EXHIBIT 10.4
CORPORATE END USER
SOFTWARE ORDER FORM
(With Terms and Conditions)
No. 005355
Net2Phone, Inc.
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Full Legal Name of Entity Signing This Order Form ("Licensee")
171 Main Street
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Address of Principal Place of Business
Hackensack, NJ 07601
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City State/Province Postal Code/Country
Contact Person: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Licensee is incorporated in the state/country of: New Jersey
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IMPORTANT NOTICE: UPON EXECUTION OF THIS ORDER FORM BY THE PARTIES, LICENSEE
WILL HAVE CERTAIN RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SOFTWARE PRODUCTS
LISTED IN THE ATTACHED PRODUCT SCHEDULE (THE "PRODUCTS") AND THE RELATED
DOCUMENTATION, AS SET FORTH IN THE ATTACHED LICENSE TERMS AND CONDITIONS. BY
SIGNING THIS ORDER FORM, LICENSEE AGREES TO ALL THE TERMS AND CONDITIONS
ATTACHED HERETO. THIS ORDER FORM, THE PRODUCT SCHEDULE AND THE LICENSE TERMS AND
CONDITIONS ARE REFERRED TO HEREIN COLLECTIVELY AS THE "AGREEMENT." At
Licensee's request, Licensor will provide the Products through a Netscape
authorized reseller selected by Licensee ("Reseller") provided Licensee
independently (i) seeks out the Reseller and (ii) negotiates pricing with the
Reseller.
LICENSOR LICENSEE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President, Finance & Corporate Controller Title: Senior Vice President of Marketing & Bus. Dev.
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Date: 01/31/99 Date: January 31, 1999
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AGREEMENT CONSISTS OF:
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1. Corporate End User Software Order Form
2. Product Schedule
3. General License Terms and Conditions
4. Product Specific License Terms and Conditions
REVIEWED BY
NETSCAPE LEGAL
Initial
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GENERAL LICENSE TERMS & CONDITIONS
REDISTRIBUTION OR RENTAL NOT PERMITTED
These General Terms apply to all Netscape products
BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE SOFTWARE PRODUCTS
LISTED ON THE PRODUCT SCHEDULE, QUOTATION AND OFFER FORM, OR INVOICE (THE
"PRODUCTS"), THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT(S) ("LICENSEE") IS
CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE
DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-
ACCEPTANCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL OR USE THE SOFTWARE.
(Depending on the method of acquisition the licensed Products will be listed on
a Product Schedule, Quotation and Offer form, or invoice. The term "Product
Schedule" shall be used herein to refer to whichever of these documents is
applicable.).
1. Agreement. The "Agreement" governing Licensee's use of the Product(s)
consists of these General License Terms and Conditions ("General Terms"), each
set of product specific license terms and conditions which follow ("Product
Terms"), and, if provided, the (i) Corporate End User Order Form and product
Schedule or (ii) Quotation and Offer form, as applicable. If more than one
license agreement was provided for this Product, and the terms vary, the order
of precedence of those license agreements is as follows: a signed agreement, a
license agreement available for review on the Netscape website, a printed or
electronic agreement that states clearly that it supersedes other agreements, a
printed agreement provided with a Product, an electronic agreement provided with
a Product. The General Terms apply to all Products on the Product Schedule, and
each set of Product Terms applies only to the individual Products identified in
the Product Terms sheet. All Products are licensed independently of one another.
As used in this Agreement, for residents of Europe, the Middle East or Africa,
"Netscape" shall mean Netscape Communications Ireland Limited; for residents of
Japan, "Netscape" shall mean Netscape Communications (Japan), Ltd.; for
residents of all other countries, "Netscape" shall mean Netscape Communications
corporation. In this Agreement "Licensor" shall mean Netscape except: (i) if
Licensee acquired the Product as a bundled component of a third party product or
service, then such third party shall be Licensor; or (ii) if any third party
software is included with a Product without any license agreement in any form
(no license in the installer, as an electronic file or in the box in printed
form), then the use of such third party software shall be governed by this
Agreement, and the term "Licensor," with respect to such third party software,
shall mean the copyright holder of that software and not Netscape. If a third
party license agreement is provided, then the use of the third party software
product shall be governed by such third party license agreement and not by this
Agreement. Any third party software provided together with a Product is included
for use at Licensee's option.
2. Term and Termination. This Agreement shall remain in effect until
terminated in accordance with this Section or as otherwise provided in this
Agreement. Licensee may terminate this Agreement at any time by written notice
to Licensor. Licensor may terminate this Agreement immediately in the event of
(i) any breach of Section 6 or 8 by Licensee or (ii) a material breach by
Licensee which is not cured within 30 days of written notice by Licensor. Upon
termination, Licensee shall discontinue use and certify as destroyed, or return
to Licensor, all copies of the Product(s). Licensee's obligation to pay accrued
charges and fees shall survive any termination of this Agreement. Within 30
calendar days after termination of the Agreement, Licensee shall pay to Licensor
all sums then due and owing.
3. Fees and Taxes. The license fees due hereunder are exclusive of any
applicable taxes. Netscape shall be responsible for and shall reimburse Licensee
for, and promptly pay, all applicable national, state
and local taxes, value added or sales taxes, and other taxes pertaining to
payments except taxes based on Licensee's income. If Netscape in good faith
contests any tax that is so payable or reimbursable by Netscape, Licensee shall
cooperate in good faith in the contest at Netscape's expense. Licensee shall
pass on to Netscape any tax refund and interest related thereto, received by
Licensee with respect to Licensee's previous payment or reimbursement of
applicable taxes and interest related thereto hereunder, if any.
4. Reports; Records; Audit. Licensee shall provide Licensor with quarterly
reports containing the number and type of Product copied for license pursuant to
this Agreement. Licensee shall maintain accurate records as necessary to verify
compliance with this Agreement. Licensor may conduct one or more audits to
verify such compliance. Audits will be conducted during normal business hours.
All audits shall be conducted at Licensor's expense unless the results establish
that Licensee has underpaid Licensor by more than 5% of the amount actually due,
in which case Licensee shall pay all amounts due and bear the expense of the
audit. Licensee acknowledges that Licensor is required by its suppliers of the
relational database product provided with certain Products to disclose, and
Licensee agrees that Licensor may disclose, the make/model, operating system and
number of CPUs of the Designated System(s), as defined in the Product Schedule.
5. Proprietary Rights. Title, ownership rights, and intellectual property
rights in the Product(s) shall remain in Netscape and/or its suppliers. Licensee
acknowledges such ownership and intellectual property rights and will not take
any action to jeopardize, limit or interfere in any manner with Netscape's or
its suppliers' ownership of or rights with respect to Product(s). The Product(s)
are protected by copyright and other intellectual property laws and by
international treaties. Title and related rights in the content accessed through
the Products(s) are the property of the applicable content owner and are
protected by applicable law. The license granted under this Agreement gives
Licensee no rights to such content.
6. Restrictions. Except as otherwise expressly permitted in this Agreement,
Licensee may not: (i) modify or create any derivative works of any Product or
documentation, including translation or localization (Licensee's code written to
published APIs (application programming interfaces) for the Product(s) shall not
be deemed derivative works); (ii) decompile, disassemble, reverse engineer, or
otherwise attempt to derive the source code for any Product (except to the
extent applicable laws specifically prohibit such restriction); (iii)
redistribute, encumber, sell, rent, lease, sublicense, use the Products in a
timesharing or service bureau arrangement, or otherwise transfer rights to any
Product; (iv) copy any Product (except for an archival copy which must be stored
on media other than a computer hard drive) or documentation (copies shall
contain all the notices regarding proprietary rights that were contained in the
Product(s) originally delivered by Licensor); (v) remove or alter any trademark;
logo, copyright or other proprietary notices, legends, symbols or labels in the
Product(s); (vi) modify any header files or class libraries in any Product;
(vii) create or alter tables or reports relating to the database portion of the
Product (except as necessary for operating the Product); (viii) publish any
results of benchmark tests run on any Product to a third party without
Netscape's prior written consent; (ix) use the database provided for use with
any Product except in conjunction with the relevant Product; or (x) use any
Product on a system with more CPUs than the number licensed, by more Users than
have been licensed, on more computers than the number licensed, or by more
developers than the number licensed, as applicable.
7. Limited Warranty. Provided Licensee has paid the applicable license fees
for the Product(s), for 90 days after the date of shipment to Licensee (date of
shipment meaning either the date Licensor shipped the Product on media or the
date on which Licensee downloaded the Product from an authorized Netscape
download site) of each Product (the "Warranty Period"), Licensor warrants that
(i) the media on which the Product is delivered will be free of defects in
material and workmanship under normal use; and (ii) the unmodified Product, when
properly installed and used, will substantially achieve the
functionality described in the applicable documentation. THE EXPRESS WARRANTY
SET FORTH HEREIN CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE PRODUCT(S).
LICENSOR AND ITS SUPPLIERS DO NOT MAKE, AND HEREBY EXCLUDE, ALL OTHER
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN
FACT OR BY OPERATION OF LAW) WITH RESPECT TO ANY PRODUCT OR TEST DATA INCLUDED
IN ANY PRODUCT. LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF
TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF
THIRD PARTIES' RIGHTS. LICENSOR AND ITS SUPPLIERS DO NOT WARRANT THAT THE
PRODUCT(S) WILL MEET LICENSEE'S REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS
WHICH MAY BE SELECTED BY LICENSEE OR THAT THE OPERATION OF THE PRODUCT(S) WILL
BE SECURE, ERROR-FREE OR UNINTERRUPTED AND LICENSOR HEREBY DISCLAIMS ANY AND ALL
LIABILITY ON ACCOUNT THEREOF. THE SECURITY MECHANISMS IMPLEMENTED BY THE
PRODUCT(S) HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE
PRODUCT(S) SUFFICIENTLY MEET LICENSEE'S REQUIREMENTS. LICENSOR AND ITS SUPPLIERS
SHALL HAVE NO OBLIGATIONS UNDER THE WARRANTY PROVISIONS SET FORTH HEREIN IF
LICENSEE SUBJECTS THE MEDIA TO ACCIDENT OR ABUSE; ALTERS, MODIFIES OR MISUSES
THE PRODUCT(S); USES THE PRODUCT(S) INCORPORATED, ATTACHED OR IN COMBINATION
WITH NON-NETSCAPE SOFTWARE OR ON ANY COMPUTER SYSTEM OTHER THAN THAT FOR WHICH
THE PRODUCT IS INTENDED; OR LICENSEE VIOLATES THE TERMS OF THIS AGREEMENT. THE
EXTENT OF LICENSOR'S DUTY UNDER THIS LIMITED WARRANTY SHALL BE THE CORRECTION OR
REPLACEMENT ANY PRODUCT WHICH FAILS TO MEET THIS WARRANTY. IN THE EVENT OF A
BREACH OF THIS WARRANTY, AND IF LICENSEE PROVIDES LICENSOR WITH A WRITTEN REPORT
DURING THE WARRANTY PERIOD, LICENSOR WILL USE REASONABLE EFFORTS TO CORRECT OR
REPLACE PROMPTLY, AT NO CHARGE TO LICENSEE, THE ERRORS OR FAILURES. THIS IS
LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY EXPRESS OR IMPLIED
WARRANTIES HEREUNDER. NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS DO NO
ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES; HOWEVER, THE EXCLUSIONS OF
LICENSOR'S WARRANTY IN THIS LIMITED WARRANTY SECTION SHALL APPLY TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW. THIS AGREEMENT DOES NOT EXCLUDE ANY
WARRANTIES THAT MAY NOT BE EXCLUDED BY LAW AND ANY LIABILITY ARISING HEREUNDER
SHALL BE LIMITED TO THE CORRECTION OR REPLACEMENT OF THE APPLICABLE PRODUCT, AT
LICENSOR'S OPTION.
8. Confidentiality. "Confidential Information" shall mean this Agreement,
if the terms have been negotiated, pricing information, and all information a
party discloses to the other which has been either (i) characterized in writing
as confidential at the time of its disclosure or (ii) orally characterized as
confidential at the time of disclosure, except for information which the
receiving party can demonstrate: (a) is previously rightfully known to the
receiving party without restriction on disclosure; (b) is or becomes, from no
act or failure to act on the part of the receiving party, generally known in the
relevant industry or public domain; (c) is disclosed to the receiving party by a
third party as a matter of right and without restriction on disclosure; or (d)
is independently developed by the receiving party without access to the
Confidential Information. Each receiving party shall at all times, both during
the term hereof and for a period of at least 3 years after termination, keep in
confidence all such Confidential Information using a standard of care such party
uses with its own information of this nature, but in no event less than
reasonable care. The receiving party shall not use any Confidential Information
other than in the course of its permitted activities hereunder. Without the
prior written consent of the disclosing party, the receiving party shall not
disclose any Confidential Information except on a "need to know" basis to an
employee or contractor under binding obligations or confidentiality
substantially similar to those set forth
herein. If a receiving party is legally compelled to disclose any of the
disclosing party's Confidential Information, then, prior to such disclosure, the
receiving party will (i) assert the privileged and confidential nature of the
Confidential Information and (ii) 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 such protection is not obtained, the receiving party
shall disclose the Confidential Information only to the extent necessary to
comply with the applicable legal requirements.
9. Limitation of Liability. EXPECT FOR LICENSOR'S OBLIGATIONS AND LIABILITY
UNDER SECTION 18 OF THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (OR ANY
DIRECT DAMAGES WITH RESPECT SOLELY TO ANY DATABASE PRODUCT PROVIDED WITH THE
PRODUCT) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OR GOODWILL, WORK STOPPAGE, COMPUTER
FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN
IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE
THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE,
LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT
EXCEED IN THE AGGREGATE THE SUM OF THE LICENSE FEES LICENSEE PAID TO LICENSOR
FOR THE PRODUCT GIVING RISE TO SUCH DAMAGES, NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL
INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW
PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO
THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. LICENSOR IS NOT RESPONSIBLE
FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY
THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH
CONTENT. ANY DATA INCLUDED IN A PRODUCT UPON SHIPMENT FROM LICENSOR IS FOR
TESTING USE ONLY AND LICENSOR HEREBY DISCLAIMS ANY AND ALL LIABILITY ARISING
THEREFROM. THE EXTENT OF LICENSOR'S LIABILITY FOR THE LIMITED WARRANTY SECTION
SHALL BE AS SET FORTH THEREIN.
10. Encryption. If Licensee wishes to use the cryptographic features of any
Product, then Licensee may need to obtain and install a signed digital
certificate from a certificate authority or a certificate server in order to
utilize the cryptographic features. Licensee may be charged additional fees for
certification services. Licensee is responsible for maintaining the security of
the environment in which the Product is used and the integrity of the private
key file used with the Product. In addition, the use of digital certificates is
subject to the terms specified by the certificate provider, and there are
inherent limitations in the capabilities of digital certificates. If Licensee is
sending or receiving digital certificates, Licensee is responsible for
familiarizing itself with and evaluating such terms and limitations. If the
Product is a version with FORTEZZE, Licensee will need to obtain PC Card Readers
and FORTEZZA Crypto Cards from another vendor to enable the FORTEZZE features.
11. Export Control. Licensee agrees to comply with all export laws and
restrictions and regulations of any United States or foreign agency or
authority, and not to export or re-export any Product or any direct product
thereof in violation of any such restrictions, laws or regulations, or without
all necessary approvals. As applicable, each party shall obtain and bear all
expenses relating to any necessary licenses and/or exemptions with respect to
its own export of the Product from the U.S. Licensee acknowledges
that neither the Product nor the underlying information or technology may be
downloaded or otherwise exported or re-exported (i) into Cuba, Iran, Iraq,
Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade
sanctions covering the Product, to individuals or entities controlled by such
countries, or to nationals or residents of such countries other than nationals
who are lawfully admitted permanent residents of countries not subject to such
sanctions; or (ii) to anyone on the U.S. Treasury Department's list of Specially
Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table
of Denial Orders. By downloading or using the Product, Licensee represents and
warrants that it complies with these conditions.
If the Product(s) are identified as being not-for-export (for example, on the
box, media or in the installation process), then, unless Licensee has an
exemption from the United States government, the following applies: EXCEPT FOR
EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE PRODUCT(S) AND ANY
UNDERLYING ENCRYPTION TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES
OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT
REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL
OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE
SOFTWARE, LICENSEE AGREES TO THE FOREGOING AND WARRANTS THAT IT IS NOT A
"FOREIGN PERSON" OR UNDER THE CONTROL OF A "FOREIGN PERSON."
12. High Risk Activities. The Product(s) are not fault-tolerant and are not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail-safe performance, such as in
the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapon systems,
in which the failure of any Product could lead directly to death, personal
injury, or severe physical or environmental damage ("High Risk Activities").
Accordingly, Licensor and its suppliers specifically disclaim any express or
implied warranty of fitness for High Risk Activities. Licensee agrees that
Licensor and its suppliers will not be liable for any claims or damages arising
from the use of any Product in such applications.
13. U.S. Government End Users. The Product is a "commercial item," as that
term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial
computer software" and "commercial computer software documentation," as such
terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R.
12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S.
Government End Users acquire the Product with only those rights set forth
herein.
14. Purchase Orders. Licensee shall place written purchase orders for
additional unit licenses. If Licensee is purchasing such licenses from Licensor,
the purchase orders shall include the following information: (i) reference to
the Agreement number on the Order Form, if applicable; (ii) description of each
Product ordered, quantity and price; (iii) shipping instructions and
destination; (iv) requested delivery date; (v) bill to address; and (vi)
restatement of the payment terms on the Product Schedule, if applicable.
15. Notices. Any notice required or permitted hereunder shall be in English,
in writing and shall be deemed to be properly given upon the earlier of (i)
actual receipt by the addressee (including facsimile or e-mail) or (ii) 5
business days after deposit in the mail, postage prepaid, when mailed by
registered or certified airmail, return receipt requested, or (iii) 2 business
days after being sent via private industry courier to the respective parties at
the addresses set forth in the Order Form or to such other person or address as
the parties may designate in a writing. Notices to Licensor shall be to the
attention of the
Legal Department, at Netscape Communications Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇.
16. Miscellaneous. (a) This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior and contemporaneous agreements and communications, whether oral or
written, between the parties relating to the subject matter hereof, and all past
courses of dealing or industry custom. The terms and conditions hereof shall
prevail exclusively over any written instrument submitted by Licensee, including
purchase order, and Licensee hereby disclaims any terms therein, except for
terms therein relating to product description, quantity thereof, pricing
therefor, shipment and delivery. (b) This Agreement may be amended only by a
writing signed by an executive vice president of Netscape and a duly authorized
representative of Licensee. (c) Except to the extent applicable law, if any,
provides otherwise, this Agreement shall be governed by the laws of the State of
California, U.S.A., excluding its conflict of law provisions. (d) Any dispute
hereunder will be negotiated between the parties commencing upon written notice
from one party to the other. Settlement discussions and materials will be
confidential and inadmissible in any subsequent proceeding without both parties'
written consent. If the dispute is not resolved by negotiation within 45 days
following such notice, the parties will refer the dispute to non-binding
mediation conducted by JAMS Endispute in Santa ▇▇▇▇▇ County, California (the
"Venue"). The parties will share the costs of mediation. If the dispute is not
resolved after 45 days of mediation, the parties will refer the dispute to
binding arbitration by JAMS Endispute in the Venue. The results of any
arbitration will be final and non-appealable, except that either party may
petition any court of competent jurisdiction in the Venue to review any decision
relating to intellectual property matters (including the scope of license
rights) vacating or modifying erroneous conclusions of law or findings of fact
not supported by substantial evidence. The arbitrator may fashion any legal or
equitable remedy except punitive or exemplary damages, which both parties hereby
waive. The arbitrator will render a written decision, which may be entered in
and enforced by any court of competent jurisdiction, but which will have no
preclusive effect in other matters involving third parties. The losing party
will pay the costs of the arbitration and the reasonable legal fees and expenses
of the prevailing party, as determined by the arbitrator. The parties will
jointly pay arbitration costs pending a final allocation by the arbitrator. At
any point in the dispute resolution process, either party may seek injunctive
relief preserving the status quo pending the outcome of that process. Except as
noted, the parties hereby waive any right to judicial process. The U.S.
Arbitration Act and JAMS Endispute rules will govern the arbitration process.
Absent fraudulent concealment, neither party may raise a claim more than 3 years
after it arises or any shorter period provided by applicable statutes of
limitations. Notwithstanding the foregoing, Licensor reserves the right to
invoke the jurisdiction of any competent court to remedy or prevent violation of
any provision in the Agreement relating to payment, Netscape Confidential
Information or Netscape intellectual property. (e) 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. (f) This Agreement shall
not be governed by the United Nations Convention on Contracts for the
International Sale of Goods. (g) If any provision in this Agreement should be
held illegal or unenforceable by a court having jurisdiction, such provision
shall be modified to the extent necessary to render it enforceable without
losing its intent, or severed from this Agreement if no such modification is
possible, and other provisions of this Agreement shall remain in full force and
effect. (h) The controlling language of this Agreement is English. If Licensee
has received a translation into another language, it has been provided for
Licensee's convenience only. (i) A waiver by either party of any term or
condition of this Agreement or any breach thereof, in any one instance, shall
not waive such term or condition or any subsequent breach thereof. (j) The
provisions of this Agreement which require or contemplate performance after the
expiration or termination of this Agreement shall be enforceable notwithstanding
said expiration or termination. (k) Licensee may not assign or otherwise
transfer by operation of law or otherwise this Agreement or any rights or
obligations herein without the prior express written consent of Licensor, which
will not be unreasonably withheld. (l) This Agreement shall be
binding upon and shall inure to the benefit of the parties, their successors and
permitted assigns. (m) If applicable, this Agreement may be executed in
counterparts or by facsimile, each of which shall be deemed an original, and all
of which together shall constitute one and the same agreement. (n) Neither
party shall be in default or be liable for any delay, failure in performance
(excepting the obligation to pay) or interruption of service resulting directly
or indirectly from any cause beyond its reasonable control. (o) The
relationship between Licensor and Licensee is that of independent contractors
and neither Licensee nor its agents shall have any authority to bind Licensor in
any way. (p) Netscape and its suppliers are direct and intended third party
beneficiaries of this Agreement. (q) If any Netscape professional services are
being provided, then such professional services are provided pursuant to the
terms of a separate Professional Services Agreement between Netscape and
Licensee. The parties acknowledge that such services are acquired independently
of the Products licensed hereunder, and that provision of such services is not
essential to the functionality of such Products. (r) The headings of the
sections of this Agreement are used for convenience only and shall have no
substantive meaning. (s) Licensor may use Licensee's name in any customer
reference list or in any press release issued by Licensor regarding the
licensing of the Product and/or provide Licensee's name and the names of the
Products licensed by Licensee to third parties.
17. Licensee Outside the U.S. If Licensee is located outside the U.S., then
the provisions of this Section shall apply. (i) If Licensee is purchasing
licenses directly from Netscape and if Netscape and Licensee are not located in
the same country, then, if any applicable law requires Licensee to withhold
amounts from any payments to Netscape hereunder Licensee shall effect such
withholding, remit such amounts to the appropriate taxing authorities and
promptly furnish Netscape with tax receipts evidencing the payments of such
amounts, and the sum payable by Licensee upon which the deduction or withholding
is based shall be increased to the extent necessary to ensure that, after such
deduction or withholding, Netscape receives and retains, free from liability for
such deduction or withholding, a net amount equal to the amount Netscape would
have received and retained absent such required deduction or withholding. (ii)
Les parties aux presentes confirment leur volonte que cette convention de meme
que tous les documents y compris tout avis qui s'v rattache, soient rediges en
langue anglaise. (translation: "The parties confirm that this Agreement and all
related documentation is and will be in the English language.") (iii) Licensee
is responsible for complying with any local laws in its jurisdiction which might
impact its right to import, export or use the Product(s), and Licensee
represents that it has complied with any regulations or registration procedures
required by applicable law to make this license enforceable.
18. Indemnity. (a) Netscape shall defend or settle, at its option, any
action brought against Licensee to the extent it is based on a claim that use or
reproduction by Licensee of the Netscape-owned portion of the Product hereunder
directly infringes any valid patent, copyright or trade secret. Netscape will
pay resulting costs, damages and legal fees finally awarded against Licensee in
such action which are attributable to such claim provided that: (i) Licensee
promptly notifies Netscape in writing of any such claim; (ii) Netscape has sole
control of the defense and all related settlement negotiations; and (iii)
Licensee cooperates with Netscape, at Netscape's expense, in defending or
settling such claim. Should a Product become, or be likely to become in
Netscape's opinion, the subject of infringement of such copyright or trade
secret, Netscape may (I) procure for Licensee the right to continue using the
same or (II) replace or modify it to make it non-infringing. Netscape shall have
no obligation or liability for, and Licensee shall defend, indemnify and hold
Netscape harmless from and against, any claim based upon:
(A) use of other than then-current, unaltered version of the product,
unless the infringing portion is also in the then-current,
unaltered release;
(B) use, operation or combination of the Product with non-Netscape
programs, data, equipment or documentation if such infringement
would have been avoided but for such use, operation or combination;
(C) Licensee's or its agent's activities after Netscape has notified
Licensee that Netscape believes such activities may result in such
infringement;
(D) compliance with Licensee's designs, specifications or instructions
for the Product;
(E) any modifications or marking of the Product not specifically
authorized in writing by Netscape;
(F) any authorized use of any Netscape intellectual property;
(G) any content provided by Licensee and/or any material to which users
can link through such content; or
(H) third party software.
The foregoing states the entire liability of Netscape and the exclusive remedy
of Licensee with respect to infringement of any intellectual property right,
whether under theory of warranty, indemnity or otherwise.
NETSCAPE SERVER PRODUCT TERMS AND CONDITIONS
These Terms apply to SuiteSpot, Calendar Express, Calendar Server, Certificate
Server, Collabra Server, Compass Server, Content Management Server (part of
PublishingXpert), Delegated Administrator, Directory Server, Enterprise Server,
FastTrack Server, Messenger Express, Messaging Server, Process Manager & Proxy
Server. These terms do not apply to Hosting Edition products. For Hosting
Edition products see the Hosting Edition Terms and Conditions.
1. Agreement. The Agreement governing Licensee's use of the Product(s)
identified above ("Server Products") consists of these Netscape Server Product
Terms and Conditions, the General Terms, and, if provided, the (i) Corporate End
User Order Form and Product Schedule or (ii) Quotation and Offer form, as
applicable.
2. License Grant. Subject to payment of applicable license fees, Licensor
grants Licensee a non-exclusive and non-transferable license to use the
executable code version of the Server Product(s) and accompanying documentation
in the territory of use allowed under the license fee paid by Licensee (the
"Territory"), according to the terms and conditions of this Agreement. Licensee
is only entitled to a refund if one is offered by Licensee's place of purchase.
Licensee may:
A. For Packaged Products:
a. Allow access to the functionality and/or services provided by the
Server Products(s) by a maximum of fifty Users, unless (i) Licensee has paid
fees for access by additional Users as reflected in the Product Schedule, (ii)
the information in the User Table (defined below) indicates access by more or
fewer Users is allowed for a specific Server Product, (iii) the Server Product
is Netscape FastTrack Server which is licensed on a per copy unlimited User
basis, or (iv) Licensee is using the PM Builder component of Netscape Process
Manager, which is licensed on a per developer basis. "Users" is defined for each
Server Product in the User Definitions table found at the following URL:
▇▇▇▇://▇▇▇▇,▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇ (the "User Table").
License fees must be paid for all Users who have access to the Server Product's
services, not just the number who may access those services concurrently.
Additional fees are required prior to providing access to additional Users (with
the exceptions noted above). It is recommended that Licensee print out a copy of
the User Table page on the date of purchase confirmation of the information
provided therein.
b. Install the Server Product(s) on only one computer on a single
platform unless Licensee has paid fees for use by additional Users. In that
case, for Server Products that are licensed on aper-User basis, Licensee may
install one additional copy for every 50 additional licensed Users, except that
if the User Table provides different information, Licensee may make the number
of copies indicated in the User Table. If a relational database product is
provided with a Server Product, Licensee may only install one copy of such
relational database, even if additional Users have been licensed. See the
Relational Database Rights and Limitations section below for more information on
database use. If Licensee has purchased a license for SuiteSpot software,
Licensee may install each included Server Product on a different computer
and/or platform. Licensee also may switch its installation from one platform to
another. It is recommended that Licensee print out a copy of the User Table page
on the date of purchase as confirmation, along with the Product Schedule, of the
number of copies that may be installed.
B. For Charters Program Licenses (or a successor volume licensing program):
a. Allow access to the functionality and/or services provided by the
Server Product(s) by the number of Users from whom Licensee has paid license
fees, as identified on Licensee's Certificate of Authenticity, unless (i)
Licensee has purchased a license at special pricing exclusively for extranet
Users, in which case Licensee may permit access to the specified functionality
and services only by Users who are not employees or full-time independent
contractors, and only by the number of Users specified on the Product Schedule,
(ii) Licensee has purchased a Search and Browse only, per CPU license for
Netscape Compass Server (available only for internet and extranet use), in which
case Compass Server may not be installed on a computer system with more CPUs
than the number licensed, no use of My Compass is allowed, and unlimited user
access may be granted for searching and browsing, (iii) Licensee has purchased
an unlimited User license for a Server Product for which such licenses are
available or (iv) Licensee is using the PM Builder component of Netscape Process
Manager, which is licensed on a per developer basis. When licensing SuiteSpot,
the number of Users for whom license fees must be paid is the largest number of
Users who will have access to any of the included Server Products. Additional
fees are required prior to providing access to additional Users (with the
exceptions noted above). Extranet-only licenses are not available for the
provision of hosting services, such as ISP services.
b. If the Server Product is SuiteSpot, reproduce, without change, the
number of copies of the Server Products in SuiteSpot necessary to support the
number of Users on Licensee's Certificate of Authenticity. For individual Server
Product(s) that are licensed on a per-User basis, one copy may be installed for
every 50 licensed Users, except that if the User Table provides different
information, Licensee may make the number of copies indicated in the User Table.
However, if a relational database product is provided with a Server Product,
Licensee may only make one copy of such relational database, even if additional
Users have been licensed. See the Relational Database Rights and Limitations
section below for more information on database use.
c. Make, without change, the number of copies of the documentation
provided with the Server Product(s) necessary to support the Server Product(s)
copied.
d. Sublicense the right to use and reproduce the Server Product(s) and
related documentation under this Agreement to subsidiaries of Licensee provided
Licensee is responsible for each such entity complying with the terms of this
Agreement.
C. For Both A and B:
a. Use the "Powered by Netscape SuiteSpot" logo (the "Logo") on its
website (internal or external) provided (i) the site operates on or utilizes any
Server Product or combination of Server Products and (ii) Licensee agrees to the
applicable terms and conditions of use described in the Logo usage guidelines
found at:
▇▇▇▇://▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇.▇▇▇▇. This
license does not grant Licensee any rights to use the Logo on products or
services. It also does not grant Licensee any rights to use other Netscape
trademarks or logos.
b. If the Server Product(s) contain header files, copy and use the
header files solely to create and distribute programs to interface with the
server APIs.
c. If the Server Product(s) contain Java classes other than classes
which are part of the Server Product's programming interfact ("Sample Java
Classes"), copy and use the Sample Java Classes solely to create and distribute
programs to interface with Netscape products.
d. If applicable, run multiple instances of the Netscape Resource
Description Server and Netscape Compass Server software for content robotting on
multiple computers.
e. If applicable, install and run multiple instances of the Netscape
Mission Control Console client on multiple computers and platforms for remote
and distributed administration of servers and applications.
f. If applicable, run the server-side JavaScript compiler on an
unlimited number of computers.
g. If the Server Product is or includes Netscape Messenger Express 3.5
("ME 3.5"), modify ME 3.5 to meet Licensee's needs. The modified version may
only be used by Licensee. Any modified code will not be supported or warranted
by Licensor. ME 3.5, including any modified versions created by Licensee, may
only be used in conjunction with Netscape Messaging Server any may not be used
with any third party server product. Licensee may allow use of ME 3.5 by the
same number of Users licensed for use of Messaging Server. If Licensee wishes to
submit modifications to ME 3.5 to Netscape for possible inclusion in a future
version of ME 3.5, Licensee must to the following URL for submission
information, and must agree to the license terms posted there. The ME submission
site is found at ▇▇▇▇://▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇.▇/▇▇▇▇▇▇▇.▇▇▇▇.
h. If the Server Product is or includes Netscape Calendar Express, use
Netscape Calendar Express only in conjunction with Netscape Calendar Server.
Netscape Calendar Express may not be used with any other server product.
Licensee may allow use of Netscape Calendar Express by the same number of Users
licensed for use of Calendar Server.
i. Use the Netscape Directory Server or Netscape Enterprise Server
software bundled or embedded with a Server Product, if any, only in conjunction
with that Server Product, and not with other software products or on a stand-
alone basis. In addition, in the case of Netscape Process Manager, the only
information that may be loaded into the embedded Netscape Directory Server
software is (i) the automatically generated process definitions, (ii) user data
provided by Netscape with Netscape Process Manager for testing and evaluation
purposes and (iii) user information to be used to resolve groups and roles by
Process Manager. All other Netscape Process Manager user information must be
stored in a separate LDAP directory product. Licensee may use Netscape Directory
Server copies that are provided as the embedded directory service component of a
third party software product or application only for such embedded directory
services and not to provide directory services for other software products or to
provide stand-alone directory services (unless the license provided with the
third party product containing an embedded Netscape Directory Server explicitly
grants additional rights).
j. Use any Netscape communicator software provided with a Server Product
in accordance with the Netscape Client Product Terms and Conditions.
k. Use the Informix database in Netscape Certificate Server only on a
single computer upon which Certificate Server is installed, and only as a
repository for Certificate Server's data. The Informix database may be accessed
only by tools intended for use with Certificate Server. If the Server Product is
SuiteSpot with an Informix database, Licensee may use the Informix database for
additional purposes as further described below in the Relational Database rights
and Limitations section.
l. If the Server Product(s) contain a Visigenic VisiBroker development
component, use the Visigenic VisiBroker development component on no more than
one computer by no more than one developer. The single allowed developer may use
both VisiBroker for C++ and VisiBroker for Java.
m. If the Server Product(s) contain a Visigenic runtime component, use
the Visigenic runtime component to invoke object implementations, provided that
the invoking application (i) is one or more components of the Server Product or
(ii) interoperates with and runs on the same computer as the Server Product.
D. Relational Database Rights and Limitations. If the Server Product is
SuiteSpot with an included database product, then the following rights and
limitations govern Licensee's use of the included database:
a. Informix Database. If the SuiteSpot software includes an Informix
database, the Informix database may be used only (i) for the purpose of
developing Netscape web server applications ("Web Server Applications"); and
(ii) to reproduce and distribute a single copy of the runtime version of the
Informix database for use solely as a component of a Web Server application and
only on a single computer for up to 32 connections (the "Deployment System"). A
"Connection" means a computer process generated by the designated computer to
service on-line users of the Web Server Applications. A single connection may
support a multitude of users, the exact number of which depends on the
particular circumstances. Multiple Web Server Applications may reside on the
Deployment System, provided that all such applications access only the single
copy of the Informix database and all Web Server Applications together use no
more than 32 connections. Licensee may use the Informix database to develop any
number of Web Server applications, but once Licensee has distributed a single
runtime version of the Informix database in any one Web Server Application,
Licensee may not distribute the Informix database in another copy of that Web
Server Application or as part of any subsequent Web Server Application. In order
to provide a database product as part of Licensee's Web Server Application
either Licensee must purchase a separate database product license for each
recipient, or each recipient to whom Licensee distributes a Web Server
Application must license its own copy of a database product. Licensee may not
establish direct connections with the Informix database other than through
Enterprise Server software of use the Informix database for any purpose other
than developing and executing Web Server Applications.
b. Oracle Database. If the SuiteSpot software includes an Oracle
database, Licensee is licensed to run the Oracle database only on a single
processor on the same computer upon which Enterprise Server software is
installed for internal business purposes, and only permitting access by up to
ten named users. The Oracle database may be used only for the purpose of
developing Web Server Applications, and for no other purpose. Licensee may not
distribute the Oracle database with Web Server Applications. In order to provide
a database product as part of Licensee's Web Server Application either Licensee
must purchase a separate database product license for the each recipient, or
each recipient to whom Licensee distributes a Web Server Application must
license its own copy of a database product. Licensee may not establish direct
connections with the Oracle database other than through Enterprise Server
software.
c. Fees. License fees for most Server Products are based on the number
of Users accessing certain functionally and/or services of the Server Product.
User-based licensing applies to these server products. Detailed information
regarding user-based and other types of licensing and license fees can be found
at the User Table page. It is recommended that Licensee print out a copy of the
User Table page on the date of purchase as confirmation of the information
therein.