UNLIMITED DISTRIBUTION PROGRAM
CLIENT CUSTOMIZATION TERMS AND CONDITIONS
("AGREEMENT")
1. Term. This Agreement shall remain in effect until terminated pursuant to
the terms and conditions set forth in this Agreement. Notwithstanding
anything in this Agreement to the contrary, this Agreement shall remain in
effect only until such time as Microsoft Corporation ceases to distribute
free of charge products with features comparable to the Netscape client
products. In such event, Netscape shall provide Applicant with 90 days
prior written notice and this Agreement shall expire on the end of said
90-day notice period.
2. LICENSE GRANT. (a) Netscape grants to Applicant, subject to these terms
and conditions, a nonexclusive, royalty-free and nontransferable right to
(i) reproduce a version of the standard Netscape client product which
Applicant has customized pursuant to the terms and conditions set forth in
the end user license agreement for the client customization kit (the
"Customized Netscape Product") in executable form only on any media and
(ii) distribute by sublicense such Customized Netscape Product copies to
end users, directly or through distributors. Applicant may electronically
distribute the Customized Netscape Product, in exportable version only,
pursuant to the terms and conditions set forth herein.
(b) Except as expressly permitted herein or by applicable law, Applicant
shall not and shall not permit any distributor or other person to
reconfigure, modify, translate, decompile, reverse engineer, disassemble,
or otherwise determine or attempt to determine source code from the
Customized Netscape Products or to create any derivative works based upon
the Customized Netscape Products including the Netscape user interface. If
Applicant or any distributor fails to comply with this Section 2(b),
Netscape may immediately (in addition to all other remedies it may have and
except for end user licenses) revoke all licenses granted hereunder.
(c) If Applicant is distributing the Customized Netscape Product bundled
with an Applicant product, Applicant shall use, and is granted during the
term hereof a nontransferable, nonexclusive, and restricted license (with a
right to sublicense to distributors) to use the mark "Includes Netscape
Navigator" or "Includes Netscape Communicator," as applicable
(collectively, the "Marks") solely on products and packaging containing
Customized Netscape Products and in related advertising, marketing, and
technical material on Applicant's Internet site. If Applicant is
distributing the Customized Netscape Product on a stand-alone basis,
Applicant shall use, and is granted during the term hereof a
nontransferable, nonexclusive, and restricted license (with a right to
sublicense to distributors) to use the mark Netscape Navigator" or Netscape
Communicator," as applicable (collectively, the "Marks") solely on products
and packaging containing Customized Netscape Products and in related
advertising, marketing, and technical material on Applicant's Internet
site. Use of the Marks shall comply with
Netscape's then-current signature guidelines. All use of the Marks shall
inure to Netscape's benefit.
3. USE OF THE MARKS; PROTECTION OF THE MARKS. (a) Proper Use.
Applicant agrees that all use of the Marks shall be only in connection
with this Agreement. Applicant agrees not to use or combine any other
trademark or service mark in combination with the Marks. Applicant
further agrees not to use the Marks on or in connection with any
products or services that are or could be deemed by Netscape in its
reasonable judgment, to be obscene, pornographic, disparaging of
Netscape or its products, or otherwise in poor taste, or that are
themselves unlawful or whose purpose is to encourage unlawful
activities by others.
(b) Monitoring by Netscape Upon Netscape's request, Applicant shall
promptly provide Netscape with samples of any product or documentation
bearing the Marks. If Netscape determines that Applicant is using the
Marks improperly, Applicant shall have ten (10) days to remedy the
improper use.
4. REPORTS. Applicant shall report to Netscape within 30 calendar days
after the end of each calendar quarter the quantity of Customized
Netscape Product licenses granted during such prior quarter for
distribution hereunder, by country therefor.. Such reports shall be
provided in electronic form via the Unlimited Distribution Program
Reporting Page at:
HTTP://HOME.NETSCAPE. COM/COMPROD/NETSCAPE_PARTNERPROGRAMS/BROWSER_
DISTRIBLCCK_REPORT.HTML.
5. SUPPORT. The Customized Netscape Products come with no support from
Netscape
6. DISTRIBUTION. (a) Applicant shall and shall cause its distributors
to comply with all then-current applicable laws, regulations, and
other legal requirements in its performance of this Agreement,
including without limitation, all applicable export laws, rules, and
regulations of any agency of the U.S. Government or other applicable
agencies. Applicant shall ensure the inclusion of appropriate notices
required by the U. S. Government agencies or other applicable
agencies.
(b) Applicant shall use commercially reasonable best efforts to ensure
that its distributors and sub-distributors comply with all of the
relevant terms contained in this Agreement. The Customized Netscape
Products distributed pursuant to this Agreement must be distributed
with the end user license agreement that is provided with such
Customized Netscape Product.
(c) This is a nonexclusive relationship, and each party agrees that
the other may enter into similar arrangements with third parties.
Applicant shall and shall cause its distributors to treat all
Customized Netscape Products at least as favorably as it treats any
competitive products it distributes.
(d) Applicant agrees to distribute documentation or packaging relating
to the Customized Netscape Product that shall conspicuously state
that, notwithstanding anything in the end user license agreement
included with the Customized
Netscape Product to the contrary, end users are not entitled to any
support, warranty, or documentation associated with the Customized Netscape
Product unless they have paid for such support, warranty, or documentation.
Applicant further agrees that any such documentation or packaging shall
include instructions on how an end user may purchase support from Netscape.
7. PROPRIETARY RIGHTS. Title to and ownership of all copies of the
Customized Netscape Products, including all copyrights thereto,
whether in machine-readable or printed form, and including without
limitation derivative works, compilations, or collective works thereof
and all related technical know-how and all rights therein are and
shall remain the exclusive property of Netscape or its suppliers.
Applicant acknowledges that Netscape is the owner of the Netscape,
Navigator, and Communicator trademarks, and any trademark applications
and/or registrations thereto, agrees that it will do nothing
inconsistent with such ownership and agrees that all use of the Marks
by Applicant shall inure to the benefit of Netscape. Netscape agrees
that nothing in this Agreement shall give Applicant any right, title,
or interest in the Marks other than the right to use the Marks in
accordance with this Agreement. Except for the rights expressly
granted to Applicant hereunder, Netscape reserves for itself all other
rights in and to the Customized Netscape Products. Applicant and
distributor shall not take any action to jeopardize, limit, or
interfere in any manner with Netscape's ownership of or rights with
respect to the Customized Netscape Products. Further, Applicant or its
distributors shall not remove or alter any trademark, copyright, or
other proprietary notices, legends, symbols, or labels appearing on
the Customized Netscape Products delivered to Applicant and Applicant
shall reproduce such notices on all copies of the Customized Netscape
Products made hereunder.
8. NO WARRANTY/ AS IS. THE PRODUCT SUBJECT TO THIS AGREEMENT DOES NOT
COME WITH SUPPORT OF ANY KIND AND IS PROVIDED TO APPLICANT "AS IS" AND
WITHOUT Warrantees OR CONDITIONS OF ANY KIND. Netscape EXPRESSLY
DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A
PARTICULAR PURPOSE.
9. INDEMNITY. Netscape shall have no obligation or liability for, and
Applicant shall defend, indemnify, and hold Netscape harmless from and
against any claim (including reasonable attorneys' fees and costs)
arising from Applicant's distribution of the Customized Netscape
Products under, and/or compliance with the terms and conditions set
forth in, this Agreement.
10. LIMITATION OF LIABILITY. (a) TO THE EXTENT ALLOWED BY APPLICABLE
LAW, IN NO EVENT SHALL Netscape OR ITS SUPPLIERS BE LIABLE FOR ANY
DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY LOSS OF PROFITS,
LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR
FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF
ANY KIND, EVEN IF Netscape HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. (b) IN NO EVENT WILL NETSCAPE OR ITS SUPPLIERS BE
LIABLE FOR ANY CLAIM AGAINST APPLICANT BY ANY THIRD PARTY. (c) IN NO
EVENT SHALL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR (I) ANY
REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY APPLICANT,
ANY DISTRIBUTOR, OR THEIR RESPECTIVE AGENTS; (II) FAILURE OF THE PRODUCTS
TO PERFORM; (III) FAILURE OF THE PRODUCTS TO PROVIDE SECURITY; OR (IV) THE
RESULTS OR INFORMATION OBTAINED OR DECISIONS MADE BY END USERS OF THE
PRODUCTS OR THE DOCUMENTATION. THIS LIMITATION OF LIABILITY IS AN ESSENTIAL
PART OF THE BARGAIN UNDER THIS AGREEMENT.
11. TERMINATION. This Agreement may be terminated: (a) immediately by
Netscape in the event Applicant or a distributor of Applicant attempts
to derive the source code of the Customized Netscape Products; (b) by
either party upon 60 days prior written notice to the other party; or
(c) immediately by Netscape in the event Applicant fails to remedy a
breach of Section 3(b) of this Agreement within the specified cure
period. Immediately upon termination or expiration hereof, all
licenses for the Customized Netscape Products granted hereunder
(except for validly granted end user licenses) shall terminate, and
Applicant shall deliver to Netscape or destroy all copies of the
Customized Netscape Products in its possession or control, and shall
furnish an Netscape signed by an officer of Applicant certifying such
delivery or destruction. Termination by either party shall not act as
a waiver or release of any breach hereof or any liability hereunder.
Sections 2(b), 6, 7, 8, 9, 10, 11, 12 and 13 shall survive any
expiration or termination of this Agreement.
12. NOTICE. Any notice required or permitted hereunder shall be in
English, in writing, and shall be deemed to be properly given upon
receipt. Notices to Netscape shall be to the attention of the Legal
Department, Netscape Communications Corporation, 501 East Middlefield
Road, Mountain View, California 94043.
13. MISCELLANEOUS. (a) Neither party's waiver of a breach or delay or
omission to exercise any right or remedy shall be construed as a
waiver of any subsequent breach or as a waiver of such right or
remedy. (b) This Agreement shall' be governed by and construed under
the laws of the State of California, U.S.A., without reference to its
conflicts of law provisions. (c) Unless otherwise agreed in writing,
all disputes relating to this Agreement (except any dispute relating
to intellectual property rights) shall be subject to final and binding
arbitration in Santa Clara County, California, under the auspices of
JAMS/End Dispute, with the losing party bearing all costs of such
arbitration. Notwithstanding the foregoing, Netscape reserves the
right to invoke the jurisdiction of any competent court to remedy or
prevent violation of any provision under this Agreement relating to
Netscape Confidential Information. (d) This Agreement will not be
governed by the United Nations Convention of Contracts for the
International Sale of Goods. (e) This Agreement creates no agency,
partnership, joint venture, or employment relationship and neither
Applicant nor its agents have any authority to bind Netscape in any
respect whatsoever. (f) If the application of any provision hereof to
any particular facts shall be held to be unenforceable by any
competent court, then (x) the enforceability of such provision as
applied to any other facts and the validity of other provisions hereof
shall not be affected and (y) such provision shall be reformed without
further action by the parties hereto only to the extent necessary to
make such provision valid and enforceable when applied to the
particular facts. (g) This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and
supersedes prior and contemporaneous agreements and communications,
whether oral or written, between the parties relating to the subject matter
of this Agreement and all past courses of dealing or industry custom. (h)
If Applicant has an effective agreement with Netscape ("Prior Agreement")
covering only the distribution of the Customized Netscape Products set
forth herein, then this Agreement shall supersede the Prior Agreement. If
any Prior Agreement covers any Netscape products in addition to the
Customized Netscape Products, for example Netscape server products, then
this Agreement shall supersede only those portions of the Prior Agreement
covering the Customized Netscape Products. (i) This Agreement is written in
the English language only, which language shall be controlling in all
respects. (j) Les parties aux presentes confirment leur volonte que cette
convention de meme que tous les documents y compris tout avis qui s'y
rattache soient rediges en langue anglaise (translation: The parties
confirm that this Agreement and all related documentation will be in the
English language"). (k) Netscape may use Applicant's name in a list of
customer references or in any press release issued by Netscape regarding
the licensing of the Customized Netscape Product and/or provide Applicant's
name and the names of the Customized Netscape Products licensed by
Applicant to third parties. (l) If any dispute arises under this Agreement,
the prevailing party shall be reimbursed by the other party for any and all
legal fees and costs associated therewith.
Do you agree to the program's terms and conditions?
(X) I HAVE READ AND AGREE to the terms and conditions in this
agreement.
( ) I DO NOT AGREE to the terms and conditions in this agreement.
Signed by Christopher M. Fogel on behalf of Consumer Net Marketplace, Inc.