EXHIBIT 10.40
SOFTWARE LICENSE
ORDER FORM
(WITH TERMS AND CONDITIONS)
NO. 002933
Concentric Network Corporation ("LICENSEE")
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Full legal name of entity signing this Order Form
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Cupertino California 95014 U.S.A.
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City State Zip / Country
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Contact Person: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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Licensee is incorporated in the state/country of Florida
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TERRITORY (Country): United States and English-speaking Canada ("TERRITORY")
IMPORTANT NOTICE: UPON EXECUTION BY THE PARTIES, LICENSEE WILL HAVE THE RIGHT TO
USE THE NETSCAPE PRODUCTS INDICATED IN ATTACHMENT A ("PRODUCTS") SOLELY IN
CONNECTION WITH PERFORMING ITS OBLIGATIONS ARISING FROM THE "CO-MARKETING
SERVICES AGREEMENT" BETWEEN NETSCAPE AND LICENSEE OF EVEN DATE HEREWITH ("CO-
MARKETING AGREEMENT"), AT THE PRICING SET FORTH HEREIN. BY SIGNING THIS ORDER
FORM, LICENSEE AGREES TO ALL THE TERMS AND CONDITIONS ATTACHED (COLLECTIVELY THE
"AGREEMENT"). THIS AGREEMENT DOES NOT ALLOW ANY FULFILLMENT BY A RESELLER. IF
LICENSEE DESIRES FULFILLMENT BY A RESELLER, LICENSEE MUST NEGOTIATE DIRECTLY
WITH A NETSCAPE AUTHORIZED RESELLER.
DEFINITIONS: ALL CAPITALIZED TERMS IN THIS AGREEMENT WILL HAVE THE MEANINGS
SPECIFIED IN THIS AGREEMENT OR, IF NOT EXPRESSLY DEFINED IN THIS AGREEMENT, THEY
WILL HAVE THE MEANINGS SPECIFIED IN THE CO-MARKETING AGREEMENT.
NETSCAPE COMMUNICATIONS CONCENTRIC NETWORK CORPORATION
CORPORATION ("NETSCAPE")
/s/▇▇▇▇ ▇▇▇▇▇ /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: ________________________________ By: __________________________________
Signature Signature
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ______________________________ Name: ________________________________
Print or Type Print or Type
SVP Marketing Pres. & CEO
Title: _____________________________ Title: _______________________________
23 June 97 23 June 97
Date of Acceptance: ________________ Date: ________________________________
("EFFECTIVE DATE")
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
Address: __________________________
Mountain View, CA 94043
___________________________________
AGREEMENT CONSISTS OF:
1. Software License Order Form
2. Attachment A - Products and Pricing
3. Attachment B - Terms and Conditions
4. Attachment C - Expert Alliance Support Program
2
ATTACHMENT A
PRODUCTS AND PRICING
1. Products ("PRODUCTS"):
-------------------------------------------------------------------------------
PRODUCTS (DESCRIPTION, LICENSEE
PLATFORMS & LANGUAGES) ACKNOWLEDGMENT PER USER SUBSCRIPTION
(INITIAL FOR FEE** FEE/USER **
RECEIPT OF PRODUCT)*
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SERVER PRODUCT(S)
[*] [*] year
SuiteSpot
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* Licensee acknowledges that it has already received the Product next to its
initials and agrees that Netscape has fulfilled its delivery obligation for
such Product.
** Above pricing [*] in any end user license agreement included with the
Products. This pricing is based on a [*], Licensee will [*]. Netscape agrees
not to charge Licensee any license fees until January 1, 1998. Above pricing
applies to SuiteSpot 3.0 and the next Major Update and is valid until the
expiration of the initial Term under the Co-Marketing Agreement.
2. Support: Netscape shall provide Licensee with [*] support program [*] of
the Co-Marketing Agreement. Terms of such support are set forth in Attachment C
hereto.
3. Deliverables: Netscape will deliver to Licensee 1 master reproduction copy
of each Product above and associated documentation, in any format generally
available from Netscape as of the Effective Date. All deliveries shall be
F.C.A. Netscape origin (INCOTERMS 1990).
Ship To Address for Deliverables ▇▇▇▇ ▇▇ Address
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(Not a P.O. address)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Sales Tax Resale/Exemption
Certificate No. (if applicable): ____________________________________
(ORIGINAL CERTIFICATE MUST BE FURNISHED TO NETSCAPE)
VAT Registration No. (if Europe, Middle East or Africa):
_______________________
Netscape Sales Rep: ▇▇▇▇ ▇▇▇▇▇▇▇▇
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
3
ATTACHMENT B
TERMS AND CONDITIONS
1. FEES AND PAYMENT SCHEDULE. [*] Netscape shall invoice Licensee based on the
monthly reports submitted pursuant to Section 6. All invoiced amounts are due
and payable net 30 of date of invoice. Past due amounts shall bear interest at
the lower of 1-1/2% per month or the maximum rate allowed by law until paid in
full. All prices in Attachment A are in U.S. Dollars and exclude any applicable
taxes. Licensee is responsible for all applicable national, state and local
taxes, value added or sales taxes, levies and assessments pertaining to the sale
of the Products (except taxes based upon Netscape's net income from the sale of
the Products to Licensee) except to the extent Licensee provides Netscape with a
valid tax exemption certificate.
2. PRODUCT LICENSE. Subject to the terms and conditions in this Agreement,
Netscape grants Licensee the right to make, without change, and use internally
that number of copies of the Products necessary to meet its obligations under
the Co-Marketing Agreement to provide Services to Users of Customers. A "USER"
means any employee, consultant or other agent performing services for the
benefit of a Customer who has access in any way to any Server Product or update
thereto, as of the point in time when such Products are first made available for
access by such User. Subject to Section 3 below, Licensee may copy the Products
in any combination. Licensee may also make, without change, that number of
copies of the documentation provided with the Products necessary to support the
Products copied. All copies of Products and related documentation are for
Licensee's internal use only and may not be resold or redistributed.
"LICENSEE'S INTERNAL USE" shall mean internal use by Licensee in accordance with
the terms of this Agreement and the Co-Marketing Agreement. Each copy of
Products and related documentation must contain all notices regarding
copyrights, trademarks and other proprietary rights in the materials originally
provided to Licensee. All Products and copies hereunder are subject to the
"License Grant" terms of the then current end user license agreement included
with such Products ("EULAS"), as amended by this Agreement. The applicable
"License Grant" terms in the current ▇▇▇▇ are set forth in this Agreement. In
the event of an inconsistency between this Agreement and any then current ▇▇▇▇
with respect to a subject matter other than the "License Grant" terms, the terms
of this Agreement shall govern.
3. RELATIONAL DATABASE AND NETSCAPE CLIENT PRODUCTS. If the Product licensed
hereunder includes an Informix database product, then notwithstanding Section 2
above, Licensee may only install one copy of the database product on a single
computer upon which the Product is installed. Except for the Enterprise Server
Pro and LiveWire Pro, Licensee may only use the database as a repository for the
Product's data and may not be used for any other purpose. The database may be
accessed only by tools intended for use with the Product. The Informix
database may be used only (i) for the purpose of developing Netscape web server
applications ("Web Server Applications"); and (ii) to reproduce and distribute a
single copy of the runtime version of the Informix database for use solely as a
component of a Web Server Application and only on a single computer for up to
thirty-two (32) connections (the "Deployment System"). A "connection" means a
computer process generated by the designated computer to service on-line users
of the Web Server Applications. A single connection may support a multitude of
users, the exact number of which depends on the particular circumstances.
Multiple Web Server Applications may reside on the Deployment System, provided
that all such applications access only the single copy of the Informix Developer
Database and all Web Server Applications together use no more than thirty-two
(32) connections. Licensee may use the Informix database to develop any number
of Web Server Applications, but once Licensee has distributed a single runtime
version of the Informix database in any one Web Server Application, Licensee may
not distribute the Informix database in another copy of that Web Server
Application or as part of any subsequent Web Server Application. In order to
provide a database product as part of Licensee's Web Server Application either
Licensee must purchase a separate LiveWire Pro license for each recipient, or
each recipient to whom Licensee distributes a Web Server Application must
license its own copy of a database product. Licensee may not establish direct
connections with the Informix database other than through the Enterprise Pro or
LiveWire Pro software or use the Informix database for any purpose other than
developing and executing Web Server Applications.
Licensee may use the Visigenic VisiBroker development component of the Product
on no more than one computer by no more than one developer. The single allowed
developer may use both VisiBroker for C++ and VisiBroker for Java. Licensee may
use the Visigenic runtime component of the Software to invoke object
implementations, provided that the invoking application (i) is one or more
components of the Product or (ii) interoperates with and runs on the same
computer as the Product. If the Product is Enterprise Pro, Licensee may run the
server-side JavaScript compiler on an unlimited number of computers. If the
Product contains header files, Licensee may copy and use the header files solely
to create and distribute programs to interface with the server Application
Program Interfaces. Licensee may not modify the header files. If the Product
contains Java classes other than classes which are a part of the
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Product's programming interface ("Sample Java Classes"), Licensee may copy and
use the Sample Java Classes solely to create and distribute programs to
interface with the Products.
The standard Netscape client product ("SNCP") or the premium Netscape client
product ("PNCP") is bundled with the Server Product ordered hereunder. Licensee
may make copies of such SNCP and/or PNCP only in the same quantities as it
copies the Server Product(s) with which such SNCP or PNCP are bundled, and all
such copies must be made for the sole purpose of using the applicable Server
Product(s) in accordance with this Agreement and not to obtain additional copies
of the SNCP or PNCP.
4. LICENSE RESTRICTIONS. Licensee may make a single copy of the Products for
archival purposes, provided such copy contains all of the original Products'
proprietary notices. Licensee shall not modify, translate, reverse engineer,
decompile, disassemble (except solely to the extent an applicable statute
expressly and specifically prohibits such restrictions), or create derivative
works based on the Products. Licensee may not copy the Products other than as
specified in this Agreement. Licensee shall not publish or provide any results
of benchmark tests run on the Products to a third party without Netscape's prior
written consent; rent, lease, grant a security interest in, or otherwise
transfer rights to the Products; or remove any proprietary notices or labels on
the Products.
5. TITLE. Title, ownership rights and intellectual property rights in the
Products shall remain in Netscape and/or its suppliers. The Products are
protected by copyright and other intellectual property laws and by international
treaties. Title and related rights in the content accessed through the Products
is the property of the applicable content owner and is protected by applicable
law.
6. RECORDS; REPORTING; AUDIT. Licensee shall maintain accurate records
reflecting the number of Customers and Users, the quantity of copies made of the
Products, a description of the Products, the version number of the Products, the
platforms and the language of the Products. In addition to the reports required
under the Co-Marketing Agreement, Licensee agrees, subject to the first sentence
in Section 1 of this Attachment B, to provide Netscape with monthly reports
which include the number of Users and number of subscriptions therefor. Such
reports shall be received by Netscape within 15 days after the end of any month
during any calendar quarter. With respect to the third month in any calendar
quarter, Licensee agrees to provide Netscape with an estimate of the number of
Users and number of subscriptions therefor in the last week of such third month,
and, within 15 days after the end of such third month, provide Netscape with a
monthly report stating the final number of Users and number of subscriptions
therefor. Netscape may conduct an audit to verify compliance with the terms of
this Agreement, which shall be conducted at Netscape's expense unless the
results establish that inaccuracies in Licensee's reports have resulted in
underpayment to Netscape of more than 5% of the amount actually due, in which
case Licensee shall pay all amounts due and bear the expense of the audit.
7. SUPPORT. Netscape will provide support to Licensee in accordance with
Netscape's then-current support terms and conditions for the support program
selected by Licensee on Attachment A, for the number of Users set forth in
Attachment A for the period for which Netscape has received payment therefor.
8. SOFTWARE SUBSCRIPTION. Licensee shall be entitled to software subscription
("SOFTWARE SUBSCRIPTION") for the number of Users reported in Licensee's monthly
report under Section 6 provided Licensee purchases subscription concurrent with
purchase of a User license. Software Subscription entitles Licensee to the
benefits set forth in Netscape's then-current Software Subscription program,
including major and minor updates and the ability to switch operating system
platforms at no additional charge. Subscriptions not purchased concurrent with
purchase of a User license and subscription fees for subsequent years shall be
at Netscape's then current charges.
9. INDEMNITY. (a) Netscape shall defend or settle, at its option, any action
brought against Licensee to the extent it is based on a claim that use or
reproduction by Licensee of the Netscape-owned portion of the Product hereunder
directly infringes any valid patent as of the Effective Date, copyright or trade
secret in the United States and/or Canada ("Intellectual Property Rights").
Netscape will pay resulting costs, damages and legal fees finally awarded
against Licensee in such action which are attributable to such claim provided
that: (i) Licensee promptly notifies Netscape in writing of any such claim; (ii)
Netscape has sole control of the defense and all related settlement
negotiations; and (iii) Licensee cooperates with Netscape, at Netscape's
expense, in defending or settling such claim. Should a Product become, or be
likely to become in Netscape's opinion, the subject of infringement of such
copyright or trade secret, Netscape may (I) procure for Licensee the right to
continue using the same or (II) replace or modify it to make it non-infringing.
Should Licensee's use of the Product under this Agreement be enjoined as a
result of any alleged infringement of an Intellectual Property Right, Netscape
will (x) procure for Licensee the right to continue using the same, (y) replace
or modify to make it non-infringing, or if (x) and (y) are not commercially
reasonable for Netscape, (z) credit Licensee a sum equal to the unamortized
amount of the license fees received by Netscape under this Agreement for the
infringing Product amortized on a straight-line basis on a monthly basis over
three years from the date such fee is accrued under Section 1 of this Attachment
B. Netscape shall have no obligation or liability for, and Licensee shall
defend, indemnify and hold Netscape harmless from and against, any claim based
upon: (A) use of other than the then-current, unaltered version of the Product,
unless the infringing portion is also in the then-current, unaltered release;
(B)
5
use, operation or combination of the Product with non-Netscape programs, data,
equipment or documentation if such infringement would have been avoided but for
such use, operation or combination; (C) Licensee's or its agent's activities
after Netscape has notified Licensee that Netscape believes such activities may
result in such infringement; (D) compliance with Licensee's designs,
specifications or instructions for the Product; (E) any modifications or marking
of the Product not specifically authorized in writing by Netscape; (F) any
unauthorized use of any Netscape intellectual property; (G) any content provided
by Licensee and/or any material to which Users can link through such content; or
(H) third party software. The foregoing states the entire liability of Netscape
and the exclusive remedy of Licensee with respect to infringement of any
intellectual property right, whether under theory of warranty, indemnity or
otherwise.
(b) Licensee shall indemnify, hold harmless and, at Netscape's request, defend
Netscape and/or its suppliers from and against any and all claims, liabilities,
losses, damages, expenses and costs (including attorneys' fees and costs)
relating to Licensee's use or reproduction of the Product or Documentation,
except to the extent that Netscape is responsible under Section 9(a) above.
10. LIMITATION OF LIABILITY. (a) TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN
NO EVENT SHALL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS
OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF NETSCAPE HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. (b) EXCEPT AS SPECIFIED IN THE
INDEMNITY SECTION SET FORTH ABOVE, IN NO EVENT WILL NETSCAPE OR ITS SUPPLIERS BE
LIABLE FOR ANY CLAIM AGAINST LICENSEE BY ANY END USER OR THIRD PARTY. (c) IN NO
EVENT SHALL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR (I) ANY REPRESENTATION OR
WARRANTY MADE TO ANY THIRD PARTY BY LICENSEE OR ANY OF THEIR RESPECTIVE AGENTS;
(II) FAILURE OF THE PRODUCT TO PERFORM EXCEPT AS, AND TO THE EXTENT, OTHERWISE
EXPRESSLY PROVIDED HEREIN; (III) FAILURE OF THE PRODUCT TO PROVIDE SECURITY;
(IV) ANY USE OF THE PRODUCT OR THE DOCUMENTATION; (V) THE RESULTS OR INFORMATION
OBTAINED OR DECISIONS MADE BY USERS OF THE PRODUCT OR THE DOCUMENTATION; OR (VI)
ANY CONTENT PROVIDED BY LICENSEE AND/OR ANY MATERIAL TO WHICH USERS CAN LINK
THROUGH SUCH CONTENT. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE LICENSEE'S
SOLE AND EXCLUSIVE REMEDIES. (d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO
THE CONTRARY AND EXCEPT FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OF
NETSCAPE, NETSCAPE'S ENTIRE LIABILITY TO LICENSEE FOR DAMAGES CONCERNING
PERFORMANCE OR NONPERFORMANCE BY NETSCAPE 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, SHALL NOT EXCEED THE AMOUNT RECEIVED BY
NETSCAPE FROM LICENSEE DURING THE 12 MONTHS PRIOR TO SUCH CLAIM FOR THE PRODUCT
GIVING RISE TO SUCH CLAIM.
11. TERM AND TERMINATION. The term of this Agreement shall be coterminous with
the Co-marketing Agreement. Subject to the Co-Marketing Agreement, either party
may terminate this Agreement if the other defaults in a material obligation
hereunder and does not cure such default within 30 days after receiving notice
of such default from the nonbreaching party. In addition, this Agreement (a)
shall expire automatically if Licensee: (i) ceases to do business in the normal
course, (ii) becomes or is declared insolvent or bankrupt, (iii) is the subject
of any proceeding relating to liquidation or insolvency which is not dismissed
within 90 calendar days, or (iv) makes an assignment for the benefit of its
creditors or (b) may be terminated immediately by Netscape if Licensee attempts
to derive any source code or breaches any confidentiality provisions hereunder.
Upon termination, all rights and obligations hereunder (except for any Licensee
outstanding payment obligations) shall terminate.
12. CONFIDENTIALITY. This provision shall be governed by the confidentiality
provision in the Co-Marketing Agreement.
13. NOTICE. Any notice required or permitted hereunder shall be in English, in
writing and shall be deemed to be properly given upon the earlier of (a) actual
receipt by the addressee (including facsimile or e-mail) or (b) 5 business days
after deposit in the mail, postage prepaid, when mailed by registered or
certified airmail, return receipt requested, or (c) 2 business days after being
sent via private industry courier to the respective parties at the addresses set
forth in the Agreement or to such other person or address as the parties may
from time to time designate in a writing. Notices to Netscape shall be to the
attention of the Legal Department, Netscape Communications Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
14. MISCELLANEOUS. (a) This Agreement shall be governed by the laws of the
State of California, U.S.A., without reference to its conflicts of law
provisions. (b) Any dispute regarding this Agreement shall be subject to the
exclusive jurisdiction of the applicable court in Santa ▇▇▇▇▇ County in the
State of California, and each party irrevocably submits to the jurisdiction and
venue of any such proceeding and agree that service of process may be effected
in the same manner notice is given hereunder. Notwithstanding the foregoing,
Netscape reserves the right to invoke the jurisdiction of any competent court to
remedy or prevent violation of any provision in the Agreement relating to
payment, Netscape Confidential Information or Netscape intellectual property.
(c) This Agreement will not be governed by the United Nations Convention of
Contracts for the International Sale of Goods. (d) A waiver by either party of
any term or
6
condition of this Agreement or any breach thereof, in any one instance, shall
not waive such term or condition or any subsequent breach thereof. (e) Neither
party shall be in default or be liable for any delay, failure in performance
(excepting the obligation to pay) or interruption of service resulting directly
or indirectly from any cause beyond its reasonable control. (f) The relationship
between Netscape and Licensee is that of independent contractors and neither
Licensee nor its agents shall have any authority to bind Netscape in any way.
(g) If any dispute arises under this Agreement, the prevailing party shall be
reimbursed by the other party for any and all legal fees and costs associated
therewith. (h) The headings to the sections of this Agreement are used for
convenience only and shall have no substantive meaning. (i) This Agreement may
be amended only by a writing signed by both parties. (j) The provisions of this
Agreement which require or contemplate performance after the expiration or
termination of this Agreement shall be enforceable notwithstanding said
expiration or termination. (k) Licensee may not assign or otherwise transfer
this Agreement or any rights or obligations herein without the prior express
written consent of Netscape, except that Licensee can assign all of its rights
and obligations under this Agreement to an entity purchasing all or
substantially all of its stock or assets so long as the acquiring party agrees
in writing to comply with all of the terms and conditions of this Agreement. (l)
This Agreement shall be binding upon and shall inure to the benefit of the
parties, their successors and permitted assigns. (m) This Agreement may be
executed in counterparts or by facsimile, each of which shall be an original,
and all of which together shall constitute one and the same agreement. (n) This
Agreement constitutes the entire agreement between the parties concerning the
subject matter hereof and supersedes all prior and contemporaneous agreements
(including the Enterprise License Agreement provided with the Products) and
communications, whether oral or written, between the parties relating to the
subject matter hereof, and all past courses of dealing or industry custom. The
terms and conditions hereof shall prevail over any conflicting purchase order or
other written instrument submitted by Licensee. (o) If any provision in this
Agreement should be held illegal or unenforceable by a court having
jurisdiction, such provision shall be modified to the extent necessary to render
it enforceable without losing its intent, or severed from this Agreement if no
such modification is possible, and other provisions of this Agreement shall
remain in full force and effect. (p) Netscape may use Licensee's name in any
customer reference list or in any press release issued by Netscape regarding the
licensing of the Product and/or provide Licensee's name and the names of the
Products licensed by Licensee to third parties. (q) If Netscape is required by a
third party software supplier to cease and to cause its licensees to cease use
or distribution of a particular revision of the Products, Licensee agrees to
comply herewith if Netscape (i) provides Licensee with 30 days prior written
notice and (ii) replaces such affected Product with a functionally equivalent
Product as soon as commercially practicable. (r) This Agreement is in the
English language only, which language shall be controlling in all respects. (s)
Licensee agrees to comply and shall ensure compliance with all then-current
applicable laws, rules and regulations governing this Agreement, including all
applicable export laws, rules and regulations of the U.S. Government or other
applicable agencies. (t) The Products are not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail-safe performance, such as in
the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons systems,
in which the failure of the Products could lead directly to death, personal
injury, or severe physical or environmental damage ("High Risk Activities").
Netscape and its suppliers specifically disclaim any express or implied warranty
of fitness for High Risk Activities.
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ATTACHMENT C
EXPERT ALLIANCE SUPPORT PROGRAM
DEFINITIONS, PRICING AND LICENSEE CONTACTS
1. DEFINITIONS. As used in this Attachment C, "END USER" means any user of the
Netscape software ("PRODUCT") authorized by Licensee pursuant to Agreement.
"PROGRAM ERRORS" means 1 or more reproducible deviations in the standard,
unmodified Product from the applicable specifications shown in the
documentation. "Major Updates" are designated by a change in the number to the
left of the decimal point of the number appearing after the product name.
2. PRICING. [*]
A. Expert Alliance: (12 hours/day; 5 days/week; after-hours pager service for
---------------
priority 1 issues only)
i) Annual flat fee: [*] for an assigned Netscape support engineer, 4
authorized technical contacts (list technical contacts below),
unlimited number of support requests from Licensee, problem diagnosis
for selected Netscape beta products, technical bulletins from Netscape,
1 introductory site visit by Netscape, technical support usage reports,
regularly scheduled conference calls with Netscape, quarterly support
review by Netscape and access to a private web site for Netscape's
Expert Alliance customers.
ii) Optional Add-On Support (available only in conjunction with the
purchase of Services under Section A (i)):
(a) Dedicated Netscape support engineer: [*] per year (replaces
assigned Netscape support engineer described under Section A(i))
(b) Additional assigned Netscape support engineer: [*] per year
(c) Additional Licensee Contact: [*] per contact per year
3. LICENSEE'S TECHNICAL CONTACTS:
Technical Contact #1: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: Fax: E-mail:
Technical Contact #2: ▇▇▇▇▇▇ ▇▇▇▇▇
Phone: Fax: E-mail:
Technical Contact #3: _________________________________________________________
Phone: __________________ Fax: ______________ E-mail: _________________________
Technical Contact #4: # ______________________________________________________
Phone: __________________ Fax: ______________ E-mail: _________________________
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Visit ▇▇▇▇://▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ for general information
about Netscape's support services and operating hours.
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1. FRONT-LINE SUPPORT. Licensee, and not Netscape, will provide front-line
technical support to its End Users. Such support includes but is not limited
to, call receipt, entitlement verification, call screening, installation
assistance, problem identification and diagnosis, product defect determination,
efforts to create a repeatable demonstration of the Program Error and, if
applicable, the distribution of any defective media. Licensee agrees that any
documentation distributed by Licensee to its End Users will clearly and
conspicuously state that End Users should call Licensee for technical support
for the Product. Netscape will have no obligation to furnish any assistance,
information or documentation with respect to the Product, directly to End Users.
If Netscape is being contacted by a significant number of End Users, Netscape
will use reasonable efforts to (i) verify support eligibility for such End
Users, and (ii) refer such End Users to Licensee for support. If Netscape
continues to be contacted by a significant number of End Users, then, upon
Netscape's request, Licensee and Netscape will cooperate to minimize such
contact. Thereafter, if Netscape continues to be contacted by a significant
number of End Users for front-line support, then Licensee shall pay to Netscape
Netscape's then current charges for any End User identified by Netscape as
obtaining such support.
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
8
2. SERVICES. Netscape will provide back-end support to Licensee for Program
Errors not resolved by Licensee pursuant to Licensee's support policies and in
accordance herewith. This support includes efforts to identify defective source
code and to provide corrections, workarounds and/or patches to correct Program
Errors. Netscape will provide Licensee with a telephone number and an e-mail
address which Licensee may use to report Program Errors during Netscape's local
business hours. For priority 1, ▇▇▇▇▇▇▇▇ agrees to notify Netscape via both
telephone and e-mail. On Attachment C, Licensee has identified 4 members of its
customer support staff to act as technical liaisons responsible for all
communications with Netscape's technical support representatives. Such liaisons
will have sufficient technical expertise, training and/or experience, for
Licensee to perform its obligations hereunder. Licensee may substitute its
contacts at any time by providing 1 week's prior written and/or electronic
notice thereof to Netscape.
For the introductory site visit by Netscape, travel costs and related expenses
are paid by Netscape for up to 2 days. Upon Licensee's request, Netscape
engineers can extend the site visit for 3 additional days, provided that
Licensee shall pay for all costs and expenses related to such extended stay.
Netscape will use reasonable commercial efforts to resolve each significant
Program Error by providing either a reasonable workaround, an object code patch
or a specific action plan for how Netscape will address the problem and an
estimate of how long it will take to rectify the defect. Netscape reserves the
right to charge Licensee additional fees at its then-standard rates for services
performed in connection with reported Program Errors which are later determined
to have been due to hardware or software not supplied by Netscape.
Notwithstanding the foregoing, Netscape has no obligation to perform services in
connection with Program Errors resulting from hardware or software not supplied
by Netscape. Netscape agrees to support a given revision of the Product for the
shorter of (i) 12 months from the date such revision is superseded by the next
sequential Product revision; or (ii) until such revision is superseded by 2
sequential Product revisions. (For example, Netscape will support version 2.1
for the shorter of 12 months from the date version 2.2 or 3.0 (if 3.0 is the
next sequential release), is released by Netscape, or until version 2.1 is
superseded by 2 sequential releases (2.2 and 2.3 or 2.2 and 3.0, as the case may
be.)
Netscape will make reasonable efforts to correct significant Program Errors that
Licensee identifies, classifies and reports to Netscape and that Netscape
substantiates. Netscape may reclassify Program Errors if it reasonably believes
that Licensee's classification is incorrect. Licensee will provide sufficient
information for Netscape to enable Netscape to duplicate the Program Error
before Netscape's response obligations will commence. Unless otherwise
authorized in writing by Netscape, Netscape will not be required to correct any
Program Error caused by (a) incorporation, attachment of a feature, program, or
device to the Product, or any part thereof; (b) any nonconformance caused by
accident, transportation, neglect, misuse, alteration, modification, or
enhancement of the Product; (c) the failure to provide an installation
environment recommended for the Product; (d) use of the Product for other than
the specific purpose for which the Product is intended; (e) use of the Product
on any systems other than the specified hardware platform for such Product; (f)
if applicable, use of defective media or defective duplication of the Product;
or (g) failure to incorporate any Product revision or patch previously released
by Netscape which corrects such Program Error. For Program Error reports
received by Netscape during Netscape's local business hours, Netscape will use
reasonable commercial efforts to communicate with Licensee about the Program
Error via telephone or e-mail within the targeted response times set forth at
the end of these terms and conditions.
3. PURCHASE ORDERS. Licensee must place a written purchase order to initiate
Services under this Agreement and to renew or change the selection of Services
thereafter. Each purchase order must contain the following (i) reference to the
Agreement number; (ii) the level of Service, fees and charges therefor, and bill
to address (if different). No terms and conditions set forth in any purchase
order or instrument issued by Licensee in connection with the Services shall be
binding upon Netscape.
TARGETED RESPONSE TIMES:
--------------------------------------------------------------------------------
STATUS UPDATES
INITIAL (PROVIDED UPON
PRIORITY FAILURE DESCRIPTION RESPONSE LICENSEE'S REQUEST
TIME AFTER NETSCAPE'S
INITIAL RESPONSE)
--------------------------------------------------------------------------------
1 Enterprise-critical 1 hour By customer
(Product is not agreement
functioning)
--------------------------------------------------------------------------------
2 Severe Impact - Product 2 working Once per
inconsistency which hours working day
significantly decreases Licensee
productivity (periodic work
stoppages, feature crashes)
--------------------------------------------------------------------------------
9
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3 Degraded Operations: Product 4 working Once every 3
inconsistency which slightly hours working days
impairs customer productivity
(Licensee can work around problem)
--------------------------------------------------------------------------------
4 Minimal Impact: desired change next work Release notes or
in Product (documentation day plan for next
update, cosmetic defects, release
enhancement requests)
--------------------------------------------------------------------------------
10
