standard Beta Agreement.
NCI shall deliver to Oracle the number of NC Cards requested by Oracle as soon
as commercially feasible after receiving a purchase order from Oracle for the NC
Cards.
2.2 DEVELOPMENT AND TECHNICAL SUPPORT LICENSE
NCI grants to Oracle a worldwide, royalty-free, non-exclusive, paid-up right and
license to execute, copy, reproduce, display, perform, develop, create
derivative works based on or otherwise use, change and/or maintain the Object
Materials and Documentation. Oracle shall only port, localize, translate and/or
customize the NCI Technology upon NCI's request under the terms and conditions
of the Services Agreement between Oracle and NCI effective as of the date
hereof.
NCI also grants to Oracle a worldwide, royalty-flee, non-exclusive, paid-up
right and license to use, execute, copy, reproduce, display, and/or perform the
NCI Technology as required to provide technical support services to end users of
the NCI Technology, provided that the foregoing grant shall be subject to any
applicable restrictions on internal use of embedded third party technology which
Oracle receives prior written notice of from NCI and which are imposed by NCI's
license agreements in effect with third party vendors. A current list of third
party restrictions is set forth on Exhibit G and Oracle shall comply with those
restrictions which specifically apply to internal use of the NCI Technology.
NCI also grants to Oracle a worldwide, royalty-flee, non-exclusive, paid-right
and license to use, execute, copy, reproduce, display and/or perform the NCI
Beta Technology for internal evaluation purposes only. Oracle shall have no
right to sublicense the NCI Beta Technology without the prior written approval
of the General Counsel and NCI Oracle Channel Manager (as defined on Exhibit E)
or other NCI designated representative. If such approval is granted, Oracle
shall have the right to sublicense the NCI Beta Technology under the terms and
conditions specified in Section 2.3 below for the NCI Technology.
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2.3 SUBLICENSING LICENSE
2.3.A SCOPE OF LICENSE.
Subject to the terms set forth herein, NCI hereby grants to Oracle a
worldwide, non-exclusive right and license to market, reproduce,
distribute and grant Sublicenses of the Object Materials and
Documentation of the NCI Technology including all Updates for use the
designated systems specified on NCI's Price List; provided, however,
that Oracle may not sublicense, without NCI's prior consent, the NCI
Technology to any customer listed on Exhibit D. Unless otherwise agreed
by the parties, Oracle and Distributors shall sublicense the NCI
Technology to end users under the applicable NCI standard end user
license agreement attached hereto as Exhibit H (the "NCI License") or
as such agreements are modified by NCI from time to time (which
modifications shall not impose any liability upon Oracle). For example,
the NCI SDK Software shall be sublicensed under the NCI SDK End User
License attached as part of Exhibit H. The NCI Technology provided by
NCI to Oracle under this Agreement shall contain an electronic version
of the applicable NCI License which shall be automatically presented to
the end user for acceptance during the installation process. Oracle
shall have no liability for its distribution of the NCI Technology
under an NCI License.
2.3.B DISTRIBUTORS.
NCI grants Oracle the right to license, sublicense and authorize
Distributors to market and sublicense to end users the Object Materials
and Documentation. of the NCI Technology including all Updates under
the terms of this Agreement, excluding the right to license, sublicense
and authorize other distributors to exercise the same rights unless NCI
has given its prior written approval to grant the Distributor the right
to appoint sub-distributors, which approval shall not be unreasonably
withheld. Except for ISP Distributors, Oracle will appoint Distributors
to grant sublicenses to the NCI Technology under the same terms and
conditions under which Oracle appoints Distributors to sublicense its
own products. A copy of Oracle's current distribution agreement is
attached as Exhibit B hereto. For ISP Distributors, Oracle will appoint
ISP Distributors to grant sublicenses to the NCI Consumer Software
under the same terms and conditions under which Oracle appoints
Distributors to sublicense its own products provided that Oracle shall
also have each ISP Distributor execute an ISP Addendum substantially in
the form attached hereto as Exhibit I.
2.3.C TRADEMARKS.
During the term of the Agreement, NCI hereby grants to Oracle and its
Distributors a nonexclusive, fully paid up license to use in connection
with marketing and distributing the NCI Technology the product name(s)
and trademark(s) used by NCI to identify the NCI Technology, subject to
Oracle's and Distributors' compliance with NCI's Signature Guidelines
attached as Exhibit F hereto, and to use such product names and
trademarks with Oracle trademarks in a manner that identifies such
products as parts of the Oracle product set. Oracle and Distributors
shall attribute all NCI product names and trademarks to NCI in Oracle's
use of such product names and trademarks.
2.4 INTERNAL USE LICENSE
Oracle shall have the perpetual, unrestricted right to reproduce, install and
use the NCI Technology, including Updates for its own internal use at no
additional charge; provided that Oracle's right to reproduce and distribute the
NCI Technology internally shall be limited to the term of this Agreement. This
right of internal use applies only to Oracle and Oracle Subsidiaries, and shall
not be extended to other Distributors and Sublicensees. Oracle will pay a
mutually agreed upon royalty to NCI for such internal use only if: (i)
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NCI is obligated to pay a third party a royalty for the internal use license
grant to Oracle; and (ii) NCI provides Oracle with advance written notice of
this obligation and the amount of the royalty; and (iii) Oracle agrees in
writing to pay such royalty. If the parties are unable to agree upon such
royalty, Oracle's internal right to use and reproduce the applicable portion of
the NCI Technology requiring a third party royalty will cease. Other than as
specified in the preceding sentence, Oracle's internal use license shall be
fully paid up and royalty free.
2.5 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
NCI further grants to Oracle a worldwide, nonexclusive, nontransferable and
paid-up license to all Intellectual Property Rights necessary to use the NCI
Technology in accordance with the license granted under this Agreement; such
Intellectual Property Rights are included in the licenses granted to Oracle
under this Agreement.
Other than as licensed herein, NCI shall retain all right, title and interest to
NCI Technology and the NCI Beta Technology and any modification, enhancement,
localization or extension of the NCI Technology developed by Oracle under this
Agreement ("Modifications"). Modifications shall exclude any Application
Modifications as defined below. NCI hereby grants to Oracle a non-exclusive,
irrevocable, perpetual, worldwide, royalty free, fully paid-up license to use,
reproduce, modify, create derivative works based on, and sublicense the
Applications Modifications, including the right to sublicense through
distributors.
"Applications Modifications" shall mean any modifications, adaptations or
derivatives to NCI's SDK Software developed by or on behalf of Oracle which are
either (i) solely artwork modifications or (b) HTML or JAvaScript code (not
object) modifications specific to Oracle's Sublicenssee's implementation of the
NCI Technology. The parties shall jointly own all right, title and interest in
and to any Applications Modifications. Each party shall have non-exclusive,
undivided, equal ownership in the Application Modifications. Each party may
exercise any and all rights of ownership and may sublicense such rights in the
Application Modifications as if such rights were solely owned by each such
party, without permission of the other party, royalty-free and without duty to
account. Nothing in this paragraph shall grant to Oracle a license in the
underlying NCI Technology or NCI a license in any pre-existing Oracle programs
of Intellectual Property Rights.
NCI shall have sole responsibility for payment of all royalties and other
charges with respect to third party materials included in the NCI Technology, if
any. Oracle shall have no obligation to pay or account for such royalties or
other charges.
2.6 JOINT MARKETING AND SALES ACTIVITIES
The parties agree to undertake the joint marketing efforts identified on Exhibit
E. Except as specified on Exhibit E, Oracle shall have no obligation to market
the NCI Technology or any products containing the NCI Technology if it so
chooses, shall have full freedom and flexibility in the design and
implementation of its marketing efforts, and may discontinue any marketing
efforts at any time.
2.7 QUARTERLY MEETINGS
The parties agree to hold quarterly review meetings as necessary to review
business opportunities and marketing strategies.
ARTICLE III
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FEES AND PAYMENTS
3.1 SUBLICENSE FEES
Oracle will pay to NCI a fee equal to seventy percent (70%) of the Net Fees
Oracle receives for Sublicenses of the NCI Technology, excluding NC Cards
("Sublicense Fee"). In no case, however,' shall the Sublicense Fee be less than
forty-nine percent (49%) of the NCI Price List for the NCI Technology which was
sublicensed ("Minimum Sublicense Fee"), except as the parties may agree in
writing on a case by case basis. The Minimum Sublicense Fee shall be calculated
effective the date the NCI Technology is shipped, and shall be calculated based
on the NCI Price List attached as Exhibit C. NCI may amend the NCI Price List no
more than once every six months upon sixty (60) days written notice to Oracle's
Vice President of Worldwide Operations. Notwithstanding any other provision of
this Agreement, if Oracle issues a written Sublicense quote, for a period of
nine months after the date of submission of the quote to the customer, the
Minimum Sublicense Fee applicable to the NCI Technology identified in the quote
shall be based on NCI's Price List in effect on the date the quote was issued.
"Net Fees" shall mean fees received by Oracle from its Sublicensees and from its
Distributors net of any return adjustments for NCI Technology returned within 90
days of shipment, shipping costs, or sales, use or other taxes paid. In the
event that Oracle or its Distributors sublicenses the NCI Technology with other
Oracle products or services for a single price, Net Fees from such Sublicense
shall equal the total Net Fees from the Sublicense multiplied by a fraction
A/(A+B), where A equals the list price of the NCI Technology sublicensed
separately and B equals the list price of the other products or services. If the
NCI Technology is bundled in a site license or package deal, and fees for the
NCI Technology are not distinguishable from fees for other Oracle products that
are part of the site license or package deal, the Net Fees for the NCI
Technology shall be based on the fee allocation agreed to by Oracle and the
Sublicensee for the products specified in the site license or package deal or on
the fee allocation made by Oracle's internal procedures, provided such
allocation reasonably reflects the relative value of the NCI Technology to the
other Oracle products.
Oracle agrees not to sublicense the NCI Technology in a manner which is
inconsistent with Oracle's then current standard pricing structure for products
without the prior written approval of NCI. Oracle agrees not to sublicense the
NCI Technology to a Sublicensee where the number of users/devices of the NCI
Technology is not specified in the Sublicense without NCI's prior written
consent.
NCI warrants to Oracle that the Sublicense Fees and other charges under this
Agreement shall not exceed those offered to others for similar rights, services
or products under similar terms and conditions. NCI agrees that if, while this
Agreement is in effect, NCI offers to any other person or entity equivalent
rights (including license grants), services or products at lesser Sublicense
Fees or charges, thereupon and thereafter NCI shall make available to Oracle
such lesser Sublicense Fees and charges for all such rights, services or
products. NCI agrees to notify Oracle at the time it offers such lesser
Sublicense Fees or charges to others.
Oracle and its Distributors are free to determine unilaterally the pricing of
NCI Technology Sublicenses to their Sublicensees and Distributors; provided,
however, that Oracle will not grant an end user a license discount that is
greater for the NCI Technology than for the most heavily discounted Oracle
program(s) of a like nature included in the same transaction, where the
discounts are calculated as a percentage of Oracle's then-current list license
fees. No Sublicense Fee or other charge shall be payable by Oracle for any use
of
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the NCI Technology under this Agreement (i) for Oracle's internal use; (ii) for
development, technical support or maintenance activities; (iii) for marketing,
updates, trial Sublicenses (for which Oracle does not receive a license fee from
the Sublicensee), porting, documentation, demonstrations, training, educational
uses, or any other products or services; or (iv) as back-up copies. The
foregoing rights and licenses shall be deemed to be paid-up.
3.2 NC CARD FEES
Oracle shall pay to NCI a fee for each NC Card received from NCI under Section
2.1.B ("NC Cards") above which shall be equal to the amount paid by NCI for such
NC Card. NCI shall invoice Oracle for such NC Card Fees on a monthly basis and
shall provide Oracle with adequate written documentation to support the amount
charged for such NC Cards.
ARTICLE IV
PAYMENT TERMS AND REPORTING
4.1 PAYMENT TERMS
Within forty-five (45) days of the end of each Quarter, Oracle shall pay to NCI
all Sublicense Fees and Technical Support Fees accruing to NCI for that
particular Quarter. Sublicense Fees and Technical Support Fees shall be deemed
to accrue in the Quarter in which the NCI Technology is shipped. All other fees
shall be due and payable forty-five days from the receipt of an invoice from NCI
for such fees. The fees listed in this Agreement do not include taxes; if NCI is
required to pay sales, use, value-added or other similar taxes (excluding taxes
based on NCI's income) based on the licenses granted under this Agreement, then
such taxes shall be billed to and paid by Oracle.
4.2 REPORTING
Within forty-five (45) days of the last day of each Quarter, Oracle shall send
NCI a report detailing, for that Quarter the revenues due to NCI under this
Agreement as a result of Oracle's and its Distributors' Sublicensing activities
under this Agreement.
4.3 RECORDS; INSPECTION
Oracle shall keep accurate books of account and records pertaining to the
Sublicense activities and revenues of Oracle and the Sublicense revenues from
its Distributors to the extent such records are required in the ordinary course
of Oracle's business. No more than once during any twelve (12) month period,
NCI, at NCI's sole expense and based on a good faith belief that the reports
provided by Oracle are in error, shall be entitled to employ an independent
Certified Public Accountant who is not compensated based on the results of the
audit, and who is acceptable to Oracle (which acceptance shall not be
unreasonably withheld), to inspect such books of account and records upon
reasonable notice to Oracle, and at a reasonable time during normal business
hours for the purpose of verifying the Sublicense Fees and Technical Support
Fees payable to NCI pursuant to this Agreement. Unless necessary to establish in
a court of law NCI's right to payment of Sublicense Fees and Technical Support
Fees payable hereunder, NCI's auditor shall hold all information obtained in
strict confidence; shall not disclose such information to any other person or
entity (except NCI's executive officers) or its Board of Directors who shall be
subject to the same obligations of confidentiality as NCI's auditor) without
Oracle's prior written consent; and shall not disclose to NCI any information
regarding Oracle's business other than any noncompliance by Oracle with the fees
payment provisions
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hereof. If an audit reveals that Oracle has underpaid fees to NCI, NCI shall
invoice Oracle for such underpaid fees and Oracle shall pay any such fees which
are undisputed.
ARTICLE V
TECHNICAL RESPONSIBILITIES
5.1 TECHNICAL SUPPORT SERVICES
Oracle and its Distributors shall provide all technical support to their
Sublicensees and Distributors, including installation assistance, training,
maintenance, and consulting. The parties have negotiated a separate Technical
Support Services Agreement effective as of the date hereof. NCI shall provide
Technical Support to Oracle for the NCI Technology as specified in the Technical
Support Services Agreement.
ARTICLE VI
TERM AND TERMINATION
6.1 INITIAL TERM--3 YEARS
This Agreement shall become effective on the Effective Date set forth on the
Signature Page attached hereto, and unless it is terminated shall be effective
for three (3) years from the Effective Date.
6.2 TERMINATION OF THE AGREEMENT
6.2.A TERMINATION.
Either party may terminate this Agreement at any time upon one hundred
and eighty days written notice; however, termination shall not relieve
Oracle of its obligation to pay all fees that have accrued against
Oracle under this Agreement. Such termination shall not limit either
party's ability to pursue other legal remedies available, including
injunctive relief.
6.2.B BREACH.
Either party may terminate this Agreement upon written notice if the
other party materially breaches the Agreement and (i) fails to commence
bona fide efforts to correct the breach within 90 days following
written notice specifying the breach or (ii) fails to cure the breach
within 180 days following written notice specifying the breach.
6.2.C FORCE MAJEURE.
Neither party shall be liable TO the other for failure or delay in the
performance of a required obligation if such failure or delay is caused
by riot, fire, flood, explosion, earthquake or other natural disaster,
government regulation, or other similar cause beyond such party's
control, provided that such party gives prompt written notice of such
condition and resumes its performance as soon as possible, and provided
further that the other party may terminate this Agreement if such
condition continues for a period of one hundred eighty (180) days.
6.3 RIGHTS UPON TERMINATION
6.3.A CONTINUED RIGHTS.
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The termination of this Agreement shall not affect any paid-up right or
license granted hereunder. In the event of termination of this
Agreement, in whole or in part, any Sublicense granted by Oracle or its
Distributors to an end user prior to such termination or under the
terms of this Article VI, shall survive and continue. Except where NCI
has terminated the Agreement due to Oracle's material breach under
Section 6.2.B above, in the event of termination of expiration of the
Agreement, (i) Oracle may Sublicense and distribute any inventory of
the NCI Technology, including work in process, on hand at the time of
such termination, (ii) Oracle may continue to exercise the rights and
licenses granted hereunder for a period of up to six (6) months after
termination to fill any orders received by Oracle or its Distributors
from Sublicensees prior to the effective date of termination, and
(iii) Oracle may continue to exercise the rights and licenses granted
hereunder as necessary to provide maintenance and technical support for
Sublicensees.
6.3.B SURVIVAL.
In addition to the provisions of Sections 6.3.A and 6.3.B above, the
parties' rights and obligations under Sections 2.3 (Internal Use
License), 2.4 (Intellectual Property Rights), 8.1 (Nondisclosure), 8.3
(Governing Law and Jurisdiction), 8.4 (Assignment), 8.5 (Notice) and
Articles VI (Term and Termination), and VII (Representations and
Warranties) shall survive expiration or termination of this Agreement.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 NO CONFLICT
NCI represents and warrants that it is under no obligation or restriction, nor
will it assume any such obligation or restriction, that does or would in any way
adversely affect the performance to be rendered by NCI or the rights and
licenses granted to Oracle herein.
7.2 INTELLECTUAL PROPERTY WARRANTY AND INFRINGEMENT INDEMNITY
NCI will defend and indemnify Oracle against a claim that NCI Technology
infringe a copyright or patent or other intellectual property right, provided
that: (a) Oracle notifies NCI in writing within 30 days of the claim; (b) NCI
has sole control of the defense and all related settlement negotiations; and (c)
Oracle provides NCI with the assistance, information and authority necessary to
perform NCI's obligations under this Section. Reasonable out-of-pocket expenses
incurred by Oracle in providing such assistance will be reimbursed by NCI. NCI
shall have no liability for any claim of infringement (i) based on use of a
superseded or altered release of NCI Technology if the infringement would have
been avoided by the use of a current unaltered release of the NCI Technology
which NCI provides to Oracle; (ii) arising from any use by Oracle or its
Distributors of any product not provided by NCI but used in combination with the
NCI Technology (excluding however, non-NCI software or products necessary or
appropriate to use the NCI Technology, such as a computer or operating system)
if such claim would have been avoided by the exclusive use of the NCI Technology
or (iii) based on use of a version of the NCI Technology which has been modified
by Oracle or its Distributors if the infringement would have been avoided by the
use of the unmodified NCI Technology.
In the event the NCI Technology are held or are believed by NCI to infringe, NCI
shall have the option, at its expense, to (a) modify the NCI Technology to be
noninfringing; or (b) obtain for Oracle a license to continue using the NCI
Technology. If it is not commercially reasonable to perform either of the above
options, then NCI may terminate the license for the infringing NCI Technology
and refund the license fees
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paid for the NCI Technology. This Section 7.2 states NCI's entire liability and
Oracle's exclusive remedy for infringement.
7.3 PRODUCT WARRANTY
NCI warrants for a period o done year from the delivery of the NCI Technology by
Oracle or a Distributor to an end user that the NCI Technology will perform the
functions, and comply in all material respects with the specifications,
described in the Documentation when operated on the appropriate
hardware/operating system environment specified in the Documentation.. In
addition, NCI warrants that the NCI Technology including, without limitation,
any time-and-date-related codes, data entry features and internal subroutines
thereof, is designed (a) to automatically accommodate the change in the dated
from December 31, 1999 to January 1, 2000 without negatively affecting the NCI
Technology's performance, and (b) to accurately accept, reflect and calculate
all dates that are relevant to the NCI Technology's performance, and (b) to
accurately accept, reflect, and calculate all dates that are relevant to the NCI
Technology's performance. THESE WARRANTIES ARE THE EXCLUSIVE PRODUCT WARRANTIES
AND IN LIEU OF ALL OTHER PRODUCT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS
FOR A PARTICULAR PURPOSE, NCI DOES NOT WARRANT THAT THE NCI TECHNOLOGY WILL
OPERATE IN COMBINATIONS OR ON PLATFORMS OR OPERATING SYSTEMS OTHER THAN AS
SPECIFIED IN THE DOCUMENTATION OR THAT THE OPERATION OF THE NCI TECHNOLOGY WILL
BE UNINTERRUPTED OR ERROR FREE.
7.4 LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, incidental, special
or consequential damages, or damages for loss of profits, revenue, data or use,
incurred by either party or any third party, whether in an action in contract or
tort, even if the other party or any other person has been advised of the
possibility of such damages, Except for claims involving the intellectual
property rights of a party, each party's liability for damages hereunder shall
in no event exceed double the amount of fees paid by Oracle under this
Agreement, and if such damages result from Oracle's or a Sublicensee's sue of
the NCI Technology or services, such liability shall be limited to fees paid for
the relevant NCI Technology or services gibing rise to the liability.
The provisions of this Article VII allocate the risks under this Agreement
between NCI and Oracle and are an intrinsic part of the bargain between the
parties. The fees provided for in this Agreement reflect this allocation of
risks and the limitation of liability specified herein.
ARTICLE VIII
MISCELLANEOUS
8.1 NONDISCLOSURE
It is expected that the parties may disclose to each other certain information
which may be considered confidential and trade secret information ("Confidential
Information"). Confidential Information shall include: (a) the NCI Technology
and Oracle products; (b) Confidential Information disclosed by either party in
writing that is marked as confidential at the time of disclosure; or (c)
Confidential Information disclosed by either party in any other manner and is
identified as confidential at the time of disclosure and is also summarized and
designated as confidential in a written memorandum delivered to the receiving
party within thirty (30) days of the disclosure.
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Confidential information shall not include information which (a) is or becomes a
part of the public domain through no act or omission of the other party; (b) was
in the receiving party's possession before receipt from the party providing such
Confidential Information; (c) is rightfully received by the receiving party from
a third party without any duty of confidentiality; (d) is disclosed to a third
party by the party providing the Confidential Information without a duty of
confidentiality on the third party; (e) is independently developed by the other
party; (f) is disclosed under operation of law; or (g) is disclosed with the
prior written approval of the party providing such Confidential Information.
All Confidential Information owned solely by one party and disclosed to the
other party shall remain solely the property of the disclosing party. The
parties agree, both during the term of this Agreement and for a period of five
(5) years after termination or expiration of this Agreement to hold each other's
Confidential Information in confidence and to protect the disclosed Confidential
Information by using the same degree of care to prevent the unauthorized use,
dissemination or publication of the Confidential Information as they use to
protect their own confidential information of a like nature. The parties agree
not to make each other's Confidential Information available in any form to any
third party or to use each other's Confidential Information for any purpose
other than the implementation of this Agreement. Each party agrees to restrict
disclosure of the Confidential Information to those of its employees who have a
"need to know" and to take all reasonable steps to ensure that Confidential
Information is not disclosed or distributed by its employees in violation of the
provisions of this Agreement.
In addition, notwithstanding the above, each party may use the residuals from
the other party's Confidential Information. The term "residuals" as used in this
paragraph shall mean the Confidential Information in nontangible form (i.e., not
in written or other documentary form, including tape or disk) which may be
retained by those employees of NCI or Oracle who have had access to the other's
Confidential Information including ideas, concepts, know-how, or techniques
contained therein. Neither party shall have any obligation to limit or restrict
the assignment of such employees or to pay royalties for any work resulting from
the use of residuals.
8.2 INDEPENDENT DEVELOPMENT/FREEDOM OF ACTION
Each party acknowledges that the other party is in the software development
business. Nothing in this Agreement shall be construed to preclude either party
from developing, using, marketing, licensing, and/or selling any independently
developed software which has the same or similar functionality as NCI Technology
or Oracle products, or any other products, so long as such activities do not
infringe the Intellectual Property Rights of the other party.
Additionally, nothing in this Agreement shall be construed to limit either
party's right to obtain services or software programs from other sources, to
prohibit either party from acquiring and marketing competitive materials, to
restrict either party from making, having made, using, marketing, leasing,
licensing, selling or otherwise disposing of any products or services
whatsoever, nor to limit either party's right to deal with any other vendors,
suppliers, contractors or customers.
8.3 GOVERNING LAW AND JURISDICTION
This Agreement, and all matters arising out of or relating to this Agreement,
shall be governed by the procedural and substantive laws of the State of
California and shall be deemed to be executed in Redwood City, California. Any
legal action or proceeding relating to this Agreement shall be instituted in a
state or
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federal court in San Francisco or San Mateo County, California. Oracle and NCI
agree to submit to the jurisdiction of, and agree that venue is proper in, these
courts in any such legal action or proceeding.
8.4 ASSIGNMENT
Except for an assignment by Oracle to any parent corporation, Oracle Subsidiary,
or successor in interest to Oracle, neither party may assign any rights, duties,
obligations or privileges under this Agreement without the prior written consent
of the other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, either party may assign any rights, duties,
obligations or privileges under this Agreement without the prior written consent
of the other party in the event of a merger, acquisition or sale of all or
substantially all of the assigning party's assets.
8.5 NOTICE
All notices required to be given hereunder shall be in writing and shall be
deemed to have been given upon deposit in first class mail, sent through a
nationally recognized courier service, or transmission by confirmed
telefacsimile as follows:
For NCI: Network Computer, Inc.
1000 Bridge Parkway
Redwood Shores, CA 94065
Attn: General Counsel
For Oracle: Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
Attn: General Counsel
8.6 INTERPRETATION
This Agreement, including any exhibits, addenda, schedules and amendments, has
been negotiated at arm's length and between persons sophisticated and
knowledgeable in the matters dealt with in this Agreement. Each party has been
represented by experienced and knowledgeable legal counsel. Accordingly, any
role of law (including California Civil Code Section 1654) or legal decision
that would require interpretation of any ambiguities in this Agreement against
the party that has drafted it is not applicable and is waived. The provisions of
this Agreement shall be interpreted in a reasonable manner to effect the
purposes of the parties and this Agreement.
8.7 ENTIRE AGREEMENT
Except for the Technical Support Services Agreement between the parties dated
August 12, 1998, this Agreement sets forth the entire agreement between the
parties and supersedes prior proposals, agreements, and representations between
them, whether written or oral, relating to the subject matter contained herein.
This Agreement may be changed only if agreed to in writing and signed by an
authorized signatory of each party.
8.8 EXPORT
The parties agree to comply fully with all laws and regulations to assure that
neither NCI Technology, nor any direct product thereof, is exported, directly or
indirectly, in violation of law. Upon Oracle's request, NCI shall advise Oracle
of all relevant export classifications of the NCI Technology and shall promptly
advise Oracle of any changes with respect to such classification.
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8.9 SEVERABILITY
If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
8.10 COUNTERPARTS
This Agreement may be executed in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
8.11 NO WAIVER
The failure of any party to enforce any of the provisions hereof shall not be
construed to be a waiver of the right of such party thereafter to enforce such
provisions.
8.12 FEDERAL GOVERNMENT SUBLICENSES
If Oracle or a Distributor grants a Sublicense to the United States government,
the NCI Technology shall be provided with "Restricted Rights" and Oracle will
place a legend, in addition to applicable copyright notices, on the
documentation, and on the tape or diskette label, substantially similar to the
following:
RESTRICTED RIGHTS LEGEND
"Programs delivered subject to the DOD FAR Supplement are "commercial computer
software" and use, duplication and disclosure of the Programs shall be subject
to the licensing restrictions set forth in the applicable licensing agreement.
Otherwise, Programs delivered subject to the Federal Acquisition Regulations are
"restricted computer software" and use, duplication and disclosure of the
Programs shall be subject to the restrictions in FAR 52..227-14 Rights in Data--
General, including Alternate m (June 1987)."
8.13 PUBLICITY
Neither party shall disclose to any third party any details of this Agreement,
or even the fact of its existence, without the specific prior written approval
of the other party, which approval shall not be unreasonably withheld, or as
required by law in order to enforce its rights under this Agreement.
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EXHIBIT A
NCI TECHNOLOGY
NCI CONSUMER SOFTWARE
Custom Connect Server Suite
Custom Connect Server Deployment License Fees
NCI CORPORATE SOFTWARE
NC Administration Server
NC Desktop Deployment Licenses
NC Smart Card
NCI SDKS
TV Navigator SDK for x86
TV Navigator Customization Kit
TV Navigator Content Development Kit
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EXHIBIT B
"ORACLE LOGO"
ORACLE ALLIANCE AGREEMENT
This Oracle Alliance Agreement (the "Agreement") is between Oracle Corporation
("Oracle") and the Alliance Member identified below. The terms of this Agreement
shall apply to each Program license granted and to all services provided by
Oracle under this Agreement, which will be identified on one or more Order
Forms.
1. DEFINITIONS
1.1 "COMMENCEMENT DATE" means the date on which the Programs are delivered
by Oracle, or if no delivery is necessary, the Effective Date set forth
on the relevant Order Form.
1.2 "DESIGNATED SYSTEM" shall mean the computer hardware and operating system
designated on the relevant Order Form or Sublicense report for use in
conjunction with a Sublicensed Program, Development License, or Marketing
Support License.
1.3 "DOCUMENTATION" means the user guides and manuals for installation and use
of the Program software. Documentation is provided in CD-ROM or bound form,
whichever is generally available.
1.4 "ORDER FORM" shall mean the document in hard copy or electronic form by
which the Alliance Member orders Program licenses, Sublicenses, and
services, and which is agreed to by the parties. The Order Form shall
reference the Effective Date of this Agreement.
1.5 "PROGRAM" shall mean the software in object code form distributed by Oracle
for which the Alliance Member is granted a license or grants a Sublicense
pursuant to this Agreement; and the media, Documentation, and Updates
therefor.
1.6 "SUBLICENSE ADDENDA" shall mean the addenda to this Agreement specifying
additional Sublicense terms and Sublicense rates and fees for the various
types of Sublicenses which may be granted by the Alliance Member.
1.7 "SUBLICENSE" shall mean a nonexclusive, nontransferable right granted by or
through the Alliance Member to an end user to use an object code copy of
the Programs with the Value-Added Package under authority of a Sublicense
Addendum. "Sublicensee" shall mean a third party who is granted a
Sublicense of the Programs with the Value-Added Package for such party's
own internal data processing purposes and not for purposes of any further
distribution.
1.8 "TECHNICAL SUPPORT" means Program support provided under Oracle's policies
in effect on the date Technical Support is ordered.
1.9 "UPDATE" shall mean a subsequent release of a Program which Oracle makes
generally available for Program Licenses at no additional license fee other
than media and handling charges, provided the Alliance Member has ordered
Technical Support for such licenses for the relevant time period. Updates
shall not include any release, option or future product which Oracle
licenses separately.
1.10 "VALUE-ADDED PACKAGE" shall mean the hardware or software products or
services having added value which are developed, sold, and/or licensed with
the Programs to a Sublicense by the Alliance Member, as provided under the
applicable Sublicense Addenda.
2. RIGHTS GRANTED
2.1 DEVELOPMENT LICENSES AND TRIAL LICENSES
A. Oracle grants to the Alliance Member a nonexclusive license to use the
Development Licenses the Alliance Member obtains under this Agreement and
applicable Sublicense Addenda, as follows:
1. to develop or prototype the Value-Added Package on the Designated System
or on a backup system if the Designated System is inoperative, up to any
applicable maximum number of designated Users or other such limitation as
may be applicable;
2. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package;
3. to provide training and technical support to employees and to customers
solely in conjunction with the Value-Added Package;
4. to use the Documentation provided with the Programs in support of the
Alliance Member's authorized use of the Programs; and 5. to copy the
Programs for archival or backup purposes; no other copies shall be made
without Oracle's prior written consent. All titles, trademarks, and
copyright and restricted rights notices shall be reproduced in such copies.
All archival and backup copies of the Programs are subject to the terms of
this Agreement.
B. The Alliance Member may order temporary trial licenses ("Trial
Licenses") for its evaluation purposes only, and not for development or
prototype purposes, for use during a period specified in the Order Form.
Each Order Form for Trial Licenses shall clearly state the trial period and
shall identify that the order is for a Trial License.
2.2 MARKETING SUPPORT LICENSES
Oracle grants to the Alliance Member a nonexclusive license to use the
Marketing Support Licenses the Alliance Member obtains under this Agreement
and applicable Sublicense Addenda, as follows: A. to demonstrate the
Programs to potential Sublicensees solely in conjunction with the
Value-Added Package, up to any applicable maximum number of designated
Users or other such limitation as may be applicable; B. to develop
customized prototypes of the Value-Added Package for prospective
Sublicensees on the Designated System if the Alliance Member does not
receive any fees related to the development of such customized prototypes;
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C. to use the Documentation provided with the Programs in support of the
Alliance Member's authorized use of the Programs; and
D. to copy the Programs for archival or backup purposes; no other copies
shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be reproduced
in such copies. All archival and backup copies of the Programs are subject
to the terms of this Agreement.
2.3 SUBLICENSING
A. LICENSE TO SUBLICENSE PROGRAMS
As further set forth in the applicable Sublicense Addenda, Oracle
hereby grants the Alliance Member a nonexclusive, nontransferable license
to market and grant Sublicenses as set forth in such Sublicense Addenda and
at the rates and fees set forth in such Sublicense Addenda. The Alliance
Member shall only have the right to Sublicense Programs pursuant to an
effective Sublicense Addendum between the parties hereto.
The Alliance Member shall Sublicense the Programs solely through a
written Sublicense agreement as provided under Section 2.3.B. Upon Oracle's
request, the Alliance Member shall provide Oracle with a copy of the
Alliance Member's standard Sublicense agreement
B. SUBLICENSE AGREEMENT
Every Sublicense agreement shall include, at a minimum, contractual
provisions which:
1. Restrict use of the Programs to object code, subject to the restrictions
provided under the applicable Sublicense Addenda and consistent with the
Sublicense fees payable to Oracle;
2. Prohibit (a) transfer of the Programs except for temporary transfer in
the event of computer malfunction; (b) assignment, timesharing and rental
of the Programs; and (c) title to the Programs from passing to the
Sublicensee or any other party;
3. Prohibit the reverse engineering, disassembly or decompilation of the
Programs and prohibit duplication of the Programs except for a single
backup or archival copy;
4. Disclaim, to the extent permitted by applicable law, Oracle's liability
for any damages, whether direct, indirect, incidental or consequential,
arising from the use of the Programs;
5. Require the Sublicensee, at the termination of the Sublicense, to
discontinue use and destroy or return to the Alliance Member all copies of
the Programs and Documentation;
6. Prohibit publication of any results of benchmark tests run on the
Programs;
7. Require the Sublicensee to comply fully with all relevant export laws
and regulations of the United States to assure that neither the Programs,
nor any direct product thereof, are exported, directly or indirectly, in
violation of United States law; and
8. Specify Oracle as a third party beneficiary of the Sublicense agreement
to the extent permitted by applicable law.
C. MARKETING/SUBLICENSING PRACTICES
In marketing and Sublicensing the Programs, the Alliance Member shall:
1. Not engage in any deceptive, misleading, illegal, or unethical practices
that may be detrimental to Oracle or to the Programs;
2. Not make any representations, warranties, or guarantees to Sublicensees
concerning the Programs that are inconsistent with or in addition to those
made in this Agreement or by Oracle; and
3. Comply with all applicable federal, state, and local laws and
regulations in performing its duties with respect to the Programs.
2.4 LIMITATIONS ON USE
The Alliance Member shall not use or duplicate the Programs (including
the Documentation) for any purpose other than as specified in this
Agreement or make the Programs available to unauthorized third parties. The
Alliance Member shall not (a) use the Programs for its internal data
processing or for processing customer data; (b) rent, electronically
distribute, or timeshare the Programs or market the Programs by interactive
cable or remote processing services or otherwise distribute the Programs
other than as specified in this Agreement; or (c) cause or permit the
reverse engineering, disassembly, or decompilation of the Programs, except
to the extent required to obtain interoperability with other independently
created software or as specified by law.
2.5 TITLE
Oracle shall retain all title, copyright, and other proprietary rights in
the Programs and any modifications or translations thereof. The Alliance Member
and its Sublicensees do not acquire any rights in the Programs other than those
specified in this Agreement.
2.6 TRANSFER OF PROGRAMS
The Alliance Member may transfer a Development License or Marketing
Support License within its organization upon notice to Oracle; transfers
are subject to the terms and fees specified in Oracle's transfer policy in
effect at the time of the transfer.
2.7 USE OF PROGRAMS BY THIRD PARTIES
The Alliance Member and each Sublicensee (as the case may be) shall
have the right to allow third parties to use each such party's licensed
Programs for the licensee's operations so long as the applicable licensee
ensures that use of the Programs is in accordance with the terms of this
Agreement or the applicable Sublicense agreement.
3. TECHNICAL SERVICES
3.1 TECHNICAL SUPPORT SERVICES
Technical Support services ordered by the Alliance Member will be
provided under Oracle's Technical Support policies in effect on the date
Technical Support is ordered.
3.2 TRAINING SERVICES
Oracle will provide training services agreed to by the parties under
the terms of this Agreement. For any on-site services requested by the
Alliance Member, the Alliance Member shall reimburse Oracle for actual,
reasonable travel and out-of-pocket expenses incurred.
4. FEES AND PAYMENTS
4.1 LICENSE FEES AND SUBLICENSE FEES
The Alliance Member may order Development Licenses or Marketing
Support Licenses at the standard Program license fees set forth in the
Price List or at the fees otherwise provided in a Sublicense Addendum. For
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each Sublicense granted by the Alliance Member, the Alliance Member
agrees to pay Oracle a Sublicense fee as set forth in the applicable
Sublicense Addenda. The Alliance Member shall not be relieved of its
obligation to pay Sublicense fees owed to Oracle by the nonpayment of such
fees by the Sublicensee.
The Alliance Member is free to determine unilaterally its own license
fees to its Sublicensees. If the Alliance Member or a Sublicensee upgrades
the Programs to a larger computer, transfers the Programs outside the
United States and/or to another operating system, or increases the licensed
number of Users, the Alliance Member will pay additional Sublicense fees to
Oracle as provided under Oracle's transfer policies and rates in effect at
the time the Program is upgraded or transferred.
4.2 TECHNICAL SUPPORT FEES
Technical Support services ordered by the Alliance Member for
Development Licenses and Marketing Support Licenses will be provided under
Oracle's Technical Support policies and rates in effect on the date
Technical Support is ordered.
4.3 GENERAL PAYMENT TERMS
Except as otherwise provided in a Sublicense Addendum, all fees shall
be due and payable 30 days from the invoice date. Fees due by the Alliance
Member shall not be subject to set off for any claims against Oracle. All
payments made shall be in United States currency and shall be made without
deductions based on any taxes or withholdings, except where such deduction
is based on Oracle's gross income. Any amounts payable by the Alliance
Member hereunder which remain unpaid after the due date shall be subject to
a late charge equal to 1.5% per month from the due date until such amount
is paid. The Alliance Member agrees to pay applicable media and shipping
charges. The Alliance Member shall issue a purchase order, or alternative
document acceptable to Oracle, on or before the Effective Date of the
applicable Order Form.
4.4 TAXES
The fees listed in this Agreement do not include taxes; if Oracle is
required to pay sales, use, property, value-added, or other taxes based on
the licenses, Sublicenses or services granted under this Agreement or on
the Alliance Member's or a Sublicensee's use of Programs or services, then
such taxes shall be billed to and paid by the Alliance Member. This shall
not apply to taxes based on Oracle's income.
5. RECORDS
5.1 RECORDS INSPECTION
The Alliance Member shall maintain adequate books and records in
connection with activity under this Agreement. Such records shall include,
without limitation, executed Sublicense agreements, the information
required in or related to the Sublicense reports required under a
Sublicense Addendum, the number of copies of Programs used or Sublicensed
by the Alliance Member, the computers on which the Programs are installed,
and the number of Users using the Programs. Oracle may audit the relevant
books and records of the Alliance Member and Alliance Member's use of the
Programs. Any such audit shall be conducted during regular business hours
at the Alliance Member's offices and shall not interfere unreasonably with
the Alliance Member's business activities. If an audit reveals that the
Alliance Member has underpaid fees to Oracle, the Alliance Member shall be
invoiced for such underpaid fees. Audits shall be made no more than once
annually.
5.2 NOTICE OF CLAIM
The Alliance Member will notify Oracle legal department promptly in
writing of: (a) any claim or proceeding involving the Programs that comes
to its attention; and (b) any material change in the management or control
of the Alliance Member.
6. TERM AND TERMINATION
6.1 TERM
This Agreement shall become effective on the Effective Date and shall
be valid until the expiration or termination of all Sublicense Addenda
hereunder, unless terminated earlier as set forth herein. If not otherwise
specified on the Order Form, each Program license granted under this
Agreement shall remain in effect perpetually under the terms of this
Agreement unless the license or this Agreement is terminated as provided in
this Article 6. The term of each Sublicense Addendum hereunder shall be as
set forth in each such Addendum.
6.2 TERMINATION BY THE ALLIANCE MEMBER
The Alliance Member may terminate any Program license or any
Sublicense Addenda at any time; however, termination shall not relieve the
Alliance Member's obligations specified in Section 6.5.
6.3 TERMINATION BY ORACLE
Oracle may terminate any Program license, any Sublicense Addenda, or
this Agreement upon written notice if the Alliance Member materially
breaches this Agreement and fails to correct the breach within 30 days
following written notice specifying the breach.
6.4 FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in the
performance of a required obligation if such failure or delay is caused by
strike, riot, fire, flood, natural disaster, or other similar cause beyond
such party's control, provided that such party gives prompt written notice
of such condition and resumes its performance as soon as possible, and
provided further that the other party may terminate this Agreement if such
condition continues for a period of one hundred eighty (180) days.
6.5 EFFECT OF TERMINATION
Upon expiration or termination of a Sublicense Addendum or this
Agreement, all of the Alliance Member's rights to market and Sublicense the
Programs as set forth in such Sublicense Addendum or this Agreement shall
cease.
The termination of this Agreement, a Sublicense Addendum, or any
license shall not limit either party from pursuing any other remedies
available to it, including injunctive relief, nor shall such termination
relieve the Alliance Member's obligation to pay all fees that have accrued
or that are owed by the Alliance Member under a Sublicense Addendum or any
Order Form, or that appear in a Sublicense report. The parties rights and
obligations under Sections 2.4, 2.5, 2.6 and Articles 4, 5, 6, 7, and 8
shall survive termination of this Agreement. Upon
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termination, the Alliance Member shall cease using, and shall return or
destroy, all copies of the applicable Programs.
7. INDEMNITY, WARRANTIES, REMEDIES
7.1 INFRINGEMENT INDEMNITY
Oracle will defend and indemnify the Alliance Member against a claim
that Programs infringe a copyright or patent or other intellectual property
right, provided that: (a) the Alliance Member notifies Oracle in writing
within 30 days of the claim; (b) Oracle has sole control of the defense and
all related settlement negotiations; and (c) the Alliance Member provides
Oracle with the assistance, information and authority necessary to perform
Oracle's obligations under this Section. Reasonable out-of-pocket expenses
incurred by the Alliance Member in providing such assistance will be
reimbursed by Oracle. Oracle shall have no liability for any claim of
infringement based on use of a superseded or altered release of Programs if
the infringement would have been avoided by the use of a current unaltered
release of the Programs which Oracle provides to the Alliance Member.
In the event the Programs are held or are believed by Oracle to
infringe, Oracle shall have the option, at its expense, to (a) modify the
Programs to be noninfringing; or (b) obtain for the Alliance Member a
license to continue using the Programs. If it is not commercially
reasonable to perform either of the above options, then Oracle may
terminate the license for the infringing Programs and refund the license
fees paid for those Programs. This Section 7.1 states Oracle's entire
liability and the Alliance Member's exclusive remedy for infringement.
7.2 WARRANTIES AND DISCLAIMERS
A. PROGRAM WARRANTY
Oracle warrants for a period of one year from the Commencement Date
that each unmodified Program will perform the functions described in the
Documentation.
B. MEDIA WARRANTY
Oracle warrants the tapes, diskettes or other media to be free of
defects in materials and workmanship under normal use for 90 days from the
Commencement Date.
C. SERVICES WARRANTY
Oracle warrants that its Technical Support and training services will
be performed consistent with generally accepted industry standards. This
warranty shall be valid for 90 days from performance of service.
D. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL OPERATE IN COMBINATIONS
OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT THE OPERATION OF THE
PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE. PRE-PRODUCTION RELEASES OF
PROGRAMS AND COMPUTER-BASED TRAINING PRODUCTS ARE DISTRIBUTED "AS IS."
The Alliance Member shall not make any warranty on Oracle's behalf.
7.3 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 7.2 above, the
Alliance Member's exclusive remedy, and Oracle's entire liability, shall
be:
A. FOR PROGRAMS
The correction of Program errors that cause breach of the warranty, or
if Oracle is unable to make the Program operate as warranted, the Alliance
Member shall be entitled to recover the fees paid to Oracle for the Program
license.
B. FOR MEDIA
The replacement of defective media returned within 90 days of the
Commencement Date.
C. FOR SERVICES
The reperformance of the services, or if Oracle is unable to perform
the services as warranted, the Alliance Member shall be entitled to recover
the fees paid to Oracle for the unsatisfactory services.
7.4 INDEMNIFICATION OF ORACLE
The Alliance Member agrees to enforce the terms of its Sublicense
agreements required by this Agreement so as to effect a timely cure of any
Sublicense breach, and to notify Oracle of any known breach of such terms.
The Alliance Member will defend and indemnify Oracle against:
A. All claims and damages to Oracle arising from any use by the Alliance
Member or its Sublicensees of any product not provided by Oracle but used
in combination with the Programs if such claim would have been avoided by
the exclusive use of the Programs; and
B. All claims and damages to Oracle caused by the Alliance Member's failure
to include the required contractual terms set forth in Section 2.3.B hereof
in each Sublicense agreement.
7.5 EQUITABLE RELIEF
The Alliance Member acknowledges that any breach of its obligations
with respect to proprietary rights of Oracle will cause Oracle irreparable
injury for which there are inadequate remedies at law and that Oracle shall
be entitled to equitable relief in addition to all other remedies available
to it.
8. GENERAL TERMS AND CONDITIONS
8.1 NONDISCLOSURE
By virtue of this Agreement, the parties may have access to
information that is confidential to one another ("Confidential
Information"). Confidential Information shall be limited to the Programs,
the terms and pricing under this Agreement, and all information clearly
identified as confidential.
A party's Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission of
the other party; (b) was in the other party's lawful possession prior to
the disclosure and had not been obtained by the other party either directly
or indirectly from the disclosing party; (c) is lawfully disclosed to the
other party by a third party without restriction on disclosure; or (d) is
independently developed by the other party. The Alliance Member shall not
disclose the results of any benchmark tests of the Programs to any third
party without Oracle's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two years
after termination of this Agreement. The parties agree, unless required by
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law, not to make each other's Confidential Information available in any
form to any third party for any purpose other than the implementation of
this Agreement. Each party agrees to take all reasonable steps to ensure
that Confidential Information is not disclosed or distributed by its
employees or agents in violation of the terms of this Agreement.
8.2 COPYRIGHTS
The Programs are copyrighted by Oracle. The Alliance Member shall
retain all Oracle copyright notices on the Programs used by the Alliance
Member under its Development Licenses or Marketing Support Licenses. The
Alliance Member shall include the following on all copies of the Programs
in software Value-Added Packages incorporating the Programs distributed by
the Alliance Member:
A. A reproduction of Oracle's copyright notice; or
B. A copyright notice indicating that the copyright is vested in the
Alliance Member containing the following
1. A "c" in a circle and the word "copyright";
2. The Alliance Member's name;
3. The date of copyright; and
4. The words "All Rights Reserved."
Such notices shall be placed on the Documentation, the sign-on screen
for any software Value-Added Package incorporating the Programs, and the
diskette or tape labels. Notwithstanding any copyright notice by the
Alliance Member to the contrary, the copyright to the Program included in
any such application package shall remain in Oracle. Other than as
specified above, on any reproduction or translation of any Programs,
Documentation, or promotional material, the Alliance Member agrees to
reproduce Oracle's copyright notices intact.
8.3 TRADEMARKS
"Oracle" and any other trademarks and service marks adopted by Oracle
to identify the Programs and other Oracle products and services belong to
Oracle; the Alliance Member will have no rights in such marks except as
expressly set forth herein and as specified in writing from time to time.
The Alliance Member's use of Oracle's trademarks shall be under Oracle's
trademark policies and procedures in effect from time-to-time. The Alliance
Member agrees not to use the trademark "ORACLE," or any mark beginning with
the letters "Ora," or any other mark likely to cause confusion with the
trademark "ORACLE" as any portion of the Alliance Member's tradename,
trademark for the Alliance Member's Value-Added Package, or trademark for
any other products of the Alliance Member. The Alliance Member shall have
the right to use the trademark "ORACLE" and other Oracle trademarks solely
to refer to Oracle's Programs, products and services.
The Alliance Member agrees with respect to each registered trademark
of Oracle, to include in each advertisement, brochure, or other such use of
the trademark, the trademark symbol "circle R" and the following statement:
is a registered trademark of Oracle Corporation,
-----------------------
Redwood City, California
Unless otherwise notified in writing by Oracle, the Alliance Member
agrees, with respect to every other trademark of Oracle, to include in each
advertisement, brochure, or other such use of the trademark, the symbol
"TM" and the following statement:
is a trademark of Oracle Corporation,
-----------------------
Redwood City, California
The Alliance Member shall not market Oracle Programs in any way which
implies that Oracle Programs are the proprietary product of the Alliance
Member or of any party other than Oracle. Oracle shall not have any
liability to the Alliance Member for any claims made by third parties
relating to the Alliance Member's use of Oracle's trademarks.
8.4 RELATIONSHIPS BETWEEN PARTIES
In all matters relating to this Agreement, the Alliance Member will
act as an independent contractor. The relationship between Oracle and the
Alliance Member is that of licensor/licensee. Neither party will represent
that it has any authority to assume or create any obligation, express or
implied, on behalf of the other party, nor to represent the other party as
agent, employee, franchisee, or in any other capacity. Nothing in this
Agreement shall be construed to limit either party's right to independently
develop or distribute software which is functionally similar to the other
party's product, so long as proprietary information of the other party is
not included in such software.
8.5 ASSIGNMENT
The Alliance Member may not assign or otherwise transfer any rights
under this Agreement without Oracle's prior written consent.
8.6 NOTICE
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given when
mailed by first class mail to the first address listed in the relevant
Order Form (if to the Alliance Member) or to Oracle address on the Order
Form (if to Oracle).
To expedite order processing, the Alliance Member agrees that Oracle
may treat documents faxed by the Alliance Member to Oracle as original
documents; nevertheless, either party may require the other to exchange
original signed documents.
8.7 GOVERNING LAW/JURISDICTION
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the substantive and procedural laws of the
State of California and shall be deemed to be executed in Redwood City,
California. The parties agree that any legal action or proceeding relating
to this Agreement shall be instituted in any state or federal court in San
Francisco or San Mateo County, California. Oracle and the Alliance Member
agree to submit to the jurisdiction of, and agree that venue is proper in,
these courts in any such legal action or proceeding.
8.8 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force and effect.
8.9 EXPORT
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The Alliance Member agrees to comply fully with all relevant export
laws and regulations of the United States ("Export Law") to assure that
neither the Programs, nor any direct product thereof, are (a) exported,
directly or indirectly, in violation of Export Laws; or (b) are intended to
be used for any purposes prohibited by the Export Laws, including, without
limitation, nuclear, chemical, or biological weapons proliferation.
8.10 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE'S LIABILITY FOR
DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY THE
ALLIANCE MEMBER UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM THE
ALLIANCE MEMBER'S OR SUBLICENSEE'S USE OF THE PROGRAM OR SERVICES, SUCH
LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE RELEVANT PROGRAM OR
SERVICES GIVING RISE TO THE LIABILITY.
The provisions of this Agreement allocate the risks between Oracle and
the Alliance Member. Oracle's pricing reflects this allocation of risk and
the limitation of liability specified herein.
8.11 FEDERAL GOVERNMENT SUBLICENSES
If the Alliance Member grants a Sublicense to the United States
government, the Programs shall be provided with "Restricted Rights" and the
Alliance Member will place a legend, in addition to applicable copyright
notices, on the documentation, and on the tape or diskette label,
substantially similar to the following:
RESTRICTED RIGHTS LEGEND
"Programs delivered subject to the DOD FAR Supplement are "commercial
computer software" and use, duplication and disclosure of the Programs
shall be subject to the licensing restrictions set forth in the applicable
license agreement. Otherwise, Programs delivered subject to the Federal
Acquisition Regulations are "restricted computer software" and use,
duplication and disclosure of the Programs shall be subject to the
restrictions in FAR 52.227-14, Rights in Data-- General, including
Alternate III (June 1987)."
8.12 WAIVER
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or breach.
Except for actions for nonpayment or breach of Oracle's proprietary rights
in the Programs, no action, regardless of form, arising out of this
Agreement may be brought by either party more than two years after the
cause of action has accrued.
8.13 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties
and supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document, usage
or custom shall be deemed to amend or modify this Agreement.
It is expressly agreed that the terms of this Agreement and any Order
Form shall supersede the terms in any Alliance Member purchase order or
other ordering document. This Agreement shall also supersede the terms of
any unsigned or "shrinkwrap" license included in any package, media, or
electronic version of Oracle-furnished software and any such software shall
be licensed under the terms of this Agreement, provided that the use
limitations contained in an unsigned ordering document shall be effective
for the specified licenses.
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The Effective Date of this Agreement shall be
----------------------------------
<TABLE>
<S> <C>
EXECUTED BY THE ALLIANCE MEMBER:
--------------------------------------------------------- EXECUTED BY ORACLE CORPORATION:
Authorized Signature: Authorized Signature:
------------------------------------ ------------------------------------
Name: Name:
---------------------------------------------------- ----------------------------------------------------
Title: Title:
--------------------------------------------------- ---------------------------------------------------
</TABLE>
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation.
7-97
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EXHIBIT C
NCI PRICE LIST
(to be provided by NCI)
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EXHIBIT D
PROHIBITED CUSTOMER LIST
AT&T
Pacific Century Group
Pacific Convergence Corp.
AOL
Cable and Wireless
NTL
TCI
Time Warner Cable
Media One
Comcast
Cox Cable
US West
Rogers Cable
Direct TV
GTE
Sprint
MCI
Bell South
Nynex
Southwest Bell
Ameritech
Bell Canada
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EXHIBIT E
JOINT SALES & MARKETING ACTIVITIES
1. NCI shall provide to Oracle core marketing materials for the NCI Technology
in electronic format as soon as such materials are available but no later
than when such materials are provided to any other distributor of the NCI
Technology. The core marketing materials shall include but not be limited
to data sheets, company brochures and demonstration materials. NCI grants
to Oracle the right to reproduce, modify and integrate (in whole or in
part) these core marketing materials into Oracle marketing materials.
Oracle's use of NCI's trademarks contained in these core marketing
materials shall be subject to NCI's Signature Guidelines, a copy of which
is attached as Exhibit F.
2. NCI shall appoint an Oracle channel management team who will be responsible
for managing the relationship between Oracle and NCI with respect to
Oracle's reselling of the NCI Technology, including appointing a point
person to act as the primary point of contact between Oracle and NCI
related to this Agreement (the "Oracle Channel Manager"). In addition, the
revenue sharing currently specified in the Agreement is predicated upon a
joint sales model. As requested by Oracle, NCI shall provide substantial
sales assistance as requested by Oracle on all transactions of the NCI
Technology. For each sale in which NCI has provided substantial assistance,
Oracle shall use reasonable efforts to notify NCI if Oracle executes a
Sublicense with the particular customer for the NCI Technology.
3. NCI shall use reasonable efforts to provide the necessary hardware to allow
Oracle to demonstrate the NCI Technology to potential customers at
discounted reseller rates.
4. Oracle shall use reasonable efforts to notify NCI of, and allow NCI to
participate in (subject to the Sublicensees consent), any public
announcement of Sublicenses of the NCI Technology by Oracle to end users.
However, nothing contained herein shall require Oracle to obtain NCI's
prior consent before making such a public announcement.
5. NCI shall use reasonable efforts to keep Oracle informed of future product
plans and roadmaps. Where identified as such, this information shall be
considered NCI Confidential Information under section 8.1 of the Agreement
and shall not be disclosed to third parties (including Oracle customers)
without the prior written consent of NCI. Such consent may be provided by
NCI's Oracle Channel Manager or another NCI representative as designated by
NCI.
6. Unless otherwise specified, each party shall bear its own costs for the
marketing and sales activities described above.
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EXHIBIT F
NCI SIGNATURE GUIDELINES
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EXHIBIT G
THIRD PARTY RESTRICTIONS ON
EMBEDDED NCI TECHNOLOGY
THE FOLLOWING THIRD PARTY RESTRICTIONS APPLY TO THE NCI TECHNOLOGY TO THE EXTENT
THAT THEY INCORPORATE ANY OF THE THIRD PARTY SOFTWARE LISTED BELOW. ANY
CAPITALIZED TERMS THAT ARE NOT DEFINED HEREIN HAVE THE SAME DEFINITION AS IN THE
AGREEMENT.
1. REGARDING BITSTREAM SOFTWARE - IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDE
BITSTREAM SOFTWARE SUBLICENSED FROM NCI, YOU MUST COMPLY WITH THE FOLLOWING
RESTRICTIONS AND OBLIGATIONS.
1.1. LICENSEE MUST REPRODUCE EACH BITSTREAM COPYRIGHT, TRADEMARK AND/OR
PATENT NOTICE, AS APPLICABLE IN ITS ENTIRETY, IN THE SAME LOCATION AS
IT APPEARS, IN ELECTRONIC OR PRINTED FORM, ON THE NCI SOFTWARE OR
SDK(S) AS DELIVERED TO LICENSEE.
2. REGARDING RSA SOFTWARE - IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDES RSA
SOFTWARE SUBLICENSED FROM NCI, YOU MUST COMPLY WITH THE FOLLOWING
RESTRICTIONS AND OBLIGATIONS:
2.1. LICENSEE SHOULD INCLUDE WITHIN THE SPLASH SCREENS, USER DOCUMENTATION,
PRINTED PRODUCT COLLATERAL, PRODUCT PACKAGING AND ADVERTISEMENTS FOR
THE NCI TECHNOLOGY, THE RSA "LICENSEE SEAL" FROM THE FORM ATTACHED
HERETO AS APPENDIX "A" ALONG WITH A STATEMENT THAT THE NCI TECHNOLOGY
CONTAINS THE RSA SOFTWARE. LICENSEE AGREES NOT TO REMOVE OR DESTROY
ANY PROPRIETARY, TRADEMARK OR COPYRIGHT MARKINGS OR NOTICES PLACED
UPON OR CONTAINED WITHIN THE SOFTWARE OR DOCUMENTATION PROVIDED BY
NCI.
2.2. LICENSEE MUST IN ALL PROPOSALS AND AGREEMENTS WITH THE UNITED STATES
GOVERNMENT IDENTIFY AND LICENSE THE NCI TECHNOLOGY, INCLUDING ANY RSA
OBJECT CODE, AS FOLLOWS: (I) FOR ACQUISITION BY OR ON BEHALF OF
CIVILIAN AGENCIES, AS NECESSARY TO OBTAIN PROTECTION AS "COMMERCIAL
COMPUTER SOFTWARE AND RELATED DOCUMENTATION IN ACCORDANCE WITH THE
TERMS OF NCI'S OR LICENSEE'S CUSTOMARY LICENSE, AS SPECIFIED IN 48
C.F.R. 12.212 OF THE FEDERAL ACQUISITION REGULATIONS AND ITS SUCCESSOR
REGULATIONS, OR (II) FOR ACQUISITION BY OR ON BEHALF OF UNITS OF THE
DEPARTMENT OF DEFENSE, AS NECESSARY TO OBTAIN PROTECTION AS
"COMMERCIAL COMPUTER SOFTWARE" AS DEFINED IN 48 C.F.R. 227.7014(A)(1)
OF THE DEPARTMENT OF DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT
(DFARS) AND RELATED DOCUMENTATION IN ACCORDANCE WITH THE TERMS OF
NCI'S OR LICENSEE'S CUSTOMARY LICENSE, AS SPECIFIED IN 4:8 C.F.R.
227.7202.1 OF DFARS AND ITS SUCCESSOR REGULATIONS.
2.3 IN THE EVENT THAT LICENSEE INCLUDES AN "ABOUT BOX" OR SIMILAR
REFERENCE IN THE NCI TECHNOLOGY, LICENSEE AGREES TO INSERT AND
MAINTAIN IN THE "ABOUT BOX" (1) THE RSA "LICENSEE SEAL" INDICATED IN
APPENDIX "A", AND (2) A HYPERTEXT LINK TO RSA'S HOMEPAGE AT AN
RSA-DESIGNATED URL (CURRENTLY WWW. RSA.COM), WHICH LOGO AND POINTER
SHALL APPEAR ON THE FIRST PAGE OF SUCH "ABOUT BOX" AND IN NO LESS
PROMINENT LOCATION AND SIZE THAN ANY OTHER THIRD PARTY LOGO INCLUDED
THEREIN.
2.4. LICENSEE FURTHER AGREES TO INCLUDE IN ANY SECURITY ADVISORY MADE
AVAILABLE TO THIRD PARTIES, WHETHER IN PRINTED OR ELECTRONIC FORMAT,
THE RSA "LICENSEE SEAL" INDICATED IN EXHIBIT "A" AND A BRIEF
DESCRIPTION OF THE RSA SOFTWARE SUBLICENSED HEREUNDER AND ITS RELEVANT
APPLICABILITY TO THE SUBJECT MATTER OF THE SECURITY ADVISORY. FOR THE
PURPOSES OF THE AGREEMENT, "SECURITY ADVISORY" MEANS ANY TUTORIAL, FAQ
OR SIMILAR MANUAL OR INSTRUCTIONAL DOCUMENTATION DESCRIBING DATA
SECURITY USED BY OR AVAILABLE IN THE NCI TECHNOLOGY.
3. REGARDING HEADSPACE SOFTWARE - IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDE
HEADSPACE MIDI SOFTWARE OR MUSIC CONTENT SUBLICENSED FROM NCI, YOU MUST
COMPLY WITH THE FOLLOWING RESTRICTIONS AND OBLIGATIONS:
3.1. IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDES AN "ABOUT BOX" OR
SIMILAR REFERENCE, LICENSEE MUST INCLUDE REFERENCES TO HEADSPACE, INC.
AND THE RMF LOCK), AS WELL AS A LINK TO THE HEADSPACE, INC. WEB SITE,
IN THE AREA DESIGNATED BY LICENSEE FOR SUCH "ABOUT BOX". THE RMF LOGO
IS INCLUDED AS APPENDIX "B", ATTACHED HERETO, AND INCORPORATED HEREIN
BY THIS REFERENCE.
4. REGARDING PROGRESSIVE NETWORKS SOFTWARE - IN THE EVENT THAT THE NCI
TECHNOLOGY INCLUDES PROGRESSIVE NETWORKS SOFTWARE SUBLICENSED FROM NCI, YOU
MUST COMPLY WITH THE FOLLOWING RESTRICTIONS AND OBLIGATIONS:
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<PAGE>
4.1. LICENSEE MUST USE PROGRESSIVE NETWORKS' (PN) MARKS IN ACCORDANCE WITH
PN'S USAGE POLICIES ATTACHED HERETO AS APPENDIX "C" AND INCORPORATED
HEREIN BY THIS REFERENCE. SUCH MARKS MAY BE USED SOLELY IN CONJUNCTION
ON WITH LICENSEE'S ADVERTISING, MARKETING AND DISTRIBUTION OF THE NCI
TECHNOLOGY INCORPORATING PN'S SOFTWARE.
4.2. TO THE EXTENT THE NCI TECHNOLOGY INCLUDES AN IMPLEMENTATION OF AN
"ABOUT BOX" OR SIMILAR REFERENCE, LICENSEE MUST INCLUDE A REFERENCE TO
"PROGRESSIVE NETWORKS" AND "REALNETWORKS" AS FOLLOWS: "THE
REALNETWORKS PLAYER IS INCLUDED UNDER LICENSE FROM PROGRESSIVE
NETWORKS, INC. COPYRIGHT 1995:1997, PROGRESSIVE NETWORKS, INC.
REALNETWORKS AND THE REALNETWORKS LOGO ARE REGISTERED TRADEMARKS OF
PROGRESSIVE NETWORKS, INC. ALL RIGHTS RESERVED."
4.3. LICENSEE ACKNOWLEDGES THAT USE, DUPLICATION OR DISCLOSURE OF THE PN
SOFTWARE BY THE GOVERNMENT IS SUBJECT TO RESTRICTIONS SET FORTH IN
SUBPARAGRAPHS (A) THROUGH (D) OF THE COMMERCIAL COMPUTER-RESTRICTED
RIGHTS CLAUSE AT FAR 52.227.19 WHEN APPLICABLE, OR IN SUBPARAGRAPH
(C)(I)(II) OF THE RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE
CLAUSE AT DFARS 252.227-7013, OR IN SIMILAR CLAUSES IN THE NASA FAR
SUPPLEMENT. CONTRACTOR/MANUFACTURER IS PROGRESSIVE NETWORKS, INC.;
1111 THIRD AVENUE; SUITE 500; SEATTLE, WASHINGTON, 98101.
5.0 REGARDING JAVA SOFTWARE - IN THE EVENT THAT THE NCI TECHNOLOGY INCLUDE JAVA
SOFTWARE FROM SUN MICROSYSTEMS, INC. ("SUN") OR JAVASOFT, YOU MUST COMPLY
WITH THE FOLLOWING RESTRICTIONS AND OBLIGATIONS:
5.1 THE NCI TECHNOLOGY CONTAINING JAVA SOFTWARE THAT YOU DISTRIBUTE SHALL
INCLUDE IN THE DOCUMENTATION, OR IN OTHER TERMS AND CONDITIONS OF
SALE, NOTICES SUBSTANTIALLY SIMILAR TO THOSE CONTAINED ON AND IN THE
NCI SOFTWARE, SDKS AND RELATED DOCUMENTATION. YOU SHALL REQUIRE AN END
USER LICENSE AGREEMENT FOR EACH UNIT OF THE PRODUCT PROVIDING ACCESS
TO THE NCI TECHNOLOGY SHIPPED, INCLUDING WITHOUT LIMITATION, WARRANTY,
LIMITATION OF LIABILITY, RESTRICTED RIGHTS FOR GOVERNMENT, NO TRANSFER
OF TITLE, HIGH RISK ACTIVITIES, ETC. IF YOU USE A PACKAGE DESIGN FOR
THE NCI TECHNOLOGY, SUCH PACKAGE DESIGN SHALL INCLUDE AN
ACKNOWLEDGMENT OF SUN AS THE SOURCE OF THE JAVA SOFTWARE AND SUCH
OTHER NOTICES AS SPECIFIED BELOW.
5.2. JAVA APPLETS IN ANY HYPERTEXT MARKUP LANGUAGE (HTML) OR STANDARD
GENERALIZED MARKUP LANGUAGE (SGML)-BASED BROWSER WHICH IS SHIPPED AS
PART OF THE NCI TECHNOLOGY SHALL USE THE DOCUMENT TYPE DEFINITION
("DTD") AS SPECIFIED BY SUN MICROSYSTEMS.
5.3. THE FOLLOWING DISCLAIMER MUST BE PROVIDED TO EACH USER OF THE NCI
TECHNOLOGY: THIS PRODUCT IS NOT FAULT-TOLERANT AND IS NOT DESIGNED,
MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL
EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL SAFE PERFORMANCE,
SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT
MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THIS PRODUCT
COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR
ENVIRONMENTAL DAMAGE.
5.4. THE FOLLOWING NOTICES AND ACKNOWLEDGMENTS MOST BE PROVIDED TO EACH
USER OF THE NCI TECHNOLOGY AS DESCRIBED BELOW:
5.4.1. ON LICENSEE'S WEB SITE THAT DESCRIBES SUCH NCI TECHNOLOGY,
LICENSEE MUST INCLUDE THE FOLLOWING: JAVA LOCK), JAVA APPLET
INTEROPERABILITY MARK*, AND MESSAGE "POWERED BY JAVA TM FROM
SUN MICROSYSTEMS, INC." WITH A HYPERTEXT LINK TO THE ERROR!
BOOKMARK NOT DEFINED,
5.4.2. IN ANY NCI TECHNOLOGY DOCUMENTATION, SPLASH SCREEN OR OTHER
LOCATION WHERE NOTICES, ATTRIBUTION AND PROPRIETARY MARKINGS
ARE LISTED, LICENSEE MUST INCLUDE THE FOLLOWING: JAVA LOGO,
JAVA APPLET INTEROPERABILITY MARK, THE MESSAGE "POWERED BY
JAVA-TM- TECHNOLOGY FROM SUN MICROSYSTEMS, INC." AND
APPLICABLE COPYRIGHT NOTICES ASSOCIATED WITH A HYPERTEXT
LINK TO THE ERROR! BOOKMARK NOT DEFINED.. THE SPLASH SCREEN,
IF ANY, SHOULD BE A MINIMUM SIZE OF TWELVE (12) SQUARE
INCHES.
5.5. LICENSEE SHALL NOT REMOVE ANY COPYRIGHT NOTICES, TRADEMARK NOTICES OR
OTHER PROPRIETARY LEGENDS OF SUN OR ITS SUPPLIERS CONTAINED ON OR IN
THE SOFTWARE OR ANY DOCUMENTATION PROVIDED BY NCI. LICENSEE SHALL
COMPLY WITH ALL REASONABLE REQUESTS BY SUN TO INCLUDE SUN'S COPYRIGHT
AND/OR OTHER PROPRIETARY RIGHTS NOTICES ON THE NCI TECHNOLOGY,
DOCUMENTATION OR RELATED MATERIALS AS SPECIFIED IN THIS SECTION.
5.6. LICENSEE MUST COMPLY WITH SUN'S STANDARD TRADEMARK AND LOCK) USAGE
POLICIES. SPECIFICALLY, SUN'S MARKS MUST ONLY BE USED IN THE TEXT OF
ANY MATERIALS (NOT IN HEADLINES OR GRAPHICS) AND IN THE SAME TYPESIZE
AND TYPESTYLE AS THE SURROUNDING TEXT; THE MARKS MUST BE USED AS
ADJECTIVES, NOT AS NOUNS' AND SUN'S MARKS MUST BE
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<PAGE>
IDENTIFIED WITH THE APPLICABLE -Registered Trademark- OR -TM-
NOTICES AND ATTRIBUTED TO SUN IN AN APPROPRIATE LOCATION IN ANY
MATERIALS, AS STATED ABOVE. INFORMATION REGARDING SUN'S WEB LOGO
TRADEMARK POLICIES CAN BE FOUND AT.WWW.SUN.COM/LOGCOS/TRADEMARK.HTML.
*The Java Applet Interoperability Mark has not been designed by Sun
Microsystems, Inc., but may include such designation as "Java 1,0
Applet Compatible." Sun may change such logo, message and hypertext
link on reasonable advance notice.
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<PAGE>
APPENDIX "A" TO EXHIBIT G
RSA SEAL AND TRADEMARKS
RSA Licensee Seal: [Logo]
You are also permitted to use the following RSA trademarks, as applicable, in
ads, product packaging, documentation or collateral materials, provided that you
use the correct trademark designator, depicted below, and identify RSA as the
owner of the mark.
RC2-Registered Trademark- Symmetric Block Cipher, RC4-Registered Trademark-
Symmetric Stream Cipher
RC5-TM- Symmetric Block Cipher
BSAFE-TM-, TIPEM-TM-
RSA Public Key Cryptosystem-TM
MD-TM-, MD2-TM-, MD4-TM-, MD5-TM-
RSA has reserved the right to update this Appendix "A' from time to time upon
reasonable notice to you.
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<PAGE>
APPENDIX "B" TO EXHIBIT G
RMF LOGO
[Logo]
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<PAGE>
APPENDIX "C" TO EXHIBIT G
PROGRESSIVE NETWORKS TRADEMARK USAGE POLICY
REALNETWORKS-Registered Trademark- (text form)
PN-Registered Trademark- (text form)
PROGRESSIVE NETWORKS-Register Mark- (text form)
REALMEDIA-Trademark- (textform)
REALVIDEO-Trademark- (text form)
REALPLAYER-Trademark- (text form)
WEBACTIVE-Registered Trademark- (text from)
1. When using a Progressive Networks' trademark ("PN Mark"), use the
registered trademark symbol -Registered Trademark- or the -TM- symbol, as
indicated in the above example, on the most prominent (or if none is
prominent, the first) appearance of a PN Mark. For any PN Mark that is not
registered, the -TM- symbol should be used in place of the registered
trademark symbol -Registered Trademark-. Once marked, it is not normally
necessary to mark subsequent appearances of the trademark in the piece. Every
appearance of PN Logos in stylized form should always appear with the
appropriate -Registered Trademark- or -TM- symbol, and may be used only under
license with PN - unauthorized use is strictly prohibited. Shown above are a
list of current PN Marks that reflects the registration status of the PN
Marks. This list will be updated from time to time.
2. When using a PN Mark, never vary the spelling, add or delete hyphens, make
one word two, or use a possessive or plural form of the PN Mark. PN word marks
must always be used as adjectives followed by a generic term (such as "software"
or "system"), and never as nouns or verbs.
3. Progressive Networks is the owner of all right, title, and interest in the PN
Marks and Licensee agrees that it will not challenge the validity of Progressive
Networks' ownership of the PN Marks. Licensees shall not reproduce or use (or
authorize the reproduction or use of) the PN Marks in any manner other than
expressly authorized by Progressive Networks.
4. Progressive Networks may from time to time modify the PN Marks. Progressive
Networks will use commercially reasonable efforts to give licensees advance
notice of such modifications.
5. In order to assure compliance, you will, upon request from Progressive
Networks, provide samples of any marketing and advertising materials that
include the PN Marks.
6. In any place where they appear together, the PN Marks and any associated text
must be at least as large as the trademark and text of another vendor.
IMPORTANT INFORMATION ABOUT USING THE TEXT FORM
OF THE WORD REALNETWORKS-Registered Trademark-
1. When using the word RealNetworks, use the registered trademark symbol
-Register Trademark-symbol, as indicated in the above example, on the most
prominent (or if none is prominent, the first) appearance of its use on a
page. For any PN Mark that is not registered, the -TM- symbol should be used
in place of the registered trademark symbol -Registered Trademark-. Once
marked with the -Registered Trademark- symbol, it is not normally necessary
to mark subsequent appearances of the trademark in the piece.
2. When using the word RealNetworks, never vary the spelling, add or delete
hyphens, make one word two, or use a possessive or plural form of the word.
RealNetworks must always be used as an adjective followed by a generic term
(such as "software" or "system"), and never as a noun or verb.
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EXHIBIT H
NCI END USER LICENSE AGREEMENT
NCI END USER LICENSE AGREEMENT
REDISTRIBUTION NOT PERMITTED
IMPORTANT--READ CAREFULLY. BY CLICKING ON THE "ACCEPT" BUTTON OR OPENING THE
PACKAGE, LICENSEE IS CONSENTING TO BE BOUND BY THIS AGREEMENT. IF LICENSEE DOES
NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "DO NOT ACCEPT"
BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE, OR, ALTERNATIVELY, RETURN
THE PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND OR CREDIT.
This agreement ("Agreement") is between you ("Licensee") and the party
who provided you the device running this NCI software ("Licensor") for the
license to use such software ("Software") and the related end-user documentation
("Documentation").
1. GRANT OF LICENSES GRANT. Subject to the payment of the applicable license
fees and all the terms and conditions of this Agreement, Licensor grants to
Licensee only a non-exclusive, non-transferable, non-sublicenseable license
to use a single object code copy of the Software, only in accordance with
the applicable Documentation.
2. RESTRICTIONS. Licensee shall not (and Licensee shall not allow a third
party to): modify, translate, or create derivative works based on the
Software; decompile, disassemble, or otherwise reverse engineer the
Software (except to the extent applicable laws specifically prohibit such
restriction); copy the Software (except for one copy made solely for
archival purposes, provided that any such copy must contain all of the
original Software's proprietary notices); rent, lease, grant a security
interest in, ,or permit concurrent use of, or otherwise transfer rights to
the Software. Licensee shall not remove, alter or destroy any form of the
notice, proprietary markings or other labels placed upon or contained
within the Software or Documentation.
3. TITLE/OWNERSHIP. As between the parties, title, ownership rights, and
intellectual property rights in the Software and all copies and portions
thereof, whether or not incorporated into other software, shall remain in
Network Computer, Inc. ("NCI") and/or its suppliers. The Software is
protected by the copyright laws and treaties. Title and related rights in
the content accessed through the Software is the property of the applicable
content owner and may be protected by applicable law. This License does not
give Licensee title or any other rights to Software or the content accessed
through the Software.
4. TERMINATION. The Agreement is effective until terminated. This license will
terminate automatically if Licensee fails to comply with the limitations
described herein. Upon termination' (a) Licensee shall immediately cease
all use of the Software and destroy all copies of the Software and
Documentation; and (b) Except for the license granted in Section 1 and
except as otherwise expressly provided herein, the terms of this Agreement
shall survive termination. Termination is not an exclusive remedy and all
other remedies will be available whether or not the license is terminated.
5. DISCLAIMER OF WARRANTY. SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT
WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY EXPRESSED OR IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT. FURTHER, LICENSOR, NCI AND THEIR RESPECTIVE LICENSORS AND
SUPPLIERS DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE
SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR
REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR WRITTEN
MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE
LICENSEE UNDERSTANDS THAT NEITHER LICENSOR NOR NCI IS RESPONSIBLE FOR OR
HAS LIABILITY FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES
PROVIDED BY ANY THIRD PARTY. IN ADDITION, THE SECURITY MECHANISMS
IMPLEMENTED BY OR WITHIN SOFTWARE HAVE INHERENT LIMITATIONS, AND LICENSEE
MUST DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS LICENSEE'S
REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF
THE AGREEMENT. SOME JURISDICTIONS
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<PAGE>
DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT
APPLY TO LICENSEE AND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY
JURISDICTION. NCI SHALL HAVE THE RIGHT TO ENFORCE THE OBLIGATIONS
HEREUNDER, AND ALL LIMITATIONS AND DISCLAIMERS MADE HEREUNDER SHALL BE ON
BEHALF OF NCI AS WELL AS LICENSOR.
6. EXPORT CONTROLS. None of the Software or any portion thereof, underlying
information or technology or Documentation may be exported or reexported or
provided to (a) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any
other country to which the U.S. has embargoed goods (or any national or
resident thereof); or (b) anyone on the U.S. Treasury Department's list of
Specially Designated Nationals or the U.S. Commerce Department's Table of
Denial Orders. By using the Software, Licensee is agreeing to the foregoing
and Licensee is representing and warranting that Licensee is not located
in, under the control of, or a national or resident of any such country or
on any such list. NotwithStanding the above, Licensee agrees not to export
or reexport the Software or Documentation without the appropriate U.S. or
foreign government license, if one is required.
In addition, if the licensed Software is identified as a
"not-for-export" product (for example, on the box, media or in the installation
process), then the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN
CANADA BY CANADIAN CITIZENS, THE SOFTWARE MAY NOT BE EXPORTED OUTSIDE THE UNITED
STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S.
GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A
CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY USING
THE SOFTWARE, LICENSEE IS AGREEING TO THE FOREGOING AND LICENSEE IS WARRANTING
THAT LICENSEE IS NOT A "FOREIGN PERSON" OR UNDER THE CONTROL OF A FOREIGN
PERSON.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW,
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE OR STRICT LIABILITY), CONTRACT, OR OTHERWISE, SHALL
LICENSOR, NCI, OR THEIR RESPECTIVE LICENSORS OR SUPPLIERS BE LIABLE TO
LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE OR INTERRUPTION, LOSS OR
INACCURACY OR CORRUPTION OF DATA, COMPUTER FAILURE OR MALFUNCTION, COST OF
PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR ANY AND ALL
OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL LICENSOR OR NCI BE
LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT LICENSOR RECEIVED FROM
LICENSEE FOR THE LICENSE PERTAINING TO THE SOFTWARE, EVEN IF LICENSOR OR
NCI SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY
CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO
LIABILITY FOR DEATH OR PERSONAL INJURY, TO THE EXTENT APPLICABLE LAW
PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE.
8. HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments .requiring fail-safe performance, such
as in the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, direct life support machines,
or weapons systems, in which the failure of the Software could lead
directly to death, personal injury, or severe physical or environmental
damage ("High Risk Activities"). Licensor and NCI, and their respective
licensors and suppliers, specifically disclaim any express or implied
warranty of fitness for High Risk Activities.
9. MISCELLANEOUS. This Agreement represents the complete agreement concerning
this license and may amended only by a writing executed by both parties. If
any provision of this Agreement is held to be unenforceable, such provision
shall be reformed only to the extent necessary to make it enforceable. This
Agreement shall be governed by California law, without regard to the
conflicts of law provisions thereof. The application the United Nations
Convention of Contracts for the International Sale of Goods is expressly
excluded.
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<PAGE>
10. U.S. GOVERNMENT END USERS. As defined in FAR section 2.101, the Software
and Documentation licensed in this Agreement are "commercial items" and
according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be
"commercial computer software" and "commercial computer software
documentation." Consistent with DFAR section 227.7202 and FAR section
12.212 (and similar clauses in NASA FAR Supplement and all related
successor rules), any use, modification, reproduction, release,
performance, display, disclosure, or exploitation of the Software and any
accompanying documentation by the US. Government shall be governed solely
by the terms of this Agreement and shall be prohibited except to the extent
expressly permitted by the terms of this Agreement. Contractor/manufacturer
is Network Computer, Inc.
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<PAGE>
SDK LICENSE AGREEMENTS
NCI TV NAVIGATOR-TM- CONTENT DEVELOPMENT KIT
LICENSE AGREEMENT
The following terms shall apply to any NCI NAVIGATOR CONTENT DEVELOPMENT KITs
licensed to ISP (referred to as "You") hereunder.
REDISTRIBUTION OF THIS CONTENT DEVELOPMENT KIT ("CDK") OR ANY DOCUMENTATION
PROVIDED TO YOU BY NETWORK COMPUTER, INC. ("NCI") IS STRICTLY PROHIBITED.
THE MEDIA CONTAINED IN THIS PACKAGE INCLUDE A NUMBER OF SEPARATE PROGRAMS. YOU
ARE PERMITTED TO USE ONLY THOSE PROGRAMS FOR WHICH YOU HAVE PAID THE APPLICABLE
LICENSE FEE TO NCI. FURTHERMORE, YOUR USE OF THIS CDK IS SUBJECT TO ALL THE
TERMS AND CONDITIONS SET FORTH BELOW.
LICENSE.
This CDK is licensed, not sold, to You for use only under the terms of this
Agreement, and NCI and its licensors reserve all rights not expressly granted to
You. You own the media on which this CDK was originally fixed, but NCI and its
licensors retain ownership of all copies of the programs and content comprising
this CDK (collectively the "Programs"), You (the original licensee of this CDK)
may:
(a) use this CDK on a single computer by one user at a time in accordance with
the accompanying documentation. (b) make one copy of the Programs as provided to
You for purposes of backup; provided that such copy includes a reproduction of
any notices appearing in or on such Programs.
LICENSE RESTRICTIONS.
(a) Unauthorized copying of this CDK, the Programs or the written materials
included in this package is expressly forbidden. You may be held legally
responsible for any Copyright infringement which is caused or encouraged by Your
failure to abide by the terms of this agreement.
(b) You may not market, distribute, or transfer copies of this CDK or the
Program to others or electronically transfer this CDK or the Programs from one
computer to another over a network.
(C) You may not: (i) permit other individuals to use this CDK or the Programs;
(ii) modify, translate, reverse engineer, decompile, disassemble (except to the
extent applicable laws specifically prohibit such restriction), or create
derivative works based on this CDK or the Programs; (iii) copy this CDK or the
Programs (except as expressly provided herein); (iv) rent, lease, grant a
security interest in, or otherwise transfer rights to this CDK or the Programs;
or (v) remove any proprietary notices or labels in or on this CDK or the
Programs.
(d) You understand that NCI and its licensors may update or revise this CDK
and/or the Programs and in so doing incurs no obligation to furnish such updates
to You unless You have purchased current support and maintenance services from
NCI as described in the section below titled Technical Support.
(e) Upon transfer of this CDK, any Program or any copy thereof, the licensed
granted hereunder shall terminate immediately.
(f) You shall use this CDK solely for Your internal purposes.
To the extent European Economic Community ("EEC") law is applicable, the above
restrictions on reverse engineering, decompiling, disassembling or reducing any
machine, readable software or component to human-readable form is limited so
that it prohibits such activity only to the maximum extent such activity may be
prohibited without violating the EEC Directive on the legal protection of
computer programs.
HARDWARE LOANS.
In the event that NCI has provided You any hardware (including, without
limitation, the NCI Reference Platform) for use with the CDK, You shall
return to NCI any such hardware immediately upon the earlier of (i) NCI's
written request to You or (ii) the date agreed upon by the parties in any
separate written agreement for the return of such hardware. NCI shall retain
all right, title and interest in and to such hardware at all times,
including, without
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<PAGE>
limitation, the period while such hardware is located at Your facilities.
DISCLAIMER OF WARRANTY.
THIS CDK IS PROVIDED ON AN "AS IS" BASIS. NCI AND ITS LICENSORS EXPRESSLY
DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS CDK
AND ANY RESULTS CREATED USING THIS CDK IS BORNE BY YOU. IN ADDITION, THE
SECURITY MECHANISMS IMPLEMENTED BY THIS CDK AND RESULTS GENERATED THROUGH ITS
USE HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE CDK AND SUCH
RESULTS SUFFICIENTLY MEET YOUR SECURITY REQUIREMENTS, THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME JURISDICTIONS DO
NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY
AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.
TITLE.
Title, ownership rights, and intellectual property rights in this CDK and the
Programs shall remain in NCI and/or its licensors. This CDK is protected by
the copyright laws and treaties.
CONFIDENTIALITY.
NCI and its licensors consider this CDK and the Programs to contain valuable
trade secrets of NCI and its licensors, the unauthorized disclosure of which
could cause irreparable harm to NCI and/or its licensors. You agree to use
reasonable efforts not to disclose the Programs to any third parties and not
to use the Programs other than for the purposes authorized by this Agreement.
This confidentiality obligation shall continue after any termination of this
Agreement.
TERMINATION.
This Agreement is effective until terminated. The Sections of this Agreement
titled License Restrictions, Disclaimer of Warranty, Limitation of Liability,
Title, Confidentiality and Miscellaneous shall survive any termination or
expiration of this Agreement. This Agreement will terminate automatically
upon Your failure to comply with any of the limitations described herein.
Upon any termination or expiration of this Agreement, You must, at NCI's
option, return or destroy the CDK, any documentation provided by NCI and any
copies thereof and shall return to NCI all hardware (including, without
limitation, the NCI Reference Profile), if any, provided by NCI to You for
use with the CDK, if any.
EXPORT CONTROLS.
None of this CDK or any underlying information or technology may be
downloaded or otherwise exported or reexported (i) into (or to a national or
resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any
other country to which the U.S. has embargoed goods; or (ii) to anyone on the
U.S. Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders. By using this CDK, You are
agreeing to the foregoing and You are representing and warranting that You
are not located in, under the control of, or a national or resident of any
such country or on any such list.
SUPPORT AND MAINTENANCE.
Upon mutual agreement of the parties and subject to NCI's standard support
and maintenance terms and conditions (including payment of NCI's then-current
support and maintenance fees), NCI shall provide to You support and
maintenance for the CDK licensed hereunder.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR
OTHERWISE, SHALL NCI OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES. IN NO EVENT WILL NCI BE LIABLE FOR ANY DAMAGES IN EXCESS
OF THE AMOUNT NCI RECEIVED FROM YOU FOR A LICENSE TO THIS CDK, EVEN IF NCI
SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM
BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY
FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH
LIMITATION. FURTHERMORE, SOME
Page: 37
<PAGE>
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
THE WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF
THE BASIS OF THE BARGAIN BETWEEN YOU AND NCI.
HIGH RISK ACTIVITIES.
The CDK and results created using the CDK are not fault-tolerant and is not
designed, manufactured or intended for use or resale as 0n-line control
equipment in hazardous environments requiring fail, safe performance, such as
in the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons
systems, in which the failure of the CDK and results created using the CDK
could lead directly to death, personal injury, or severe physical or
environmental damage ("High Risk Activities"), NCI and its licensors
specifically disclaim any express or implied warranty of fitness for High
Risk Activities.
MISCELLANEOUS.
This Agreement represents the complete agreement concerning this license and
may amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY
PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO
THE TERMS SET FORTH HEREIN, AND NOT THOSE IN YOUR PURCHASE ORDER. If any
provision of this Agreement is held to be unenforceable, such provision shall
be reformed only to the extent necessary to make it enforceable and the
remaining provisions of this Agreement will not be affected or impaired in
any way. This Agreement shall be governed by California law without regard to
the conflict of laws provisions thereof. The application the United Nations
Convention of Contracts for the International Sale of Goods is expressly
excluded. If any legal action or proceeding is brought for the enforcement of
this Agreement, or because of any alleged dispute, breach, default or
misrepresentation in connection with any of the provi