EXHIBIT 10.21
DISTRIBUTOR AGREEMENT
This Distributor Agreement (the "Agreement") is made as of this 31st
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 Seiko Instruments
USA, Inc., a California corporation, with its principal place of business at
0000 Xxxxxxxx Xx., Xxx Xxxx, XX 00000 (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.
-----------
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
---------
Agreement.
"Xxxxxx.xxx" has the meaning given to that term in the preamble to
----------
this Agreement.
"Business Day" means any weekday, Monday through Friday, excluding
------------
national holidays.
"Confidential Information" has the meaning given to that term in
------------------------
Section 8.4 of this Agreement.
"Customers" means end-user licensees of Software.
---------
"Distributor" has the meaning given to that term in the preamble of
-----------
this Agreement.
"Disputes" has the meaning given to that term in Section 17.4(i).
--------
"Documentation" means the user manuals and other documentation
-------------
provided by 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 Agreement.
"Exception" has the meaning given to that term in Section 11.
---------
"Excess Warranty" has the meaning given to this term in Section 12.
---------------
"Logo Program" has the meaning given to this term in Section 6.7.
------------
1
"Materials" has the meaning given to this term in Section 8.1.
---------
"OEM" means original equipment manufacturer.
---
"Service Fee Revenues" has the meaning given to this term in Section
--------------------
5.2.
"Software" means (i) the object code version of Xxxxxx.xxx's software
--------
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.
"Term" has the meaning given to that term in Section 16.1.
----
"Trademarks" means all then-current names, marks and designations
----------
used by Xxxxxx.xxx.
"Warranty Period" has the meaning given to that term in Section 9.1.
---------------
2. APPOINTMENT OF DISTRIBUTOR.
--------------------------
2.1 Grant to Distributor. Subject to all the terms and conditions of
--------------------
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 solely with Distributor's
products and not sold.
2.2 Software License. Subject to all the terms and conditions of this
----------------
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, 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.
-----------------------------------
3.1 Distribution of Software. Distributor shall use its best efforts
------------------------
to distribute Software to Customers pursuant to the provisions set forth in
Exhibit A.
3.2 Copying/Reverse Engineering. In no event shall Distributor use,
---------------------------
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) attempt to disable any security
devices or codes incorporated in Software, or (v) allow or assist others to do
any of the foregoing.
2
3.3 Distributor's Procurement of USPS Approval. Distributor must
------------------------------------------
obtain final US Postal Service ("USPS") certification and approval on or prior
to sixty (60) 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, 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 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 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 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:I 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.
-----------------------
4.1 Delivery. Xxxxxx.xxx shall deliver a master copy of all Software
--------
to 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.
3
5. PRICES, PAYMENTS, AND PAYMENT TERMS.
-----------------------------------
5.1 Distributor's Prices to Customers. Distributor shall provide or
---------------------------------
make 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, Xxxxxx.xxx shall pay Distributor a quarterly fee equal to [***]* of
all Service Fee Revenues received by Xxxxxx.xxx attributable to purchases by
Customers using Software; provided that if any such Customer previously 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.
-------------------------
6.1 Distributor's General Undertaking, Representation, and Warranty.
---------------------------------------------------------------
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, 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
--------
that all advertisements and promotional materials, packaging and anything else
----
bearing a Trademark shall identify Xxxxxx.xxx as the Trademark owner and
Software manufacturer; provided further that any use of the Trademarks shall be
----------------
governed by Section 8.3.
6.3 Marketing Materials. Xxxxxx.xxx agrees to provide to
-------------------
Distributor, at 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, 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
termination of this Agreement. Distributor may develop its own promotional
materials for Software, provided that Distributor shall submit any such
-------------
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.
---------
(i) Hypertext Links. If Distributor has a World Wide Web
---------------
site ("Web site"), Distributor shall establish a hypertext link to Xxxxxx.xxx's
Web site within thirty (30) days of the
____________________
* [***]Confidential treatment has been requested for the bracketed
portions. The confidential portion has been omitted and filed separately with
the Securities and Exchange Commission.
4
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 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 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, 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, 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
Stamps. com, (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 with respect to such
logos. The logos used in the Logo Program shall be deemed Trademarks for all
purposes of this Agreement, including the license granted by Xxxxxx.xxx in
Section 8.3.
5
7. INSTALLATION AND SUPPORT. Xxxxxx.xxx shall be solely responsible for
------------------------
providing Customers with installation, maintenance and technical integration
support with respect to Software. Distributor shall immediately refer all of the
Distributor's customers who contact the Distributor via telephone regarding
technical support for the Software to xxxxxx.xxx technical support department
all other technical support requests to the Distributor received via mail,
email, or fax, from the Distributor's Customers shall be forwarded to xxxxxx.xxx
within no more than twenty-four (24) hours or one (1) Business Day, whichever
period is longer.
8. PROTECTION OF PROPRIETARY RIGHTS.
--------------------------------
8.1 Acknowledgment of Proprietary Materials. Distributor hereby
---------------------------------------
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 copyright, trademark and other proprietary notices of Xxxxxx.xxx affixed to
or displayed on Software and Documentation will not be removed, obscured or
modified.
8.3 Xxxxxx.xxx Trademarks. Distributor acknowledges that Xxxxxx.xxx
---------------------
is the 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
-------------
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.
8.4 Confidential Information. Distributor hereby agrees to hold any
------------------------
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
6
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.
--------
9.1 Limited Warranty of Performance. Xxxxxx.xxx warrants to
-------------------------------
Distributor 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
----------------
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 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. 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.
10. LIMITATION OF LIABILITY; INJUNCTIVE RELIEF.
------------------------------------------
10.1 No Consequential Damages; Limitation of Liabilities. IN NO EVENT
---------------------------------------------------
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
7
DISTRIBUTOR WITH RESPECT TO THE SPECIFIC ITEMS OF SOFTWARE GIVING RISE TO SUCH
CLAIM.
10.2 Injunctive Relief. Distributor acknowledges that any breach of
-----------------
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.
---------------------------------------
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
-------------
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 programs 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
Stamps. com 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.
-----------------------
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 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 action and
all negotiations for its settlement or compromise; and, provided further that no
-----------------
cost or expense shall be incurred for the account of Distributor without
Distributor's prior written consent.
8
13. REPORTS AND RECORDS.
-------------------
13.1 Reports. Distributor shall keep complete records concerning the
-------
number of copies of Software provided with Distributor's products, 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 with the Distributor's products, or downloaded by, Customers,
as the case may be. Distributor shall also provide as part of this report the
name and location of all Distributor's Customers who completed the Distributor's
product registration.
13.2 Audit. Distributor agrees to maintain copies of all documentation
-----
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 to have access to such documentation at
Distributors 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'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 such
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.
-----------------------
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.
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 of two (2) years. 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
9
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
3.4 hereof
16.3 Termination for Convenience. Xxxxxx.xxx may terminate this
---------------------------
Agreement at any time with or without cause upon thirty (30) days' prior written
notice to Distributor. 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 one hundred and twenty (120) days
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, 3.8, 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 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
10
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 Law. 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
--------------
problem 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 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
11
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, the 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
by the recipient's 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
12
With a copy to: Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
To Distributor: Seiko Instruments USA Inc.
0000 Xxxxxxxx Xx.
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
With a copy to: ___________________________________________
___________________________________________
___________________________________________
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:
SEIKO INSTRUMENTS USA INC.
By:_________________________________
Name:_______________________________
Title:______________________________
13
EXHIBIT A
DISTRIBUTION OBLIGATIONS
------------------------
Distributor shall:
1. obtain USPS certification in accordance with Section 3.4 of this Agreement
prior to distributing the Software with any of Distributor's products.
2. apply the Xxxxxx.xxx "Free Postage" logo (the "Logo") on the external
packaging of all Distributor products, including all retail and catalog
stock keeping units ("SKUs"), with which the Software is bundled in
accordance with this Agreement. The Logo shall be applied in accordance
with logo usage guidelines to be provided under separate cover by
Xxxxxx.xxx from time to time during the Term.
3. promote the Software and the Logo in all print media advertising and other
forms of media advertising, when advertising space permits, in accordance
with Section 6 of this Agreement and with logo usage guidelines to be
provided under separate cover by Xxxxxx.xxx from time to time during the
Term.
4. bundle and distribute the Software on (a) all Seiko Smart Label Printer CD-
ROMS to be included in all Seiko Smart Label Printer (the "Printer")
product boxes. Any offers for free postage by Distributor must be made in
accordance with Section 6.7 of this Agreement,
5. promote, market, and provide an executable graphical interface for
installation of the Software on the main Seiko SmartLabel Software
Installation Splash Screen.
6. provide end of installation option to end user to install the Software if
the Software is not installed as part of the initial installation of
Printer software, or if the Software was not previously installed on end
user's computer or server.
7. include the Software and "Free Postage" offer in all product offerings to
existing customer base,
8. Distributor shall provide Xxxxxx.xxx the right to direct market the
Software, including e-mail and direct mail, to Distributor's 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.
9. create a hypertext link to Xxxxxx.xxx's World Wide Web site (the
"Xxxxxx.xxx Site") located as of the Effective Date at the uniform resource
locator ("URL") address xxx.xxxxxx.xxx from the home page of Distributor's
---------------
World Wide Web site (the "SeikoSmart Site") and each other page of the
SeikoSmart Site on which a reference to Xxxxxx.xxx, the Software or both
appears.
10. promote Software on the SeikoSmart Site, including the sections of the
SeikoSmart Site that may be accessed by clicking the "Label Printer" and
"Software" buttons on the home page of the SeikoSmart Site, and place a
prominent, easily viewable Logo on all appropriate sections of the
SeikoSmart Site.
11. demonstrate and/or promote the Software with the Printer, and other related
or similar products, at all trade shows attended by Distributor during the
Term.
12. include Xxxxxx.xxx in discussions regarding integration of the Software
into Distributor's Smart Label Printer software program.
14
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;
15
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.
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.
16
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.
17
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 Service"
*Free Postage Logo and trademark to be provided by Xxxxxx.xxx
18
EXHIBIT D
SOFTWARE PROGRAMS
-----------------
11. USPS approved Xxxxxx.xxx software
19
