Value Added Reseller Agreement - Mangosoft Inc. and 3Com Corp.
MANGOSOFT, INC.
3COM CORPORATION
VALUE ADDED RESELLER AGREEMENT
This Value Added Reseller Agreement (this "Agreement") is made by and
between MangoSoft, Inc. ("Licensor"), with a place of business at 1500 West Park
Drive, Suite 190, Westborough, Massachusetts 01581, and 3Com Corporation
("3Com"), with a place of business at 5400 Bayfront Plaza, Santa Clara, CA
95052. The effective date of this Agreement shall be the date set forth on the
signature page hereto ("Effective Date"). For purposes of this Agreement, "3Com"
shall mean 3Com Corporation and its subsidiaries.
WHEREAS, Licensor is the owner of certain software and other technology
as more particularly described in Exhibit A.
WHEREAS, 3Com desires to obtain a license to such Licensor software and
technology in order to develop, manufacture and market products incorporating
the Licensor software and technology and Licensor is willing to grant 3Com a
license upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the adequacy and sufficiency of which are hereby acknowledged, 3Com
and Licensor agree as follows:
1. DEFINITIONS.
1.1. "CONFIDENTIAL INFORMATION" means that information and know-how of
either party ("Disclosing Party") which is disclosed to the other party
("Receiving Party") pursuant to this Agreement, in written form and marked
"Confidential," "Proprietary" or similar designation, or if disclosed orally,
the Disclosing Party shall indicate that such information is confidential at the
time of disclosure and send a written summary of such information to the
Receiving Party within thirty (30) days of disclosure and mark such summary
"Confidential," "Proprietary" or similar designation. For purposes hereof, the
Licensor Software shall be deemed to be Confidential Information. References to
3Com as a Receiving Party or a Disclosing Party shall also include all present
and future subsidiary and parent companies of 3Com.
1.2. "DOCUMENTATION" means the end user documentation for the Licensor
Software which is provided to 3Com to assist 3Com in creating the End User
documentation for the 3Com Products.
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1.3. "END USER" means a third party sublicensed directly or indirectly
by 3Com to use the 3Com Products for the End User's customary internal business
purposes and not for redistribution.
1.1. "LICENSOR SOFTWARE" means the object code of Licensor's
proprietary software products and any Updates thereof as specifically set forth
in Exhibit A hereto which are used to create the 3Com Products.
1.2. "UPDATES" means maintenance releases to the Licensor Software or
Documentation which are generally available.
1.4. "3COM PRODUCTS" mean the value-added software applications and
related documentation specifically set forth on Exhibit B hereto, which contain
or utilize the Licensor Software and Documentation and which add substantial
value. 3Com Products may be bundled with hardware products or may be licensed on
a stand-alone basis.
2. LICENSES.
2.1. 3COM DISTRIBUTION LICENSES. Licensor hereby grants to 3Com a
worldwide, perpetual, non-exclusive license to use, reproduce, support,
demonstrate, market and distribute, directly or indirectly (including over the
internet or via other electronic means) (i) the Licensor Software in object code
form, solely as part of the 3Com Products, with full rights to sublicense and
have sublicensed such Licensor Software and the rights granted to 3Com hereunder
to third parties, including, but not limited to, 3Com's End-User customers,
distributors, OEM's, resellers and systems integrator customers and (ii) the
Documentation, when integrated into or delivered with 3Com's End User
documentation for the 3Com Products, or as otherwise provided under this
Agreement, with full rights to sublicense and have sublicensed such
Documentation and the rights granted to 3Com hereunder to third parties,
including, but not limited to, 3Com's End User customers, distributors, OEM's,
resellers and systems integrator customers. The 3Com Products can be bundled
with the 3Com hardware products or be licensed on a stand-alone basis.
2.2. RESTRICTIONS ON USE AND TRANSFER. 3Com's use of the Licensor
Software and Documentation shall be limited to the purposes specifically set
forth in Section 2 herein. Without limiting the generality of the foregoing,
3Com receives no rights to and agrees not to decompile, disassemble or otherwise
reverse engineer the Licensor Software.
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2.3. TRADEMARK LICENSE. Licensor hereby grants 3Com, subject to
Licensor's approval, such approval not to be unreasonably withheld, a worldwide,
non-exclusive, royalty-free right, during the term of this Agreement, to utilize
Licensor's trademarks specified in Exhibit C hereto in connection with the
advertising, promotion and sale of the 3Com Products. When using Licensor's
trademarks, 3Com will indicate that Licensor is the owner of such trademark(s).
3. DELIVERY & ACCEPTANCE.
3.1. GENERAL. A single copy of the Licensor Software and Documentation
will be delivered to 3Com via electronic transmission or via hard media, as
determined by 3Com. All such shipments shall be F.O.B. Origin. The Licensor
Software, including any Updates, is subject to 3Com's inspection and test at
3Com's facility before final acceptance. If any Licensor Software delivered
hereunder fails to conform to the specifications for such Licensor Software set
forth in Exhibit D hereto, the Documentation or other relevant written materials
provided to 3Com (collectively, the "Specifications"), 3Com shall notify
Licensor of such failure and Licensor shall have up to thirty (30) days to
deliver to 3Com conforming Licensor Software. If Licensor fails to deliver
conforming Licensor Software within such thirty-day period, 3Com shall have the
right, without liability, to either cancel purchase orders for the Licensor
Software or require expedited shipping of conforming Licensor Software at
Licensor's sole cost.
3.2. CONFORMANCE TO SPECIFICATIONS. All Licensor Software delivered
hereunder shall fully comply with (i) the Specifications and (ii) all applicable
United States and foreign laws, rules and regulations.
4. PAYMENTS.
4.1. FEES. All payments under this Agreement shall be made in
accordance with this Section 4 and with the terms set forth in Exhibit E hereto.
The payments described herein are expressed in U.S. dollars and do not include
any taxes, duties or similar fees which may be collectable or withheld pursuant
to law.
4.2. PAYMENT TERMS. Except as otherwise specified herein, all payments
to Licensor will be made in U.S. dollars, free of any currency control or other
restrictions. Payment shall not constitute acceptance of the Licensor Software
or Documentation by 3Com.
4.3. TAXES. 3Com shall pay all import duties, customs fees, sales
(unless an exemption certificate is furnished by 3Com to Licensor), use,
withholding and value added taxes (except for taxes imposed on Licensor's net
income) with respect to any
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products sold or licensed and any services rendered to 3Com in respect of this
Agreement or furnish Licensor with evidence acceptable to the taxing authority
to sustain an exemption therefrom.
4.4. REPORTS AND AUDIT. 3Com shall keep adequate records to verify all
reports and payments to be made to Licensor pursuant to this Agreement for a
period of two (2) years following the date of such reports and payments.
Licensor and its representatives shall have the right to reasonable access to
all books, accounting records and other materials of 3Com and its affiliates
that Licensor deems relevant for purposes of determining the fees payable to
Licensor pursuant to this Agreement. To the extent possible, 3Com shall cause
any applicable distributor of 3Com Products to provide Licensor and its
representatives with reasonable access to all books, accounting records and
other materials that Licensor deems relevant for purposes of determining the
fees payable to Licensor pursuant to this Agreement.
5. SUPPORT SERVICES.
5.1. LINE SUPPORT. Support services for the Licensor Software shall be
provided by the parties as set forth in Exhibit F hereto. 3Com shall be
responsible for support of the 3Com Products.
5.2. DEVELOPMENT SUPPORT. Licensor shall provide development support to
3Com as may be agreed to from time to time by the parties in writing.
6. MARKETING AND PUBLICITY.
6.1. DISCLOSURE. Licensor shall not, without 3Com's prior written
approval, and except as required by law in the good faith judgment of Licensor,
make any public announcement or disclosure as to the existence or matters set
forth in this Agreement.
6.2. PRESS RELEASE AND HYPERTEXT LINKS. Notwithstanding the foregoing,
(i) 3Com shall permit Licensor to issue a press release upon the execution of
this Agreement in the form provided in Exhibit G hereto, subject to reasonable
revisions as requested by Licensor's public relations firm; and (ii) 3Com and
Licensor shall each host a hypertext link on an appropriate page of their
websites linking a user to the appropriate page of the other party's website,
allowing such user to access relevant information about the 3Com Products and
additional products and services of the other party. The parties hereto agree to
cooperate in the development and management of such hypertext links.
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6.3. LICENSOR MARKETING MATERIALS. 3Com agrees to place Licensor's
printed marketing materials in the packaging of the 3Com Products, such
materials to be produced by Licensor and provided to 3Com at Licensor's expense.
7. PROPRIETARY RIGHTS.
7.1. OWNERSHIP. 3Com acknowledges and agrees with Licensor that, as
between Licensor and 3Com, Licensor is the sole owner of the Licensor Software
and Documentation and that all title, including but not limited to copyrights,
trademarks, patent rights and trade secrets, in and to the Licensor Software,
are owned by Licensor, and that 3Com has no rights in and to such Licensor
Software and Documentation other than as expressly provided for herein. All
right, title and interest in and to the 3Com Products and related documentation
(excluding the Licensor Software and Documentation) shall at all times remain
with 3Com.
7.2. PROPRIETARY RIGHTS NOTICES. 3Com agrees that it will not remove,
alter or otherwise obscure any proprietary rights notices appearing in the
Licensor Software or Documentation.
7.3. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND. All Licensor technical
data and computer software is commercial in nature and developed solely at
private expense. Licensor Software is delivered as Commercial Computer Software
as defined in DFARS 252.227-7014 (June 1995) or as a commercial item as defined
in FAR 2.101(a) and as such is provided with only such rights as are provided in
Licensor's standard commercial license for such software. Technical data is
provided with limited rights only as provided in DFARS 252.227-7015 (Nov. 1995)
or FAR 52.227-14 (June 1987), whichever is applicable. 3Com will: (a) identify
and license the 3Com Products in all proposals and agreements with the United
States Government or any contractor therefor; and (b) legend or mark the 3Com
Products provided pursuant to any agreement with the United States Government or
any contractor therefor in a form sufficient to obtain for Licensor and its
suppliers the protection intended by this Section 7.3 (U.S. Government
Restricted Rights Legend).
7.4. END-USER LICENSING. 3Com agrees that each 3Com Product distributed
by 3Com hereunder will be accompanied by a copy (either electronically or in
hard copy) of 3Com's standard End User software license, a copy of which is
attached hereto as Exhibit I; provided, however, that the terms of such license
will be drafted so as to apply to the Licensor Software and shall be at least as
protective of the Licensor Software as the terms and conditions 3Com uses for
its own software products of a similar nature.
8. WARRANTY.
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8.1. LICENSOR WARRANTY. Licensor warrants that the Licensor Software
will substantially conform with the Specifications. Licensor warrants the
magnetic media containing the Licensor Software against failure during the
warranty period. This warranty will remain in effect for ninety (90) days from
the delivery of the Licensor Software to 3Com. For any Update provided to 3Com
hereunder, the warranty period shall apply to that Update as of the delivery
date to 3Com. If, during the warranty period, the media on which the Licensor
Software is provided is found to be defective, Licensor shall provide 3Com with
conforming replacement media. If, during the term of this warranty, 3Com
provides written notice to Licensor of any other failure of the Licensor
Software to satisfy this warranty, Licensor and 3Com shall work to resolve the
failure in accordance with Exhibit F hereto.
Licensor further warrants that the it has all right, power and
authority to enter into this Agreement and to grant the licenses hereunder.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR
CONDITIONS, AND EXCEPT FOR THE EXPRESS WARRANTIES OR CONDITIONS STATED IN THIS
AGREEMENT, LICENSOR DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR
IMPLIED, IN CONNECTION WITH THE LICENSOR SOFTWARE AND THE PROVISION OF OR
FAILURE TO PROVIDE SUPPORT SERVICES, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
8.2. YEAR 2000 COMPLIANCE. Licensor represents and warrants that the
Licensor Software provided under this Agreement (i) will record, store, process
and display and receive calendar dates falling on or after January 1, 2000, in
the same manner, and with the same functionality as such Licensor Software
records, stores, processes, displays and receives calendar dates falling on or
before December 31, 1999; (ii) shall include without limitation date data
century recognition, calculations that accommodate same century and multicentury
formulas and date values, and date data interface values that reflect the
century; and (iii) be capable of correctly processing, providing and/or
receiving data and date related data within and between the twentieth and
twenty-first centuries.
8.3. COMMODITY CERTIFICATION. Licensor shall provide 3Com with a copy
of the Commodity Classification for the Licensor Software or, if this is not
available, Licensor shall provide 3Com with the ECCN that was used by Licensor
for self-certification. A copy of the Commodity Classification is required for
any Licensor Software containing security or encryption technology. In addition,
Licensor shall advise 3Com as to General License type pursuant to which the
Licensor Software may be exported.
8.4. NO TROJAN HORSE. No portion of the Licensor Software shall
knowingly contain, at the time of delivery, any "back door", "time bomb",
"Trojan horse", "worm",
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"drop dead device" or other computer software routines or hardware components
designed to (i) permit unauthorized access to, or use of, the Licensor Software
or computer systems on which the Licensor Software is loaded, (ii) disable,
damage or erase Licensor Software or data or (iii) perform any other similar
actions that would preclude full use of the Licensor Software by 3Com or its
sublicensees. In addition, Licensor shall use its best efforts to ensure that
the Licensor Software does not contain a virus at the time of delivery. If a
virus is discovered, Licensor will correct the problem or provide a patch, work
around or any other method to eradicate the problem within thirty (30) days
following notice by 3Com, at no cost to 3Com.
8.5. COUNTRY OF MANUFACTURER. Licensor represents and warrants that the
Licensor Software is manufactured in the U.S. Licensor shall promptly advise
3Com at least ninety (90) days prior to a change in such manufacturing location.
9. INDEMNIFICATION.
9.1. INTELLECTUAL PROPERTY. Licensor shall, at its expense, indemnify,
hold harmless and, at 3Com's option and request, defend 3Com and its officers,
employees, agents and direct or indirect customers from any claims, suits,
losses, liabilities, damages, court judgments or awards and the associated costs
and expenses (including attorney's fees) (collectively, "Losses"), incurred
because of actual or alleged infringement by the Licensor Software or
Documentation or other material provided hereunder of any patent, copyright,
trade secret, trademark, mask work right or other proprietary right(s) of a
third party; provided, that Licensor is promptly notified and rendered
reasonable assistance by 3Com (at Licensor's expense). 3Com may, at its own
expense, assist in such defense if it so chooses, provided that, (i) Licensor
shall control such defense and all negotiations in connection with the
settlement of any such claim and (ii) 3Com shall, in the event of a settlement,
provide Licensor with a release from the indemnification provided for in this
Section 9.1 relative to such action only. 3Com shall promptly provide Licensor
with written notice of any claim that 3Com believes falls within the scope of
this Section 9.1. Should the use of the Licensor Software or Documentation by
3Com or its customers be enjoined, or in the event Licensor wishes to minimize
its potential liability hereunder, Licensor may, at its option, either: (i)
substitute a fully equivalent non-infringing unit of the Licensor Software and
Documentation; (ii) modify the infringing Licensor Software and Documentation so
that it no longer infringes but remains functionally equivalent; or (iii) obtain
for 3Com or its customers, at Licensor's expense, the right to continue use of
such Licensor Software and Documentation. In the event that Licensor is unable
to effect any of the actions contemplated by the foregoing clauses (i), (ii) or
(iii), Licensor shall provide 3Com with written notice of such inability and
3Com shall cease all sales of 3Com Products containing such
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infringing Licensor Software. In such event, Licensor shall reimburse 3Com for
any payments made by 3Com to Licensor hereunder in respect of any 3Com Products
containing such infringing Licensor Software. The indemnification contemplated
by this Section 9.1 shall not apply to such infringement to the extent it arises
solely from changes made to the Licensor Software or Documentation by 3Com
pursuant to this Agreement or otherwise.
(b) 3Com shall, at its expense, indemnify and hold harmless Licensor
and its directors, officers, employees and agents from and against any and all
Losses incurred because of actual or alleged infringement by any 3Com Product of
any patent, copyright, trade secret, trademark, mask work right or other
proprietary right(s) of a third party in the event such infringement arises
because of any modification or creation of any derivative work made by 3Com in
respect of the Licensor Software. Licensor may, at its own expense, assist in
such defense if it so chooses, provided that, (i) 3Com shall control such
defense and all negotiations in connection with the settlement of any such claim
and (ii) Licensor shall, in the event of a settlement, provide 3Com with a
release from the indemnification provided for in this Section 9.1 relative to
such action only. Licensor shall promptly provide 3Com with written notice of
any claim which Licensor believes falls within the scope of this Section 9.3.
9.2. GENERAL. Licensor shall indemnify, hold harmless and defend 3Com
and its officers, directors, employees, agents and customers from and against
any and all Losses which it may incur or become responsible for as a result of
or in connection with Licensor's breach of any term or condition of this
Agreement. 3Com may, at its own expense, assist in such defense if it so
chooses, provided that, (i) Licensor shall control such defense and all
negotiations in connection with the settlement of any such claim and (ii) 3Com
shall, in the event of a settlement, provide Licensor with a release from the
indemnification provided for in this Section 9.2 relative to such action only.
3Com shall promptly provide Licensor with written notice of any claim which 3Com
believes falls within the scope of this Section 9.2.
(b) 3Com shall indemnify, hold harmless and defend Licensor and its
officers, directors, employees and agents from and against any and all Losses
which it may incur or become responsible for as a result of or in connection
with 3Com's breach of any term or condition of this Agreement. Licensor may, at
its own expense, assist in such defense if it so chooses, provided that, (i)
3Com shall control such defense and all negotiations in connection with the
settlement of any such claim and (ii) Licensor shall, in the event of a
settlement, provide 3Com with a release from the indemnification provided for in
this Section 9.2 relative to such action only. Licensor shall promptly provide
3Com with written notice of any claim which Licensor believes falls within the
scope of this Section 9.2.
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10. CONFIDENTIALITY.
10.1. CONFIDENTIAL INFORMATION. Each party acknowledges that in the
course of the performance of this Agreement, it may obtain the Confidential
Information of the other party. The Receiving Party (as defined in Section 1.1
(Confidential Information)) shall, at all times, both during the term of this
Agreement and thereafter for a period of five (5) years keep in confidence and
trust all of the Disclosing Party's (as defined in Section 1.1 (Confidential
Information)) Confidential Information received by it. The Receiving Party shall
not use the Confidential Information of the Disclosing Party other than as
expressly permitted under the terms of this Agreement. The Receiving Party shall
take reasonable steps to prevent unauthorized disclosure or use of the
Disclosing Party's Confidential Information and to prevent it from falling into
the public domain or into the possession of unauthorized persons, but in no
event will the Receiving Party use less care than it would in connection with
its own Confidential Information of like kind. The Receiving Party shall not
disclose Confidential Information of the Disclosing Party to any person or
entity other than its officers, employees and consultants who need access to
such Confidential Information in order to effect the intent of this Agreement
and who have entered into confidentiality agreements which protect the
Confidential Information of the Disclosing Party sufficient to enable the
Receiving Party to comply with this Section 10.1 (Confidential Information).
10.2. EXCEPTIONS TO CONFIDENTIAL INFORMATION. The obligations set forth
in Section 10.1 (Confidential Information) shall not apply to the extent that
Confidential Information includes information which is: (a) now or hereafter,
through no unauthorized act or failure to act on the Receiving Party's part, in
the public domain; (b) known to the Receiving Party without an obligation of
confidentiality at the time the Receiving Party receives the same from the
Disclosing Party, as evidenced by written records; (c) hereafter furnished to
the Receiving Party by a third party as a matter of right and without
restriction on disclosure; (d) furnished to others by the Disclosing Party
without restriction on disclosure; or (e) independently developed by the
Receiving Party without use of the Disclosing Party's Confidential Information.
Nothing in this Agreement shall prevent the Receiving Party from disclosing
Confidential Information to the extent the Receiving Party is legally compelled
to do so by any governmental investigative or judicial agency pursuant to
proceedings over which such agency has jurisdiction; provided, however, that
prior to any such disclosure, the Receiving Party shall (i) assert the
confidential nature of the Confidential Information to the agency; (ii)
immediately notify the Disclosing Party in writing of the agency's order or
request to disclose; and (iii) cooperate fully with the Disclosing Party in
protecting against any such disclosure and/or obtaining a protective order
narrowing the scope of the compelled disclosure and protecting its
confidentiality.
11. LIMITATION OF LIABILITY.
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NEITHER PARTY SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL,
INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF
REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE,
EVEN IF ANY REPRESENTATIVE OF A PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING UNDER SECTION 9, IN NO EVENT SHALL
EITHER PARTY'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY 3COM TO
LICENSOR UNDER THIS AGREEMENT. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL
APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE.
12. EXPORT REGULATIONS.
Neither party shall export, directly or indirectly, any technical data
or software acquired under this Agreement or the direct product of any such
technical data or software to any country for which the United States Government
or any agency thereof, at the time of export, requires an export license or
other government approval, without first obtaining such license or approval.
With respect to any export transactions under this Agreement, both parties will
cooperate in any reasonable manner to effect compliance with all applicable
export regulations.
13. TERM AND TERMINATION.
13.1. TERM. This Agreement shall be perpetual unless terminated as
specified below.
13.2. TERMINATION DUE TO BANKRUPTCY. In the event a party (i) becomes
insolvent; (ii) voluntarily files or has filed against it a petition under
applicable bankruptcy or insolvency laws which such party fails to have released
within thirty (30) days after filing; (iii) proposes any dissolution,
composition or financial reorganization with creditors or if a receiver,
trustee, custodian or similar agent is appointed or takes possession with
respect to all or substantially all property or business of such party; or (iv)
makes a general assignment for the benefit of creditors, the other party may
terminate this Agreement by giving a written termination notice, which
termination shall become effective ten (10) days after mailing.
13.3. RIGHT TO TERMINATE FOR BREACH. Either party shall have the right
to terminate this Agreement if the other party is in material breach of any term
or condition of this Agreement and fails to remedy such breach within thirty
(30) days after receipt of written notice of such breach given by the
non-breaching party; provided, however, that a
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breach of the obligations set forth in Section 10 (Confidentiality) shall be
grounds for immediate termination by the non-breaching party of this Agreement.
13.4. RIGHT TO TERMINATE FOR CONVENIENCE. Either party shall have the
right to terminate this Agreement for convenience commencing after the first
anniversary of the Effective Date, upon thirty (30) days advance written notice
to the other party.
13.5. OBLIGATIONS UPON TERMINATION. Upon the termination of this
Agreement:
(a) The licenses granted to 3Com hereunder shall terminate and 3Com
shall discontinue the use, manufacture, reproduction, distribution and
sublicensing (as applicable) of the Licensor Software and Documentation. Upon
expiration or termination of any license or of the Agreement for any reason: (i)
all corresponding development, reproduction and sublicensing rights granted
under Section 2 shall immediately cease, provided that termination or expiration
of this Agreement will not terminate the rights of End Users previously granted
the right to use the 3Com Products; (ii) 3Com shall immediately delete all
copies of the Licensor Software and Documentation from any computer storage
device or medium on which the Licensor Software or Documentation has been
placed, and at its expense, shall immediately destroy or return to Licensor all
physical copies of the Licensor Software, Documentation and marketing materials,
or portions thereof, in its possession; and (iii) 3Com will give Licensor a
written certification that it has complied with its obligations under this
Section 13.5. Notwithstanding the above, 3Com may retain a reasonable number of
copies of the Licensor Software to be used for providing technical support to
then-existing End Users.
(b) Notwithstanding the above, in the event this Agreement expires or
terminates other than as a result of 3Com's breach, 3Com's licenses hereunder
shall continue for a period of sixty (60) days in order to allow it to sell out
all 3Com Products within its sales channel or inventory which contain the
Licensor Software. 3Com will continue to abide by the terms and conditions
hereof during such additional period.
13.6. OTHER OBLIGATIONS UPON TERMINATION. Upon the expiration or
earlier termination of the Agreement, the Receiving Party shall, within fifteen
(15) days of any termination or expiration of this Agreement, return to the
Disclosing Party or destroy all full or partial copies, in whatever media, of
any and all materials in the Receiving Party's possession which had been
furnished to the Receiving Party by the Disclosing Party pursuant to this
Agreement (other than those copies allowed to be retained per Section 13.5), and
the Receiving Party shall warrant in writing to the Disclosing Party within
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thirty (30) days after termination or expiration that all such materials have
been returned to the Disclosing Party or destroyed.
13.7. SURVIVAL. The parties agree that their respective rights,
obligations and duties under Sections 4, 5, 6, 7.1, 7.2, 8, 9, 10, 11, 12, 13,
14 and as well as any rights, obligations and duties which by their nature
extend beyond the termination or expiration of this Agreement shall survive any
termination or expiration and remain in effect for a period of five (5) years
thereafter or the period specified in this Agreement, if longer.
14. MISCELLANEOUS.
14.1. NOTICES. All notices and communications hereunder are required to
be sent to the address or telecopier number stated below (or such other address
or telecopier number as subsequently notified in writing to the other party):
(i) by facsimile with confirmation of transmission, (ii) personal same or next
day delivery or (iii) sent by international express courier with written
verification of delivery. All notices so given shall be deemed given upon the
earlier of receipt or two (2) days after dispatch.
If to Licensor: MangoSoft, Inc.
1500 West Park Drive, Suite 190
Westborough, Massachusetts 01581
Attn: President
Fax: 508-871-7380
If to 3Com: 3Com Corporation
3Com Drive
Marlborough, MA 01752
Attn:_________________________
Fax:_________________________
With a Copy to: East Coast Legal Director, Fax 503-323-0325
14.2. AMENDMENT; WAIVER. This Agreement may be amended or supplemented
only by a writing that is signed by duly authorized representatives of both
parties. No term or provision hereof will be considered waived by either party,
and no breach excused by either party, unless such waiver or consent is in
writing signed on behalf of the party against whom the waiver is asserted. No
consent by either party to, or waiver of, a breach by either party, whether
express or implied, will constitute a consent to, waiver of, or excuse of any
other, different, or subsequent breach by either party.
14.3. SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable for any reason, the remainder of the provision shall be amended
to achieve as closely as possible the economic effect of the original term and
all other provisions shall continue in full force and effect.
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14.4. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the United States and the State of California as applied to
agreements entered into and to be performed entirely within California between
California residents. The parties agree that the United Nations Convention on
Contracts for the International Sale of Goods is specifically excluded from
application to this Agreement.
14.5. CHOICE OF FORUM. The parties hereby submit to the jurisdiction
of, and waive any venue objections against, the United States District Court for
the Northern District of California, San Jose Branch and the Superior and
Municipal Courts of the State of California, Santa Clara County, in any
litigation arising out of the Agreement.
14.6. ATTORNEYS' FEES. In any action to enforce this Agreement, the
prevailing party shall be awarded all court costs and reasonable attorneys' fees
incurred, including such costs and attorneys' fees incurred in enforcing and
collecting any judgment.
14.7. FORCE MAJEURE. Neither party will be liable for any failure or
delay in performance under this Agreement due to fire, explosion, earthquake,
storm, flood or other weather, unavailability of necessary utilities or raw
materials, war, insurrection, riot, act of God or the public enemy, law, act,
order, proclamation, decree, regulation, ordinance, or instructions of
Government or other public authorities, or judgment or decree of a court of
competent jurisdiction (not arising out of breach by such party of this
Agreement) or any other event beyond the reasonable control of the party whose
performance is to be excused.
14.8. ASSIGNMENT. Either party hereto may assign this Agreement to any
parent entity or to any person or entity to whom it transfers all or
substantially all of its proprietary rights in the Licensor Software provided
the assignee agrees to be bound by the terms of this Agreement. Otherwise,
neither party may assign, voluntarily, by operation of law, or otherwise, any
rights or delegate any duties under this Agreement (other than the right to
receive payments) without the other party's prior written consent, and any
attempt to do so without such consent will be void. This Agreement will bind and
inure to the benefit of the parties and their respective successors and
permitted assigns.
14.9. RELATIONSHIP OF THE PARTIES. The parties to this Agreement are
independent contractors. There is no relationship of agency, partnership, joint
venture, employment, or franchise between the parties. Neither party has the
authority to bind the other or to incur any obligation on its behalf.
14.10. ALLOCATION OF RISK. The sections hereof on limitation of
liability, warranties and disclaimer of warranties allocate the risks in the
Agreement between the
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parties. This allocation is an essential element of the basis of the bargain
between the parties.
14.11. CONSTRUCTION OF AGREEMENT. This Agreement has been negotiated by
the respective parties hereto and their attorneys and the language hereof shall
not be construed for or against any party. The titles and headings herein are
for reference purposes only and shall not in any manner limit the construction
of this Agreement, which shall be considered as a whole.
14.12. COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument. If this Agreement is
executed in counterparts, no signatory hereto shall be bound until both the
parties named below have duly executed or caused to be duly executed a
counterpart of this Agreement.
14.13. COMPLIANCE WITH LAWS. In furnishing the Licensor Software
hereunder, Licensor agrees to comply with all applicable Federal Acquisition
Regulations (FARs) and related laws, rules, regulations and executive orders in
connection with its activities under this Agreement, including, without
limitation, the following FAR clauses: 52.222-26 - Equal Opportunity, 52.222-35
- Affirmative Action for Special Disabled and Vietnam Era Veterans and 52.222-36
- Affirmative Action for Handicapped Workers. If Licensor has no place of
business within the United States, the FAR clauses will not be applicable to
Licensor.
14.14. ENTIRE AGREEMENT. This Agreement, including all Exhibits to this
Agreement, constitutes the entire agreement between the parties relating to this
subject matter and supersedes all prior or simultaneous representations,
discussions, negotiations, and agreements, whether written or oral. The original
of this Agreement has been written in the English language. Licensor hereby
waives and agrees never to assert any right it may have to have this Agreement
written in the language of its place of residence.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth below.
MangoSoft, Inc. 3Com Corporation
By:/s/ Dale Vincent By:/s/ Roger Sands
-------------------------- ------------------------------
Name: Dale Vincent Name: Roger Sands
----------------------- ---------------------------
Title: President Title: GM BAS
------------------------ ----------------------------
Date: July 14, 2000
----------------------------
List of Exhibits:
A - Licensor Software
B - 3Com Products
C - Trademarks
D - Specifications
E - Payment and Fees
F - Support Services
G - Press Release
H - End User License Agreement
<PAGE>
EXHIBIT A
LICENSOR SOFTWARE
CacheLink 3.0 Pro
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EXHIBIT B
3COM PRODUCTS
OfficeConnect ISDN LAN modem
OfficeConnect 56K LAN modem
OfficeConnect Dual 56K LAN modem
OfficeConnect IDSL LAN modem
OfficeConnect Remote 812
OfficeConnect Remote 840
Superstack11 RAS 1500
3Com and Licensor agree that this schedule of 3Com Products may be
amended and revised by mutual agreement.
<PAGE>
EXHIBIT C
TRADEMARKS
"CacheLink"
"MangoSoft"
"Mango"
"Pool"
"Pooling"
<PAGE>
EXHIBIT D
SPECIFICATIONS
PRODUCT DESCRIPTION:
CacheLink 3.0 Pro software ("CacheLink") runs on each personal computer ("PC"),
combining individual browser caches on a local area network ("LAN") into a
highly efficient, LAN-wide web- cache. Web pages accessed by one CacheLink user
are instantly available to other CacheLink users.
CacheLink retrieves commonly viewed web pages from other CacheLink users on the
LAN instead of through the Internet - often 5 times faster than a T1 and 40
times faster than a 56K shared-modem.
FEATURES:
EASY TO INSTALL AND USE. CacheLink may be quickly installed by anyone and
requires no additional hardware. Unlike proxy servers or web-cache hardware,
there is no need to manually reconfigure complex browser connection settings.
CacheLink configures popular browsers (IE 4 and 5, Netscape 4, 4.5, 4.6 and 4.7)
automatically.
CacheLink works transparently through firewalls and proxy servers with no impact
on their effectiveness. In fact, if a user is using IE or Netscape, CacheLink
automatically configures itself to work with existing proxy servers in the
network.
SHARES WEB CONTENT. CacheLink can access any web content that another CacheLink
user on the LAN has accessed, as long as that content is "cacheable," has not
"expired," and came from an open (not secure) connection. Whether content is
"cacheable" and how content "expires" is controlled by the creator of the web
content. CacheLink conforms to all HTTP v1.0 and v1.1 standards for observing
content cache-ability and expiration.
SECURE AND PRIVATE. CacheLink combines browser caches securely to maintain the
user's privacy. Content that a user browses is stored only on the user's PC.
CacheLink is an anonymous cache - it respects the user's privacy and does not
provide tools to monitor user activity. Furthermore, CacheLink does not cache
secure connections, such as HTTPS, so it does not compromise personal data sent
over secure connections.
SCALABLE. The more PCs running CacheLink, the larger the user's shared web cache
and the faster the user's Internet performance.
CACHELINK MINIMUM SYSTEM REQUIREMENTS:
To run CacheLink, a computer must satisfy the following requirements:
Windows 95, 98, NT 4 or Windows 2000 operating system PC with Pentium
processor or higher
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32 MB of memory (RAM)
5MB of free disk space plus the space to be used as part of the CacheLink
cache
Microsoft TCP/IP installed and properly configured
Network Interface Card (NIC) installed and properly configured
To run CacheLink, a LAN must satisfy the following requirements:
TCP/IP support - CacheLink can share a LAN with any other networking
software, as long as the LAN supports TCP/IP and CacheLink is using
Microsoft's TCP/IP.
<PAGE>
EXHIBIT E
PAYMENTS
PAYMENTS. 3Com shall pay Licensor payments in respect of the number of
3Com Products shipped as set forth below. Such payments shall be payable to
Licensor by 3Com or its applicable distributor as of the date of shipment in
accordance with customary practices for prompt payment.
------------------------------------------------------------------------------
Price Per 3Com Product Shipped on a
Number of 3Com Products Shipped: Cumulative Annual Basis in U.S. Dollars
------------------------------------------------------------------------------
0 to 149,999 $4.50
------------------------------------------------------------------------------
150,000 to 299,999 3.75
------------------------------------------------------------------------------
300,000 to 449,999 3.00
------------------------------------------------------------------------------
450,000 and above 2.50
------------------------------------------------------------------------------
ADVANCE PAYMENT. In respect of Licensor's grant of license of the
Licensor Software to 3Com provided hereunder, 3Com agrees to pay Licensor an
advance payment of U.S. $100,000, such amount to be credited against the first
22,222 units of 3Com Products shipped and qualifying for payment to Licensor
hereunder without regard to the time period required to ship such number of 3Com
Products.
<PAGE>
EXHIBIT F
SUPPORT SERVICES
DEFINITIONS. As used in this Exhibit F, the following capitalized terms
shall have the following meanings:
"Error" means a defect in a 3Com Product attributable to the Licensor
Software which is reproducible and which causes such 3Com Product not to
function substantially in conformance with the Specifications.
"Level" means a certain class of service provided to 3Com authorized
resellers and End Users as follows:
Level 1. Problem verification and first call support. Technical support
staff responds to technical inquiries regarding 3Com Products, installations and
configurations. Technical support staff provides Problem diagnostics services
for identifying Problems and generic application faults, analysis and where
possible, Problem resolution.
Level 2. Problem determination. Specialist level technical support.
Technical support staff performs Problem isolation and replication, lab
simulations and interoperability testing, provides remote diagnostics services
and implements a resolution for a Problem that is not the result of an Error.
Level 3. Problem resolution. Senior level technical support. Technical
support staff performs on-site troubleshooting, if required, and isolates a
Problem or Error and implements a resolution, including development of a
Workaround, that restores operations. In the case of an Error, the staff is able
to identify the source of the Error, create a reproducible test and document the
details of the Error.
Level 4. Backup engineering and technical support. Technical staff
isolates a Problem or Error and implements a resolution, including but not
limited to implementation of a Software Patch or Software Update.
"Problem" means any actual or perceived failure or function impairment
attributable to the Licensor Software, including but not limited to an Error,
that causes reduced functionality to a 3Com Product.
"Software Patch" means executable software created and made available to
correct an Error or malfunction identified in the Licensor Software.
"Software Update" means a formal software release (i) which provides new
features or functionality to the Licensor Software, (ii) which provides feature
or functionality enhancements, reliability enhancements and other modifications
to the
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Licensor Software or (iii) that is a maintenance release that corrects
deficiencies or bugs affecting performance of the Licensor Software in respect
of the Specifications.
"Workaround" means a feasible change in operating procedures whereby an End
User can avoid any deleterious effects of a Problem.
SUPPORT SERVICES TO BE PROVIDED. Licensor shall provide Level 1 through
Level 4 support services for 3Com Products to authorized resellers and End Users
at no cost to 3Com. Licensor will provide such support from 9 a.m to 5 p.m.,
Monday through Friday excluding major holidays.
PROBLEM RESOLUTION. 3Com shall reasonably attempt to resolve Problems for
the 3Com Products prior to contacting Licensor. Licensor will not contact or
provide support to 3Com's customers with respect to the 3Com Products pursuant
to this Agreement without 3Com's prior approval. If 3Com is unable to resolve
such inquiry, 3Com and Licensor will agree in good faith what action, additional
information or documentation will be required for appropriate resolution of such
inquiry including the provision any Software Patches or Software Updates as
applicable.
<PAGE>
EXHIBIT G
PRESS RELEASE
<PAGE>
EXHIBIT H
END USER LICENSE AGREEMENT