NETWORK COMPUTER, INC.
OEM LICENSE AGREEMENT
This OEM License Agreement ("AGREEMENT") is entered into by and
between Network Computer, Inc., a Delaware corporation, with principal
offices at 1000 Bridge Parkway, Redwood Shores, CA 94065 ("NCI"), and Wind
River Systems, Inc., a Delaware corporation, with principal offices at 1010
Atlantic Avenue, Alameda, California 94501 ("LICENSEE").
RECITAL
The Licensee desires to license from NCI, and NCI desires to license
to the Licensee, the right to access and modify the source code version of
NCI's customized Internet consumer software and duplicate, distribute and
sublicense the object code versions of such modified source code bundled with
certain Licensee Products (defined below), and, subject to the restrictions
described herein, certain specified source code, in all cases in accordance
with the terms and conditions of this Agreement.
AGREEMENT
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1 "ATTACHMENT(S)" means the attachments to this Agreement
which are attached hereto and incorporated herein:
1.1.1 Attachment A (Product(s) and Trademark
Description) which sets forth a description of the NCI Product and NCI
Trademarks licensed hereunder; provided, however, that NCI may add or delete
NCI Trademarks from Attachment A from time to time upon thirty (30) days
notice.
1.1.2 Attachment B (Licensee Product, Licensee
Trademarks, Pricing and Payment Schedules, Territory and Optional
Products/Modules) which sets forth a description of the Licensee Product with
which the NCI Product will be bundled, the Licensee Trademarks licensed
hereunder, the NCI Product pricing and payment schedule, the Territory in
which Licensee may distribute the NCI Product pursuant to the terms and
conditions hereof, and any Optional Products/Modules that may be included in
the NCI Product subject to mutually agreeable terms and availability.
1.1.3 Attachment C (OEM Maintenance and Technical
Support) which sets forth NCI's and Licensee's respective maintenance and
technical support obligations.
<PAGE>
1.1.5 Attachment D (User Interface and Branding
Requirements for Directed Browsing) which sets forth Licensee's obligations
regarding use and inclusion of the NCI logo set forth on Attachment A hereto
("NCI Logo") as part of the user interface for Directed Browsing applications
used with the Bundled Product.
NCI and Licensee may amend Attachments B and E to this
Agreement from time to time, in accordance with the provisions of Section
14.2 below, to include additional NCI Products or Licensee Products
hereunder, and to specify the relevant terms and conditions with respect to
such additional NCI Products or Licensee Products. Unless the parties
clearly specify to the contrary, no such amendment shall have the effect of
modifying, terminating or superseding the relevant terms and conditions
regarding any other NCI Product or Licensee Product hereunder.
1.2. "DERIVATIVE WORK(S)" means a revision, modification,
translation, abridgment, condensation, or expansion of the NCI Product, NCI
Source Code or End User Documentation, as applicable, or any form in which
the NCI Product, NCI Source Code or End User Documentation, as applicable may
be recast, transferred, or adapted, which, if prepared without the consent of
NCI, would be a copyright infringement.
1.3. "DISTRIBUTOR" means any third party appointed by
Licensee pursuant to this Agreement to distribute the Bundled Product to
subdistributors, Customers or End Users in accordance with the terms hereof.
1.4. "EFFECTIVE DATE" means December __, 1997.
1.5. "END USER" means any third party which buys or otherwise
acquires the right to use a product which contains the Bundled Product for
its own use and not for further distribution.
1.6. "LICENSEE PRODUCT" means the specific product or service
offered by Licensee and described on Attachment B hereto that may be bundled
with the NCI Product. As used in this Agreement, the term Licensee Product
shall include any new release or new version of the Licensee Product.
1.7 "DIRECTED BROWSING" means that use specified in
Attachment A hereto. Directed Browsing includes the Embedded Graphics Usage.
1.8 "EMBEDDED GRAPHICS USAGE" means that use specified in
Attachment A hereto.
1.9 "BUNDLED PRODUCT" means one or more products developed
by Licensee that consists of the Licensee Product and any portion of the NCI
Product, provided that use of the NCI Product as incorporated in the Bundled
Product is limited to either Directed Browsing or Embedded Graphics Usage.
-2-
<PAGE>
1.10 "LICENSEE TRADEMARKS" shall include all Licensee
trademarks, logos and designs specified in Attachment B hereto as may be
amended from time to time upon Licensee's written notice to NCI.
1.11. "MAJOR AND MINOR UPDATES" mean updates, if any, to the
NCI Product. Major Updates involve additions of substantial functionality
while Minor Updates do not. Major Updates are designated by a change in the
number to the left of the decimal point of the product release number
appearing after the product name, while Minor Updates are designated by a
change in such number to the right of the decimal point. NCI is the sole
determiner of the availability and designation of an Update as a Major or
Minor Update. Major Updates exclude software releases which are reasonably
designated by NCI as new products. Where used herein "UPDATES" shall mean
Major Updates and Minor Updates.
1.12. "PREPAID LICENSE FEE" means the non-refundable,
non-cancelable licensee fee set forth in Attachment B hereto.
1.13. "PROGRAM ERRORS" means one or more reproducible
deviations in the NCI Product from the End User Documentation.
1.14. "ROYALTY" means the royalty set forth in Attachment B
hereto payable upon licensing or distribution of Bundled Product.
1.15. "SERVICE FEE" means the non-refundable prepaid fees set
forth in Attachment B hereto, which constitute consideration from Licensee to
NCI for the maintenance and technical support services prescribed in
Attachment C.
1.16. "TERRITORY" means the geographic area set forth in
Attachment B.
1.17. "NCI PRODUCT" means the object code version (expressly
excluding the NCI Source Code, as defined below) of NCI's proprietary
software as further described on Attachment A, any Updates thereto as may be
provided by NCI to Licensee pursuant to this Agreement, and any Derivative
Works thereof made by or on behalf of Licensee. The NCI Product expressly
excludes the NCI Source Code and the Excluded Components (each as defined
below).
1.18 "NCI SOURCE CODE" means the mnemonic, high level,
commented version of the NCI Product in human readable form written in a
source programming language.
1.19. "NCI TRADEMARKS" means any and all NCI trademarks, the
NCI logos and designs specified in Attachment A hereto as may be amended from
time to time upon NCI's written notice to Licensee.
1.20. "OPTIONAL PRODUCTS/MODULES" means third party modules
that NCI desire to include in the NCI Product, subject to availability of
source code from the third
-3-
<PAGE>
party licensor, which are set forth on Attachment B, as may be amended from
time to time.
1.21. "EXCLUDED COMPONENTS" means the NCI source and object
code for television display, including color correction, anti-flicker, TVBar,
"TV:", and PopTV technology.
1.22. "SPECIFIED PARTIES" means the parties set forth on
Attachment B.
1.23. "REFERENCE PLATFORM" means the NCI NT 150 x 86 based set
top box configured to display on a VGA monitor and any other versions as
amended by NCI from time to time by written notice to Licensee.
1.24. "REFERENCE IMPLEMENTATION" means the object code version
of the NCI Source Code as compiled by NCI for execution on the Reference
Platform.
1.25. "INVENTIONS" means any ideas, concepts, inventions,
procedures, techniques or processes devised by Licensee in the course of
Licensee's exercise of its rights described in Section 2, which is based upon
or derivative of the NCI Source Code, Distributable Source or the NCI Product.
1.26. "CUSTOMER" means an entity that enters into a license
agreement with Licensee (directly or through a Distributor or subdistributor)
pursuant to which the Customer obtains a right to sell products containing
the Bundled Product to End Users.
1.27. "END USER DOCUMENTATION" means the documents and written
material or portions thereof, which are distributed generally by NCI to the
Licensee for delivery to End Users and Customers with the Bundled Product(s),
as may be updated by NCI from time to time.
1.28. "DISTRIBUTABLE SOURCE" means the SDK Source Headers (as
defined below) and the source code for the Windows Manager, the 2D Graphics
Library, and the UI Widget Library components of the NCI Source Code for
Embedded Graphics Usage.
1.29. "SDK SOURCE HEADERS" means the source header files
listed on Attachment A hereto.
2. GRANT OF LICENSES AND RIGHTS
2.1. LICENSES.
2.1.1 LICENSE. Subject to all the terms and conditions of
this Agreement, NCI hereby grants and Licensee hereby accepts:
(i) a paid-up, non-exclusive, perpetual, irrevocable (except as
provided in Section 13), non-transferable, non-assignable right and license
to use the NCI Source Code and the Excluded Components solely in accordance
with the restrictions below and
-4-
<PAGE>
solely to (a) modify the NCI Source Code to create Bundled Product; (b)
compile the NCI Source Code to create Bundled Product; (c) maintain Bundled
Product and support Customers and End Users; (d) test the NCI Source Code;
and (e) train the Designated EGU Employees and Designated DB Employees (as
defined below):
(1) the NCI Source Code for Embedded Graphics Usage shall
only be used on a secure source code management system, accessible only
by Licensee's employees who require access to such NCI Source Code for
Embedded Graphics Usage in order for Licensee to exercise the rights
granted to Licensee under this Agreement pertaining to Embedded Graphics
Usage (the "Designated EGU Employees"); and
(2) the NCI Source Code for Directed Browsing and the
Excluded Components shall only be used on a secure source code management
system, accessible by no more than fifty (50) Licensee employees who
require access to such NCI Source Code for Directed Browsing and Excluded
Components in order for Licensee to exercise the rights granted to
Licensee under this Agreement pertaining to Directed Browsing (the
"Designated DB Employees"); provided, however, that, in the event that
Licensee reasonably requires the right to designate more than fifty (50)
Designated DB Employees, the parties will negotiate in good faith an
increase in the foregoing number;
(ii) a paid-up, non-exclusive, perpetual, irrevocable (except
as provided in Section 13), non-transferable, non-assignable right and
license to reproduce, and have reproduced, the NCI Product as incorporated
into the Bundled Product;
(iii) a non-exclusive, perpetual, irrevocable (except as
provided in Section 13), non-transferable, non-assignable right and license,
subject to payment of the Royalties hereunder, to distribute (directly or
indirectly through Distributors) and sublicense (via Distributor Agreements)
the NCI Product and Distributable Source, solely as incorporated in the
Bundled Product, to Customers and Distributors, and to distribute (directly
or indirectly through Distributors) and sublicense the NCI Product and
Distributable Source, solely as incorporated in the Bundled Product, to End
Users, in the Territory and solely for Directed Browsing or Embedded Graphics
Usage. Licensee is expressly prohibited from (a) any marketing and/or
distribution of the NCI Product and any portion thereof unless each copy of
the NCI Product is incorporated into Bundled Product (b) distributing the
Bundled Product outside the Territory, and (c) distributing the Bundled
Product for any use other than Directed Browsing or Embedded Graphics Usage.
In addition to any of the restrictions contained herein, any distribution
and/or sublicense of the Distributable Source by Licensee shall be subject to
the same terms, conditions, and restrictions that Licensee uses when Licensee
distributes and/or licenses its own confidential, proprietary source code.
Licensee shall not distribute the NCI Source Code (except the
Distributable Source) in any way or on any media whatsoever. This license is
non-
-5-
<PAGE>
exclusive. Subject to Licensee's rights pursuant to the immediately
following sentence, nothing in this Agreement shall be construed as limiting
in any manner NCI's marketing and distribution activities or its appointment
of other dealers, distributors, licensees or agents in the Territory.
Licensee shall have the exclusive right to sublicense to the Specified
Parties the Derivative Works made by Licensee and NCI shall grant no license
or sublicense directly or indirectly to such Specified Parties. In the event
NCI includes Derivative Works into the NCI Product, the restriction in the
immediately foregoing sentence on NCI's right to license or sublicense such
Derivative Works shall not apply. NCI will in no event use such Derivative
Works to build a competitive embedded real-time operating system.
Notwithstanding anything else in this Agreement or the
attachments and exhibits hereto, Licensee hereby agrees that it shall not
modify the NCI Source Code or the Distributable Source for use with any
device that utilizes a television display (e.g. a display that is commonly
referred to as a television, or supports television formats such as NTSC,
PAL, SECAM, HDTV formats, or other new formats derived therefrom) ("TV
Device") and Licensee will not distribute, and shall restrict Distributors
and Customers from distributing, the Bundled Product in any way such that
they could be used in conjunction with any TV Device. The immediately
preceding sentence shall not apply to Embedded Graphics Usage.
Licensee shall not and shall not permit any Distributor or
Customer to distribute the NCI Product and/or the Bundled Product in
conjunction with or as part of a personal computer or any successor product
to the multipurpose personal computer (including those that function as
servers) or business network computer. Except for the Javascript component of
the Embedded Graphics Usage, the immediately preceding sentence shall not
apply to Embedded Graphics Usage. (For clarification, Licensee is permitted
to distribute the Bundled Product incorporating Embedded Graphics Usage in
conjunction with Licensee Product, IXWorks, on an ancillary processor which
does not use the primary personal computer or network computer display.)
Licensee shall have the right to use the Excluded Components internally
solely for development and internal training purposes. Licensee shall have
no right to distribute the Excluded Components as part of the NCI Product.
Notwithstanding anything to the contrary herein, except as
subject to an assignment pursuant to Section 14.3 hereof, Licensee shall have
no right to distribute or sublicense (directly or indirectly) any Bundled
Product allowing Directed Browsing or incorporating any component of Directed
Browsing (other than Embedded Graphics Usage components in object code form
only), or distribute or sublicense the NCI Source Code or the Distributable
Source in any way, to the following entities: [***] (or any other name under
which such division operates).
[***] CONFIDENTIAL TREATMENT REQUESTED
-6-
<PAGE>
2.1.2 DISTRIBUTORS AND CUSTOMERS. Subject to the terms and
conditions of this Agreement, Licensee shall be entitled to appoint
Distributors to distribute directly to Customers and End Users, and shall be
entitled to appoint Customers to distribute directly to End Users, the
Bundled Product and End User Documentation in the Territory solely for
Directed Browsing or Embedded Graphics Usage. Licensee shall not be entitled
to grant to any Distributor or Customer the right to reproduce all or any
portion of the NCI Product and End User Documentation or to sublicense or
distribute the Bundled Product and End User Documentation other then as
permitted hereby. Distributors may appoint subdistributors and Customers
only through written agreements that meet the requirements of Section 3.3.2
and that otherwise ensure compliance with the terms of this Agreement and
such subdistributor shall be deemed a Distributor for the purposes of this
Agreement.
2.1.3 LICENSE RESTRICTIONS. Licensee agrees not to copy
(except as expressly permitted herein), modify, translate, decompile, reverse
engineer, disassemble, or otherwise determine or attempt to determine source
code (or the underlying ideas, algorithms, structure or organization) from
any portion of the NCI Product that was provided to Licensee only in object
code form and not in source code form. Licensee shall restrict, by its
agreements, all third parties, including, without limitation, Distributors
and Customers, from copying (except as expressly permitted herein),
modifying, translating, decompiling, reverse engineering, disassembling, or
otherwise determining or attempting to determine source code (or the
underlying ideas, algorithms, structure or organization) from any portion of
the NCI Product, except to the extent such third party rightfully received
Distributable Source.
2.1.4 LICENSES DEPENDENT ON BUNDLING. The licenses granted in
Section 2.1.1 are conditional upon marketing and bundling each NCI Product as
required therein only in conjunction with the specific Licensee Product and
only in the Territory. If Licensee fails to so bundle the NCI Product, or
Licensee or any Distributor or Customer markets or distributes the NCI
Product or Bundled Product outside of the Territory, the licenses granted
herein may be terminated in accordance with the provisions set forth in
Section 13. For the purposes of this Agreement, the terms "bundle", "bundled"
or "bundling" shall mean that the NCI Product is either (i) packaged together
and licensed concurrently with Licensee Product as an integrated component of
a Bundled Product or (ii) licensed separately to existing licensees of the
Licensee Product but solely for use with previously licensed units of
Licensee Product (e.g., updates to existing Licensee Product to add Directed
Browsing or Embedded Graphics Usage capabilities).
2.1.5 THIRD PARTY LICENSE. If all or any part of the NCI
Product or Updates delivered by NCI to Licensee has been licensed to NCI by a
third party software developer or supplier then, notwithstanding anything to
the contrary contained in this Agreement, Licensee is granted a sublicense to
the third party software that vests in Licensee the same rights (to the
extent licensed under Section 2.1.1 hereof), and subjects Licensee to the
same restrictions, as NCI, to the extent such restrictions are described in
Attachment B as amended from time to time upon written notice to Licensee,
provided
-7-
<PAGE>
the terms of such amendments are commercially reasonable. All licenses
granted by NCI under this Agreement are subject to compliance by Licensee
with any applicable license restrictions, payment by Licensee to NCI of
royalties or other fees set forth on Attachment B hereto. In addition, NCI
reserves the right to substitute any third party software in the NCI Product
so long as the new third party software does not materially affect the
functionality of the NCI Product. NCI will deliver to Licensee sixty (60)
days notice of such substituted third party software. A list of third party
code in the NCI Product or Updates and applicable royalties or other fees,
required consents with respect thereto, and applicable restrictions are set
forth in Attachment B hereto (as amended from time to time by NCI to reflect
additional third party code added to or deleted from the NCI Product or
included in any Update).
2.2. EXPORT. Licensee shall comply fully with all then-current
laws, rules and regulations (as promulgated from time to time) relating to
the export of technical data, including, but not limited to the U.S. Foreign
Corrupt Practices Act and any regulations of the United States Office of
Export Administration and other applicable governmental agencies including
any applicable foreign agencies. Licensee acknowledges that, if security
technology is embedded in the NCI Product, Distributable Source or the
Bundled Product, export of such software from the U.S. or import to other
destination countries may not be legal or may be subject to license
requirements. As appropriate, Licensee shall conspicuously mark all
packaging containing any NCI Product or Distributable Source or component
thereof that is not exportable with a "Not For Export" notice. NCI agrees to
cooperate in providing information reasonably requested by Licensee as
necessary to obtain any required licenses and approvals.
Unless Licensee receives the prior, written consent of NCI,
Licensee shall not allow access to any source code provided by NCI under this
Agreement (including any attachment or addenda hereto) to any individual who
is not a citizen or resident alien of the United States. Any breach of this
provision shall be deemed a material breach of this Agreement.
2.3. EUROPEAN COMMUNITY. In the event that any provision of this
Agreement prohibits any activity of Licensee, any Distributor or any Customer
in violation of Article 6 of the Council Directive of 14 May 1991 on the
legal protection of computer programs, and implementing legislation
thereunder (the "Directive"), then, such activity shall be permitted solely
to the extent, if any, that such activity is (i) subject to the jurisdiction
of a Member State of the European Community and (ii) expressly permitted by
the Directive.
2.4. END USER DOCUMENTATION LICENSE. Subject to the terms and
conditions of this Agreement, NCI hereby grants and Licensee hereby accepts a
non-exclusive, non-transferable, non-assignable right and license to use,
modify, and reproduce the End User Documentation, and to distribute to End
Users and Customers by sublicense the End User Documentation directly or
indirectly through Distributors or Customers, solely in conjunction with the
Bundled Product(s).
-8-
<PAGE>
3. MARKETING AND DISTRIBUTION
3.1. NON-EXCLUSIVITY. Licensee understands that NCI may enter into
arrangements similar to this Agreement with third parties.
3.2. PUBLIC ANNOUNCEMENTS AND PROMOTIONAL MATERIALS. NCI and
Licensee shall cooperate with each other so that each party may issue a press
release concerning this Agreement within thirty (30) calendar days following
the Effective Date; provided, that each party approve any such press release
prior to its release. Such press release shall include a quote attributable
to an executive officer of each party. NCI shall cooperate with Licensee in
its development of the initial marketing and sales materials used to promote
the distribution of the Bundled Product.
3.3. TERMS RELATING TO DISTRIBUTION.
3.3.1 GOVERNMENT AGENCY RESTRICTIONS. Licensee agrees to
comply with and shall require its Distributors and Customers to comply with
all applicable laws, rules and regulations to preclude the acquisition of
unlimited rights to technical data, software, and End User Documentation
provided with the NCI Product and Distributable Source to a governmental
agency, and ensure the inclusion of the appropriate "Restricted Rights" or
"Limited Rights" notices required by the U.S. Government agencies or other
applicable agencies.
3.3.2 DISTRIBUTOR AGREEMENTS. Prior to the distribution of
any Bundled Product, Distributable Source, or End User Documentation to a
Distributor or Customer, Licensee shall enter into (or shall have already
entered into) an enforceable written agreement with such Distributor or
Customer ("Distributor Agreement") that (i) is sufficient to ensure that such
Distributor or Customer is required to comply with the relevant terms of this
Agreement, (ii) requires each Distributor to enter into a Distributor
Agreement with any subdistributor prior to granting such subdistributor any
rights with respect to the Bundled Product. Licensee shall use commercially
reasonable efforts include in any Distributor Agreements with a Distributor
entered into on or after the Effective Date a provision that expressly names
NCI as an intended third party beneficiary with the right to rely on and to
directly enforce the terms thereof. Without limiting the generality of the
foregoing, each Distributor Agreement shall include terms no less restrictive
than those contained in Sections 2.1.2, 2.1.3, 2.1.4, 2.1.5, 2.2, 2.3, 2.4,
3.3, 3.4, 4.3, 4.4, 7.1, 7.2.1 and 8.1 of this Agreement. Prior to enforcing
its rights under a Distributor Agreement as a third party beneficiary, NCI
will provide fifteen (15) days notice to Licensee of the Distributor's
non-compliance and NCI's intended action. If such non-compliance by the
Distributor is not cured within fifteen (15) days of NCI's notice to
Licensee, NCI shall be entitled to enforce its rights directly against the
Distributor.
3.3.3 SUGGESTED MODIFICATIONS. Licensee agrees to keep NCI
informed as to any problems encountered with NCI Product and Distributable
Source and any resolutions arrived at for those problems, and to communicate
promptly to NCI any and
-9-
<PAGE>
all modifications, or improvements of the NCI Product or Distributable Source
suggested by any End User, Distributor, Customer, employee or agent, to the
extent that Licensee is permitted under the law and is not required to pay
such third party(ies) any payment of consideration with respect thereto.
Licensee further agrees that NCI shall have any and all right, title and
interest in and to any such submitted suggested modifications or improvements
to the NCI Product and Distributable Source.
3.3.4 GENERAL OBLIGATIONS AND RESTRICTIONS REGARDING
DISTRIBUTION. Licensee shall use its best efforts, which shall in no event
require Licensee to make any unreasonable efforts, to successfully market and
distribute the Bundled Product in the Territory during the term of this
Agreement. Licensee shall not develop during the term hereof any product
that, in NCI's reasonable discretion, competes with the NCI Product as it
exists on the date NCI delivers the Deliverables to Licensee. The parties
shall participate in mutually agreeable joint marketing programs for the
Bundled Product.
3.4. ENFORCEMENT OF ANCILLARY AGREEMENTS. Licensee shall use best
efforts, which shall in no event require Licensee to make any unreasonable
efforts, to enforce each Distributor Agreement, and shall require each
Distributor and Customer to, use commercially reasonable efforts to enforce
each Distributor Agreement to which it is a party, in each case, with at
least the same degree of diligence used in enforcing similar agreements
governing others, which in any event shall be that sufficient to adequately
enforce such agreements. Licensee shall, and shall require each Distributor
and Customer to, use commercially reasonable efforts to protect NCI's
copyright and trademark rights, and Licensee shall notify NCI, and shall
require each Distributor and Customer to notify Licensee, of any breach of a
material obligation under a Distributor Agreement affecting the NCI Product,
Distributable Source or End User Documentation. In addition, Licensee will
reasonably cooperate with NCI in any legal action to prevent or stop
unauthorized use, reproduction or distribution of the Bundled Product or End
User Documentation, and NCI shall pay all of Licensee's reasonable
out-of-pocket expenses with respect thereto.
3.5 INVENTIONS. All Inventions are and shall remain the sole and
exclusive property of Licensee. Licensee agrees to disclose such Inventions
to NCI and shall grant to NCI a royalty-free, perpetual, paid-up, worldwide,
non-exclusive, sublicenseable (except with respect to the Specified Parties)
license to such Inventions, under all of Licensee's intellectual property
rights, including, without limitation, patent rights, copyrights, and trade
secret rights, to use, modify, distribute, make, have made, and sell NCI
products. Any such disclosure shall be considered Confidential Information
under Section 8.
4. FEES AND PAYMENT
4.1. ROYALTY, ENGINEERING AND SERVICE FEES.
4.1.1 In accordance with the terms set forth in Attachment B
hereto, Licensee shall pay to NCI the non-refundable, noncancelable Prepaid
License Fee, License Fee and Engineering Fees. In addition, Licensee shall
pay to NCI, in accordance
-10-
<PAGE>
with the terms of this Agreement, a Royalty in the amount set forth in
Attachment B. Licensee shall pay NCI any Royalties accrued hereunder during
each quarter within twenty-eight (28) days following the end of such quarter
and each such payment shall be accompanied by a quarterly report as described
in Section 4.3 below. For the purposes of this Agreement, the quarters shall
end on the last day of each of the following months January, April, July, and
October.
4.1.2 SERVICE FEE. Licensee shall pay to NCI the
non-refundable Service Fee in the amounts and according to the terms and
conditions set forth in Attachment B hereto, in consideration of the
maintenance and support services described in Attachment C hereto.
4.2. PAYMENT AND TAXES.
4.2.1 PAYMENTS. All payments shall be made in United States
dollars, at NCI's option, (i) at NCI's address as indicated in this Agreement
or at such other address as NCI may from time to time indicate by proper
notice hereunder or (ii) by wire transfer to a bank and account number
designated by NCI. Interest shall be payable at the rate of one percent (1%)
per month or at the maximum rate permitted by law, whichever is less, on all
overdue and unpaid invoices until paid in full.
4.2.2 TAXES. All fees are exclusive of all taxes, duties or
levies, however designated or computed. Licensee shall be responsible for
and pay all taxes based upon the transfer, use, distribution of the NCI
Product, the Bundled Product, and the End User Documentation, or the program
storage media, or upon payments due under this Agreement, including, but not
limited to, sales, use, or value-added taxes, duties, withholding taxes and
other assessments now or hereafter imposed on or in connection with this
Agreement or with any sublicense granted hereunder, exclusive of taxes based
upon NCI's net income, and the amounts invoiced to Licensee with respect to
the Prepaid License Fee, License Fee, Engineering Fees, Royalties and Service
Fees shall be increased to the extent necessary to ensure that such fees are
received by NCI net of any such tax liability. The amount of the Prepaid
License Fee, Licensee Fee, Engineering Fees, Royalties and Service Fees as
set forth in ATTACHMENT A hereto represent the amounts to be invoiced to, and
paid by, Licensee under this Agreement. In lieu thereof, Licensee shall
provide to NCI a tax or other levy exemption certificate acceptable to the
taxing or other levying authority.
4.3. QUARTERLY REPORTS. Licensee shall maintain accurate records of
End Users which Licensee licenses directly and Customers, and Distributors
shall maintain accurate records of Customers reported by zip code (not
including names and addresses), the specific platforms, revision numbers of
each Bundled Product and/or Update distributed to each Customer (and End
User, as applicable) and any further information that may be reasonably
necessary for NCI to ensure compliance with this Agreement. Licensee shall
report to NCI within twenty-eight (28) calendar days after the end of each
quarter, the type of Bundled Product and/or Updates distributed directly or
indirectly to each
-11-
<PAGE>
Customer (and End User, as applicable) during such quarter, organized in a
manner to permit a separate review of Bundled Product and Updates, the postal
codes of each such Customer (and End User, as applicable), the number of
copies and type of Bundled Product (by platform) used internally by Licensee
for the first time during such quarter, and such other information as NCI may
from time to time reasonably request.
4.4. AUDIT OF RECORDS. Licensee and each Distributor and Customer
shall keep and maintain full, true, and accurate records containing all data
reasonably required for verification of amounts to be paid. NCI shall have
the right, during normal business hours upon at least fifteen (15) business
days prior notice and not more often than once per calendar year, to audit
and analyze the relevant records of Licensee to verify compliance with the
provisions of this Agreement. The audit shall be conducted by an independent
auditor who is subject to written confidentiality obligations, at NCI's
expense unless there is inadequate record keeping or the results of such
audit establish that inaccuracies in the quarterly reports have resulted in
underpayment to NCI of more than five percent (5%) of the amount actually due
in any quarter, in which case Licensee shall bear the expenses of the audit.
Licensee agrees to promptly pay to NCI the amount of any underpayment
determined by any such audit. NCI agrees to promptly pay to Licensee the
amount of any overpayment determined by any such audit.
5. DELIVERABLES, UPDATES, AND TECHNICAL SUPPORT
5.1. DELIVERABLES. NCI will make reasonable efforts to provide a
preliminary version of the NCI Source Code (which may or may not exclude the
Excluded Components and any third party Optional Products/Modules) to
Licensee by January 10, 1998. NCI shall use best efforts, which shall in no
event require NCI to make any unreasonable efforts, to provide Licensee with
the deliverables set forth on Attachment A hereto, if any, (the
"DELIVERABLES") substantially in accordance with the schedule set forth
therein. All deliveries under this Agreement shall be free on board
("F.O.B.") NCI, Redwood Shores, California. Title to all goods delivered
from NCI to Licensee shall pass at, and Licensee shall be responsible for all
shipping charges from, the F.O.B. location. Shipment of Deliverables is
authorized by Licensee upon execution of this Agreement or supplement hereto.
5.2. UPDATES AND TECHNICAL SUPPORT. In consideration of the payment
by Licensee to NCI of the License Fee and Prepaid License Fee pursuant to
Section 4.1.1, NCI shall provide to Licensee (i) maintenance and technical
support services described in Attachment C hereto, including, without
limitation, all Minor Updates during the first fifteen (15) months of this
Agreement, and (ii) any Major Updates to the NCI Product during the first
twenty-four (24) months of this Agreement. For so long as NCI shall continue
to offer such maintenance and support services to its other general licensees
of the NCI Product, in consideration of the payment by Licensee to NCI of
Service Fees pursuant to Section 4.1.2, NCI shall provide to Licensee, for
the sixteenth month of this Agreement through the end of this Agreement,
maintenance and technical support services described in Attachment C hereto,
including, without limitation, all Minor
-12-
<PAGE>
Updates. Any provision by NCI of Major Updates after the end of the first
twenty-four (24) months of the term of this Agreement shall be discussed in
good faith by the parties; provided, however, that in no case will the fee
payable by Licensee for each Major Update exceed $[***]*. NCI will not
be responsible for providing Minor Updates to End Users, Distributors or
Customers and Licensee will be responsible for providing Minor Updates to End
Users which Licensee licenses directly, and to Distributors, and Customers.
If requested in writing by NCI, Licensee will distribute each Minor Update to
End Users which Licensee licenses directly, and to Distributors, and
Customers. To facilitate the provision by NCI of maintenance and technical
support services hereunder, Licensee shall deliver to NCI, free of charge,
the object code (and source code, as necessary to resolve Program Errors)
version of three (3) prototype units of the Licensee Product as may be
necessary to facilitate debugging and reproduction of any Program Error that
may be reported by Licensee during the term of this Agreement ("Prototypes").
Any source code of the Prototypes that Licensee delivers pursuant to this
Section shall be deemed Confidential Information. NCI will return such
source code and all copies thereof after NCI has resolved the Program Errors.
NCI shall have the right to use the Prototypes solely for maintenance and
technical support purposes with respect to NCI's obligations hereunder
concerning the Bundled Product, and not for distribution to third parties.
Such Prototypes are provided on an "AS IS" basis, without any warranty, are
the Confidential Information of Licensee, and may not be reverse engineered,
reverse compiled, or reverse assembled. Delivery of the Prototypes shall be
made prior to the release of the Bundled Product for beta testing.
6. TRADEMARKS AND TRADE NAMES
6.1. LICENSE TO USE NCI TRADEMARKS. Licensee shall use, and is
hereby granted a non-transferable, non-exclusive, non-assignable and
restricted license, during the term of this Agreement, to use (with no right
to sublicense), the NCI Trademarks (a) on any Bundled Product licensed or
sold, and (b) in any advertising, packaging, marketing, technical or other
materials related to such Bundled Product. When used in accordance with the
terms of the preceding sentence, the NCI Trademarks, shall be of a size, and
shall be positioned prominently. Such use shall be in accordance with the
NCI's then-current Corporate Signature Kit attached hereto to Attachment A,
and updated from time to time, by NCI. All Bundled Product shall comply with
the Branding Requirements as set forth in Attachment D, except that the
Branding Requirements shall not apply to the Embedded Graphics Usage. After
translation of the NCI Trademarks by Licensee, Licensee will consult with NCI
so that NCI can help ensure uniformity with their use by NCI or third
parties. Licensee shall clearly indicate NCI's ownership of the NCI
Trademarks. All such usage shall inure to NCI's benefit. Licensee agrees
not to register any NCI Trademarks without NCI's express prior written
consent and to the extent Licensee obtains an agreement with its
Distributors and Customers not to register any of Licensee's trademarks,
Licensee agrees to obtain the agreement of its Distributors, and Customers
not to register any NCI Trademarks without NCI's express prior written
consent. Licensee shall not contest NCI's ownership of, or rights in, the
NCI Trademarks and to the extent Licensee obtains an agreement with its
Distributors and Customers not
--------------
* Confidential Treatment Requested. Confidential portion has been filed with
the Securities and Exchange Commission.
-13-
<PAGE>
to contest, Licensee's ownership of, or rights in, Licensee's trademarks,
Licensee agrees to obtain the agreement of its Distributors, and Customers
not to contest, NCI's ownership of, or rights in, NCI's Trademarks. Prior to
the release of the Licensee Product for beta testing, and at any time upon
the reasonable written request of NCI, Licensee will provide NCI with copies
of the Licensee Product and any related goods and marketing materials bearing
the NCI Trademarks solely for NCI's internal use so that NCI can verify that
(i) the quality of the Licensee Product is acceptable to NCI and (ii) the
quality of Licensee's use of the NCI Trademarks is in accordance with the
requirements of this Agreement, the then-current NCI Corporate Signature Kit,
the Branding Requirements and is otherwise comparable to that of NCI's use
thereof. In the event that NCI notifies Licensee that Licensee has failed to
meet the requirements of (i) above, Licensee shall immediately cease
distributing any affected Licensee Products, goods or marketing materials
incorporating, displaying or otherwise bearing the NCI Trademarks; provided,
however, the foregoing shall not relieve Licensee of any of its obligations
with respect to the Branding Requirements. In the event that NCI notifies
Licensee that Licensee has failed to meet the requirements of (i) or (ii)
above with respect to any Bundled Product, goods or marketing materials
incorporating, displaying or otherwise bearing the NCI Trademarks, Licensee
shall suspend distribution of such Bundled Product, goods or marketing
materials until Licensee has satisfied NCI that the foregoing requirements
have been met.
6.2. LICENSE TO USE LICENSEE TRADEMARKS. NCI may use, and is hereby
granted the non-exclusive, non-assignable and restricted license, during the
term of this Agreement, to use (with no right to sublicense), the Licensee
Trademarks in any advertising, packaging, marketing technical or other
materials related to the NCI Product and Distributable Source. Such use
shall be in accordance with any written instructions delivered by Licensee to
NCI from time to time during the term of this Agreement, and any specific use
shall be subject to the prior written consent of Licensee. NCI will clearly
indicate Licensee's ownership of the Licensee Trademarks.
7. PROPRIETARY RIGHTS
7.1. PROPRIETARY RIGHTS. Title to and ownership of all copies of
the NCI Product, the NCI Source Code, the Excluded Components, the Updates,
the Distributable Source, and End User Documentation (and any portion
thereof) whether in machine-readable or printed or displayed form, and
including, without limitation, Derivative Works, compilations, or collective
works thereof and all related technical know-how and all proprietary rights
contained therein (including without limitation rights in patents,
trademarks, copyrights, and trade secrets applicable thereto), are and shall
remain the exclusive property of NCI or its licensors. Within thirty (30)
days of the release of each new version of the Bundled Product, Licensee
shall deliver to NCI a written and digital (in a mutually agreeable format)
copy of all Derivative Works of the NCI Source Code, the Distributable Source
and the End User Documentation. Licensee hereby assigns to NCI all of its
right, title and interest in and to the Derivative Works made by Licensee.
The parties hereby agree to execute any assignments necessary to effectuate
the foregoing
-14-
<PAGE>
ownership provision. Neither Licensee, any Distributor, nor any Customer
shall take any action to jeopardize, limit or interfere in any manner with
NCI's ownership of and rights with respect to the NCI Product, Distributable
Source and End User Documentation. Licensee shall have only those rights in
or to the NCI Product, Distributable Source and End User Documentation
granted to it pursuant to this Agreement.
7.2. PROPRIETARY NOTICES.
7.2.1 NO ALTERATION OF NOTICES. Neither Licensee, the
Distributors, nor the Customers, or any of their respective employees or
agents, shall remove or alter any trademark, trade name, copyright, or other
proprietary notices, legends, symbols, or labels appearing on or in copies of
the NCI Product, Distributable Source and End User Documentation and other
materials, including, without limitation, any documentation or user manuals,
delivered to Licensee by NCI and Licensee shall use the same notices,
legends, symbols, or labels in and on copies of such materials, Distributable
Source NCI Product made pursuant to Section 2.1 as are contained in and on
such NCI Product and such materials.
7.2.2 NOTICE. Each portion of the NCI Product, Distributable
Source and End User Documentation reproduced by Licensee shall include the
intellectual property notice or notices appearing in or on the corresponding
portion of such materials as delivered by NCI hereunder. Licensee shall
ensure that all copies of the NCI Product and Distributable Source,
including, without limitation, copies of the Bundled Product and End User
Documentation, made pursuant to this Agreement conspicuously display a notice
substantially in the following form:
-C- 1996-1998 (or other appropriate year(s)), Network
Computer, Inc. All Rights Reserved. Portions -C- 1994-1997
(or other appropriate year(s)), Netscape Communications
Corporation. All Rights Reserved.
If Licensee is unsure of the appropriate year(s), it shall
consult NCI to obtain the correct designation. Such notice shall be on
labels on all media containing the NCI Product and Distributable Source,
including, without limitation, the Bundled Product and the End User
Documentation. The immediately preceding sentence shall not limit Licensee's
right to display Licensee's copyright notices and other proprietary notices
on the Bundled Product and End User Documentation. If the copyright symbol
"-C-" cannot technically be reproduced, Licensee shall use the word
"Copyright" in its place.
8. CONFIDENTIAL INFORMATION AND DISCLOSURE
8.1. CONFIDENTIAL INFORMATION. Each party agrees to maintain all
Confidential Information in confidence to the same extent that it protects
its own similar Confidential Information and to use such Confidential
Information only as permitted under this Agreement. For purposes of this
Agreement "CONFIDENTIAL INFORMATION" shall mean information including,
without limitation, computer programs, code, algorithms, names and expertise
of employees and consultants, know-how, formulas, processes, ideas,
-15-
<PAGE>
inventions (whether patentable or not), schematics and other technical,
business, financial and product development plans, forecasts, strategies and
information marked "Confidential" or, if disclosed verbally, identified as
confidential. Each party agrees to take all reasonable precautions to
prevent any unauthorized disclosure or use of Confidential Information
including, without limitations disclosing Confidential Information only to
its employees (a) with a need to know to further permitted uses of such
information, (b) who are parties to appropriate agreements sufficient to
comply with this Section 8 and (c) who are informed of the
nondisclosure/non-use obligations imposed by this Section 8 and both parties
shall take appropriate steps to implement and enforce such
non-disclosure/non-use obligations. The foregoing restrictions on disclosure
and use shall survive for three (3) years following termination of this
Agreement but shall not apply with respect to any Confidential Information
that (i) was or becomes publicly known through no fault of the receiving
party; (ii) was rightfully known or becomes rightfully known to the receiving
party without confidential or proprietary restriction from a source other
than the disclosing party; (iii) the receiving party can document was
independently developed by the receiving party without the participation of
individuals who have had access to the Confidential Information; (iv) is
approved by the disclosing party for disclosure without restriction in a
written document which is signed by a duly authorized officer of such
disclosing party; or (v) the receiving party is legally compelled to
disclose; provided, however, that prior to any such compelled disclosure, the
receiving party will (a) assert the privileged and confidential nature of the
Confidential Information against the third party seeking disclosure and (b)
cooperate fully with the disclosing party in protecting against any such
disclosure and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Confidential Information. In the event that
such protection against disclosure is not obtained, the receiving party will
be entitled to disclose the Confidential Information, but only as and to the
extent necessary to legally comply with such compelled disclosure.
8.2. CONFIDENTIALITY OF AGREEMENT. Unless required by law, and
except to assert its rights hereunder or for disclosures to its own employees
on a "need to know" basis, both parties agree not to disclose to any third
party the terms of this Agreement or matters relating hereto without the
prior written consent of the other party which consent shall not be
unreasonably withheld
8.3 CONFIDENTIALITY OF SOURCE CODE. NCI Source Code and any
Derivative Works thereof shall be Confidential Information under the
foregoing terms of this Agreement and shall in addition be subject to the
terms of this Section 8.3.
8.3.1 Licensee will limit access to the NCI Source Code solely
to Licensee's employees and on-site independent contractors ("Contractors")
with a need to know for purposes of this Agreement.
8.3.2 Notwithstanding any other provision of this Agreement,
this provision shall survive any expiration or termination of this Agreement
and shall remain in full force and effect despite any such expiration or
termination.
-16-
<PAGE>
8.3.3 The receiving party shall have in place a written
confidentiality agreement with each of its employees and Contractors who are
given access to the NCI Source Code, which requires the employee or
Contractor to comply with the requirements of this Agreement. Prior to
disclosing any NCI Source Code to its employees or Contractors as permitted
herein, Licensee shall ensure that all NCI Source Code is marked "NCI
Confidential."
8.3.4 Licensee shall use its best efforts to protect the
confidentiality of the NCI Source Code, including methods of limiting access.
Licensee will use NCI Source Code in a building with restricted access or in
a locked room and only on computer systems with security protection which is
adequate to prevent unauthorized parties from accessing such NCI Source Code.
Licensee shall be liable for the conduct of its employees, agents,
representatives and Contractors who in any way breach this section of this
Agreement.
9. WARRANTIES
9.1. LIMITED WARRANTY. Subject to the limitations set forth in this
Agreement, NCI warrants only to Licensee that the NCI Source Code, when
properly compiled installed, and used, will substantially conform to the
functional specifications published by NCI for the Reference Implementation
in effect when the NCI Product is shipped by NCI to Licensee. NCI's warranty
and obligation shall extend for a period of ninety (90) days ("Warranty
Period") from the date NCI first delivers the NCI Source Code to Licensee.
All warranty claims not made in writing or not received by NCI within the
time period specified above shall be deemed waived. NCI's warranty and
obligation is solely for the benefit of Licensee, who has no authority to
extend this warranty to any other person or entity. NCI MAKES NO WARRANTY
THAT ALL ERRORS OR FAILURES WILL BE CORRECTED.
9.2. EXCLUSIVE WARRANTY. THE EXPRESS WARRANTY SET FORTH IN SECTION
9.1 CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE NCI PRODUCT AND
DISTRIBUTABLE SOURCE. NCI MAKES NO OTHER REPRESENTATION OR WARRANTY OR
CONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY
OPERATION OF LAW) WITH RESPECT TO THE NCI PRODUCT AND DISTRIBUTABLE SOURCE.
NCI EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. NCI DOES NOT WARRANT THAT THE NCI PRODUCT
OR DISTRIBUTABLE SOURCE IS ERROR-FREE OR THAT OPERATION OF THE NCI PRODUCT OR
DISTRIBUTABLE SOURCE WILL BE SECURE OR UNINTERRUPTED AND HEREBY DISCLAIMS ANY
AND ALL LIABILITY ON ACCOUNT THEREOF. NCI EXPRESSLY DISCLAIMS ANY AND ALL
IMPLIED WARRANTIES OF NON-INFRINGEMENT; THE SOLE REMEDY FOR INFRINGEMENT IS
PROVIDED IN
-17-
<PAGE>
SECTION 10. This subsection shall be enforceable to the extent allowed by
applicable law.
9.3. DEFECTS NOT COVERED BY WARRANTIES. NCI shall have no
obligations under the warranty provisions set forth in Section 9.1 if any
nonconformance is caused by: (a) the incorporation, attachment or other
engagement of any attachment, feature, program, or device, other than by NCI,
to the NCI Product, or any part thereof; or (b) accident; transportation;
neglect or misuse; alteration, modification, or enhancement of the NCI
Product or Distributable Source other than by NCI; or (c) failure to provide
a suitable installation environment; or (d) use of supplies or materials not
meeting specifications; or (e) use of the NCI Product or Distributable Source
for other than the specific purpose for which it is designed; or (f) use of
the NCI Product on any systems other than the Reference Hardware; or (g)
Licensee's use of defective media (other than defective media provided by NCI
to Licensee) or defective duplication of the NCI Product; or (h) Licensee's
failure to incorporate any Update previously released by NCI which corrects
such nonconformance.
9.4. EXCLUSIVE REMEDY. In the event that Licensee finds what it
believes to be Program Errors in or a failure of the NCI Product, NCI Source
Code and Distributable Source that prevents such code from substantially
conforming to functional specifications published by NCI for the Reference
Implementation in effect when the NCI Product is shipped by NCI to Licensee,
and provides NCI with a written report thereof during the Warranty Period,
NCI will use reasonable efforts to correct promptly, at no charge to
Licensee, any such Program Errors or failures. This is Licensee's sole and
exclusive remedy, and NCI's sole obligation, for any express or implied
warranties hereunder.
9.5. LICENSEE WARRANTY. Licensee hereby warrants that Licensee has
the authority to enter into and be bound by the terms of this Agreement.
10. INDEMNIFICATION
10.1. NCI agrees to indemnify, hold harmless and, at Licensee's
request, defend Licensee from and against any and all claims, liabilities,
losses, damages, expenses and costs (including reasonable attorneys' fees and
costs) arising out of, in connection with or relating to a claim that the NCI
Product, NCI Source Code or Distributable Source infringes any valid patent,
copyright, trademark or trade secret to the extent that such infringement
exists in the Reference Implementation; provided, that Licensee (a) promptly
(within twenty (20) days) notifies NCI in writing of any such claim and NCI
has sole control of the defense and all related settlement negotiations, and
(b) cooperates with NCI, at NCI's expense, in defending or settling such
claim.
10.2. Should the NCI Product, NCI Source Code or Distributable Source
become, or be likely to become in NCI's opinion, the subject of infringement
of such copyright, patent, trademark or trade secret, NCI may (i) procure for
Licensee the right to continue using the same or (ii) replace or modify it to
make it non-infringing. Notwithstanding any characterization of any fees
paid by Licensee hereunder as "non-
-18-
<PAGE>
refundable", in the event that NCI determines that neither (i) or (ii) above
are commercially reasonable, NCI may terminate this Agreement upon thirty
(30) days prior written notice, and refund to Licensee all amounts paid
hereunder reduced on a straight-line pro-rata basis over five (5) years from
the Effective Date. NCI shall have no liability for and Licensee shall
indemnify and hold NCI harmless from and against any claim based upon: (a)
the use of a version of the NCI Product, NCI Source Code or Distributable
Source other than the then current, unaltered version of the NCI Product, NCI
Source Code or Distributable Source (as applicable), except to the extent the
Reference Implementation would also be infringing; (b) use, operation or
combination of the NCI Product, NCI Source Code or Distributable Source with
non-NCI programs, data, method, equipment or documentation, if such
infringement would have been avoided but for such use, operation or
combination; (c) Licensee's, its Distributors', its Customers' or agent's
activities after NCI has notified Licensee that NCI believes such activities
may result in such infringement; (d) compliance with Licensee's designs,
specifications or instructions; (e) any modifications or marking of the NCI
Product, NCI Source Code or Distributable Source not specifically authorized
in writing by NCI; (f) any Derivative Works made by Licensee; (g) Licensee's
use of any trademarks other than the NCI Trademarks pursuant to Section 6
hereof; or (h) third party software except for software developed by
Netscape. The foregoing states the entire liability of NCI and the exclusive
remedy of Licensee with respect to infringement of any intellectual property
rights.
10.3. GENERAL INDEMNIFICATION BY LICENSEE. Licensee agrees to
indemnify, hold harmless and, at NCI's request, defend NCI from and against
any and all claims, liabilities, losses, damages, expenses and costs
(including reasonable attorneys' fees and costs) arising out of, in
connection with or relating to (i) Licensee's or Distributors' failure to
include in each Distributor Agreement the contractual terms required to be
included therein pursuant to Section 3.3.2 or 3.3.3 or (ii) except to the
extent that NCI is responsible for a claim under Section 10.1 and 10.2,
Licensee's, a Distributor's or a Customer's use, distribution or reproduction
of the NCI Product, Distributable Source, End User Documentation and/or
Licensee Products, including, without limitation, any claims, liabilities,
losses, damages, expenses and costs arising out of, in connection with or
relating to defective reproduction of or the use of defective media in the
reproduction of the NCI Product or Distributable Source, breach of warranty
or support obligations or infringement or misappropriation of intellectual
property rights.
11. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER
PARTY OR ITS RESPECTIVE LICENSORS OR SUPPLIERS BE LIABLE UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY
LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF
BUSINESS, OR (II) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR
TECHNOLOGY, OR (III) ANY CLAIM AGAINST THE OTHER PARTY HERETO BY ANY THIRD
PARTY, EXCEPT AS PROVIDED IN THE SECTION ENTITLED
-19-
<PAGE>
"INDEMNIFICATION" IN THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EXCEPT
TO THE EXTENT SUCH DAMAGES ARISE FROM A BREACH OF SECTIONS 2.1 OR SECTION 8,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN
NO EVENT WILL NCI OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR (a) ANY
REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY LICENSEE, ANY
DISTRIBUTOR, ANY CUSTOMER OR ANY OF THEIR RESPECTIVE AGENTS; (b) FAILURE OF
THE NCI PRODUCT TO PROVIDE DATA SECURITY; OR (c) ANY USE OF THE NCI PRODUCT
OR DISTRIBUTABLE SOURCE OR THE RESULTS OR INFORMATION OBTAINED OR DECISIONS
MADE BY END USERS OF THE NCI PRODUCT OR DISTRIBUTABLE SOURCE. THE REMEDIES
PROVIDED IN THIS AGREEMENT ARE THE PARTY'S SOLE AND EXCLUSIVE REMEDIES.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EACH PARTY'S
ENTIRE LIABILITY TO THE OTHER FOR DAMAGES CONCERNING PERFORMANCE OR
NON-PERFORMANCE BY EITHER PARTY (EXCEPT FOR LICENSEE'S FAILURE TO MAKE ANY
PAYMENT OWED TO NCI HEREUNDER) OR IN ANY WAY RELATED TO THE SUBJECT MATTER OF
THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED
IN CONTRACT OR IN TORT, SHALL NOT EXCEED THE LESSER OF (i) THE TOTAL FEES
PAID HEREUNDER OR (ii) FIVE HUNDRED THOUSAND DOLLARS (US $500,000).
12. TERM OF AGREEMENT
This Agreement shall commence on the Effective Date and shall continue
until terminated as provided in Section 13.
13. DEFAULT AND TERMINATION
13.1. TERMINATION FOR DEFAULT. In the event (i) either party
materially breaches any of its obligations under this Agreement and fails to
cure such material breach within thirty (30) days following written notice of
such breach from the non-defaulting party or (ii) either party becomes
Bankrupt; the nondefaulting party, at its option shall have the right to
terminate this Agreement by written notice. "Bankrupt" means that a party
ceases to do business in the normal course, becomes or is declared insolvent
or bankrupt, is the subject of any proceeding relating to its liquidation or
insolvency that is not dismissed within ninety (90) calendar days of
commencement, or makes an assignment for the benefit of its creditors.
13.2 TERMINATION OF LICENSES. In the event that (i) Licensee
materially breaches Section 8 or 14.3 or (ii) Licensee breaches Section 8 in
a manner that, by its nature, such breach is not subject to cure; NCI may
immediately terminate this Agreement and/or the
-20-
<PAGE>
licenses granted by NCI to Licensee in Section 2.1 hereof. In the event that
Licensee (x) fails to cure a material breach of Section 2.1 or Section 4 and
fails to cure such material breach within thirty (30) days following written
notice of such breach from NCI or (y) becomes Bankrupt; NCI may terminate
this Agreement and/or licenses granted by NCI to Licensee in Section 2.1
hereof by written notice.
13.3. EFFECT ON RIGHTS.
13.3.1 Neither termination of this Agreement by either party
nor termination of the licenses granted in this Agreement by NCI shall act as
a waiver of any breach of this Agreement or as a release of either party from
any liability for breach of such party's obligations under this Agreement.
13.3.2 Except where otherwise specified, the rights and
remedies granted to a party under this Agreement are cumulative and in
addition to, and not in lieu of, any other rights or remedies which the party
may possess at law or in equity, including without limitation rights or
remedies under applicable patent, copyright, trade secrets, or proprietary
rights laws, rules or regulations.
13.4. EFFECT OF TERMINATION.
13.4.1 Within thirty (30) calendar days after termination of
this Agreement by Licensee (for other than an uncured material breach by NCI)
or by NCI under Section 13.2 or Section 14.3, Licensee shall, at NCI's
option, either deliver to NCI or destroy all copies of the NCI Product, the
NCI Source Code and Distributable Source (or the applicable components
thereof for termination pursuant to 14.3), including, without limitation,
copies of the Bundled Product and End User Documentation and any other
materials provided by NCI to Licensee hereunder in its possession or under
its control, and shall furnish to NCI an affidavit signed by an officer of
Licensee certifying that, to the best of its knowledge, such delivery or
destruction has been fully effected. In the event of termination of the
Agreement and/or the licenses granted by NCI to Licensee in Section 2.1, NCI
will return to Licensee any source code received from Licensee under this
Agreement and any copies thereof.
13.4.2 In the event that the licenses hereunder are terminated
for any reason other than by NCI pursuant to Section 13.2 or 14.3, and
provided Licensee fulfills its obligations specified in this Agreement with
respect to such items, Licensee may continue to use and retain copies of the
NCI Product, the NCI Source Code, Distributable Source and End User
Documentation to the extent, but only to the extent, necessary to support and
maintain Bundled Product rightfully distributed to End Users and Customers by
Licensee, directly or indirectly through Distributors or Customers, prior to
termination of this Agreement.
13.5. CONTINUING OBLIGATIONS.
-21-
<PAGE>
13.5.1 PAYMENT OF ACCRUED FEES. Within thirty (30) calendar
days of termination of this Agreement, Licensee shall pay to NCI all sums
then due and owing. Any other such sums shall subsequently be promptly paid
as they become due and owing.
13.5.2 CONTINUANCE OF SUBLICENSES. Notwithstanding the
termination of this Agreement, all End User and Customer sublicenses which
have been properly granted by Licensee and Distributors and Customers
pursuant to this Agreement prior to its termination shall survive.
13.5.3 OTHER CONTINUING OBLIGATIONS. The respective rights and
obligations of NCI and Licensee under the provisions of Sections 2.1.1
(subject to Sections 13.2 and 14.3), 2.1.2 (subject to Sections 13.2 and
14.3), 2.4 (subject to Sections 13.2 and 14.3), 2.1.3, 2.2, 2.3, 3.3.1, 3.4,
3.5, 4, 6, 7, 8, 9.2, 9.3, 9.4, 9.5, 10, 11, 13.3, 13.4, 13.5 and 14 shall
survive any termination of this Agreement.
13.6. Consistent with the protection of the rights of the party
seeking injunctive relief as permitted hereunder, any injunctive relief
sought by either party to enforce the obligations of the other party under
this Agreement shall be structured, to the greatest extent possible, in a
manner that will maintain the business operations of the party on which any
such relief is imposed.
14. GENERAL PROVISIONS
14.1. NOTICES. Any notice, request, demand, or other communication
required or permitted hereunder shall be in writing and shall be deemed to be
properly given upon the earlier of (a) actual receipt by the addressee or (b)
five (5) business days after deposit in the mail, postage prepaid, when
mailed by registered or certified airmail, return receipt requested, or two
(2) business days after being sent via private industry courier to the
respective parties at the addresses first set forth above or to such other
person or address as the parties may from time to time designate in a writing
delivered pursuant to this Section 14.1.
14.2. WAIVER AND AMENDMENT. The waiver by either party of a breach
of or a default under any provision of this Agreement, shall not be construed
as a waiver of any subsequent breach of the same or any other provision of
the Agreement, nor shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy that it has or may have
hereunder operate as a waiver of any right or remedy. No amendment or
modification of any provision of this Agreement shall be effective unless in
writing and signed by a duly authorized signatory of NCI and Licensee.
14.3. ASSIGNMENT. This Agreement and the licenses granted hereunder
are to a specific legal entity or legal person, not including corporate
subsidiaries or affiliates, and are not assignable by NCI or Licensee,
including, assignments that result from the operation of law, nor are the
obligations imposed on NCI or Licensee delegable; provided, however, that
either party shall have the right to assign this Agreement to an acquiror of
all or substantially all of the business, stock or assets of such party (an
-22-
<PAGE>
"Acquiror") provided that such assigning party complies with the terms set
forth in this Section.
No consent shall be required for an assignment by NCI to an Acquiror
except in the case where such Acquiror is a Specified Party. In the event
that such Acquiror is a Specified Party, any such assignment shall be subject
to Licensee's prior written consent.
In the event of an assignment by Licensee to an Acquiror, the
following terms shall apply:
(i) Licensee may assign to such Acquiror, without the consent of NCI,
those rights and licenses hereunder that pertain to Embedded Graphics Usage
and may delegate those obligations that pertain to Embedded Graphics Usage.
(ii) if such Acquiror is Microsoft Corporation, WebTV Networks, Inc.,
PlanetWeb, Inc., PowerTV, Inc., OpenTV, Inc., Spyglass, Inc., Intel
Corporation, International Business Machines Corporation, Sun Microsystems,
Inc., Informix Software, Inc., or Sybase, Inc. (collectively, the "Specified
Acquirors") then NCI, at its option may (A) consent to the assignment of
those rights and licenses hereunder that pertain to Directed Browsing and
delegation of those obligations that pertain to Directed Browsing Usage or
(B) withhold consent to the assignment of, and terminate, those rights and
licenses hereunder that pertain to Directed Browsing (including, without
limitation, those licenses pertaining to Source Code for Directed Browsing
and related Derivative Works) and delegation of those obligations that
pertain to Directed Browsing, terminate this Agreement with respect to
Directed Browsing and either (1) provide support to Customers validly
licensed to use Directed Browsing subject to terms mutually agreed by the
parties or (2) negotiate in good faith a license granting to such Acquiror
sufficient rights in the NCI Source Code, Distributable Source and Excluded
Components to allow such Acquiror to provide support to such Customers. In
the event that NCI elects to withhold consent as described in (B) above and
notwithstanding anything to the contrary herein (including, without
limitation, Section 13.4.1), Licensee shall immediately return to NCI all NCI
Source Code, Distributable Source, Excluded Components, End User
Documentation, Derivative Works pertaining to Directed Browsing and any
copies, extracts or summaries thereof and shall ensure that no disclosure of
the foregoing is made to the Acquiror.
(iii) in the event that Licensee is acquired by one of the Specified
Acquirors, Licensee shall pay to NCI the applicable "Assignment Fee"
described below prior to or upon the closing of such acquisition:
<TABLE>
<CAPTION>
==================================================================================
Elapsed time from Assignment Fee Assignment Fee if Assignment Fee if 2
Effective Date 1 Major Update has Major Updates have
been delivered to been delivered to
Licensee prior to Licensee prior to
effective date of effective date of
acquisition acquisition
==================================================================================
<S> <C> <C> <C>
0-180 days $[***]* $[***]* $[***]*
----------------------------------------------------------------------------------
--------------
* Confidential Treatment Requested. Confidential portion has been filed with
the Securities and Exchange Commission.
-23-
<PAGE>
----------------------------------------------------------------------------------
181-540 days $[***]* $[***]* $[***]*
----------------------------------------------------------------------------------
541-900 days $[***]* $[***]* $[***]*
----------------------------------------------------------------------------------
After 900 days $[***]* $[***]* $[***]*
==================================================================================
</TABLE>
Any attempt by either party to sublicense (except as expressly permitted
herein) assign or transfer any of the rights (other than NCI's right to
receive payment), duties or obligations under this Agreement in derogation
hereof shall be null and void.
14.4. GOVERNING LAW. This Agreement is entered into in the State of
California, U.S., and this Agreement shall be governed by and construed in
accordance with the laws of the State of California, U.S., without reference
to its conflicts of law provisions. Any dispute regarding this Agreement
shall be subject to the exclusive jurisdiction of the California state courts
in and for Santa Clara County, California (or, if there is exclusive federal
jurisdiction, the United States District Court for the Northern District of
California), and the parties agree to submit to the personal and exclusive
jurisdiction and venue of these courts. This Agreement will not be governed
by the United Nations Convention of Contracts for the International Sale of
Goods, the application of which is hereby expressly excluded.
14.5. RELATIONSHIP OF THE PARTIES. No agency, partnership, joint
venture, or employment is created as a result of this Agreement and neither
Licensee, its Distributors nor its Customers or agents have any authority of
any kind to bind NCI in any respect whatsoever.
14.6. CAPTIONS AND SECTION HEADINGS. The captions and section and
paragraph headings used in this Agreement are inserted for convenience only
and shall not affect the meaning or interpretation of this Agreement.
14.7. SEVERABILITY. If the application of any provision or
provisions of this Agreement to any particular facts of circumstances shall
be held to be invalid or unenforceable by any court of competent
jurisdiction, then (a) the validity and enforceability of such provision or
provisions as applied to any other particular facts or circumstances and the
validity of other provisions of this Agreement shall not in any way be
affected or impaired thereby and (b) such provision or provisions shall be
reformed without further action by the parties hereto to and only to the
extent necessary to make such provision or provisions valid and enforceable
when applied to such particular facts and circumstances.
14.8. FORCE MAJEURE. Either party shall be excused from any delay or
failure in performance hereunder, except the payment of monies by Licensee to
NCI, caused by reason of any occurrence or contingency beyond its reasonable
control, including but not limited to, acts of God, earthquake, labor
disputes and strikes, riots, war, and governmental requirements. The
obligations and rights of the party so excused shall be extended on a
day-to-day basis for the period of time equal to that of the underlying cause
of the delay.
--------------
* Confidential Treatment Requested. Confidential portion has been filed with
the Securities and Exchange Commission.
-24-
<PAGE>
14.9. ENTIRE AGREEMENT. This Agreement, including the Attachments
hereto, constitutes the entire agreement between the parties concerning the
subject matter hereof and supersedes all prior or contemporaneous proposals
and agreements whether oral or written, and all communications between the
parties relating to the subject matter of this Agreement and all past courses
of dealing or industry custom. If any ambiguity or conflict exists between
the terms of this Agreement and the terms of any Attachment hereto, the terms
of the Attachment shall prevail and shall be conclusively determined to
reflect the intention of the parties with respect to the relevant issues.
The terms and conditions of this Agreement shall prevail, notwithstanding any
variance with any purchase order or other written instrument submitted by
Licensee, whether formally rejected by NCI.
-25-
<PAGE>
14.10. ENGLISH. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions hereof in any
other language shall not be binding on the parties hereto. All
communications and notices to be made or given pursuant to this Agreement
shall be in the English language.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by duly authorized representatives of the parties as of the
Effective Date.
NETWORK COMPUTER, INC. LICENSEE
By: By:
------------------------- -------------------------
Signature Signature
Name: Name:
----------------------- -----------------------
Print or Type Print or Type
Title: Title:
---------------------- ----------------------
Date: Date:
----------------------- -----------------------
-26-
<PAGE>
ATTACHMENT A
TO OEM LICENSE AGREEMENT
PRODUCT(S) AND TRADEMARK DESCRIPTIONS
NCI Product: NCI eNavigator-TM- Version 1.1 derived from TV
Navigator-TM-
Directed Browsing:
"Directed Browsing" shall be limited to the following functions:
- Directed Browsing shall allow access solely to "Internet-
formatted" content that is digitally signed specifically for
display on the Bundled Product. "Internet-formatted" content shall
mean HTML, Javascript, Java, GIF, JPEG, and other MIME-type data.
- Directed Browsing shall only provide access to those web sites
dedicated to a specific application ("Directed Browsing
Websites").
- Directed Browsing shall provide access only to Direct Browsing
Websites through a single domain name registered to a single
corporate entity ("Designated Domain Name"). All content,
applications or other elements appearing on the Directed Browsing
Websites shall be owned by or licensed to the owner or operator of
the respective Designated Domain Name.
- Directed Browsing specifically excludes the ability to access
directly, or through the use the servers on which the Directed
Browsing Websites reside (e.g. DNS, Proxy), domain names other
than the Designated Domain Name (as defined below) or gain
Internet connectivity by other methods, including, without
limitation, (i) substituting or remapping the Designated Domain
Name to allow access to other domain names, (ii) caching access to
content, applications, web-sites or other elements capable of
display on the Bundled Product outside of the Designated Domain
Name, (iii) caching external web-sites on a proxy server, (iv)
web-wacking data from external web-sites to a local web-server, or
(v) web site mirroring. The source code for the foregoing
components are herein referred to as the NCI Source Code for
Directed Browsing. Neither Directed Browsing nor the servers on
which the Directed Browsing Websites reside shall permit or
provide the ability to circumvent the navigation and access to the
Designated Domain Name. The parties hereby agree that, in the
event that either party determines that the foregoing definition
of Directed Browsing is commercially unreasonable, the parties
will negotiate in good faith a possible amendment to such
definition.
- Directed Browsing includes applications for Embedded Graphics
Usage, but when the function of the HTML rendering engine is
employed in such a way that the application specific user
interface would not be considered to be an example of a "browser
application" (ie., an example of a "browser application" would be
an application that gave access to pre-formatted html content on a
CD that constitutes an interactive tour guide; an example of an
application which would not be considered a "browser
-1-
<PAGE>
application" would be an application that provides access to
user-interface specific functionality for a device such as a
photocopier machine), all branding obligations will be waived.
Embedded Graphics Usage:
- "Embedded Graphics Usage" shall mean any use by Licensee of the
eNavigator Graphics Technology (as defined below), provided that
(a) such use of the eNavigator Graphics Technology is solely in
connection with the creation of a non-Internet application, and
(b) the eNavigator Graphics Technology (as defined below) is not
utilized to create or in conjunction with any product marketed,
distributed or developed by Licensee that is a network browser or
otherwise competes with the NCI Product as it exists on the date
NCI delivers the Deliverables to Licensee. The "eNavigator
Graphics Technology" shall be limited to the following components
of the NCI Product: (i) the Window Manager, (ii) the binary code
for the Javascript engine, (iii) the 2D Graphics library, and
(iii) the UI Widget library, and (iv) the text library. The source
code for the foregoing components are herein referred to as the
NCI Source Code for Embedded Graphics Usage. Notwithstanding
anything in this Agreement to the contrary Licensee shall have no
right to use the Embedded Graphics Usage in conjunction with
televisions with any form of internet access or to create any form
of a television "browser application". Notwithstanding anything
in this Agreement to the contrary, Licensee shall have no rights
to distribute source code for the Javascript engine or the
Bitstream font technology.
SDK Source Headers:
\nci\sdk\include\AppError.h
\nci\sdk\include\AppMsg.h
\nci\sdk\include\assert.h
\nci\sdk\include\Base.h
\nci\sdk\include\cAccntMan.h
\nci\sdk\include\CacheMan.h
\nci\sdk\include\cCacheMan.h
\nci\sdk\include\cErrLog.h
\nci\sdk\include\CharSet.h
\nci\sdk\include\cHwfHandlers.h
\nci\sdk\include\cIspConnect.h
\nci\sdk\include\cNotifier.h
\nci\sdk\include\codeHeader.h
\nci\sdk\include\ctype.h
\nci\sdk\include\DataWrapper.h
\nci\sdk\include\Destroyable.h
\nci\sdk\include\errno.h
\nci\sdk\include\Fetcher.h
\nci\sdk\include\HtmlHandler.h
\nci\sdk\include\iCacheMan.h
-2-
<PAGE>
\nci\sdk\include\int64.h
\nci\sdk\include\Mail.h
\nci\sdk\include\MimeHandler.h
\nci\sdk\include\module.h
\nci\sdk\include\navio.h
\nci\sdk\include\navioBoot.h
\nci\sdk\include\navioErr.h
\nci\sdk\include\navioInit.h
\nci\sdk\include\net.h
\nci\sdk\include\NviParamdef.h
\nci\sdk\include\PlatformInfo.h
\nci\sdk\include\PlatformInfoBitmask.h
\nci\sdk\include\SmartCard.h
\nci\sdk\include\stdarg.h
\nci\sdk\include\stddef.h
\nci\sdk\include\stdio.h
\nci\sdk\include\stdlib.h
\nci\sdk\include\string.h
\nci\sdk\include\stringutil.h
\nci\sdk\include\Text.h
\nci\sdk\include\TextTypes.h
\nci\sdk\include\time.h
\nci\sdk\include\Vec.h
\nci\sdk\include\Virtual.h
\nci\sdk\include\wchar.h
\nci\sdk\include\anim\AnimPlyr.h
\nci\sdk\include\arch\i86\archI86.h
\nci\sdk\include\arch\mips\archMips.h
\nci\sdk\include\arch\mips\r4000.h
\nci\sdk\include\aud\Snd.h
\nci\sdk\include\aud\UiSnd.h
\nci\sdk\include\chat\Chat.h
\nci\sdk\include\gfx\cColor.h
\nci\sdk\include\gfx\Color.h
\nci\sdk\include\gfx\GfxCtx.h
\nci\sdk\include\gfx\GfxPrims.h
\nci\sdk\include\gfx\GfxTypes.h
\nci\sdk\include\gfx\GfxUtil.h
\nci\sdk\include\gfx\GifCond.h
\nci\sdk\include\gfx\Image.h
\nci\sdk\include\gfx\PixMap.h
\nci\sdk\include\gfx\Png.h
\nci\sdk\include\gfx\Rect.h
\nci\sdk\include\gfx\RectList.h
-3-
<PAGE>
\nci\sdk\include\gfx\VBlankClock.h
\nci\sdk\include\intl\Ime.h
\nci\sdk\include\intl\Locale.h
\nci\sdk\include\kernel\ansiTimeExt.h
\nci\sdk\include\kernel\BSem.h
\nci\sdk\include\kernel\cBsem.h
\nci\sdk\include\kernel\cClock.h
\nci\sdk\include\kernel\cCondVar.h
\nci\sdk\include\kernel\cDirectory.h
\nci\sdk\include\kernel\cEvent.h
\nci\sdk\include\kernel\cFile.h
\nci\sdk\include\kernel\cHardwareFault.h
\nci\sdk\include\kernel\Clock.h
\nci\sdk\include\kernel\ClockTypes.h
\nci\sdk\include\kernel\cMemRegion.h
\nci\sdk\include\kernel\cMsgQueue.h
\nci\sdk\include\kernel\cMsgTypes.h
\nci\sdk\include\kernel\cMutex.h
\nci\sdk\include\kernel\CondVar.h
\nci\sdk\include\kernel\cShareLock.h
\nci\sdk\include\kernel\cSysMonitor.h
\nci\sdk\include\kernel\cSystem.h
\nci\sdk\include\kernel\cThread.h
\nci\sdk\include\kernel\cTimer.h
\nci\sdk\include\kernel\Directory.h
\nci\sdk\include\kernel\Event.h
\nci\sdk\include\kernel\File.h
\nci\sdk\include\kernel\iBsem.h
\nci\sdk\include\kernel\iClock.h
\nci\sdk\include\kernel\iCondVar.h
\nci\sdk\include\kernel\iDirectory.h
\nci\sdk\include\kernel\iEvent.h
\nci\sdk\include\kernel\iFile.h
\nci\sdk\include\kernel\iMemRegion.h
\nci\sdk\include\kernel\iMsgQueue.h
\nci\sdk\include\kernel\iMutex.h
\nci\sdk\include\kernel\iShareLock.h
\nci\sdk\include\kernel\iSystem.h
\nci\sdk\include\kernel\iThread.h
\nci\sdk\include\kernel\iTimer.h
\nci\sdk\include\kernel\MemRegion.h
\nci\sdk\include\kernel\Msg.h
\nci\sdk\include\kernel\MsgQueue.h
\nci\sdk\include\kernel\Mutex.h
-4-
<PAGE>
\nci\sdk\include\kernel\Mutex.h
\nci\sdk\include\kernel\ShareLock.h
\nci\sdk\include\kernel\System.h
\nci\sdk\include\kernel\Thread.h
\nci\sdk\include\kernel\Timer.h
\nci\sdk\include\kernel\TimerTypes.h
\nci\sdk\include\liveConn\LiveConnEnabled.h
\nci\sdk\include\media\Conductor.h
\nci\sdk\include\media\iConductor.h
\nci\sdk\include\mime\MimeRequest.h
\nci\sdk\include\reg\cReg.h
\nci\sdk\include\reg\cRegDef.h
\nci\sdk\include\reg\cRegName.h
\nci\sdk\include\scriptSym\DataValue.h
\nci\sdk\include\types\navANSI.h
\nci\sdk\include\types\navArch.h
\nci\sdk\include\types\navCpu.h
\nci\sdk\include\types\navParams.h
\nci\sdk\include\types\navTypes.h
\nci\sdk\include\types\navTypesBase.h
\nci\sdk\include\types\navTypesOld.h
\nci\sdk\include\util\navFlash.h
\nci\sdk\include\util\ScreenSaver.h
\nci\sdk\include\vid\cVid.h
\nci\sdk\include\vid\Tv.h
\nci\sdk\include\widget\Alert.h
\nci\sdk\include\widget\Ascii.h
\nci\sdk\include\widget\Border.h
\nci\sdk\include\widget\CheckBox.h
\nci\sdk\include\widget\Component.h
\nci\sdk\include\widget\Container.h
\nci\sdk\include\widget\Document.h
\nci\sdk\include\widget\Focus.h
\nci\sdk\include\widget\Frame.h
\nci\sdk\include\widget\Grid.h
\nci\sdk\include\widget\Highlight.h
\nci\sdk\include\widget\History.h
\nci\sdk\include\widget\iCheckBox.h
\nci\sdk\include\widget\iPushButton.h
\nci\sdk\include\widget\KeyCodes.h
\nci\sdk\include\widget\Layout.h
\nci\sdk\include\widget\ListBox.h
\nci\sdk\include\widget\Notify.h
\nci\sdk\include\widget\Picture.h
\nci\sdk\include\widget\ProgressBar.h
-5-
<PAGE>
\nci\sdk\include\widget\PushButton.h
\nci\sdk\include\widget\RadioButton.h
\nci\sdk\include\widget\SoftKbd.h
\nci\sdk\include\widget\TextArea.h
\nci\sdk\include\widget\TextEdit.h
\nci\sdk\include\widget\TextField.h
\nci\sdk\include\widget\TvPicture.h
\nci\sdk\include\widget\Widget.h
\nci\sdk\include\widget\WidgetErrorBase.h
\nci\sdk\include\win\Point.h
\nci\sdk\include\win\Win.h
\nci\sdk\include\win\WinEvent.h
\nci\sdk\include\win\WinInput.h
\nci\sdk\include\win\WinManConn.h
Deliverables:
<TABLE>
<CAPTION>
Description Estimated Delivery Date
-----------------------------------------------------------------
<S> <C>
NCI Source Code excluding the
Excluded Components and any third January 30, 1998
party Optional Products/Modules
</TABLE>
NCI Trademarks: NCI, eNavigator
NCI LOGO: The NC logo as set forth on the Corporate Signature Kit
-6-
<PAGE>
ATTACHMENT B
TO OEM LICENSE AGREEMENT
LICENSEE PRODUCT, LICENSEE TRADEMARK, PRICING AND PAYMENT SCHEDULES, TERRITORY
AND OPTIONAL PRODUCTS/MODULES
<TABLE>
<C> <S>
Licensee Product: Licensee's real time embedded operating system
including VxWorks, IxWorks, WiSP, and other real
time embedded operating systems developed and owned
by Licensee
Licensee Trademarks: Wind River Systems, VxWorks, Tornado, IxWorks,
Embedded Internet, WiSP (including the logos)
Specified Parties: Integrated Systems, Inc., Microware Systems Corp.,
Mentor Graphics Corporation RTOS Division, QNX
Software Systems, Ltd., Accelerated Technology,
Inc., the Chorus and Diba divisions of Sun
Microsystems, Inc. (or any other name under which
such divisions operate), and Lynx Real Time Systems,
Inc.
Pricing: All of the following fees are nonrefundable and
noncancelable:
- License Fee: License Fee of $[***]* (payable as follows:
$[***]* upon execution of the Agreement;
$[***]* due within sixty (60) days following
delivery hereunder of the NCI Source Code).
- Prepaid License Fee: Prepaid License Fee of $[***]* for prepaid
royalties on Tier II Directed Browsing applications
(as defined below) (payable within sixty (60) days
following delivery hereunder of the NCI Source
Code).
- Engineering Fees: NCI shall provide to Licensee up to nine (9)
cumulative man-months of engineering effort to
prepare the NCI Source Code for
--------------
* Confidential Treatment Requested. Confidential portion has been filed with
the Securities and Exchange Commission.
<PAGE>
delivery to Licensee and to support Licensee as
reasonably requested by Licensee. Within sixty
(60) days following delivery hereunder of NCI
Source Code, Licensee shall pay $[***]* for such
engineering effort. For any engineering effort
beyond the effort described above, Licensee will
pay NCI time and materials at a rate of $[***]*
per man-month plus out of pocket expenses.
</TABLE>
- Royalties:
<TABLE>
<CAPTION>
===================================================================================
PRODUCT ROYALTY/UNIT
-----------------------------------------------------------------------------------
<S> <C>
Tier I: NCI eNavigator v1.1 for Directed N/A
Browsing (excluding Tier II
applications)
-----------------------------------------------------------------------------------
Tier II: NCI eNavigator v1.1 for SUBJECT TO SECTION (c) BELOW,
Directed Browsing Applications for Web FOR EACH UNIT OF THE BUNDLED
Phones, Car Navigation Systems, and PRODUCT DISTRIBUTED HEREUNDER
Personal Digital Assistants LICENSEE SHALL PAY THE GREATER
(The first [***]* units distributed OF: [***]*% OF THE FEE RECEIVED
in the twelve month period immediately FOR THE BUNDLED PRODUCT AND
following the first commercial shipment $[***]* FOR ENAVIGATOR V1.X AND
of the first Bundled Product shall be $[***]* FOR V2.0 AND ANY OTHER
royalty-free; the first [***]* units INCLUDED MAJOR UPDATES OF
distributed in each year thereafter ENAVIGATOR.
shall be royalty-free)
-----------------------------------------------------------------------------------
Embedded Graphics Applications SEE BELOW
===================================================================================
NCI eNavigator v1.1 Source Code Access N/A
===================================================================================
</TABLE>
**At Licensee's request, NCI and Licensee agree to negotiate in good faith
the terms and conditions of a potential NCI server reseller agreement. At
Licensee's request, NCI and Licensee shall negotiate in good faith a
potential license agreement granting Licensee a license to use, modify, and
sublicense the NCI Product for full Internet browsing, including the right to
sublicense Bundled Product for TV-based applications.
Should the royalty fees for Tier II applications detailed above become
unreasonable for either party, the parties agree to negotiate in good faith
towards a mutually agreeable license fee.
b) In the event Licensee elects to include available third party modules,
Licensee agrees to pay optional third party royalties at a [***]* percent
([***]*%) discount off of NCI's list price applicable to such optional
modules provided that such third party module is available from NCI in
source code form. Personal Java will be treated as an optional third
party module if available.
c) Licensee shall make the following payments for distributing units of the
Bundled Product as follows:
For any Bundled Product where the use of the NCI Product is restricted
solely to Embedded Graphics Usage, Licensee shall owe no additional
Royalty hereunder.
--------------
* Confidential Treatment Requested. Confidential portion has been filed with
the Securities and Exchange Commission.
-2-
<PAGE>
For unit(s) of Bundled Product licensed for any Tier II Application of
Directed Browsing, Licensee shall owe the Royalty set forth in the chart
above upon the earlier of (i) Licensee's receipt of payment for such
unit(s) of Bundled Product (including any prepaid royalties or licensing
fee pertaining thereto) and (ii) Licensee's, Distributors', or Customers'
distribution of such unit(s) of Bundled Product to an End User.
For any Bundled Product licensed for any Tier I Application of Directed
Browsing, Licensee shall owe no additional Royalty hereunder.
Notwithstanding the foregoing, Licensee shall owe no per unit Royalty for
distribution of Bundled Product that is embedded into a device that meets
the following criteria: such device requires the NCI Custom Connect
Server (or a successor NCI product) to operate.
<TABLE>
<C> <S>
- Service Fee: For the twelve month period commencing on the first
day of the sixteenth month following the Effective
Date hereof, Licensee will pay, in advance, an
annual non-refundable Service Fee equal to the
greater of (x) $[***]* or (y) [***]*% of all
Royalties accrued hereunder for distributions made
during the prior (12) twelve month period.
Thereafter, the parties shall negotiate in good
faith the Service Fee applicable for NCI's
provision of maintenance and support services
described herein in subsequent years.
Territory: Worldwide
Optional Products/Modules: Sound module (includes MIDI, RealAudio)
RSA security module
Additional fonts (Chinese, etc.)
Third Party Code: JPEG, Berkeley DBM, Bitstream
</TABLE>
The following requirements must be met for each Bundled Product distributed
under the attached Agreement
JPEG - All manuals must include the phrase "The [Insert name of Bundled
Product] is based, in part, on the work of the Independent JPEG Group."
BERKELEY DBM - The entire notice below must be included in "THE
DOCUMENTATION AND/OR OTHER MATERIALS PROVIDED WITH THE DISTRIBUTION."
"The portion of [the Bundled Product] that provides the DBM function is
copyright (c) 1990, 1993, 1994 The Regents of the University of
California (the "Regents"). All rights reserved. This code is derived
from software contributed to Berkeley by Margo Seltzer. Redistribution
and use in source and binary forms, with or without modification, are
permitted provided that the following conditions are met:
--------------
* Confidential Treatment Requested. Confidential portion has been filed with
the Securities and Exchange Commission.
-3-
<PAGE>
1. Redistribution of source code must retain the above copyright notice,
this list of conditions and the following disclaimer.
2. Redistribution in binary form must reproduce the above copyright
notice, this list of conditions and the following disclaimer in the
documentation and/or other materials provided with the distribution.
3. All advertising materials mentioning features or use of this software
must display the following acknowledgment:
This product includes software developed by the University of
California, Berkeley and its contributors.
4. Neither the name of the University nor the names of its contributors
may be used to endorse or promote products derived from this software
without specific prior written permission.
THE SOFTWARE WHICH PROVIDES THE DBM FUNCTION IS PROVIDED BY THE REGENTS
AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL
THE REGENTS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT
NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE,
DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT
(INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF
THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE."
BITSTREAM SOFTWARE - Licensee must reproduce each Bitstream copyright,
trademark and/or patent notice, as applicable in its entirety on each
copy of the Bundled Product, in the same location as it appears, in
electronic or printed form, on the NCI Product as delivered to Licensee.
OFFER TO PURCHASE SERVICES AND LICENSES SEPARATELY
THE CONSULTING SERVICES AND THE LICENSES CONTAINED HEREIN ARE PROPOSED
SEPARATELY. LICENSEE MAY ACQUIRE THE LICENSES CONTAINED HEREIN WITHOUT
ACQUIRING NCI CONSULTING SERVICES, AND LICENSEE MAY ACQUIRE THE LICENSES
CONTAINED HEREIN SEPARATELY AT THE FEES STATED IN THIS AGREEMENT.
-4-
<PAGE>
ATTACHMENT C
TO OEM LICENSE AGREEMENT
MAINTENANCE AND TECHNICAL SUPPORT
1. MAINTENANCE/MINOR UPDATES. In consideration of the Service Fee set
forth in Attachment B, NCI will provide to Licensee any Minor Updates made
generally available to similarly situated licensees of NCI Product during the
one (1) year term of this Maintenance and Technical Support Agreement. NCI
will not be responsible for providing Minor Updates to End Users,
Distributors or Customers and Licensee will be responsible for providing
Minor Updates to End Users which Licensee licenses directly, and to
Distributors, and Customers. If requested in writing by NCI, Licensee will
distribute each Minor Update to Distributors, Customers and End Users which
Licensee licenses directly. Such Minor Updates may be distributed via modem
or tangible medium, at the discretion of NCI. The expenses of any such
distribution will be paid by Licensee. Licensee and NCI agree to discuss
monthly support issues and processes.
2. TECHNICAL SUPPORT. In consideration of Service Fee set forth in
Attachment B, NCI will provide Licensee with NCI's backend technical support
services, as further described herein.
a) BACK-END SUPPORT. NCI will provide back-end support to Licensee
for Program Errors not resolved by Licensee pursuant to Licensee's
support policies and in accordance with subsection (b) below. This
support includes efforts to identify defective source code and to provide
corrections, workarounds and/or patches to correct Program Errors. NCI
will provide Licensee with a telephone number and an e-mail address which
Licensee may use to report Program Errors during NCI's local California
business hours (8am-5pm Pacific Time). For priority 1 or 2 failures,
Licensee agrees to notify NCI via both telephone and e-mail. Licensee
will identify one (1) member of its customer support staff and an
alternate to act as the primary technical liaisons responsible for all
communications with NCI's technical support representatives. Such
liaisons will have sufficient technical expertise, training and/or
experience for Licensee to perform its obligations hereunder. Within one
(1) week after the Effective Date, Licensee will designate its
liaison(s). Notification will be in writing and/or e-mail to NCI.
Licensee may substitute contacts at any time by providing to NCI one (1)
week's prior written and/or electronic notice thereof.
NCI will make reasonable efforts to correct significant Program Errors
that Licensee identifies, classifies and reports to NCI and that NCI
substantiates. NCI may reclassify Program Errors if it reasonably
believes that Licensee's classification is incorrect. Licensee will
provide sufficient information to enable NCI to duplicate the Program
Error before NCI's response obligations will commence. NCI will not be
required to correct any Program Error caused by (a) Licensee's
incorporation or attachment of a feature, program, or device to the NCI
Product, or any part thereof; (b) any nonconformance caused by accident,
transportation, neglect, misuse, alteration, modification, or enhancement
of the NCI Product; (c) the failure to provide a suitable installation
environment; (d) use of the NCI Product for other than the specific
purpose for which the NCI Product are designed; (e) Licensee's use of
defective media other than defective media provided by NCI to Licensee or
defective duplication of the NCI Product; or (f) Licensee's failure to
incorporate any Minor Update previously released by NCI which corrects
such Program Errors.
Provided Program Error reports are received by NCI during NCI's local
California business hours (8am-5pm Pacific Time), NCI will use its
commercially reasonable efforts to communicate with Licensee about the
Program Error via telephone or e-mail within the following targeted
response times:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------
Priority Failure Description Response Time
----------------------------------------------------------------------------
<C> <S> <C>
--
<PAGE>
----------------------------------------------------------------------------
1 Severe Impact (functionality disabled): 4 working hours
errors which result in a lack of
application functionality or cause
intermittent system failure
----------------------------------------------------------------------------
2 Degraded Operations: errors causing 2 working days
malfunction of non-critical functions
----------------------------------------------------------------------------
3 Minimal Impact attributes and/or options to 5 working days
utility programs do not operate as stated
----------------------------------------------------------------------------
4 Enhancement Request 5 working days
----------------------------------------------------------------------------
</TABLE>
Provided that Licensee provides to NCI the necessary assistance and
deliverables in order for NCI to perform NCI's technical support
obligations, including, without limitation, providing the Prototypes to
NCI, NCI will use reasonable commercial efforts to provide a timely
response based upon Licensee's characterization of such Program Error,
and to resolve each significant Program Error by providing either a
reasonable workaround, an object code patch, or a specification plan for
how NCI will address the problem and an estimate of how long it will take
to rectify the defect. Except with respect to Program Errors found in
the Excluded Components, NCI reserves the right to charge Licensee
additional fees at its then-standard rates for services performed in
connection with reported Program Errors which are later determined to
have been due to hardware or software not supplied by NCI, including
without limitation, Program Errors which are not present in the Reference
Implementation. Such additional charges shall be charged against the
$200,000 of Engineering Fees paid by Licensee to NCI for up to nine (9)
cumulative man-months of engineering effort as set forth in Attachment B.
Notwithstanding the foregoing, NCI has no obligation to perform services
in connection with Program Errors (i) resulting from hardware or software
not supplied by NCI; or (ii) which occur in the NCI Product release which
is not the then-current release.
b) FRONT-LINE SUPPORT. Licensee, and not NCI, will provide front-
line, or first and second level, technical support to its Distributors,
Customers and End Users. Such support includes call receipt, call
screening, installation assistance, problem identification and diagnosis,
efforts to create a repeatable demonstration of the Program Error and, if
applicable, the replacement of any defective media or distribution of
Minor updates. Licensee agrees that any End User Documentation
distributed by Licensee will clearly and conspicuously state that
Customers should call Licensee for technical support for the NCI Product.
NCI will have no obligation to furnish any assistance, information or End
User Documentation with respect to the NCI Product, to any Distributor,
Customer or End User. If NCI customer support representatives are being
contacted by a significant number of Licensee's Distributors, Customers
or End Users then, upon NCI's request, Licensee and NCI will cooperate to
minimize such contact.
-2-
<PAGE>
ATTACHMENT D
TO OEM LICENSE AGREEMENT
USER INTERFACE AND BRANDING REQUIREMENTS FOR DIRECTED BROWSING
In all cases the color, positioning, trademarks and fonts used with the NCI
Logo in conjunction with the NCI Product or Bundled Product will adhere to
the NCI Signature Guidelines. Due to the limited nature of the screen
real-estate used with embedded devices the following logo size requirements
will replace general size requirements found in the NCI Signature Guidelines.
For devices using screen sizes from Quarter VGA to Full VGA (320x240 up to
640x480), the NCI Logo shall be no smaller than 20 Pixels in height. (The
height of the logo will define the width base on the standards found in the
NCI Signature Guidelines.) For Devices using screen sizes of full VGA and
above the NCI Logo shall be no smaller than 40 Pixels in height.
On any display Quarter VGA or larger (e.g. 320x240 pixels or 240x320 pixels),
the NCI Logo will be presented in each of the following situations:
1) The NCI Logo will appear on any Navigation menus. A Navigation menu is
defined as any menu, set of buttons, or commands that allow the user to
control the Directed Browsing feature of the NCI Product. Examples of
Navigation menus would include:
- Pop up menu where the user can input a URL address
- Menu where forward, back or home buttons are displayed
- A function menu where directed web applications can be launched (e.g.
mail)
2) The NCI Logo will appear on any Status bar menus. A Status bar menu is
defined as any menu, pop-up window or overlay that reports the status of
a directed browsing function within the NCI Product and/or Bundled
Product. Examples of Status bars would include:
- Progress bar in drawing a web page
- Animated downloading icon (eg. Netscape logo in Navigator)
- Status update when downloading applications, mail or other content
3) If a Directed Browsing application is part of a program "launch" the NCI
Logo will appear as a splash screen on launch.
<PAGE>
Status Bar Example:
[GRAPHIC]
-2-
<PAGE>
Navigation Bar Example
[GRAPHIC]
-3-
<PAGE>
AMENDMENT N0. 1 TO
OEM LICENSE AGREEMENT
BETWEEN NETWORK COMPUTER, INC.
AND WIND RIVER SYSTEMS, INC.
DATED DECEMBER 31, 1997
This Amendment No. 1 ("Amendment No. 1") to the OEM License Agreement dated
December 31, 1997 between Network Computer, Inc. a Delaware corporation ("NCI")
and Wind River Systems, Inc., a Delaware corporation ("Licensee"), as amended
(the "OEM License Agreement"), is made and entered into this 31st day of August,
1998 (the "Amendment 1 Effective Date").
RECITALS
A. Licensee has been granted a license to certain NCI technology
under the terms and subject to the conditions set forth in the OEM
License Agreement.
B. The parties desire to amend the OEM License Agreement as set forth
in this Amendment No. 1.
C. All capitalized terms not defined herein shall have the meanings
given them in the OEM License Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Section 1.9 of the OEM License Agreement is hereby amended by deleting
said Section and replacing it with the following:
"1.9 "BUNDLED PRODUCT" means one or more products
developed by Licensee that consists of the Licensee Product
and any portion of the NCI Product, subject to the
applicable limitations set forth in this Agreement."
2. Section 1.26 of the OEM License Agreement is hereby amended by deleting
said Section and replacing it with the following:
"1.26. "CUSTOMER" means a third party entity that enters
into a Distributor Agreement (as defined below), excluding
the Excluded Accounts (as defined below) only in the case
where such third party entity is or intends to license or
distribute TV Products (as defined below)."
3. Section 1 of the OEM License Agreement is hereby amended by adding the
following subsections to the end of said Section:
"1.30 "Excluded Accounts" shall mean internet service
providers, pay television operators (including, without
limitation, cable companies and satellite television
companies) and Specified Accounts.
1.31 "Specified Accounts" shall mean those third parties
set forth on Exhibit A hereto which the parties acknowledge
and agree (i) NCI shall retain an exclusive relationship
with, and (ii) Licensee shall not distribute the Bundled
Products to or through."
1.32 "TV Products shall mean products that contain all or
part of TV
1
<PAGE>
Navigator, DTV Navigator and/or eNavigator where the intended
use of such products is for television display."
4. Section 2.1.1(iii) of the OEM License Agreement is hereby amended by
deleting the entire third paragraph of said Section (which begins,
"Notwithstanding anything else in this Agreement or the attachments and
exhibits hereto, Licensee hereby agrees that it shall not modify the NCI
Source Code...") and replace it with the following:
"Licensee may modify the NCI Source Code and/or
Distributable Source as provided in this Section 2.1.1 to
create a Bundled Product that utilizes a television display
(e.g., a display that is commonly referred to as a
television, or supports television formats such as NTSC,
PAL, SECAM, HDTV formats, or other new formats derived
therefrom), provided such Bundled Product does not present
Enhanced Television. "Enhanced Television" shall be deemed
present if HTML, Javascript, or any portion of the NCI
Product is utilized for any of the purposes below.
(1) Overlay/merging of a video or television signal with
a web application;
(2) Scaling of video (e.g. "Picture in a Picture");
(3) Accessing data located in the VBI, MPEG or other
in/out of band video stream;
(4) Controlling any functions of the television or
television device (including, but not limited to,
tuning the channel, displaying channel information,
IR blasting, One Touch record to a VCR);
(5) Integrating any of the emerging television data
transport protocols with the browser or browser-
based application (including, but not limited to,
Intercast, Wink, ATVEF, DVB, MHEG and ATSC); or
(6) Manipulating any of the television system
information (SI) information, Conditional Access
System, or NVOD, VOD, PPV, and IPPV functions."
5. Section 2.1.1 of the OEM License Agreement is hereby amended by adding
the following subsection to the end of said Section:
"(iv) Notwithstanding anything in the foregoing subsection
2.1.1(iii), a non-exclusive, perpetual, irrevocable (except
as provided in Section 13), non-transferable, non-
assignable right and license, subject to payment of the
Royalties hereunder, to distribute (directly or indirectly
through Distributors) and sublicense (via Distributor
Agreements) the NCI Product and Distributable Source,
solely as incorporated in the Bundled Product, to Customers
and Distributors, and to distribute (directly or indirectly
through Distributors) and sublicense the NCI Product and
Distributable Source, solely as incorporated in the Bundled
Product, to End Users, in the Territory for Full Web
Browsing purposes. "Full Web Browsing" shall mean Web
Browsing and Directed Browsing. "Web Browsing" shall mean
any mechanism that is used to display HTML or other
Internet data via a network connection using standard
Internet connection protocols such as HTTP or other current
or future Internet protocols as defined by the W3C from
time to time. "WC3" is an organization that is generally
accepted by the industry as the authority for internet
standards.
All versions of the Bundled Product enabling Full Web
Browsing will contain the following elements to enable
NCI's Custom Connect Server, including any subsequent
versions and updates thereto ("Custom Connect Server") to
manage
2
<PAGE>
the client. The API's necessary to enable this functionality
are found in three key areas:
- HTTP based protocols;
- Javascript functions; and
- mime types.
These API's enable the device to be administered by and to
store data on trusted servers. These include, but are not
limited to, the following protocols, mime types and
functions:
- Obtaining, verifying and using trust rules (i.e.,
the rules that determine which distinguished hosts
can be trusted for which function) No host or object
that is not certified by the trust rules may access
those funct