NETSCAPE COMMUNICATIONS CORPORATION
PROFESSIONAL SERVICES AGREEMENT
AGREEMENT NO._________________
This Professional Services Agreement (the "Agreement") is entered into
by and between Netscape Communications Corporation, a Delaware corporation
("Netscape"), and Xxxxxxxx Associates, Inc. ("Customer"), effective as of
the date of Netscape's execution ("Effective Date").
1. DEFINITIONS. For purposes of this Agreement, the terms set forth below
shall have the meanings specified in this Section 1:
(a) The term "Innovations" means all inventions, improvements, works of
authorship and other innovations of any kind, including, without limitation,
any improvements or modifications to the Products, that Netscape, or
personnel working for or through Netscape, may make, conceive, develop or
reduce to practice, alone or jointly with others, in the course of performing
the Services or as a result of such Services, whether or not they are
eligible for patent, copyright, trademark, trade secret or other legal
protection.
(b) The term "Products" means all Netscape proprietary computer software
programs and related materials, documentation and information as the same exist
on the date hereof, and as changed or modified hereafter. Customer's right to
use the Product(s) will be subject to the terms and conditions of the applicable
Netscape license agreement(s) governing the Product(s).
(c) The term "Confidential Information" means information or data,
including, without limitation, computer programs, code, algorithms, names and
expertise of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other technical,
business, financial and product development plans, forecasts and strategies,
furnished to one party by the other hereunder. All Confidential Information
disclosed in tangible form shall be marked "confidential" or otherwise contain a
proprietary legend, and all Confidential Information disclosed orally or
otherwise in intangible form shall be designated as confidential at the time of
disclosure.
(d) The term "Services" means those services set forth in a Proposal,
including, without limitation, installation, training, consulting and/or
development services, and any warranty services performed by Netscape pursuant
to Section 7(c) hereof.
(e) The term "Specifications" means those functional and/or technical
specifications, if any, set forth in the applicable Proposal or developed during
the course of performance of Services as to any Innovations to be developed in
connection with the performance of Services.
(f) The term "Proposal" means an addendum to this Agreement, in
substantially the form of Exhibit A attached hereto, that is executed by
Customer and Netscape and sets forth a description of the Services.
2. SERVICES AND STATEMENTS OF WORK. Netscape agrees to use commercially
reasonable efforts to perform or cause to be performed for Customer the Services
described in Proposals that may from time to time be executed by Customer and
Netscape. Each Proposal shall, when executed by Customer and Netscape, form a
part of this Agreement and be subject to the terms and conditions set forth
herein. Customer shall advise Netscape in writing of the individuals with whom
Netscape consultants will interface for each Proposal. Customer and Netscape
shall develop appropriate procedures to assure timely and appropriate
coordination of efforts. Such appropriate procedures shall include, among
other things, detailed task level project plans (including appropriate
milestones and deliverables) accepted in writing by the parties, project
management approach, staffing, escalation
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policy and procedure, project status tracking and reporting, and acceptance and
testing criteria. Customer shall provide such information and assistance as is
reasonably required to permit Netscape to complete each Proposal.
3. PAYMENTS; TAXES. Unless otherwise specified in the applicable Proposal,
all Services shall be provided on a time and materials basis at Netscape's
then current fees and charges therefor. Netscape's standard hourly billing
rates for professional services are set forth in Netscape's published billing
rate schedule and are subject to change without prior notice to Customer. In
addition, Customer shall reimburse Netscape for all out-of-pocket expenses
incurred by Netscape in connection with the performance of the Services,
including, without limitation, travel, lodging, meals and other incidental
expenses. Netscape shall invoice Customer on a monthly basis for all
Services, reimbursements and other payments due under this Agreement and any
Proposal and, unless otherwise specified in the applicable Proposal, Customer
shall pay such invoiced amounts within thirty (30) days of the date of
invoice. Customer agrees to pay interest at the rate of one percent (1%) per
month (or, if less, the maximum amount permitted under applicable law) for
all amounts not paid within thirty (30) days from the date of invoice. In
addition to all charges specified in this Agreement and each Proposal,
Customer shall pay or reimburse Netscape for all federal, state, local, or
other taxes, including, without limitation, sales, use, excise and property
taxes, or any amounts levied in lieu thereof, based on charges set forth in
this Agreement or any Proposal; provided, that Customer shall have no
responsibility for taxes based on Netscape's net income.
4. TERMINATION. Customer or Netscape may terminate this Agreement and/or
any Proposal at any time upon sixty (60) days advance written notice to the
other party. In the event either party shall fail to perform its obligations
pursuant to this Agreement and/or any Proposal and such failure shall
continue for a period of thirty (30) days (or fifteen (15) days with respect
to a breach by Customer of any obligation to pay or reimburse Netscape for
amounts due hereunder and/or any Proposal) following written notice from the
other party, this Agreement and/or any Proposal may be terminated by such
party by its giving a notice of termination to the breaching party. Notice
of termination of any Proposal shall not be considered notice of termination
of this Agreement unless specifically stated in the notice; provided,
however, that any termination of this Agreement shall automatically terminate
all uncompleted Proposals. Customer shall pay Netscape for all services
performed and costs incurred up through the termination date. Termination
shall be Customer's sole and exclusive remedy for delay or failure of
Netscape to complete a Proposal. The provisions of Sections 3, 5, 6, 8, 9
and 10 shall survive any termination of this Agreement and govern any
completed Proposal.
5. PROPRIETARY RIGHTS.
(a) OWNERSHIP OF INNOVATIONS. Customer agrees that all Innovations
shall be the property of Netscape and hereby assigns all of its rights in the
Innovations and in all related patents, patent applications, copyrights, mask
work rights, trademarks, trade secrets, rights of priority and other
proprietary rights to Netscape. Customer acknowledges that Netscape, in its
sole discretion, shall have the right to license any Innovation, and/or
incorporate any Innovation into the Products, for use by other licensees or
customers of Netscape. At Netscape's request and expense, Customer shall
assist and cooperate with Netscape in all reasonable respects and shall
execute documents, give testimony and take further acts as reasonably
requested by Netscape to acquire, transfer, maintain and enforce patent,
copyright, trademark, mask work, trade secret and other legal protection for
the Innovations. Customer hereby appoints the officers of Netscape as in
existence from time to time as its attorneys-in-fact to execute documents on
its behalf for this limited purpose.
(b) LICENSE OF INNOVATIONS. In the event that Netscape is required to
develop or develops Innovations pursuant to any Proposal, Customer shall have
the nonexclusive, royalty-free and nontransferable right to use such
Innovations solely for Customer's own internal use and not for distribution
or resale to third parties. Such license includes the right for Customer to
modify any Innovation solely for the purpose of maintenance and support
thereof.
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6. MAINTENANCE AND SUPPORT. Except as provided in this Section 6, Customer
agrees that Netscape shall be under no obligation to maintain or support any
Innovations. In the event that Netscape shall determine to include and
maintain any Innovation as part of the Products which it licenses and
maintains for its general licenses. Netscape agrees to provide Customer with
maintenance and support as to such Innovation on the same terms and
conditions as Netscape supports the Products for the benefit of its general
licenses. Netscape is not responsible for obsolescence of any Innovation
that may result from changes in Customer's requirements or modifications or
updates to the Products. Netscape assumes no responsibility for the use of
superseded, outdated or uncorrected versions of any Innovation.
7. LIMITED WARRANTY.
(a) LIMITED WARRANTY. Netscape hereby represents and warrants to Customer that
(i) the Services will be performed in a good and workmanlike manner; and (ii)
with respect to any innovation for which Specifications are set forth in the
applicable Proposal, for a period of ninety (90) days commencing on the date
that such Innovation is delivered by Netscape to Customer, such Innovation, when
properly installed and/or used, shall materially conform to the functional
and/or technical criteria set forth in the applicable Specifications.
(b) DEFECTS NOT COVERED BY WARRANTY. Netscape shall have no obligations
under the limited warranty set forth in Section 7(a)(ii) to the extent that
the failure of any Innovation to materially conform to the functional and/or
technical criteria set forth in the applicable Specifications is caused by:
(a) the incorporation, attachment or otherwise engagement of any attachment,
feature, program, or device, other than by Netscape, to such Innovation, or
any part thereof; or (b) accident; transportation; neglect or misuse;
alteration, modification, combination with materials not supplied by
Netscape, or enhancement of such Innovation other than by Netscape; failure
to provide a suitable installation environment; use of supplies or materials
not meeting specifications; use of such Innovation for other than the
specific purpose for which such Innovation is designed; or use of such
Innovation on any systems other than the specified hardware platform for such
Innovation.
(c) SOLE AND EXCLUSIVE REMEDY. Netscape shall, as Customer's sole and
exclusive remedy and Netscape's sole and exclusive obligation under the
limited warranties set forth in Section 7(a), use commercially reasonable
efforts to correct any failure of an Innovation to materially conform to the
functional and/or technical criteria set forth in the applicable
Specifications; provided, that Netscape's obligation to correct any such
failure pursuant to this Section 7(c) is subject to receipt by Netscape from
Customer, within ninety (90) days from the date that such Innovation was
first delivered by Netscape to Customer, of written notice that sets forth
such failure of the Innovation to materially conform to the functional and/or
technical criteria set forth in the applicable Specifications and such other
information as is reasonably necessary to permit Netscape to verify and
reproduce such failure.
(d) NO OTHER WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 7,
NETSCAPE MAKES NO OTHER WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, AS
TO ANY OTHER MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF
THE SERVICES, PRODUCTS OR ANY INNOVATIONS DEVELOPED HEREUNDER, THEIR
MERCHANTABILITY, THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THEIR
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, THAT ANY PRODUCT OR INNOVATION IS
ERROR-FREE OR THAT OPERATION OF ANY PRODUCT OR INNOVATION WILL BE SECURE OR
UNINTERRUPTED.
8. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE
LAW, NETSCAPE'S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES FROM ANY CAUSE
WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR
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TORT OR OTHERWISE, SHALL BE LIMITED TO THE FEES RECEIVED BY NETSCAPE FROM
CUSTOMER FOR SERVICES RENDERED PURSUANT TO THE PROPOSAL GIVING RISE TO
CUSTOMER'S CLAIM FOR DAMAGES. IN NO EVENT SHALL NETSCAPE BE LIABLE FOR
DAMAGES RESULTING FROM LOSS OF DATA, PROFITS OR BUSINESS, USE OF PRODUCTS OR
INNOVATIONS, FAILURE OF THE PRODUCTS OR INNOVATIONS TO PROVIDE SECURITY, OR
FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION
WITH THIS AGREEMENT, THE SERVICES OR ANY INNOVATIONS PROVIDED HEREUNDER EVEN
IF NETSCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. Each party shall (i) hold all Confidential
Information of the other party in confidence and take all necessary
precautions to protect such Confidential Information (including, without
limitation, all precautions such party employs with respect to its own
confidential materials of a similar nature), (ii) not divulge any such
Confidential Information of the other party or any information derived
therefrom to any third person except to its employees or independent
contractors that have a need to know such information to further the
permitted use thereof, that have entered into appropriate written agreements
sufficient to comply with the terms hereof and that are informed of the
non-disclosure obligations contained herein, (iii) not make any use
whatsoever at any time of such Confidential Information of the other party
except to the extent necessary to exercise any right or license granted
under, or perform any obligations pursuant to, Section 5(b), (iv) not remove
or export any such Confidential Information of the other party from the
country of such party, and (v) not copy (except as reasonably necessary to
exercise the rights pursuant to Section 5(b) with respect to Customer and as
reasonably necessary in connection with the performance of the Services with
respect to Netscape) or reverse engineer; reverse compile or attempt to
derive the composition or underlying information of any Confidential
Information of the other party. The foregoing obligations shall survive for
a period of three (3) years from the date of disclosure of the Confidential
Information. Without granting any right or license, the foregoing obligations
shall not apply to the extent that the receiving party can demonstrate that
such Confidential Information of the other party (A) is in the public domain
and is available at the time of disclosure or which thereafter enters the
public domain and is available through no improper action or inaction by the
receiving party or any affiliate agent or employee of the receiving party, or
(B) was in its possession or known by the receiving party prior to receipt
from the disclosing party, or (C) was rightfully disclosed to the receiving
party by another person without restriction, or (D) is independently
developed by the receiving party without access to such Confidential
Information of the disclosing party, or (E) is required to be disclosed
pursuant to any statutory or regulatory authority, provided the disclosing
party is given prompt notice of such requirement and the scope of such
disclosure is limited to the extent possible, or is required to be disclosed
by a court order, provided the disclosing party is given prompt notice of
such order and provided the opportunity to contest it. Information shall not
be deemed known to such party or publicly known for purposes of the above
exceptions (x) merely because it is embraced by more general information in
the prior possession of such party or others, or (y) merely because it is
expressed in public material in general terms not specifically the same as
the Confidential Information. The terms of confidentiality under this
Agreement shall not be constructed to limit either party's right to
independently develop or acquire products without use of the other party's
Confidential Information. Further, either party shall be free to use for any
purpose the residuals resulting from access to or work with such Confidential
Information, provided such party shall maintain the confidentiality of the
Confidential Information as provided herein. The term "residuals" means
information in nontangible form which may be retained by persons who have had
access to the Confidential Information, including ideas, concepts, know-how
or techniques contained therein. Neither party shall have any obligation to
limit or restrict the assignment of such persons or to pay royalties for any
work resulting from the use of residuals. However, the foregoing shall not be
deemed to grant to either party a license under the other party's copyrights
or patents.
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(b) RETURN OF CONFIDENTIAL INFORMATION. Immediately upon the termination or
expiration of the Agreement and/or any Proposal, the receiving party will return
to the disclosing party all Confidential Information of the disclosing party
relating to the termination and all documents or media containing any such
Confidential Information and any and all copies or extracts thereof.
(c) CONFIDENTIALITY OF AGREEMENT. Except (i) to the extent required by law,
(ii) to assert its rights hereunder or (iii) for disclosures to its own
employees and independent contractors on a "need to know" basis, neither
party shall disclose the terms of this Agreement or the subject matter hereof
without the prior written consent of the other party, which consent shall
not be unreasonably withheld or delayed.
(d) INJUNCTIVE RELIEF. Each party expressly agrees that monetary damages would
be inadequate to compensate the other for any breach of any provision of Section
9, that any such breach or threatened breach of Section 9 will cause irreparable
injury to the other party and that, in addition to any other remedies that may
be available, at law or in equity, the other party shall be entitled to obtain
injunctive relief against the threatened breach of any provision of Section 9 or
the continuation of any such breach without the necessity of proving actual
damages.
10. GENERAL
(a) AMENDMENT; WAIVER. Neither this Agreement or any Proposal may be amended
except by a written notice signed by an authorized representative of Netscape
and Customer. No purchase order or instrument issued by Customer in connection
with the Services shall be binding upon Netscape. The waiver by either party of
any of its rights hereunder or under any Proposal shall not be construed as a
waiver of any subsequent breach.
(b) NOTICE. Unless otherwise specifically provided, all notices required or
permitted under this Agreement shall be in writing and in English and may be
delivered personally, or sent by facsimile or air mail, return receipt
requested, addressed as follows and shall be deemed delivered upon receipt:
If to Netscape: Netscape Communications Corporation
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Legal
Facsimile: 000-000-0000
If to Customer: Sent to the address or facsimile set forth under
Customer's name on the signature page hereto.
(c) SUCCESSORS AND ASSIGNS. All terms and conditions of this Agreement and each
Proposal shall be binding upon and inure to the benefit of the parties hereto,
and to their successors and assigns, except that Customer may not assign or
otherwise transfer any of its rights or obligations under this Agreement or any
Proposal without Netscape's prior written consent.
(d) GOVERNING LAW AND JURISDICTION. This Agreement and each Proposal will be
governed by and construed in accordance with the laws of the State of
California, without reference to conflicts of law principles, except to the
extent that United States federal law preempts California law, in which case
United States federal law (including, without limitation, copyright, patent and
trademark law) will apply. This Agreement shall not be governed by the United
Nations Convention of Contracts for the International Sale of Goods, the
application of which is hereby expressly excluded. In any legal action relating
to this Agreement, Customer agrees (i) to the exercise of jurisdiction over it
by a state or federal court in Santa Xxxxx County, California; and (ii) that if
Customer brings the action, it shall be instituted in one of the courts
specified in (i) above.
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(e) ENTIRE AGREEMENT; COUNTERPARTS. This Agreement contains the entire
understanding of the parties as to the subject matter hereof and supersedes all
prior understandings of the parties, whether oral or written. This Agreement
may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. If there is a discrepancy between any
provision of this Agreement and a Proposal, the Proposal shall prevail.
(f) SEVERABILITY. If a court finds any provision of this Agreement invalid or
unenforceable as applied to any circumstance, that provision shall be enforced
to the maximum extent permitted by law, and the other provisions, and that
provision as applied to other circumstances, will remain in full force and
effect.
(g) FORCE MAJEURE. Both parties shall be excused from performance under this
Agreement and any related Proposal for any period to the extent that a party
is prevented from performing any obligation, in whole or in part, as a result
of causes beyond its reasonable control and without its negligent or willful
misconduct, including without limitation, acts of God, natural disasters, war
or other hostilities, labor disputes, civil disturbances, governmental acts,
orders or regulations, third party nonperformance, or failures or
fluctuations in electrical power, heat, light, air conditioning or
telecommunications equipment. In the event that such nonperformance continues
for a period of sixty (60) days or more, either party may terminate either
this Agreement or a related Proposal by giving ten (10) days written notice
to the other. If either party exercises its option to terminate, Customer
shall pay for any Services and/or expenses rendered or incurred by Netscape
prior to the termination date.
(h) RELATIONSHIP OF PARTIES. The parties are independent contractors and are not
employees, agent or legal representatives of the other party. Neither party is
authorized to bind the other party, act as an agent for the other party or
otherwise act in the name of or on behalf of the other party.
(i) U.S. GOVERNMENT RESTRICTED RIGHTS. The Innovations, if any, are provided
with RESTRICTED RIGHTS. Use, duplication, or disclosure by the 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 at 48 CFR 5.2227-19, as applicable.
Contractor/manufacturer is Netscape Communications Corporation, 000 Xxxx
Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
(j) NON-SOLICITATION. Customer acknowledges that Netscape provides a valuable
service by identifying and providing personnel to perform the Services.
Customer further acknowledges that Customer would receive substantial additional
value, and Netscape would be deprived of the benefits of its work force, if
Customer were to directly hire Netscape's personnel after they have been
introduced to Customer by Netscape. Without the prior written consent of
Netscape, Customer shall not solicit, employ or otherwise retain the services of
any personnel of Netscape who are or have been assigned to perform Services
hereunder for a period terminating one (1) year after the date of completion of
the most recent Proposal.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by duly authorized representatives, effective as of
the Effective Date.
NETSCAPE COMMUNICATIONS CUSTOMER
CORPORATION
By: /s/ JR Hampton By: /s/ Xxxxxxxx X. Xxxxxx
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Signature Signature
Name: JR Hampton Name: Xxxxxxxx X. Xxxxxx
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Print or Type Print or Type
Title: VP WWPS Title: President, Xxxxxxxx Associates, Inc.
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Date: 7-30-96 Date: July 8, 1996
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Address: 000 00xx Xxxxxx Xxxx
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Xxxxxxx, XX 00000
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Facsimile: 000-000-0000
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