Electronic Software Reseller/Web Site Services Agreement - Beyond.com Corp. and Networks Associates Inc.
AMENDED AND RESTATED ELECTRONIC SOFTWARE RESELLER/WEB SITE SERVICES AGREEMENT
This Amended and Restated Electronic Software Reseller/Web Site Services
Agreement (the "Agreement") is made and entered into effective as of May 17,
1999, by and between Beyond.com Corporation, a Delaware corporation, formerly
known as Software.net Corporation, located at 1195 West Fremont Avenue,
Sunnyvale, California 94087 ("Reseller") and Networks Associates, Inc., a
Delaware corporation, doing business as Network Associates, Inc. located at
3965 Freedom Circle, Santa Clara, California 95054 ("Vendor").
BACKGROUND
(a) Vendor and Reseller are parties to that certain Web Site Services
Agreement dated as of September 21, 1998 and wish to Amend and Restate
such Web Site Services Agreement as set forth herein.
(b) Vendor is the owner of all rights to (or has a license to sell) the
Software and Reseller desires to purchase Software from Vendor for resale
on the Managed Site subject to the terms and conditions of this Agreement.
(c) Vendor and Reseller have entered into a certain Co-Hosting Agreement
relating to the offering of software and computer hardware from Vendor's
United States based public web site (other than the web site maintained by
Vendor at www.mcafeemall.com (or such other name as the site may be given
from time to time, including, without limitation, the "McAfee Store") (the
"Managed Site")).
(d) Vendor desires to enter into this Agreement, whereby Reseller would
purchase Vendor's product from Vendor for the purpose of reselling
Vendor's Products to End-User customers in accordance with the terms and
conditions hereof. To enhance Reseller's marketing opportunities Reseller
shall also operate and manage certain aspects of the Managed Site on behalf
of Vendor and [*] as defined herein.
(e) Vendor and Reseller understand that performance requirements, and
definitions in the Co-Host Agreement dated September 21, 1998, related to
the Web Site Services Agreement dated September 21, 1998, remain and to
the extent applicable shall apply to this Amended and Restated Electronic
Software Reseller/Web Site Services Agreement. Exhibit A to this Agreement
shall supercede Exhibit E of the Co-Host Agreement to the extent of any
inconsistent terms.
NOW THEREFORE, in consideration of the foregoing, and of the mutual covenants
and agreements hereinafter set forth, the parties hereby agree that the Web
Site Services Agreement dated as of September 21, 1998 is amended and restated
in its entirety as follows:
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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1. DEFINITIONS.
Unless otherwise defined herein, the terms used in this Agreement shall have
the following meanings:
(a) CONTENT: means the text, pictures, sound, graphics, video and other data
that appears on the applicable web page or web site.
(b) CUSTOMIZED CONTENT: means the Vendor-specific content that is set up by
Reseller under this Agreement for the Managed Site. Customized Content shall be
subject to the prior approval of Vendor and its continued placement on the
Managed Site thereafter shall be subject to the results of the quarterly status
meetings described in Exhibit "A".
(c) VENDOR CONTENT: means the content specifically provided by Vendor to be
included in the Managed Site.
(d) RESELLER CONTENT: means content specifically provided by Reseller to be
included in the Managed Site. Reseller Content shall be subject to the prior
approval of Vendor and its continued placement on the Managed Site thereafter
shall be subject to the results of the quarterly status meetings described on
Exhibit "A".
(e) RESELLER PROPRIETARY HOST SYSTEM: means Reseller's proprietary engine that
is maintained on Reseller's servers and that permits Clients to review
literature and place orders to obtain Vendor Products via the world wide web.
(f) RESELLER TRADEMARKS: means the trademarks, service marks, trade names and
logos used and owned by Reseller.
(g) CLIENT: means a customer that utilizes the Managed Site in purchasing
Vendor Products from Reseller.
(h) VENDOR TRADEMARKS: means the trademarks, service marks, trade names and
logos used by and owned by Vendor.
(i) SOFTWARE: means retail desktop software products offered by Vendor under
the "McAfee" brand or other Vendor-owned or licensed brand, which Vendor makes
available for sale via the Internet. Software shall include both electronically
delivered software and packaged software delivered directly to the Client.
Software shall not include any subscription based services managed by Vendor
and offered on NAI Internet Sites other than the Managed Site. The term
"Product" shall have the same meaning as the term "Software".
(j) OTHER TERMS: Other capitalized terms used herein shall have the same
meaning as provided in the Co-Hosting Agreement unless the context requires
otherwise.
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2. VENDOR OBLIGATIONS.
(a) Vendor shall establish and maintain the appropriate hypertext links from
its Online Service Page and the Vendor internet sites to the designated URL or
URLs for the Managed Site under the designation, the McAfee Mall, McAfee Store
or such other designation as may be given to the Managed Site. Such links shall
be of reasonable prominence to give sufficient notice to viewers of Vendor's
Online Service Page.
(b) Other than technical support related to Clients' purchases and downloading
of the Vendor Products, Vendor shall provide all other support to Clients,
including without limitation, the support being provided in accordance with its
current technical support policies.
(c) Vendor shall sell to Reseller, Vendor's product licenses for resale
pursuant to the terms of Exhibit A and, Vendor shall cooperate and work with
Reseller in accordance with the terms of the Miscellaneous section of Exhibit
"A" of this Agreement.
(d) U.S. Sales. Vendor shall sell all software from United States based public
web sites exclusively through the Managed Site or the Destination (as defined
in the Co-Hosting Agreement).
(e) Vendor agrees that any Software offered for sale on the Managed Site and
any Foreign Sites (as defined in Subsection (h)) must be fulfilled, at Vendor's
election, through the Managed Site, the Foreign Sites, the Destination or must
link to the Co-Host Site (as defined in the Co-Hosting Agreement). Vendor will
not advertise on the Managed Site or Foreign Site (whether with banners,
buttons or other forms of online advertising) or link directly to web sites
that are involved in the resale of software from such page on the web sites.
(f) Vendor will display on each page of the Managed Site and any Foreign Sites
a statement to the effect that the Managed Site or Foreign Site is operated by
Vendor in a marketing partnership with Reseller. The parties will agree in good
faith on the prominence and exact format of such statement on each such page
with increasing prominence to be given to such statement on the online order
pages of the Managed Site or Foreign Site with the intent that Clients would
reasonably perceive that they are purchasing Vendor's products from Reseller.
(g) Vendor will reasonably promote and operate the Managed Site and any
Foreign Sites.
(h) Right of First Refusal for Foreign Sales
(i) Foreign Sales Notice. For each Foreign Territory, Vendor shall not
sell any Software or hardware from a web site in the Foreign Territory
unless Vendor first shall have provided Reseller with written terms
addressing the (1) language for displayed text, (2) currencies
supported, (3) language for customer support including email and
telephone, (4) product reseller discounts, (5) fulfillment, (6)
payment options, (7) reporting requirements, (8) uptime requirements,
(9) privacy policy, (10) projected sales, (11) the launch date for
each material term not less than 30 days from the date of receipt of
Foreign Sales Notice (the "Foreign Sales
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Notice"). A "Foreign Territory" shall mean one of the territories
set forth on Exhibit E.
(ii) First Refusal Exercise Notice. Within twenty (20) days following
Reseller's receipt of the Foreign Sales Notice (the "Option
Period") Reseller and/or its assigns shall have the exclusive
right to accept the proposed terms of the Foreign Sales Notice
(the "Proposed Terms"). Any acceptance by Reseller shall be made
in writing and include a commercially reasonable and detailed
implementation plan. "Foreign Sites" shall include each web sites
designated by Reseller and/or its assigns pursuant to each
acceptance of Proposed Terms.
(iii) Non-Exercise. If Reseller and/or its assigns do not accept the
Proposed Terms within the Option Period, then Vendor may initiate
sales of the Software from a web site in the Foreign Territory
upon the Proposed Terms within 90 days of the Foreign Sales
Notice. Vendor shall submit to Reseller a new written Foreign
Sales Notice in accordance with the requirements of this Right of
First Refusal prior to entering any material changes in the
Proposed Terms.
(iv) Expiration of Transfer Period. Following such 90-day period, if
Vendor has not initiated sales of the Software in the Foreign
Territory, then no sales of the Software and no change in the
Proposed Terms shall be permitted without a new written Foreign
Sales Notice submitted in accordance with the requirements of
this Right of First Refusal.
3. RESELLER OBLIGATIONS.
(a) Reseller will build, maintain and manage the online order pages of the
Managed Site (the "Order Pages") to process orders for Vendor Products both for
electronic software download ("ESD") and for physical delivery. The structure
of the Order Pages shall be based on Reseller's standard templates, but the
graphical content, including the Customized Content will be subject to the
approval of Vendor. All buttons, links and labels for the Managed Site shall be
labeled McAfee Mall, McAfee Store or other designation approved by Vendor.
(b) Reseller shall be responsible for supporting Clients in the purchase and
fulfillment process from the Managed Site, but will not otherwise provide
product or technical support. Reseller will exercise all commercially
reasonable efforts to distribute the most current version of Vendor's Products
and other products which Vendor makes or desires to make available from the
Managed Site.
(c) Reseller shall purchase from Vendor, Vendor's Product Licenses for resale
pursuant to the terms of Exhibit A and, Reseller shall cooperate and work with
Vendor in accordance with Exhibit "A".
(d) Reseller shall undertake export and licensing restriction management in
accordance with the requirements set forth in the Co-Hosting Agreement and the
Reseller Agreement, which export and licensing restriction requirements are
incorporated herein by reference. Reseller shall
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comply with all applicable laws in connection with the operation of the Managed
Site, including without limitation, laws relating to the use of information
concerning Vendor Clients. Subject to the Reseller's rights set forth in
Section 5(c) of this Agreement, Reseller shall also comply with Vendor's
on-line privacy policies to the extent commercially reasonable upon written
notice of such policies.
(e) Vendor shall be responsible for all credit card fraud activity committed
on the Managed Site. The initial risk procedures for the Managed Site are set
forth on Exhibit "C" attached hereto. The risk procedures shall be a subject in
the quarterly meetings between the parties described in Exhibit "A".
4. LICENSE.
(a) CUSTOMIZED CONTENT. Vendor grants Reseller a non-exclusive, royalty-free
license and right during the term of this Agreement, to use, reproduce,
electronically distribute, publicly display, and publicly perform the Customized
Content delivered to Reseller by Vendor only in connection with the Managed
Site. Vendor shall indemnify and hold harmless Reseller for any liabilities,
losses, damages, costs and expenses (including attorneys' fees and costs) based
on any third party claim that Customized Content infringes another's U.S.
patent, copyright, trademark, service mark, or trade secret or that said
Customized Content is defamatory or violates another's right to publicity or
privacy; provided that Reseller promptly notifies Vendor in writing of the
claim and allows Vendor to control, and fully cooperates with Vendor in, the
defense and all related settlement negotiations. Vendor shall have no liability
for any settlement or compromise made without its consent. Upon notice of an
alleged infringement, or if in the Vendor's opinion such a claim is likely,
Vendor shall have the right, at its option, to obtain the right for Reseller to
continue to exercise the rights granted under this Agreement, substitute other
software with similar operating capabilities, or modify the Software so that it
is no longer infringing. The foregoing indemnification shall not apply to
claims of infringement to the extent they arise by reason of the combination of
the software or documentation with any other product if such claim would have
been avoided but for such combination.
(b) RESELLER LINK. Reseller grants to Vendor a non-exclusive,
non-transferable, revocable, royalty-free license and right during the term of
this Agreement, to use, reproduce, electronically distribute, publicly display,
and publicly perform Reseller's hypertext link, including certain of Reseller's
graphic icon buttons and other proprietary content used in conjunction
therewith as authorized in writing by Reseller, to link Vendor's web site to
the Managed Site, provided that Vendor complies with section 9b, below.
Reseller reserves the right to terminate the foregoing right if in its sole
discretion, Vendor's usage of Reseller's hypertext link, graphic icon buttons
and other proprietary content, harms the business, image and goodwill of
Reseller.
5. PROPRIETARY RIGHTS.
(a) Vendor acknowledges that as between the parties, Reseller owns all right,
title and interest in and to all components of the Order Pages and the Co-Host
Site. Reseller acknowledges that as between the parties, Vendor owns all right,
title and interest in and to the Managed Site and its associated URLs. Vendor
acknowledges that the Reseller Trademarks are trademarks
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owned solely and exclusively by Reseller, and agrees to use the Reseller
Trademarks only in the form and manner and with appropriate legends as
prescribed by Reseller. Vendor agrees not to use any other trademark or service
mark in connection with any of the Reseller Trademarks without prior written
approval of Reseller. All use of Reseller Trademarks shall inure to the benefit
of Reseller. Reseller acknowledges that the Vendor Trademarks are trademarks
owned solely and exclusively by Vendor, and agrees to use the Vendor Trademarks
only in the form and manner and with appropriate legends as prescribed by
Vendor. Reseller agrees not to use any other trademark or service mark in
connection with any of the Vendor Trademarks without prior written approval of
Vendor. All use of Vendor trademarks shall inure to the benefit of Vendor.
(b) Nothing in this Agreement shall give Vendor any right or license to use,
reproduce, display or distribute (electronically or otherwise) any technology
or intellectual property rights in the Order Pages and the Co-Host Site.
(c) Except as required by law, Reseller shall be entitled to use any
information that it collects regarding the visitors to and purchasers from the
Managed Site, including e-mail names, such information shall be considered
co-owned by Vendor and Reseller, with the restriction that Reseller may not
sell, license or disclose such information to any competitor of Vendor. Each
End User will be afforded the opportunity to opt-out of either or both parties'
marketing activities involving contacting such End User for promotional
purposes. The form of such opt-out feature will be mutually determined by the
parties. In the event a customer elects to opt-out of either parties' marketing
activities Reseller may not use customer information in a manner that violates
Vendor's privacy policy as published from time to time upon thirty (30) days
notice to Reseller.
6. TERM AND TERMINATION.
(a) TERM. The term of this Agreement as amended and restated on the date
hereof will be deemed to have commenced on May 17, 1999, and continue in effect
until June 30, 2000, unless earlier terminated as herein provided ("Initial
Term"). This Agreement will automatically be renewed for an additional one (1)
year term ("Renewal Term") unless either party gives the other written notice of
termination at least ninety (90) days prior to the expiration of the Initial
Term or any Renewal Term.
(b) TERMINATION FOR CAUSE. This Agreement may be terminated by a party for
cause immediately by written notice upon the occurrence of any of the following
events:
(i) If the other ceases to do business, or otherwise terminates its business
operations (or in the case of Vendor, sells or otherwise disposes of the
Managed Site or any division of its business which includes the Managed Site);
or
(ii) If the other shall fail to promptly secure or renew any material license
registration, permit, authorization or approval for the conduct of its business
in the manner contemplated by this Agreement or if any such material license,
registration, permit, authorization or approval is revoked or suspended and not
reinstated within 30 days; or
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(iii) If the other breaches any material provision of this Agreement and fails
to fully cure such breach within [*] days in the case of failure to pay) of
written notice describing the breach; or
(iv) By Reseller if the [*]; or
(v) [Deleted]; or
(vi) By Vendor if the [*]; or
(vii) If the other seeks protection under any bankruptcy receivership trust
deed, creditor's arrangement composition or comparable proceeding, or if any
such proceeding is instituted against the other and not dismissed within thirty
(30) days.
(b1) TERMINATION BY RESELLER. Reseller may terminate the Agreement without
cause if the Minimum Revenue Targets are not met in any year of the Term other
than as a result of a breach of this Agreement by Reseller. As used in the
preceding sentence, Minimum Revenue Targets shall mean in the first (1st) year
of the Term, Aggregate Revenues of not less than [*] and (ii) in the second
(2nd) year of the Term, Aggregate Revenue of not less than [*] "Aggregate
Revenue" shall have the same meaning as set forth in the Co-Hosting Agreement.
(c) EFFECT OF TERMINATION. Reseller shall remit all fees due under this
Agreement to Vendor within thirty (30) days of such termination.
(d) EFFECT ON END USERS. Termination of this Agreement by either party will
not affect the rights of any End User under the terms of the End-User License
Agreement and shall not affect terms of any other agreement between the parties
except to the extent specifically provided for in such agreement.
7. PAYMENT.
Vendor shall be compensated in accordance with the terms of Exhibit "A".
8. DISCLAIMER; UPTIME REQUIREMENT.
(a) Vendor acknowledges and agrees that Reseller shall not be responsible for
Order Pages unavailability due to (i) outages caused by the failure of public
network or communications components or (ii) errors in the HTML coding in, or
any other aspect of, the electronic files provided by Vendor. Notwithstanding
the foregoing, the Order Pages, the Co-Host Site and all sales and order entry
operations with respect to products offered from either of same shall be
operational and accessible by Clients at least [*] of the time except for (i)
site maintenance downtime, which is mutually agreed upon in writing and in
advance by Vendor and Reseller at least two days prior to proposed site
maintenance downtime; (ii) the failure of some other portion of the Managed
Site; or (iii) a failure of the Internet generally due to reasons
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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[*]. Compliance with the Uptime Requirement shall be determined with respect to
each one month period during the Term. failure to meet the Reseller Uptime
Requirement shall be grounds for termination of this Agreement without notice or
opportunity to cure.
(b) Reseller acknowledges and agrees that Vendor shall not be responsible for
Managed Site unavailability due to (i) outages caused by failure of public
network or communications components or (ii) errors in the HTML coding in, or
any other aspect of, the electronic files provided by Reseller. Notwithstanding
the foregoing, the Managed Site (other than the Order Pages) shall be
operational and accessible by Clients at least [*] of the time except for (i)
site maintenance downtime, which is mutually agreed upon in writing and in
advance by Vendor and Reseller at least two days prior to proposed site
maintenance downtime; or (ii) a failure of the Internet generally due to
reasons beyond the control of Vendor (the "Vendor Uptime Requirement").
Compliance with the Uptime Requirement shall be determined with respect to each
one (1) month period during the Term. Failure to meet the Vendor Uptime
Requirement shall be grounds for termination of this Agreement without notice
or opportunity to cure.
9. TRADEMARK USE.
(a) Reseller acknowledges that the Vendor Trademarks are trademarks owned
solely and exclusively by Vendor, and agrees to use the Vendor Trademarks only
in the form and manner and with appropriate legends as prescribed by Vendor.
Reseller agrees not to use any other trademark or service mark in connection
with any of the Vendor Trademarks without prior written approval of Vendor. All
use of Vendor Trademarks shall inure to the benefit of Vendor.
(b) Vendor acknowledges that the Reseller Trademarks are trademarks owned
solely and exclusively by Reseller, and agrees to use the Reseller Trademarks
only in the form and manner and with appropriate legends as prescribed by
Reseller. Vendor agrees not to use any other trademark or service mark in
connection with any of the Reseller Trademarks without prior written approval of
Reseller. All use of Reseller Trademarks shall inure to the benefit of Reseller.
(c) Reseller shall indemnify and hold Vendor harmless from and against any and
all liabilities, losses, damages, costs and expenses (including legal fees and
expenses) associated with any claim or action brought against Vendor that may
arise from Reseller's improper or unauthorized replication, packaging,
marketing, distribution, or installation of the Software, including claims based
on representations, warranties, or misrepresentations made by Reseller.
(d) BOTH PARTIES LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES. IN NO EVENT WILL
EITHER PARTY BE LIABLE FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS) SUFFERED BY THE OTHER PARTY, EVEN IF IT HAS PREVIOUSLY
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RESELLER STATES AND VENDOR
ACKNOWLEDGES THAT THE BENEFITS OF THIS AGREEMENT ARE A MATERIAL INDUCEMENT TO
RESELLER TO ENTER INTO [*] AND, IN THE EVENT OF A TERMINATION OF THIS AGREEMENT
BY VENDOR FOR AN ALLEGED MATERIAL RESELLER BREACH WHICH IS HELD NOT TO BE A
MATERIAL BREACH IN FACT,
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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THE COURT SHALL CONSIDER IN ASSESSING DAMAGES HEREUNDER [*] AND ANY AMOUNTS
PAID BY ANY SUCCESSOR THIRD PARTY SITE MANAGER FOR THE RIGHT TO PERFORM SIMILAR
WEB SITE SERVICES FOR VENDOR WITHIN ONE YEAR OF THE TERMINATION.
10. GENERAL PROVISIONS.
(a) ASSIGNMENT. This Agreement may not be assigned by either party (except by
operation of law or in connection with the sale of substantially all of the
assets of such party's business or the acquisition of such party by a third
party, and except by Vendor to McAfee.com Corporation, its majority-owned,
first-tier subsidiary) to any other person, persons, firms, or corporations
without the express written approval of the other party. Any assignee of the
Vendor shall be deemed the "Vendor" for all purposes in this Agreement
including but not limited to Section 2(d).
(b) NOTICES. All notices and demands hereunder shall be in writing and will be
deemed given upon the earlier of actual receipt or two (2) days after being
sent by overnight Federal Express or Express Mail, return receipt requested, to
the appropriate address set forth above, as such contracts and addresses may be
changed by written notice to the other party.
(c) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of California. Each party
hereto expressly consents to the personal jurisdiction of the state and federal
courts located in Santa Clara County, California, and expressly waives any
defense to any action based on inconvenient forum, choice of venue, lack of
personal jurisdiction, sufficiency of service of process or the like.
(d) RELATIONSHIP OF THE PARTIES. Each party is acting as an independent
contractor and not as an agent, partner, or joint venture with the other party
for any purpose. Except as provided in this Agreement, neither party shall have
the right, power, or authority to act or to create any obligation, express or
implied, on behalf of the other.
(e) SURVIVAL OF CERTAIN PROVISIONS. The indemnification and confidentiality
obligations set forth in the Agreement shall survive the termination of the
Agreement by either party for any reason.
(f) HEADINGS. The titles and headings of the various sections and paragraphs
in this Agreement are intended solely for convenience of reference and are not
intended for any other purpose whatsoever, or to explain, modify or place any
construction upon or on any of the provisions of this Agreement.
(g) ALL AMENDMENTS IN WRITING. No provisions in either party's purchase
orders, or in any other business forms employed by either party will supersede
the terms and conditions of this Agreement, and no supplement, modification, or
amendment of this Agreement shall be binding, unless executed in writing by a
duly authorized representative of each party to this Agreement.
(h) ENTIRE AGREEMENT. The parties have read this Agreement and agree to be
bound by its terms, and further agree that this Agreement, the Co-Hosting
Agreement and the Reseller
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Agreement constitute the complete and entire agreement of the parties and
supersedes all previous communications, oral or written, and all other
communications between them relating to the license and to the subject hereof,
including without limitation, that certain Web Site Services Agreement dated as
of September 21, 1998. No representations or statements of any kind made by
either party, which are not expressly stated herein, shall be binding on such
party.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
BEYOND.COM CORPORATION NETWORKS ASSOCIATES, INC.
(Formerly known as Software.net) doing business as Network Associates, Inc.
By: /s/ JAMES R. LUSSIER By: /s/ JEFF PLATON
------------------------------- ---------------------------------------
Name: JAMES R. LUSSIER Name: JEFF PLATON
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Title: VP and GM Direct e.Commerce Title: VP Sales & Bus. Dev.
Solutions Division ------------------------------------
----------------------------
Date: 9/9/99 Date: 9/9/99
----------------------------- -------------------------------------
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EXHIBIT "A"
1. DEFINITIONS.
a) DOCUMENTATION: all computer readable collateral materials normally
provided from time to time by Vendor to End Users for use of the Software
and all subsequent versions thereof provided to Reseller pursuant to this
Agreement.
b) END-USER LICENSE AGREEMENT: the computer readable license agreement
provided by Vendor, as modified from time to time, that governs the use
of the Software by End Users, and which is to be included with each copy
of the Software sold by Reseller hereunder.
c) RESELLER MATERIALS: computer readable materials provided by Reseller for
inclusion in an electronic package containing the Software,
Documentation, and End-User License Agreement, which materials have been
approved in advance in writing, by Vendor.
d) PRODUCT: a copy of the Software, Documentation, End-User License
Agreement and Reseller Materials, if any, packaged in computer readable
form together for electronic delivery in accordance with this Agreement.
e) END USER: person(s) or entity(ies) that acquires a Product for productive
use rather than resale or distribution.
f) VENDOR TRADEMARKS: trademarks owned or licensed by Vendor.
g) TERRITORY: world wide only via the Internet on the Managed Site except
(i) countries to which export or re-export of any Product, or the direct
products of any Product is prohibited by United States law without first
obtaining the permission of the United States Office of Export
Administration or its successor, and (ii) countries that may be hereafter
excluded pursuant to the terms of this Agreement.
h) AUTHORIZED PRODUCT RETURNS: return requests received from End User
customers pursuant to the terms of the End-User License Agreement and
accompanied by executed Letter of Destruction and or a Return Merchandise
Authorization number, relating to Products distributed by Reseller or
other returns if agreed upon by Vendor.
2. LICENSE.
a) RIGHTS GRANTED TO RESELLER, Vendor grants Reseller a non-transferable,
and non-exclusive license and right to;
1. reproduce the Software, Documentation, and the End-User License
Agreement in computer readable form;
2. package the Software, Documentation, Reseller Materials and the
End-User License Agreement in a computer readable manner specified by
Vendor;
3. utilize the Vendor Trademarks in connection with the replication of
the Software, packaging and distribution of the Products, in a manner
specified by Vendor; and
4. Distribute the Products directly to End Users in the Territory subject
to the restrictions set forth in this Agreement.
b) RIGHTS RESERVED TO VENDOR. Reseller acknowledges that the Software and
Documentation are the property of Vendor or its licensors and that
Reseller has no rights in the foregoing except those expressly granted by
this Agreement. Except as expressly set forth herein and in the Web Site
Services Agreement to which this is attached, nothing shall be construed
as restricting Vendor's right to sell, license, modify, publish or
otherwise distribute the Software or Documentation, in whole or in part,
to any other person.
3. REPRODUCTION BY RESELLER.
a) REPRODUCTION AND PACKAGING. Reseller agrees to accurately replicate the
Software and Documentation provided by the Vendor in computer readable
form, and to package these items as specified by Vendor.
b) VENDOR TRADEMARKS AND LEGENDS. Reseller shall include copies of the
Vendor Trademarks, copyright notices and other proprietary rights
legends, on all copies of the Documentation and Software that it packages
in computer readable form, in the manner specified by the Vendor.
4. DISTRIBUTION BY RESELLER.
a) PACKAGING. Reseller will distribute Products to Clients of the Managed
Site the Co-Host Site and/or Destination and only as packaged in
accordance with this Agreement, with all packaging, warranties,
disclaimers and End-User License Agreements intact. Reseller will make
copies of the current End-User License Agreement available to End User
customers in computer readable form. Products distributed electronically
shall be distributed to End Users with a Vendor approved wrapper which
prohibits use of the Product by the End User prior to approval of the
End-User License Agreement and the submission of payment by End User to
Reseller.
b) PRODUCT RETURNS, SUBJECT TO SECTION 10(a). Reseller agrees to honor any
Authorized Product Returns.
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c) COST OF DISTRIBUTION. Costs relating to packing the Product for
shipment to the End User, shipping the Product to the End User, and/or
digitally delivering the Product to the End User shall be borne by
the Reseller.
5. RESELLER OBLIGATIONS.
a) Reseller will conduct its business in a manner that reflects
favorably upon the Products and Vendor. Such marketing, promotion,
sublicensing and distribution shall be performed in accordance with
all applicable laws. Without limitation on the foregoing, Reseller
will comply with all laws relating to the privacy of Internet users.
b) REVERSE ENGINEERING. Reseller agrees not to: (i) disassemble,
de-compile or otherwise reverse engineer the Software or otherwise
attempt to learn the source code, structure, algorithms or ideas
underlying the Software; (ii) take any action contrary to Vendor's
End-User License Agreement except as expressly and unambiguously
allowed under this Agreement.
c) CUSTOMER REGISTRATION. Reseller agrees to provide Vendor with
customer information regarding purchasers of Products, including any
expressed preferences regarding the use and distribution of such
information. The format and frequency of customer registration
information shall be mutually agreed to by the parties.
d) EXPORT COMPLIANCE. Reseller agrees that it will not, directly or
indirectly, export or transmit the Product and technical data (or any
part thereof) or any process or service that is the direct product of
the software and documentation, to any group S or Z country specified
in Supplement No. 1 of Section 770 of the Export Administration
Regulations or to any other country to which such export or
transmission is restricted by such regulation or statute, without the
prior written consent, if required, of the Office of Export
Administration of the U.S. Department of Commerce, or such other
governmental entity as may have jurisdiction over such export or
transmission. Reseller acknowledges that some Products contain
encryption. Some encryption Products may be exportable while others
are export restricted by the U.S. Department of Commerce's Bureau of
Export Administration (BXA). Reseller further acknowledges that for
this reason, the export of such items may subject Reseller or its
executives to fines and/or other severe penalties. Unless all
required permits and/or approvals have been obtained, Reseller shall
not export or re-export the restricted Software outside of the United
States, whether directly or indirectly, and will not cause, approve
or otherwise facilitate others such as agents, subsequent purchasers,
licensees or any other third parties in doing so. The parties agree
to cooperate with each other with respect to any application for any
required licenses and approvals and Vendor agrees to provide Reseller
current information regarding export requirements with respect to the
Products. However, Reseller acknowledges it is their ultimate
responsibility to comply with all exports laws and that Vendor has no
further responsibility after the initial sale to Reseller within the
United States.
6. VENDOR'S DELIVERY OBLIGATIONS.
a) INITIAL DELIVERABLES. Vendor shall promptly deliver the current
version of the Software and Documentation to Reseller (or Reseller's
designated agent). Vendor will provide Reseller (to Reseller's
designated agent) with (i) copies of the Software on CD-ROM or master
diskettes, (ii) Product specification information in HTML format, or
in another computer readable form that can be reproduced by Reseller,
(iii) Product Documentation in a computer readable form that can be
reproduced by Reseller.
b) NEW VERSIONS. Vendor shall provide Reseller with computer readable
copies of all new releases, updates, or revisions of the Software and
Documentation within a reasonable time after each such release is
made generally available by Vendor. Vendor will notify Reseller of
its plans for each new release, update or revision of the Software or
Documentation within a reasonable period of time prior to such
release.
c) NEW PRODUCTS. Reseller understands and acknowledges that Vendor
continues to review software products available on the market and to
conduct its own research and development activities with respect to
the internal development of such new products. Vendor makes no
representations or warranties with respect to continued availability
of any of the Software covered by this Agreement, or the nature or
availability of any future modifications, updates, or enhancements
thereto. Similarly, Vendor makes no representations with respect to
any new product offerings it may make in the future or the
compatibility of such products with the Software covered by this
Agreement.
7. VENDOR'S SUPPORT OBLIGATIONS.
a) SUPPORT FOR END USERS. Vendor will provide support to End Users of
the Software to be distributed hereunder, in accordance with Vendor's
then-current published software support policy, if any. Reseller
assumes no responsibility for Product technical support.
b) SUPPORT FOR RESELLER. Vendor will provide Reseller, without charge,
such technical information, current maintenance documentation, and
telephone assistance as is necessary to enable Reseller to
effectively reproduce, package and distribute the Software. Reseller
is not entitled to source code for the Software.
8. VENDOR'S WARRANTIES.
a) AUTHORITY. Vendor represents that it has the right and authority to
enter into this Agreement and to grant Reseller the rights to the
Software and Documentation granted in this Agreement.
b) NON-INFRINGEMENT. Vendor warrants to Reseller that the Vendor has all
rights, title, and interest in the Products or has
2
<PAGE> 14
obtained the right to grant the licenses set forth in this
Agreement. Vendor represents that to Vendor's knowledge the Product
does not infringe upon or misappropriate the proprietary rights of
any third party arising under the laws of the United States of
America.
c) END USER WARRANTIES. Vendor will provide a warranty for the End
Users of the Software as set forth in the End-User License
Agreement. Reseller is not authorized to make any other warranties
on Vendor's behalf.
d) DISCLAIMER. OTHER THAN EXPRESSLY SET FORTH HEREIN, VENDOR DISCLAIMS
ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO THE PRODUCTS,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
9. RESELLER WARRANTIES.
a) AUTHORITY. Reseller represents that it has the right and authority
to enter into this Agreement and to perform all of its obligations
hereunder.
b) NON-INFRINGEMENT. Reseller warrants to Vendor that the Vendor has
all rights, title, and interest in any wrapping technology bundled
with the Products and that the same does not infringe upon or
misappropriate the proprietary rights of any third party arising
under the laws of the United States of America.
c) REPLICATION. Reseller agrees that it will accurately replicate the
Software and Documentation, and warrants that all Software
distributed by the Reseller will not contain any viruses, worms,
date bombs, or other code that is specifically designed to cause
the Software to cease operating, or to damage, interrupt, or
interfere with any End User's Software or data.
10. PAYMENTS.
a) AMOUNT. Reseller shall purchase from Vendor and Vendor shall sell
to Reseller Product licenses for resale to End Users, in accordance
with the terms and conditions hereof, on an as-needed basis.
Reseller will purchase the Products pursuant to a purchase order in
a form reasonably acceptable to Vendor. Reseller will pay Vendor a
Per Copy License Fee equal to [*] of the price set forth in Price
List Schedule attached hereto as Exhibit B, for each copy of a
Product delivered to an End User by Reseller, provided, however,
that no fee shall be due for Authorized Product Returns. Vendor may
change, amend, remove or modify the Products on the Price List
and/or the price set forth for any Product in its sole discretion,
upon thirty (30) days prior written notice to Reseller. However, in
the event the parties agree to adjust the prices on the Price List
upon less than 30 days notice to Reseller, Vendor shall credit
Reseller on the purchase order immediately preceding the price
adjustment. Reseller shall collect all moneys due for sales
conducted on the Managed Site and shall solely bear the risk of
collection, except as otherwise set forth in the Web Site Services
Agreement. In addition to the Per Copy License Fee payable pursuant
to Section 10(a) above, Reseller shall [*] from the Managed Site.
Gross Sales shall mean total moneys received by Reseller from
Product sales on the Managed Site less End User Product returns,
shipping charges paid by End User (except to the extent that such
charges exceed the actual costs of shipping [*] which excess shall
be deemed part of Gross Revenues), and sales tax.
b) PAYMENT AND REPORTS. Within [*] days after the end of each month,
Reseller shall provide Vendor with a written report specifying the
number of copies of Products that Reseller has shipped during the
immediately prior month and the calculation of the [*] pursuant to
Section 10(a) above together with payment therefor. The Per Copy
License Fee shall be due net thirty (30) days from invoice by
Vendor.
c) TAXES. The Per Copy License Fee shall be exclusive of any tax,
withholding tax, levy or similar government charge that may be
assessed. Such taxes, withholding taxes, levies, and governmental
charges include taxes based on sales, use, excise, import or export
values, value-added, income revenue, net worth, or may be the
result of delivery, possession or use of the Software ("Taxes").
Reseller agrees to pay all such Taxes that become due based on
Reseller reselling the Products. Should any such Taxes be or become
due, Reseller agrees to pay such Taxes and indemnify Vendor for a
claim against Vendor by any taxing authority for Taxes arising in
connection with this Agreement other than Taxes on Vendor's income.
Reseller shall make no deduction from any amounts owed to Vendor
for any Taxes. Reseller agrees to provide Vendor with appropriate
information and/or documentation satisfactory to the applicable
taxing authorities to substantiate any claim of exemption from any
Taxes. If Reseller claims any exemption from Taxes, Reseller shall
provide Vendor with a valid certificate evidencing such exemption.
Reseller will pay, or require its End User customers to pay, all
federal, state and local taxes designated, levied, or based upon
the resale of Products by Reseller. Reseller will collect and remit
to the appropriate authorities all federal, state and local taxes
designated, levied, or based upon the resale of Products by
Reseller as required by applicable law, and shall indemnify Vendor
against all Taxes that arise with respect to the resale of the
Software to End Users.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 15
d) CLIENT INFORMATION. Reseller will provide to Vendor within ten (10)
days after the end of each month, a report for the immediately prior
month showing (i) the name and address of each End User that
purchased the Product from Reseller, and (ii) the name and quantity
of the Product purchased by the End User. The format of this
information shall be mutually agreed to by the parties.
e) BOOK AND RECORDS. Reseller agrees to maintain adequate books and
records relating to the distribution of Products to End User
Customers. Such books and records shall be available at their place
of keeping for inspection by Vendor or its representative, for the
purpose of determining whether the correct fees have been paid to
Vendor in accordance with the terms of this Agreement, and whether
Reseller has otherwise complied with the terms of this Agreement.
Vendor shall have the right to conduct such an audit upon ten (10)
days advance notice twice each year. In the event that such an audit
discloses an underpayment of more than five percent (5%), then
Reseller shall pay the costs of such audit.
11. CONFIDENTIALITY.
Each party agrees that all binary code, inventions, algorithms,
know-how and ideas it obtains from the other and all other business,
technical and financial information it obtains from the other are the
confidential property of the disclosing party ("Confidential
Information"), if conspicuously labeled as "proprietary" or
"confidential" or some similar designation or, if disclosed orally or
visually, is confirmed in writing labeled as "proprietary" or
"confidential" or some similar designation within thirty (30) days of
such oral or visual disclosure. All binary code (including, but not
limited to the Software), binary documentation and underlying
inventions, algorithms, know-how and ideas are hereby identified as
Vendor's Confidential Information. Except as expressly and
unambiguously allowed herein, the receiving party will hold in
confidence and not use or disclose any Confidential Information and
shall similarly bind its employees and contractors in writing. The
receiving party shall not be obligated under this Section 11 with
respect to information the receiving party can document; (1) is or
has become readily publicly available with restriction through no
fault of the receiving party or its employees or agents; or (2) is
received without restriction from a third party lawfully in
possession of such information and lawfully empowered to disclose
such information; or (3) was rightfully in the possession of the
receiving party without restriction prior to its disclosure by the
disclosing party; or (4) is independently developed by the receiving
party by employees without access to the other party's similar
Confidential Information; or (5) is required by law or order of a
court, administrative agency or other governmental body to be
disclosed by the receiving party. The parties obligations with
respect to Confidential Information (other than with respect to any
source code as to which the obligations shall continue for twenty
(20) years) shall continue for the shorter of three (3) years from
the date of termination of this Agreement or until one of the above
enumerated conditions becomes applicable. Each party acknowledges
that its breach of this Section 11 would cause irreparable injury to
the other for which monetary damages are not an adequate remedy.
Accordingly, a party will be entitled to injunctions and other
equitable remedies in the event of such breach by the other.
12. VENDORS TRADEMARKS.
USE. Reseller acknowledges that as between Vendor and Reseller the
Vendor Trademarks are the sole and exclusive property of Vendor or
its licensors. Reseller agrees to use the Vendor Trademarks only
in the form and manner and with appropriate legends as prescribed by
Vendor. Reseller agrees not to use any other trademark or service
mark in connection with any of the Vendor Trademarks without prior
written approval of Vendor. All use of Vendor Trademarks shall inure
to the benefit of Vendor. Reseller shall not remove, alter, cover or
obfuscate any copyright notice or other proprietary rights notice
placed in or on the Software or Documentation by Vendor.
13. INDEMNIFICATION.
a) BY VENDOR. Vendor will defend, indemnify and hold Reseller harmless
from and against any and all liabilities, losses, damages, costs and
expenses (including legal fees and expenses) associated with any
claim or action brought against Reseller for actual or alleged
infringement of any US patent, US copyright, US trademark, US service
mark, trade secret, or other US proprietary rights based upon the
duplication, sale, license, or use of the Software or Documentation
by Reseller in accordance with this Agreement, provided that Reseller
promptly notifies Vendor in writing of the claim and allows Vendor to
control, and fully cooperates with Vendor in, the defense and all
related settlement negotiations. Vendor shall have no liability for
any settlement or compromise made without its consent. Upon notice of
an alleged infringement, or if in the Vendor's opinion such a claim
is likely, Vendor shall have the right, at its option, to obtain the
right for Reseller to continue to exercise the rights granted under
this Agreement, substitute other software with similar operating
capabilities, or modify the Software so that it is no longer
infringing. In the event that none of the above options are
reasonably available, in Vendor's sole opinion, Vendor may terminate
this Agreement.
b) BY RESELLER. Reseller shall indemnify and hold Vendor harmless from
and against any and all liabilities, losses, damages, costs and
expenses (including legal fees and expenses) associated with any
claim or action brought against Vendor that may arise from Reseller's
improper or unauthorized replication, packaging, marketing,
distribution, or installation of the Software, including claims based
on representations, warranties, or misrepresentations made by
Reseller, or any other improper or unauthorized act or failure to act
on the party of Reseller.
<PAGE> 16
14. MISCELLANEOUS
(a) Reseller will provide Vendor with daily reporting on sales numbers via
email. Reseller will make a confidential online reporting tool available
to Vendor for Vendor's own internal use only.
(b) Both Vendor and Reseller will use all commercially reasonable efforts to
maximize product sales through the relationship. The parties shall meet
quarterly within the second two weeks of the first month of each quarter to
(i) determine Managed Site's financial performance against performance
goals; (ii) discuss Vendor's implementation of Beyond.com technologies;
(iii) discuss Vendor purchasing of desktop software from Beyond.com and
(iv) discounts on pricing to Reseller for ESD Products, and (v) discuss
on-going business development opportunities and Managed Site Product sale
growth strategies. The parties shall consult in good faith concerning
financial performance goals for the Managed Site, the location on the
Vendor public sites of links to the Managed Site, risk levels, the Content
on the Managed Site and all other matters pertaining to the operation of
the Managed Site.
(c) Reseller and Vendor will develop mutually desirable programs and offers
targeted to customers visiting the Managed Site.
<PAGE> 17
EXHIBIT "B"
PRICE LIST
<PAGE> 18
EXHIBIT "C"
INITIAL RISK LEVEL
The initial risk level, as defined by Cybersource Corporation in
connection with its IVS fraud service as in existence on the date hereof, shall
be a score of [*], subject to adjustment by mutual agreement of the parties in
writing.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 19
EXHIBIT "D"
FOREIGN TERRITORIES
Foreign Territories will include:
1. European territories include:
(i) United Kingdom,
(ii) Germany,
(iii) France,
(iv) Sweden,
(v) Austria,
(vi) Italy,
(vii) Denmark,
(viii) Switzerland,
(ix) Belgium,
(x) Netherlands,
(xi) Spain,
(xii) Finland,
(xiii) Greece, and
(xiv) Portugal
2. Other Countries and Territories include:
(i) Australia,
(ii) New Zealand,
(iii) Singapore,
(iv) North Korea,
(v) South Korea,
(vi) China,
(vii) Japan,
(viii) Hong Kong,
(ix) Taiwan,
(x) Brazil,
(xi) Latin America,
(xii) Canada, and
(xiii) Africa