NEWDEAL - MYTURN
CROSS-LICENSE AND DISTRIBUTION AGREEMENT
This Agreement is effective as of February 12, 2000 (the "Effective Date"), by
and between NewDeal, Inc., a Delaware corporation ("NewDeal"), whose principal
address is ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇, and ▇▇▇▇▇▇.▇▇▇, Inc., a Delaware
corporation ("MyTurn"), whose principal address is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
A. NewDeal is an online service provider and developer and publisher of
computer software, as well as the worldwide exclusive licensee of the GEOS
operating environment and application suite for Personal Computers and
Internet terminals or devices with hard disk or other non-solid state mass
storage devices, marketed by NewDeal as a suite of integrated applications
under various names and configurations, such as "NewDeal Office," "NewDeal
SchoolSuite," and "NewDeal WebSuite".
B. NewDeal is also a developer and publisher of aftermarket products for use
in conjunction with GEOS and the NewDeal integrated application suites.
C. MyTurn is an online service provider and developer and publisher of
computer software, as well as the worldwide exclusive licensee of the
GEOS(R) operating environment and application suite for personal Computers
and Internet terminals or devices with solid state storage devices.
D. MyTurn is also a developer, reference design licensor, manufacturer and
distributor of low-cost personal computers and Internet terminals and
devices.
E. The software products of both NewDeal and MyTurn are derived, in part, from
the GEOS(R) graphical operating environment and GEOS-based applications
licensed respectively to NewDeal and to MyTurn by Geoworks Corporation.
F. NewDeal wishes to license its software technologies to MyTurn, for use by
MyTurn in conjunction with its personal computer and Internet terminal
products.
G. NewDeal further wishes to selectively authorize MyTurn to distribute
NewDeal's after-market products through MyTurn's distribution channels.
H. MyTurn wishes to license its software technologies to NewDeal, for use by
NewDeal in conjunction with its application suites and to authorize NewDeal
to distribute MyTurn's aftermarket products and personal computer products
in the Educational Market and the Non-Profit markets (eg. 501(C)3 and
similar organizations).
I. Each Party wishes to license to the other certain improvements, bug fixes,
upgrades, extensions, enhancements, tools, and documentation it makes or
adds to its licensed technology, certain new products and technologies that
each party develops, or that are jointly developed, or are developed in
conjunction with third parties.
1. DEFINITIONS
1.1 "Party" and "Parties" refer to NewDeal and MyTurn.
1.2 "NewDeal Market(s)" means all markets and channels that NewDeal
sells GEOS and the NewDeal Application Suites to and through for Used
Computers, and the following markets and channels for New Computers:
(a) New Computers that have a pre-installed current version of
Microsoft Windows with a paid license, except that for these New
Computers NewDeal shall exclude the Consumer User Interface
(CUI).
(b) Africa, on a non-exclusive OEM basis, where the OEM agrees
contractually not to ship outside of Africa and agrees to require
its distributors to contractually agree not to ship outside of
Africa.
(c) where GEOS and the NewDeal Application Suite(s) are embedded
in a solid state device for a New Computer that is powered by a
mechanical (e.g. spring) electrical energy source.
1.3 "NewDeal Territory(ies)" means worldwide.
1.4 "NewDeal Licensed Technology" means the GEOS operating environment
and applications licensed to NewDeal by Geoworks and all bug fixes,
enhancements, upgrades, extensions, tools, documentation or new
technology made or added thereto and included in NewDeal's Application
Suite products, however configured and named, as more completely
described in Exhibit A.
1.5 "NewDeal Application Suite" means the GEOS operating system, a
suite of integrated applications, software development tools, and End
User documentation, all as licensed, developed and/or enhanced by
NewDeal.
1.6 "NewDeal Bundled Items" means any product, technology, or
documentation that NewDeal customarily includes with a NewDeal
Application Suite, or otherwise provides to End Users of a NewDeal
Application Suite, at no separate charge where NewDeal has the right
to license such technology to MyTurn.
1.7 "NewDeal After-Market Products" means any product, technology, or
documentation that NewDeal publishes for use in connection with a
NewDeal Application Suite, for which NewDeal imposes a charge separate
from the charge for the NewDeal Application Suite.
1.8 "MyTurn Market(s)" means the New Computer market(s) where GEOS and
the GlobalPC Applications Suite are preinstalled on a New Computer,
except for New Computers as identified in Clause 1.2 (a).
1.9 "MyTurn Territory(ies)" means worldwide, excluding all countries
on the continent of Africa.
1.10 "MyTurn Licensed Technology" means the GEOS operating environment
and applications licensed to MyTurn by Geoworks and NewDeal
respectively, and all bug fixes, enhancements, upgrades, extensions ,
tools, documentation or new technology made or added thereto and
included in the software component of MyTurn's products, including
GlobalPC Application Suite, Bundled Items and Aftermarket products,
however configured and named, as more completely described in Exhibit
A, excluding the GEOS operating environment embedded in solid-state
storage devices except as provide for in Section 1.2C.
1.11 "GlobalPC Application Suite" means the GEOS operating system, a
suite of integrated applications, software development tools, and End
User documentation, as licensed, developed and/or enhanced by MyTurn.
1.12 "GlobalPC Bundled Items" means any technology, product, or
documentation that MyTurn includes with a GlobalPC Application Suite,
or otherwise provides to End Users of a GlobalPC Application Suite, at
no separate charge where MyTurn has the right to license such
technology to NewDeal.
1.13 "MyTurn Aftermarket Products" means any technology, product or
documentation that MyTurn publishes for use in connection with a
GlobalPC Application Suite, for which MyTurn imposes a charge separate
from the charge for the GlobalPC Application Suite.
1.14 "GlobalPC Device" means a New Computer designed and manufactured
by or for MyTurn or its sublicensees.
1.15 "Third Party Technology" means any software, hardware,
documentation or other technologies that are licensed to a Party by
third parties and included or bundled with the Party's MyTurn Licensed
Technology or NewDeal Licensed Technology as the case nay be.
1.16 "Educational Market" means public or private institutions
providing education to students in kindergarten through twelfth grade
(K-12), and non-college adult education.
1.17 "Computer" includes (1) a general-purpose personal computer,
whether sold with or without a monitor; (2) an Internet terminal or
device (i.e., a terminal including a browser, e-mail client and
internal modem, the purpose which is to access the Internet,
world-wide-web pages or similar network services), whether or not
capable of functioning as a stand-alone Personal Computer, but not
marketed as such; and (3) dedicated word processors.
1.18 "New Computer" means a Computer that includes a CPU based upon
the Intel X86 or Pentium(C) architecture and contains a hard drive or
non-solid state storage device, and is sold as a New Computer or
Internet terminal or device.
1.19 "Used Computer" means a Computer or Internet terminal or device
that is sold or donated to End Users as a used or refurbished Computer
or Internet terminal or device, or is a currently owned Computer or
Internet terminal or device.
1.20 "GEOS" means the GEOS operating system licensed by Geoworks
Corporation to NewDeal and to MyTurn, together with any enhancements,
bug fixes, upgrades, extensions, tools, documentation or technology
made or added thereto developed by either Party, or developed with, or
for, or licensed to, either party by a third party and transferable to
the other party within the licensing agreement between the licensor
and either NewDeal or MyTurn.
1.21 "End User" means any person, organization or entity that acquires
a copy of either Party's Licensed Technology for its own use and not
for resale.
1.22 "Manufacturer" means any person or entity to whom a Party has
granted a right to manufacture copies of NewDeal Licensed Technology
or MyTurn Licensed Technology and/or GlobalPC Devices.
1.23 "Distributor" means any person or entity to whom a Party has
granted a right to distribute NewDeal or MyTurn Licensed Technology
(i) to End Users, or (ii) to resellers for further distribution to End
Users.
1.24 "OEM" means any person or entity to whom a Party grants a right
to manufacture and distribute copies of NewDeal or MyTurn Licensed
Technology preinstalled on a New or Used Computer or Internet terminal
or device.
1.25 "Pre-Installed" means copied onto the internal hard disk or other
storage media (other than solid state media) of a Computer or Internet
terminal or device prior to sale of the Computer or Internet terminal
or device to an End User.
1.26 "Product Shipment" means a shipment of a unit of a
royalty-bearing product by a Party, or by an OEM of a Party, to a
Distributor, End User or other customer.
1.27 "Derivative Work" means (1) for material subject to copyright
protection, any work which is based upon any MyTurn Licensed
Technology and/or NewDeal Licensed Technology, such as bug fixes,
enhancements, upgrades, extensions and additions, tools, documentation
or technology; (2) for patentable or patented materials, any
adaptation, subset, addition, improvement or combination of MyTurn
Licensed Technology and/or NewDeal Licensed Technology; and (3) for
material subject to trade secret protection, any new material,
information or data relating to and derived from MyTurn Licensed
Technology and/or NewDeal Licensed Technology.
1.28 "Intellectual Property Rights" means patents, design patents, and
designs (whether or not capable of registration), chip topography
rights and other like protection, copyright, and any other form of
statutory protection of any kind (other than trademarks) and
applications for any of the foregoing respectively, all moral rights,
including rights of paternity and integrity, Confidential Information,
know-how and trade secrets.
1.29 "Consumer User Interface" refers to the simplified user interface
for GEOS designed for entry level users and accessible from the
advanced or industry standard user interface for GEOS.
1.30 "Authorized Personnel" means each respective Party's employees,
consultants and other third-party contractors which have entered into
a contract with such Party, which contracts shall provide, among other
things, that such contracting third-parties shall comply with the
confidentiality and source code access terms and conditions of this
contract applicable to it pursuant to the terms hereof.
1.31 "Licensed Technology" means the MyTurn Licensed Technology and/or
the NewDeal Licensed Technology as the context requires.
2. GRANT OF LICENSES FROM NEWDEAL TO MYTURN
Subject to Section 2.6(Reserved Rights), NewDeal grants to MyTurn, for the term
of this Agreement, the following licenses:
2.1 Reproduction
(a) Object Code: a non-transferable (except as provided in
Section 18.1 (Assignment)), worldwide license to reproduce copies
of the object code of the NewDeal Licensed Technology and copies
of the object code of Derivative Works based thereon, and the
right to sublicense such reproduction rights to New Computer
Manufacturers and OEMs of MyTurn, all such sublicenses to be in
writing and subject to the terms, conditions and limitations of
this Agreement; and
(b) Source Code: a non-transferable (except as provided in
Section 18.1 (Assignment)), worldwide license to reproduce copies
of the source code of the NewDeal Licensed Technology (excluding
the original source code licensed to NewDeal by Geoworks, for
which MyTurn has a direct source code license from Geoworks, and
any Third Party Technology for which NewDeal does not have the
right to grant source code access to MyTurn) and copies of
Derivative Works, for internal use by MyTurn in carrying out its
rights and obligations under this Agreement. NewDeal shall
provide all iterations of its source code to MyTurn in a timely
fashion and in such manner as MyTurn may reasonably request, and
NewDeal shall not under any circumstances prevent access to
NewDeal source code except for breach of contract, and then only
with due process.
2.2 Modification, Derivative Works
(a) a non-exclusive, non-transferable (except as provided in
Section 18.1 (Assignment)), worldwide license to modify the
source code to the NewDeal Licensed Technology, (excluding any
Third Party Technology for which NewDeal does not have the right
to grant source code modification rights to MyTurn), and to
create Derivative Works, provided that any warranty against
infringement, indemnity obligation, or maintenance or support
obligation given by NewDeal under the provisions of this
Agreement shall not apply to modifications or Derivative Works
made by or for MyTurn, or to portions of the NewDeal Licensed
Technology affected by such modifications or Derivative Works.
(b) For purposes of this Modification license, NewDeal grants to
MyTurn a non-exclusive, non-transferable (except as provided in
Section 18.1 (Assignment)) internal license to use the software
development tools and documentation included in the NewDeal
Licensed Technology.
2.3 Distribution
(a) Application Suite and Bundled Items in GlobalPC Devices: a
royalty-bearing, non-transferable (except as provided in Section
18.1 (Assignment)), worldwide license to distribute the NewDeal
Application Suite(s) and NewDeal Bundled Items, and Derivative
Works based thereon, preinstalled in New Computers, in object
code form only, and the right to sublicense such distribution
rights to OEMs and Manufacturers of MyTurn, all such sublicenses
to be in writing and subject to the terms, conditions and
limitations of this Agreement.
(b) After-Market Products: a royalty-bearing, non-transferable
(except as provided in Section 18.1 (Assignment)), worldwide
license to distribute the NewDeal After-Market Products
(excluding After-Market Products marketed to the Educational
Market) to OEMs and Manufacturers of MyTurn, and directly to End
Users for the MyTurn markets. For each NewDeal After-Market
Product, the Parties shall amend Exhibits A and B to this
Agreement, identifying the product and setting forth the
applicable royalty rate, the conditions of exclusivity under
section 2.7(c), if applicable, and other mutually agreeable terms
and conditions. If the Parties are not able to reach agreement as
to the terms of distribution after good faith negotiations, then
NewDeal may sell it itself or offer distribution rights for the
NewDeal After-Market Product to another party.
(d) End User License. MyTurn and its sublicensees will distribute
the NewDeal Licensed Technology and Derivative Works to End Users
only under the terms of an End User license substantially in the
form provided as Exhibit C.
(d) Tools. NewDeal shall be entitled to create and make available
to third party developers and End Users a software development
kit (SDK) for
developing applications for "GEOS 2000" (as amended from time to
time) and compatible with NewDeal Licensed Technology and/or
MyTurn Licensed Technology.
2.4 Sublicense Rights. MyTurn shall have the right to sublicense the
foregoing license rights to OEMs and Manufacturers of MyTurn, all such
sublicenses to be in writing and subject to the terms, conditions and
limitations of this Agreement.
2.5 Derivative Works, Enhancements and Third Party Technologies
(a) Derivative Works and Enhancements. The licenses granted to
MyTurn in this Section 2 shall, at MyTurn's election, include and
extend to all Derivative Works, enhancements, extensions,
upgrades, updates, bug fixes and revisions to the Licensed
Technology that NewDeal develops, or to which NewDeal acquires
distribution rights, during the term of this Agreement.
(b) Third Party Technologies. The licenses granted to MyTurn in
this Section 2 shall, at MyTurn's election, also include
sublicenses, with the exception of patent licenses, to any Third
Party Technology to which NewDeal acquires license rights during
the term of this Agreement; provided, however, that such Third
Party Technologies shall be included in the licenses granted to
MyTurn hereunder only to the extent that the license agreement
between the Third Party Technology provider and NewDeal so
permits. NewDeal will use its best commercially reasonable
efforts to obtain such sublicense rights from its Third Party
Technology providers, especially for Atlas, Encyclopedia and
Dictionary products.
(c) Exhibit A shall be amended from time to time to add any
technologies that are included in this Agreement as provided in
this Section 2.5.
2.6 Reserved Rights
(a) NewDeal reserves to itself and its licensees the exclusive
right to manufacture and distribute the NewDeal Licensed
Technology preinstalled in Used Computers and New Computers as
defined in section 1.2 (a) and 1.2 (b).
(b) Subject to any NewDeal After-Market Products distribution
rights that may be granted to MyTurn in Section 2.3(b) of this
Agreement, NewDeal reserves to itself and its licensees the
exclusive right to sell the NewDeal Licensed Technology to End
Users separately from the sale of a Computer.
2.7 Exclusivity of Rights Granted to MyTurn
(a) Exclusivity. Subject to Section 2.6 (Reserved Rights) and
Section 2.7(b) (Conditions of Exclusivity), the rights granted to
MyTurn in this Section 2 shall be exclusive to MyTurn during the
term of this Agreement.
(b) Conditions of Exclusivity for New Computers. The rights
granted to MyTurn in Sections and 2.1, 2.2 and 2.3(a) shall
become nonexclusive if MyTurn fails to meet the performance
requirements set forth in Exhibit A or B to this Agreement;
provided, however, MyTurn, provided it is not in default of any
other requirement under this contract, may maintain its
exclusivity by paying to NewDeal, no later than the last day of
each applicable period, an amount by which it is short of the
performance requirement, as set forth in Exhibit B.
(c) Conditions of Exclusivity for Aftermarket Products. The
rights granted to MyTurn in Section 2.1, 2.2 and 2.3(b) shall
become nonexclusive if MyTurn fails to meet the performance
requirements set forth in Exhibit A or B attached to this
Agreement; provided, however, that MyTurn may maintain its
exclusivity by paying to NewDeal, no later than the last day of
each applicable period, an amount by which it is short of the
performance requirement, as set forth in the Exhibit B.
3. GRANT OF LICENSE FROM MYTURN TO NEWDEAL
MyTurn grants to NewDeal, for the term of this Agreement, the following
licenses:
3.1 Reproduction
(a) Object Code: a non-transferable (except as provided in
Section 18.1 (Assignment)), worldwide, exclusive license for the
NewDeal Markets to reproduce copies of the object code of the
MyTurn Licensed Technology, and copies of the object code of
Derivative Works based thereon, for sale to End users, and the
right to sublicense such reproduction rights to Computer
Manufacturers of and OEMs of NewDeal, all such sublicenses to be
in writing and subject to the terms, conditions and limitations
of this Agreement; and
(b) Source Code: a non-transferable (except as provided in
Section 18.1 (Assignment)), worldwide, exclusive license for the
NewDeal Markets to reproduce copies of the source code of the
MyTurn Licensed Technology (excluding any Third Party Technology
for which MyTurn does not have the right to grant source code
access to NewDeal) and of Derivative Works, for internal use by
NewDeal in carrying out its rights and obligations under this
Agreement. MyTurn shall provide all iterations of its source code
to NewDeal in a timely fashion and in such manner as NewDeal may
reasonably request, and MyTurn shall not under any circumstances
prevent access to MyTurn source code except for breach of
contract, and then only with due process.
(c) Solid State License: a non-transferable (except as provided
for in Section 18.1 (Assignment)) worldwide, non-exclusive
license to reproduce copies of the object code of the MyTurn
Licensed Technology, and copies of the object code of Derivative
Works based thereon, and the right to sublicense such
reproduction rights to Manufacturers of and OEMs of NewDeal, when
embedded in solid state devices for New
Computers that have a mechanical electrical generation
capability, with all such sublicenses to be in writing and
subject to the terms, conditions and limitations of this
Agreement.
3.2 Modification, Derivative Works
(a) a non-exclusive, non-transferable (except as provided in
Section 18.1 (Assignment)), worldwide license to modify the
source code to the MyTurn Licensed Technology (excluding any
Third Party Technology for which MyTurn does not have the right
to grant modification rights to NewDeal), and to create
Derivative Works, provided that any warranty against
infringement, indemnity obligation, or maintenance or support
obligation given by MyTurn under the provisions of this Agreement
shall not apply to modifications or Derivative Works made by or
for NewDeal, or to portions of the MyTurn Licensed Technology
affected by such modifications or Derivative Works. For purposes
of this Modification license, MyTurn grants to NewDeal a
non-exclusive, non-transferable (except as provided in Section
18.1 (Assignment)) internal license to use the software
development tools and documentation included in the MyTurn
Licensed Technology.
(b) For purposes of this Modification license, MyTurn grants to
NewDeal a non-exclusive, non-transferable (except as provided in
Section 18.1 (Assignment)) internal license to use the software
development tools and documentation included in the MyTurn
Licensed Technology.
3.3 Distribution
(a) Application Suite and Bundled Items: a non-royalty-bearing,
non-transferable (except as provided in Section 18.1
(Assignment)), worldwide license to distribute the MyTurn
Licensed Technology, and Derivative Works based thereon, to OEMs,
Manufacturers, Distributors and End Users in all NewDeal Markets.
All copies so distributed must be (1) in object code form only;
and for New Computers are subject to the feature and distribution
terms defined in Clauses 1.2 (a), and 1.2(b).
(b) Aftermarket Products: a royalty bearing, non-transferable
(except as provided in Section 18.1 (Assignment)), worldwide
license to distribute the MyTurn Aftermarket Products to End
Users in the NewDeal Market, in the NewDeal Territory. For each
MyTurn Aftermarket Product, the Parties shall amend Exhibits A
and B to this Agreement, identifying the product and setting
forth the applicable royalty rate, the conditions of exclusivity,
if applicable, and other mutually agreeable terms and conditions.
If the Parties are not able to reach agreement as to the terms of
distribution after good faith negotiations, then MyTurn may offer
distribution rights for the MyTurn Aftermarket Product in the
Education Market to another party.
(c) GlobalPC Devices: a non-exclusive appointment as a MyTurn
sales representative for the sale of GlobalPC Devices to the
Educational Market.
(d) End User License. NewDeal and its sublicensees will
distribute the MyTurn Licensed Technology and Derivative Works to
End Users only under the terms of an End User license
substantially in the form provided as Exhibit C.
(e) Sublicense Rights. NewDeal shall have the right to sublicense
the foregoing distribution rights to OEMs, Manufacturers and
Distributors of NewDeal for all NewDeal Markets, all such
sublicenses to be in writing and subject to the terms, conditions
and limitations of this Agreement for all Used Computers and New
Computer markets as defined in Section 1.2 (a) and 1.2 (b).
(f) Tools. MyTurn shall be entitled to create and make available
to third party developers and End Users a software development
kit (SDK) for developing applications for "GEOS 2000" (as amended
from time to time) and compatible with MyTurn Licensed Technology
and/or NewDeal Licensed Technology.
3.4 Derivative Works, Enhancements and Third Party Technologies
(a) Derivative Works and Enhancements. The licenses granted to
NewDeal shall, at NewDeal's election, include and extend to all
Derivative Works, enhancements, upgrades, extensions, updates,
bug fixes and revisions to the MyTurn Licensed Technology that
MyTurn develops during the term of this Agreement.
(b) Third Party Technologies. The licenses granted to NewDeal
shall, at NewDeal's election, also include sublicenses, with the
exception of patent licenses, to any Third Party Technology to
which MyTurn acquires license rights during the term of this
Agreement; provided, however, that such Third Party Technologies
shall be included in the licenses granted to NewDeal hereunder
only to the extent that the license agreement between the Third
Party Technology provider and MyTurn so permits. MyTurn will use
its best commercially reasonable efforts to obtain such
sublicense rights from its Third Party Technology providers,
especially for Atlas, Encyclopedia and Dictionary products.
(c) Exhibit A shall be amended from time to time to add any
technologies that are included in this Agreement as provided in
this Section 3.4.
4. PRODUCT RELEASE AND ANNOUNCEMENTS
4.1 Product Release. Each Party shall have the sole right to determine
when its NewDeal Licensed Technology and/or MyTurn Licensed Technology as
the case may be, and products are demonstrated, externally tested,
announced, disclosed and released. Neither Party shall publicly
demonstrate, test, announce, disclose or release any
such technology or product without the prior written consent of the other
Party, except to comply will disclosure obligations under any law, rule or
regulation applicable to it.
4.2 Acknowledgments. Neither Party shall use the other Party's name or
the name of its products in promotional literature or marketing materials,
without the prior approval from the other Party. Such approval shall not to
be unreasonably withheld or delayed, but may be withheld prior to a Party's
planned product launch or announcement, or in order to protect confidential
information and proprietary rights. Each Party shall promptly review
(within five (5) business days) all such requests made under this
Subsection
5. MANUFACTURERS and OEMS
Each Manufacturer and OEM of a Party that is granted sublicense rights under
Sections 2 or 3 must agree in writing:
5.1 to accept that no ownership rights to the MyTurn Licensed
Technology and/or NewDeal Licensed Technology as the case may be, or to
Derivative Works are transferred to the Manufacturer or OEM;
5.2 to include on all copies of the MyTurn Licensed Technology and/or
NewDeal Licensed Technology as the case may be, and Derivative Works, and
on all related packaging, manuals and promotional materials, all
proprietary, copyright, trade secret and other notices of the Parties in
accordance with 10.7 (Acknowledgment of Parties) hereof;
5.3 not to decompile or reverse engineer the MyTurn Licensed
Technology and/or NewDeal Licensed Technology as the case may be, or
Derivative Works;
5.4 to keep records showing the number of copies of the MyTurn
Licensed Technology and/or NewDeal Licensed Technology as the case may be,
and Derivative Works manufactured, and the number of copies distributed;
5.5 to furnish to the Party granting the sublicense rights, within 30
days from the end of each calendar quarter, a signed statement showing the
number of copies so made and the number of copies so distributed, and to
allow both MyTurn and NewDeal to have such statements examined and audited
by an independent auditor to the extent necessary to verify such
statements, subject to the audit conditions set forth in Section 9.6
Audits); and
5.6 to be bound by the provisions of this Agreement, and to permit
both MyTurn and NewDeal to enforce such provisions against such
Manufacturers and OEMs, provided that the appointment of Manufacturers and
OEMs by a Party shall not in any respect create any relationship between
the other Party and such persons.
6. END USER SUPPORT
6.1 MyTurn. MyTurn shall have the responsibility and authority to
provide first-level customer support to End Users in accordance with
commercially reasonable and customary customer support practices, for (a)
GlobalPC Devices, and (b) software products that are distributed under the
MyTurn brand and are labeled for use on GlobalPC Devices.
6.2 NewDeal. NewDeal shall have the responsibility and authority to
provide first-level customer support to all End Users in the NewDeal
Market(s) in the NewDeal Territory(ies), in accordance with commercially
reasonable and customary customer support practices.
6.3 Second Level Support. In the event that a Party's technical
personnel are unable to answer End Users' question(s) regarding the other
Party's Licensed Technology after using reasonable efforts, such technical
personnel may contact the other Party at its principal place of business in
the United States with respect to such technical support questions.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Licensed Technologies. Each Party and its licensors are and
shall remain the owners of all Intellectual Property Rights in and to their
respective Licensed Technology.
7.2 The GlobalPC Devices. MyTurn is and shall remain the owner of all
Intellectual Property Rights in and to the GlobalPC Devices.
7.3 Derivative Works
(a) Each Party shall own the Intellectual Property Rights in and
to any Derivative Works made by it during the course of this
Agreement, or made for it by third parties.
(b) Each Party's Intellectual Property Rights in Derivative Works
shall not extend to the underlying Licensed Technology or
underlying Derivative Works owned by the other Party, but only to
the modifications thereto made by or for MyTurn or NewDeal.
(c) Where the contributions of NewDeal and MyTurn to the creation
of a Derivative Work are interlinked, the Parties agree to
specific ownership rights as defined in Exhibit A; provided
however, that such jointly-owned Intellectual Property Rights
shall not extend to the underlying Licensed Technology or
underlying Derivative Works owned by either Party, as set forth
above, but only to the modifications thereto made jointly
(d) Each Party shall take all actions and execute all documents
that are necessary to assign to the other its ownership interest
in any jointly owned Intellectual Property Rights. Neither Party
shall be required to obtain the consent of, or account to, the
other Party for the exploitation of the rights covered by any
such jointly-owned Intellectual Property Rights, except that
neither Party shall have the authority to grant an exclusive
license under any such rights without the prior written consent
of the other Party.
8. OTHER TERMS
8.1 Co-Marketing. Each Party will provide the other Party with the
following marketing support: each Party will provide the other party's logo
in an agreed size, as a link to the other's specified URL, in the partners
section of each Party's "corporate" web site.
9. PAYMENTS
9.1 Royalty Payments and Reimbursements. In consideration for the
licenses granted in Sections 2 and 3, each Party agrees to pay to the other
Party the royalty payments, and to reimburse the other Party for the cost
of Third Party Technologies, as set forth in Exhibit B. Royalty payments
and reimbursements are due and payable within forty-five (45) days after
the close of the calendar quarter in which applicable revenue is received.
9.2 Not For Resale Units. Neither Party will incur any royalty
payments (except for reimbursement to the other Party for Third Party
Technologies as identified in Exhibit B) for a reasonable number of
promotional, "not for resale" units of GlobalPC Devices and/or copies of
software products provided free of charge to End Users or to Distributors,
or for units used by a Party solely for demonstration, evaluation or review
purposes, and/or for customer support, or, in the case of NewDeal, large
scale electronic download trial programs to End-Users; provided, however,
that a royalty payment will become due if and when the Party receives a
payment or other compensation for any such units or uses such units for
internal use other than as set forth in this Section. NewDeal shall have
the right to freely distribute royalty free (except for applicable third
party royalties) copies of NewDeal Licensed Technology through the NewDeal
Foundation to educational, faith-based, Non-Governmental Organizations and
non-profit organizations.
9.3 Currency. All payments under this Agreement are to be made in U.S.
dollars.
9.4 Records. During the term of this Agreement and for twelve (12)
months hereafter, each Party shall maintain complete and correct records
establishing the amount of royalties and other payments due hereunder.
9.5 Reports. No later than forty five (45) days after the end of each
calendar quarter, each Party shall send to the other Party a report
detailing for such quarter:
(a) The number of units of Product Shipment, including a
breakdown as applicable by Product, version and country; and
(b) A detailed account of all royalty and other amounts due and
the basis for calculation.
9.6 Audits. During the term of this Agreement and for twelve (12)
months after the expiration or any termination of this Agreement, an
independent third-party representative of a Party, reasonably acceptable to
the other Party, upon reasonable notice and during the audited Party's
normal business hours, shall have the right to conduct an audit of the
relevant portions of the other Party's books of account to verify
compliance with this Agreement. The audited Party shall immediately pay any
overdue payments revealed by such audit(s), together with interest thereon
at the rate of 1.5% per month (or the maximum permitted by applicable law,
if less) from the due date until paid. Except as set forth below, such
audit(s) may be conducted no more than once in any twelve-month period. The
Party conducting the audit shall bear the costs of the audit; provided,
however, if the audit reveals overdue payments in excess of five percent
(5%) of the total royalty payable for any twelve-month period, the audited
Party shall pay the costs of such audit. All information obtained by the
auditors shall be treated as Confidential Information as defined in Section
16 (Nondisclosure and Restricted Use).
10. BRANDING AND PROPRIETARY MARKINGS
10.1 The GlobalPC Device shall be branded and labeled solely as a
MyTurn product unless otherwise agreed in writing, whether it is
distributed by MyTurn or sold by NewDeal.
10.2 All NewDeal Licensed Technology that is distributed by MyTurn
shall be branded and labeled (including product screen displays, packaging
and documentation) as a MyTurn product, and MyTurn shall appropriately
indicate NewDeal's intellectual property, including, without limitation,
copyrights, trademarks and the like, unless the parties agree otherwise.
10.3 All MyTurn Licensed Technology that is distributed by NewDeal
shall be branded and labeled (including product screen displays, packaging
and documentation) as a NewDeal product, and NewDeal shall appropriately
indicate MyTurn's intellectual property, including, without limitation,
copyrights, trademarks and the like, unless the parties agree otherwise.
10.4 NewDeal shall not use the "GlobalPC" trademark, name, label or
logo (or any other ▇▇▇▇ that MyTurn uses to identify the GlobalPC Device)
on or in conjunction with the sale or marketing of any product (other than
the commissioned sales of GlobalPC Devices by NewDeal as provided in
Exhibit B). NewDeal shall not represent that any product "operates on" or
is "comparable to," "compatible with," or "designed for" the GlobalPC
Device or any GlobalPC-branded software, without MyTurn's prior written
approval which shall not be unreasonably withheld and shall be provided in
a timely manner. Both Parties will specify on their packaging that their
products are compatible with the "GEOS 2000" operating system, as may be
amended from time to time, provided that both Parties have the right from
Geoworks to include such markings.
10.5 Neither Party shall represent represent that it's products are an
"upgrade" (or comparable designation) to any product distributed by the
other Party, unless the parties agree otherwise.
10.6 Notwithstanding the foregoing, the Parties shall comply with any
branding and labeling requirements applicable to Third Party Technologies.
10.7 Each Party agrees to include the other Party's proprietary
notices in the "About" menu in the software and in the End User
documentation for the Licensed Technology.
10.8 Acknowledgements. Each Party shall be entitled to use the other
Party's name and the name of its products in promotional literature and
marketing materials, upon receipt of prior approval from the other Party,
such approval not to be unreasonably withheld or delayed.
11. NEWDEAL'S INDEMNITIES
11.1 Indemnity. NewDeal will defend MyTurn against, and pay any
resulting awards and settlements arising from, any claim, demand, suit or
action to the extent it alleges that the NewDeal Licensed Technology as
supplied by NewDeal infringes upon any United States patent issued as of
the Effective Date of this Agreement (or, with respect to revisions,
enhancements or updates, as of the date that any such item is supplied to
MyTurn by NewDeal), or any copyright or trade secret of any third party,
provided that (1) MyTurn promptly informs NewDeal in writing of any such
claim, demand, action or suit, (2) NewDeal is given control over the
defense thereof and MyTurn cooperates in the defense, at NewDeal's expense,
and (3) MyTurn will not agree to the settlement of any such claim, demand,
action or suit prior to a final judgment thereon without the prior written
consent of NewDeal, which consent will not be unreasonably withheld. MyTurn
shall have the right to select its own counsel to participate in any such
defense, at MyTurn's expense. NewDeal's indemnity obligations do not apply
to (1) modifications made to the NewDeal Licensed Technology by anyone
other than NewDeal, (2) use of a superseded infringing version of the
Licensed Technology by MyTurn after release of a non-infringing version by
NewDeal in accordance with Section 11.2 hereof, and (3) any use or
combination of the Licensed Technology with any technology, software or
hardware not supplied by NewDeal, if such alleged infringement would be
avoided by use of the Licensed Technology alone or with other technology,
software or hardware.
11.2 Response to Infringement Claim. If a claim, demand, suit or
action alleging infringement is brought, or if NewDeal reasonably believes
one may be brought (based upon the opinion of independent counsel), NewDeal
shall have the option at its
expense to (1) modify the NewDeal Licensed Technology to avoid the
allegation of infringement, (2) obtain for MyTurn a license to continue
reproducing and distributing the NewDeal Licensed Technology, or (3) if
neither (1) nor (2) is reasonably practicable in NewDeal's discretion,
terminate this Agreement as to the affected NewDeal Licensed Technology, as
to a portion thereof, or as to a specific MyTurn Product or Products, upon
written notice.
11.3 Limitations. This Section 11 (NEW DEAL's INDEMNITIES) sets forth
NewDeal's entire liability to MyTurn for any actual or alleged infringement
or misappropriation of any third party's intellectual property rights
arising out of the NewDeal Licensed Technology. In no event shall NewDeal's
aggregate liability to defend and indemnify under Section 11 (NEWDEAL'S
INDEMNITIES) exceed an amount equal to two times the total of all amounts
paid or payable by MyTurn to NewDeal under this Agreement. The foregoing
amounts shall be determined as of the date that the infringement claim is
finally settled or, if there is no settlement, as of the date that a final
decision is made by a court or arbitrator in the infringement action.
12. MYTURN'S INDEMNITIES
12.1 Indemnity. MyTurn will defend NewDeal against, and pay any
resulting awards and settlements arising from any claim, demand, suit or
action to the extent it alleges that the MyTurn Licensed Technology or a
GlobalPC Device as supplied by MyTurn infringes upon any United States
patent issued as of the Effective Date of this Agreement, or any copyright
or trade secret of any third party provided that (1) NewDeal promptly
informs MyTurn in writing of any such claim, demand, action or suit, (2)
MyTurn is given control over the defense thereof and NewDeal cooperates in
the defense at MyTurn' expense, and (3) NewDeal will not agree to the
settlement of any such claim, demand, action or suit prior to a final
judgment thereon without the written consent of MyTurn, which consent will
not be unreasonably withheld. NewDeal shall have the right to select its
own counsel to participate in any such defense at NewDeal' expense.
MyTurn's indemnity obligations do not apply to (1) modifications made to
the MyTurn Licensed Technology by anyone other than MyTurn, (2) use of a
superseded infringing version of the Licensed Technology by NewDeal after
release of a non-infringing version by MyTurn in accordance with Section
12.2 hereof, and (3) any use or combination of the Licensed Technology with
any technology, software or hardware not supplied by MyTurn, if such
alleged infringement would be avoided by use of the Licensed Technology
alone or with other technology, software or hardware.
12.2 Response to Infringement Claim. If a claim, demand, suit or
action alleging infringement is brought, or if MyTurn reasonably believes
one may be brought (based upon the opinion of independent counsel), MyTurn
shall have the option at its expense to (1) modify the MyTurn Licensed
Technology to avoid the allegation of infringement, (2) obtain for NewDeal
a license to continue reproducing and distributing the MyTurn Licensed
Technology, or (3) if neither (1) nor (2) is reasonably practicable in
MyTurn's discretion, terminate this Agreement as to the affected MyTurn
Licensed Technology, as to a portion thereof, or as to a specific NewDeal
Product or Products, upon written notice.
12.3 Limitations. This Section 12 (MYTURN'S INDEMNITIES) sets forth
MyTurn's entire liability to NewDeal for any actual or alleged infringement
or misappropriation of any third party's intellectual property rights
arising out of the MyTurn Licensed Technology or a GlobalPC Device. In no
event shall MyTurn's aggregate liability to defend and indemnify under
Section 12 (MYTURN'S INDEMNITIES) exceed an amount equal to two times the
total of all amounts paid or payable by NewDeal to MyTurn under this
Agreement. The foregoing amounts shall be determined as of the date that
the infringement claim is finally settled or, if there is no settlement, as
of the date that a final decision is made by a court or arbitrator in the
infringement action.
13. COMBINATION CLAIMS
Any infringement claim arising solely out of the use or combination of the
NewDeal Licensed Technology with the MyTurn Licensed Technology or GlobalPC
Device shall be defended cooperatively by both Parties, and the cost of such
defense and any settlements or liabilities shall be shared equitably by the
Parties. If the Parties cannot agree as to the equitable arrangement, then the
settlements or liabilities shall be shared pursuant to the determination by the
arbitrator (or court, if the claim was filed in a court by a third party) of
each Party's percentage of fault.
14. WARRANTIES
14.1 Disclaimer of Express Warranties. Subject to Section 11
(NEWDEAL'S INDEMNITIES), and 12 (MYTURN'S INDEMNITIES), all Licensed
Technology, Third Party Technology, Confidential Information, GlobalPC
Devices and other products or technologies provided by either Party are
provided "AS IS," without a warranty of any kind. NO REQUEST FOR PROPOSAL,
PROPOSAL, CORRESPONDENCE, ADVERTISEMENT, BID OR VERBAL REPRESENTATION
CONCERNING THE LICENSED TECHNOLOGY, THIRD PARTY TECHNOLOGY, CONFIDENTIAL
INFORMATION, GLOBALPC DEVICE OR SERVICES PROVIDED BY EITHER PARTY UNDER
THIS AGREEMENT SHALL CONSTITUTE A WARRANTY OR GUARANTY.
14.2 Disclaimer Of Implied Warranties. Subject to Section 11
(NEWDEAL'S INDEMNITIES), and 12 (MYTURN'S INDEMNITIES) TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES WITH RESPECT TO THE
LICENSED TECHNOLOGIES AND THE GLOBALPC DEVICE, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
ARE HEREBY EXCLUDED.
14.3 Limited Warranty For Third Party Technology. With respect to any
Third Party Technology, each Party will extend to the other Party any
warranty that the supplying Party is authorized by the Third Party to so
extend. THE PARTIES EXTEND NO OTHER WARRANTY, STATUTORY, EXPRESS, IMPLIED
OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, REGARDING ANY
HARDWARE, SOFTWARE, CONTENT OR SERVICES PURCHASED OR LICENSED FROM THIRD
PARTIES, EVEN IF SUCH ITEMS WERE SELECTED OR RECOMMENDED BY MYTURN OR
NEWDEAL. ALL WARRANTIES, IF ANY, ARE PROVIDED SOLELY BY THE THIRD PARTIES.
15. TERM OF AGREEMENT AND TERMINATION
15.1 Term. This Agreement shall begin on the Effective Date. The
initial term of the Agreement will expire on December 31, 2003, provided,
however, that the MyTurn has met the Conditions of Exclusivity set forth in
Section 2.7 (Conditions of Exclusivity). Thereafter, the Agreement will
renew automatically for successive one-year terms provided that MyTurn
meets performance requirements as specified in Exhibit B.
15.2 Termination For Breach. Each Party shall have the right to
terminate this Agreement upon thirty (30) days prior written notice if the
other Party is in breach of any material term of this Agreement and the
breaching Party fails to remedy such breach within the thirty-day notice
period, or if the breach can not be cured by best efforts in thirty (30)
days, the breaching Party fails to commence and continues to take
meaningful steps to remedy such breach within the thirty (30) day period.
15.3. All technology cross-licensing under this Agreement in effect at
the time of termination, of this Agreement, whether from natural expiration
or breach, shall continue in full force and effect beyond the term of the
Agreement, and both parties shall be entitled to continue to ship products
based on NewDeal Licensed Technology and/or MyTurn Licensed Technology as
the case may be, subject only to whatever other legal constraints or
remedies may be applicable.
15.4 Bankruptcy. Each Party shall have the right to terminate this
Agreement immediately upon written notice in the event that the other Party
becomes insolvent, files for any form of bankruptcy, makes any assignment
for the benefit of creditors, or ceases to conduct business (other than in
connection with an assignment permitted under Section 18.1 (Assignment)),
or has a complaint for involuntary bankruptcy filed against it which is not
discharged within one hundred eighty (180) days. Each Party acknowledges
that if it is a debtor-in-possession or if a trustee in bankruptcy in a
case under the United States Bankruptcy Code rejects this Agreement or any
agreement supplementary hereto, the other Party may elect to retain its
rights under this Agreement and/or any supplementary agreement as provided
in Section 365(n) of the Bankruptcy Code. Upon written request of the other
Party to the bankrupt Party or the Bankruptcy Trustee, the bankrupt Party
or such Bankruptcy Trustee shall not interfere with the rights of the other
Party as provided in this Agreement and any supplementary agreement.
15.5 No Damages For Termination. NEITHER NEWDEAL NOR MYTURN SHALL BE
LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OF THIS AGREEMENT
IN ACCORDANCE WITH THIS SECTION.
16. NONDISCLOSURE AND RESTRICTED USE
16.1 Confidential Information. In the course of performing this
Agreement, each Party (the "Disclosing Party") may disclose to the other
Party ("the Receiving Party") trade secrets and confidential and
proprietary information of the Disclosing Party, clearly marked or, in the
case of verbal communications, clearly confirmed in writing as
"CONFIDENTIAL" or any other similar legend ("Confidential Information").
Such Confidential Information includes without limitation the terms and
conditions of this Agreement, technical and/or internal specifications of
the Disclosing Party's products, non-public marketing plans, future
products and other non-public business information, the trade secrets and
technology embodied in the Licensed Technology, the trade secrets and
technology embodied in any Party's product, each Party's sales data,
customer lists and other non-public information. All Confidential
Information shall remain the sole property of the Disclosing Party and the
Receiving Party shall have no interest in or right to such Confidential
Information except as expressly set forth in this Agreement. Both Parties
agree that all Confidential Information of the other Party shall be held in
strict confidence, will not be disseminated or disclosed to any third party
and will not be used by the Receiving Party for any purpose other than
performing its rights under this Agreement without the express written
consent of the Disclosing Party for three (3) years from the date of
disclosure (five (5) years for technical information). Both Parties agree
to use at least the degree of diligence to protect the other Party's
Confidential Information as a reasonably prudent technology company would
normally use to protect any of its own trade secrets and other confidential
information. The provisions of this Section shall not apply to any
information or materials:
(a) which are in the public domain at the time of disclosure to
the Receiving Party or which thereafter enter the public domain
through no action or inaction by the Receiving Party or its
employees; or
(b) which the Receiving Party can establish and document were in
the possession of, or known by, the Receiving Party prior to its
receipt from the Disclosing Party; or
(c) which are rightfully disclosed to the Receiving Party by
another person not in violation of the proprietary or other
rights of the Disclosing Party, or any other person or entity; or
(d) which are shown by written record to have been independently
developed by the Receiving Party, provided that the persons
developing the same have not had access to the Confidential
Information furnished to the Receiving Party by the Disclosing
Party hereunder; or
(e) which are required to be disclosed pursuant to law, provided,
however, that a minimum of ten (10) days written notice shall be
provided by the Party intending to disclose in order to permit
the other Party to take such action as it deems appropriate to
prevent or limit such disclosure, except if such ten day (10)
notice period would cause the disclosing Party to violate any
law, rule or regulation, the
disclosing Party shall give the other Party the maximum amount of
time less than ten (10) days which the disclosing Party could
give without violating any such law, rule or regulation.
16.2 Restricted Use. Without prejudice to the generality of the
foregoing, each Party agrees not to use any of the Confidential Information
or Licensed Technology of the other Party for any use or purposes except
those expressly specified herein.
16.3 Source Code Restrictions
(a) Each Party acknowledges that the other Party considers its
source code to be Confidential Information and to contain
proprietary and trade secret information. Each Party agrees not
to provide, disclose, reproduce in any form, or give access to
such source code to any third party or employee other than the
Authorized Personnel. Each Party agrees that Authorized Personnel
shall be informed of and abide by the terms and conditions of
this Agreement
(b) Each Party shall hold the other Party's source code in strict
confidence. Each Party shall investigate all unauthorized
attempts to gain access to the source code, and immediately
notify the other Party concerning any breach of source code
confidentiality, whether or not such breach was inadvertent.
(c) The source code shall be placed on secure computer systems
located at the receiving Party's principal place of business. The
receiving Party shall implement sufficient security procedures to
limit access to the source code to Authorized Personnel. The
secure computer systems shall be available for inspection by the
disclosing Party.
(d) The receiving Party agrees to take all reasonable precautions
and to implement procedures to minimize the risk of theft or
unauthorized copying of the source code, and to take appropriate
action by instruction, agreement, or otherwise with the
Authorized Personnel.
17. LIMITATION OF LIABILITY
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, (1) NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER PARTY
FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR THE LOSS OF ANTICIPATED
PROFITS ARISING FROM ANY PERFORMANCE OR BREACH OF THIS AGREEMENT BY SUCH PARTY
EVEN IF NOTICE IS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES, AND (2) IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES IN EXCESS OF TWICE THE AMOUNT PAID
BY MYTURN TO NEWDEAL UNDER THIS AGREEMENT.
18. GENERAL
18.1 Assignment. This Agreement may be assigned in whole or in part by
either Party with the prior written consent of the other Party, which
consent shall not be unreasonably withheld, or without the prior written
consent of the other Party such assignment is in connection with the sale
of all, or substantially all of the Party's assets, a majority of
outstanding voting capital stock, the issuance of a number of shares of
voting capital stock which following such issuance constitutes a majority
of the outstanding voting capital stock of such Party, in connection with a
merger, consolidation, or transfer to an entity under common majority
ownership with the Party, or to a majority parent, or to a majority owned
subsidiary.
18.2 Governing Law; Arbitration. This Agreement will be governed and
interpreted in accordance with the laws of the state of Massachusetts,
except for that body of law pertaining to conflicts of law, but excluding
the Convention on Contracts for the International Sale of Goods. All
disputes arising in connection with this Agreement shall, unless amicably
settled by the parties, be finally settled by arbitration under the
commercial arbitration rules of the American Arbitration Association by a
panel of three (3) arbitrators appointed in accordance with the Rules of
the American Arbitration Association. The place of arbitration shall be,
unless otherwise agreed between the parties, the county in which the
respondent resides and the city in which the respondent has its principal
place of business. Judgment upon the award rendered may be entered in any
Court having jurisdiction or application may be made to such Court for a
judicial acceptance of the award and an order of enforcement, as the case
may be. Notwithstanding the foregoing, either party may request
injunctions, seizure orders, writs of attachment, and other extraordinary
remedies from any court having jurisdiction in the case of an actual or
threatened infringement of such party's patents, copyrights, trademarks,
trade secrets or other intellectual property rights by the other party. The
filing of a proceeding for such extraordinary remedies shall not constitute
a waiver by the filing party of the right to compel arbitration of all
demands for other remedies.
18.3 Independent Contractors.Each Party will be deemed to have the
status of an independent contractor towards the other Party, and nothing in
this Agreement will be deemed to place the Parties in the relationship of
employer-employee, principal-agent, partners or joint ventures.
18.4 Waiver. The failure of either Party to enforce any provision of
this Agreement shall not be deemed a waiver of that or any other provision
of this Agreement.
18.5 Force Majeure. Neither Party will be deemed in default of this
Agreement to the extent that performance of its obligations is delayed or
prevented by reason of any act of God, fire, natural disaster, accident,
act of government, or any other cause beyond the control of such Party
("Force Majeure"), provided that such Party gives the other Party written
notice thereof promptly and uses its good faith efforts to cure the breach.
In the event of such a Force Majeure, the time for performance or cure will
be extended for a period equal to the duration of the Force Majeure but not
in excess of six (6) months.
18.6 Notices. Notices to either Party shall be in writing and shall be
deemed delivered when served in person, one business day after being
transmitted by fax, or two business days after being dispatched by an
internationally recognized express courier service, and delivered to the
addresses set forth at the beginning of this Agreement. A Party may change
its address for purposes of receiving notices by giving notice of the
change to the other Party.
18.7 Survival. The rights and obligations under Sections 7
(INTELLECTUAL PROPERTY RIGHTS), 9 (PAYMENTS), 11 (NEWDEAL'S INDEMNITIES),
12 (MYTURN'S INDEMNITIES), 13(COMBINATION CLAIMS), 14 (WARRANTIES), 16
(NONDISCLOSURE AND RESTRICTED USE), 17 (LIMITATION OF LIABILITY), and 18
(GENERAL) shall survive the expiration and any termination of this
Agreement.
18.8 Export. Each Party agrees that it will not knowingly export or
re-export the other Party's licensed Technology, directly or indirectly, to
any country to the extent export to such country at the time of export
requires an export license or other governmental approval, without first
obtaining such license or approval.
19. FORM OF AGREEMENT
19.1 Exhibits. This Agreement has the following Exhibits which form an
integral part hereof:
Exhibit A Identification of the Licensed Technologies. This
Exhibit is a description of all NewDeal and MyTurn Licensed
Technologies that are the subject of this Agreement.
Exhibit B Payments. This Exhibit specifies the royalties and
fees payable under this Agreement, and certain other
financial terms.
Exhibit C Form of End User License. This Exhibit specifies
the form of End User license that the Parties will use when
distributing each other's Licensed Technologies.
19.2 Modification and Interpretation of Exhibits. The Exhibits shall
be kept up-to-date and modifications and additions thereto shall be
executed as a result of agreed modifications and additions. All Exhibits
shall be subject to the terms and conditions of this Agreement, unless
otherwise provided in any such Exhibit. In the event of a conflict between
the terms of an Exhibit and the terms of this Agreement, the terms of the
Exhibit shall be given effect for the subject matter covered by that
Exhibit.
19.3 Entire Agreement. This Agreement and the Exhibits hereto state
the entire agreement between the Parties and supersede all prior
communications, written or oral, between the Parties. No terms in any
purchase order or other forms shall modify the terms of this Agreement,
even if such purchase order or other forms are accepted by either Party.
19.4 Severability. If any provision contained in this Agreement is
determined to be invalid or unenforceable, in whole or in part, the
remaining provisions and any partially enforceable provision will,
nevertheless, be binding and enforceable, and the Parties agree to
substitute for the invalid provision a valid provision which most closely
approximates the intent and economic effect of the invalid provision.
19.5 Writing. No amendment or modification of this Agreement may be
made except by an instrument in writing signed by both Parties
MYTURN: NEWDEAL:
By /s/ ▇▇▇▇ ▇. Theale By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- ------------------------
Name ▇▇▇▇ ▇. Theale Name ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------- ----------------------
Title President Title CEO
---------------------- ---------------------
Date 2/15/00 Date 2/16/00
----------------------- ----------------------
EXHIBIT A
IDENTIFICATION OF TECHNOLOGIES
Initial Identification of the NewDeal Licensed Technology and Application Suite
1. The GEOS operating system, as licensed to NewDeal by Geoworks
Corporation, and as enhanced by NewDeal, version 3.0, in effect during August
1998.
2. The NewDeal Application Suite NewDeal Office 98
Applications:
------------
New Manager - file manager
New Write - word processor
NewDraw - drawing program
NewCalc - spreadsheet
NewFile - database
NewDex - address book
NewPlanner - scheduler
NewComm - bbs communications program
NewMail - email program
NewBanner - banner maker
Utilities
---------
Calculator
File Finder
Scrapbook
Character Map
Directory Lister
Crossword
Solitaire
Clock
Media Viewer
3. End User documentation
4. Third Party Technology
File Finder (Breadbox, no royalty)
Directory Lister (Breadbox, no royalty)
Media Viewer (Breadbox, no royalty)
5. Software Development Tools
Legos (NewBasic) tool set
Initial Identification of the NewDeal Bundled Items
---------------------------------------------------
1. NewDeal Licensed Technology
2. Third Party Technology
Initial Identification of the NewDeal After-Market Products
-----------------------------------------------------------
New Banker (licensed from Breadbox)
Media Viewer (licensed from Breadbox)
America's Clock (licensed from Breadbox)
Font Magick (licensed from Breadbox)
Gourmet (licensed from Breadbox)
Homebase (licensed from Breadbox)
Home Inventory Plus (licensed from Breadbox)
Time Tool (licensed from Breadbox)
NewBASIC (parts licensed from Geoworks)
GeoSafari (content licensed from Educational Insight)
Initial Identification of the MyTurn Licensed Technology and GlobalPC
--------------------------------------------------------------------------------
Application Suite
-----------------
1. The GEOS operating system, as licensed to MyTurn by Geoworks Corporation
and NewDeal, and as enhanced by MyTurn and NewDeal, in effect in February,
2000.
2. The GlobalPC Application Suite
Global Communications:
Browser (from Breadbox, no royalty), including but not limited to, all
browser extensions, plug-ins, Javascript, pdf viewer, AIM and ICQ
clients, web filters, etc E-mail (jointly developed with NewDeal)
Internet Dial-up & Configure
Global Home Office:
Writer
Artist
Spreadsheet
Calendar
Address Book
Banker (Breadbox, no royalty)
Database (Breadbox, no royalty)
Games:
Solitaire, Tetris, Crossword
Utilities:
Start-up/Tutorial
Update Application
Installer Application
Backup/Restore
Character Map
File Finder (new application created by MyTurn)
Banner
Calculator
File Manager
Preferences
WAV-file Player
Auto-registration
Initial Identification of the GlobalPC Bundled Items
----------------------------------------------------
1. MyTurn Licensed Technology
2. Third party technologies
Initial Identification of the MyTurn Aftermarket Products
---------------------------------------------------------
Typing Tutor
Third Party Technology Royalties
--------------------------------
[Specify]
EXHIBIT B
PAYMENTS
I. Royalty for GlobalPC Devices Sold by MyTurn
-------------------------------------------
MyTurn shall pay NewDeal a royalty of five dollars ($5) US per royalty-bearing
Product Shipment for NewDeal Licensed Technology and/or MyTurn Licensed
Technology sold by MyTurn, or by an OEM or Sub-Licensee of MyTurn, with which
the NewDeal Licensed Technology and/or MyTurn Licensed Technology and GlobalPC
Application Suite is preinstalled.
In addition to the foregoing royalties, MyTurn shall reimburse NewDeal pro rata
per unit for the royalties paid by NewDeal to any third party for Third Party
Technology that is sublicensed by NewDeal to MyTurn hereunder and included in a
GlobalPC Device Product Shipment, and which arises out of such sublicense. In
the event that the Third Party Technology License is flat fee or one-time
license, MyTurn will pay one-half of the amount of the license fee. The Third
Party Technology royalty rates are as set forth in Exhibit A, which may be
amended from time to time as necessary.
Except as set forth above, there shall be no separate royalty payable by MyTurn
for NewDeal Bundled Items.
Conditions for Exclusivity
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The conditions for MyTurn's exclusivity under section 2.7 be as follows:
Calendar Year 2000 Royalties for GlobalPC Devices 250,000 units or equivalent cash payment.
Calendar Year 2001 Royalties for GlobalPC Devices 850,000 units or equivalent cash payment.
Calendar Year 2002 Royalties for GlobalPC Devices 1,500,000 units or equivalent cash payment.
Calendar Year 2003 Royalties for GlobalPC Devices 2,250,000 units or equivalent cash payment.
Calendar Year 2004 Royalties for GlobalPC Devices 3,000,000 units or equivalent cash payment.
For renewal past the Calendar Year 2004, the Parties agree to use the Calendar
Year 2004 3,000,000 units or equivalent cash payment as the minimum royalty
payment necessary to maintain exclusivity for the NewDeal Licensed Technology
for future years under the Agreement.
In the event that the unit volume or equivalent cash payments are not made by
MyTurn in the specified timeframes, MyTurn will forfeit its exclusivity to the
NewDeal Licensed Technology.
II. Royalty for NewDeal After-Market Products Distributed by MyTurn
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MyTurn shall at all times offer to NewDeal the most favorable royalty terms (in
US dollars) that MyTurn grants to any other supplier of aftermarket software
products distributed by MyTurn through its retail and Internet channels, for
comparable goods and services. NewDeal shall have the right to have an
independent auditor from time to time check MyTurn's compliance with this most
favored customer provision.
III. Royalty for MyTurn Technology Distributed by NewDeal
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NewDeal shall reimburse MyTurn pro rata per unit for the royalties paid by
MyTurn to any third party for Third Party Technology that is sublicensed by
MyTurn to NewDeal hereunder and included in a NewDeal Product Shipment, and
which arises out of this sublicense. In the event that the Third Party
Technology License is flat fee or one-time license, NewDeal will pay one-half of
the amount of the license fee. The Third Party Technology royalty rates will be
listed in Exhibit A, which may be amended from time to time as necessary.
Except as set forth above, there shall be no separate royalty payable by NewDeal
for MyTurn Bundled Items.
All NewDeal royalties accrued in a quarter will first be offset against any
corresponding MyTurn royalties owed to NewDeal in that same quarter or accrued
from previous quarters. Only when the NewDeal royalties owed to MyTurn exceed
the royalties MyTurn owes NewDeal will there be a cash payment made to MyTurn by
NewDeal.
Royalty for MyTurn Aftermarket Products Distributed into the Education Market by
NewDeal shall be negotiated in a manner similar to the royalty arrangement
agreed to on NewDeal Aftermarket products being distributed into MyTurn's
markets.
EXHIBIT C
Form of End User License.