FREEWARE AND DEMONSTRATION SO
DISTRIBUTION AGREEMENT (FOR ISP)
(LIMITED)
THIS FREEWARE AND DEMONSTRATION SOFTWARE DISTRIBUTION AGREEMENT (this
"Agreement") is entered into as of June 19th, 1998 by and between QUALCOMM
Incorporated, a Delaware corporation ("QUALCOMM"), with its principal place of
business located at 6455 Lusk Boulevard, San Diego, California 92121-2779, and
CNM, Inc. ("DISTRIBUTOR"), with regard to the following facts:
WHEREAS, QUALCOMM makes available to the public a freeware version of Eudora
Software Products under the name EUDORA LIGHT-Registered Trademark- and a 30-Day
Demonstration Copy of Eudora Pro with the understanding that the same are not
fully supported by QUALCOMM and subject to the requirement that the same shall
not be sold or redistributed on a commercial basis by third parties except as
specifically permitted in writing by QUALCOMM; and
WHEREAS, DISTRIBUTOR is engaged in the business described on Exhibit "A" and
wishes to obtain the right from QUALCOMM to distribute the current version(s) of
Eudora Light and/or the 30-Day Demonstration Copy of Eudora Pro, as listed on
Exhibit "A."
NOW, THEREFORE,, in consideration of the promises set forth herein and intending
to be legally bound, the parties agree as follows:
1. DEFINITIONS.
1.1 Light Software. As used herein, the term "Light Software" shall mean the
current version of the officially released versions of Eudora Light electronic
mail software for the Macintosh and Windows platforms. If this Agreement
includes the right to perform a Translation (as provided in Section 13 hereof),
or if the right to use a translation other than the officially released English
language version described above is specified in Exhibit A attached hereto and
approved by QUALCOMM, such Translation or other translated version shall be
included in the definition of "Light Software" herein.
1.2 30-Day Demonstration Copy of Eudora Pro. As used herein, the term "30-Day
Demo" shall mean the current version of the officially released time-expiring
versions of Eudora Pro electronic mail software for the Macintosh and Windows
platforms.
2. RIGHT TO DISTRIBUTE LIGHT SOFTWARE. QUALCOMM hereby grants to DISTRIBUTOR the
nonexclusive right to distribute the Light Software and the related
documentation to its customers in the manner described on Exhibit "A," subject
to the provisions of this Agreement and during the term hereof. No right to use
or distribute any version of Eudora electronic mail software other than as
described in Section I hereof or of any other product or publication of QUALCOMM
is granted hereby, and DISTRIBUTOR shall not engage in any such use or
distribution.
3. RIGHT TO DISTRIBUTE COPIES OF EUDORA DEMONSTRATION PRODUCTS. QUALCOMM hereby
grants to DISTRIBUTOR the nonexclusive right to distribute for demonstration and
evaluation purposes the 30-Day Demo and the related documentation to its
customers in the manner described in Exhibit A' subject to the provisions of
this Agreement and the 30-Day Demo user license agreement during the term
hereof.
4. TRADEMARK. DISTRIBUTOR shall have the right and obligation to use the
trademark ""EUDORA LIGHT-Registered Trademark-" at all times when referring to
the Light Software, including but not limited to documentation, packaging,
advertising and marketing materials, etc. The trademark ""Eudora"" cannot be
used by itself nor can any other prefix or suffix be added to "Eudora" when
referring to the Light Software or the 30-Day Demo.
(a) DISTRIBUTOR shall indicate in packaging of and promotional materials
relating to its products containing the Light Software and/or the 30-Day Demo
that the Light Software and/or the 30-Day Demo are included therein by utilizing
on such packaging or materials the artwork provided by QUALCOMM (or an
acceptable facsimile thereof approved by QUALCOMM in advance) and such packaging
and materials shall clearly disclose that the Light Software is not the fully
supported commercial version. The following notice must be included on all
promotional and packaging materials relating to the Light and/or the 30-Day
Demo,;
Eudora Pro and Eudora Light are registered trademarks of QUALCOMM
Incorporated.
(b) Use of the QUALCOMM logo by DISTRIBUTOR shall be protective of the
rights of QUALCOMM and its licensors,,, and shall conform to the usage
instructions described below as the same may be updated from time to time by
QUALCOMM. DISTRIBUTOR shall provide QUALCOMM samples of each of its packaging
and promotional materials utilizing the QUALCOMM trademark, and shall, at the
request of QUALCOMM, cease any use of the same which QUALCOMM indicates in
writing is violative of the provisions of this Section 4(b).
USAGE INSTRUCTIONS FOR QUALCOMM LOGO: You may not alter the shape or
proportions of the components in any way. An area greater than or equal to the
diameter of the "Q" surround the logo on all four sides. This area must be free
of any text, wording, slogans, organizational names, or any design element,
illustration, background, decoration or graphic treatment. You may not combine
other graphic elements with the logo.
LOCATION: The logo must appear on the outside of packaging; if the product
is delivered on CD-ROM, the logo must appear on the outside of the CD jacket or
the CD label; if the product is delivered on a floppy disk, the logo must appear
on the diskette holder or label; for software, the logo must appear on the
splash screen, credits screen, or similar location within the software product
itself
(c) QUALCOMM Incorporated permits use of Eudora Light and the 30-Day Demo
screen shots in publications and tutorials for email users. If the screen shots
are used in later editions, DISTRIBUTOR shall obtain updated versions of Eudora
Light or the 30-Day Demo screens for those editions. DISTRIBUTOR shall indicate
QUALCOMM's copyright in any screenshots and include the following notice in the
materials:
Eudora-Registered Trademark-, Eudora Pro-Registered Trademark- and Eudora
Light-Registered Trademark- are registered trademarks of QUALCOMM Incorporated.
(d) QUALCOMM permits DISTRIBUTOR to excerpt the Eudora Light User Manual to
prepare tutorials and reference guides for users of Eudora Light Software, or
for inclusion in publications. DISTRIBUTOR shall use QUALCOMM's copyright notice
with respect to the excerpted portion, (Copyright -C- 1998 QUALCOMM
Incorporated. All rights reserved. 6455 Lusk Blvd. San Diego, CA 921 21-2779),
and use the Eudora registered trademark and trademark notices as referenced in
Section 4.
5. TITLE TO AND PROTECTION OF THE LIGHT SOFTWARE AND 30-DAY DEMONSTRATION COPY
OF EUDORA PRO.
5.1 Title. QUALCOMM (or its licensors)) retains the entire title to the Light
Software and the 30-Day Demo and any other information furnished hereunder to
DISTRIBUTOR, and all copies of the foregoing.
5.2 Restrictions on Use and Protection of Light Software and 30-Day Demo. No
right to modify the Light Software or 30-Day Demo is granted herein, and all
copyright notices included in the Light Software and the 30-Day Demo shall be
retained therein without alteration. DISTRIBUTOR shall not, and shall not allow
any party to, copy, modify, alter, attempt to disassemble, decompile, or
otherwise reverse engineer the Light Software or the 30-Day Demo, provided that
DISTRIBUTOR may reconfigure the Light Software or the 30-Day Demo for its
customers, so long as no use of the source code is required therefor and no
modification of the source code results therefrom. When reverse engineered
and/or decompiled, the Light Software and 30-Day Demo contains the trade secrets
and proprietary and confidential information of QUALCOMM. Notwithstanding the
above, if Licensee is located within a jurisdiction which by law prohibits such
restrictions on reverse engineering, Licensee agrees that within that
jurisdiction it shall not, and shall not allow any party on Licensee's behalf,
to attempt to reverse engineer or decompile the Light Software or
30-Day Demo into another computer language, except as expressly and
specifically provided by applicable law. Any and all information obtained
during such lawful reverse engineering and/or decompiling activities,
including but not limited to, the organization, logic, algorithms and
processes of the Light Software or 30-Day Demo, shall be deemed to be the
confidential and proprietary information of QUALCOMM or its licensors.
DISTRIBUTOR may copy the documentation provided with the Light Software, and
provide the same to its customers, and may make excerpts thereof for
distribution with the Light Software, so long as QUALCOMM's copyright therein
is acknowledged, and all proprietary notices included in the original copy
thereof are preserved and reproduced in any copy or excerpt.
6. OBLIGATIONS OF DISTRIBUTOR.
6.1 Support. As a condition of the grant of rights set forth herein, DISTRIBUTOR
shall provide to each customer with the Light Software a copy of the
documentation or other user information which is provided with the Light
Software by QUALCOMM, or a document which contains similar information. If
inclusion of the complete documentation is not feasible, installation and
connection instructions can be included with the Light Software, with directions
on where the documentation can be obtained for download by the customer. Within
a reasonable time after QUALCOMM makes available to DISTRIBUTOR any updates to
the Light Software and documentation, DISTRIBUTOR shall provide copies thereof
to each of its customers then using the Light Software, and shall substitute the
updated versions for delivery to any future customers. DISTRIBUTOR is
responsible for first line support of its customers, provided that no support
other than provision of documentation shall be required for distribution of the
Light Software solely as a part of a publication. QUALCOMM shall provide
technical support for the 30-Day Demo to DISTRIBUTOR and its customers.
DISTRIBUTOR shall have no obligation to provide technical support to its
customers for the 30-Day Demo.
6.2 Promotion of Fully Supported Version. DISTRIBUTOR agrees to use reasonable
efforts and to cooperate with QUALCOMM to promote the fully supported commercial
versions of Eudora Pro electronic mail software, other than the 30-Day Demo and
to provide the information QUALCOMM includes with the Light Software describing
the features of and ordering procedure for the same to its customers. Such
efforts may include, without limitation, blind mailings to DISTRIBUTOR's user
base, links to QUALCOMM's Web page and other activities agreed upon by the
parties.
6.3 Press Releases. DISTRIBUTOR and QUALCOMM shall cooperate in the preparation
and publication of press releases relating to the distribution of the Light
Software and the 30-Day Demo, provided that no such release shall be published
without the prior written approval of QUALCOMM, which shall not unreasonably be
withheld or delayed.
6.4 Compliance with Laws; Export Restrictions. DISTRIBUTOR shall comply with all
applicable laws and regulations in effect in the country, state or province in
which it distributes the Light Software and 30-Day Demo and with the material
provisions of all U.S. laws and regulations which apply to the distribution and
use of the Light Software and 30-Day Demo, including but not limited to the U.S.
Export Administration Regulations ("EAR"), as such laws and regulations may be
amended from time to time. As of the date of this revision of this Agreement,
the Light Software and 30-Day Demo may not be exported to Cuba, Iran, Iraq,
Libya, North Korea, Sudan or Syria.
6.5 Samples to be Provided. DISTRIBUTOR shall provide to QUALCOMM, at no charge,
two (2) copies of any publication or product in which the Light Software and/or
30-Day Demo is included, provided that with respect to any hardware items,
product information or packaging samples may be substituted.
7. DELIVERY OF LIGHT SOFTWARE AND 30-DAY DEMO OF EUDORA PRO. Upon authorization
by QUALCOMM, DISTRIBUTOR will receive notification via email of their approval
status and be given a Web URL to download the Eudora Light Distribution
material. If specified in Exhibit A, within fifteen (15) days after QUALCOMM's
receipt of a copy of this Agreement executed by DISTRIBUTOR, QUALCOMM shall make
available to DISTRIBUTOR the Eudora Light Distribution material which includes a
master CD-ROM
containing the Light Software and 30-Day demo Software, documentation and
other information to be distributed pursuant to the terms of this Agreement.
As soon as reasonably practical after the release of new versions of the
Light Software and/or 30-Day Demo, QUALCOMM shall notify DISTRIBUTOR
electronically ( if electronic mail address is provided to QUALCOMM by
DISTRIBUTOR) of how such versions can be obtained. Availability of new
versions may be electronic or hard copy, at QUALCOMM's discretion.
8. NO WARRANTY. The Light Software, 30-Day Demo and other materials are
delivered "AS IS" and QUALCOMM makes no warranty with respect thereto. QUALCOMM
shall not be obligated to support or upgrade the Light Software or 30-Day Demo,
and DISTRIBUTOR shall not make or provide any warranties or references to
technical support of the Software on behalf of QUALCOMM. DISTRIBUTOR HEREBY
EXPRESSLY WAIVES ALL GUARANTEES, WARRANTIES, AND LIABILITIES THEREFOR ON THE
PART OF QUALCOMM OR ITS LICENSORS, EXPRESS OR IMPLIED (INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, OR NONINFRINGEMENT), ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE
LIGHT SOFTWARE OR 30-DAY DEMO.
9. INDEMNIFICATION. DISTRIBUTOR hereby agrees to indemnify, defend and hold
harmless QUALCOMM, its licensors and affiliates, and their directors, officers,
employees and agents from any expenses or losses arising from any breach by
DISTRIBUTOR of its obligations hereunder and from any claims that any items or
services offered or provided by DISTRIBUTOR with the Light Software and 30-Day
Demo infringe the copyright, trademark rights or other intellectual property
rights of any third party or violates any applicable law or regulation.
10. LIMITATION. IN NO EVENT SHALL QUALCOMM OR ITS LICENSORS BE LIABLE TO
DISTRIBUTOR OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING' BUT NOT LIMITED TO LOSS OF PROFITS, DATA OR
USE, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF QUALCOMM HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
11. TERM; TERMINATION. The term of this Agreement shall commence upon the date
set forth above subject to execution by QUALCOMM, and shall continue for a
period of one (1) year thereafter, subject to earlier termination by QUALCOMM
upon DISTRIBUTOR's breach of any of its obligations hereunder which is not cured
within thirty (30) days after written notice of such default. Upon expiration of
the initial and each renewal term hereof, the term of this Agreement shall be
automatically renewed for an additional period of one (1) year, unless one party
delivers written notice to the other at least sixty (60) days prior to the
expiration of the then current term, that such party does not wish to renew.
12. MISCELLANEOUS. This Agreement constitutes the entire agreement between the
parties, and no modification of this Agreement shall be effective unless in
writing and signed by the parties, except that DISTRIBUTOR may assign this
Agreement to an entity controlling, controlled by or under common control with
it or to any entity that acquires all or substantially all of DISTRIBUTOR's
assets, or into which DISTRIBUTOR is merged or otherwise reorganized. Excepting
the above, no assignment of this Agreement or delegation of any rights or
obligations hereunder may be made by DISTRIBUTOR without the prior written
approval of QUALCOMM, which approval may be withheld in QUALCOMM's sole
discretion. This Agreement shall be governed by and determined in accordance
with the laws of the State of California. In the event that litigation or other
proceeding is instituted between the parties in connection with any dispute
arising from or related to this Agreement, the judgment or award shall include a
reasonable sum to be paid to the prevailing party for and on account of
attorneys' fees and costs.
13. TRANSLATION OF LIGHT SOFTWARE. QUALCOMM permits selected distributors to
translate the Light Software and related documentation, based on several
factors, including the resources and customer base of the distributor and the
availability of translated versions in the specified language. If DISTRIBUTOR
wishes to
translate and localize the Light Software, DISTRIBUTOR shall specify on an
attached letter the language, country, and any qualifications relevant to
DISTRIBUTOR's ability to translate, maintain and distribute the translated
version. Upon review and acceptance thereof, QUALCOMM will grant to
DISTRIBUTOR a non-transferable, non-exclusive limited license (without the
right to sublicense), subject to the terms and conditions of this Agreement,
to use the resource files of the Light Software described in Section I hereof
solely for the purpose of translating and localizing such Light Software to
create a translation into the language(s) specified on Exhibit A hereof (the
"Translation"). No source code shall be provided for this purpose.
DISTRIBUTOR shall deliver to QUALCOMM one (I ) copy of the Translation for
its inspection and approval. All costs incurred by DISTRIBUTOR in the
performance of the Translation shall be paid by DISTRIBUTOR.
13.1 Ownership of Translation. DlSTRIBUTOR and QUALCOMM hereby agree that the
Translation is a "work made for hire" within the meaning of 17 United States
Code Section 1 01 in that the Translation is a work that has been specially
ordered or commissioned for use by QUALCOMM as a translation. All right, title
and interest in the Light Software and any trademarks, copyrights, or other
intellectual property rights associated therewith shall remain the property of
QUALCOMM (or its licensors). DISTRIBUTOR hereby assigns to QUALCOMM all right,
title and interest which it may otherwise acquire in and to the Translation, if
any, immediately upon origination thereof and, if requested, DISTRIBUTOR shall
sign all lawful documents and otherwise perform all acts necessary to enable
QUALCOMM and its successors and assigns to obtain and enforce all available
legal protections for the Translation in all countries. All inventions embodied
in the Translation shall become and remain the sole and exclusive property of
QUALCOMM, and DISTRIBUTOR shall be deemed to have assigned and relinquished all
right, title and interest therein by virtue of this Section 13.1.
13.2 Transfer of Moral Rights. Without limiting the provisions of Section 13.1
hereof, DISTRIBUTOR hereby irrevocably transfers and assigns to QUALCOMM any and
all Moral Rights (as defined below) which DISTRIBUTOR may have in or with
respect to the Translation. To the extent DISTRIBUTOR cannot assign such rights,
DISTRIBUTOR hereby waives and agrees never to assert such rights against
QUALCOMM or any of QUALCOMM's licensees. In addition, DISTRIBUTOR agrees to
obtain such assignment, waiver or covenant not to assert such rights from any
subsidiary, subcontractor, or employee who creates, either in whole or in part,
the Translation. As used herein, "Moral Rights" means any right to (i) divulge
the Translation to the public; (ii) retract the Translation from the public;
(ii) claim authorship of the Translation, including any subsequent version
thereof; (iv) object to any distortion, mutilation or other modification of the
Translation, and (v) any and all similar rights existing under the judicial or
statutory law of any country or jurisdiction in the world, or under any treaty,
regardless of whether such right is called or generally referred to as a "moral
right."
14. ISP PROGRAM GUIDELINES
14.1 Rules and Guidelines for Participating in ISP Program. In order to
participate, DISTRIBUTOR agrees to:
(a) DISTRIBUTOR's physical business address is located in the United States
or Canada.
(b) Provide and maintain dial-in, leased line or wireless Internet
connectivity services to residential, business, educational or government
organization.
(c) Distribute Eudora Light by Diskette, ftp, CD-ROM or other means of
electronic distribution.
(d) Display at least one of the following graphics on DISTRIBUTOR's web
site, no more than one level deep from main home page:
(1) "Eudora Light" Banner to link to download location of Eudora Light
on DISTRIBUTOR's home page, on the Eudora(R) main web site, or other Eudora
Light download location
(2) "Eudora Pro Demo" Banner to promote Eudora Pro 30-Day Demo
software and link users to download location of Eudora Pro 30-Day Demo on
DISTRIBUTOR's home page, on the Eudora main web site, or other Eudora Pro 30-Day
Demo download location
(3) "QUALCOMM" Logo to promote either Eudora Light or 30-Day Demo
software and link users to download location of these software programs, or to
link users to QUALCOMM's Eudora home page or QUALCOMM's main web page.
(e) Keep the ISP Program web page password in a safe place and not
distribute to third parties, if DISTRIBUTOR is approved for password access.
(f) Provide an accurate URL which will be hot-linked from the Eudora Email
central location directly to DISTRIBUTOR's web site.
IN WITNESS WHEREOF, QUALCOMM and DISTRIBUTOR have caused this Agreement to be
duly executed by their duly authorized representatives as of the date first set
forth above.
DISTRIBUTOR QUALCOMM
CNM, INC. QUALCOMM, INCORPORATED
Signed by Chris Fogel Signed by Matthew Parks
Software development Manager Eudora Product Manager
June 19, 1998 June 25, 1998
EXHIBIT A
DISTRIBUTOR NAME:
CNM Inc. DOING BUSINESS AS:
CNM Network
DESIRED PRODUCTS:
Eudora Light
PLATFORM(S) OF SOFTWARE DESIRED:
Windows
BRIEF DESCRIPTION OF DISTRIBUTOR'S BUSINESS (e.g. additional services such as
web hosting, web design, VAR, consulting, etc.):
DESCRIPTION OF PLANNED DISTRIBUTION OF EUDORA LIGHT (i.e., media type, region or
market, bundle components, etc.): CD platform for inclusion in paper media
advertisements, which include business, ADVO, etc.
DESCRIPTION OF PLANNED DISTRIBUTION FOR 30-DAY DEMONSTRATION COPIES OF EUDORA
PRO (i.e., media type, region or market, bundle components, etc.): ADVO campaign
(junk mail), Business locations, etc.
TOTAL NUMBERS OF PLANNED DISTRIBUTION:
Possible inclusion with ADVO campaign which would make the distribution
over 1.2 million.
CONTACT INFORMATION:
Name: Chris Fogel
Title: Software Development Manager
Street Address: 1900 Los Angeles
Street Address: 2nd Floor
City: Simi Valley
State/Province: CA
Zip: 93065 Country: US
E-mail Address: fogel@cnminc.com
Phone: 805.520.7170
Fax: 805.520 7211
Web Page URL(s): http:/lwww.cnmnetwork.com
Disbursement of Distribution Kit: Do not send me the Distribution Kit
WEB-LISTING INFORMATION:
Address 1: 1900 Los Angeles
Address 2: 2nd Floor
City: Simi Valley
State/Province: CA
Zip: 93065
Country: US
Email: fogel@cnminc.com
Phone: 805.520.7170
Note: The rights granted in this Agreement apply only to the Light Software and
30-Day Demo version(s) and types of distribution indicated above. Any changes in
this information should be directed to QUALCOMM (eudora-isps@qualcomm.com) for
determination of whether a contract modification is necessary. For information
regarding distribution of Eudora Light and/or the 30-Day Demo where an amount in
excess of cost is charged to the end user, please contact eudora-isps@qualcomm.
com.