EXHIBIT 10.23
DISTRIBUTOR AGREEMENT
This Distributor Agreement (the "Agreement") is made as of this 11th day of
March, 1999 (the "Effective Date"), by and between Xxxxxx.xxx Inc., a Delaware
corporation, with its principal place of business at 0000 00xx Xxxxxx, Xxxxx
000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 ("Xxxxxx.xxx") and Dymo-CoStar Corporation,
a Delaware corporation, with its principal place of business at 000 Xxxx Xxxxxx
Xxx., Xxxxxxxxx, XX 00000-0000 (the "Distributor").
RECITALS
WHEREAS, Xxxxxx.xxx develops and publishes software which enables end-users
to purchase postage electronically through Xxxxxx.xxx's network system; and
WHEREAS, pursuant to the terms and conditions of this Agreement Xxxxxx.xxx
desires to appoint Distributor as an independent contractor to distribute such
software and Distributor desires to provide such distribution services.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
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As used in this Agreement, the following terms shall have the meanings set
forth in this Article 1:
"Agreement" has the meaning given to that term in the preamble to this
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Agreement.
"Xxxxxx.xxx" has the meaning given to that term in the preamble to this
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Agreement.
"Business Day" means any weekday, Monday through Friday, excluding national
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holidays.
"Confidential Information" has the meaning given to that term in Section
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8.4 of this Agreement.
"Customers" means end-user licensees of Software.
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"Distributor" has the meaning given to that term in the preamble of this
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Agreement.
"Disputes" has the meaning given to that term in Section 17.4(i).
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"Documentation" means the user manuals and other documentation provided by
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Xxxxxx.xxx for use with Software. Unless expressly excluded, the term "Software"
as used herein shall include the applicable Documentation.
"Effective Date" has the meaning given to that term in the preamble of this
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Agreement.
"Exceptions" has the meaning given to that term in Section 11.
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"Excess Warranty" has the meaning given to this term in Section 12.
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"Logo Program" has the meaning given to this term in Section 6.7.
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"Materials" has the meaning given to this term in Section 8.1.
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"OEM" means original equipment manufacturer.
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"Service Fee Revenues" has the meaning given to this term in Section 5.2.
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"Software" means (i) the object code version of Xxxxxx.xxx's software
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programs listed in Exhibit D, and (ii) the object code version of any updates,
modifications or revisions to such computer programs provided to Distributor
pursuant to the terms of this Agreement.
"Software License Agreement" means the agreement provided in Exhibit B.
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"Term" has the meaning given to that term in Section 16.1.
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"Trademarks" means all then-current names, marks and designations used by
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Xxxxxx.xxx.
"Warranty Period" has the meaning given to that term in Section 9.1.
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2. APPOINTMENT OF DISTRIBUTOR.
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2.1 Grant to Distributor. Subject to all the term and conditions of
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this Agreement and the limitations set forth below, Xxxxxx.xxx hereby grants and
Distributor hereby accepts, a non-transferable, non-exclusive right to market
and distribute copies of Software solely to Customers in the United States.
Copies of Software are licensed for distribution and not sold. Distributor shall
not appoint, hire or otherwise engage subdealers to market or distribute
Software without the express written consent of Xxxxxx.xxx.
2.2 Software License. Subject to all the terms and conditions of this
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Agreement, Xxxxxx.xxx hereby grants a non-exclusive, nontransferable, royalty-
free, sub-licensable and fully-paid-up license to Distributor, for so long as
this Agreement remains in effect, to use, reproduce and copy all Software and to
provide and make available to Customers, copies of all Software; provided that
the user of all such copies provided or made available to Customers shall be
subject to the terms of the applicable Software License Agreement between each
such Customer and Xxxxxx.xxx. The foregoing license is provided by Xxxxxx.xxx to
Distributor free of charge.
2.3 Title and Ownership. Distributor hereby acknowledges that all right,
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title and interest in and to Software shall at all times remain that of
Xxxxxx.xxx, including all rights in the nature of copyright, patent, trade-
secret and other intellectual property and proprietary rights with respect to
Software. Distributor shall have no right, title, or interest therein, and
Distributor is not authorized to grant any right or license with respect thereto
except as expressly set forth in, and permitted under, this Agreement.
3. DISTRIBUTOR'S OBLIGATIONS GENERALLY.
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3.1 Distribution of Software. Distributor shall use its best efforts to
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distribute Software to Customers pursuant to the provisions set forth in Exhibit
A.
3.2 Copying/Reverse Engineering. In no event shall Distributor use,
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market or distribute Software other than as provided herein. Distributor agrees
not to (i) disassemble, decompile or otherwise reverse engineer Software or
otherwise attempt to learn the source code, structure, algorithms or ideas
underlying Software, (ii) take any action contrary to Xxxxxx.xxx's Software
License Agreement, except as expressly and unambiguously allowed under this
Agreement, (iii) alter or modify Software, (iv)
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attempt to disable any security devices or codes incorporated in Software, or
(v) allow or assist others to do any of the foregoing.
3.3 Distributor's Procurement of USPS Approval. Distributor must obtain
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final US Postal Service ("USPS") certification and approval on or prior to one
hundred and twenty (120) days from the Effective Date for all products in which
it plans to include Xxxxxx.xxx Software. Such certification must be evidenced
in writing from the USPS to Distributor or such other appropriate proof of
certification acceptable to Xxxxxx.xxx.
3.4 Software Package; Software License Agreement. Subject to Exhibit A,
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Distributor shall ensure that each copy of Software distributed by or through
Distributor to Customers shall include all components of such Software as
prepackaged by Xxxxxx.xxx, including, without limitation, (i) diskettes or other
media bearing labels, (ii) Xxxxxx.xxx's end user manuals and Documentation,
Xxxxxx.xxx's Software License Agreement, and (iii) at the option of Xxxxxx.xxx,
advertising and promotional materials supplied by Xxxxxx.xxx. The parties to
each Software License Agreement shall be Xxxxxx.xxx and the Customer. The terms
of the Software License Agreement shall be subject to change by Xxxxxx.xxx, at
its sole discretion, upon reasonable notice to Distributor. Xxxxxx.xxx shall
have the right to add to or discontinue any or all Software, but only upon
thirty (30) days' prior written notice to Distributor.
3.5 Third Party Infringement. Distributor shall notify Xxxxxx.xxx promptly
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of any infringement of any copyrights, Trademarks, or other intellectual
property or proprietary rights relating to any Software. Xxxxxx.xxx may, in its
sole discretion, take or not take whatever action it believes is appropriate in
connection with any such infringement. If Xxxxxx.xxx elects to take any such
action, Distributor agrees to fully cooperate in connection therewith. If
Xxxxxx.xxx initiates and prosecutes any action with respect to infringement of
any copyrights, Trademarks, or other proprietary rights relating to any
Software, Xxxxxx.xxx shall be entitled to retain all amounts (including court
costs and attorneys' fees) awarded by way of judgment, settlement, or compromise
with respect thereto.
3.6 Compliance. Distributor shall ascertain and comply with all applicable
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state, federal and local laws and regulations and standards of industry or
professional conduct, including, without limitation, those applicable to product
claims, labeling, approvals, registrations and notifications, the Internic, the
Internet Assigned Numbers Authority and Internet community standards, and shall
also obtain Xxxxxx.xxx's prior written consent before adding any product claim,
label, instructions, packaging or the like to any copy of Software.
3.7 Export Control. Distributor shall not export or re-export any Software
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outside the United States without Xxxxxx.xxx's express written consent. In the
event such consent is received, Distributor shall comply with the U.S. Foreign
Corrupt Practices Act and all export laws, restrictions, national security
controls and regulations of the United States and other applicable foreign
agency or authority, and shall not export or re-export, or allow the export or
re-export of Software, any component of Software, any other product or
Confidential Information or any copy or direct product of any of the foregoing
in violation of any such restrictions, laws or regulations, or to Cuba, Libya,
North Korea, Iran, Iraq, or Rwanda or to any Group D:1 or E:2 country (or any
national of such country) specified in the then current Supplement No. 1 to Part
740, or, in violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), except
in compliance with and with all licenses and approvals required under applicable
export laws and regulations, including without limitation, those of the U.S.
Department of Commerce.
4. DELIVERY TO DISTRIBUTOR.
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4.1 Delivery. Xxxxxx.xxx shall deliver a master copy of all Software to
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Distributor in a format which shall enable Distributor to provide copies thereof
to Customers. Xxxxxx.xxx shall provide sufficient copies of all Documentation to
Distributor to allow Distributor to include such Documentation to Customers with
Software pursuant to Distributor's obligations as set forth in Exhibit A.
5. PRICES, PAYMENTS, AND PAYMENT TERMS.
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5.1 Distributor's Prices to Customers. Distributor shall provide or make
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available copies of Software free of charge to Customers and shall not charge
any fee or other consideration in connection with the delivery or distribution
of such copies.
5.2 Revenue Sharing. As full consideration for its services hereunder,
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Xxxxxx.xxx shall pay Distributor a quarterly fee equal to [***]. of all
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Service Fee Revenues received by Xxxxxx.xxx attributable to purchases by
Customers using Software; provided that, if any such Customer previously
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obtained any Software from any person other than Distributor, the Service Fee
Revenues attributable to purchases by such Customer shall not be included for
purposes of determining Distributor's quarterly fee. All quarterly fees payable
by Xxxxxx.xxx to Distributor shall be paid within forty-five (45) days after the
end of the quarter in which Xxxxxx.xxx receives the Service Fee Revenues from
which such fees are derived. As used herein, the term "Service Fee Revenues"
shall mean all service fees received by Xxxxxx.xxx from purchases of postage by
Customers and shall specifically exclude (a) the cost of the postage that is
purchased and (b) any taxes with respect thereto.
6. MARKETING AND ADVERTISING.
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6.1 Distributor's General Undertaking, Representation, and Warranty.
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Distributor represents, warrants, and covenants to Xxxxxx.xxx that all
advertising and marketing materials relating to Software and/or Xxxxxx.xxx that
are developed by Distributor shall be accurate in all respects.
6.2 Distribution of Software. Distributor hereby agrees to advertise,
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market, sell and distribute Software solely as provided in Exhibit A. In its
distribution efforts, Distributor will use the Trademarks, but shall not
represent or imply that it is Xxxxxx.xxx or is a part of Xxxxxx.xxx; provided
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that all advertisements and promotional materials, packaging and anything else
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bearing a Trademark shall identify Xxxxxx.xxx as the Trademark owner and
Software manufacturer; provided further that any use of the Trademarks shall be
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governed by Section 8.3.
6.3 Marketing Materials. Xxxxxx.xxx agrees to provide to Distributor, at
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no cost to Distributor, such promotional materials for Software in camera ready
or electronic format as Xxxxxx.xxx generally makes available to its resellers
and distributors, including technical specifications, prices, drawings, and
advertisements. Distributor may reproduce such promotional materials as
reasonably required in connection with its promotional, advertising and/or
marketing activities in connection with Software, provided that all copyright,
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trademark and other property markings of Xxxxxx.xxx are reproduced. Such
promotional materials, including all copies and reproductions made by
Distributor, remain the property of Xxxxxx.xxx and, except insofar as they are
distributed by Distributor in the course of its performance of its duties under
this Agreement must be promptly returned to Xxxxxx.xxx upon the expiration or
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[***] Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
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termination of this Agreement. Distributor may develop its own promotional
materials for Software, provided that Distributor shall submit any such
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promotional materials to Xxxxxx.xxx for Xxxxxx.xxx's review, and Xxxxxx.xxx
shaft have the right to approve or reject any such promotional materials in
Xxxxxx.xxx's sole discretion.
6.4 Web Sites.
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(i) Hypertext Links. If Distributor has a World Wide Web site
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("Web site"), Distributor shall establish a hypertext link to Xxxxxx.xxx's Web
site within thirty (30) days of the Effective Date. With respect to each
hypertext link linking users of Distributor's Web site to Xxxxxx.xxx's Web site,
Distributor shall not alter the look, feel, or functionality of Xxxxxx.xxx's Web
site and shall not act to prevent the look and feel of Xxxxxx.xxx's Web site
(including, without limitation, page format, navigational bars, colors, fonts,
Xxxxxx.xxx's trademarks, all hyperlinks appearing on Xxxxxx.xxx's Web site or,
in general, the overall design of Xxxxxx.xxx's Web site) from being displayed.
(ii) Responsibilities. Each party shall be solely responsible for
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the development, operation, and maintenance of its Web site and for all
materials that appear on its Web site, including without limitation, (i) the
technical operation of its Web site and all related equipment, (ii) the accuracy
and appropriateness of materials posted on its Web site, and (iii) ensuring that
materials posted on its Web site do not violate any law, rule, or regulation, or
infringe upon the rights of any third party and are not defamatory, obscene or
otherwise illegal. Each party disclaims all liability for all such matters with
respect to the other's Web site.
6.5 Advertising and Public Relations. Distributor may advertise Software
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in appropriate periodicals and in a manner insuring proper and adequate
publicity for Software. Each time Distributor places any such advertising in any
periodical, Distributor shall provide Xxxxxx.xxx with notice (pursuant to
Section 17.8 below) that Distributor has done so, specifying the name and date
of the applicable periodical. Distributor shall engage in public relations
activities to encourage the publication of articles and other publications
regarding Software.
6.6 Announcements. Within thirty (30) days following the Effective date,
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Xxxxxx.xxx and Distributor shall jointly issue a press release announcing
Distributor's appointment under this Agreement. Thereafter, each party shall
obtain the other party's prior written approval of all press releases that such
party issues with respect to this Agreement and the transactions contemplated by
this Agreement. Distributor also shall obtain Xxxxxx.xxx's prior written
approval of all other press releases that Distributor issues with respect to
Software.
6.7 Logo Program. During the Term, upon mutual agreement of the Parties,
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Distributor shall participate in a promotional logo program ("Logo Program") as
follows: Distributor shall be entitled to offer free postage to Customers for a
period of up to twelve months from the Effective Date; provided that, (a) the
amount of free postage to be given to any Customer shall not exceed ten dollars
($10), (b) Xxxxxx.xxx shall be entitled to immediately terminate the Logo
Program at its sole discretion, (c) Customers shall not be entitled to receive
free postage until they have made an initial purchase of postage from
Xxxxxx.xxx, (d) Customers shall not be entitled to receive free postage if they
have previously obtained Software (whether from Distributor or another person),
(e) Distributor and Xxxxxx.xxx shall mutually agree on one or more logos which
Distributor shall display on all of its packaging and marketing materials which
are generally seen by Customers, including but not limited to external packaging
and Web sites, and (f) Distributor shall not alter any such logos and shall
display such logos in strict compliance with the parties' agreement with respect
to size, color, location and any other relevant criteria
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with respect to such logos. The logos used in die Logo Program shall be deemed
Trademarks for all purposes of this Agreement, including the license granted by
Xxxxxx.xxx in Section 8.3.
7. INSTALLATION AND SUPPORT.
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Xxxxxx.xxx shall be solely responsible for providing Customers with
installation, maintenance and technical integration support with respect to
Software. Distributor shall notify Xxxxxx.xxx as soon as possible, and within no
more than twenty-four (24) hours or one (1) Business Day, whichever period is
longer, of Distributor's receipt of any Customer request for support or
assistance with respect to Software.
8. PROTECTION OF PROPRIETARY RIGHTS.
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8.1 Acknowledgment of Proprietary Materials. Distributor hereby
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acknowledges that all Software, Documentation and technical support and training
materials provided to Distributor by Xxxxxx.xxx (collectively, the "Materials")
are protected by the copyright laws of the United States and other countries and
that the Materials embody valuable confidential and trade secret information of
Xxxxxx.xxx, the development of which required the expenditure of considerable
time and money by Xxxxxx.xxx.
8.2 Proprietary Markings. Distributor hereby agrees to ensure that all
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copyright trademark and other proprietary notices of Xxxxxx.xxx affixed to or
displayed on Software and Documentation will not be removed, obscured or
modified by Distributor.
8.3 Xxxxxx.xxx Trademarks. Distributor acknowledges that Xxxxxx.xxx is the
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owner of all right, title and interest in and to all the Trademarks set forth in
Exhibit C, together with any new or revised names, designs or designations that
Xxxxxx.xxx may adopt to identify it or any Software during the Term, and
Distributor agrees not to adopt or use any of such Trademarks in any manner
whatsoever except as expressly provided in this Agreement.
Xxxxxx.xxx hereby grants Distributor a license during the Term to use
the Trademarks, provided that (i) they are used solely in connection with the
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marketing and distribution of Software and in accordance with Xxxxxx.xxx's
specifications as to style, color and typeface set forth in Exhibit C, (ii) such
use shall be subject to prior written approval of Xxxxxx.xxx, which approval
shall not be unreasonably withheld, and, (iii) no other right to use any name or
designation is granted by this Agreement. Upon expiration or termination of
this Agreement, Distributor will take all action necessary to transfer and
assign to Xxxxxx.xxx, or its nominee, any right, title or interest in or to any
of the Trademarks, and the goodwill related thereto, which Distributor may have
acquired in any manner as a result of the marketing and distribution of Software
under this Agreement, and Distributor shall cease using any Trademark.
Distributor hereby agrees to notify Xxxxxx.xxx immediately upon Distributor
gaining knowledge of any infringement or potential infringement of any
Trademark.
Distributor agrees not to apply for registration of any Trademarks
anywhere in the world or for any xxxx confusingly similar thereto. Xxxxxx.xxx
may elect to apply for registration of one or more of the Trademarks anywhere in
the world at its expense, and, in such event, Xxxxxx.xxx shall so notify
Distributor and Distributor shall assist and cooperate with Xxxxxx.xxx in
connection therewith. Distributor also agrees not to use or contest, during or
after the term of this Agreement, any Trademark, name, xxxx or designation used
by Xxxxxx.xxx anywhere in the world (or any name, xxxx or designation similar
thereto). Distributor acknowledges and agrees that all use of the Trademarks by
Distributor shall inure to the benefit of Xxxxxx.xxx.
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8.4 Confidential Information. Distributor hereby agrees to hold any
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information, materials and data made available to it by Xxxxxx.xxx that
reasonably should be understood to be confidential (collectively, "Confidential
Information"), in confidence and agrees not to use, copy, or disclose, or permit
any of its personnel to use, copy, or disclose the same for any purpose that is
not specifically authorized herein. For the purposes of this Section 8.4, the
terms and conditions of this Agreement and the Materials are Confidential
Information of Xxxxxx.xxx.
9. WARRANTY.
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9.1 Limited Warranty of Performance. Xxxxxx.xxx warrants to Distributor
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that all Software will, under normal use, conform to the limited warranty
contained in the Software License Agreement applicable to such Software during
the warranty period set forth in such Agreement (the "Warranty Period"). The
foregoing warranty will apply only to the most current version of Software
issued by Xxxxxx.xxx from time to time. Xxxxxx.xxx assumes no responsibility for
claims resulting from the distribution of superseded, outdated, or uncorrected
versions of Software.
9.2 Exclusive Remedy. If a Customer contacts Xxxxxx.xxx during the
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Warranty Period claiming a breach of the warranty set forth in the then-current
Software License Agreement provided by Distributor to that Customer, Xxxxxx.xxx
will use reasonable efforts to resolve the claim directly with such Customer by
correcting or replacing such Software. If a Customer contacts Distributor during
the Warranty Period claiming any such breach of warranty, Distributor shall
promptly refer the matter to Xxxxxx.xxx. DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY
IN THE EVENT OF ANY SUCH CLAIM, IF VERIFIED, IS EXPRESSLY LIMITED TO
XXXXXX.XXX'S REASONABLE EFFORTS TO CORRECT OR REPLACE SUCH DEFECTIVE SOFTWARE
AND/OR DOCUMENTATION AT XXXXXX.XXX'S SOLE EXPENSE.
9.3 Disclaimer. No representation or other affirmation of fact not set
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forth herein, including, without limitation, statements regarding capacity,
compliance, suitability for use, or performance of any Software, shall be or be
deemed to be a warranty or representation by Xxxxxx.xxx for any purpose, or give
rise to any liability or obligation of Xxxxxx.xxx whatsoever. The Software has
been designed to record, store, process and calculate and present calendar dates
falling on or after January 1, 2000, and is designed to calculate any
information dependent on or relating to such dates in the same manner and with
the same functionality, data integrity and performance as the Software records,
stores, processes, calculates and presents calendar dates on or before December
31, 1999, or calculates and presents any information dependent on or relating to
such dates. In addition, Xxxxxx.xxx has no reason to believe that the Software
will lose functionality with respect to the introduction of records containing
dates falling on or after January 1, 2000. NEVERTHELESS, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES EXPRESS OR IMPLIED
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE, AND NON-INFRINGEMENT, AND ANY
WARRANTY, GUARANTEE OR REPRESENTATION AS TO (Y) THE ABILITY OF THE SOFTWARE TO
PROCESS CALENDAR DATE VALUES, INCLUDING BUT NOT LIMITED TO, CALENDAR DATE VALUES
FROM JANUARY 1, 1999 THROUGH AND BEYOND JANUARY 1, 2000, AND IN PROCESSING SUCH
CALENDAR DATE VALUES, TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION, OR (Z)
WHETHER ANY OR ALL DATA FIELDS FOR CALENDAR DATE VALUES AND DATA ARE FOUR-DIGIT
FIELDS CAPABLE OF INDICATING CENTURY AND MILLENNIUM OR ADDRESSING LEAP YEARS
CORRECTLY.
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10. LIMITATION OF LIABILITY; INJUNCTIVE RELIEF.
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10.1 No Consequential Damages; Limitation of Liability. IN NO EVENT
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SHALL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT FOR LOSS OF PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR
DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY. EXCEPT WITH RESPECT TO A BREACH OF SECTION 8.4 AND
DISTRIBUTOR'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 BELOW, THE LIABILITY
OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY XXXXXX.XXX TO DISTRIBUTOR WITH
RESPECT TO THE SPECIFIC ITEMS OF SOFTWARE GIVING RISE TO SUCH CLAIM.
10.2 Injunctive Relief. Distributor acknowledges that any breach of
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its obligations under this Agreement with respect to the proprietary rights or
Confidential Information of Xxxxxx.xxx will cause Xxxxxx.xxx irreparable injury
for which there are inadequate remedies at law, and therefore Xxxxxx.xxx will be
entitled to injunctive relief in addition to all other remedies provided by this
Agreement or available at law.
11. DEFENSE OF INTELLECTUAL PROPERTY CLAIMS.
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If notified promptly in writing of any action (and all prior claims
relating to such action) against Distributor based on a claim that Distributor's
distribution and/or use of Software infringes a third party's copyright or
trademark or misappropriates a third party's trade secret, and if given access
by Distributor to any information Distributor has regarding such alleged
infringement, Xxxxxx.xxx agrees to defend and hold harmless Distributor in such
action at its expense and will pay any costs or damages finally awarded against
Distributor in any such action; provided that Xxxxxx.xxx shall have had sole
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control of the defense of any such action and all negotiations for its
settlement or compromise. In the event that Xxxxxx.xxx reasonably believes that
any Software infringes a copyright or trademark or misappropriates a trade
secret, Xxxxxx.xxx may, at its option and at its expense, either procure for
Distributor the right to continue using any Software, modify the same so it
becomes non-infringing or allow the Distributor to terminate this Agreement
pursuant to Section 16.2(ii). Xxxxxx.xxx shall not have any liability to
Distributor under any provision of this clause if any infringement, or claim
thereof, is based upon: (i) the use of Software in combination with other
computer hardware or software program that Xxxxxx.xxx has not approved for use
with such Software, (ii) Software that has been modified by Distributor, (iii)
Distributor's use of Software beyond the scope of the license granted to it by
Xxxxxx.xxx hereunder, (iv) Distributor's use after notice of infringement or
misappropriation, or (v) Infringement relating solely to the use of Software but
not the Software itself. Distributor shall indemnify Xxxxxx.xxx and hold it
harmless against any expense, judgment or loss for infringement of any patent or
other intellectual property right which results from the exceptions set forth in
the immediately preceding sentence of this Section 11 (collectively,
"Exceptions"). No costs or expenses shall be incurred for the account of
Xxxxxx.xxx without the prior written consent of Xxxxxx.xxx. THE FOREGOING
STATES THE ENTIRE LIABILITY OF XXXXXX.XXX WITH RESPECT TO INFRINGEMENT OF
PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY ANY
SOFTWARE, OR ANY PART THEREOF, OR BY ITS OPERATION.
12. DISTRIBUTOR'S INDEMNITY.
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If notified promptly in writing of any action (and all prior claims
relating to such action) against Xxxxxx.xxx based on a claim arising from (i)
infringement of any patent or other intellectual property
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right which results from the Exceptions; (ii) Distributor's grant of a warranty
to any Customer exceeding the limited warranty set forth in Section 9.1 of this
Agreement (an "Excess Warranty"), (iii) Distributor's material breach of this
Agreement, or (iv) Distributor's negligence or willful misconduct Distributor
shall indemnify Xxxxxx.xxx and hold Xxxxxx.xxx harmless from and against any
judgment, damage, liability, or expenses, including reasonable attorney's fees,
arising out of any claim with respect to the breach or alleged breach of such
Excess Warranty or this Agreement or such negligence or willful misconduct;
provided that Distributor shall have had sole control of the defense of any such
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action and all negotiations for its settlement or compromise; and, provided
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further that no cost or expense shall be incurred for the account of Distributor
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without Distributor's prior written consent.
13. REPORTS AND RECORDS.
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13.1 Reports. Distributor shall keep complete records concerning all
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copies of Software provided to, or downloaded by, Customers, as the case may be.
Within ten (10) Business Days of the close of each month during the Term,
Distributor shall complete and forward to Xxxxxx.xxx a monthly report containing
a summary setting forth the number of copies of Software provided to, or
downloaded by, Customers, as the case may be, and the name and location of the
Customer who was provided with, or downloaded a copy of, Software, as the case
may be.
13.2 Audit. Distributor agrees to maintain copies of all documentation
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relating to the distribution of Software under this Agreement. If requested in
writing by Xxxxxx.xxx, Distributor shall permit Xxxxxx.xxx and its independent
certified public accountants, subject to a non-disclosure agreement with
Distributor, to have access to such documentation at Distributor's place of
business during ordinary business hours. Distributor agrees to keep for three
(3) years after termination of this Agreement records of all copies of Software
provided to or downloaded by Customers, as the case may be, in each case
sufficient to adequately administer a recall of any Software and to fully
cooperate in any decision by Xxxxxx.xxx to recall, retrieve and/or replace any
Software. Xxxxxx.xxx agrees to maintain copies of all documentation relating to
Service Fee Revenues from Customer purchases using Software distributed by
Distributor hereunder. Within fifteen (15) days after the end of each month,
Xxxxxx.xxx shall provide a report to Distributor setting forth the revenues
received by Xxxxxx.xxx for such month which are attributable to purchases from
Customers using such Software. If requested in writing by Distributor,
Xxxxxx.xxx shall permit, at Distributor's sole expense, Distributor and
distributor's independent certified public accountants, subject to a non-
disclosure agreement with Xxxxxx.xxx, up to once per calendar year, to have
access solely to such documentation as is reasonably necessary for Distributor
and Distributor's accountants to verify the amount of revenues set forth on such
report; provided, in no event shall such access include access to Xxxxxx.xxx's
servers. For a period of three (3) years after termination of this Agreement,
Xxxxxx.xxx agrees to keep records of all Customer purchases made pursuant to
Software distributed by Distributor hereunder.
14. RELATIONSHIP OF PARTIES.
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Distributor is an independent contractor and nothing contained in this
Agreement shall be construed to constitute either party as a partner, joint
venturer, co-owner, employee, or agent of the other party, and neither party
shall hold itself out as such. Neither party has any right or authority to
incur, assume or create, in writing or otherwise, any warranty, liability or
other obligation of any kind, express or implied, in the name of or on behalf of
the other party, it being intended by both Distributor and Xxxxxx.xxx that each
shall remain an independent contractor responsible for its own actions.
Distributor agrees to indemnify and hold Xxxxxx.xxx harmless from and against
any damage or expenses, including reasonable attorney's fees, arising out of
Distributor's breach of the provisions of this Section 14.
9
15. ASSIGNMENT.
----------
Distributor shall not assign, transfer or otherwise dispose of this
Agreement in whole or in part to any individual, corporation or other entity
without the prior written consent of Xxxxxx.xxx.
16. TERM OF AGREEMENT; TERMINATION.
------------------------------
16.1 Term. This Agreement shall be effective as of the Effective Date
----
and shall have an initial term that commences on the Effective Date and expires
two (2) years from the Effective Date. Upon the expiration of such term (or any
renewal term), this Agreement shall automatically renew for additional one (1)
year periods unless either party notifies the other party at least sixty (60)
days prior to the applicable renewal date of its intention to not renew the
Agreement (the initial term and any renewal term shall be collectively referred
to as the "Term").
16.2 Events of Termination.
---------------------
(i) Bankruptcy/Reorganization. Either party may terminate this
-------------------------
Agreement immediately upon written notice to the other party if the other party
becomes insolvent, seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, proceedings
in bankruptcy or insolvency are instituted against the other party, or a
receiver is appointed, or if any substantial part of the other party's assets is
the object of attachment, sequestration or other type of comparable proceeding,
and such proceeding is not vacated or terminated within thirty (30) days after
its commencement or institution.
(ii) Default. Either party may terminate this Agreement if the
-------
other party commits a material breach of any of the material terms or provisions
of this Agreement and does not cure such breach within thirty (30) days after
receipt of written notice given by the other party. Notwithstanding the
foregoing, Xxxxxx.xxx may immediately terminate this Agreement in the event
Distributor breaches its obligations under Section 2.1, 3.2, 8.3 or 8.4.
(iii) Licenses. Either party may terminate this Agreement
--------
immediately if it or the other party is unable to obtain or renew any permit,
license or other governmental approval necessary to carry on the business
contemplated under this Agreement.
(iv) USPS Certification for Distributor. Xxxxxx.xxx may
----------------------------------
terminate this Agreement immediately upon written notice to Distributor in the
event Distributor fails to obtain USPS certification in accordance with Section
3.3 of the Agreement.
16.3 Termination for Convenience. Each party shall terminate this
---------------------------
Agreement any time with or without cause upon thirty (30) days' prior written
notice to the other party. In the event Xxxxxx.xxx terminates this Agreement
pursuant to this Section 16.3, Distributor may not sell any inventory containing
the Software or Xxxxxx.xxx's logos on or after six (6) months after the
termination date of this Agreement.
16.4 Rights Upon Termination. Upon termination of this Agreement by
-----------------------
expiration of the Term or otherwise, all further rights and obligations of the
parties shall cease, except that the parties shall not be relieved of (i) their
respective obligations to pay any moneys due or which become due as of or
subsequent to the date of termination, and (ii) any other respective obligations
under Sections 2.3, 3.2, 8.1, 8.3 (first and third paragraphs only), 8.4, 9.2,
9.3, 10.1, 10.2, 11, 12, 13.1, 13.2, 14, 15, 16.4, 16.5, and 17.1 - 17.9.
Without limiting the foregoing, upon termination of this Agreement, all licenses
granted
10
to Distributor hereunder shall terminate and each party shall remove any links
from its Web site to the other party's Web site.
16.5 Existing Licenses. All Software License Agreements in effect as of
-----------------
the date of termination or expiration of this Agreement shall survive such
termination or expiration and continue in effect until terminated in accordance
with their terms.
17. MISCELLANEOUS.
-------------
17.1 Force Majeure. If the performance of any obligation (other than
-------------
payment and confidentiality obligations) under this Agreement is prevented,
restricted or interfered with by reason of war, revolution, civil commotion,
acts of public enemies, blockade, embargo, strikes, outage of the Internet, law,
order, proclamation, regulation, ordinance, demand, or requirement having a
legal effect of any government or any judicial authority or representative of
any such government, or any other act whatsoever, whether similar or dissimilar
to those referred to in this Section 17.1, which is beyond the reasonable
control of the party affected, then the party so affected shall, upon giving
prior written notice to the other party, be excused from such performance to the
extent of such prevention, restriction, or interference, provided that the party
so affected shall use reasonable commercial efforts to avoid or remove such
causes of nonperformance, and shall continue performance hereunder with
reasonable dispatch whenever such causes are removed. The parties agree and
acknowledge that the foregoing shall include Xxxxxx.xxx's failure to obtain any
necessary governmental approval required in connection with the use of any
Software, including without limitation any postal service approval.
17.2 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto and supersedes all previous negotiations, agreements
and commitments with respect thereto, and shall not be released, discharged,
changed or modified in any manner except by instruments signed by duly
authorized officers or representatives of each of the parties hereto. No course
of prior dealing between the parties and no usage of the trade shall be relevant
to supplement or explain any term used herein. Acceptance or acquiescence in a
course of performance rendered hereunder shall not be relevant to determine the
meaning of these terms and conditions even though the accepting or acquiescing
party has knowledge of the performance and opportunity for objection.
17.3 Applicable. Any claim or controversy relating in any way to this
----------
Agreement shall be governed and interpreted exclusively in accordance with the
laws of the State of California and the United States without regard to the
United Nations Convention on Contracts for the International Sale of Goods.
This Agreement shall be deemed to have been made in, and shall be construed
under, the internal laws of the State of California, without regard to the
principles of conflicts of laws thereof and the United Nations Convention on
Contracts for the International Sale of Goods. Any mediation under Section
17.4(iii) below shall be conducted in Los Angeles County, California. In
addition, Xxxxxx.xxx and Distributor acknowledge and agree that the courts
located in such county shall have exclusive jurisdiction in any action or
proceedings with respect to this Agreement, including the federal district
courts located in such county.
17.4 Dispute Resolution. All disputes arising in connection with this
------------------
Agreement shall be resolved as follows:
(i) General Intent. Xxxxxx.xxx and Distributor intend that all
--------------
problems and disputes relating to this Agreement or arising from the
transactions contemplated hereby ("Disputes") shall be resolved through the
procedures of this Section 17.4; provided, however, that neither party shall be
-------- -------
under any obligation to proceed in accordance with this Section 17.4 with
respect to Disputes concerning any alleged breach of Section 2.3, 3.2, 8.1, 8.2,
8.3 or 8.4 of this Agreement, as to which a party may take any
11
legal action in a court of law or equity (without the necessity of posting any
bond) to assert or enforce a claim that it has against the other party under
this Agreement. The procedures in this Section 17.4 shall not replace or
supersede any other remedy to which a party is entitled under this Agreement or
under applicable law.
(ii) Informal Resolution Efforts. Xxxxxx.xxx and Distributor
---------------------------
initially shall attempt to resolve Disputes through informal negotiations
conducted by the president or any vice president of Xxxxxx.xxx and the president
or any vice president of Distributor.
(iii) Mediation. If a Dispute cannot be resolved under subsection
---------
17.4(ii), the Dispute shall be submitted to mediation by written notice of the
party seeking mediation to the other party. In the mediation process, Xxxxxx.xxx
and Distributor shall attempt in good faith to resolve their differences
voluntarily with the aid of an impartial mediator, who will attempt to
facilitate negotiations. The mediator shall be selected by mutual agreement of
Xxxxxx.xxx and Distributor. If Xxxxxx.xxx and Distributor cannot agree on a
mediator, the American Arbitration Association or JAMS/Endispute shall designate
a mediator at the request of either party. Any mediator so designated must be
acceptable to both parties. The mediation shall be confidential, and the
mediator may not testify for either party in any later proceeding relating to
the Dispute. Each party shall bear its own costs in the mediation. The fees
and expenses of the mediator shall be shared equally by the parties.
(iv) Court Actions. If Xxxxxx.xxx and Distributor cannot resolve a
-------------
Dispute through mediation pursuant to Section 17.4(iii) above, either party may
seek further redress by taking legal action in a court of law or equity to
assert or enforce a claim that it has against the other party under this
Agreement.
17.5 Statute of Limitations. Any action by the Distributor for breach of
----------------------
these terms and conditions must be commenced within one (1) year after the cause
of action has accrued.
17.6 Partial Illegality. If any provision of this Agreement or the
------------------
application thereof to any party or circumstances shall be declared void,
illegal or unenforceable, die remainder of this Agreement shall be valid and
enforceable to the extent permitted by applicable law. In such event the
parties shall use their best efforts to replace the invalid or unenforceable
provisions by a provision that, to the extent permitted by the applicable law,
achieves the purposes intended under the invalid or unenforceable provision.
Any deviation by either party from the terms and provisions of this Agreement to
the limited extent necessary to comply with applicable laws, rules or
regulations shall not be considered a breach of this Agreement.
17.7 Waiver of Compliance. Any failure by any party hereto to enforce at
--------------------
any time any term or condition under this Agreement shall not be considered a
waiver of that party's right thereafter to enforce each and every item and
condition of this Agreement.
17.8 Notices. All notices and other communications in connection with
-------
this Agreement shall be in writing and shall be sent to the respective parties
at addresses set forth below in this Section 17.8, or to such other addresses as
may be designated by the parties in writing from time to time in accordance with
this Section 17.8, by registered or certified air mail, postage prepaid, or by
express courier service, service fee prepaid, or by telefax with a hard copy to
follow via air mail or express courier service in accordance with this Section
17.8. All notices shall be deemed received (i) if given by hand, immediately,
(ii) if given by air mail, five (5) business days after posting, (iii) if given
by express courier service, three (3) business days after delivery to courier
service, or (iv) if given by telefax, upon receipt thereof by the recipient's
telefax machine as indicated either in the sender's identification line produced
12
by the recipients telefax machine or in the sender's transmission confirmation
report as produced electronically by the sender's telefax machine.
To Xxxxxx.xxx: Xxxxxx.xxx Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
To Distributor: Dymo-CoStar Corporation
000 Xxxx Xxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attn: President
Facsimile: (000) 000-0000
With a copy to:
Xxxx X. X'Xxxxxx
Esselte Corporation
00 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
17.9 Counterparts. This Agreement may be executed in counterparts, each
------------
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representative as of the Effective
Date.
XXXXXX.XXX INC.
By:________________________________
Name:______________________________
Title:_____________________________
DISTRIBUTOR:
DYMO-COSTAR CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
13
EXHIBIT A
DISTRIBUTION OBLIGATIONS
------------------------
Distributor's obligations under the Agreement are as follows:
------------------------------------------------------------
1. Distributor must obtain USPS certification for any of distributor's
products bundled with the Software in accordance with Section 3.3 of this
Agreement.
2. Distributor shall promote Xxxxxx.xxx's "Free Postage" logo (the "Logo") on
all external packaging of distributor products with which the Software is
bundled pursuant to Section 6.7 of this Agreement, and in accordance with
the logo usage guidelines which are mutually agreeable to Distributor and
Xxxxxx.xxx and which will be provided under separate cover by Xxxxxx.xxx
from time to time during the Term.
3. Distributor shall advertise the Software and the Logo in periodicals and
other forms of media advertising in which Distributor advertises its
products that are bundled with the Software; provided, however, Distributor
may advertise the Software and the Logo in television commercials at its
sole discretion. Distributor's advertising of the Software and Logo must
comply with Section 6 of this Agreement and the mutually agreeable logo
usage guidelines to be provided under separate cover by Xxxxxx.xxx from
time to time during the Term.
4. Distributor shall bundle and distribute the Software on all CD-ROMs
packaged with Distributor's LabelWriter printers sold through computer and
office product distribution channels in the USA; provided, however, that
-------- -------
Distributor shall not be required to bundle and distribute the Software on
CD-ROMs packaged with Distributor's LabelWriter printers distributed in
connection with special promotions with other PSPs.
5. Distributor shall promote, market, and provide for the installation of the
Software from the main Co-Star Software Installation Splash Screen/Front
End (the "Splash Screen"), as well as provide Customer's an option dialog
box to install the Software at the end of the Co-Star Software Installation
Process (the "Installation Process") on the Customer's computer or server
if the Customer has chosen not to install the Software from the Splash
Screen.
6. Distributor shall market Xxxxxx.xxx's free postage offer that is described
in Section 6.7 of the Agreement (the "Free Postage Offer") on all products
offered by Distributor to its existing customer U.S. customer base (subject
to paragraph 3 and 4).
7. Distributor shall provide Xxxxxx.xxx the right to direct market the
Software, including e-mail and direct mail, to Distributor'' existing U.S.
customers, at least once per calendar quarter during the Term. Distributor
shall at all times maintain control of, and access to, Distributor's list
of registered users. Xxxxxx.xxx must submit all marketing materials to
Distributor for distribution to its registered users.
8. At all times during which the Agreement remains in effect, Distributor
shall provide and maintain a hypertext link to the Xxxxxx.xxx World Wide
Web site (the "Xxxxxx.xxx Site") located from all the pages on
Distributor's World Wide Web site that contain references to Xxxxxx.xxx
and/or the Software.
9. Distributor shall provide Xxxxxx.xxx with preferred positioning over other
PSPs and providers of services and products similar to those now or
subsequently provided by Xxxxxx.xxx of the
A-1
Xxxxxx.xxx Logo on the Dymo-CoStar Site and each other page of the Co-Star
Site on which a reference to Xxxxxx.xxx, the Software, or both appears. The
parties may mutually agree on such preferred positioning on a case-by-case
basis.
10. Distributor shall provide Xxxxxx.xxx the right to market and resell
Distributor's LabelWriter printers, and other related or similar products,
on the Xxxxxx.xxx Site. Xxxxxx.xxx and the Distributor must agree to
commercially reasonable terms to govern such marketing and reseller
relationship; provided, however, that Distributor must sell their
LabelWriter printer products to Xxxxxx.xxx at a price equal to or less than
the lowest price Distributor offers to its other distributors and resellers
from time to time during the Term (as indicated in a quarterly price list
provided by Distributor to Xxxxxx.xxx) and Distributor must provide drop
shipment capability for printer orders; provided, further, that Xxxxxx.xxx
may not sell Distributor's LabelWriter printer products at a higher price
than offered in retail markets; and provided further, the Distributor may
sell their LabelWriter printer products in certain limited circumstances
(i.e., an individual, high volume order, but not as an ordinary course
distribution relationship and not to any competitor of Xxxxxx.xxx) at a
price less than the selling price of the LabelWriter printer products to
Xxxxxx.xxx.
11. Distributor shall use commercially reasonable and good faith efforts to
demonstrate and promote the Software with the LabelWriter printers, and
other similar or related products, at all trade and promotional events
Distributor attends during the Term in the United States.
12. Distributor shall provide Xxxxxx.xxx with the necessary resources and
expert level engineering and technical support assistance to integrate the
Software into Distributor's LabelWriter printer products at no charge.
13. In a collaborative effort with Xxxxxx.xxx, Distributor shall include
Xxxxxx.xxx in discussions to integrate the Software into Distributor's Co-
Star Label Printer software.
Xxxxxx.xxx's obligations with respect to this Agreement are as follows:
-----------------------------------------------------------------------
1. Within thirty (30) days of Xxxxxx.xxx's USPS certification, Xxxxxx.xxx
shall provide the Software to Distributor for integration with
Distributor's USPS approved LabelWriter printer products and label designs.
2. Xxxxxx.xxx shall have the right to market and resell Distributor's
Label/Writer printers, and other related or similar products, on the
Xxxxxx.xxx Site. Xxxxxx.xxx and the Distributor must agree to commercially
reasonable terms to govern such marketing and reseller relationship;
provided, however, that Distributor must sell their LabelWriter printer
products to Xxxxxx.xxx at a price equal to or less than the lowest price
Distributor offers to its other distributors and resellers from time to
time during the Term and Distributor must provide drop shipment capability
for printer orders; and provided further, that Xxxxxx.xxx may not sell
Distributor's LabelWriter printer products at a higher price than offered
in retail markets; and provided further, the Distributor may sell their
LabelWriter printer products in certain limited circumstances (i.e., an
individual, high volume order, but not as an ordinary course distribution
relationship and not to any competitor of Xxxxxx.xxx) at a price less than
the selling price of the LabelWriter printer products to Xxxxxx.xxx.
3 Xxxxxx.xxx shall provide reasonable technical support to Distributor to
complete the integration of the Software into Distributor's products at no
charge.
A-2
4. Xxxxxx.xxx shall modify the Software and any Xxxxxx.xxx software (other
than the Software) that Xxxxxx.xxx has, or may from time to time develop,
distribute and/or permit any third party to distribute in any distribution
channel (the "Other Software"), so that the Software and Other Software
will operate properly with respect to Distributor's labels with the
following stock keeping unit ("SKU") numbers: 30323, 30383, and 30384.
A-3
EXHIBIT B
STANDARD SOFTWARE LICENSE AGREEMENT
-----------------------------------
XXXXXX.XXX INC. END-USER SOFTWARE LICENSE AGREEMENT FOR XXXXXX.XXX INTERNET
POSTAGE SINGLE-USER VERSION
IMPORTANT: READ CAREFULLY
BEFORE OPENING THE SEALED ENVELOPE
THIS PRODUCT CONTAINS CERTAIN COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL,
THE USE OF WHICH IS SUBJECT TO THIS END-USER SOFTWARE LICENSE AGREEMENT.
OPENING THE SEALED ENVELOPE CONSTITUTES YOUR AND (IF APPLICABLE) YOUR COMPANY'S
ASSENT TO AND ACCEPTANCE OF THIS END-USER SOFTWARE LICENSE AGREEMENT (THE
"LICENSE" OR "AGREEMENT"). IF YOU DO NOT AGREE WITH ALL OF THE TERMS, YOU MUST
NOT USE THIS PRODUCT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR
---
ENFORCEABILITY OF THIS AGREEMENT, AND NO SOLICITATION OF SUCH WRITTEN APPROVAL
BY OR ON BEHALF OF XXXXXX.XXX, INC. ("XXXXXX.XXX") SHALL BE CONSTRUED AS AN
INFERENCE TO THE CONTRARY. IF THESE TERMS ARE CONSIDERED AN OFFER BY
XXXXXX.XXX, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
LICENSE AND WARRANTY:
The Software which accompanies this License (the "Software") is the property of
Xxxxxx.xxx and is protected by state, federal, and international copyright law.
Although Xxxxxx.xxx continues to own the Software, you will have certain rights
to use the Software after your acceptance of this License. Except as may be
modified by a license addendum which accompanies this License, your rights and
obligations with respect to the use of this Software are as follows:
1. YOU MAY:
A. Use only one copy of any version of the Software contained on the enclosed
CD-ROM or floppy disk or downloaded from the Internet or any other online
source on a single computer;
B. Install the Software from its original distribution medium onto another
computer so long as any other copies of the Software are deleted or
otherwise made irreversibly inoperative;
C. Make one copy of the Software for archival purposes; and
D. Distribute unmodified and unregistered copies of the Software on the
original distribution medium for non-commercial use.
2. YOU MAY NOT:
A. Use the Software to purchase or print evidence of United States postage
until and unless you have been issued a Postal Meter License by the United
States Postal Service;
B. Sublicense, rent or lease any portion of the Software;
C. Reverse engineer, decompile, disassemble, modify, translate, make any
attempt to discover the source code of the Software, or create derivative
works from the Software;
B-1
D. Copy or move any version of the Software after it has been installed and/or
registered to another computer;
E. Use the Software to commit or attempt to commit any form of fraud against
or engage in any form of criminal activity involving the United States
Postal Service or related agencies and organizations;
F. Authorize or allow other persons or entities to use the Software unless
such persons are members of your immediate family or household;
G. Make known or allow to be made known information relating to Software
serial numbers, accounts, passwords, device identification numbers, or any
other information that could reveal or jeopardize the integrity of your
Xxxxxx.xxx account; or
H. Install or use the Software on a computer located outside the United States
of America or its territories and possessions.
3. Warranty
Xxxxxx.xxx warrants that the tangible media on which the Software is distributed
will be free from defects sixty (60) days from the date of delivery of the
Software to you. Your sole remedy in the event of a breach of this warranty
will be that Xxxxxx.xxx will, at its option, replace any defective media
returned to Xxxxxx.xxx within the warranty period. Xxxxxx.xxx does not warrant
that the Software will not meet your requirements or that operation of the
Software will be uninterrupted or that the Software will be error-free.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTY, GUARANTEE OR
REPRESENTATION AS TO (1) THE ABILITY OF THE SOFTWARE TO PROCESS CALENDAR DATE
VALUES, INCLUDING BUT NOT LIMITED TO, CALENDAR DATE VALUES FROM JANUARY 1, 1999
THROUGH AND BEYOND JANUARY 1, 2000, AND IN PROCESSING SUCH CALENDAR DATE VALUES,
TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION, OR (2) WHETHER ANY OR ALL DATA
FIELDS FOR CALENDAR DATE VALUES AND DATA ARE FOUR-DIGIT FIELDS CAPABLE OF
INDICATING CENTURY AND MILLENNIUM OR ADDRESSING LEAP YEARS CORRECTLY.
THIS ABOVE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS,
WHICH VARY FROM STATE TO STATE.
4. Disclaimer of Damages
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
PURPOSE, IN NO EVENT WILL XXXXXX.XXX BE LIABLE TO YOU FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST
DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF XXXXXX.XXX
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B-2
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
IN NO CASE SHALL XXXXXX.XXX'S LIABILITY EXCEED THE PURCHASE PRICE FOR THE
SOFTWARE. The disclaimers and limitations set forth above will apply regardless
of whether you accept the Software.
5. U.S. Government Restricted Rights:
If your company is an agency of the United States government, as defined in FAR
section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-
7014(a)(5) or otherwise, all software and accompanying documentation provided in
connection with this Agreement are "commercial items," "commercial computer
software," and/or "commercial computer software documentation." Consistent with
DFAR section 227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, disclosure or distribution thereof
by or for the United States government shall be governed solely by the terms of
this Agreement and shall be prohibited except to the extent expressly permitted
by the terms of this Agreement.
USE, DUPLICATION, OR DISCLOSURE BY THE UNITED STATES GOVERNMENT IS SUBJECT TO
RESTRICTIONS AS SET FORTH IN SUBPARAGRAPH (C)(1)(II) OF THE RIGHTS IN TECHNICAL
DATA AND COMPUTER SOFTWARE CLAUSE AT DFARS 252.227-7013 OR SUBPARAGRAPHS (C)(1)
AND (2) OF THE COMMERCIAL COMPUTER SOFTWARE RESTRICTED RIGHTS CLAUSE AT 48 CFR
52.227-19, AS APPLICABLE.
6. Export:
You may not export or re-export the Software outside the United States without
Xxxxxx.xxx's express written consent. In the event such consent is received,
you must comply with the U.S. Foreign Corrupt Practices Act and all export laws,
restrictions, national security controls and regulations of the United States
and other applicable foreign agency or authority. You shall not export or re-
export, or allow the export or re-export of the Software, any component of
Software, or any copy of the Software in violation of any such restrictions,
laws or regulations, or to Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or to
any Group D:1 or E:2 country (or any national of such country) specified in the
then current Supplement No. 1 to part 740, or, in violation of the embargo
provisions in Part 746, of the U.S. Export Administration Regulations (or any
successor regulations or supplement), except in compliance with and with all
licenses and approvals required under applicable export laws and regulations,
including without limitation, those of the U.S. Department of Commerce.
7. General.
This Agreement will be governed by the laws of the State of California and any
applicable federal law or Postal Regulations. This Agreement may only be
modified by a license addendum which accompanies this License or by a written
document which has been signed by both you and Xxxxxx.xxx. Should you have any
questions concerning this Agreement, or if you desire to contact Xxxxxx.xxx for
any reason, please write:
Xxxxxx.xxx Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
B-3
EXHIBIT C
XXXXXX.XXX'S TRADEMARKS
-----------------------
1. "S" Design
2. "S" Design with "Internet Postage"
3. "StampFX"
4. "xxxxxx.xxx"
5. "Stamps for Home"
6. "Stamps for Office"
7. "Stamps for Networks"
8. "Stamps2000"
9. "Essurance"
10. "Postage Server"
* Free Postage Logo and trademark to be provided by Xxxxxx.xxx
C-1
EXHIBIT D
SOFTWARE PROGRAMS
-----------------
1. USPS approved Xxxxxx.xxx software
