This Remarketing Agreement ("Agreement") is made this November 15, 1996, by
and between ArcSoft, Inc. ("OEM"), having principal place of business at 0000
Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 and AltaVista, Inc.("Company"), having its
principal place of business at 00 Xxxxxxx Xxxxxx, Xxxxx 0, Xxxxxxxx XX 00000 and
RECITALS
Whereas, AttaVista manufactures computer software that consists of
PHOTOEXPRESS ("Software"). Whereas, ArcSoft, Inc. desires to package
AltaVista's computer software along with other software and computer equipment
(the "OEM Package") and market the OEM Package to consumers.
Now, therefore, in consideration of the foregoing premises and the mutual
covenants in this Agreement, the parties agree as follows:
1. GRANT OF LICENSE
1.1 SOFTWARE. AltaVista hereby grants to ArcSoft a non-exclusive license to
copy and distribute the Software when included as object code in conjunction to
Photolmpression and/or PhotoStudio, to end-users worldwide.
2. ROYALTY. ArcSoft hereby agrees to pay AltaVista a royalty for each
Software transferred or distributed by ArcSoft. The parties agree upon the
following royalty payment structure: $1.50US/unit of licensed PHOTOEXPRESS.
Royalty payments shall be made quarterly as they are shipped. ArcSoft shall
allow AltaVista the right to examine its books and records relating to the
transfer or distribution of PHOTOEXPRESS upon written request of AltaVista and
at reasonable times.
3. PAYMENT. ArcSoft shall make an initial payment of $5,000 upon delivery of
the Golden Master to be applied against the initial 3,333 unit order. Any
additional Royalties shall be paid 30 days following the quarter ArcSoft ships
the 3,334th unit. ArcSoft shall make payment to AltaVista for all Software
purchased under this Agreement net thirty (30) days from the end of each
quarterly shipping report.
3.1 EXPENSES. AltaVista is under no obligation or requirement to reimburse
the ArcSoft for any expenses relating to the development, marketing or sale of
the ArcSoft Packages. Any costs and expenses incurred by ArcSoft shall be the
sole responsibility of ArcSoft. Any costs and expenses incurred by AltaVista
relating to Gold Master CD's, web services, and/or tech support shall remain
that of AltaVista.
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3. 1.1 Should AltaVista cause any event which is considered a material breach
of its obligations under this Agreement which causes ArcSoft undue harm,
financial or otherwise, AltaVista then becomes fully responsible for all
reparations caused by such actions.
4. TECHNICAL SUPPORT
4.1 ALTAVISTA SUPPORT. AltaVista shall provide initial technical support and
training to the ArcSoft's technical personnel relating to PhotoExpress.
4.2 ALTAVISTA SUPPORT TO END USERS. AltaVista shall provide technical support
to the end users for PhotoExpress should basic technical support issues go
beyond the training or resources of ArcSoft's technical support staff.
5. ALTAVISTA LIMITED WARRANTIES
5.1 SOFTWARE WARRANTY. AltaVista warrants that the computer equipment
delivered under this Agreement will be free from defect in materials and
workmanship under normal use and service. ArcSoft, Inc. may pass this warranty
on to end users.
5.2 SOLE WARRANTY. ArcSoft acknowledges and agrees that the provisions of
this Section 5 warranty constitute the sole and exclusive remedy available to it
regarding defective products. Except for the express warranties provided in
this section, all warranties, whether express our implied, all guaranties and
all representations as to performance, including all warranties that, but for
this provision, might arise from the course of dealing or custom of trade and
including all implied warranties of merchantability or fitness for a particular
purpose, with respect to the computer equipment and software furnished by
AltaVista are hereby expressly excluded and disclaimed by AltaVista.
The exclusive remedy of ArcSoft and any end user for breach of the
foregoing warranties shall be to seek repair or replacement of the affected
Software at the expense of AltaVista.
6. INDEMNIFICATION
6.1 BY ALTAVISTA. AltaVista hereby indemnities and holds harmless ArcSoft
from and against any claims, actions, or demands alleging that the computer
equipment or Programs infringe any patent, trademark, copyright, or other
intellectual property right of any third party. ArcSoft shall permit AltaVista
to replace or modify any affected computer equipment or software so to avoid
infringement, or to procure the right for ArcSoft to continue use and
remarketing or such items. If neither or such alternatives is reasonably
possible, the infringing items shall be returned to AltaVista and AltaVista's
sole liability shall be to refund amounts paid, by ArcSoft. AltaVista shall
have no
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obligation for or with respect of claims, actions, or demands alleging
infringement that arise by reason of combination of non-infringing items with
any items not supplied by AltaVista.
6.3 NOTICE REQUIREMENT. The foregoing indemnities are conditioned on prompt
written notice of any claim, action, or demand for which indemnity is claimed;
complete control of the defense and settlement by the indemnifying party; and
cooperation of the other party in such defense.
7. TERMINATION
7.1 TERMINATION. This Agreement may be terminated as follows:
7.1.1 Should either party commit a material breach of its obligations under this
Agreement, or should any of the representations of either party in this
Agreement prove to be untrue in any material respect, the other party may, at
its option, terminate this Agreement, by 120 days' written notice of
termination, that notice shall identify and describe the basis for such
termination. If, prior to expiration of such period, the defaulting party cures
such default, termination shall not take place.
7.1.2 Either party may, at its option and without notice, terminate this
Agreement, effective immediately, should the other party (1) admit in writing
its inability to pay its debts generally as they become due; (2) make a general
assignment for the benefit of creditors-, (3) institute proceedings to be
adjudicated a voluntary bankrupt, or consent of the filing of a petition of
bankruptcy against it; (4) be adjudicated by a court of competent jurisdiction
as being bankrupt or insolvent; (5) seek reorganization under any bankruptcy
act, or consent to the filing or a petition seeking such reorganization, or (6)
have a decree entered against it by a court of competent jurisdiction appoint a
receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency
covering all or substantially all of such party's property or providing for the
liquidation of such party's property or business affairs.
7.1.3 Termination of this Agreement shall not relieve either party of the
obligations incurred under this Agreement, except that Section 8.5 shall survive
termination.
7.1.4 On termination of this Agreement, no additional computer equipment or
software shall be shipped to ArcSoft unless AltaVista is the breaching party.
Otherwise, ArcSoft shall, at AltaVista's option, (1) return to AltaVista all
computer equipment purchased by and delivered to ArcSoft, including all copies,
whereupon AltaVista shall refund amounts paid with respect thereto by ArcSoft;
or (2) dispose of any remaining OEM Packages embodying the computer equipment
and programs obtained from AltaVista in accordance with the requirements of this
Agreement.
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8. GENERAL PROVISIONS
8.1 ASSIGNMENT. Except as set forth in this Agreement, neither this Agreement
nor any rights within it, in whole or in part, shall be assignable or otherwise
transferable by either party without the express written consent of the other
party; any such attempt by either party to assign any of its rights or delegate
any of its duties without the prior written consent of the other party shall be
null and void. Subject to the above, this Agreement shall be binding upon and
inure the benefit of the successors and assigns of the parties hereto.
8.2 WAIVER, AMENDMENT, MODIFICATION. No waiver, amendment or modification,
including by custom, usage of trade, or course of dealing, of any provision of
this Agreement will be effective unless in writing and signed by the party
against whom such waiver, amendment or modification is sought to be enforced.
No waiver by any party of any default in performance on the part of the other
party under this Agreement or of any breach or series of breaches by the other
party of any of the terms or conditions of this Agreement shall constitute a
waiver of any subsequent default in performance under this Agreement or any
subsequent breach of any terms or conditions within. Performance of any
obligation required of a party under this Agreement may be waived only by a
written waiver signed by a duly authorized officer of the other party, that
waiver shall be effective only with respect to the specific obligation described
therein.
8.3 FORCE MAJEURE. Neither party will be deemed in default of this Agreement
of the extent that performance of its obligations, or attempts to cure any
breach, are delayed or prevented by reason of circumstance beyond its reasonable
control, including without limitation fire, natural disaster, earthquake,
accident or other acts of God ("Force Majeure"), provided that the party seeking
to delay its performance gives the other written notice of any such Force
Majeure within 15 days after the discovery, and further provided that such party
uses its good faith efforts to cure the Force Majeure. This Article shall not
be applicable to any payment obligations of either party.
8.4 PROPRIETARY INFORMATION. Each party acknowledges that it may be furnished
with or may otherwise receive or have access to information or material that
relates to past, present or future products, software (including source code and
object code), research development, inventions, processes, techniques, designs
or technical information and data, and marketing plans. (The "Proprietary
Information"). Each party agrees to preserve and protect the confidentiality of
the Proprietary Information and all physical forms, whether disclosed to the
other party before this Agreement is signed or afterward. In addition, a party
shall not disclose or disseminate the Proprietary Information for its own
benefit or for the benefit or any third party unless otherwise provided in this
Agreement. The foregoing obligations do not apply to any information that (1)
is publicly known; (2) is given to a party by someone else who is not obligated
to maintain confidentiality; or (3) a party had already developed prior to the
day this
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Agreement is signed, as evidenced by documents unless, otherwise provided
herein. Neither party shall take our cause to be taken any physical forms of
Proprietary Information (nor make copies of same) without the other party's
written permission. Within three (3) days after the termination of this
Agreement (or any other time at the other party's request), a party shall return
to the other party all copies of Proprietary Information in tangible form.
Despite any other provisions of this Agreement, the requirements of this section
shall survive termination of this Agreement.
8.5 INDEPENDENT CONTRACTOR. Nothing contained in this Agreement will be
deemed to place the parties in the relationship of employer/employee, partners,
or joint venturers. Neither party shall have any right to obligate or bind the
other in any manner. Each party agrees and acknowledges that it shall not hold
itself out as an authorized agent with the power to bind the other party in any
manner. Each party will be responsible for any withholding taxes, payroll
taxes, disability insurance payments, unemployment taxes, and other similar
taxes or charges with respect to its activities in relation to performance of
its obligations under this Agreement.
8.6 CUMULATIVE RIGHTS. Any specific right or remedy provided in this
Agreement shall not be exclusive, but shall be cumulative upon all other
rights and remedies set forth in this Agreement and allowed under applicable
law.
8.7 GOVERNING LAW. This Agreement shall be governed by the laws of the State
of California applicable to Agreements made and fully performed in California by
California residents.
8.8 ENTIRE AGREEMENT. The parties acknowledge that this Agreement expresses
their entire understanding and Agreement, and that there have been no
warranties, representations, covenants or understandings made by either party to
the other except such as are expressly set forth in this Agreement. The parties
further acknowledge that this Agreement or contracts, whether written or oral,
entered into between ArcSoft, Inc. and AltaVista with respect to the matters
expressly set forth in this Agreement.
8.9 COUNTERPARTS. This Agreement may be executed in multiple counterparts,
any of which will be deemed an original, but all of which shall constitute one
and the same instrument.
8.10 ATTORNEY FEES. In the event that either party is required to retain the
services of any attorney to enforce or otherwise litigate or defend any matter
or claim arising out of or in connection with this Agreement, the prevailing
party shall be entitled to recover from the other party, in addition to any
other relief awarded or granted, its reasonable costs and expenses (including
attorneys' fees) incurred in the proceeding.
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8.11 COMPLIANCE WITH LAW. Both parties agree to comply with all applicable
federal, state, and local laws and regulations in performing their duties.
8.12 RECORDS. ArcSoft, Inc. shall maintain for at least 1 year from the date
of creation all records, contracts, and accounts relating to PHOTOEXPRESS
production and distribution), and shall permit examination by authorized
representatives of AltaVista at all reasonable times and at the latter's expense
in order that it may verify compliance of this Agreement.
8.13 SEVERABILITY. In the event that any provision of this Agreement is found
invalid or unenforceable pursuant to judicial decree or decision, the remainder
shall remain valid and enforceable according to its terms. Without limiting the
foregoing, it is expressly understood and agreed that each and every provision
of this Agreement that provides for a limitation of liability, disclaimer of
warranties, or exclusion of damages is intended by the parties to be severable
and independent of any other provision and to be enforced as such. Further, it
is expressly understood and agreed that in the event any remedy in this
Agreement is determined to have failed of its essential purpose, all other
limitations of liability and exclusion of damages set forth herein shall remain
in full force and effect.
8.14 NOTICES. All notices, demands or consents required or permitted in this
Agreement shall be in writing and shall be delivered or mailed certified return
receipt requested to the respective parties at the addresses stated above or at
any other address the party shall specify to the other party in writing. Any
notice required or permitted to be given by the provisions of this Agreement
shall be conclusively deemed to have been received on the day it is delivered to
that party by U.S. Mail with Acknowledgment of Receipt or by any commercial
courier providing equivalent acknowledgment of receipt.
9.1 DEVELOPMENT. Any development which ArcSoft supports specifically for the
advancement of the PHOTOEXPRESS product shall remain an exclusive element within
PHOTOEXPRESS and shall not become available to other AltaVista customers without
the express written consent of ArcSoft. ArcSoft will notify AltaVista of this
exclusivity via written memorandum.
10.1 FREE GOODS. AltaVista hereby authorizes ArcSoft to freely produce and
distribute no more than 1,000 units of PHOTOEXPRESS for marketing and
internal/external testing purposes.
Captions and section headings used in this Agreement are for convenience
only and are not a part of this Agreement and shall not be used in construing
it.
We have carefully reviewed this contact and agree to and accept its terms and
conditions.
We are executing this Agreement as of the day and year first above written.
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First Second Party
By By
TITLE
Date
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Exhibit A
AltaVista Software DESCRIPTION Initial Unit Price
PhotoExpress Multimedia/Web $1.50/unit
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