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EXHIBIT 10.6
FORM OF
TECHNICAL ASSISTANCE AGREEMENT
This Technical Assistance Agreement dated as of _____ is entered into
between AltaVista Internet Software, Inc., having a principal place of business
at 30 Porter Road, Littleton, Massachusetts 01460 (together with all subsidiary
and affiliated companies collectively referred to as "ALTV") and Digital
Equipment Corporation, having a principal place of business at 111 Powdermill
Road, Maynard, Massachusetts 01754-1418 (together with all subsidiary and
affiliated companies collectively referred to as "Digital").
WHEREAS, ALTV has developed or acquired the rights to certain computer
software programs;
WHEREAS, DIGITAL has certain expertise with respect to such programs;
WHEREAS, ALTV desires to retain DIGITAL to perform certain consulting
and technical expertise in connection with ALTV's use of such programs and
DIGITAL desires to perform such services;
NOW THEREFORE, in consideration of the mutual obligations specified in
this Agreement, and any compensation paid to DIGITAL for its services, the
parties agree to the following:
I. PURCHASE ORDERS
ALTV shall issue Purchase Orders containing a statement of the work to
be performed by DIGITAL, DIGITAL's rate of payment for such work, and expenses
to be paid in connection with such work. DIGITAL shall not be obligated to
accept any Purchase Order under this Agreement, but shall not commence services
without first obtaining an approved Purchase Order.
II. CONFIDENTIAL INFORMATION
Each party hereto acknowledges that during the course of this Agreement
it will be entrusted with information of the other party that is identified by
such other party as its confidential information. Each party hereto agrees to
protect the confidentiality of the other party's confidential information with
the same measures that it would use to protect its own similar information, but
in no event shall such measures be less than reasonable in light of general
industry practices.
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III. BACKGROUND TECHNOLOGY/OWNERSHIP.
DIGITAL may use certain technology in performing services under this
Agreement that is either owned solely by DIGITAL or licensed to DIGITAL with a
right to sublicense. ("Background Technology"). DIGITAL shall use reasonable
commercial efforts to disclose in writing the existence of such Background
Technology to ALTV upon acceptance of any Purchase Order. Ownership of
Background Technology (including, without limitation, all rights under
applicable patents, copyrights, trademarks, and trade secrets) shall at all
times remain with Digital and/or its licensors.
Ownership of and rights to any and all ideas, improvements and
inventions conceived, created or first reduced to practice in the performance of
work under this Agreement shall be determined in writing between the parties as
part of each Purchase Order accepted by Digital hereunder.
To the extent that a party is entitled to ownership of work product
created under this Agreement as specified in a Purchase Order, the other party
agrees to execute all papers including, without limitation, assignments, and
shall otherwise reasonably assist the party entitled to ownership as shall be
required to perfect in such party the rights, title and other interests in
applicable work product.
This Section III shall survive the termination of this Agreement for
any reason including expiration of term.
IV. INDEMNIFICATION
"DIGITAL shall indemnify, hold harmless, and defend ALTV and its
customers from and against any and all suits, actions, damages, costs, losses,
expenses (including settlement awards and reasonable attorney's fees) and other
liabilities arising from or in connection with any third party claim that
DIGITAL does not have sufficient right, title or interest in the Background
Technology, or that the Background Technology infringes or violates any patent,
copyright, trademark, trade secret, or other proprietary right of any third
party. Without limiting DIGITAL's obligations as set forth above, DIGITAL, upon
the request of ALTV, and at DIGITAL's expense, shall either procure for ALTV and
its customers the right to continue using the Background Technology, or if such
is not possible, replace or modify the Background Technology so that it becomes
noninfringing but functionally equivalent. Such indemnification obligation shall
not apply (a) unless DIGITAL is given prompt notice of any claim or threat after
DIGITAL learns of such claim or threat; (b) unless DIGITAL is given the
opportunity to control the defense in such action; (c) to ALTV's attorney fees
after DIGITAL has assumed such defense; (d) to portions of Background Technology
not developed or owned by DIGITAL; or (e) claims based on Background Technology
combinations with other products or services. This Section states DIGITAL's
entire liability, and ALTV's exclusive remedy, whether statutory, contractual,
express, implied, or otherwise for claims of intellectual property infringement.
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V. TERMINATION
Either DIGITAL or ALTV may terminate this Agreement in the event of a
material breach of the Agreement which is not cured within ten (10) days of
written notice to the other of such breach.
DIGITAL may terminate this Agreement and/or any purchase order issued
hereunder for convenience within ten (10) days' prior written notice.
VI. COMPLIANCE WITH APPLICABLE LAWS
DIGITAL warrants that the material supplied and work performed under
this Agreement complies with or will comply with all applicable United States
and foreign laws and regulations.
VII. INDEPENDENT CONTRACTOR
DIGITAL is an independent contractor, is not an agent or employee of
ALTV and is not authorized to act on behalf of ALTV.
VIII. GENERAL
This Agreement may not be changed unless mutually agreed upon in
writing by both parties.
In the event any provision of this Agreement is found to be legally
unenforceable, such unenforceability shall not prevent enforcement of any other
provision of this Agreement The parties hereto agree to replace such illegal or
unenforceable provision with a new provision that has the most nearly similar
permissible economic or other effect.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, without regard to its conflicts of law principles.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
DIGITAL EQUIPMENT CORPORATION: ALTAVISTA INTERNET SOFTWARE, INC.
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Signature (Duly Authorized) Signature (Duly Authorized)