EXHIBIT 10.22
DISTRIBUTOR AGREEMENT
This Distributor Agreement (the "Agreement") is made as of this 30th 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 Xxxxx Xxxxxxxx Office
Products Company, a Nevada corporation having its principal place of business at
00 Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxx 00000 (the "Distributor").
RECITALS
WHEREAS, Xxxxxx.xxx develops and publishes software which enables end-users
to purchase postage stamps 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 via distributor's World Wide Web site ("Web Site") or bundled with
distributor's software products 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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7.4 of this Agreement.
"Customers" means end-user licensees of Software.
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"Disclosing Party" has the meaning given to this term in Section 7.4.
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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 16.4(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 10.
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"Excess Warranty" has the meaning given to this term in Section 11.
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"Logo Program" has the meaning given to this term in Section 5.8.
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"Materials" has the meaning given to this term in Section 7.1.
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"OEM" means original equipment manufacturer.
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"Receiving Party" has the meaning given to this term in Section 7.4
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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 15.1.
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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 8.1.
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2. APPOINTMENT OF DISTRIBUTOR.
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2.1 Grant to Distributor. Subject to all the terms and conditions of this
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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 and
Canada. Notwithstanding Xxxxxx.xxx's grant to Distributor of the right to market
and distribute copies of Software in Canada, Distributor acknowledges and agrees
that Software is not capable of providing Canadian postage and Distributor shall
not represent to any Customer or prospective Customer that Software may be used
for such purpose. 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, non-transferable, 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.
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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, market
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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.
3.3 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) pursuant to 3.3 of
Exhibit A hereto, 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 to
discontinue Software (hereinafter referred to as "Existing Software") after
providing Distributor with written notice of such addition or discontinuance.
Following receipt of such written notice, Distributor shall promptly cease
bundling Existing Software with Distributor's software product(s) and, if
Xxxxxx.xxx requests Distributor to do so, shall cease distributing Distributor's
inventories of Existing Software as soon as reasonably possible following
Distributor's receipt of Xxxxxx.xxx's request. Xxxxxx.xxx shall reimburse
Distributor for the cost to Distributor of all bundles of the Existing Software
and Distributor's software product(s) that remain in Distributor's inventory at
the time that Distributor ceases distribution of such bundled software in
response to Xxxxxx.xxx's request; provided, however, that Distributor shall use
commercially reasonable efforts to salvage and reuse all reusable components of
such bundled software, such as packaging and software media.
3.4 Third Party Infringement. Distributor shall notify Xxxxxx.xxx
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promptly of any infringement of which Distributor becomes aware 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 provide to Xxxxxx.xxx all reasonable cooperation, at Xxxxxx.xxx's expense, 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.
3.5 Export Control. Distributor shall not export or re-export any
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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:1 or E:2 country (or any
national of such country) specified in the
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then current Supplement No. I 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.
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.
5.3 Advertising 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.
5.4 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 Xxxxxxxx.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
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. [***]Confidential treatment has been requested for the bracketed
portions. The confidential portion has been omitted and filed separately with
the Securiti es and Exchange Commission.
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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
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Distributor shall submit any such promotional materials to Xxxxxx.xxx for
Xxxxxx.xxx's review, and Xxxxxx.xxx shall have the right to approve or reject
any such promotional materials in Xxxxxx.xxx's sole discretion.
5.5 Web Sites. Each party shall be solely responsible for the development
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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.
5.6 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 16.7 below) that Distributor has done so, specifying the name and date
of the applicable periodical. Distributor may engage in public relations
activities to encourage the publication, of articles and other publications
regarding Software.
5.7 Announcements. Each party shall obtain the other party's prior
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written approval of all press releases that such party issues with respect to
this Agreement and the transactions contemplated by this Agreement.
5.8 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, (i) the
amount of free postage to be given to any Customer shall not exceed Ten Dollars
($10), (ii) Xxxxxx.xxx, shall be entitled to immediately terminate the Logo
Program at its sole discretion, (iii) Customers shall not be entitled to receive
free postage until they have made an initial purchase of postage from
Xxxxxx.xxx, (iv) Customers shall not be entitled to receive free postage if they
have previously obtained Software (whether from Distributor or another person),
(v) Distributor and Xxxxxx.xxx shall mutually agree on one or more logos which
Distributor shall display on all of its packaging for Software bundled with
Distributor's software product(s) and marketing materials with respect to such
bundled Software which are generally seen by Customers, including but not
limited to external packaging and Web sites, and (vi) 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 7. If Xxxxxx.xxx wishes to have adhesive
"burst" logos externally applied to any packaging for Software bundled with
Distributor's software product(s), Xxxxxx.xxx shall supply such adhesive "burst"
logos to Distributor.
6. 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
Xxxxxx.xxx Software. Distributor shall use all reasonable efforts to notify
Xxxxxx.xxx as soon as reasonably possible of Distributor's receipt of any
Customer request for support or assistance with respect to Software.
7. PROTECTION OF PROPRIETARY RIGHTS.
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7.1 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.
7.2 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.
7.3 Xxxxxx.xxx Trademarks. Distributor acknowledges that Xxxxxx.xxx is
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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
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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. 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 confusingly similar thereto). Distributor
acknowledges and agrees that all use of the Trademarks by Distributor shall
inure to the benefit of Xxxxxx.xxx.
7.4 Confidential Information. Each party (the "Receiving Party") hereby
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agrees to hold any information, materials and data made available to the
Receiving Party by the other party hereto (the "Disclosing Party") that the
Receiving Party should reasonably understand to be confidential (collectively,
"Confidential Information") in confidence and not to use, copy, or disclose, or
permit any of its personnel to use, copy, or disclose the Disclosing Party's
Confidential Information for any purpose that is not specifically authorized
herein. For the purposes of this Section 7.4, the terms and conditions of this
Agreement and the Materials shall be deemed Confidential Information.
8. WARRANTY.
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8.1 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
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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.
8.2 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.
8.3 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. 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.
9. LIMITATION OF LIABILITY; INJUNCTIVE RELIEF.
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9.1 No Consequential Damages; Limitation of Liability. IN NO EVENT SHALL
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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 7.4 AND DISTRIBUTOR'S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 11 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.
9.2 Injunctive Relief. Each party acknowledges that any breach of its
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obligations under this Agreement with respect to the proprietary rights or
Confidential Information of the other party will cause the other party
irreparable injury for which there are inadequate remedies at law and, therefor,
that such other party shall be entitled to injunctive relief, without the
posting of any bond, in addition to all other remedies provided by this
Agreement or available at law or in equity.
10. XXXXXX.XXX'S INDEMNITY.
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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, or arising
from, (i) Distributor's distribution and/or use of Software infringes a third
party's copyright or trademark or misappropriates a third party's trade secret
(if given access by Distributor to any information Distributor has regarding
such alleged infringement), (ii) Xxxxxx.xxx's material breach of this Agreement
gross negligence or willful misconduct, or (iii) Xxxxxx.xxx's failure to comply
with applicable state, federal, and local laws and regulations, industry
standards or rules of 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, 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 Xxxxxx.xxx hereunder and otherwise for any purpose
for which Software was not intended to be used; or (iv) Distributor's failure to
use commercially reasonable efforts to cease reproducing, bundling and/or
distributing Software following Distributor's receipt from Xxxxxx.xxx of notice
of infringement or misappropriation. 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.
11. DISTRIBUTOR'S INDEMNITY.
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Provided that Distributor is notified promptly and in writing of such claim
(and all prior related claims), 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 against
Xxxxxx.xxx 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, (iv) Distributor's gross negligence or willful misconduct, (v)
Distributor's failure to comply with applicable state, federal, and local laws
and regulations, industry standards or rules of 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; or (vi) Distributor's addition to
any copy of Software of any product claim, label, instructions, packaging, or
the like, without Xxxxxx.xxx's prior written consent. Notwithstanding any
provision to the contrary contained in this Agreement, Distributor shall have
sole control of the defense of any such action and all negotiations for its
settlement or compromise; and no cost or expense shall be incurred for the
account of Distributor without Distributor's prior written consent.
12. REPORTS AND RECORDS.
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12.1 Distributor's Reports. Distributor shall keep complete records
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concerning all copies of Software shipped to or downloaded by, Customers, as the
case may be. Within fifteen (15) Business Days of the close of each quarter
during the Term, Distributor shall complete and forward to Xxxxxx.xxx a report
containing a summary setting forth the number of copies of Software provided to,
or downloaded by, Customers, as the case may be.
12.2 Xxxxxx.xxx's Reports. Xxxxxx.xxx is responsible for providing
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revenue share data on registrations received from the Xxxxx registration code.
Xxxxxx.xxx agrees to maintain copies of all documentation relating to Service
Fee Revenues from Xxxxx'x accounts or Customers' downloads of 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 such
Service Fee Revenues.
13. 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.
14. ASSIGNMENT.
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Neither party shall 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 the other party, which shall not be unreasonably
withheld or delayed. By way of example, but not of limitation, a party may
reasonably withhold its written consent to any assignment, transfer or other
disposition of this Agreement to any individual, corporation or other entity
that is a competitor of, or would lead to a conflict of interest with, the party
withholding consent.
15. TERM OF AGREEMENT; TERMINATION.
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15.1 Term. This Agreement shall be effective as of the Effective Date and
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shall have an initial term that commences on the Effective Date and expires on
December 31, 1999. This Agreement shall automatically renew for subsequent terms
of one (1) year, unless either party gives the other party notice of its
intention not to renew this Agreement at least thirty (30) days prior to the
expiration of the then-current term.
15.2 Events of Termination.
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(i) Bankruptcy/Reorganization. Either party may terminate this
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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
9
foregoing, Xxxxxx.xxx may immediately terminate this Agreement in the event that
Xxxxxx.xxx reasonably determines that Distributor has breached its obligations
under Section 2.1, 3.2. 8.3 or 8.4.
15.3 Termination Due to the United States Postal Service. Xxxxxx.xxx may
---------------------------------------------------
terminate this Agreement upon written notice to Distributor if the United States
Postal Service ("USPS") (i) does not approve the Software, or (ii) determines
that the Software may not be used to print postage onto labels because such use
of labels fails to meet the USPS's specifications.
15.4 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, 3.3, 3.7, 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.
15.5 Licenses. Existing 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. 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.
16. MISCELLANEOUS.
-------------
16.1 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 16.1, 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.
16.2 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.
16.3 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
10
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.
16.4 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; provided, however that neither party shall be under
-----------------
any obligation to proceed in accordance with this Section 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 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 or authorized representative of Distributor.
(iii) Mediation. If a Dispute cannot be resolved under subsection
---------
(ii) above, 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 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.
16.5 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.
16.6 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.
11
16.7 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 or to such other addresses as may
be designated by the parties in writing from time to time in accordance with
this Section 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. 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 sendees 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
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: Xxxxx Xxxxxxxx
00 Xxxxxx Xxxxx
Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx
With a copy to: Xxxx Xxxxxxx, Esq.
00 Xxxxxx Xxxxx
Xxxx, XX 00000
16.8 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.
12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duty authorized representative as of the Effective Date.
XXXXXX.XXX, INC.
By:_________________________________
Name: Xxxx X. Xxxxx
Title: President/CEO
DISTRIBUTOR:
XXXXX XXXXXXXX OFFICE PRODUCTS COMPANY
By:_________________________________
Name: Xxxxx X. Xxxxxxx
Title: VP/GM Automation Products
13
EXHIBIT A
DISTRIBUTION OBLIGATIONS
------------------------
Distributor's obligations in connection with its distribution rights under the
Agreement are as follows:
1. Distributor shall promote and make the Xxxxxx.xxx Software available as the
exclusive Internet Postage Software for download from the Software Section
of the Xxxxx Office Products World Wide Web ("Web") Site (the
Xxxxx.xxx/xxxxxxxx uniform resource locator ("URL") address) in which
prospective Customers may download various software products
2. Distributor shall provide Xxxxxx.xxx with preferred positioning and logo
placement in the Xxxxx Software Alliance Section of the Xxxxx Office
Products World Wide Web Site as compared to any other vendor of PC
software, approved by the USPS through which prospective end users may
download postage.
3. From the Effective Date through December 31, 1999, the Software shall be
the exclusive Internet Postage Software that Distributor distributes
through the following methods:
3.1. via downloading by prospective Customers from the Software Section of
the Xxxxx Office Products Web Site;
3.2. automated download capabilities through the installation process of
all (downloaded) Label Pro and Xxxxx Wizard software products;
provided that Xxxxxx.xxx, provides the necessary resources to
Distributor to enable such capabilities; and
3.3. inclusion in a bundle with all Distributor Label Pro software products
sold by Distributor in the retail and commercial distribution
channels.
4. Distributor shall promote Xxxxxx.xxx's "Free Postage" logo on the external
packaging of all Distributor Label Pro products with which the Software is
bundled pursuant to Section 3.3 above, in accordance with the logo usage
guidelines to be provided under separate cover by Xxxxxx.xxx from time to
time during the Term.
5. As soon as reasonably possible after the Effective Date, Distributor shall
provide and maintain a hypertext link to Xxxxxx.xxx's World Wide Web site
(the "Xxxxxx.xxx Site") located as of the Effective Date at the universal
resource locator ("URL") address xxx.Xxxxxx.xxx from the Software Alliance
Section of the Xxxxx Office Products World Wide Web Site.
6. At Xxxxxx.xxx cost and expense, Distributor will provide Xxxxxx.xxx the
right to direct market the Software to selected registered Label Pro and
Wizard users. Distributor shall not grant similar rights to any other
Internet postage software provider during the term of this Agreement.
Distributor shall at all times maintain control over, and have the right to
regulate in its sole discretion Xxxxxx.xxx's access to, Distributor's
customer lists. The promotion, which must be a joint promotion, must be
approved by and executed through Distributor, and Xxxxxx.xxx acknowledges
that it will not have direct access to the identity of registered Label Pro
and Wizard users.
7. During the term hereof Distributor shall not enter into any agreement with
any other vendor of PC software approved by the USPS, through which
prospective end users may download postage, to include or promote such
software products with Xxxxx SKU numbers 5160, 5163, or both.
8. If Xxxxxx.xxx purchases label "starter kits" from Distributor for direct
sale or promotion to consumers, Distributor will negotiate the pricing on
such starter kits in good faith with
Xxxxxx.xxx and will offer Xxxxxx.xxx preferential pricing on such starter
kits. However, if Xxxxxx.xxx does not purchase the "starter kits" then
Distributor will pay a transaction fee to be negotiated in good faith with
Xxxxxx.xxx for such sales by Xxxxxx.xxx to consumers. Upon completion of
the parties' negotiations with respect to such preferential pricing and/or
transaction fee, the parties shall amend this Exhibit A to set forth herein
such preferential pricing and/or transaction fee.
Xxxxxx.xxx's obligations with respect to this Agreement are as follows:
-----------------------------------------------------------------------
1. Within thirty (30) days of the date on which Xxxxxx.xxx receives approval
of the Software from the USPS, Xxxxxx.xxx shall provide to Distributor a
master diskette from which Distributor may copy the Software for
distribution.
2. In order to assist Distributor with the fulfillment of its obligations
under Section 3.2 of this Exhibit A, Xxxxxx.xxx will provide at no charge
the necessary resources to integrate Xxxxxx.xxx Internet Postage software
into the Label Pro main installation splash screen and the installation
software that Distributor maintains at the Distributor Site.
3. Xxxxxx.xxx agrees to explore in good faith the inclusion of Distributor in
promotional and bundling arrangements with partners of Xxxxxx.xxx, among
others, Gateway 2000, Inc. and Dell Computer Corporation.
4. Distributor's branded Laser and Inkjet labels shall be the sole labels that
Xxxxxx.xxx promotes and supports in all label settings and/or preferences
dialogs in Xxxxxx.xxx's Software. Xxxxxx.xxx grants Distributor a first-
right-of-refusal, subject to USPS approval, to produce and supply
additional mailing-related PC laser and inkjet specialty media products
Xxxxxx.xxx plans to market during the term hereof, excluding envelope
products. At any time during the Term, if Distributor does not produce an
Internet postage-related laser or inkjet specialty media product, excluding
envelope products, that meets the then current needs of Xxxxxx.xxx,
Xxxxxx.xxx shall have the right to market products of third-party vendors
that fulfill Xxxxxx.xxx's needs, until such time as Distributor begins to
produce product that meets such needs. Distributor acknowledges and agrees
that Xxxxxx.xxx can provide no guarantees as to whether Customers will use
Distributor's products described above.
5. As soon as reasonably possible after the Effective Date, Xxxxxx.xxx shall
provide and maintain a hypertext link to Xxxxx Software Web Site located as
of the Effective Date at the universal resource locator ("URL") address
xxx.Xxxxx.xxx. from Software Alliance Section of the Xxxxx Office Products
Worldwide Web Site.
6. Xxxxxx.xxx shall use commercially reasonable efforts to make accessible to
end users through the "help" files included in the Software from time to
time and on Xxxxxx.xxx's Software support site on the World Wide Web
Distributor's recommended practices and procedures with respect to the
printing of labels on inkjet and laserjet printers.
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;
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.
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
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"
* "Free Postage" logo and trademark to be provided by Xxxxxx.xxx
EXHIBIT D
SOFTWARE PROGRAMS
-----------------
1. USPS approved Xxxxxx.xxx software
