EXHIBIT 10.19
DISTRIBUTOR AGREEMENT
This Distributor Agreement (the "Agreement") is made as of this 10th day of
December, 1998 (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 Westvaco a Delaware
corporation with its principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 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 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.
"Calendar-Related" refers to date values based on the Gregorian calendar as
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defined in Encyclopedia Britannica, 15th edition, 1982, page 602, and to all
uses of those date values described in the Software documentation.
"Century Compliant" means that the Software satisfies the requirements set
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forth in Section 9.3 below.
"Century Noncompliant" means any failure of the Software to be Century
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Compliant.
"Confidential Information" has the meaning given to that term in Section
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8.4 of this Agreement.
"Customers" means end-user licensees of Software.
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"Date Data" means any Calendar-Related data in the inclusive range January
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1, 1900 through December 31, 2050 that the Software uses in any manner.
"Distributor" has the meaning given to that term in the preamble of this
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Agreement.
"Disputes" has the meaning given to that term in Section 17.4(i).
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"Documentation" means the user manuals and other documentation provided by
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Xxxxxx.xxx for use with Software. Unless expressly excluded, the term "Software"
as used herein shall include the applicable Documentation.
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"Effective Date" has the meaning given to that term in the preamble of this
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Agreement.
"Exceptions" has the meaning given to that term in Section 11.
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"Excess Warranty" has the meaning given to this term in Section 12.
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"Logo Program" has the meaning given to this term in Section 6.7.
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"Materials" has the meaning given to this term in Section 8.1.
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"OEM" means original equipment manufacturer.
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"Service Fee Revenues" has the meaning given to this term in Section 5.2.
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"Software" means (i) the object code version of Xxxxxx.xxx's software
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programs listed in Exhibit D, and (ii) the object code version of any updates,
modifications or revisions to such computer programs provided to Distributor
pursuant to the terms of this Agreement.
"Software License Agreement" means the agreement provided in Exhibit B.
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"System Date" means any Calendar-Related date value in the inclusive range
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from January 1, 1985 through December 31, 2035 (including the transition between
such values) that the Software will be able to use as its current date while
operating.
"Term" has the meaning given to that term in Section 16.1.
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"Trademarks" means all then-current names, marks and designations used by
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Xxxxxx.xxx.
"Warranty Period" has the meaning given to that term in Section 9.1.
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2. APPOINTMENT OF DISTRIBUTOR.
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2.1 Grant to Distributor. Subject to all the 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, exclusive right to market and
distribute copies of Software solely to Customers in the United States who
purchase the Xxxxxx.xxx product through the Office Supply Channel including the
Office Superstores, Office Supply Wholesalers, Office Supply Dealer Buying
Groups, and Office Supply Contract Stationers. Such exclusivity only applies
with respect to the companies listed in Exhibit A, Section B, Number 0Xxxxxx.xxx
may market and distribute the Software and other Xxxxxx.xxx products through
other distributors in the Office Supply Channels discussed above. Furthermore,
this exclusivity is only offered in conjunction and connection with Columbian
Envelopes with the express purpose of cross merchandising and/or bundling
Columbian Envelopes with Xxxxxx.xxx Software and other Xxxxxx.xxx products.
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
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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.
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2.3 Title and Ownership. Distributor hereby acknowledges that all right,
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title and interest in and to Software shall at all times remain that of
Xxxxxx.xxx, including all rights in the nature of copyright, patent, trade-
secret and other intellectual property and proprietary rights with respect to
Software. Distributor shall have no right, title, or interest therein, and
Distributor is not authorized to grant any right or license with respect thereto
except as expressly set forth in, and permitted under, this Agreement.
3. DISTRIBUTOR'S OBLIGATIONS GENERALLY.
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3.1 Distribution of Software. Distributor shall use its best efforts to
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distribute Software to Customers pursuant to the provisions set forth in Exhibit
A.
3.2 Copying/Reverse Engineering. In no event shall Distributor use, 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 Competing Products. Distributor agrees that it does not currently
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represent, distribute or promote any software that competes with any Software.
The Distributor shall conduct its business in a manner that reflects favorably
on Xxxxxx.xxx and its Software and shall not, during the Term, represent,
distribute, promote or otherwise try to sell any software that is used to sell,
purchase or otherwise distribute postage over the Internet without written
consent from Xxxxxx.xxx.
3.4 Software Package; Software License Agreement. Subject to Exhibit A,
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Distributor shall ensure to the best of their ability that each copy of Software
distributed by or through Distributor to Customers shall include all components
of such Software as prepackaged by Xxxxxx.xxx, including, without limitation,
(i) diskettes or other media bearing labels, (ii) Xxxxxx.xxx's end user manuals
and Documentation, Xxxxxx.xxx's Software License Agreement, and (iii) at the
option of Xxxxxx.xxx, advertising and promotional materials supplied by
Xxxxxx.xxx. The parties to each Software License Agreement shall be Xxxxxx.xxx
and the Customer. The terms of the Software License Agreement shall be subject
to change by Xxxxxx.xxx, at its sole discretion, upon reasonable notice to
Distributor. Xxxxxx.xxx shall have the right to add to or discontinue any or all
Software, but only upon thirty (30) days' prior written notice to Distributor.
3.5 Third Party Infringement. Distributor shall notify Xxxxxx.xxx promptly
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of any infringement of any copyrights, Trademarks, or other intellectual
property or proprietary rights relating to any Software. Xxxxxx.xxx may, in its
sole discretion, take or not take whatever action it believes is appropriate in
connection with any such infringement. If Xxxxxx.xxx elects to take any such
action, Distributor agrees to fully cooperate in connection therewith. If
Xxxxxx.xxx initiates and prosecutes any action with respect to infringement of
any copyrights, Trademarks, or other proprietary rights relating to any
Software, Xxxxxx.xxx shall be entitled to retain all amounts (including court
costs and attorneys' fees) awarded by way of judgment, settlement, or compromise
with respect thereto.
3.6 Compliance. Distributor shall ascertain and comply with all applicable
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state, federal and local laws and regulations and standards of industry or
professional conduct, including, without limitation, those applicable to product
claims, labeling, approvals, registrations and notifications, the Internic, the
Internet Assigned Numbers Authority and Internet community standards, and shall
also obtain Xxxxxx.xxx's prior written consent before adding any product claim,
label, instructions, packaging or the like to any copy of Software.
3.7 Export Control. Distributor shall not export or re-export any Software
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outside the United States without Xxxxxx.xxx's express written consent. In the
event such consent is received, Distributor shall comply with the U.S. Foreign
Corrupt Practices Act and all export laws, restrictions, national security
controls and
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regulations of the United States and other applicable foreign agency or
authority, and shall not export or re-export, or allow the export or re-export
of Software, any component of Software, any other product or Confidential
Information or any copy or direct product of any of the foregoing in violation
of any such restrictions, laws or regulations, or to Cuba, Libya, North Korea,
Iran, Iraq, or Rwanda or to any Group D:1 or E:2 country (or any national of
such country) specified in the then current Supplement No. 1 to Part 740, or, in
violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), except
in compliance with and with all licenses and approvals required under applicable
export laws and regulations, including without limitation, those of the U.S.
Department of Commerce.
4. DELIVERY TO DISTRIBUTOR.
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4.1 Delivery. Xxxxxx.xxx shall deliver a master copy of all Software to
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Distributor in a format which shall enable Distributor to provide copies thereof
to Customers. Xxxxxx.xxx shall provide sufficient copies of all Documentation to
Distributor to allow Distributor to include such Documentation to Customers with
Software pursuant to Distributor's obligations as set forth in Exhibit A.
5. PRICES, PAYMENTS, AND PAYMENT TERMS.
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5.1 Distributor's Prices to Customers. Distributor shall provide or make
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available copies of Software free of charge to Customers and shall not charge
any fee or other consideration in connection with the delivery or distribution
of such copies.
5.2 Revenue Sharing. As full consideration for its services hereunder,
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Xxxxxx.xxx shall pay Distributor a quarterly fee equal to [***] of the Service
Fee Revenues paid by the Customer. The percentage paid to Distributor includes
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. Distributor may provide the Software to certain trade or partners to
distribute the Software through such partners' retail store or warehouse,
provided that Xxxxxx.xxx gives prior written approval of any distribution of the
Software through any of Distributor's commerce or trade partners; and provided
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further that Xxxxxx.xxx's total payment obligations under this Section 5.2 must
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not exceed the quarterly fees payable to Distributor. Any and all compensation
payable to such trade or commerce partner shall be payable by Distributor.
6. MARKETING AND ADVERTISING.
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6.1 Distributor's General Undertaking, Representation, and Warranty.
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Distributor represents, warrants, and covenants to Xxxxxx.xxx that all
advertising and marketing materials relating to Software and/or Xxxxxx.xxx that
are developed by Distributor shall be accurate in all respects.
6.2 Distribution of Software. Distributor hereby agrees to advertise,
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market, sell and distribute Software solely as provided in Exhibit A. In its
distribution efforts, Distributor will use the Trademarks, but shall not
represent or imply that it is Xxxxxx.xxx or is a part of Xxxxxx.xxx; provided
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that all advertisements
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[***]Confidential treatment has been requested for the bracketed portions.
The confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
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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
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governed by Section 8.3.
6.3 Marketing Materials. Xxxxxx.xxx agrees to provide to Distributor, at
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no cost to Distributor, such promotional materials for Software in camera ready
or electronic format as Xxxxxx.xxx generally makes available to its resellers
and distributors, including technical specifications, prices, drawings, and
advertisements. Distributor may reproduce such promotional materials as
reasonably required in connection with its promotional, advertising and/or
marketing activities in connection with Software, provided that all copyright,
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trademark and other property markings of Xxxxxx.xxx are reproduced. Such
promotional materials, including all copies and reproductions made by
Distributor, remain the property of Xxxxxx.xxx and, except insofar as they are
distributed by Distributor in the course of its performance of its duties under
this Agreement, must be promptly returned to Xxxxxx.xxx upon the expiration or
termination of this Agreement. Distributor may develop its own promotional
materials for Software, provided that Distributor shall submit any such
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promotional materials to Xxxxxx.xxx for Xxxxxx.xxx's review, and Xxxxxx.xxx
shall have the right to approve or reject any such promotional materials in
Xxxxxx.xxx's sole discretion.
6.4 Web Sites.
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(i) Hypertext Links. Utilizing the future site of
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xxx.XxxxxxxxxXxxxxxxxx.xxx, (the "New Site"), each party shall establish
reciprocal hypertext link to their respective Web sites.. With respect to each
hypertext link, linking users of Distributor's New Site and Xxxxxx.xxx's Web
site, neither party shall alter the look, feel, or functionality of the other
party's Web site and shall not act to prevent the look and feel of the other
party's Web site (including, without limitation, page format, navigational bars,
colors, fonts, each party's trademarks, all hyperlinks appearing on each party's
Web site or, in general, the overall design of the other party's Web site) from
being displayed .
(ii) Responsibilities. Each party shall be solely responsible for
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the development, operation, and maintenance of its Web site and for all
materials that appear on its Web site, including without limitation, (i) the
technical operation of its Web site and all related equipment, (ii) the accuracy
and appropriateness of materials posted on its Web site, and (iii) ensuring that
materials posted on its Web site do not violate any law, rule, or regulation, or
infringe upon the rights of any third party and are not defamatory, obscene or
otherwise illegal. Each party disclaims all liability for all such matters with
respect to the other's Web site.
6.5 Advertising and Public Relations. Distributor may advertise Software
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in appropriate periodicals and in a manner insuring proper and adequate
publicity for Software. Each time Distributor places any such advertising in any
periodical, Distributor shall provide Xxxxxx.xxx with notice (pursuant to
Section 17.8 below) that Distributor has done so, specifying the name and date
of the applicable periodical. Distributor shall engage in public relations
activities to encourage the publication, of articles and other publications
regarding Software.
6.6 Announcements. Within thirty (30) days following the Effective date,
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Xxxxxx.xxx and Distributor shall jointly issue a press release announcing
Distributor's appointment under this Agreement. Thereafter, each party shall
obtain the other party's prior written approval of all press releases that such
party issues with respect to this Agreement and the transactions contemplated by
this Agreement. Distributor also shall obtain Xxxxxx.xxx's prior written
approval of all other press releases that Distributor issues with respect to
Software.
6.7 Logo Program. During the Term, upon mutual agreement of the parties,
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Distributor shall participate in a promotional logo program ("Logo Program") as
follows: Distributor shall be entitled to offer free postage to Customers for a
period of up to twelve months from the Effective Date; provided that, (a) the
amount of free postage to be given to any Customer shall not exceed five dollars
($5), (b) Xxxxxx.xxx shall be entitled to immediately terminate the Logo Program
at its sole discretion. Distributor will only terminate the logo program
effective prior to Distributor's manufacturing process and will not be held
responsible to recall or terminate any
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existing offers already in distribution after the manufacturing process, (c)
Customers shall not be entitled to receive free postage until they have made an
initial purchase of postage from Xxxxxx.xxx (d) Customers shall not be entitled
to receive free postage if they have previously obtained Software (whether from
Distributor or another person), (e) Distributor and Xxxxxx.xxx shall mutually
agree on one or more logos which Distributor shall display on certain packaging
and marketing materials which are generally seen by Customers, which will
include but are 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 color, location
and size and any other relevant criteria with respect to such logos without
written consent granted by Xxxxxx.xxx. 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.
7. INSTALLATION AND SUPPORT.
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Xxxxxx.xxx shall be solely responsible for providing Customers with
installation, maintenance and technical integration support with respect to
Software. Distributor shall notify Xxxxxx.xxx as soon as possible, and within no
more than twenty-four (24) hours or one (1) Business Day, whichever period is
longer, of Distributor's receipt of any Customer request for support or
assistance with respect to Software.
8. PROTECTION OF PROPRIETARY RIGHTS.
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8.1 Acknowledgment of Proprietary Materials. Distributor hereby
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acknowledges that all Software, Documentation and technical support and training
materials provided to Distributor by Xxxxxx.xxx (collectively, the "Materials")
are protected by the copyright laws of the United States and other countries and
that the Materials embody valuable confidential and trade secret information of
Xxxxxx.xxx, the development of which required the expenditure of considerable
time and money by Xxxxxx.xxx.
8.2 Proprietary Markings. Distributor hereby agrees to ensure that all
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copyright, trademark and other proprietary notices of Xxxxxx.xxx affixed to or
displayed on Software and Documentation will not be removed, obscured or
modified.
8.3 Xxxxxx.xxx Trademarks. Distributor acknowledges that Xxxxxx.xxx is the
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owner of all right, title and interest in and to all the Trademarks set forth in
Exhibit C, together with any new or revised names, designs or designations that
Xxxxxx.xxx may adopt to identify it or any Software during the Term, and
Distributor agrees not to adopt or use any of such Trademarks in any manner
whatsoever except as expressly provided in this Agreement.
Xxxxxx.xxx hereby grants Distributor a license during the Term to use the
Trademarks, provided that (i) they are used solely in connection with the
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marketing and distribution of Software and in accordance with Xxxxxx.xxx's
specifications as to style, color and typeface set forth in Exhibit C (ii) such
use shall be subject to prior written approval of Xxxxxx.xxx, which approval
shall not be unreasonably withheld, and, (iii) no other right to use any name or
designation is granted by this Agreement. Upon expiration or termination of this
Agreement, Distributor will take all action necessary to transfer and assign to
Xxxxxx.xxx, or its nominee, any right, title or interest in or to any of the
Trademarks, and the goodwill related thereto, which Distributor may have
acquired in any manner as a result of the marketing and distribution of Software
under this Agreement, and Distributor shall cease using any Trademark.
Distributor hereby agrees to notify Xxxxxx.xxx immediately upon Distributor
gaining knowledge of any infringement or potential infringement of any
Trademark.
Distributor agrees not to apply for registration of any Trademarks anywhere
in the world or for any xxxx confusingly similar thereto. Xxxxxx.xxx may elect
to apply for registration of one or more of the Trademarks anywhere in the world
at its expense, and, in such event, Xxxxxx.xxx shall so notify Distributor and
Distributor shall assist and cooperate with Xxxxxx.xxx in connection therewith.
Distributor also agrees not to use or contest, during or after the term of this
Agreement, any Trademark, name, xxxx or designation used by
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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
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information, materials and data made available to it by Xxxxxx.xxx that
reasonably should be understood to be confidential (collectively, "Confidential
Information"), in confidence and agrees not to use, copy, or disclose, or permit
any of its personnel to use, copy, or disclose the same for any purpose that is
not specifically authorized herein. For the purposes of this Section 8.4, the
terms and conditions of this Agreement and the Materials are Confidential
Information. Xxxxxx.xxx's Confidential Information shall not be deemed to
include any information that (i) is or becomes part of the public domain through
no act or omission of Distributor; (ii) Distributor can establish through
competent written evidence to have been lawfully in Distributor's possession
prior to its disclosure hereunder; (iii) is subsequently acquired by Distributor
from sources under no confidentiality obligation to Xxxxxx.xxx; or (iv)
Distributor can establish through competent written evidence to have been
independently developed by Distributor without reference to the Confidential
Information.
9. WARRANTY.
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9.1 Limited Warranty of Performance. Xxxxxx.xxx warrants to Distributor
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that all Software will, under normal use, conform to the limited warranty
contained in the Software License Agreement applicable to such Software during
the warranty period set forth in such Agreement (the "Warranty Period"). The
foregoing warranty will apply to any version of Software issued by Xxxxxx.xxx
distributed by Westvaco. Provided Xxxxxx.xxx makes available updated software at
no charge for those customers that need to obtain current versions, Xxxxxx.xxx
will assume no responsibility for claims resulting from the distribution of
superseded, outdated, or uncorrected versions of Software. As long as good faith
distribution has been maintained, Xxxxxx.xxx will replace any outdated software
included in the Westvaco Columbian brand promotions and distribution. In no way
is Westvaco held responsible for outdated, changed, updated, or defective
software distributed through Westvaco in behalf of Xxxxxx.xxx.
9.2 Exclusive Remedy for Breach of Warranty to Customer. If a Customer
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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 Century Compliance.
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Xxxxxx.xxx represents that Calendar-Related processing by the Software of
the Date Data or of any System Date will not cause the Software to cease to
operate substantially in accordance with the Software documentation. Xxxxxx.xxx
further represents that all data fields for the Date Data contained in the
Software are four-digit fields capable of indicating century and millennium and
that Xxxxxx.xxx has verified through the testing procedures that no change in
the System Date (including the change from the year 1999 to the year 2000) will
cause the Software to cease to operate substantially in accordance with the
Software documentation. Notwithstanding any provision to the contrary set forth
in this Agreement, Xxxxxx.xxx makes no representation or warranty that the
Software shall be Century Compliant when operating in conjunction with any
computer software, computer firmware, computer hardware, or any combination of
the foregoing supplied by third parties.
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9.4 Exclusive Century Noncompliance Remedy.
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In the event that the Software is Century Noncompliant in any material
respect, Xxxxxx.xxx shall use commercially reasonable efforts to modify or
replace the Software, or applicable component thereof, to correct the Century
Noncompliance. If Xxxxxx.xxx is unable, through the use of commercially
reasonable efforts, to modify or replace the Software to correct the Century
Noncompliance, Xxxxxx.xxx shall pay to Distributor an amount in accordance with
the limitation on liability set forth in Section 10.1 below as Distributor's
sole remedy for Century Noncompliance of the Software.
9.5 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
NONINFRINGEMENT.
10. WARRANTY LIMITATION OF LIABILITY; INJUNCTIVE RELIEF.
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10.1 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 8.4 OR SECTION 11 AND DISTRIBUTOR'S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 BELOW, THE LIABILITY OF EITHER
PARTY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL
NOT EXCEED THE AMOUNT PAID BY XXXXXX.XXX TO DISTRIBUTOR WITH RESPECT TO THE
SPECIFIC ITEMS OF SOFTWARE GIVING RISE TO SUCH CLAIM.
10.2 Injunctive Relief. Distributor acknowledges that any breach of its
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obligations under this Agreement with respect to the proprietary rights or
Confidential Information of Xxxxxx.xxx will cause Xxxxxx.xxx irreparable injury
for which there are inadequate remedies at law, and therefore Xxxxxx.xxx will be
entitled to injunctive relief in addition to all other remedies provided by this
Agreement or available at law.
11. DEFENSE OF INTELLECTUAL PROPERTY CLAIMS.
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If notified promptly in writing of any action (and all prior claims
relating to such action) against Distributor based on a claim that Distributor's
distribution and/or use of Software infringes a third party's United States
patent, 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 such 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
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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, or (iv) Distributor's use after notice of infringement or
misappropriation. Distributor shall indemnify Xxxxxx.xxx and hold it harmless
against any expense, judgment
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or loss for infringement of any patent or other intellectual property right
which results from the exceptions set forth in the immediately preceding
sentence of this Section 11 (collectively, "Exceptions"). No costs or expenses
shall be incurred for the account of Xxxxxx.xxx without the prior written
consent of Xxxxxx.xxx. THE FOREGOING STATES THE ENTIRE LIABILITY OF XXXXXX.XXX
WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER
INTELLECTUAL PROPERTY RIGHTS BY ANY SOFTWARE, OR ANY PART THEREOF, OR BY ITS
OPERATION.
12. DISTRIBUTOR'S INDEMNITY.
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If notified promptly in writing of any action (and all prior claims
relating to such action) against Xxxxxx.xxx based on a claim arising from (i)
infringement of any patent or other intellectual property 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.
13. REPORTS AND RECORDS.
-------------------
13.1 Reports. Distributor shall keep complete records concerning all
-------
copies of Software and/or Xxxxxx.xxx marketing material provided to, or
downloaded by, Distributor's retail or wholesale customers. 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 the Xxxxxx.xxx Software or Xxxxxx.xxx marketing
material provided to, Distributor's retail or wholesale customers.
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 to have access to
such documentation at Distributor's place of business during ordinary business
hours. Distributor agrees to keep for three (3) years after termination of this
Agreement records of all copies of Software provided to or downloaded by
Customers, as the case may be, in each case sufficient to adequately administer
a recall of any Software and to fully cooperate in any decision by Xxxxxx.xxx to
recall, retrieve and/or replace any Software. Xxxxxx.xxx agrees to maintain
copies of all documentation relating to Service Fee Revenues from Customer
purchases using Software distributed by Distributor hereunder. Within fifteen
(15) days after the end of each month, Xxxxxx.xxx shall provide a report to
Distributor setting forth the revenues received by Xxxxxx.xxx for such month
which are attributable to purchases from Customers using such Software. If
requested in writing by Distributor, Xxxxxx.xxx shall permit, at Distributor's
sole expense, Distributor'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
9
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 one (1) year Upon the expiration of such term (or
any renewal term), this Agreement shall automatically renew for additional one
(1) year periods unless either party notifies the other party at least sixty
(60) days prior to the applicable renewal date of its intention to not renew the
Agreement (the initial term and any renewal term shall be collectively referred
to as the "Term").
16.2 Events of Termination.
---------------------
(i) Bankruptcy/Reorganization. Either party may terminate this
-------------------------
Agreement immediately upon written notice to the other party if the other party
becomes insolvent, seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding, proceedings
in bankruptcy or insolvency are instituted against the other party, or a
receiver is appointed, or if any substantial part of the other party's assets is
the object of attachment, sequestration or other type of comparable proceeding,
and such proceeding is not vacated or terminated within thirty (30) days after
its commencement or institution.
(ii) Default. Either party may terminate this Agreement if the other
-------
party commits a material breach of any of the material terms or provisions of
this Agreement and does not cure such breach within thirty (30) days after
receipt of written notice given by the other party. Notwithstanding the
foregoing, Xxxxxx.xxx may immediately terminate this Agreement in the event
Distributor breaches its obligations under Section 2.1, 3.2, 8.3 or 8.4.
(iii) Licenses. Either party may terminate this Agreement immediately
--------
if it or the other party is unable to obtain or renew any permit, license or
other governmental approval necessary to carry on the business contemplated
under this Agreement.
16.3 Termination for Convenience. Either party may terminate this Agreement
---------------------------
at any time with or without cause upon thirty (30) days' prior written notice to
Distributor.
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, 3.7, 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.
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.
10
17. MISCELLANEOUS.
-------------
17.1 Force Majeure. If the performance of any obligation (other than
-------------
payment and confidentiality obligations) under this Agreement is prevented,
restricted or interfered with by reason of war, revolution, civil commotion,
acts of public enemies, blockade, embargo, strikes, outage of the Internet, law,
order, proclamation, regulation, ordinance, demand, or requirement having a
legal effect of any government or any judicial authority or representative of
any such government, or any other act whatsoever, whether similar or dissimilar
to those referred to in this Section 17.1, which is beyond the reasonable
control of the party affected, then the party so affected shall, upon giving
prior written notice to the other party, be excused from such performance to the
extent of such prevention, restriction, or interference, provided that the party
so affected shall use reasonable commercial efforts to avoid or remove such
causes of nonperformance, and shall continue performance hereunder with
reasonable dispatch whenever such causes are removed. The parties agree and
acknowledge that the foregoing shall include Xxxxxx.xxx's failure to obtain any
necessary governmental approval required in connection with the use of any
Software, including without limitation any postal service approval.
17.2 Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties hereto and supersedes all previous negotiations,
agreements and commitments with respect thereto, and shall not be released,
discharged, changed or modified in any manner except by instruments signed by
duly authorized officers or representatives of each of the parties hereto. No
course of prior dealing between the parties and no usage of the trade shall be
relevant to supplement or explain any term used herein. Acceptance or
acquiescence in a course of performance rendered hereunder shall not be relevant
to determine the meaning of these terms and conditions even though the accepting
or acquiescing party has knowledge of the performance and opportunity for
objection.
17.3 Applicable 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. In addition, Xxxxxx.xxx and Distributor
acknowledge and agree that the courts located in such state shall have exclusive
jurisdiction in any action or proceedings with respect to this Agreement,
including the federal district courts located in such state.
17.4 Dispute Resolution. All disputes arising in connection with this
------------------
Agreement shall be resolved as follows:
(i) General Intent. Xxxxxx.xxx and Distributor intend that all
--------------
problems and disputes relating to this Agreement or arising from the
transactions contemplated hereby ("Disputes") shall be resolved through the
procedures of this Section 17.4; provided, however, that neither party shall be
-------- -------
under any obligation to proceed in accordance with this Section 17.4 with
respect to Disputes concerning any alleged breach of Section 2.3, 3.2, 8.1, 8.2,
8.3 or 8.4 of this Agreement, as to which a party may take any legal action in a
court of law or equity (without the necessity of posting any bond) to assert or
enforce a claim that it has against the other party under this Agreement. The
procedures in this Section 17.4 shall not replace or supersede any other remedy
to which a party is entitled under this Agreement or under applicable law.
(ii) Informal Resolution Efforts. Xxxxxx.xxx and Distributor
---------------------------
initially shall attempt to resolve Disputes through informal negotiations
conducted by the president or any vice president of Xxxxxx.xxx and the president
or any vice president of Distributor.
(iii) Mediation. If a Dispute cannot be resolved under subsection
---------
17.4(ii), the Dispute shall be submitted to mediation by written notice of the
party seeking mediation to the other party. In the mediation process, Xxxxxx.xxx
and Distributor shall attempt in good faith to resolve their differences
voluntarily with the
11
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 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 either party 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, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
To Distributor: ______________________
______________________
______________________
Attention: ___________
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 duty authorized representative as of the Effective Date.
XXXXXX.XXX INC.
By:______________________
Name:____________________
Title:___________________
DISTRIBUTOR
_________________________
By:______________________
Name:____________________
Title:___________________
13
EXHIBIT A
A. Distributor obligations under the Agreement are as follows:
1. Distributor shall present retail promotional concepts to Westvaco's
superstore partners (Office Depot and Officemax) and other office products
channel customers mentioned below.
2. Distributor shall offer beta versions of the Xxxxxx.xxx software during
Phase III beta testing with the United States Postal Service using a link
from its website (XxxxxxxxxXxxxxxxxx.xxx).
3. Distributor shall begin development of products in conjunction with new
Internet postage uses such as an IBIP compliant three window envelope. In
the event that Distributor is unwilling or unable to produce such a
compliant envelope, Xxxxxx.xxx has the right to solicit bids from other
envelope manufacturers.
4. Distributor shall have the exclusive right to promote the Xxxxxx.xxx
Internet postage product and services in Columbian's distribution channels.
These channels include: (1) Office Depot, (2) Officemax, (3) Staples, (4)
XX Xxxxxxxx, (5) United Stationers, (6) BPGI, (7) Independent Stationers,
(8) NPA, (9) USOP, (10) XXX, (00) Corporate Express and (12) Boise Cascade.
5. Distributor agrees that designated consumer packages of Columbian brand
product will contain advertising bursts announcing the Xxxxxx.xxx product
offering. Xxxxxx.xxx will supply all materials included in designated
packages at no charge to Westvaco.
B. Xxxxxx.xxx's obligations under this Agreement are as follows:
1. Xxxxxx.xxx shall grant Columbian brand of envelopes and products the
exclusive right to advertise, market and promote Xxxxxx.xxx's products and
services to the following companies in office products superstore,
wholesale, dealer and contract stationer markets: (1) Office Depot, (2)
Officemax, (3) Staples, (4) XX Xxxxxxxx, (5) United Stationers, (6) BPGI,
(7) Independent Stationers, (8) NPA, (9) USOP, (10) XXX, (00) Corporate
Express and (12) Boise Cascade.
2. Xxxxxx.xxx specifically excludes from the Agreement any pre-existing or
future agreements with the Xxxxxxxxxx Company.
3. Xxxxxx.xxx shall at it sole discretion, from time to time, grant Westvaco
at Distributor's expense the opportunity to participate in on-going
Xxxxxx.xxx marketing activities not covered in this contract, such as print
and email advertising campaigns.
4. Xxxxxx.xxx shall not enter into a similar relationship with Quality Park,
Inc., Ampad, Inc., Mailwell, Inc., or Xxxx.
5. Xxxxxx.xxx will track and catalog all customer transactions originating
from promotions executed in conjunction with Distributor using a series of
tracking numbers. These numbers will be either embedded in the software, if
software is distributed, or included in the advertising material provided
to customers. The numbers will be the basis of the reports that Xxxxxx.xxx
will generate as part of Section 13.2. All Distributor's customers
registered with Xxxxxx.xxx must have a tracking number in order for
Distributor to receive credit for such customer. Xxxxxx.xxx will use
reasonable efforts with all it's customers to determine the source of the
customer for Distributor credit.
6. Xxxxxx.xxx will provide the hypertext logo link described in Section 6.4
and will provide to Distributor ongoing advertising/public relations
positioning as a partner on Xxxxxx.xxx Web Site with attention given to
Distributor's brand.
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
