Exhibit 10.1
SOFTWARE LICENSE
AND
DISTRIBUTION AGREEMENT
between
iMALL, INCORPORATED
and
AT&T CORP.
dated as of June 26, 1996
SOFTWARE LICENSE AND
DISTRIBUTION AGREEMENT
In this Software License and Distribution Agreement ("Agreement")
dated 1996 ("Effective Date") iMall Incorporated,("iMALL"), with
offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and AT&T Corp., on behalf of itself and
its Affiliates ("AT&T"), with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, agree as follows:
I. BACKGROUND
AT&T provides an Internet service called AT&T WorldNet Service which is accessed using AT&T-provided client
software.
iMALL develops, manufactures and markets software. On the terms
of this Agreement, iMALL will distribute AT&T WorldNet Service
client software in conjunction with certain of its own software
2. DEFINITIONS
As used in this Agreement:
"Affiliate" means a corporation or other entity that controls, is
controlled by or is under common control with another corporation
or entity, where "control" means the direct or indirect ownership
or control of more than 50% of the stock or other equity interest
entitled to vote for the election of directors or equivalent
governing body.
"AT&T Compatibility Specification" means functional, technical,
performance and other requirements applicable to client software
products that are to be certified as compatible with the Services
under this Agreement, including user interface, quality, and
customer support requirements as set forth in Appendix D, as
such requirements may be amended by AT&T from time to time. AT&T
may update such requirements from time to time.
"AT&T ▇▇▇▇" means a trademark, service ▇▇▇▇, logo, trade name,
or other insignia or symbol owned by AT&T and used in connection
with the Service, including but not limited to the AT&T WORLDNET
▇▇▇▇.
"AT&T WorldNet Software" means the executable version (but not
the source code version) of the client software used for access
to the Service.
"Certification Date" means the date on which iMALL certifies
under Section 5 that an Integrated iMALL Product complies with
the AT&T Compatibility Specification.
"Content" means pre-approved marketing language about AT&T
WorldNet Service, AT&T WorldNet Software, or other related
offering or other related offering provided by AT&T.
"Delivered Member" means a person or entity who (i) has
registered, and has been billed, for the Service using an
Integrated iMALL Product(a "iMALL Member'); (ii) has provided a
unique identifying affinity code to identify the person or
entity as a iMALL Member in the course of registering for the
Service; and (iii) has accrued at least $19.95 of Member Revenue
to AT&T using the Service during the first three months after
registering for the Service.
"Derivative Work" means a revision, modification, translation,
abridgment, condensation or expansion of the AT&T WorldNet
Software or any form in which the AT&T WorldNet Software may be
recast, transferred, transformed, or adapted, which, if prepared
without the consent of AT&T would be a copyright infringement.
TABLE OF CONTENTS
1 BACKGROUND
2 DEFINITIONS
3 GRANT OF LICENSES AND RIGHTS
4 MARKETING, DISTRIBUTION AND CUSTOMER CARE
5 PRODUCTION AND DEVELOPMENT
6 CERTIFICATION AND TESTING
7 PAYMENTS
8 DELIVERABLES AND UPDATES
9 TRADEMARKS, SERVICE MARKS AND TRADE NAMES
10 PROPRIETARY RIGHTS
11 CONFIDENTIAL INFORMATION AND DISCLOSURE
12 REPRESENTATIONS AND WARRANTIES
13 INDEMNIFICATION
14 LIMITATION OF LIABILITY
15 TERM AND TERMINATION
16 GENERAL PROVISIONS
Attachment A - iMALL Products
Attachment B - Trademark and Service ▇▇▇▇
Guidelines
Attachment C - Customer Care Requirements
Attachment D - Performance Specification
Requirements
Attachment E - iMALL Icon
Attachment F - Long Distance Reward Agreement
"Developer Marks" means a trademark, service ▇▇▇▇, logo, trade
name, or other insignia or symbol owned by an entity and used in
connection with a iMALL Product for which such entity has
developed, in whole or in part, a substantial portion of such
iMALL Product.
"Distribute' means any third party which acquires possession of a
iMALL Product from iMALL and distributes such iMALL Product on
tangible media, along with an End User License Agreement.
"Documentation" means those software user manuals, reference
manuals and installation guides, or portions thereof, and any
other material made generally available in connection with
Integrated iMALL Products or the Service, as the same may be
updated from time to time "AT&T Documentation" refers only to
Documentation made available in connection with the AT&T WorldNet
Software or the Service, and "iMALL Documentation" refers only
to Documentation made available in connection with the Integrated
iMALL Products.
"Effective Date" means the date specified in the preamble to this
Agreement.
"End User" means any third party licensed by iMALL or a
Distributor to use the AT&T WorldNet Software.
"iMALL Integration Software" means the software developed and
tested by the iMALL to integrate each Integrated iMALL Product
with the AT&T WorldNet Software (including any and all Updates
to the AT&T WorldNet Software issued during the Term of this
Agreement.
"iMALL ▇▇▇▇" means a trademark, service ▇▇▇▇, logo, trade name,
or other insignia or symbol owned by iMALL and used in connection
with iMALL Products, including but not limited to iMALL, iMALL
logo.
"iMALL Products" means collectively Integrated iMALL Products
and Unintegrated iMALL Products.
"Integrated iMALL Product" means a product listed in Attachment A
together with its Documentation integrated with AT&T WorldNet
Software "Unintegrated iMALL Product" means a product listed in
Attachment A that is not integrated with AT&T WorldNet Software.
"Information" means information of any type, including
descriptions of all inventions, creations, ideas, know-how,
specifications, designs, software, simulations, test results,
reports, drawings, manufacturing processes, algorithms,
improvements, and other developments, whether or not fixed in a
tangible, reproducible medium, and whether or not protected or
protectable by patents, copyrights, mask work rights, trade
secret rights, or other intellectual property rights.
"Inserts" means marketing collateral as AT&T shall specify.
"Member Revenue" means any revenue derived from the Service that
is received by AT&T or an Affiliate, as the case may be, from a
Delivered Member, less rebates and refunds, and less any federal,
state or local taxes based on such fees (except taxes based on
AT&T's net income). In no event shall Member Revenue be deemed
to include unbundled charges for transport, tariffed services not
bundled with the Service, or value added Internet-related
services (e.g., hosting, security, directory, content services,
products, etc.)
"Service" means the AT&T WorldNet Service (or any successor
service) that has dial-up Internet access.
"Switched AT&T LD Customer@ means a person or entity who (i) has
provided a unique identifying code to identify the person or
entity as a iMALL customer and (ii) has switched to AT&T Dial I
long distance service from another interexchange carrier.
"Term" means the period of time from the Effective Date through
the termination of this Agreement as provided in Section 15.
"Territory" means the world.
"Third Party ▇▇▇▇" means a trademark, service ▇▇▇▇, logo, trade
name, or other insignia or symbol owned by an individual or
entity other than iMALL, AT&T or their respective Affiliates.
"Updates" means updates, revisions or other modifications or
enhancements to the AT&T WorldNet Software or iMALL Products.
"Virus" means a time bomb, worm, virus, lock, drop-dead device,
trojan horse or other similar component of software or
electronically stored or transmitted information that, contrary
to the expectation of a user of that software or information, is
intended in any manner to (i) damage, destroy, alter, or
adversely affect the operation of software, firmware, or
hardware, (ii) reveal, damage, destroy, or alter any data or
other information or (iii) permit unauthorized access.
3. GRANT OF LICENSES AND RIGHTS
3.1 Software License Beginning on the Certification
Date, AT&T grants to iMALL a nonexclusive, nontransferable
license to reproduce and distribute, but not electronically, the
AT&T WorldNet Software to Distributors and End Users throughout
the Territory by all means and media now known or hereafter
developed or discovered, subject to the following:
3.1.1 iMALL may reproduce and distribute the AT&T
WorldNet Software only as a component of an Integrated iMALL
Product for use in conjunction with the Service within the
United States.
3.1.2 iMALL and its Distributors may not transmit
the AT&T WorldNet Software to any third party electronically.
3.1.3 iMALL and its Distributors are expressly
prohibited from (i) modifying the AT&T WorldNet Software in any
way except as provided in Section 5.2; and from (ii) marketing or
distributing of the AT&T WorldNet Software other than as a
component of an Integrated iMALL Product.
3.1.4 iMALL may grant its Distributors the right to
grant further sublicenses to reproduce and distribute (but not
transmit electronically) copies of the AT&T WorldNet Software as
a component of an Integrated iMALL Product to other Distributors
in accordance with the provisions herein; and
3.1.5 iMALL, itself or through any Distributor,
shall have the right to grant to End Users the right to use the
AT&T WorldNet Software as a component of an Integrated iMALL
Product for use in conjunction with the Service within the United
States.
3.1.6 iMALL shall have no right to distribute the
AT&T WorldNet Software or Updates thereto on a standalone basis.
3.1.7 This license grant is conditional upon
marketing and integrating the AT&T WorldNet Software as required
herein and all other terms and conditions of this Agreement.
3.2 Documentation License. Commencing on the Certification
Date and subject to the terms and conditions of this Agreement,
AT&T hereby grants and iMALL and its Distributors hereby accepts
a nonexclusive license throughout the Territory to reproduce the
AT&T Documentation as specified in Section 4.4 and, to distribute
copies of the AT&T documentation and modifications thereof as
specified in Section 4.4 to Distributors and End Users solely in
conjunction with the permitted distribution and use of the AT&T
WorldNet Software.
3.3 Non-exclusivity. The parties' rights set forth herein are
non-exclusive. AT&T reserves the right to grant the rights
granted herein to others, and iMALL reserves the right to
integrate third parties' software into any iMALL Products.
3.4 Source Code Restrictions. iMALL agrees (i) not to
decompile, disassemble, or otherwise determine or attempt to
determine source code for the executable code of the AT&T
WorldNet Software or any other software included in the Service
or to create any Derivative Works based upon the AT&T WorldNet
Software, the Service or AT&T Documentation (except as may be
expressly authorized in this Agreement),(ii) that it will
prohibit iMALL Distributors from any of the foregoing actions and
(iii) not to authorize anyone else to do so. iMALL agrees that
no software included in the Integrated iMALL Product shall rely
upon, cooperate with, or share in any way any component of, or
the entirety of, the AT&T WorldNet Software or the Service
without the prior written consent of AT&T or except as provided
in Section 5.2.
3.5 Unintegrated Products. Commencing on the Certification
Date and throughout the remainder of the Term of this Agreement,
iMALL shall not market, distribute, or offer for sale within the
Territory any iMALL Product listed on Attachment A including any
successor products or versions thereof, without integrating the
AT&T WorldNet Software. Notwithstanding the foregoing, nothing
herein shall be construed to require iMALL to destroy any
inventory which is not in compliance with the obligations set
forth herein and which is in existence before the Certification
Date.
3.6 Patents, Audio-Visual Effects. It is understood that the
licenses granted under Section 3.1 and 3.2 above include without
limitation, subject to the same rights and limitations as
provided therein and elsewhere in this Agreement: (i) a
nonexclusive license under any patents, copyrights, trade secret
rights and other intellectual property rights (to the extent such
rights are necessary to exercise the rights granted elsewhere in
this Agreement) of AT&T owned by or licensed to AT&T at any time
during the Term; and (ii) a nonexclusive license (including the
right to publicly perform and publicly display) to pictorial,
graphic and audio-visual works, including, without limitation
icons, screens, text and characters, that are included in, or
result from execution of, the AT&T WorldNet Software (to the
extent such rights are necessary to exercise the rights granted
elsewhere in this Agreement). The foregoing license expressly
excludes any rights to any works obtained from the Internet.
4. MARKETING, DISTRIBUTION, AND CUSTOMER CARE
4.1 Cooperative Promotion. At such times as the parties deem
it mutually beneficial, they shall cooperatively market, sell and
support the Service and Integrated iMALL Products. The parties
shall synchronize their respective marketing plans and efforts,
review schedules and offerings, and take such other actions as
each party deems appropriate to achieve the goals of this
Agreement.
4.2 Co-marketing Activities.
4.2.1 Promotional Offers. AT&T shall offer to all
iMALL Members any and all promotional offers as are made
generally available by AT&T to other Customers through
Integrated iMALL Products during the Term. Such promotional
offers may include terms, conditions and qualifications with
differential pricing based on the customers status as a customer
of other AT&T products and services (such as AT&T Long Distance
Service or AT&T Universal Card).
4.2.2 Future Promotional Activities. Although they are
not obligated to undertake all such activities, the parties
expect, that their co-marketing activities may include, without
limitation, the following: (a) promotions or demonstrations of
the Service and Integrated iMALL Products; (b) endorsements of
the Service and Integrated iMALL Products; (c) joint or
coordinated participation in trade shows, open houses,
conventions and conferences;(d) joint or coordinated
participation in customer information events (such as user group
meetings, seminars); (e) sales support activities (such as
communications, guides, training, videos, tools); (f) joint
promotional offers; (g) advertising; (h) providing each party the
opportunity to establish appropriate relationships with the
other party's sales channels; and (i) public relations
activities (such as press/analyst events, releases, executive
speeches, testimonials, pro-active story development in target
publications). The content of all of the foregoing promotional
materials and activities shall be subject to the prior, written
approval of both parties.
4.3 Service Collateral. iMALL shall insert with all
Integrated iMALL Products sold or offered for sale, such AT&T
Documentation and "Inserts" as AT&T and iMALL shall mutually
agree upon from time to time in accordance with Section 4.4
below. If AT&T provides Inserts, such Inserts shall remain in
their original packaging, as provided by AT&T to iMALL, up to and
including the time of distribution to purchasers of Integrated
iMALL Products.
4.4 Reproduction of Inserts For each different Integrated
iMALL Product:
4.4.1 After an Integrated iMALL Product has
satisfactorily completed the testing and certification procedures
pursuant to Section 6, AT&T shall provide iMALL with Content
iMALL shall use the Content to prepare Inserts, at iMALL's
expense, for inclusion with the Integrated iMALL Product. iMALL
shall supply AT&T with a master copy of such Inserts.
4.4.2 AT&T may request iMALL to revise the Inserts
at any time provided AT&T gives iMALL 30 days notice prior to
such revision appearing in the Integrated iMALL Product.
4.4.3 If iMALL wishes to include marketing language
which is not pre-approved by AT&T in any Insert, such Insert
and/or marketing language must be reviewed and approved by AT&T
before an initial run of actual copies of such Inserts. If AT&T
has not approved such Insert and/or marketing language and iMALL
prepares such Inserts, iMALL shall be liable to AT&T for any
losses, damages, claims, liabilities, which may result from such
Inserts.
4.5 Required Product Packaging Consistent with Attachment B,
iMALL shall be required to identify the AT&T WorldNet Software
and the Service on its product packaging as follows:
4.5.1 the AT&T WorldNet ▇▇▇▇ solely as depicted in
an AT&T approved representation to be provided by AT&T must
appear on the outside front of the Integrated iMALL Product
package, such depiction may be via a sticker;
4.5.2 the AT&T WorldNet ▇▇▇▇ solely
as depicted in an AT&T approved representation to be provided by
AT&T must appear in the operating system Program Group or
functional equivalent; and
4.5.3 the AT&T WorldNet ▇▇▇▇ must not appear any
less prominently than any other Third Party ▇▇▇▇ (excepting
Developer Marks) used on the Integrated iMALL Product or its
packaging.
4.6 Icons. iMALL shall integrate the AT&T WorldNet Software
as a component of each different Integrated iMALL Product in such
a manner as to cause the AT&T WorldNet icon to appear as a
minimized program group icon on the applicable operating systems
in conformity with the Service specification to be provided by
AT&T.
4.7 Customer Care. AT&T will provide all technical support
and customer care functions for End Users of the Service and the
AT&T WorldNet Software and iMALL will provide all technical
support and customer care for users of Integrated iMALL Products.
iMALL agrees to participate with AT&T to develop a cooperative
customer support program to provide seamless customer care
enabling hot transfers between AT&T and iMALL for prompt delivery
of customer care. The cooperative customer support program shall
be continuously updated and revised throughout the Term of this
Agreement in order to deliver support competitive with the
leading providers of comparable services and products. The
cooperative customer support program shall include at least
those program elements set forth in Attachment C.
4.8 Public Announcements and Promotional Materials. AT&T and
iMALL shall cooperate so that each party may issue press releases
concerning this Agreement, provided that each party must approve
any press release prior to its release. The parties shall
cooperate in their development of marketing and sales materials
used to promote the distribution of Integrated iMALL Products.
4.9 First Announcement. The first cooperative marketing
activity under this Agreement shall commence upon the Effective
Date and shall be the development of the announcement of this
Agreement and the plan for associated promotional materials under
this Agreement. AT&T and iMALL shall cooperate to make an
announcement about the execution of this Agreement. Each party
must approve in writing the final content and form of that
announcement. Neither party may make any earlier public
statements or announcements relating to this Agreement. After
the initial announcement is made under this Section 4.9, iMALL
and AT&T shall communicate and cooperate with respect to
advertising and publicity regarding this Agreement and their
relationship, and, subject to Sections 4.8, 10.1 and 10.2, shall
obtain the written consent of the other party before publishing
or releasing any such advertising or publicity. In addition,
iMALL shall obtain the prior written consent of AT&T before
publishing or releasing any advertising or publicity concerning
the Service generally. In promoting the Service and Integrated
iMALL Products, each party shall only make representations
concerning the products and services of the other party based
upon information supplied by such other party.
4.10 Fair Dealing by iMALL. In conducting activities relating
to the Service, iMALL shall, except to the extent any of the
following may be based on information provided by AT&T for
iMALL's use, (i) conduct business in a manner that reflects
favorably at all times on the Service and the good name, goodwill
and reputation of AT&T; (ii) not employ deceptive, misleading or
unethical practices that are or might be detrimental to AT&T or
the Service, including disparagement of AT&T of the Service;
(iii) not make any false or misleading representations with
regard to iMALL or the Service, (iv) not publish or employ, or
cooperate in the publication or employment of, any misleading or
deceptive advertising material; (v) not make any representations,
warranties or guaranties to anyone with respect to the
specifications, features or capabilities of the Service that are
inconsistent with the literature distributed by AT&T, including
all warranties and disclaimers contained in such literature, and
(vi) not engage in illegal or deceptive trade practices with
respect to the Service, such as bait and switch techniques, or
any other practices proscribed under this Section 4.1.0.
4.11 Fair Dealing by AT&T. In conducting activities relating
to iMALL Products, AT&T shall, except to the extent any of the
following may be based on information provided by iMALL for
AT&T's use: (i) conduct business in a manner that reflects
favorably at all times on iMALL Products and the good name,
goodwill and reputation of iMALL, (ii) not employ deceptive,
misleading or unethical practices that are or might be
detrimental to iMALL or iMALL Products, including disparagement
of iMALL or iMALL Products; (iii) not make any false or
misleading representations with regard to iMALL or iMALL
Products; (iv) not publish or employ, or cooperate in the
publication or employment of, any misleading or deceptive
advertising material; (v) not make any representations,
warranties or guaranties to anyone with respect to the
specifications, features or capabilities of iMALL Products that
are inconsistent with the literature distributed by iMALL,
including all warranties and disclaimers contained in such
literature; and (vi) not engage in illegal or deceptive trade
practices with respect to iMALL Products, such as bait and
switch techniques, or any other practices proscribed under this
Section 4.11.
4.12 Terms Relating to Distribution. iMALL agrees to comply
with and shall require its Distributors to comply with all
applicable laws, rules and regulations to preclude the
acquisition of unlimited rights to technical data, software and
documentation provided with the Service to a governmental agency,
and ensure the inclusion of the appropriate "Restricted Right" or
"Limited Rights" notices required by the U.S. Government
agencies.
4.13 No Modification of End User Agreements. iMALL and its
Distributors shall not remove, alter or otherwise interfere with
the distribution and delivery of any End User license agreements
packaged, distributed, or otherwise associated with the AT&T
WorldNet Software and/or Service.
5. PRODUCTION AND DEVELOPMENT
5.1 Integration Development Commencing on the Effective Date
of this Agreement and throughout its Term, iMALL agrees to
develop, test, and integrate as a component of each different
Integrated iMALL Product (iMALL Integration Software) to enable
users of Integrated iMALL Products to access and register for the
Service using the AT&T WorldNet Software contained as a component
of each different Integrated iMALL Product.
5.2 Icon Development. AT&T permits iMALL to develop a iMALL
icon as described in Attachment E, to appear in iMALL's desktop
application software which will take an End User directly to
iMALL's home page using the Service. Such icon shall be labeled
"iMALL Home Page" and shall solely be promoted and used by iMALL
to enable End Users to gain "one-button" access to iMALL's home
page. In no event shall iMALL be permitted to market, promote or
label such icon as a means for obtaining Internet access
generally or in association with the AT&T brand or the AT&T
globe. Nothing herein shall be deemed to authorize iMALL to make
any Derivative Works of the AT&T WorldNet Software or the
Service.
5.3 Compliance with Specification. From the Certification Date
and throughout the Term of this Agreement, iMALL shall cause each
different Integrated iMALL Product to continuously comply with
the AT&T Compatibility Specification Requirements. If at any
time an Integrated iMALL Product is not in compliance with the
AT&T Compatibility Specification Requirements, iMALL shall
promptly use all commercially reasonable efforts to remedy the
noncompliance.
5.4 Cross-License of Information and Materials. To enable
iMALL to perform the development work necessary to successfully
integrate the AT&T WorldNet Software as a component of the
Integrated iMALL Products, the parties agree to provide each
other such information and assistance as may be necessary to
accomplish such integration. Commencing on the Effective
Date of this Agreement and throughout its Term, iMALL hereby
grants to AT&T and AT&T hereby grants to iMALL a nonexclusive,
nontransferable license to use internally only at its own
facilities or the facilities of its third party contractors and
make a reasonable number of copies of the information and
materials furnished solely for the purpose of performing the
parties' obligations under this Agreement. The parties shall
maintain, reproduce and apply the copyright, trademark
and other proprietary rights notices, legends, symbols or labels
of each other and of any suppliers on all copies of such
information and materials furnished to enable integration of the
AT&T WorldNet Software as a component of the Integrated iMALL
Products.
5.5 Inspection. iMALL shall permit AT&T or its agents access
for on-site inspection of each production run of each different
Integrated iMALL Product upon the reasonable discretion of and
notice from AT&T at a mutually convenient time.
6. PERFORMANCE SPECIFICATION
6.1 Requirement for Testing (AT&T WorldNet Software). Within
30 days of receipt of a golden master copy of the initial version
of the AT&T WorldNet Software or any Update thereto, iMALL shall
(i) cause each Integrated iMALL Product to comply in all respects
with the AT&T Compatibility Specification Requirements;:(ii)
complete the preparation of such records required by the AT&T
Compatibility Specification Requirements to document such
compliance; and (iii) certify to AT&T in writing that it has
completed the requirements set forth in clauses (i) and (ii)
herein.
6.2 Requirement for Testing (iMALL Updates) Within 120 days
of the commencement of beta testing of any Update to an
Integrated iMALL Product, but not later than the date on which
iMALL makes Update generally available to Customers. iMALL
shall (i) cause each Integrated 1MALL Product to which the
Update pertains to comply in all respects with the AT&T
Compatibility Specification Requirements; (ii) complete the
preparation of such records required by the AT&T Compatibility
Specification Requirements necessary to document such
compliance; (iii) certify to AT&T in writing that it has
completed the requirements set forth in clauses (i) and (ii)
herein.
6.3 Testing Representations Warranties. Upon submission of
the written notices specified in Sections 6.1(iii) and 6.2(iii)
herein, iMALL represents and warrants that the Integrated iMALL
Product referenced in such notice: (i) is ready for release for
general distribution; (ii) has been adequately and extensively
tested; (iii) has been fixed to correct any major errors
affecting its functionality which have been detected by iMALL or
its customers; (iv) is subject to ongoing support, error
detection and correction; and (v) complies in all respects with
the AT&T Compatibility Specification Requirements. AT&T shall
have the right, but not the obligation, to participate in any
such testing with iMALL.
6.4 Product Shipment. Upon request by AT&T, iMALL will
provide to AT&T for inspection (1) records as specified in
Sections 6.1(ii) and 6.2(ii) and (2) prototype Integrated iMALL
Products iMALL shall provide 5 copies of Integrated iMALL
Products which are in good condition and working order, with
separate copies provided for each medium of reproduction in
which the Integrated iMALL Product is sold. iMALL shall also
provide AT&T with any other documentation or information
reasonably requested by AT&T relating to the operation of the
Integrated iMALL Products and/or the conduct of the activities.
6.5 AT&T Testing. AT&T may randomly test the Integrated
iMALL Products for compliance with the AT&T Compatibility
Specification Requirements. If an Integrated iMALL Product
fails to satisfy the applicable certification and testing
requirements, AT&T will specify the reasons for the failure.
iMALL shall use all commercially reasonable efforts to cause any
Integrated iMALL Product which fails AT&T random testing to
comply with the AT&T Compatibility Specification Requirements,
and iMALL shall promptly re-submit such failed Integrated iMALL
Product for re-testing pursuant to Section 6.1 or 6.2, as
appropriate.
6.6 Successful Completion of Certification Testing.
Notwithstanding any other provision in this Agreement, only upon
certification by iMALL pursuant to Sections 6.1 or 6.2, as
appropriate, that the tested version of the Integrated iMALL
Product is compatible with the Service may iMALL (i) offer an
Integrated iMALL Product for sale; (ii) market an Integrated
iMALL Product; or (iii) state in advertising in a form consistent
with the requirements set forth in Attachment B and on product
packaging that the particular version of an Integrated iMALL
Product includes AT&T WorldNet Software.
6.7 Product Changes. Compatibility certification shall be
valid only for the specific version of an Integrated iMALL
Product and the specific version of the AT&T WorldNet Software
for which such Integrated iMALL Product was tested.
6.7.1 AT&T WorldNet Software Updates. AT&T shall provide
iMALL with at least 30 days notice of the issuance of any Updates
to the AT&T WorldNet Software. Upon receipt by iMALL of a
golden master copy of an Update to the AT&T WorldNet Software,
subject to iMALL=s right to exhaust portions of its existing
inventory pursuant to Section 6.8, (i) iMALL's rights under
Sections 3.1, 3.2, 3.6, and 6.6 for each of the Integrated iMALL
Products shall be void; and (ii) iMALL must remove any AT&T ▇▇▇▇
from all product packaging, labeling, advertising and marketing
materials for each of the Integrated iMALL Products, unless and
until the Integrated iMALL Product(s) incorporating any and all
Updates have successfully completed the AT&T Compatibility
Specification Requirements.
6.7.2 iMALL Product Updates. Upon the release for
general availability of an Update to a iMALL Integrated Product,
subject to iMALL's right to exhaust portions of its existing
inventory pursuant to Section 6.8, (i) iMALL's rights under
Sections 3.1, 3.2, 3.6, and 6.6 for the Integrated iMALL Product
to which such Update pertains shall be void; and (ii) iMALL must
remove any AT&T ▇▇▇▇ from all product packaging, labeling,
advertising and marketing materials for the Integrated iMALL
Product to which such Update pertains, unless and until the
Integrated iMALL Product to which such Update pertains has
successfully completed the AT&T Compatibility Specification
Requirements.
6.8 Exhaustion of Inventory Upon the delivery of any Update
of the AT&T WorldNet Software to iMALL, iMALL shall no longer be
permitted to reproduce and iMALL and its Distributors shall no
longer be permitted to distribute pursuant to Section 3.1, 3.2
and 3.6 versions of any Integrated iMALL Product not integrated
with the most current Update ("Outdated Product"), excepting
that upon delivery of such Update to iMALL, iMALL shall be
permitted to exhaust existing inventory of Outdated Product for a
period of 120 days In no event shall AT&T have any obligations
with respect to Updates under this Agreement following the 30
days notice period set forth in Section 6.7. 1, except that after
expiration of such notice period, AT&T will make available to
customers all Updates issued between the expiration of such 30
days notice period and the date of the customer's initial
registration for the Service.
6.9 Notice of iMALL Updates. iMALL agrees to give AT&T
written notice of the commencement of development of any Updates
to any Integrated iMALL Products no later than 30 days prior to
the commencement of beta testing of such Update. iMALL shall
indicate, in the notice to AT&T, the expected completion and
commercial release dates for such Updates. iMALL shall
cooperate with AT&T to provide timely reports as to product
development product release schedules.
7. PAYMENTS
7.1 Accrue of Payments. On the date an individual becomes a
Delivered Member, a credit of $5.00 shall accrue to iMALL. Within
ninety (90) days following the end of each calendar quarter,
AT&T shall provide to iMALL a quarterly report specifying the
amounts of credits accrued for new Delivered Members during that
quarter.
7.2 Payments. Accrued payments under Section 7.1 shall be paid
to iMALL within ninety (90) days following the end of each
calendar quarter.
7.3 Accrual of CCS Payments. Subject to execution of the
Long Distance Reward Agreement and iMALL providing AT&T with a
list of all of its clients, on the date an individual becomes a
switch AT&T LD Customer, credits of $5.00 per Switch AT&T LD
Customer shall accrue to iMALL. Within fifteen (15) days
following the end of each calendar quarter, AT&T shall provide to
iMALL a quarterly statement specifying the amount of credits
accrued for Switch AT&T LD Customer who becomes Switch AT&T LD
Customer during the quarter. iMALL shall invoice AT&T for such
an amount appearing in the quarterly statement.
7.4 Payments. Accrued payments under Section 7.3 shall be paid
to iMALL within forty-five (45) days following the receipt of an
invoice from iMALL.
7.5 Taxes. Each party agrees to pay for any taxes, charges or
fees arising out of its obligations or acts hereunder.
8. DELIVERABLES AND UPDATES
8.1 Alliance Managers. Each party shall appoint an Alliance
Manager, who will be charged with primary responsibility for
coordinating, managing and scheduling the collaborative efforts
described in this Agreement
8.2 Delivery of Software and Updates. Promptly after the
Effective Date, AT&T shall provide iMALL with a golden master
copy of the AT&T WorldNet Software AT&T shall provide to iMALL
and iMALL shall provide to AT&T a golden master of any Updates
to the AT&T WorldNet Software and any Integrated iMALL Products,
respectively, upon the commencement of beta testing of such
Updates Such beta versions shall be Confidential Information of
AT&T or iMALL, as the case may be, and shall be treated in
accordance with Section 1.1.
8.3 Test Accounts. AT&T shall provide iMALL with 2 test
accounts for the purpose of testing Integrated iMALL Products in
conjunction with the Service iMALL shall be responsible for all
local, long distance or 800 facility access charges to reach the
Service, and any additional access charges or taxes that may be
imposed on Members or on the Service.
8.4 Updates/Service Changes. Nothing in this Agreement shall
limit AT&T=s right to change the functionality or pricing of the
Service or AT&T's and its suppliers' rights to change the
functionality of the AT&T WorldNet Software at any time. AT&T's
or its suppliers' exercise of such rights shall not be grounds
for termination of this Agreement by iMALL, provided that the
exercise of such rights does not adversely impact the
compatibility of the AT&T WorldNet Software and the Integrated
iMALL Products.
8.5 End User Warranties. iMALL shall offer each End User of
Integrated iMALL Products the same warranty as it offers to End
Users of like products.
8.6 Internal Use. iMALL grants to AT&T a royalty-free,
nonexclusive license during the Term of this Agreement to use
internally, solely for purposes of marketing, promotion,
demonstration, testing and technical support, at least 50 copies
of each different Integrated iMALL Product, or such greater
number of copies as the parties shall mutually agree upon. All
such copies of Integrated iMALL Products shall contain all
appropriate and customary proprietary rights notices provided by
iMALL with such Integrated iMALL Products. The license granted
under this Section 8.7 expressly excludes the right to distribute
Integrated iMALL Products. Nothing in this Agreement shall be
construed as giving AT&T any right to manufacture or otherwise
make or distribute copies of Integrated iMALL Products.
9. TRADEMARKS AND TRADE NAMES
9.1 License to AT&T Marks. Commencing on the Certification
Date and subject to the terms and conditions of this Agreement,
iMALL is hereby granted for the remainder of the Term of this
Agreement a nontransferable, nonexclusive, royalty-free
restricted license extending to the Territory to market each
version of each of the Integrated iMALL Products as including
the AT&T WorldNet Software and otherwise solely use on the
Integrated iMALL Products and in advertising and marketing
materials thereof any AT&T Marks provided by AT&T to iMALL
expressly for use with Integrated iMALL Products which are
distributed by iMALL or its Distributors in connection with this
Agreement, provided that AT&T shall have given iMALL written
confirmation that iMALL has, in form, met the requirements set
forth in Attachment B with respect to such version of the
Integrated iMALL Product, and provided further that such grant
shall be conditioned on and subject to iMALL's compliance with
the requirements of Sections 6 and 8 at all times. All such
usage of AT&T Marks shall inure solely to the benefit of AT&T and
shall not create any rights, title or interest for iMALL in
and to the AT&T Marks. iMALL may use Third Party Marks on the
Integrated iMALL Products and in advertising and marketing
materials thereof in connection with the permitted marketing and
distribution of iMALL Products under this Agreement, provided
that the AT&T Marks are used at least as prominently as the Third
Party Marks of any service provider or product manufacturer
other than iMALL, excepting Developer Marks, whose goods or
services are integrated with or packaged with iMALL. Upon AT&T's
request from time to time iMALL agrees to provide AT&T with
copies of iMALL Products bearing AT&T Marks so that AT&T can
verify their adequate quality. iMALL shall suspend use of AT&T
Marks if such quality is reasonably deemed inferior by AT&T
until iMALL has taken such steps as AT&T may reasonably require
to solve the quality deficiencies, but any such suspension of
AT&T Marks usage will not result in suspension of the license to
use, reproduce and distribute the AT&T WorldNet Software granted
to iMALL hereunder provided that iMALL is diligently taking the
required steps to solve the quality deficiencies.
9.2 License to iMALL Marks. Commencing on the Effective Date
and subject to the terms and conditions of this Agreement, iMALL
hereby grants to AT&T for the Term of this Agreement a
nontransferable, nonexclusive, royalty-free, restricted license
extending to the Territory to use the iMALL Marks solely to
promote, advertise, and market the Service and the Integrated
iMALL Products and in advertising and marketing materials
thereof and on promotional, advertising, and marketing materials
in connection with the Service AT&T shall use such iMALL Marks
in accordance with the guidelines set forth in Attachment B. All
such usage of iMALL Marks shall be subject to iMALL's prior
written approvals, shall inure solely to the benefit of iMALL
and shall not create any rights, title or interest for AT&T in
and to the iMALL Marks. AT&T agrees to cooperate with iMALL in
facilitating iMALL's monitoring and control of the use of the
1MALL Marks and to supply iMALL with samples of use of the iMALL
Marks Except for the iMALL Marks, AT&T will be the owner of all
marks used solely to distribute, promote, advertise and market
the Service and the goodwill related thereto and all uses thereof
shall inure solely to the benefit of AT&T.
10. PROPRIETARY RIGHTS
10.1 Proprietary Rights. Title to and ownership of all copies
of AT&T WorldNet Software and AT&T Documentation, whether in
machine-readable or printed form, and including, without
limitation, Derivative Works, compilations, or collective works
thereof prepared by AT&T and all related technical know-how and
all rights therein (including without limitation rights in
patents, copyrights, and trade secrets applicable thereto), are
and shall remain the exclusive property of AT&T and its
suppliers. iMALL shall not take any action to jeopardize, limit
or interfere in any manner with AT&T's ownership of and rights
with respect to the AT&T WorldNet Software and AT&T
Documentation iMALL shall have only those rights in or to the
AT&T WorldNet Software and AT&T Documentation granted to it
pursuant to this Agreement. Nothing herein shall be deemed to
affect iMALL's ownership of or rights in or to any information
developed or owned by, or made available by third parties to,
iMALL.
10.2 Proprietary Notices.
10.2.1 No Alteration of Notices. iMALL and its employees and
agents shall not remove or alter any proper trademark, service
▇▇▇▇, trade name, copyright, or other proprietary notices
appearing on or in copies of the AT&T WorldNet Software and AT&T
Documentation delivered to iMALL by AT&T and shall use the same
notices in and on copies of iMALL Products and AT&T Documentation
made pursuant to Section 3.1, 3.2 and 4.4 as are contained in and
on such copies of the AT&T WorldNet Software and AT&T
Documentation.
10.2.2 Notice. Each portion of the AT&T WorldNet Software
and AT&T Documentation reproduced by iMALL or its Distributors
shall include the intellectual property notice or notices
appearing in or on the corresponding portion of such materials
as delivered by AT&T hereunder. iMALL further agrees that, to
the extent that iMALL prepares any Derivative Works of iMALL
Products incorporating, in whole or in part, the AT&T WorldNet
Software as permitted by this Agreement it will include an
appropriate copyright notice of AT&T.
11. CONFIDENTIAL INFORMATION AND DISCLOSURE
11.1 Confidential Information. Each party agrees to maintain
all Confidential Information in confidence to the same extent
that it protects its own similar Confidential Information and to
use such Confidential Information only as permitted under this
Agreement. For purposes of this Agreement "Confidential
Information" shall mean confidential or proprietary technical or
business Information given by the discloser of the Information to
the recipient of the Information All Information which is
disclosed by one party to the other in connection with this
Agreement(whether orally, in writing, or by any other means or
media) shall automatically be deemed proprietary to the
discloser of the Information and subject to this Agreement,
unless otherwise confirmed in writing by the discloser of the
Information. Each party agrees to take all reasonable
precautions to prevent any unauthorized disclosure or use of
confidential Information including, without limitation,
disclosing Confidential Information only to its employees and in
the case of AT&T its Affiliates and in the case of iMALL its
Distributors (a) with a need to know to further permitted uses
of such information and (b) who are parties to appropriate
agreements sufficient to comply with this Section 11, and (c) who
are informed of the nondisclosure/non-use obligations imposed by
this Section 11, and both parties shall take appropriate steps
to implement and enforce such non-disclosure/non-use obligations
The foregoing restrictions on disclosure and use shall survive
for 3 years following termination of this Agreement but shall not
apply with respect to any Confidential Information which (i) was
or becomes publicly known through no fault of the receiving
party, (ii) was rightfully known or becomes rightfully known to
the receiving party without confidential or proprietary
restriction from a source other than the disclosing party; (iii)
is independently developed by the receiving party without the
participation of individuals who have had access to the
Confidential Information; (iv) is approved by the disclosing
party for disclosure without restriction in a written document
which is signed by a duly authorized officer of such disclosing
party, and (v) the receiving party is legally compelled to
disclose, provided, however, that prior to any such compelled
disclosure, the receiving party will (a) assert the
privileged and confidential nature of the Confidential
Information against the third party seeking disclosure and (b)
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 that such
protection against disclosure is not obtained, the receiving
party will be entitled to disclose the Confidential Information,
but only as and to the extent necessary to legally comply with
such compelled disclosure.
11.2 Member Information iMALL agrees that all information
concerning customers who subscribe to the Service and who switch
long distance service (including quantities or percentages of
such Members who sign up through iMALL Products) is the
Confidential Information of AT&T. AT&T shall include in its
quarterly reports pursuant to Section 7 the number of Delivered
Members registered for the Service.
12. REPRESENTATIONS AND WARRANTIES
12.1 No Warranty. EXCEPT AS MAY BE PROVIDED IN THE AT&T
MEMBER AGREEMENT OR ANY END USER LICENSE AGREEMENT ASSOCIATED
WITH THE AT&T SOFTWARE, AT&T MAKES NO REPRESENTATIONS OR
WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT
OR BY OPERATION OF LAW) WITH RESPECT TO THE AT&T WORLDNET
SOFTWARE OR ANY OTHER PRODUCT OR SERVICE RELATED THERETO AT&T
EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. AT&T DOES NOT WARRANT, FOR
EXAMPLE, THAT THE AT&T WORLDNET SOFTWARE OR ANY OTHER PRODUCT
OR SERVICE RELATED THERETO IS ERROR-FREE OR THAT OPERATION OF
THE AT&T WORLDNET SOFTWARE OR ANY PRODUCTS OR SERVICES
RELATED THERETO WILL BE SECURE OR UNINTERRUPTED THERE IS ALSO
NO IMPLIED WARRANTY OF NONINFRINGEMENT, THE SOLE REMEDY FOR
INFRINGEMENT IS PROVIDED IN SECTION 13.
12.2 AT&T Representations and Warranties AT&T warrants and
represents to iMALL that (i) AT&T owns or has licensed, and will
own or have licensed, the AT&T WorldNet Software and all
necessary intellectual property right therein, and has and will
have the full power and authority to license and deliver copies
of the AT&T WorldNet Software to iMALL as contemplated
hereunder; and (ii) AT&T has not incorporated in the AT&T
WorldNet Software, and, to AT&T's knowledge, the AT&T WorldNet
Software does not contain viruses.
12.3 Netscape Representations and Warranties. iMALL
acknowledges that (i) the AT&T WorldNet Software contains, as a
critical component thereof, a Netscape Navigator
brand browser; (ii) representations and warranties are made by
Netscape Communications Corp. ("Netscape") to AT&T in an
agreement between Netscape and AT&T (the "AT&T/Netscape
Agreement"); and (iii) AT&T has the right to fulfill any and all
of its obligations to iMALL under this Agreement by exercising
its rights under the AT&T/Netscape Agreement and securing
performance of such obligations by Netscape.
12.4 iMALL Representations and Warranties iMALL further
warrants and represents to AT&T that: iMALL owns or has
licensed, and will own or have licensed, the iMALL Products and
all necessary intellectual property right therein, and has and
will have the full power and authority to license and deliver
copies of the iMALL Products to customers as contemplated
hereunder; and (ii) iMALL has not incorporated in iMALL Products
and, to iMALL's knowledge, iMALL Products do not contain viruses.
13. INDEMNIFICATION
13.1 AT&T Indemnity
13.1.1 Obligation AT&T shall defend iMALL and its directors,
officers, agents, employees and representatives, in any third
party action for infringement by, or alleged infringement by,
the AT&T WorldNet Software of any U.S. trademark or service
▇▇▇▇, or any U.S. patent issued as of the Effective Date, any
U.S. patent issued after the Effective Date or any U.S.
copyright, or misappropriation of any trade secret by the AT&T
WorldNet Software, and to pay any final judgments awarded or
settlements entered into in any such action. iMALL agrees that
it shall notify AT&T of all threats, claims and proceedings
related to any such suit promptly after such threat, claim or
proceeding comes to the attention of iMALL. AT&T shall have
sole control of the defense and/or settlement of any such suit,
and iMALL shall furnish to AT&T, upon request, information
available to iMALL for such defense, and shall provide AT&T with
such assistance in defending such suits as is requested by AT&T.
13.1.2 Options. If iMALL's use of the AT&T WorldNet Software
under the terms of this Agreement is, or in AT&T's opinion is
likely to be, enjoined due to the type of infringement or
misappropriation specified above, then AT&T may, at its sole
option and expense, either (i) procure for iMALL the right to
continue using such the AT&T WorldNet Software under the terms
of this Agreement, or (ii) replace or modify the AT&T WorldNet
Software so that it is noninfringing and substantially equivalent
in function to the enjoined AT&T WorldNet Software.
13.1.3 Exceptions. The foregoing obligation of AT&T does
not apply (i) with respect to versions of the AT&T WorldNet
Software or portions or components thereof: (a) which are
modified after shipment, if the alleged infringement relates to
such modification, and if such modification was not authorized,
expressly permitted or performed by AT&T; (b) which are combined
with other products, processes or materials, if the alleged
infringement relates to such combination and if AT&T did not
authorize or expressly permit the combination; or (c) where
iMALL's use of the AT&T WorldNet Software is incident to an
infringement not resulting primarily from the AT&T WorldNet
Software or is not in accordance with the license granted under
this Agreement; or (ii) for use or distribution of AT&T WorldNet
Software or the Service or the use of any AT&T Marks by iMALL,
outside the Territory or otherwise not in accordance with the
terms and conditions of this Agreement.
13.1.4 Netscape Indemnity. iMALL acknowledges that (i)
the AT&T WorldNet Software contains, as a critical component
thereof, a Netscape Navigator Internet browser,
(ii) certain indemnity obligations are made by Netscape to AT&T
in the AT&T/Netscape Agreement; and (iii) AT&T has the right to
fulfill any and all of its indemnity obligations to iMALL under
this Agreement by exercising its rights under the AT&T/Netscape
Agreement and securing performance by Netscape.
13.1.5 Sole Liability. THE FOREGOING IS IMALL'S SOLE AND
EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OR ALLEGED
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE AT&T
WORLDNET SOFTWARE, THE SERVICE OR ANY AT&T MARKS, WHETHER UNDER
THEORY OF INDEMNITY, WARRANTY OR OTHERWISE.
13.2 iMALL Indemnity
13.2.1 Obligation iMALL shall defend AT&T, its Affiliates,
and their respective directors, officers, agents, employees and
representatives, in any third party action for infringement by,
or alleged infringement by, iMALL Products, iMALL Marks, or any
modification of the AT&T WorldNet Software by iMALL (when the
infringement or alleged infringement would not be present in the
AT&T WorldNet Software standing alone, as provided by AT&T), of
any U.S. Third Party ▇▇▇▇, or any U.S. patent issued as of the
Effective Date, any U.S. patent issued after the Effective Date
or any copyright, or misappropriation of any trade secret by the
iMALL Products, and any action based on a claim related to
defective disks or defective duplication in copies of iMALL
Products distributed by iMALL and to pay any final judgments
awarded or settlements entered into in any such action AT&T
agrees that it shall notify iMALL of all threats, claims and
proceedings related to any such suit promptly after such threat,
claim or proceeding comes to the attention of AT&T. iMALL shall
have sole control of the defense and/or settlement of any such
suit, and AT&T shall furnish to iMALL upon request, information
available to AT&T for such defense, and shall provide iMALL with
reasonable assistance.
13.2.2 Sole Liability. THE FOREGOING IS AT&T'S SOLE
AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OR ALLEGED
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY OR RELATED
TO THE IMALL PRODUCTS, THE IMALL MARKS, OR ANY MODIFICATION OF
THE AT&T WORLDNET SOFTWARE BY IMALL AND ANY PRODUCTS OR
SERVICES RELATED THERETO, WHETHER UNDER THEORY OF INDEMNITY,
WARRANTY OR OTHERWISE.
14. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY (OR ITS RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, SUPPLIERS, AGENTS, REPRESENTATIVES OR
DISTRIBUTORS) BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF
BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR
FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES (AND NOT\WITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY), OR FOR ANY CLAIM AGAINST THE
OTHER PARTY BY ANY THIRD PARTY, EXCEPT AS PROVIDED IN SECTION
14 ENTITLED "INDEMNIFICATION" IN NO EVENT WILL EITHER PARTY
(OR ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS,
AGENTS, REPRESENTATIVES OR DISTRIBUTORS) BE LIABLE FOR (a) ANY
REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY THE
OTHER PARTY (OR ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
SUPPLIERS, AGENTS, REPRESENTATIVES OR DISTRIBUTORS); (b) IN THE
CASE OF AT&T, (i) FAILURE OF THE AT&T WORLDNET SOFTWARE OR ANY
PRODUCTS OR SERVICES RELATED THERETO TO PERFORM AS SPECIFIED
HEREIN EXCEPT AS, AND TO THE EXTENT, OTHERWISE EXPRESSLY
PROVIDED HEREIN, (ii) FAILURE OF THE AT&T WORLDNET SOFTWARE
AND ANY PRODUCTS OR SERVICES RELATED THERETO TO PROVIDE
SECURITY, OR (iii) ANY USE OF THE AT&T WORLDNET SOFTWARE OR
ANY PRODUCTS OR SERVICES RELATED THERETO OR THE DOCUMENTATION
FOR SAME OR THE RESULTS OR INFORMATION OBTAINED OR DECISIONS
MADE BY END USERS OF THE AT&T WORLDNET SOFTWARE OR ANY PRODUCTS
OR SERVICES RELATED THERETO OR THE DOCUMENTATION FOR SAME.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
EACH PARTY'S ENTIRE LIABILITY TO THE OTHER PARTY FOR DAMAGES
CONCERNING PERFORMANCE OR NONPERFORMANCE BY SUCH PARTY OR IN
ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, AND
REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN
CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), SHALL NOT EXCEED
AN AMOUNT EQUAL TO THE AMOUNT PAID (AND OBLIGATED TO BE PAID)
BY AT&T UNDER THIS AGREEMENT NOTHING IN THIS SECTION 14 SHALL
BE DEEMED TO LIMIT OR EXPAND EITHER PARTY'S RIGHTS OR LIABILITY
(i) UNDER SECTION 13,(ii) FOR INTELLECTUAL PROPERTY INFRINGEMENT
OR MISAPPROPRIATION OF TRADE SECRETS BY EITHER PARTY OR (iii)
FOR BREACH OF SECTION 11 BY EITHER PARTY. IN ADDITION, THE
FOREGOING PROVISIONS OF THIS SECTION 14 WILL NOT AFFECT EITHER
PARTY'S LIABILITY, IF ANY, WITH RESPECT TO CONTRIBUTION OR
INDEMNITY FOR THIRD PARTY CLAIMS FOR PERSONAL INJURY, DEATH, OR
PHYSICAL DAMAGE TO PROPERTY.
15. TERM AND TERMINATION
15.1 Term. Unless sooner terminated under the provisions of
Section 15, or otherwise rightfully terminated, this Agreement
shall remain in effect for a period of one year from the
Effective Date Such term shall be automatically extended for
another one year provided neither party gives the other party 30
days notice prior to the end of the initial period of their
desire to terminate this Agreement.
15.2 Termination for Default. If either party defaults in
any of its obligations under this Agreement, the non-defaulting
party, at its option, shall have the right to terminate this
Agreement by written notice unless, within 30 calendar days after
receipt of written notice of such default, the defaulting party
remedies the default, or, in the case of a default which cannot
with due diligence be cured within a period of 30 calendar days,
the defaulting party institutes within the 30 calendar days steps
necessary to remedy the default and thereafter diligently
prosecutes the same to completion.
15.3 Bankruptcy. Either party shall have the right to
terminate this Agreement if the other party ceases to do business
in the normal course, becomes or is declared insolvent or
bankrupt, is the subject of any proceeding relating to its
liquidation or insolvency which is not dismissed within 90
calendar days, or makes an assignment for the benefit of its
creditors.
15.4 Termination of Browser or Service. AT&T may terminate
this Agreement on 6O days' notice upon termination (1) of AT&T's
browser agreements with its supplier for any reason, including
whether due to lapse of time or to a notice of termination based
on the conduct or status of AT&T or supplier or (2) in the event
AT&T determines to substantially terminate offering the Service.
15.5 Effect on Rights.
15.5.1 Termination of this Agreement by either party shall
not act as a waiver of any breach of this Agreement and shall not
act as a release of either party from any liability for breach of
such party's obligations under this Agreement.
15.5.2 Except as specified in Sections 15.6 and 15.7 below,
upon termination or expiration of this Agreement, all licenses
for AT&T WorldNet Software and its Documentation granted under
this Agreement shall terminate.
15.5.3 Except where otherwise specified, the rights and
remedies granted to a party under this Agreement are cumulative
and in addition to, and not in lieu of, any other rights or
remedies which the party may possess at law or in equity,
including without limitation rights or remedies under applicable
patent, copyright, trade secrets, or proprietary rights laws,
rules or regulations.
15.6 Effect of Termination. Within 30 calendar days after
termination of this Agreement, each party shall, on request by
the other party, either deliver to the other party or destroy all
copies of the requesting party's Confidential Information,
including (in the case of iMALL) AT&T WorldNet Software and
Documentation (except as provided in Section 15.7) and any other
materials provided by the requesting party to the other party
hereunder in its possession or under its control, and shall
furnish to the requesting party a certificate signed by an
officer of the other party certifying that, to the best of its
knowledge, such delivery or destruction has been fully effected.
Notwithstanding the foregoing, and provided iMALL fulfills its
obligations specified in this Agreement with respect to such
items, iMALL may continue to use and retain copies of the AT&T
WorldNet Software and Documentation to the extent, but only to
the extent, necessary to support and maintain iMALL Products
rightfully distributed to End Users by iMALL prior to termination
of this Agreement.
15.7 Continuing Obligations.
15.7.1 Continuance of Sublicenses Notwithstanding the
termination of this Agreement, all End User sublicenses which
have been granted by iMALL and its Distributors pursuant to
this Agreement prior to its termination shall survive, provided
any such licensee or sublicensee continues to comply with the
terms of the applicable license agreement.
15.7.2 Other Continuing Obligations. In addition to the
foregoing, all other respective rights and obligations of AT&T
and iMALL which by their nature survive termination of this
Agreement (including without limitation under the provisions of
Sections 3.4, 4.13, 7, 10.1, 11, 12, 13, 14 and 16) shall survive
termination of this Agreement.
15.7.3 Injunctive Relief Consistent with the protection of
the rights of the party seeking injunctive relief as permitted
hereunder, any injunctive relief sought by either party to
enforce the obligations of the other party under this Agreement
shall be structured, to the greatest extent possible, in a manner
that will maintain the business operations of the party on which
any such relief is imposed.
16. GENERAL PROVISIONS
16.1 Notices. Any notice required or permitted hereunder
shall be in writing and shall be deemed to be properly given upon
the earlier of (a) actual receipt by the addressee or (b) five
business days after deposit in the U.S. mail, postage prepaid,
when mailed by registered or certified U.S. mail, return receipt
requested, or two (2) business days after being sent via
overnight courier to the respective parties at the addresses
first set forth above or to such other person or address as the
parties may from time to time designate in writing delivered
pursuant to this Section 16.1 Notices to AT&T shall be sent to
the address set forth in the introductory paragraph to this
Agreement, attention. Vice President, Law-Multimedia Services
Notices to iMALL shall be sent to the address set forth in the
introductory paragraph to this Agreement, attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇.
16.2 Waiver and Amendment. The waiver by either party of a
breach of or a default under any provision of this Agreement,
shall not be construed as a waiver of any subsequent breach of
the same or any other provision of the Agreement, nor shall any
delay or omission on the part of either party to exercise or
avail itself of any right or remedy that it has or may have
hereunder operate as a waiver of any right or remedy. No
amendment or modification of any provision of this Agreement
shall be effective unless in writing and signed by a duly
authorized signatory of AT&T and iMALL.
16.3 Assignment.
16.3.1 No Assignment. Except as expressly provided herein,
neither party may assign this Agreement without the prior written
consent of the other party provided that either party may assign
this agreement to any person or entity that acquires all or
substantially all of that party's business. Such consent shall be
in the sole discretion of the party requested to give consent.
Any attempt to sublicense, assign or transfer (except as
expressly provided herein) any of the rights, duties or
obligations under this Agreement in derogation hereof shall be
null and void.
16.3.2 AT&T Restructuring. By the provision of notice in
accordance with this Agreement, AT&T shall have the right to
assign this Agreement and to assign its rights and delegate its
obligations and liabilities under this Agreement, either in whole
or in part (an "Assignment") to any entity that is, or that was
immediately preceding such Assignment: (i) a current or former
subsidiary, business unit, or division of AT&T, or (ii) an entity
in which AT&T had an ownership interest. The notice of
Assignment shall state the effective date thereof. Upon the
effective date and to the extent of the Assignment, AT&T shall be
released and discharged from all obligations and liabilities
under this Agreement. Such Assignment, release and discharge
shall be complete and shall not be altered by the termination of
the affiliation between AT&T and the entity assigned rights or
delegated obligations and liabilities under this Agreement.
16.4 Governing Law, Dispute Resolution. This Agreement and
all disputes hereunder shall be governed by the substantive law
of the State of New York, without regard to the conflicts of law
provisions therein, and the parties hereby expressly consent to
be subject to the jurisdiction of the courts of the State of New
York. In the event of a dispute regarding any matter under this
Agreement which cannot be resolved by the parties, the dispute
shall be referred to a Vice President of AT&T and a Vice
President of iMALL, who will attempt to resolve the dispute
within 10 business days of such referral date. If such officers
resolve the dispute they shall set forth in writing the
resolution. If such officers are unable to resolve the dispute
within such 10 business day period, the parties shall further
seek to resolve the dispute pursuant to arbitration as set forth
below. All disputes hereunder which cannot be amicably resolved
by the parties as described above, except those solely concerned
with AT&T's intellectual property rights in the AT&T WorldNet
Software, shall be settled exclusively by binding arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The arbitration shall be held in New
York City, New York and shall be conducted by a single
arbitrator who shall be a lawyer familiar with computer software
development and license agreements. The decision of the
arbitrator shall be final and binding upon the parties and may be
enforced by either party in any court of competent jurisdiction.
Each party shall bear the cost of preparing and presenting its
case. The costs of the arbitration, including the fees and
expenses of the arbitrator, will be shared equally by the
parties unless the award otherwise provides. This provision
shall not be construed to prohibit either party from seeking
preliminary or permanent injunctive relief in any court of
competent jurisdiction to the extent not prohibited by this
Agreement.
16.5 Regulatory Compliance. The parties recognize that the
Service may be subject to regulation by the Federal
Communications Commission and/or state regulatory agencies. If
any applicable regulation, whether now existing or hereafter
enacted, requires a modification of this Agreement or the waiver
of any right hereunder in order to market and offer iMALL
Products, and/or the Service as contemplated hereunder, the
parties agree to take such reasonable actions as are required
under the circumstances in order to accomplish the purposes of
this Agreement. Each party shall comply with all requirements of
applicable laws, ordinances, administrative rules and regulations
in the performance of this Agreement, and shall take prompt
action to remove or remedy any violation that occurs or is
discovered during the Term of this Agreement.
16.6 Relationship of the Parties. No agency, partnership,
franchise, joint venture, or employment is created as a result
of this Agreement and neither iMALL nor its agents have any
authority of any kind to bind AT&T in any respect whatsoever.
16.7 Severability. If the application of any provision or
provisions of this Agreement to any particular facts of
circumstances shall be held to be invalid or unenforceable by
any court of competent jurisdiction, then (a) the validity and
enforceability of such provision or provisions as applied to any
other particular facts or circumstances and the validity of
other provisions of this Agreement shall not in any way be
affected or impaired thereby and (b) such provision or
provisions shall be reformed without further action by the
parties hereto to and only to the extent necessary to make such
provision or provisions valid and enforceable when applied to
such particular facts and circumstances.
16.8 Force Majeure. Either party shall be excused from any
delay or failure in performance hereunder caused by reason of
any occurrence or contingency beyond its reasonable control,
including but not limited to, acts of God, earthquake, labor
disputes and strikes, riots, war, novelty of product manufacture
or other unanticipated product development problems, and
governmental requirements. The obligations and rights of the
party so excused shall be extended on a day-to-day basis for the
period of time equal to that of the underlying cause of the
delay.
16.9 Expenses. Each party shall bear its own costs and
expenses in connection with this Agreement, except as expressly
provided herein.
16.10 Compliance with all Laws. Each party shall comply fully
with all requirements of applicable laws, ordinances,
administrative rules and regulations, including but not limited
to those relating to the export of technical data, those of the
United States Departments of State and Commerce and other
applicable governmental agencies, and each party acknowledges
that by virtue of certain security technology embedded in the
AT&T WorldNet Software, the export of such software may not be
legal. Further, each party agrees to comply with and require
its Distributors to comply with rules and regulations to preclude
the acquisition of unlimited rights to technical data, software
and documentation provided with the AT&T WorldNet Software and
Integrated iMALL Products to a governmental agency, and ensure
the inclusion of appropriate "Restricted Rights" or "Limited
Rights" notices required by the U.S. Government agencies.
16.11 Entire Agreement. This Agreement, including the
Attachments hereto, constitutes the entire agreement between
the parties concerning the subject matter hereof and supersedes
all proposals or prior agreements whether oral or written, and
all communications between the parties relating to the subject
matter of this Agreement and all past courses of dealing or
industry custom. The terms and conditions of this Agreement
shall prevail, notwithstanding any variance with any purchase
order or other written instrument submitted by iMALL, unless
specifically agreed in writing by AT&T.
AUTHORIZED SIGNATURES
In order to bind the parties to this Agreement, their duly
authorized representatives have signed their names below on the
dates indicated. This Agreement shall be binding on both parties
when signed on behalf of each party and delivered to the other
party (which delivery may be accomplished by facsimile
transmission of the signature pages hereto).
iMALL, INCORPORATED AT&T CORP.
By: By:
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /S/??
Title: Senior Vice President Marketing Vice President
Date: 6/13/96 Date: 6/24/96
Attachment A - iMALL Products
iMALL Software Starter Kit
Attachment B - Trademark and Service ▇▇▇▇ Guidelines
GUIDELINES FOR USE OF THE AT&T CORPORATE SIGNATURE
Components
The AT&T corporate signature is comprised of two parts the globe
and the logotype (AT&T).
The globe is comprised of a series of 8 or 12 horizontal black
lines depending on the size of the corporate signature. The
8-fine design is used for globe diameters of 3/8" or less The
12-line design is used for globe diameters over 3/8". The globe
also contains a "hot spot" which is the highlighted area in the
upper left hand area of the globe sphere. This hot spot is
always the color of the background which supports the globe,
except when the background is a dark color and the globe is
printed in a light color, the lightest color of the globe always
prevails in the hot spot. The globe must never be used as part
of graphic design, and never without the logotype.
The print specifications for the logotype is "AT&T Garamond" The
distance between the logotype and the globe should never be
altered.
Positioning
The AT&T corporate signature should be positioned in a prominent
area of the material being supported. On printed material, it is
usually used as a "sign off" in the lower right hand corner, or
as a sign on in the upper left hand corner. If the material is
co-logged with one of AT&T's Business Alliances, then both logos
carry equal weight at the beginning or at the end of the
material.
Orientation
Two different orientations of the corporate signature have been
developed to support different layouts:
Horizontal configuration - The logotype is located to the
immediate right of the globe. The horizontal configuration is
usually used flush left in the upper left hand corner of the
page/item or, as in advertising, flush left or flush right with
the last line of copy This configuration is seldom centered"
except on business cards.
Centered configuration - The logotype is located centered
under the globe. The centered configuration is used whenever the
corporate signature is centered on a page/item.
Clear Space
The minimum clear area around the signature is the diameter of
the globe. This is required for proper staging of visual impact
regardless of the size of the globe.
Corporate Signature with Organization Name AT&T WorldNet Services Signatures combined with organization names
should not be used on the primary surface (front cover) of a
printed piece, only the corporate signature may appear on the
front cover. The organization name is typeset in Helvetica
Light, initial capitals and lower case letters. The distance
of the organization name from the bottom of the globe is the
globe diameter, and is flush left with the logotype in the
horizontal configuration), or centered below the logotype (in
the centered configuration).
Color
When used on light-colored backgrounds up to 30% black or
equivalent value, the preferred color of the corporate signature
is Process Blue (globe) and Black (logotype). The two
alternates are, both globe and logotype in Black, or both in
Process Blue. If the background color does not permit
sufficient contrast with either of the three preferred color
treatments, then the globe and logotype may be printed in any
one color that will permit sufficient contrast with the
background.
Using Black or Dark Backgrounds
A "Reverse Logo" has been developed for use on dark backgrounds
with more than 30% of black or equivalent value. This version is
not an exact photographic opposite of the positive version. It's
design ensures that the "hot spot" always remains the lightest
color of the globe. When using the reverse version, the globe
symbol may be reproduced in Process Cyan or 80% screen of AT&T
Process Blue, the logotype is always white.
Background Control
For optimum visibility, the corporate signature must be
reproduced on backgrounds that present continuous, even color
values as well as sufficient contrast.
Approval
All material displaying the AT&T corporate signature must be
approved by AT&T WorldNet Marketing Communications
and Advertising before developing. It will be evaluated for
compliance to AT&T graphic standards and brand positioning.
Approval Process
Please send a copy of the proposed layout to ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
Please include the diameter and measurements you are requesting
of the logo.
Fax number ▇▇▇-▇▇▇-▇▇▇▇
Voice number ▇▇▇-▇▇▇-▇▇▇▇
Email !▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
With approval, she will sign and fax back and send a repro logo
or sheet for your use.
Attachment C - Customer Care Requirements
Coordination and Interface
The coordination of customer service processes and interfaces
between iMALL and AT&T will provide both AT&T and iMALL with an
outline of how to work together to resolve any problems
associated with AT&T WorldNet Services access and the use of
iMALL products.
Single Contact
iMALL will provide AT&T with a single point of contact from their
customer service organization, for purposes of coordinating
process interfaces and comparing service results. Where there
is an Integrated iMALL Product, AT&T and iMALL will work to
develop an integration test plan that evaluates that integration
and allows both organizations to support the integration.
Quality Control Metrics
iMALL will provide automated tracking of customer service
performance associated with AT&T WorldNet Services software
concerns. A monthly (or as mutually agreed) review of customer
problems and resolution as well as performance metrics related
to AT&T WorldNet Services software will be set up between AT&T
and iMALL. Reporting and tracking will be defined and
implemented in order to achieve continuous improvement to the
customer's on line experience and seamless use of the AT&T
WorldNet Services enhanced product.
AT&T WorldNet Services Support Material
AT&T will provide the AT&T WorldNet Services support material
content to iMALL's Services Team that will handle any calls
associated with the Integrated iMALL Product. Training of iMALL
Services team will be at iMALL's expense.
Tier One Support
iMALL will be responsible for tier one customer support, either
on iMALL Website or by phone, fax or other means of an end user
seeking customer support iMALL will provide to their end users
the same level of support (for Integrated iMALL Product) that is
offered to customers of any iMALL product at a similar cost.
iMALL's current customer care model will apply to the new
products.
On-line Support and Reference to WorldNet Services
If support is introduced on iMALL home page and there is mention
of or any references to AT&T or AT&T WorldNet Services, AT&T has
the right to approve the content that mentions AT&T or AT&T
WorldNet Service. Referral of end users to AT&T's 800 number
must be approved by AT&T, from a process perspective before any
initiation of this activity Publishing of AT&T Customer Care 800
number without prior written consent from the AT&T Customer Care
single point of contact, is prohibited.
Attachment D - AT&T WORLDNET PERFORMANCE SPECIFICATION
AT&T Compatibility Specification apply to all Integrated iMALL
Products that are to be certified as compatible with AT&T
WorldNet Services or which include AT&T WorldNet Registration
Software.
General
The integration test schedule provides reasonable turnaround
times for the test activities, but vendor manufacturing deadlines
are the highest priority. Thus, anything that can be done to
meet these deadlines within acceptable risk will be done.
The test suites and their scope are detailed in the "Integration
Test Suites" section. Each test suite will be run with two
hardware configurations (See equipment list), and the
appropriate operating system of Windows 3.1 or Windows-95,
depending if it's the 16-bit product (for Windows 3.1) or the
32-bit product (for Windows-95) New (or modified) test suites
will incorporated as necessary.
Quality
Quality of the integrated product will be tracked by monitoring
the following quality objectives:
0 If available at the time of testing, the packaging must
clearly state the system requirements for the integrated product.
0 The integrated setup and install scripts must contain all the
functionality required to get a user "up-and-running" with AT&T
WorldNet Services.
0 For both Win 3 x and Win 95 systems, Setup Wizard/WorldNet
connection must work with stated minimum system requirements
(Usually 8MB RAM)
0 When system resources are insufficient, it should recommend
actions to the user to correct the problem and exit gracefully.
0 Any new program group icons that are created during the
installation process must work and correctly identify any AT&T
WorldNet software or functionality.
0 Any new "bookmarks" that were added must exist and not point
to any site that contains links or references that may be illegal
or contrary to AT&T policy.
INTEGRATION TEST SUITES
General Guidelines
Basic guidelines will be to check for a complete copy of all
files from the source (floppy or our Internet site's zipped
files) to the integrated CD, verify end-to-end installation,
registration and use, and lastly make sure the registration code
works (pulls down the correct home page, allows registration, and
correct pricing)
Test I - File Compare
Create a batch file that will compare all the files on each
floppy to the directories on the integrated CD, using Exhibit A
as a guide. If the files have been retrieved via our Internet
server, use the CRC numbers to verify that all files have been
copies over successfully (refer to the download instructions for
more information) The exception to this of course would be if
they have modified any setup scripts or the bookmark file (e.g.
to incorporate a home page URL).
Test 2 - End-to-End Installation
A. Integrated Products that launch the AT&T WorldNet
Software as an independent application must:
1. properly load the AT&T WorldNet browser program into
Windows 3.1 and Windows 95 program environments.
2. properly launch and render fully operational all
executable files from the AT&T WorldNet Service Program Group,
The executable files from the AT&T WorldNet Service Program Group
currently contains the following executable files:
I. AT&T WorldNet Service executable
ii. AT&T WorldNet Customer Care executable
iii. The Registration Wizard executable
iv. The AT&T WorldNet Service Read Me executable
3. operate free of memory conflicts between the AT&T
WorldNet Software and any other software contained in the
Integrated iMALL Products.
Integrated iMALL Products that launch the AT&T WorldNet Software
both as an independent application and within another
iMALL
application must:
1. fulfill all of the functional requirements specified in
part A.1 above, plus:
2. [to be specified upon the development of Integrated
Products failing within this category]
Install the integrated application, including the WorldNet Dial
software, and register using the assigned registration code(s)
During the installation, check for the following:
0 Check the registration code(s) for validity. Some plans will
have two or more codes These codes are validated during the
registration process.
0 Check for the appropriate pricing plan to be presented,
based upon the registration code. The pricing plans are also
presented during the registration process.
Test 3 - Browser Execution
After the installation, make sure the browser is invoked
successfully from the following:
0 For Windows-95, from all shortcuts, program icons, and
"start button" locations.
0 For Windows 3.1, from all program icons.
0 Any execution from within the application itself.
Test 4 - Adherence to Contact Guidelines
After the application is installed, make sure all shortcuts,
icons, and invocations of the browser have the correct wording
and icon representation Use the following guidelines.
Any Program icon that invokes the browser and uses the
default WorldNet home page, must display the correct AT&T
WorldNet globe icon.
0 Any shortcut, start button, or program icon that invokes
anything other than the default WorldNet home page must NOT have
the AT&T WorldNet globe icon, unless approved by AT&T legal
beforehand.
Test 5 - Bookmarks
It is possible that the default bookmarks have been changed to
contain the vendor's home page(s). The general guideline here is
that:
They all work (the site exists)
They don't point to any site that is in obvious violation of the
contract
Test 6 - Minimum Resources
Test the installation using the minimum recommended hardware
requirements. The issue here is if the browser is invoked from
within the vendor application, will they work together. Note
that the recommended minimum requirements might not be the same
as it is for the AT&T WorldNet Service software.
RISKS
Equipment Availability
Equipment availability and use as planned (see Test Equipment
section) is necessary and should be sufficient for testing both
Windows 3.1 and Windows-95. Should needed test components not be
available, we will consider deleting them from coverage
objectives or postponing coverage until available without
slipping the test completion dates.
Delays and Schedule Sensitivity
Testing intervals are short in comparison to the overall
integration effort, the risk is that with a one week test
interval, the project is sensitive to delays that consume
calendar time to resolve. Should a critical or road-blocking
problem take more than a couple of days to resolve, a large
portion of the interval is lost and recovery is more difficult
Plans to address such delays include.
Lowering release quality objectives
Postponing scheduled manufacturing
TEST EQUIPMENT
Integration testing expects to use the following two
hardware/software configurations.
1. A 8MB (or minimally recommended configuration) machine
running Windows 3.1. Internal or external 2X or above CDROM, 14
4kb or higher modem Hard disk space of adequate size to handle
the disk space required for the operating system, the
application, and the WorldNet software (usually 300MB or higher)
2. A 16MB or above configured machine running Windows 95.
Internal or external 2X or above CDROM, 14.4kb or higher modem.
Hard disk space of adequate size to handle the disk space
required for the operating system, the application, and the
WorldNet software (usually 500MB or higher).
AUDIT
AT&T is authorized to audit the testing documentation to
validate certification of any Integrated Product and/or AT&T
WorldNet Software release.
DOCUMENTATION
The testing and certification process must be complete in order
to support the rights to use AT&T Marks and certification
affiliation The documentation required to support this process
are:
must provide AT&T with written notification of compliance
with testing.
must include all testing notes and re-test notes associated
with testing.
SCOPE OF TESTING
The testing must be complete for all releases of an Integrated
iMALL Product and/or the AT&T WorldNet Software. In addition,
the testing cycle must comply with the following guidelines:
must use associates who are not the developers of the
software and were not involved in any previous test cycles.
EXHIBIT A
ATTACHMENT E - iMALL ICON
Option 1.
Windows 3.lx using AT&T WorldNet Software version 1.22
iMALL may add bookmarks to sites of their own choosing by adding
them to the default'bookmark.htm' provided on the distribution
disks.
The iMALL's end-users will then have the ability to have a
single-click access to iMALL's home-page, the support-page etc
Option 2.
Windows 3.lx using iMALL launcher
iMALL may choose to write their own application launcher that
launches the AT&T WorldNet software and communicates with it to
go to the URL of their choosing.
The icon representing the launcher will be developed by the iMALL
and shall not be the AT&T globe or other AT&T ▇▇▇▇.
Such an application launcher would test whether AT&T WorldNet has
been installed, and use standard Netscape 1.22 PE defined methods
(DDE/OLE2)to make it invoke the iMALL chosen URLs.
Option 3.
Windows 95 using iMALL launcher
iMALL may choose to write their own application launcher that
invokes the AT&T WorldNet Service and points it to the chosen
URL. Such an application launcher would test whether AT&T
WorldNet Software has been installed using the standard Win95
registry API - upon finding that it is NOT, the launcher would
give some appropriate error message such as "AT&T WorldNet is not
yet installed Install it using the CD and then try and reach AT&T
Tech-Support On-line . ." or substantially similar language.
ATTACHMENT F - LONG DISTANCE REWARD AGREEMENT
AGREEMENT
BETWEEN
AT&T COMMUNICATIONS, INC.
AND
iMALL, INCORPORATED
This Agreement is made and entered into effective as of
1996, by and iMall Incorporated, a Nevada corporation with
offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("iMALL"), and AT&T Communications,
Inc, a Delaware corporation, with offices located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, for itself and
its affiliated companies (collectively "AT&T")
RECITALS
WHEREAS, AT&T operates a telecommunications network in the
United States and around the world, through which customers may
obtain telecommunication services including residential long
distance telephone service, interstate and/or intrastate
interLATA and/or intraLATA telecommunications service, and
interexchange or intraexchange telecommunications service
("AT&T Service"), and
WHEREAS, iMALL markets and sells various software products in the
United States; and
WHEREAS, iMALL and AT&T desire to engage in marketing efforts to
their respective customers.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants set forth herein, AT&T and iMALL agree as
follows,
1. TERM OF AGREEMENT AND RENEWAL.
This Agreement shall commence on the date first set forth above
(the "Effective Date") and shall expire one year after the
Effective Date (the "Initial Term"), unless sooner terminated by
either party pursuant to this Agreement. No later than sixty
(60) days prior to the expiration date, the Parties shall
initiate negotiations concerning the renewal of this Agreement.
Such negotiations may include the modification of any and all
terms of this Agreement. In the event that either Party
concludes, in its sole discretion, not to renew this Agreement,
then this Agreement shall terminate pursuant to this Article.
2. MARKETING PROGRAMS.
A. Subject to Article 4, and for the period to AT&T
will provide iMALL customers who switch their Dial-1 residential
long distance telecommunications service from another
interexchange carrier to AT&T with (i) a iMALL Gift Certificate,
which may be used to and (ii) Long Distance Certificates or a
check for any fee charged by the customer's local telephone
company for switching to AT&T as an Interexchange carrier,
provided, however, that AT&T will provide such offer only to
iMALL customers who are not currently subscribed to AT&T as the
customer's long distance carrier AT&T will distribute iMALL
Gift Certificates and AT&T Long Distance Certificates to its
customers in its Welcome Package to new customers AT&T shall
promote and market the offer described above via direct mail
marketing materials and telemarketing activities.
B. iMALL, at its expense, shall design, develop and print
iMALL Gift Certificates. iMALL agrees to accept iMALL Gift
Certificate as payment for goods and services at any iMALL
retail stores until Such date shall be printed on the
certificate. Upon AT&T's request, iMALL shall send to AT&T the
number of iMALL Gift Certificates requested by AT&T.
C. On or before iMALL shall provide AT&T with a list of
approximately million of its customers, including their names,
addresses and telephone numbers. AT&T shall only use iMALL
customer list for the purpose of making the offer set forth in
Section 2A above to selected names on such list. Following
completion of the marketing activities set forth in Section
2A above, AT&T shall return the list to iMALL and shall not
retain a copy of such list. AT&T shall not disclose or transfer
such customer list to any third party. iMALL acknowledges that
some names on iMALL customer list may be existing AT&T customers
or will become AT&T customers and AT&T intends to continue to
contact and market to its customers AT&T shall provide iMALL
with a list of names, addresses and phones numbers of customers
that have accepted the offer set forth in Section 2A above;
provided that the customer consents to the disclosure of such
information.
D. AT&T will be responsible for installing and
maintaining the AT&T Service ordered by iMALL customers in
accordance with AT&T's then current standard practices and
tariffs iMALL customers will be eligible to participate in any
AT&T tariffed offers, for which they otherwise qualify. Existing
AT&T credit policies and practices shall apply, including but
not limited to, AT&T's right to refuse to accept or cancel
orders for the AT&T Services Termination or expiration of this
Agreement shall not affect the AT&T Service provided to iMALL
customers. All AT&T Services, ordered by iMALL customers shall
be provided in accordance with the rules, regulations, and rates
in applicable federal and state tariffs.
3. REGULATORY APPROVALS.
AT&T agrees to use its reasonable business efforts to obtain and
maintain all necessary federal and state regulatory authority
approvals in a timely manner, which may be required for AT&T
activities and/or obligations under this Agreement.
4. COSTS.
A. AT&T shall pay iMALL, on a monthly basis, dollars ($_)
for each iMALL Gift Certificate delivered to an AT&T customer as
a result of the offer set forth in this Agreement.
B. Other than as specifically stated to the contrary in
this Agreement, each party shall bear all costs and expenses in
connection with the performance of its obligations under this
Agreement, including the cost of any additional marketing efforts
either party wishes to undertake.
5. MARKETING.
A. AT&T may make reasonable use of the name, logo,
trademark and trade name (hereinafter the "Marks") of iMALL in
connection with AT&T's obligations under this Agreement AT&T
understands and agrees, however, that all AT&T marketing efforts
which contain any iMALL ▇▇▇▇, or any reference to iMALL, are
subject to prior review and written approval by IMALL. iMALL
agrees that it will review all such AT&T marketing materials in
a timely fashion and shall notify AT&T in writing of the results
of such review within five (5) business days after AT&T confirms
(verbally or in writing) that the marketing materials were
received by iMALL. iMALL agrees that approval of the marketing
materials shall not be unreasonably withheld Notwithstanding the
foregoing, in the event that iMALL fails to provide such written
notice within five (5) days of receipt, iMALL agrees that such
failure may be interpreted by AT&T as approval of such marketing
materials by iMALL.
B. iMALL shall not use the Marks of AT&T or any reference to
AT&T without the prior written approval of AT&T. AT&T agrees
that it will review all such iMALL marketing materials in a
timely fashion and shall notify iMALL in writing of the results
of such review within five (5) business days after iMALL confirms
(verbally or in writing) that the marketing materials were
received by AT&T AT&T agrees that approval of the marketing
materials shall not be unreasonably withheld. Notwithstanding
the foregoing, in the event that AT&T fails to provide such
written notice within five(5) days of receipt, AT&T agrees that
such failure may be interpreted by iMALL as approval of such
marketing materials by AT&T.
C. The Parties understand and agree that nothing in this
Agreement creates any right, title or interest in the Marks of
the other Party Any use of the other Party's Marks shall inure to
the benefit of the owner of such Marks Upon termination of this
Agreement, any and all rights or privileges of either party to
use the other's Marks shall expire, and each party shall
discontinue use of the other's Marks unless otherwise
specifically agreed in writing.
D. iMALL and AT&T may seek to establish such additional
marketing opportunities as are mutually agreeable AT&T and iMALL
each agree to use good faith efforts to identify and implement
such opportunities Once identified, the terms and conditions of
such opportunities will be included as an amendment to this
Agreement.
6. CONFIDENTIALITY.
A. Except as otherwise provided in this Agreement, any
Confidential Information that is furnished, made available, or
otherwise disclosed by one Party (Disclosing Party) to the other
Party (Receiving Party) in consequence of the existence of this
Agreement, shall be deemed and remain the property of the
Disclosing Party
B. Unless Confidential Information was previously known
to the Receiving Party free of any obligation to keep it
confidential, or has been or is subsequently made public by any
act not attributable to the Receiving Party, or has been agreed
by the Disclosing Party in writing not to be regarded as
confidential, and if the Information is marked as "confidential"
or "proprietary" by an appropriate ▇▇▇▇▇, ▇▇▇▇, or label
thereon, or if orally disclosed, summarized in writing by the
Disclosing Party, stamped or marked as "confidential" or
"proprietary" and delivered to the Receiving Party within ten
(10) business days after such disclosure, it shall be deemed
Confidential Information of the Disclosing Party and shall be
held in confidence by the Receiving Party, and shall
be disclosed by the Receiving Party only to those of its
employees who have a need for such confidential Information to
carry out this Agreement. For the purpose of this Agreement,
Confidential Information shall be deemed to include the customer
list provided by iMALL and the AT&T list of names of the
customers that have accepted the AT&T offer set forth in Section
2A Except as the Parties may otherwise agree in writing,
Confidential Information: (a) shall be used only for the purpose
of performing under this Agreement, (b) shall not be reproduced
or copied, in whole or in part, except as necessary for use as
authorized herein, and (c) shall, together with any copies
thereof, be returned or destroyed when no longer needed or upon
termination of this Agreement, whichever occurs first.
C. Confidential Information may be provided to third
parties only upon written authorization of the Disclosing Party
Any third party to whom Confidential Information is provided
pursuant to such authorization of the Disclosing Party must agree
in writing (a copy of which writing will be furnished to the
Disclosing Party at its request) to the conditions respecting
use of Confidential Information contained in Section 6(A) through
(F) of this Agreement.
D. The Receiving Party shall give prompt notice to the
Disclosing Party of any demand by any third party to provide
Confidential Information under lawful process prior to
furnishing Confidential Information, and shall cooperate in
seeking reasonable protective arrangements requested by the
Disclosing Party. In addition, the Receiving Party may provide
Confidential Information of the Disclosing Party requested by a
government agency having jurisdiction over the Receiving Party,
provided prompt notice of such request is given to the Disclosing
Party and that the Receiving Party uses reasonable business
efforts to obtain protective arrangements satisfactory to the
Disclosing Party, and provided further that the Disclosing Party
may not unreasonably withhold approval of the protective
arrangements.
E. The Disclosing Party shall have the right to demand,
upon unauthorized disclosure of any Confidential Information by
the Receiving Party to a third party, the return of all
Confidential Information disclosed to the Receiving Party, and
that the Receiving Party uses reasonable business efforts to
obtain the return from the third party of all Confidential
Information improperly disclosed, in addition to any other
remedies the Disclosing Party may have.
F. The Parties acknowledge that the terms of this
Agreement constitute Confidential Information that may be
considered proprietary by either or both Parties, and agree to
limit distribution of this Agreement to those individuals in
their respective organizations with a need to know the contents
of this Agreement.
7. TERMINATION.
This Agreement may be terminated upon thirty (30) days' prior
written notice by either party without any liability of any kind
on the part of the terminating party. Either party may
immediately terminate this Agreement by written notice, if the
other party breaches a material provision of this Agreement
Notwithstanding the foregoing, all rights and obligations of the
parties that by their nature should continue after the expiration
or termination of this Agreement shall survive the expiration or
termination of this Agreement; including, without limitation,
iMALL's obligation to honor iMALL Gift Certificate and AT&T's
obligation to pay for all such Gift Certificates sent to AT&T.
8. INDEMNIFICATION.
A. iMALL shall indemnify, defend, and hold harmless
AT&T and its directors, officers, employees, agents, parent,
subsidiaries, successors, and assigns from and against any and
all third party claims, suits, and liabilities (including
reasonable attorneys' fees) arising out of or resulting
from, in whole or in part, any actual or alleged acts or
omissions of iMALL, its employees, agents or contractors in
connection with the performance of or failure to perform its
obligations under this Agreement.
B. AT&T shall indemnify, defend, and hold harmless
iMALL and its directors, officers, employees, agents, parent,
subsidiaries, successors, and assigns from and against any and
all third party claims, suits, and liabilities (including
reasonable attorneys' fees) arising out of or resulting from, in
whole or in part, any actual or alleged acts or omissions of
AT&T, its employees, agents or contractors in connection with the
performance of or failure to perform its obligations under this
Agreement.
9. LIMITATION OF LIABILITY.
EITHER PARTY'S SOLE REMEDY AGAINST THE OTHER FOR LOSS OR
DAMAGE ARISING OUT OF THE PERFORMANCE OR NON-PERFORMANCE
UNDER THIS AGREEMENT SHALL BE PROVEN DIRECT, ACTUAL DAMAGES
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
RELIANCE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
ITS PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT,
WHETHER OR NOT SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
10. NO THIRD PARTY BENEFICIARIES.
This Agreement shall not provide any person not a party to the
Agreement with any remedy, claim, liability, reimbursement,
commission, cause of action or other right in excess of those
existing without reference to this Agreement.
11. INDEPENDENT CONTRACTOR.
A. iMALL is not, and shall not directly or indirectly
hold itself out as, an agent, partner, franchisee or joint
venturer of AT&T. Further, iMALL shall not directly or indirectly
hold itself out as having any relationship to AT&T other than
that arising from this Agreement or other agreement between the
parties. iMALL is an independent contractor with respect to the
services it provides under this Agreement and shall have no
authority to bind AT&T to any contract or otherwise make
representations as to the policies or procedures of AT&T other
than those expressly permitted by AT&T in writing or stated in
this Agreement, AT&T's tariffs, or current, official literature
or price lists given to iMALL by AT&T.
B. AT&T is not, and shall not directly or indirectly hold
itself out as, an agent, partner, franchisee or joint venturer of
iMALL. Further, AT&T shall not directly or indirectly hold itself
out as having any relationship to iMALL other than that arising
from this Agreement or other agreement between the parties AT&T
is an independent contractor with respect to the services it
provides under this Agreement and shall have no authority to
bind iMALL to any contract or otherwise make representations as
to the policies or procedures of iMALL other than those expressly
permitted by iMALL in writing or stated in this Agreement.
12. ASSIGNMENT.
No assignment of this Agreement shall be made by either party
without the written consent of the other party; provided,
however, that such consent is not required when the proposed
assignment is to be made to any parent, subsidiary or parent,
affiliate or successor of AT&T. In the event of an assignment to
a parent, subsidiary, affiliate or successor of AT&T, AT&T shall
remain fully liable for the assignee's performance and breach of
any provisions hereof applicable to AT&T. In the event of any
other assignment made with the written consent of the other
party, the assignee shall assume all liability of the assignor.
13. AGENTS.
Any party may engage one or more agents or affiliates to perform
portions of its responsibilities under this Agreement, provided,
however, that the party engaging an agent or affiliate will
remain responsible to the other party for performance under this
Agreement, including the performance of its agent or affiliate.
14. FORCE MAJEURE.
A party's delay in, or failure of, performance under this
Agreement shall be excused where the delay or failure is caused
by an act of God, fire or other catastrophe, electrical,
computer or mechanical failure, work stoppage, delays or failure
to act of any carrier or carrier's agent or any other cause
beyond a party's direct control.
15. SURVIVAL OF OBLIGATION.
The obligations of the parties under Articles 6, 8 and 9 of this
Agreement shall survive any termination or cancellation of this
Agreement for the maximum period permitted by law or such shorter
period as provided for by this Agreement.
16. CHOICE OF LAW.
The construction, interpretation and performance of this
Agreement shall be governed by the laws of the State of New York.
If any provision of this Agreement is held contrary to law, the
remaining provisions shall remain valid.
17. NO WAIVER.
The failure of any party at any time to enforce any right or
remedy available to it under this Agreement with respect to any
breach or failure by the other party shall not be construed to
be a waiver of such right or remedy.
18. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements, oral or written
representations, statements, negotiations, proposals and
undertakings with respect to the subject matter hereof This
Agreement shall not be modified or amended except by a writing
signed by an authorized agent of the party to be charged. Should
any provision of this Agreement be deemed by a court of competent
jurisdiction to be void, invalid or inoperative, the remainder of
the Agreement shall be effective as though such void, invalid or
inoperative provision had not been contained herein.
19. HEADINGS AND CAPTIONS.
The headings and captions contained in this Agreement are
inserted for convenience only and shall not constitute a part
hereof.
20. DUPLICATE ORIGINALS.
This Agreement may be signed in any number of counterparts with
the same effect as if the signatures were on the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first written above.
AT&T COMMUNICATIONS, INC. iMALL, INC.
CORPORATE
By: /S/ ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: Product Marketing Title: Senior Vice
Vice President President
Online Expo 96
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