Amendment No. 1 To The
Addendum To The Microsoft
1994/1995 Channel Agreement
(Appointment As A Large Account Reseller)
This Amendment No. 1 to the Addendum to the Microsoft 1994/1995
Channel Agreement (Appointment
As A Large Account Reseller) ("Amendment") entered into this 1st
day of July, 1994, modifies that
certain 1994/1995 Channel Agreement (as amended, modified and
supplemented "Agreement") between
MICROSOFT CORPORATION ("MS") having its principal place of
business at One Microsoft Way,
Redmond, Washington 98052-6399 and EGGHEAD SOFTWARE ("CUSTOMER")
having its principal
place of business at 22011 SE 51st Street, Issaquah, WA 98027.
This Agreement is hereby amended as
follows:
1. Purpose
The purpose of this Amendment is to provide for a non-exclusive,
limited-use license for all Select
Software Products contained in the Select CD-ROM provided by MS
for internal use by CUSTOMER
and only in connection with providing certain support to End Users
who are Select Customers. Such
support shall not include the right to duplicate a Select CD-ROM
or disks for Select Customers or other
End Users. Pricing and availability of such Select CD-ROM set is
attached hereto as Exhibit A.
2. Definitions
All capitalized terms used but not defined herein shall have the
meanings assigned thereto in the
Agreement. As used in this Amendment, the following terms shall
have the following meanings:
2.1 "Select Software Product" or "Select Software Products"
shall mean the MS Select
Software Products contained in the Select CD-ROM as provided by MS
from time to time.
2.2 "Select CD-ROM" shall mean that certain CD-ROM containing
the Select Software
Products as provided to CUSTOMER by MS from time to time pursuant
to the terms of this limited
license.
3. License Grant
3.1 MS grants to CUSTOMER a non-exclusive, limited use license
for all MS Products
contained in the Select CD-ROM (a) for internal use by CUSTOMER on
CUSTOMER's computers
within the United States of America and pursuant to the terms of
the Microsoft End User License
Agreement applicable to the product; and (b) only in connection
with providing CUSTOMER support to
CUSTOMER'S Select Customers within the United States of America.
For purposes of this
Amendment, such support shall be limited to: (i) CUSTOMER's review
of the contents of the Select CD-
ROM; (ii) CUSTOMER's use of the installer program to make floppies
with Select Software Products
and for purposes of using such floppies to test installation on
CUSTOMER's computers to ensure that the
Select Software Product(s) is working properly; (iii) CUSTOMER's
test on CUSTOMER's computers of
the net setup capabilities on the Select CD-ROM; (iv) CUSTOMER
obtaining any quarterly report forms
from the Select CD-ROMS; and (v) CUSTOMER's right to print any MS
marketing materials which are
included on the Select CD-ROM, subject to there restrictions set
forth below. Such support shall not
include the right to duplicate a Select CD-ROM or disks or to
preinstall Select Software Products for
Select Customers or other End Users.
3.2 Upon execution of this Amendment No. 1, MS shall delivery,
royalty free, to
CUSTOMER one complete CD-ROM set. At CUSTOMER's request as
indicated in Exhibit A,
additional CD-ROM sets shall be available through quarterly
subscription. CUSTOMER shall pay the
quarterly subscription fee set forth in Exhibit A.
3.3 MS is providing the Select CD-ROM to CUSTOMER for internal
use by CUSTOMER
in order to promote CUSTOMER's familiarity with Select Software
Products. Therefore, for
reproduction and installation of MS Products from the Select CD-
ROM for the purpose of internal use by
CUSTOMER, CUSTOMER agrees to use its best efforts to install
Microsoft <F3> MS-DOS <F3> and
Microsoft <F3> Windows, or Microsoft <F3> Windows for Workgroups,
on one hundred percent (100%) of
CUSTOMER's capable PCs, and Microsoft <F3> Excel and/or Microsoft
<F3> Word on eighty percent (80%)
of CUSTOMER's capable PCs.
3.4 CUSTOMER's use of Select Software Product(s) for internal
use shall also include the
authorization to reproduce and install, pursuant to the terms
hereof and of the applicable Microsoft End
User License Agreement, on CUSTOMER's computers within the United
States of America, product
from not-for-resale copies of MS Products legally acquired by
CUSTOMER from Microsoft at
CUSTOMER's expense.
3.5 All rights not expressly granted are reserved by MS.
4. License Restrictions
4.1 CUSTOMER shall not resell, market, distribute, sublicense or
otherwise transfer those
Select Software Products contained on the Select CD-ROM and
subject to this Amendment,
notwithstanding anything to the contrary set forth in the
Microsoft End User License Agreement
applicable to the Product.
4.2 Other than for CUSTOMER's internal use as set forth in this
Amendment,
CUSTOMER shall not copy any of the Select Software Products
provided to CUSTOMER pursuant to
the terms hereof.
4.3 CUSTOMER shall not alter, modify, or otherwise change the
Select Software Products
provided hereunder, except for any of the limited purposes
specifically set forth in Section 3.1 above.
4.4 CUSTOMER shall not reverse engineer, decompile or
disassemble any Select Software
Product.
4.5 CUSTOMER shall immediately notify MS of any problems
incurred in the use of any
Select CD-ROM.
4.6 Notwithstanding anything to the contrary in the Microsoft
End User License Agreement
applicable to the product, CUSTOMER shall not be granted any home
use rights in connection with any
license granted hereunder.
4.7 CUSTOMER shall not alter, modify or otherwise change any MS
marketing materials
included on the Select CD-ROM. If CUSTOMER prints such materials
pursuant to the terms hereof,
CUSTOMER must print any marketing piece in its entirety as it
appears on the Select CD-ROM.
CUSTOMER shall not combine MS marketing materials with any other
marketing materials or use such
MS marketing materials in any advertising. CUSTOMER's name,
trademark and/or logo shall not be
displayed in relation to the marketing materials in a manner which
suggests that CUSTOMER's name,
trademark and/or logo are a part thereof. CUSTOMER may not resell
any of the MS marketing
materials printed hereunder. CUSTOMER shall undertake no action
that will interfere with or diminish
MS' right, title and/or interest in MS' copyright(s),
trademark(s), tradename(s) or Product name(s).
5. Acceptance and Warranty
5.1 From time to time MS CUSTOMER will be provided a Select CD-
ROM containing
Select Software Products and/or upgrades to such products which
CUSTOMER agrees shall be governed
by the terms of this license.
5.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE MICROSOFT
END USER LICENSE AGREEMENT APPLICABLE TO THE PRODUCT, THE SELECT
SOFTWARE PRODUCTS CONTAINED IN THE SELECT CD-ROM LICENSED
HEREUNDER ARE
PROVIDED TO CUSTOMER "AS-IS" AND WITHOUT WARRANTY OF ANY KIND.
THE RISK
AS TO THE RESULTS OF AND PERFORMANCE OF THE SELECT SOFTWARE
PRODUCTS
AND THE SELECT CD-ROM LICENSED HEREUNDER IS ASSUMED BY CUSTOMER.
MS
EXPRESSLY DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLIED,
INCLUDING
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR
A PARTICULAR PURPOSE.
5.3 Except as expressly provided, this Amendment does not
include technical support from
MS. Such support may be available separately pursuant to
Microsoft's then-standard rates.
6. Prohibition Against Assignment and Sublicense
This Amendment, and any rights or obligations hereunder, shall not
be assigned, sublicensed, delegated
or otherwise transferred by CUSTOMER.
7. Term and Termination
7.1 Provided this Amendment has been properly executed by
CUSTOMER and by MS, the
term of this Amendment ("Term") shall run from the Effective Date
until the termination of the
Agreement, unless otherwise terminated as provided herein.
7.2 Either party may terminate this Amendment without cause upon
thirty (30) days prior
written notice to the other party. Notwithstanding the foregoing,
this Amendment may be immediately
terminated by MS, effective upon notice from MS to CUSTOMER, if
any of the following events of
default occur: (i) if CUSTOMER materially fails to perform or
comply with this Amendment or any
provision hereof; (ii) if CUSTOMER becomes insolvent or admits in
writing its inability to pay its debts
as they mature, or makes an assignment for the benefit of
creditors; or (iii) if a petition under any
foreign, state, or United States bankruptcy act, receivership
statute, or the like, as they now exist, or as
they may be amended, is filed by or against CUSTOMER.
7.3 Termination of the Amendment by itself shall not affect the
parties' rights and
obligations under the Agreement. Termination of the Agreement, or
any Addendum appointing
CUSTOMER as a Large Account Reseller for other Select Software
Products shall automatically
terminate this Amendment.
8. Obligations Upon Termination
8.1 Within five (5) days after termination or expiration of this
Amendment, CUSTOMER
shall return to MS all Select CD-ROMs delivered to CUSTOMER under
this Amendment, and, subject to
any rights granted to CUSTOMER hereunder to copy a Select CD-ROM
or any Select Software
Products, any copies thereof.
8.2 From and after termination or expiration, CUSTOMER shall not
use any Select
Software Product licensed hereunder.
8.3 Sections 4, 5, 6, 8, 9 and 10 shall survive termination or
expiration of this
Amendment.
9. Limitation of Liability and Remedy
9.1 MS' liability to CUSTOMER under any provision of this
Amendment or any
transaction contemplated by this Amendment shall be limited to
replacement of the Select CD-ROM.
CUSTOMER releases MS from all obligations, liabilities, claims,
damages, costs or demands in excess
of the limitations. The parties acknowledge that other parts of
this Amendment rely upon the inclusion
of this Section 9.
9.2 The rights and remedies granted to CUSTOMER under this
Section 9 constitute
Customer's sole and exclusive remedy against MS, its officers,
agents and employees for negligence,
inexcusable delay, breach of warranty, express or implied, or for
any default whatsoever relating to the
condition of the Select CD-ROM and/or Select Software Products
licensed under this Amendment.
9.3 As partial consideration for the rights granted to
CUSTOMER hereunder, CUSTOMER
agrees not to sue MS in connection with the Select CD-ROM and/or
Select Software Products licensed
hereunder.
9.4 CUSTOMER hereby agrees to defend, indemnify and hold MS,
its employees, officers
and directors, harmless from and against any liability, claims,
damages, costs or demands, including
reasonable attorneys' fees, arising out of or in connection with
any such claims against MS or such
parties, by its End Users arising out of any of the CUSTOMER's
support.
9.5 CUSTOMER FURTHER AGREES MS SHALL NOT BE LIABLE FOR ANY
DAMAGES, INCLUDING WITHOUT LIMITATION, ANY CONSEQUENTIAL,
INCIDENTAL,
INDIRECT, ECONOMIC OR PUNITIVE DAMAGES, EVEN IF MS HAS BEEN
ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
10. Non-Disclosure Agreement
CUSTOMER expressly undertakes to retain in confidence all
information and know-how transmitted to
CUSTOMER by MS that MS has identified as being proprietary and/or
confidential or that, by the nature
of the circumstances surrounding the disclosure, ought in good
faith to be treated as proprietary and/or
confidential, and will make no use of such information and know-
how except under the terms and during
the existence of this Amendment. However, CUSTOMER shall have no
obligation to maintain the
confidentiality of information that (i) it received rightfully
from another party prior to its receipt from
MS or (ii) is independently developed by CUSTOMER. Further,
CUSTOMER may disclose confidential
information as required by governmental or judicial order,
provided CUSTOMER gives MS prompt
notice of such order and complies with any protective order (or
equivalent) imposed on such disclosure.
CUSTOMER shall treat all Select Software Product licensed
hereunder adaptation materials (including
source code) as confidential information and shall not disclose,
disseminate or distribute such materials to
any third party without MS' prior written permission. CUSTOMER
shall treat the terms and conditions
of this Amendment as confidential; however, CUSTOMER may disclose
such information in confidence
to its immediate legal and financial consultants as required in
the ordinary course of CUSTOMER's
business. CUSTOMER's obligation under this Section 10 shall
extend to the earlier of such time as the
information protected hereby is in the public domain through no
fault of CUSTOMER or ten (10) years
following termination or expiration of this Amendment.
11. General
11.1 Upon execution by both parties, this Amendment shall
constitute the entire agreement
between the parties with respect to the subject matter hereof. It
shall not be modified except by a written
agreement signed on behalf of CUSTOMER and MS by their respective
duly authorized representatives.
11.2 No waiver of any breach of any provision of this Amendment
shall constitute a waiver
of any prior, concurrent or subsequent breach of the same or any
other provisions hereof, and no waiver
shall be effective unless made in writing and signed by an
authorized representative of the waiving party.
11.3 The Section headings used in this Amendment are intended
for convenience only and
shall not be deemed to supersede or modify any provisions.
11.4 To the extent any of the terms and conditions of this
Amendment conflict with the
terms and conditions of the Microsoft End User License Agreement
applicable to the product, the terms
and conditions of this Amendment shall govern.
IN WITNESS WHEREOF, the parties have executed this Amendment on
the dates indicated below. All
terms and conditions of the Agreement not amended herein shall
remain in full force and effect. This
Amendment is not binding until executed by MS.
AGREED AND ACCEPTED TO BY AGREED TO AND ACCEPTED BY
MICROSOFT CORPORATION ("MS") EGGHEAD SOFTWARE
("CUSTOMER")
By: /ss Johan Liedgren By: /ssThomas F. Quinn
Name: /ss Johan Liedgren Name: /ss Thomas F. Quinn
Title: Director, Channel Policies Name: Director General
Merchandising
Effective Date: 5/15/95 Date: 5/9/92
EXHIBIT A
SELECT CD-ROM PRICE LIST
The Microsoft Select CD-ROM set is available only from Microsoft
Easy Fulfillment ("MEF"). All
CUSTOMER prices are per quarter. MS may change the CUSTOMER price
on the CD-ROM set at any
time upon thirty (30) days written notice to CUSTOMER.
SELECT ONE CD-ROM SET OPTION:
CD-ROM SET
d
499-100-CROM - INTRODUCTORY SET
d
499-100-CROM -QUARTERLY SUBSCRIPTION
(includes first CD-ROM set free)
Amendment No. 1 to the Addendum to the
Egghead Software
Page 1
Microsoft 1994/1995 Channel Agreement
(Appointment As a Large Account Reseller)
<F3> Registered Trademark