EXHIBIT 10.18
BE, INCORPORATED.
BEDEPOT ON-LINE ORDER AND DISTRIBUTION AGREEMENT
This BeDepot On-Line Order and Distribution Agreement (the
"Agreement") is made as of May 17, 1999 between Be, Incorporated, a
California corporation, having a place of business at ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Be, Inc."), and Strata , a Utah
corporation, having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Developer").
In consideration of the mutual promises contained in this Agreement,
the parties agree as follows:
1. DEFINITIONS. THE FOLLOWING TERMS SHALL HAVE A DEFINED MEANING AS USED
IN THIS AGREEMENT:
1 "END USER" means a licensee of computer products who acquires
such products for personal or ordinary business usage and not for further
distribution or resale.
2 "END USER AGREEMENT" means Developer's applicable on-line
electronic end user license agreement accompanying each Product, including
the PackageBuilder license provided by Be, Inc. as incorporated by the
Developer into the Developer's electronic agreement, in the format provided
in Section 4.2 of this Agreement.
3 "PRICE LIST" means Developer's suggested retail price list for
the Products as set forth in EXHIBIT A ("Price List"), as amended from time
to time upon notice by Developer to Be, Inc.
4 "PRODUCTS" means physical merchandise; including books and
clothing, and Developer's software products (in object code form only)
("Software Products"); including commercial, free, trial, demonstration, and
update versions; together with supporting End User documentation
("Documentation"), all as identified in the Price List.
5 "BEDEPOT WEBSITE" means the Internet site located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇ or any alternative or successor site designated by Be,
Inc. from time to time.
6 "LAUNCH/RELEASE/UPDATE" means the initial public availability of
a product through the BeDepot Internet web site. This includes all versions
of Products including launches of completely new Products, releases of new
versions of existing Products, and minor updates or fixes to existing
Products.
2. RIGHTS OF BE, INC.
1 LICENSE GRANT TO BE, INC. During the term of this Agreement and
subject to the terms and conditions set forth therein, Developer hereby
grants Be, Inc. a nonexclusive, worldwide, royalty-free, irrevocable,
fully-paid up license to:
Reproduce, and have reproduced, publicly display, publicly
perform and, solely as a means to aid in the
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electronic delivery of the Products, modify the Products identified
in the Price List.
Distribute, or have distributed, electronically or otherwise,
the Products, either on a stand-alone basis or bundled with other
Products or products of other Be, Inc. developers, to End Users who
order the Products from the BeDepot Website.
Use, in accordance with Developer's reasonable policies
regarding advertising and trademark usage as established from time
to time and provided to Be, Inc., Developer's trademarks, trade
names, and logos (collectively, the "Trademarks") in Be, Inc.'s
distribution, advertising and promotion of the Products on the
BeDepot Website. Be, Inc. agrees that it shall not use any other
trademark, word, letter, design or ▇▇▇▇ (i) in combination with the
Trademarks in a manner that would create a combination ▇▇▇▇ or (ii)
that is confusingly similar to the Trademarks; provided, however,
that Be, Inc. may use the Trademarks with other marks or names if
such other marks or names are sufficiently separated from the
Trademarks and sufficiently distinctive to avoid the consumer
impression that such other marks or their owners are associated with
Developer. Be, Inc. agrees not to register any Developer trademarks.
Be, Inc. agrees to cooperate with Developer in facilitating
Developer's monitoring and control of the nature and quality of such
products and services, and to supply Developer with specimens of use
of the Trademarks upon request.
Use the Products for demonstration and testing purposes
subject to the terms and conditions of the applicable End User
Agreement.
2 Restrictions
Ownership of Proprietary Rights. Be, Inc. acknowledges that
any Software Product and its sequence, structure and organization is
proprietary to Developer and that Developer retains exclusive
ownership of the Trademarks and any Software Product. Be, Inc. will
take all reasonable measures to protect Developer's proprietary
rights in any Software Products. Except as provided herein, Be,
Inc. is not
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granted any rights to patents, copyrights, trade secrets, trade
names, trademarks (whether registered or unregistered), or any other
rights, franchises or licenses with respect to any Products.
Restrictions on Copying and Reverse Engineering. Be, Inc.
agrees not to reproduce, copy, modify, translate, disassemble,
reverse engineer or otherwise attempt, or permit others to attempt,
to discover the source code of the Software Products, in whole or in
part. However, Developer acknowledges and agrees that while Be,
Inc. will use commercially reasonable efforts to preserve the
proprietary rights of the Software Products, Be, Inc. cannot make
any warranties regarding the protection of the Software Products
during and after the electronic download thereof from the BeDepot
Website. Be, Inc. will have no liability for any unauthorized use
of the Software Products by any End User.
3 PRODUCT DELIVERY. Developer agrees that Be, Inc. shall receive
each new commercial Product (i.e. the initial release of a Product as well as
major or minor updates and trial or demonstration versions of any Product) no
later than 48 hours after such Product is made generally available by
Developer.
3. DELIVERY OF PRODUCTS AND OTHER MATERIALS.
1 PRODUCTS FOR DISTRIBUTION VIA DOWNLOAD FROM BEDEPOT. Within ten
(10) days after the Effective Date of this agreement, Developer shall deliver
to Be, Inc. the current version(s) of the Product(s) on the Price List
(Exhibit A) that are to be distributed via electronic download from Be,
Inc.'s web site, BeDepot, and the applicable End User Agreement for such
Products. With regard to the initial delivery, deliveries of new Products and
upgrades, and delivery of the End User Agreement, Developer will provide Be,
Inc. with a copy of the Product through electronic mail or via a file
transfer protocol agreed to by Be. Inc. prior to delivery of each Product.
2 PHYSICAL DISTRIBUTION THROUGH ALOM TECHNOLOGIES. Developer is
responsible for establishing and maintaining an inventory relationship
(including payment of all associated fees) with ALOM Technologies ("ALOM").
Within ten (10) days after the Effective Date of this Agreement, Developer
agrees to deliver to ALOM an initial delivery of all Products that are to be
ordered by End Users via BeDepot but that are to be physically distributed by
ALOM. Developer will at all times use its best efforts, consistent with
prudent business practice, to maintain a representative inventory of Products
and upgrades in reasonably sufficient quantities to provide adequate and
timely delivery to End Users. Developer agrees that title of the Product, but
not the risk of loss, shall pass to Be, Inc. upon commencement of order
fulfillment by ALOM Technologies. Developer also agrees that Be, Inc.
reserves the right to return title of Product to Developer in case of damage
during shipment, return by End User, or at it's sole discretion.
3 OTHER MATERIALS. Developer will provide Be, Inc. with the
materials necessary to create a web page on the BeDepot web site as specified
in Section 6 of this Agreement ("Joint Marketing"), as well as any
information Be, Inc. will need to conform to California laws regarding
disclosure of information in relation to the sale of Developer's Product(s).
Developer will provide these materials on CD-ROM or through electronic mail
or via a file transfer protocol agreed to by Be. Inc. with
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reasonably adequate lead times to allow Be, Inc. to format and post such
materials on the BeDepot web site prior to the date Developer's Products are
to be made available for purchase. With regard to the initial delivery of all
new Products and upgrades for any method of distribution, Developer will
provide Be, Inc. with (i) a copy of the Product on CD-ROM or through
electronic mail or via a file transfer protocol agreed to by Be. Inc. prior
to delivery of each Product, (ii) Product specification information in HTML
format, or in another mutually agreeable computer readable form that can be
reproduced by Be, Inc., and (iii) Additional electronic copy of the End-user
license agreement separate from the Product in text (.txt) format, or in
another mutually agreeable computer readable form that can be reproduced by
Be, Inc.
4. SALE TERMS AND PAYMENT.
1 ORDERS AND PAYMENT BY END-USERS. Be, Inc. shall accept orders
for Products from End Users through the BeDepot Website. Be, Inc. also
reserves the right at its sole discretion to accept orders for Products from
End Users through telephone, facsimile, postal mail, or electronic mail. In
the case of physical delivery, Be, Inc. reserves the right to stop taking
orders for a product if the inventory for that product is depleted; Be, Inc.
has no obligation to take back orders. Be, Inc. reserves the right to charge
additional fees to customers for services involved in the sale of the
product, such as shipping, tax, miscellaneous processing fees, etc.
2 END USER AGREEMENTS. Developer will include in the Product's
start-up routine a mechanism, such as a click-through procedure, whereby the
End User must again affirmatively assent to the End User Agreement. The terms
and conditions of such End User Agreement shall in no way conflict with the
terms as set forth in this Agreement. In addition, Developer will include in
its End User Agreement a provision substantially similar to the following
paragraph, authorizing the use of the End User's copy of Software Valet to
obtain upgrades, patches or any other form of software update automatically
using the End User's computer and connection to the Internet.
"The Software is designed for use with the Be Incorporated
Software Valet product which automatically provides
application and registration information to and obtains
upgrades, patches and updates for the Software from the
BeDepot world wide web site using your computer and connection
to the Internet. In light of such design, you hereby
acknowledge and authorize the aforementioned use when
installing and using the Software."
Be, Inc. shall have no responsibility for preparing any End User
Agreements on Developer's behalf.
3 PRICE AND PAYMENT. Developer agrees that the Products will be
offered to End Users at prices set by Be, Inc. in its sole discretion. In
consideration for the grant of the license to distribute the Products
hereunder, Be, Inc. shall pay Developer the price listed on the Price List
for each copy of the Product sold to End Users through the BeDepot Website.
Developer, at its option, may occasionally provide Products to Be, Inc. at
prices that are lower than the prices set forth on the Price List for limited
times in connection with Developer promotions and bundles. If Be, Inc. agrees
to participate in such promotions, for the duration of such promotions or
bundles, Be, Inc. agrees to offer Developer's Product(s) to End Users at
prices that reflect the promotional discounts Be has received. If Developer
and Be, Inc. agree to change the price listed on the Price List for any
reason, a Price List Amendment form must be submitted in writing and signed
by both Developer and Be, Inc.
Developer agrees to offer its Product(s) to Be, Inc. at a price that
is at least as low as the lowest price Developer charges other resellers.
Developer agrees that it will not sell any Product to End Users at a price
that is lower than the price then charged for the same Product on the BeDepot
Website.
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4 PRODUCT AVAILABILITY. New products shall be deemed "Products"
when Developer adds them, and Be agrees to have them added, to the Price
List. Developer has the right to discontinue the distribution or availability
of any Product upon sixty (60) days prior written notice to Be, Inc.
5 TAXES AND DUTIES. Be, Inc. shall be responsible for any federal
or local sales, use, excise, or similar tax other than those based on
Developer's net income (collectively the "Taxes") and any penalties or
interest associated with any of the Taxes, imposed by any governmental
authority with respect to any payment received or made by Be, Inc. under this
Agreement or any Product to be delivered by Be, Inc. to End Users under this
Agreement. Notwithstanding the foregoing, BeDepot is not responsible for any
customs fees or Value Added Taxes. Developer will provide Be, Inc. with all
reasonably requested assistance in order for Be, Inc. to comply with its Tax
obligations hereunder; provided, however, that upon Developer's request, Be,
Inc. agrees to sign an appropriate confidentiality agreement preserving the
proprietary nature of any such information.
6 PAYMENT TERMS. Be, Inc. shall send payment to Developer within
thirty (30) days after the end of each month for all Product sales for which
Be, Inc. has received payment in such month, less the amount returned to End
Users based on Product refunds allowable under this Section 4 of the
Agreement in that month or any previous month. Be, Inc. will send payment via
the U.S. Postal Service. Any fees incurred from the use of any mutually
agreed upon alternative delivery method will be charged to Developer.
7 REFUND POLICY FOR PRODUCTS DELIVERED ELECTRONICALLY. Be, Inc.
will provide End Users with a thirty (30) day money-back guarantee policy for
each Product designated by Developer. End Users shall be entitled to receive
a refund of the Product purchase price within thirty (30) days after
downloading the Product notwithstanding that the Product is not functionally
defective or otherwise fails to qualify for warranty service under the
applicable End User Agreement. Developer agrees that Be, Inc. shall receive
credit for any Product returns through the adjustment of the monthly Be, Inc.
payment to Developer for the period during which the Product returns occur.
Be, Inc. shall have no obligation to refund to Developer any of the
transaction costs it collects from the sale of Products which are
subsequently returned by End Users either in connection with the thirty (30)
day money-back guarantee or a provision of the Developer's End User Agreement.
8 REFUND POLICY FOR PRODUCTS DELIVERED PHYSICALLY. Be, Inc. will
provide the same thirty (30) day money-back guarantee for Products delivered
physically as is offered in Section 4.7 of this Agreement. Developer agrees
that Be, Inc. shall be credited for any Product returns through adjustment of
the monthly Be, Inc. payment to Developer for the period during which the
Product returns occur. Be, Inc. reserves the right to dispose of or return to
Developer, at Developer's option, returned Product(s), regardless of
condition. Be, Inc. reserves the right, but is not obligated, to charge
Developer for costs related to returns of their products, whether such
returns are in connection with the thirty (30) day money-back guarantee or a
provision of the Developer's End User Agreement. Be, Inc. shall have no
obligation to refund to Developer any of the transaction costs it collects
from the sale of Products which are subsequently returned by End Users either
in connection with the thirty (30) day money-back guarantee or any provision
of the Developer's End User Agreement.
5. BE, INC. OBLIGATIONS.
1 END USER REGISTRATION. End Users will have the option to
register their use of a Product with Be, Inc. via a designated registration
service (i.e. SoftwareValet or any substitute service designated by Be, Inc.)
("Registration Service") and information related solely to the End User's
purchase of the Products that is received by Be, Inc. from such registration
will be forwarded to Developer, if such End User has authorized Be, Inc.'s
disclosure of such information to Developer. End Users that elect to register
will be required to provide, at a minimum, their name and e-mail address and
at their option, address, company name and facsimile number.
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2 END USER INFORMATION. Be, Inc. and, if such End User so agrees,
Developer, each have rights to the information gathered through the
designated registration service. Developer does not have rights to, nor will
it receive, information provided by the End User for sale transaction
administration, or information in connection with any purchase other than
that of the Products. Be, Inc. does not guarantee the accuracy of the
information collected during registration and forwarded to Developer.
3 RECORDS AND REPORTS. Be, Inc. shall provide Developer a monthly
report of Product distributions that include the amounts paid to Developer
and the prices charged by Be, Inc. Such report shall be provided with the
monthly payment from Be, Inc. to Developer. Be, Inc. agrees to maintain
complete, clear and accurate records of Product distributions. Not more than
once in any twelve (12) month period, Be, Inc. shall permit an independent
auditor designated by Developer and reasonably approved by Be, Inc. to
inspect records pertaining to the Products and any other materials provided
to Be, Inc. by Developer to ensure compliance by Be, Inc. with its
obligations to Developer. Any such inspection and audit shall be conducted
during regular business hours and in such a manner as not to interfere unduly
with normal business activities of Be, Inc.
4 PRODUCT MAINTENANCE AND SUPPORT. Be, Inc. will provide End Users
with the relevant support contact information from EXHIBIT B ("Contact
Information") in order that End Users may obtain maintenance and support
directly from Developers. Be, Inc. shall have no obligation to provide any
maintenance or support to any End User except in the case of minor updates
and bug fixes which may be delivered to End Users by Internet download. This
Agreement must be in effect at the time an End User requests any such update
or bug fix. Any additional Be, Inc. services shall also be subject to an
additional fee to be agreed upon between Be, Inc. and Developer.
5 PRODUCT LAUNCHES/RELEASES/UPGRADES. Developer is allowed a total
of three (3) free Launches, Releases, or Upgrades in any three (3) month
period for any Product Developer has on the Price List. Developer agrees to
pay Be, Inc. two hundred and fifty dollars ($250) for each additional Launch,
Release or Upgrade of a Product on the Price List.
6 WEBSITE AVAILABILITY. Be, Inc. intends to make Products
available on the BeDepot Website seven (7) days a week, twenty-four (24)
hours a day, except for scheduled maintenance and required repairs, and
except for any loss or interruption of service due to causes beyond the
control of Be, Inc. or which is not reasonably foreseeable by Be, Inc.,
including but not limited to, interruption or failure of telecommunication or
transmission links. However, occasional website downtime should be
anticipated and Be, Inc. does not warrant that the BeDepot Website will be
functioning or available at all times.
7 ORDER SUPPORT. Be, Inc. will provide technical support to End
Users and prospective End Users during the downloading and installation
process Monday through Friday, 9:00 a.m. to 5:00 p.m., Pacific Time. Be, Inc.
shall have the right to allow an End User to download a product more than
once if Be, Inc. determines that the first download was not completed
successfully. Be, Inc. will provide End Users with the contact information
for the Complaint Assistance Unit of the Division of Consumer Services of the
Department of Consumer Affairs of the State of California in the event they
have any questions or concerns regarding the services provided by the BeDepot
Website.
6. JOINT MARKETING. For each Product distributed by Be, Inc. hereunder, Be,
Inc. will provide a web page on the BeDepot Website with a product
description, a screenshot from the Product, a hyperlink to Developer's
website and contact information for the Developer. These items shall be
provided by Developer to Be, Inc. in the format designated in Section 3 of
this Agreement ("Delivery of Products and Other Materials to Be, Inc.").
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Developer agrees to identify Be, Inc. and the BeDepot Website as an
authorized distributor of the Products in all press releases related to the
Products to the extent that Developer identifies its other distributors in
press releases. Developer agrees to include a hyperlink from the Developer's
web site to the BeDepot Website. Furthermore, Be, Inc. may identify Developer
and its Products, including use of Developer's trademarks, in all its press
releases promoting the BeDepot Website and Be, Inc.'s business.
Be, Inc. reserves the right to remove or modify any images or text
it deems obscene, libelous, inappropriate or otherwise unsuitable for
commercial use and distribution.
7. TERM. The term of this Agreement shall commence as of the date of this
Agreement and continue for one (1) year from the Effective Date. Thereafter,
this Agreement shall renew automatically for successive one (1) year periods
unless a party provides written notice to the other of nonrenewal at least
sixty (60) days prior to the end of the then current term.
8. WARRANTIES.
1 PRODUCT. Developer warrants the Products to End Users only
pursuant to the terms and conditions of the End User Agreement or warranty
card and no warranty is extended to Be, Inc. except as provided in this
Agreement. The currently applicable End User warranty terms are set forth in
the End User Agreement and are subject to change from time to time in
Developer's discretion. Developer agrees to provide Be, Inc. with written
notice of any change in the End User Agreement and a copy of the new
agreement in the format specified in Section 3 in order that Be, Inc. may
display the new End User Agreement to End Users on the BeDepot Website. Be,
Inc. will display the new End User Agreement, and its terms will become
effective against users, thirty (30) days after Be, Inc. receives the new
Agreement in the specified format.
2 PACKAGEBUILDER LICENSE: Developer represents and warrants that
(i) each Product has been developed with Be, Inc.'s PackageBuilder product
("PackageBuilder") pursuant to Be, Inc.'s electronic license agreement (the
"PackageBuilder License") and (ii) Developer has read and agrees to the terms
and conditions of the PackageBuilder License.
3 CONTENT. Developer warrants that the Product(s) and marketing
materials it submits to Be, Inc.: (a) shall not infringe any third party's
copyright, patent, trademark, trade secret or other proprietary rights or
rights of publicity or privacy; (b) shall not violate any law, statute,
ordinance or regulation (including without limitation the laws and
regulations governing export control, unfair competition, anti-discrimination
or false advertising); (c) shall not be defamatory, trade libelous,
unlawfully threatening or unlawfully harassing; (d) shall not be obscene,
pornographic or indecent or contain child pornography; and (e) shall not
contain any viruses, trojan horses, worms, time bombs, cancelbots or other
computer programming routines that are intended to damage, detrimentally
interfere with, surreptitiously intercept or expropriate any system, data or
personal information.
4 NO OTHER OBLIGATIONS. Be, Inc. will have no other warranty or
maintenance obligations other than as expressly set forth in this Agreement
unless it has entered into a written agreement therefor with Developer.
5 LIMITATIONS AND DISCLAIMER OF WARRANTIES AND CONDITIONS. EXCEPT
FOR THE EXPRESS WARRANTIES AND CONDITIONS SET FORTH ABOVE, NEITHER PARTY
MAKES ANY OTHER WARRANTIES OR CONDITIONS RELATING TO THE PRODUCTS OR SERVICES
PROVIDED HEREUNDER, EXPRESS OR IMPLIED AND EXPRESSLY EXCLUDES ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. NO
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PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY, CONDITION OR REPRESENTATION
CONCERNING THE PERFORMANCE OF THE PRODUCT OTHER THAN AS PROVIDED IN THIS
SECTION 8 ("Warranty") AND IN THE END USER AGREEMENT. BE, INC. SHALL MAKE NO
OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, ON BEHALF OF DEVELOPER.
9. INDEMNITY.
1 DEVELOPER INDEMNITY. Developer shall defend and indemnify Be,
Inc. against any claim, suit or proceeding (including reasonable attorneys'
fees) arising from product liability claims or alleging that a Product or any
marketing materials infringe a patent, copyright, trademark or trade secret.
The foregoing obligation is subject to Be, Inc. (i) giving Developer prompt
written notice of any such claim; (ii) allowing Developer to control the
defense and settlement of such claim; (iii) not entering into any settlement
or compromise of such claim without Developer's prior written consent; and
(iv) providing all assistance reasonably requested by Developer in the
defense or settlement of such claim, at Developer's expense. Upon notice of
an alleged infringement or if in Developer's opinion such a claim is likely,
Developer shall have the right, at its option, to obtain for Be, Inc. the
continuing right to distribute the Product, substitute other non-infringing
computer software with similar operating capabilities or modify the Product
so that it is no longer infringing. In the event that none of the above
options are reasonably available in Developer's opinion, Be, Inc.'s sole and
exclusive remedy shall be to terminate this Agreement.
2 BE, INC. INDEMNITY. Be, Inc. shall be responsible for any
claims, warranties or representations made by Be, Inc. or Be, Inc.'s
employees or agents which differ from the warranty provided by Developer in
its End User Agreement. The foregoing obligation is subject to Developer (i)
giving Be, Inc. prompt written notice of any such claim; (ii) allowing Be,
Inc. to control the defense and settlement of such claim; (iii) not entering
into any settlement or compromise of such claim without Be, Inc.'s prior
written consent; and (iv) providing all assistance reasonably requested by
Be, Inc. in the defense or settlement of such claim. The foregoing sets forth
Developer's sole and exclusive remedy for any such claim.
10. TERMINATION.
1 WITH CAUSE. Either party may terminate this Agreement upon
thirty (30) days written notice of a material breach of this Agreement by the
other party if such breach is not cured within such thirty (30) day period.
2 FOR CONVENIENCE. Either party may terminate this Agreement for
convenience upon sixty (60) days written notice to the other party.
3 RIGHTS UPON TERMINATION. After notice of termination but prior
to the effective termination date, Be, Inc. shall be entitled to accept
orders for Products from End Users and fulfill such orders notwithstanding
that the fulfillment of and payment for such orders may extend beyond the
effective termination date. Each party shall be entitled to all payments
provided for under this Agreement for such orders. Be, Inc. shall pay all
amounts due to Developer within ninety (90) days after the effective
termination date.
4 SURVIVAL. The following provisions survive expiration or
termination of this Agreement: 2.2 ("Restrictions"), 4 ("Terms"), 8
("Warranty "), 9 ("Indemnity"), 10.3 ("Rights upon Termination"), 11
("Consequential Damages Waiver"), 12 ("Limitation of Liability") and 13
("Miscellaneous").
11. CONSEQUENTIAL DAMAGES WAIVER. NEITHER PARTY WILL BE LIABLE FOR ANY
LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY EXEMPLARY, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS)
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REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) AND STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF A PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS
AGREEMENT, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER UNDER THIS AGREEMENT
SHALL BE LIMITED TO THE AMOUNT EQUAL TO THE TOTAL PAYMENTS MADE BY BE, INC.
TO DEVELOPER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE A CLAIM FIRST
ARISES. BE, INC. SHALL HAVE NO LIABILITY FOR ANY PERFORMANCE OR FAILURE OF
THE BEDEPOT WEBSITE TO PERFORM OR FUNCTION AT ANY GIVEN TIME.
13. MISCELLANEOUS.
1 NOTICES. Any notices permitted or required under this Agreement
shall be in writing, and shall be delivered in person or by certified or
registered mail, return receipt requested, and shall be deemed given upon
personal delivery or five (5) days after deposit in the mail. In the event a
Developer has any concerns about the services offered by the BeDepot Website
which are not addressed by Be, Inc., Developer may contact the Complaint
Assistance Unit of the Division of Consumer Services of the Department of
Consumer Affairs of the State of California.
2 ASSIGNMENT. This Agreement may not be assigned by either party
without the prior written approval of the other party, which approval will
not be unreasonably withheld. A change in the persons or entities who control
fifty percent (50%) or more of the equity securities or voting interest of a
party through a reorganization, merger, consolidation or reincorporation or a
sale of all or substantially all of the assets of a party shall not be
considered an assignment for which prior written approval is required.
3 WAIVER. The waiver by either party of a breach of any provisions
contained herein shall be in writing and shall in no way be construed as a
waiver of any succeeding breach of such provision or the waiver of the
provision itself.
4 SEVERABILITY. In the event that any provision of this Agreement
is determined to be unenforceable or invalid under any applicable law or be
so held by applicable court decision, such unenforceability or invalidity
shall not render this Agreement unenforceable or invalid as a whole, and, in
such event, such provision shall be changed and interpreted so as to best
accomplish the objectives of such provision within the limits of applicable
law or applicable court decisions.
5 CONTROLLING LAW. This Agreement shall be governed in all
respects by the laws of the State of California and the United States of
America as such laws are applied to agreements entered into and to be
performed entirely within California between California residents. The United
Nations Convention on the International Sale of Goods is hereby expressly
excluded from application to this Agreement. All disputes arising under this
Agreement may be brought in Superior Court of the State of California in
Santa ▇▇▇▇▇ County or the Federal District Court of San ▇▇▇▇ and the parties
hereby submit to the non-exclusive jurisdiction of such courts.
6 NO AGENCY. Nothing contained herein shall be construed as
creating any agency, partnership, or other form of joint enterprise between
the parties.
7 EXPORT. Developer acknowledges that the laws and regulations of
the United States may restrict the export and re-export of certain
commodities and technical data of United
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States origin. Developer represents and warrants that none of the Products
are subject to any United States or foreign restrictions on export or
re-export and Be, Inc.'s distribution of the Products as contemplated by this
Agreement does not require any United States or foreign licenses or permits.
To the extent that any such permits or licenses are required, Developer
agrees to give prompt advance notice thereof to Be, Inc. and obtain such
permits and licenses at Developer's sole cost and expense. Be, Inc. agrees to
provide all reasonably requested assistance to Developer, at Developer's sole
cost and expense, to obtain such permits and licenses.
8 COUNTERPARTS. This Agreement may be signed in two counterparts
which together shall form a single agreement as if both parties had executed
the same document.
9 ENTIRE AGREEMENT. This Agreement (including all attached
Exhibits) completely and exclusively states the Agreement of the parties
regarding its subject matter. It supersedes, and its terms govern, all prior
or contemporaneous proposals, agreements or other communications between the
parties, oral or written, regarding such subject matter. This Agreement shall
not be modified except by a subsequently dated written amendment signed on
behalf of Developer and Be, Inc. by their duly authorized representatives.
10 WARRANTY. Each party warrants that it has full power and
authority to enter into and perform this Agreement, and the person signing
this Agreement on each party's behalf has been duly authorized and empowered
to enter into this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the date first
written above.
BE, INCORPORATED DEVELOPER
Signed: /s/ J.R. ▇▇▇▇▇▇ Signed: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ----------------------------
Name: J.R. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Sales and Marketing Title: Vice President
199
EXHIBIT A
Price List
Product Name Type Delivery SRP BeDepot Cost
----------------------------- ------------------ ----------------- --------------- -----------------------
NOTES:
Product Name - The defining name of the product. (I.E. Software products
should have name and version numbers, clothing should have name, color,
style and size)
Type - Should be one of the following three: 1) Software 2) Book 3)
Merchandise
Delivery - Should be one of the following two: 1) Electronic (I.E. Internet
download of software only) 2) Physical (I.E. Ship through the mail)
SRP - The suggested retail price for the particular version of the Product
determined by the Developer. The suggested retail price for the electronic
delivery version (I.E. Internet download) of a software Product is typically
10% to 20% less than the box version.
BeDepot Cost - This is the amount that Be, Inc. will pay Developer for each
copy of Product distributed.
200
EXHIBIT B
Contact Information
Developer Company Name: Strata
--------------------------------------
Developer Mailing Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------
Developer Company Phone: 435-628-5218
--------------------------------------
Developer Company Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------
Marketing Contact Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Marketing Contact Phone: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇
--------------------------------------
Marketing Contact E-Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
--------------------------------------
Technical Contact Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Technical Contact Phone: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇
--------------------------------------
Technical Contact E-Mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
--------------------------------------
Website URL: ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
--------------------------------------
Customer Support E-mail (required): ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
--------------------------------------
435 ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------
Toll-Free Customer Support Phone:
--------------------------------------
Customer Support Fax: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------
BE, INC. CONTACT INFORMATION
Be, Incorporated
▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ph: (650) 462-4100
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BeDepot Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
Ph: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇@▇▇.▇▇▇
201
