S I M P L Y I N T E R A C T I V E.
MASTER SOFTWARE LICENSE, BUNDLING
AND DISTRIBUTION AGREEMENT
CONTRACT # 21997
THIS MASTER SOFTWARE LICENSE, BUNDLING AND DISTPJBUTION AGREEMENT is entered
into as of March 14,1997 ("Effective Date") between Simply Interactive, Inc.
("SII"), a California corporation having its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("DEVELOPER") and FOUNTAIN TECHNOLOGIES,
INC, ("FOUNTAIN"), having its principal place of business at 0 Xxxxxxxxx Xxxxx,
Xxxxxxxx, XX 0887) C'REPSELLER").
RECITALS
RESELLER is in the business of manufacture, sale, licensing and distributing of
computer software products, including the sale and distribution of third party
products.
RESELLER desires the right, on its own behalf and on behalf of subsidiaries, to
reproduce and/or distribute proprietary software products owned by DEVELOPER
DEVELOPER desires to grant RESELLER and its subsidiaries the non-exclusive right
to reproduce and/or distribute its proprietary software products, and for the
exhibits to this Agreement to define the terms and conditions specific to each
respective product of DEVELOPER.
NOW THEREFORE, SII and FOUNTAIN hereby agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 "Agreement"means this Software License, Bundling and Distribution
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Agreement, including all exhibits and attachments hereto.
1.2 "SII" means, collectively, Simply Interactive and all Simply
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Interactive Subsidiaries.
1.3 "Hardware" means any RESELLER labeled hardware product.
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1.4 "SII's Subcontractor" means an independent subcontractor(s) who
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provides software reproduction, bundling and/or distribution services to S11,
1.5 "Bundle" means the combination of all hardware and software
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products which are to be assembled and/or packaged for sale by RESELLER as a
unit under, this Agreement which
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unit includes a Program Copy (or coupon evidencing right to receive a copy) of
each Program and any related Documentation.
1.6 "Confidential Information" means: (a) any information relating to
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SII's product plans, designs, costs, prices and names, finances, marketing
plans, business opportunities, personnel, research, development or know-how; (b)
any information that is designated by the disclosing party as confidential in
writing or, if disclosed orally, reduced in writing and designated as
confidential within thirty (30) days; and (c) the terms and conditions of this
Agreement; provided, however that "Confidential Information" shall not include
information that: (i) was generally available to the public at the time of
receipt from the disclosing party, or thereafter becomes generally available to
the public other than through a breach of this Agreement by the recipient party;
(ii) is known to the recipient party on a non-confidential basis prior to its
receipt from the disclosing party; (iii) is disclosed with the prior written
consent of the disclosing party; (iv) becomes known to the recipient party from
a source other than the disclosing party without breach of this Agreement by the
recipient party; (v) was required to be disclosed pursuant to law; or (vi) was
developed independently by personnel of the recipient party who had no
substantive knowledge of the disclosing party's Confidential Information at the
time of such independent development.
1.7 "Customer" means any person or entity who purchases a Bundle from
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Reseller or Reseller's Subcontractor.
1.8 "Developer" means the individual or entity identified in the
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opening paragraph of this Agreement, who is either the owner of the Program or
who has the right to enter into this Agreement on behalf of the owner by written
agreement with the owner.
1.9 "End User" means any person or entity who purchases a Bundle for
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his or her own use or, if an entity, for its internal use, rather than for
purpose of resale.
1. 10 "Distribution Area" means those countries or geographic regions of
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the world in which Reseller is authorized to distribute the Bundles as defined
in Exhibit 1.
1.11 "Documentation" means the documents or other information
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pertaining to each Program, which items are to be distributed to Customers in
combination with said Program (whether in the form of printed materials or
software residing on the same media as the Program), as specified in the
corresponding Exhibit 1.
1 12 "Documentation Master" means Reseller is responsible for
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reproduction of printed copies of any of the Documentation pursuant to Exhibit
2, the master copy of such Documentation (in electronic or other form),
including any applicable artwork and/or film, will be delivered to Reseller or
Reseller's Subcontractor for use in such reproduction process.
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1. 13 "Program Master" means the golden master copy of each Program,
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to be delivered to Reseller by S11 in the storage media form described in the
corresponding Exhibit 2 for Resellers use in manufacture of the Program Copies.
1. 14 "Program" means the most current commercially available version
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of each of SIPS software programs which Reseller is authorized to copy, bundle
and/or distribute under this Agreement, or any subsequent Amendment hereto.
1. 15 "Program Copy" means a copy of a Program residing on the storage
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media form (e.g.-, hard disk, CD Rom, floppy diskette) in which it is to be
bundled and distributed to the Customer, as specified in the corresponding
Exhibit 1.
1. 16 "Reseller" means a party authorized by SII to purchase the Bundle
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for resale to end users and/or to other authorized Resellers.
1.17 "Subsidiary" means a corporation, partnership, joint venture,
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limited liability company or other legal entity at least fifty-one percent (51%)
of whose outstanding shares, securities or other ownership rights representing
the right to vote for the election of directors or other managing authority are
owned or controlled, directly or indirectly, by another company.
2. RIGHT TO COPY AND DISTRIBUTE
2.1 Rights Granted. SII hereby grants to Reseller a nonexclusive
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license as to each Program, to: (a) make or have made Program Copies from the
Program Master, in the media form specified in the corresponding Exhibit 1; (b)
make or have made copies of the Documentation from the Documentation Master, (if
applicable) pursuant to Exhibit 2; (c) assemble the Program Copies and
corresponding Documentation in Bundles for distribution; (d) distribute the
Program Copies to Customers in the Distribution Area as part of a Bundle; and
(e) to, directly or indirectly, do all acts reasonably necessary for the
marketing, distribution, and sale of the Xxxxxx. X00 authorizes Reseller to
grant: (a) Reseller's Subcontractor any of the rights granted Reseller by this
Section 2.1 ; and (b) Reseller's Subcontractor any of the same rights to market,
distribute and sell the Program(s) as part of a Bundle, including the right to
distribute and sell the Program(s) as part of a Bundle, including the right to
distribute to other Resellers.
2.2 Developer's Ownership. SII retains all rights, title, and interest
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to: (i) each Program; (ii) SII's service marks, trademarks and/or trade names;
and (iii) all copyrights, patent rights or trade secret rights associated with
each of the Programs and the Documentation.
2.3 Copyright and Trademark Rights. In connection with Resellers
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marketing and distribution of the Bundle, SII grants to Reseller, and to
Resellers Subcontractors, the non-exclusive, non transferable right during the
term of Resellers Rights of Distribution under this Agreement to use (a) all
copyrighted materials contained in the Programs(s) (including but not limited to
screen shots from the Program(s)), the Documentation, and any packaging or other
materials provided by SII and (b) all trademarks associated with the Program(s).
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2.4 Limitations on Use. Reseller shall not use or duplicate any Program
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for any purpose other than as specified in this Agreement. Reseller shall not
disassemble, decompile, reverse engineer, modify or otherwise change any part
of a Program.
3. DEVELOPER'S RESPONSIBILITY
3.1 Transfer of Master Copies, SII shall provide to Reseller or
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Reseller's Subcontractor, at no cost, the Program Master and the Documentation
Master, both according to the Schedule set for-the in the corresponding Exhibit
2.
3.2 Program Compatibility. SII shall verify the compatibility of the
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Program with the Resellers system software revision defined in the corresponding
Exhibit 2. Upon request, SII's test methodology and a brief summary of the test
results shall be provided to Reseller. SII shall provide to Reseller, at no
cost, a reasonable number of additional copies of the Program for testing.
Reseller shall have the right to test each Program for compatibility with
Resellers Hardware, Resellers Software and/or any third party product to be
bundled with the Program.
3.3 SII's Points of Contact. As set forth in Exhibit 2, SII has
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identified its primary contact, together with a list of its representatives
having responsibility for resolution of increasingly critical issues related to
this Agreement. In the event of any change in names of the" points of contact,
SII will immediately notify Reseller of the replacement representative.
4. FEES AND PAYMENTS
4.1 Royalty Fees. Reseller or Reseller's Subcontractor will pay to SII
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the Royalty Fee in the amount set forth in the corresponding Exhibit I ("the
Royalty Fee") for each Program Copy. Payment will be made by Reseller based on
units sold into the channel. Resellers Royalty obligation will accrue on the
date of sale into the channel. However, Royalty Payments to SII for any quarter
will not be due until thirty (30) days after the end of that quarter, based on
the applicable Quarterly Report pursuant to Section 4.2.
4.2 Royalty Reporting. As to each Program covered by this Agreement,
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Reseller shall maintain complete and accurate records of the following: (i) the
number of Bundles containing the Program Copies which are either, manufactured
and shipped to distribution or sold into the Channel, (ii) the number of
Program Copies which are reconfigured pursuant to Section 4-4(a); and (iii) the
number of Customer Returns pursuant to Section 4.4(b) At the end of each
calendar quarter, Reseller shall submit a report ("Monthly Report") to SII
listing the above information, by each of these three (3) categories, for the
preceding month.
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4.3 Royalty Payments. Reseller shall included with each Royalty
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Payment, a quarterly report summarizing the three (3) previous calendar months
in accordance with Section 4.1, 4.2 and 4.4.
4.4 Expiration/Termination. Upon expiration or termination of this
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Agreement, Reseller will have the right to submit reports on, and obtain royalty
credits for, up to one hundred (100) units of Reconfigurations and Returns
occurring within sixty (60) days after said expiration or termination.
4.5 Right to Audit. SII shall have the right, at its expense and on
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thirty (30) days written notice, to have an independent certified public
accountant audit the records of Reseller to verify the information provided in
the Monthly and Quarterly Reports. Records subject to audit under this section
shall extend no more than one (1) year prior to the request date. If, as a
result of such audit, an underpayment is verified, Reseller will rectify payment
of inconsistencies or mistakes within thirty (30) days, and, if greater than
five percent (5%) underpayment for any reporting period is found, also reimburse
SII for the cost of the audit. SII may exercise its right to audit no more than
once per year unless an underpayment of over five percent (5%) has been
discovered in the prior audit. In such cases, the SII shall have the right to
audit once every three months until the results of the last audit show less than
a five percent (5%) underpayment. Audit scheduling shall be by mutual agreement
between SU and the Reseller, and all audits must be completed within five
working days. Upon completion of the audit, the independent certified public
accountant shall provide a copy of the report to SII and the Reseller. SII
acknowledges and agrees that all such records of Reseller shall be considered
Confidential Information and shall be subject to the restrictions set forth in
Section 7 of this Agreement. The CPA shall execute and observe the terms of this
Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1 Ownership. SII represents and warrants: (i) that it is the owner
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of, or has obtained a license from the owner of, all right, title and interest,
including copyright, if any, in and to all preexisting images, icons,
characters, graphics, sounds, music, photographs, recordings, video, film,
animation, cartoons, illustrations, accompanying text, captions, scripts, or
related materials in each of the Program(s); (ii) that it has obtained or will
obtain prior to delivery under this Agreement, all licenses and releases
required to enable Reseller to exercise the license granted in this Agreement,
including without limitation, the release of each person or organization whose
name, voice, likeness, portrayal, impersonation or performance is included in
any Program ' and (iii) that it has not previously granted and will not grant
any rights in any Program to any third party inconsistent with the rights
granted to Reseller herein.
5.2 Program Warranty SII warrants that each of the Programs will
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perform substantially in accordance with the Documentation for one year after
delivery of the Program Master.
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5.3 Program Warranty to Customer. SII shall provide the sole warranty
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to the Customer pertaining to the performance of each Program, which warranty
shall provide, at a minimum, that the Program is capable of substantially
performing the functions described in the end user Documentation.
5.4 Replacement Copies of the Program. In the event that Reseller or
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an authorized service provider elects to provide Customer with a replacement for
a defective or damaged Program Copy from a Bundle, no additional fee will be due
SII for the replacement copy of the related Documentation.
6. INDEMNIFICATION
6.1 Proprietary Rights Indemnity. SII agrees to defend, indemnify and
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hold harmless Reseller and Reseller's affiliates, directors, officers,
employees, agents and contractors from any and all losses, damages, liabilities,
costs, expenses (including reasonable attorney's fees), judgments or settlement
amounts arising out of or in connection with any claim that the' marketing, sale
or use of a Program infringes any patent, copyright, trademark, trade secret,
privacy right, right of publicity or other proprietary right of a third party.
6.2 General Indemnity. SII agrees to defend, indemnify and hold
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harmless Reseller, and Reseller's affiliates, directors, officers, employees,
agents and contractors, from and against any and all losses, damages,
liabilities, costs, expenses (including costs and reasonable fees of attorneys
and other professionals), judgments or settlement amounts arising out of or in
connection with a claim that any of the Program(s) caused injury or damage to
persons or property, or a claim that any Program failed to perform as
represented or was defective.
7. CONFIDENTIALITY
7.1 Disclosure; Standard of Care. The parties acknowledge that, in the
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course of performance of their obligations under this Agreement, each party may
disclose Confidential Information to the other. Each party will protect the
other's Confidential Information from unauthorized dissemination and use with
the same degree of care that each such party uses to protect and safeguard its
own like information, but not less than the degree of care that would be
exercised by a prudent person given the sensitive and strategic value of such
Confidential Information, Confidential Information shall be disclosed only to
the employees of the recipient who have a "need to know" and who have executed
an internal nondisclosure agreement at least as restrictive as the terms of this
Agreement. Reseller shall not disclose any Confidential Information to any third
party without first obtaining SII's written consent to such disclosures.
7.2 No Warranties, Representations or Liability. In furnishing any
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Confidential Information hereunder, SII makes no warranty, guarantee or
representation, either express or implied (a) as to the adequacy, accuracy,
sufficiency or freedom from defect of such Confidential
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Information. or (b) that the use or reproduction of any Confidential Information
received hereunder shall be free from any patent, trade secret or copyright
infringement.
8. TERM AND TERMINATION
8.1 Term. This Agreement shall commence on the Effective Date, shall
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continue in full force and effect for a period of one (1) year, and shall be
automatically renewed thereafter for successive one (1) year periods unless
notice of intent not to renew is received by either party at least ninety (90)
days prior to the commencement of any subsequent term.
8.2 Termination Without Cause. SII shall have the right to terminate
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this Agreement at will, with or without cause, upon thirty (30) days written
notice.
8.3 Termination For Cause. Either party will have the right to terminate
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this Agreement immediately upon written notice at any time if:
(a) The other party is in material breach of any term, condition
covenant of this Agreement other than those contained in Section 7 and fails to
cure that breach within thirty ('30) days after written notice of such breach;
(b) The other party is in material breach of any term, condition
or covenant of this Agreement contained in Section 7; or
(c) The other party; (i) becomes insolvent; (ii) fails to pay its
debts or perform its obligations in the ordinary course or business as they
mature; or (iii) makes an assignment for the benefit of creditors.
8.4 Archiving/Destruction of Program Master Copies. Upon expiration or
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termination of this Agreement, Reseller or if applicable, Reseller's
Subcontractor, shall archive or destroy each Program Master and, if applicable,
each Documentation Master received from SII.
9. GENERAL TERMS
9.1 Nonexclusivity. Nothing in this Agreement shall prevent either
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party from entering into a similar agreement with any other party. This
Agreement shall not be construed to restrict either party from engaging in any
activities with respect to the other party's competitors' products or services.
9.2 Relationship of the Parties. In all matters relating to this
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Agreement, SII is an independent contractor. Neither party will represent that
it has any authority to assume or create any obligations, express or implied, on
behalf of the other party. Nothing stated in this Agreement shall be construed
as constituting Reseller and SII as partners or joint ventures, or as creating
the relationship of employer and employee, principal and agent, master and
servant, or licenser and licensee between Reseller and SII.
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9.3 No Assignment. This Agreement is not assignable by either party
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without the prior written consent of the other party. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties, their
successors, and permitted assigns.
9.4 Notice. All notices sent to SII shall be sent to the following
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addresses:
Simply Interactive, Inc. Fountain Technologies, Inc.
000 Xxxxxxxx Xxxxxx 0 Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
ATTN: XXX XXXXXX ATTN: XXXXX XXXXXXXXX
CONTROLLER
and copies to the following addresses:
Simply Interactive, Inc.
000 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
ATTN: XXXXX XXXXX
9.5 Governing Law/Venue. This Agreement shall be governed by and
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construed in accordance with the Laws of the State of California, except that
body of law known as Conflicts of Law. All actions or proceedings arising
directly or indirectly between the parties, other than those for injunctive
relief, shall be litigated in courts located within the County of Santa Clara,
California. Reseller consents to the jurisdiction thereof and agrees not to
disturb such choice of forum. If Reseller is not a resident of California,
Reseller waives the personal service of any and all process upon it, and agrees
that all such service or process may be made by certified or registered mail,
return receipt requested, addressed to Reseller.
9.6 Severability. In the event that any of the provisions of this
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Agreement shall be held by a court or other tribunal of competent jurisdiction
to be invalid or unenforceable, the remaining provision of this Agreement shall
remain in full force and effe2t and shall be construed so as to best effectuate
the intention of the parties in executing it.
9.7 No Waiver. Failure by either party to enforce any provision of
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this Agreement shall not be deemed a waiver of the right to thereafter enforce
that or any other provision of this Agreement.
9.8 Survival.Any obligations which either expressly or by their nature
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are to continue after the termination or expiration of this Agreement shall
survive and remain in effect
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9.9 Modification. Any modifications of this Agreement must be in
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writing and signed by both parties hereto.
9.10 Force Majeure. Neither party shall be liable for any failure or
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delay in the performance of an obligation hereunder on account of strikes,
riots, fires, explosions, acts of God, war, governmental action, or any other
cause which is beyond the reasonable control of such party.
9.11 Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof, and any and all
written or oral Agreements heretofore existing between the parties are expressly
canceled. SII acknowledges that it is not entering this Agreement on the basis
of any representations not expressly contained herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
SIMPLY INTERACTIVE FOUNTAIN TECHNOLOGIES, INC.
BY: Xxxxxx X. Xxxxxxxx Xx. BY: Xxxxxx X Xxxxxx
NAME: Xxxxxx X. Xxxxxxxx Xx. NAME: Xxxxxx X Xxxxxx
TITLE: EVD /S/ Xxxxxx X Xxxxxx
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DATE: 3/14/97 DATE: 4/17/97
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EXHIBIT I
PRODUCT DESCRIPTION, PRODUCT PRICING AND DISTRIBUTION
Program NameNersion: Price Per Copy
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Internet the City - V 2 $ 0.45
1 CD for PC/Win95
Documentation:
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Registration Card
End User License
User Manual (in electronic form)
Language Versions:
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English
Customers:
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All FOUNTAIN Customers
Distribution Area:
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World Wide
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EXHIBIT 2
DEVELOPER DELIVERABLES
Program Name/Version Deliverables Delivery Schedule
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Internet the City - V 2 Compatibility* Testing Complete Upon Signature
of Contract by both
Program Copies for Testing Parties.
Program Master (I GM)
Documentation Master
CD Silk Screens
Hard Copy Documentation
Samples
Developer Contacts
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Primary Contact: Xxx Xxxxxx (000) 000-0000
Escalation Contact: Xxxxx Xxxxx (000) 000-0000
Reseller Contacts
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Primary Contact: Fountain Technologies
Xxxxxxx Xxxxx (000) 000-0000
Fountain Technologies
Xxxxxx Xxxxxxxx (908) 563-4800 x 1311
00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
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Dear Xxxx:
We understand the current situation concerning Fountain Technologies current
contract with Simply Interactive, Inc. and are conveying to you in writing what
has transpired.
Simply Interactive, Inc. (the Company) was acquired as of (August 6, 1997)
pursuant to default provisions entered into between Simply Interactive, Inc. and
SSN properties (a California Corporation) all assets, product, contracts, and
intellectual property rights then became the assets of SSN properties.
During the course of this transaction SSN entered into an agreement to then
sell, assign, grant and convey all property / contract rights to NETTATI Online
Communities, Inc. (a Delaware Corporation.) UNDER THE TERMS SET FORTH IN THE
ASSET PURCHASE AGREEMENT NETTAXI WILL ALSO ASSUME ALL OBLIGATIONS PRIOR AND
FUTURE PERTAINING TO ALL EXISTING CONTRACTUAL AGREEMENTS(OUTLINED IN THE MASTER
SOFTWARE LICENSE AND DISTRIBUTION CONTRACT.)
THE CONVEYANCE AND TRANSFER OF THESE ASSETS INCLUDES "INTERNET THE CITY" CD-ROM
SOFTWARE, AND ANY EXCISING CONTRACTS RELATING TO THE SOFTWARE THAT WERE
CURRENTLY ESTABLISHED AND HELD BY SIMPLY INTERACTIVE, INC. "re: FOUNTAIN
TECHNOLOGIES CONTRACT" AND ALL PRIOR OR FUTURE OBLIGATIONS OUTLINED IN THE
MASTER SOFTWARE LICENSE AND DISTRIBUTION CONTRACT.
As of November 1, SSN properties has transferred and conveyed all property,
software, and contract rights to NETTAXI Online Communities, Inc. From this day
forward NETTAXI at its sole discretion may amend, transfer, or establish new
contracts/ relationships with any and all vendors relating to Simply
Interactive, Inc. or the "Internet the City" CD-ROM software. All monies due,
with respect to software bundling agreements are to be made directly to NETTAXI
Online Communities, Inc.
Sincerely
/S/ Xxxxxx X. Xxxxxxxx Xx. Chairman
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Xxxxxx X. Xxxxxxxx Xx. Chairman / CEO Company Address:
0000 X. Xxxxxx Xxx.
Xxxxxxxx, XX. 00000
Customer Service Contact: Xxxxx Xxxxx 000 0000000
000 0000000
Should you require any further information or documentation, please advise the
undersigned and it will be forthcoming.
