SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT is entered into as Jan 22,1997, by and between SEATTLE FILMWORKS,
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INC., a Washington corporation ("SFW") and ALTAVISTA Technology, Inc., a
California corporation,("Software Publisher").
WHEREAS, ALTAVISTA Technology, Inc. owns rights in a certain software
program known as Howdy!" (the "Software"); and
WHEREAS, SFW desires to obtain, and ALTAVISTA Technology, Inc. desires to
grant, a license to duplicate, distribute and license copies of the encrypted
Software as one of the products distributed on the SFW Master CD, on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1 . GRANT OF LICENSE.
1.1 Software Publisher hereby grants to SFW a nonexclusive license (the
'License") to duplicate, distribute and license encrypted copies of the program
files and support files of the Software pursuant to the terms of this Agreement,
The documentation which is part of the Software may also be distributed in
writing. SFW agrees that it will not reverse engineer, translate, disassemble,
or decompile the Software, in whole or in part, modify, edit, revise or enhance
the Software, or obscure, alter or remove any copyright, trademark or other
proprietary rights notices contained therein. The Software as delivered to SFW
hereunder is the proprietary and copyrighted property of ALTAVISTA Technology,
Inc., and all title thereto shall remain with ALTAVISTA Technology, Inc. SFW
shall have no right to grant sublicenses of any of its rights hereunder except
that SFW may authorize persons to whom it distributes the Software in accordance
with this Agreement to use the Software.
1.2 Software Publisher shall prepare and deliver to SFW a CD containing
complete program and support files for the Software so that said Software can be
loaded from the SFW Master CD by a user to provide a fully functioning product.
1.3 Software will be encrypted by SFW with a locking code which
prevents user from unauthorized use. SFW will employ all measures it deems
practical within its technical expertise to make sure the Software is secure
from unauthorized use, duplication and distribution. However, SFW makes no
claim and in no way warrants that Software which is encrypted on the SFW Master
CD is 100% secure from such unauthorized use. Once user has paid SFW for
Software, SPW will provide user with a code key to unlock Software and load the
program to user's computer.
1.4 SFW shall pay Software Publisher a royalty of 20% of net paid sales
excluding shipping, handling and taxes for each copy of Software sold. Net paid
sales is defined herein as the net amount paid by user for the Software less any
returns and will not be subject to sales and administrative expenses. The
selling price of the Software mutually agreed upon by SFW and Software Publisher
will be $14.95. SFW agrees that it will distribute to its first time buyers of
Pictures On Disk the encrypted Software without charge to Software Publisher,
and that all necessary support relative to the installation and basic use of the
software will be provided by SFW customer service. To facilitate SFW customer
support of the Software, Software Publisher agrees to provide each customer
service representative a gratis copy of the Software and including the HELP file
in text form or at least with the browse function turned on.
1.5 The term of the License shall commence on the date of this fully
executed Agreement and continue until terminated as provided herein. SFW may
terminate this License at any time in its sole discretion by delivery of 30 days
written notice to Software Publisher. In addition, if Software Publisher fails
to comply with any of the terms of this Agreement, SFW may, in addition to its
other available remedies, terminate the License immediately upon delivery of
written notice to Software Publisher. Upon termination of the License, SFW
shall return the Software Publisher's master disk to Software Publisher with a
certificate signed by an officer stating that the Software will no longer be
duplicated. All remaining copies in inventory of the Software as embedded in
the SFW Master CD may be sold by SFW. Any such residual sales will be credited
to Software Publisher as per the royalty terms of this Agreement.
2. DELIVERY. Software Publisher shall deliver to SFW within ten days
of the date of this fully executed Agreement one complete copy of the Software,
including all support files.
3. REPORTS AND PAYMENTS: REPORTS AND PAYMENTS: During the term of
this Agreement, SFW shall deliver a written quarterly report to Software
Publisher on or before the 1 5" day of each month following each calendar year
quarter (i.e., March, June, September and December), setting forth the number of
copies of the Software sold on behalf of Software Publisher in the previous
three-month period and the net paid sales for those units. Each such report
will be accompanied by the royalty payment and a list containing the names and
addresses of those who have purchased the Software. Such list will be on a
floppy disk in a form easily read by Software Publisher.
4. SUPPORT AND SERVICE. SFW shall not be obligated to prepare any bug
fixes or other updates to, or any new versions of, the Software. Any such
updates or new versions or fixes, if and when provided to SFW, shall be deemed
to be part of the Software as defined herein, and shall be governed by all
rights and restrictions applicable to the Software hereunder. Software
Publisher shall not be obligated to provide any service or support for the
Software to SFW or any of its customers. Software Publisher will promptly
notify SFW of any bugs or errors in the Software that Software Publisher becomes
aware of.
5. Warranty by Software Publisher. Software Publisher warrants that
the Software delivered to SFW will be free of defects and bugs and contain no
significant reproducible errors or viruses.
6. NO WARRANTY BY SFW. SFW assumes no responsibility for the Software
to achieve SFW' and its customers' intended results, and for the use of and
results obtained by SFW customers from the Software.
7. CONFIDENTIALITY. Software Publisher agrees that all sales data
provided by SFW will remain confidential.
8. NO ASSIGNMENT. The rights and obligations of Software Publisher
hereunder are personal to Software Publisher under its current ownership and
shall not be assigned, sublicensed or transferred to any third party, whether
voluntarily or by operation of law (including without limitation any merger or
other transaction which transfers control of Software Publisher to new owners)
without the prior, written consent of SFW which shall not be unreasonably
withheld in each instance. Any attempted assignment, sublicense or transfer in
violation of this Section shall be void.
9. INDEMNIFICATION. Software Publisher shall defend, indemnify and hold
SFW harmless from and against any and all claims, actions, losses, damages,
liabilities, obligations, costs and expenses (including without limitation
reasonable attorney fees) arising from or based upon (1) use by SFW or any of
its customers of Software warranties, (2) any failure of the Software to meet
any express or implied warranties made by Software Publisher or to satisfy the
needs of any customer of SFW, or (3) any claims, that Software infringes any
copyright, trademark or other legal rights of others.
10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, SFW SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY THIRD
PARTY CLAIMS OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES,
INCLUDING ANY LOST PROFITS OR SAVINGS, ARISING FROM THE PERFORMANCE OR BREACH OF
ANY PROVISION OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE, OR
ANY PORTION THEREOF, EVEN IF SFW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, IN NO EVENT SHALL SFW'S LIABILITY, WHETHER IN TORT (INCLUDING
NEGLIGENCE), CONTRACT, OR OTHERWISE, EXCEED $1,000.
11. GENERAL.
11.1 This Agreement is the complete and exclusive statement of the
agreement between the parties and supersedes any and all prior or
contemporaneous oral or written communications with respect to the subject
matter hereof. Each party is not relying on any representation or warranty
which is not expressly contained in this Agreement. Any provisions or
conditions of any purchase order or other Software Publisher document shall be
inapplicable and not binding upon SFW. No modification, waiver, or amendment
hereof shall be binding unless stated in a writing signed by both parties, and
no waiver of a right in any instance shall constitute a waiver of the same or
any other right in any other instance.
11.2 In construing this Agreement, no weight or relevance shall be
given to the fact that it or any particular provision of it may have been
drafted by one or the other of the parties, the parties having had adequate
opportunity to negotiate all provisions hereof.
11.3 This Agreement shall be governed and construed in accordance with
the laws of the State of Washington and the United States of America, without
regard to the rules relating to the conflict of laws. Any litigation between
the parties concerning this Agreement shall be brought exclusively in King
County, Washington. Software Publisher consents to the jurisdiction of the
state and federal courts sitting in the State of Washington and service of
process by registered or certified mail or such other methods permitted under
the applicable long-arm statute.
11.4 If any provision of this Agreement is held to be invalid, illegal
or unenforceable, such provision shall be enforced to the maximum extent
permitted by law and the parties' fundamental intentions hereunder, and the
remaining provisions shall not be affected.
11.5 Notices under this Agreement shall be sufficiently given if
delivered in person or sent by mail or reputable courier service to the
respective addresses stated below (or to such other address as a party may by
notice specify for notices to it), and shall be effective upon the earlier of
actual delivery or the third day after mailing.
THE PARTIES AFFIRM THAT THEY HAVE READ AND UNDERSTOOD THIS ENTIRE AGREEMENT,
INCLUDING THE EXCLUSIONS OF WARRANTIES AND LIMITATIONS OF REMEDIES STATED
HEREIN, AND ACKNOWLEDGE THAT THE SAME CONSTITUTE AN AGREED ALLOCATION OF RISK
REFLECTED IN THE PRICING OF THE LICENSE.
SEATTLE FILMWORKS, INC. ALTAVISTA Technology, Inc., Inc:
Address: 0000 00xx Xxx Xxxx Address: 0000 Xxxx Xxx.
Xxxxxxx, XX 00000 Xxxxx 000
Xxxxxxxx, XX 00000
By: By: /s/ Xxxx Xxxxxxxx
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Its: Its: President
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Date: 1-14-97 Date: 1-22-97
