SOFTWARE DISTRIBUTION AND LICENSING AGREEMENT
This agreement is made this 24th day of December 1996, by and between
SOLID OAK SOFTWARE, INC. hereinafter referred to as Licensor, a
California Corporation, and WEBSITE MANAGEMENT COMPANY, INC. d/b/a
FLASHNET COMMUNICATIONS, hereinafter referred to as Licensee.
WITNESSETH
WHEREAS, Solid Oak Software desires to license certain software for
distribution to Licensee, an independent contractor, and Licensee and
Solid Oak Software are willing to enter into such an agreement, on
the terms and conditions set forth below:
1. SERVICES
1.1. Solid Oak Software agrees to supply the product described in the item
Project Description attached hereto as Attachment A and by this reference
made a part hereof this agreement.
1.2. Licensor hereby grants to Licensee a non-exclusive license to distribute
the Software as part of the Licensee's client software pack.
1.3. Licensor hereby grants to licensee a non-exclusive license to duplicate
or sub-contract the duplication of the Software for distribution pursuant
to this agreement.
2. INDEPENDENT CONTRACTOR
2.1. The parties are independent contractors hereunder, and neither party
shall be liable for the debts, accounts, obligations or other liabilities
of the other party or its agents, employees or independent contractors,
including without limitation any costs for salaries, overhead,
transportation or communication.
3. PAYMENT
3.1. As full compensation for the distribution rights of the software
provided by the Licensor, Licensee will pay a fee of $1.00 (US) per
packaged copy distributed for the first 20,000 units $.75/unit for 20,001
to 100,000 units, $.50/unit for 101,000 to 250,000 units, and above
250,000 units the individual cost will be $.25(US). For purposes of this
agreement the term PACKAGED COPY shall mean any copy packaged with any
distribution materials or method such as a manual, installation disk or
CD. Licensee may freely distribute the Trial version of the software to
end-users in unlimited quantities, however, Licensee shall only be liable
for payment of the fee for those Full version units actually sold.
3.2. Licensee shall pay said fees on a quarterly basis. Payments shall be due
within 30 days of the close of each quarter.
3.3. All overdue amounts shall bear an interest at the rate of one percent
(1.5%) per month, until paid in full.
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3.4. An initial non-refundable payment shall be made for the first 3500
copies in the amount of $3500.00 (US) prior to shipping of the master
disk.
3.5 Licensee will be required to meet a minimum of 5000 units distributed or
make a minimum payment of $5000 per quarter for the first year. The
total sum of non-refundable payments in the first twelve months will be
no less than $20,000(twenty thousand).
4. OWNERSHIP OF SOFTWARE
4.1. For purposes of this agreement the term SOFTWARE shall be considered to
consist of the compiled or executable versions of any and all programs
developed as a result of this agreement, any and all data files necessary
for operation of the executable programs, and any and all documentation
generated as part of this agreement.
4.2. Copyright for all software, subsequent modified software, and related
support files shall remain with Licensor.
5. KNOW-HOW RETENTION.
5.1. Licensee expressly acknowledges and agrees that pursuant to Section 4
(Ownership of Software), it is not acquiring any and all rights to the
know-how with respect to how to perform the Services or develop the
Software.
6. CONFIDENTIALITY - NON-DISCLOSURE
6.1. Solid Oak Software acknowledges and agrees that it may have access to,
or become acquainted with CONFIDENTIAL INFORMATION of Licensee. As used
herein, the term CONFIDENTIAL INFORMATION shall mean (i) any and all
business information of or relating to Licensee that is not known to the
general public and (ii) confidential information disclosed to Licensee by
third parties. Solid Oak Software further acknowledges and agrees that
the Confidential Information constitutes valuable trade secrets of
Licensee.
6.2. Solid Oak Software shall keep all Confidential Information of Licensee
in confidence and shall not publish, disclose or otherwise make
available, directly or indirectly, without the prior written consent of
Licensee, any item of Confidential Information to anyone other than those
of Licensee's employees or contractors who need to know the same in the
performance of their duties for Licensor. Solid Oak Software shall only
use the Confidential Information in connection with the distribution and
support of the Software and for no other purposes.
6.3. Solid Oak Software's confidentiality obligations hereunder shall
continue for each item of Confidential Information until such time as
such item of Confidential Information (i) is or has become publicly
available other than as a result of any act of Solid Oak Software; (ii)
has legally and properly been received by Solid Oak Software by a third
party through no breach of any agreement with Licensor and without
obligation to keep it confidential; or (iii) has been independently
developed by Solid Oak Software. Solid Oak Software's confidentiality
obligations hereunder shall not apply to each item of Confidential
Information that was known by Solid Oak Software, without obligation to
keep it confidential, prior to the receipt of such item of Confidential
Information from Licensor.
6.4. Licensee acknowledges and agrees that it may have access to, or become
acquainted with CONFIDENTIAL INFORMATION of Solid Oak Software. As used
herein, the term CONFIDENTIAL INFORMATION shall mean (i) the Solid Oak
Software's source code of the software, (ii) any and all technical
information of Solid Oak Software including, but without limitation,
product
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data and specifications, know-how, formulae, the source code and other
software information, processes, inventions, research projects and
product development, (iii) any and all business information of or
relating to Solid Oak Software that is not known to the general public
and (iv) confidential information disclosed to Solid Oak Software by
third parties. Licensee further acknowledges and agrees that the
Confidential Information constitutes valuable trade secrets of Solid Oak
Software.
6.5. Licensee shall keep all Confidential Information of Solid Oak Software
in confidence and shall not publish, disclose or otherwise make
available, directly or indirectly, without the prior written consent of
Solid Oak Software, any item of Confidential Information to anyone other
than those of Solid Oak Software's employees or contractors who need to
know the same in the performance of their duties for Solid Oak Software.
Licensor shall only use the Confidential Information in connection with
the design and support of the Software and for no other purposes.
6.6. Licensee confidentiality obligations hereunder shall continue for each
item of Confidential Information until such time as such item of
Confidential Information (i) is or has become publicly available other
than as a result of any act of Licensee; (ii) has legally and properly
been received by Licensee by a third party through no breach of any
agreement with Solid Oak Software and without obligation to keep it
confidential; or (iii) has been independently developed by Licensee.
Licensee's confidentiality obligations hereunder shall not apply to each
item of Confidential Information that was known by Licensee, without
obligation to keep it confidential, prior to the receipt of such item of
Confidential Information from Solid Oak Software.
6.4. The parties agree that the confidentiality covenants contained in this
Section 6 shall not restrict either party in the exercise of their
technical skill, provided that others do not benefit in any manner or
form from Confidential Information of the either party.
7. EMPLOYMENT TAXES AND BENEFITS.
7.1. Licensor acknowledges and agrees that it will be solely responsible for
withholding and paying all federal, state and local income taxes, FICA,
FUTA, and state unemployment and disability insurance for it's employees.
8. NON-INFRINGEMENT.
8.1. Licensee represents and warrants to Solid Oak Software that to the best
of its knowledge any other software products that Licensee distributes,
or any part, thereof does not, and will not upon delivery to Client
infringe any US patent right, US copyright, or US trade secret right of
any third party. Licensor provides warranties for the Software as set
forth in the end user Software Distribution and Licensing Agreement which
accompanies each software product. Licensor extends those warranties
contained in the end user Software Distribution and Licensing Agreement
to end users. Licensee is responsible to provide, or cause to be
provided, a copy of the end user Software Distribution and Licensing
Agreement to customers for their review at the time of installation.
8.2. Solid Oak Software will have no liability to Licensee with respect to
any infringement claim which may arise from the combination of the
Software with any other product or program. Under no circumstances shall
either party be held liable for any such claim that may arise from the
other party's software.
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8.3. Each party warrants that it has taken all requisite corporate and other
action to approve the execution, delivery and performance of this
agreement, and that it has full power and authority to enter into and
perform its obligations under this agreement.
9. TERM AND TERMINATION
9.1. This Agreement may be terminated at any time by either party,
immediately upon written notice to the other party if such other party
commits or allows any breach of any provision of this Agreement which is
incurable or which is curable but not cured within thirty (30) days after
written notice thereof to such other party; or
0.0.0.Xx Either party, for any reason or no reason, upon sixty (60) days
prior written notice to the other party.
9.2. Termination of this agreement by either party, for whatever reason,
shall not be considered to mean that unpaid or earned royalties or
payments shall terminate. All moneys due shall be paid to Licensor
through the date of contract termination or to meet any minimum
requirements, and within a period of 30 days.
10. DISCLAIMER; NOTICE OF LIABILITY
10.1. Except for the warranty provided in Section 8.1 hereof, Licensor does
not make any representations or warranties with respect to the Software
other than it's suitability for the purpose described in Attachment A.
10.2. Except as and to the extent provided in Section 8.1 hereof, under no
circumstances shall Licensor be liable to Licensee or any other person
for any special, indirect, incidental or consequential damages, except
when arising out of breach of warranty, breach of contract, tort
(including negligence).
11. NOTICE
11.1. Any notice or other communication hereunder shall be in writing and
shall be deemed given and effective (i) when delivered personally or by
overnight express, or (ii) three (3) days after the postmark date if
mailed by certified or registered mail, postage prepaid, return receipt
requested, addressed to a party at its address stated below or to such
other address as such party may designate by written notice to the other
party in accordance with the provisions of this Section.
Licensor: Licensee:
Solid Oak Software, Inc. FlashNet Communications
0000 Xx Xx Xxxx Xxxxxx 0000 X. Xxxxxx Xxxx Xxxx.
Xxxxx Xxxxxxx, XX 00000 Ft. Xxxxx, Xxxxx 00000
000-000-0000 000-000-0000
FAX 000-000-0000 FAX 000-000-0000
or
X.X. Xxx 0000
Xxxxx Xxxxxxx, XX 00000
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12. MISCELLANEOUS.
12.1. This Agreement, including Attachment A, constitutes the entire agreement
between the parties hereto relating to the subject matter hereof and
supersedes all prior oral and written and all contemporaneous oral
negotiations, commitments and understandings of the parties.
12.2. Except as hereinafter provided, this Agreement may not be changed or
amended except in writing, and executed by both parties.
12.3. Any assignment of this Agreement shall be approved in writing by both
parties.
12.4. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California excluding conflict of
law rules.
12.5. The parties agree that the state courts located in Santa Xxxxxxx County
(California) and the US District Court of the Southern District of
California, Los Angeles Division, shall have exclusive jurisdiction to
determine the validity, construction and performance of this Agreement
and the legal relations between the parties hereto and that venue in such
courts shall be proper.
12.6. No delay or failure by either party to exercise or enforce at any time
any right or provision of this Agreement shall be considered a waiver
thereof or of such party's right thereafter to exercise or enforce each
and every right and provision of this Agreement. A waiver to be valid
shall be in writing, but need not be supported by consideration. No
single waiver shall constitute a continuing or subsequent waiver.
12.7. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall constitute but
one and the same instrument. In construing or interpreting this
Agreement, the word or shall not be construed as exclusive, and the word
including shall not be limiting. This Agreement shall be fairly
interpreted in accordance with its terms without any strict construction
in favor of or against either party, and ambiguities shall not be
interpreted against the drafting party.
12.8. If any provision of this Agreement shall be held illegal, invalid or
unenforceable, in whole or in part, such provision shall be modified to
the minimum extent necessary to make it legal, valid and enforceable, and
the legality, validity and enforceability of the remaining provisions
shall not be affected thereby.
12.9. The liability will be limited to what Licensee owes to the Licensor and
no other damages, except in the event of fraud, gross negligence or
willful misconduct.
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ACCEPTANCE OF AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written:
SOLID OAK SOFTWARE, INC.:
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Xxxx Xxxxxx
SOLID OAK SOFTWARE, INC.
X.X. Xxx 0000
Xxxxx Xxxxxxx, XX 00000
(000)000-0000 FAX (000)000-0000
LICENSEE ACCEPTANCE:
By: /s/ M. Xxxxx Xxxxxx
-------------------------------------------
M. Xxxxx Xxxxxx, President
FLASHNET COMMUNICATIONS
0000 X. Xxxxxx Xxxx Xxxx.
Xx. Xxxxx, Xxxxx 00000
000-000-0000 FAX 000-000-0000
xxxxx@xxxxx.xxx
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ATTACHMENT A
PROJECT SCHEDULE
COMMENCEMENT DATE: January 1, 1996
DISTRIBUTION METHOD: Product to be bundled is CYBERsitter-TM- 2.11 for Windows
3.x and Windows95. TRIAL VERSION WHICH WILL BE CONVERTED TO FULL VERSION WITH A
PASSWORD PROVIDED UPON SUBSCRIPTION OF SERVICE OR FULL VERSION, AT THE REQUEST
OF LICENSEE.
A master disk will be provided BY LICENSOR.
SOFTWARE DESCRIPTION:
CYBERsitter - Internet blocking and monitoring application. A master disk and a
master copy of the manual on disk will be provided.
SPECIAL CONDITIONS:
1. Licensee hereby agrees to supply quarterly sales reports to Licensor of
all related sales where Licensee's product is involved.
2. Licensee hereby grants to Licensor the right to audit (at the expense of
the LICENSOR) any and all information that may relate to THE SOFTWARE'S
sales and royalty payments where the LICENSOR'S interests are involved.
IF SUCH AUDIT UNCOVERS A DISCREPANCY IN ROYALTY PAYMENTS DUE TO LICENSOR
TOTALING 5% OR MORE, SUCH BALANCE SHALL BE PAID BY LICENSEE AND
REASONABLE AUDIT EXPENSES SHALL BE PAID BY LICENSEE.
3. Solid Oak Software agrees that it will be a source of technical support
for the end user of said Software.
4. Licensee shall have the right to use the Solid Oak Software and
CYBERsitter logo in all advertising and promotions.
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