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*Confidential treatment has been requested with respect to the portions of the
agreement, indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
Exhibit 10.4
ELECTRONIC SOFTWARE DISTRIBUTION AGREEMENT
This Agreement is made and entered into on September 1, 1997 by and between
CyberSource Corporation, a California corporation, located at 000 Xxxxx
Xxxxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxx, XX 00000 ("Electronic Reseller") and
McAfee Software, Inc., a Delaware corporation, located at 0000 Xxxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000 ("Vendor").
BACKGROUND
a) Vendor is the Developer and Owner of all rights (or has a license to sell)
to the Software identified in Exhibit A.
b) Vendor desires to enter into a Distribution Agreement with Electronic
Reseller whereby Electronic Reseller will be responsible for
electronically packaging Vendor's Software and associated Documentation,
and electronically distributing such packaged Software Products to
End-User customers or resellers in accordance with the terms and
conditions of this Agreement.
c) Electronic Reseller desires to obtain the right to electronically package
Vendor's Software and Documentation, and electronically distribute same in
accordance with the terms of this Agreement.
NOW THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS
a) Software: the executable object code for Vendor's software identified
on Exhibit A, including all subsequent versions thereof provided to
Electronic Reseller pursuant to this Agreement.
b) Documentation: all computer readable collateral materials normally
provided from time to time by Vendor to End Users for use of the
Software, that are identified in Exhibit A, and all subsequent
versions thereof provided to Electronic Reseller pursuant to this
Agreement.
c) End-User License Agreement: the computer readable license agreement
attached hereto as Exhibit 8, as modified from time to time, that
governs the use of the Software by End Users, and which is to be
included with each copy of the Software sold by the Electronic
Reseller hereunder.
d) Electronic Reseller Materials: computer readable materials provided
by Electronic Reseller for inclusion in an electronic package
containing the Software, Documentation, and End-User License
Agreement, which materials have been approved in advance, in writing,
by Vendor.
e) Product: a copy of the Software, Documentation, End-User License
Agreement and Electronic Reseller Materials, if any, packaged in
computer readable form together for electronic delivery on
xxxxxxxx.xxx(TM) in accordance with this Agreement.
f) End User: person(s) or entity(ies) that acquires a Product for use
rather than resale or distribution.
g) Vendor Trademarks: the trademarks, trade names, and logos used by
Vendor and identified on Exhibit A.
h) Territory: all countries in the world only via the Internet except
(i) countries to which export or re-export of any Product, or the
direct products of any Product is prohibited by United States law
without first obtaining the permission of the United states Office of
Export Administration or its successor, and (ii) countries that may
be hereafter excluded pursuant to the terms of this Agreement.
2. LICENSE.
A. Rights Granted to Electronic Reseller. Vendor grants Electronic
Reseller a non-transferable, and non-exclusive license and right to:
1. reproduce the Software, Documentation, and the End-User License
Agreement in computer readable form;
2. modify the Documentation to incorporate Electronic Reseller's
name, subject to prior approval of Vendor;
3. package the Software, Documentation, Electronic Reseller
Materials and the End-User License Agreement in a computer
readable manner specified by Vendor.
4. utilize the Vendor Trademarks in connection with the replication
of the Software, packaging and distribution of the Products, in
a manner specified by Vendor; and
5. Distribute the Products to End Users or resellers in the
Territory, subject to the restrictions set forth in this
Agreement.
b. Rights Reserved to Vendor. Electronic Reseller acknowledges that the
Software and Documentation are the property of Vendor or its
licensers and that Electronic Reseller has no rights in the foregoing
except those expressly granted by this Agreement. Nothing herein
shall be construed as restricting Vendor's right to sell, lease,
license, modify, publish or otherwise distribute the Software or
Documentation, in whole or in part, to any other person.
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3. REPRODUCTION BY ELECTRONIC RESELLER.
a) Reproduction and Packaging. Electronic Reseller agrees to accurately
replicate the Software Documentation provided by the Vendor in
computer readable form, and to package these items as specified by the
Vendor.
b) Vendor Trademarks and Legends. Electronic Reseller shall include
copies of the Vendor Trademark copyright notices and other proprietary
rights legends, on all copies of the Documentation and Software that
it packages in computer readable form, in the manner specified by the
Vendor.
4. DISTRIBUTION BY ELECTRONIC RESELLER.
a) Inventory. Electronic Reseller will maintain access to
xxxxxxxx.xxx(TM) sufficient to serve adequately the needs of End User
Customers.
b) Packaging. Electronic Reseller will distribute the Products only via
the Internet and only as packaged in accordance with this Agreement,
with all packaging, warranties, disclaimers and End-User License
Agreements intact. Electronic Reseller will make copies of the
current End-User License Agreement available to End User customers in
computer readable form.
c) Product Returns. Electronic Reseller agrees to honor any refund
requests received from End User customers pursuant to the terms of the
End-User License Agreement relating to Products distributed by
Electronic Reseller.
d) Cost of Distribution. Costs relating to evaluation, packaging and
distribution of the Software and Documentation shall be borne by the
Electronic Reseller.
5. ELECTRONIC RESELLER MARKETING OBLIGATIONS.
a) Marketing Efforts. Electronic Reseller agrees to use its best efforts
to market, promote, sub-license (to End Users only), and distribute
the most current version of the Software. Such marketing, promotion,
sublicensing and distribution shall be performed in accordance with
all applicable laws.
b) Reverse Engineering. Electronic Reseller agrees not to: (i)
disassemble, de-compile or otherwise reverse engineer the Software or
otherwise attempt to learn the source code, structure, algorithms or
ideas underlying the Software; (ii) take any action contrary to
Vendor's End-User License Agreement except as expressly and
unambiguously allowed under this Agreement.
c) End User License Fees. Electronic Reseller shall have the sole
discretion to set the license fee charge to End Users for the
Software.
d) Customer Registration. Electronic Reseller agrees to provide Vendor
with customer information, for the purpose of Vendor to register the
customer into Vendor database for technical support and other related
issues, including name, address, email address and product purchased.
6. VENDOR'S DELIVERY OBLIGATIONS.
a) Initial Deliverables. Vendor shall deliver the current version of the
Software Documentation to Electronic Reseller immediately following
execution of this Agreement. Vendor will provide Electronic Reseller
with (i) copies of the Software on CD-ROM or master diskettes, (ii)
Product specification information in HTML format, or in another
mutually agreeable computer readable form that can be reproduced by
the Electronic Reseller, (iii) Product Documentation is a computer
readable form mutually agreeable to the parties that can be reproduced
by the Electronic Reseller, and (iv) vendor press releases and
announcements in a computer readable from mutually agreeable to the
parties that can be reproduced by the Electronic Reseller.
b) Deleted.
c) New Versions. Vendor shall provide Electronic Reseller with computer
readable copies of all new releases, updates, or revisions of the
Software and Documentation within a reasonable time after each such
release is made generally available by Vendor. Vendor will notify
Electronic Reseller of its plans for each new release, update or
revision of the Software or Documentation within a reasonable period
of time prior to such release.
d) New Products. Electronic Reseller understands and acknowledges that
Vendor continues to review software products available on the market
and to conduct its own research and development activities with
respect to the internal development of such new products. Vendor
makes no representations or warranties with respect to continued
availability of any of the Software covered by this Agreement, or the
nature or availability of any future modifications, updates, or
enhancements thereto. Similarly, Vendor makes no representations
with respect to any new product offerings it may make in the future,
the compatibility of such products with the Software covered by this
Agreement, or the availability of such new products to the Electronic
Reseller.
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7. VENDOR'S SUPPORT OBLIGATIONS.
a) Support for End Users. Vendor will provide support to End Users of
the Software to be distributed hereunder in accordance with its
then-current published software policy if any.
b) Support for Electronic Reseller. Vendor will provide Electronic
Reseller, without charge, such technical information, current
maintenance documentation, and telephone assistance as is necessary
to enable Electronic Reseller to effectively reproduce, package and
distribute the Software. Electronic Reseller is not entitled to
source code for the Software.
8. VENDOR'S WARRANTIES.
a) Authority. Vendor represents that it has the right and authority to
enter into this Agreement and to grant Electronic Reseller the
rights to the Software and Documentation granted in this Agreement.
b) Media. Vendor warrants to Electronic Reseller that the master media
on which the Software is delivered to allow Electronic Reseller to
replicate the Software is free from defects in material and
workmanship. Vendor agrees to replace any media delivered to
Electronic Reseller that proves defective.
c) Non-Infringement. Vendor warrants to Electronic Reseller that the
Vendor has all rights, title, and interest in the product or has
obtained the right to grant the licenses set forth in this
Agreement. As of the execution date of the Agreement, Vendor
represents that to the best of Vendor's knowledge the Product does
not infringe upon or misappropriate the proprietary rights of any
third party arising under the laws of the United States of America.
d) End User Warranties. Vendor will provide a warranty for the End
Users of the Software as set forth in the End User License
Agreement attached as Exhibit B. Electronic Reseller is not
authorized to make any other warranties on Vendor's behalf.
9. ELECTRONIC RESELL WARRANTIES.
a) Authority. Electronic Reseller represents that it has the right and
authority to enter into this Agreement.
b) Replication. Electronic Reseller represents and warrants that it
will accurately replicate the Software and Documentation, and that
all Software distributed by the Electronic Reseller will not
contain any viruses, worms, date bombs, time bombs, or other code
that is specifically designed to cause the Software to cease
operating, or to damage, interrupt, or interfere with any End
User's Software or data.
10. PAYMENTS.
a) Electronic Conversion Fee. Vendor will pay the Electronic Vendor
Fee as specified in Exhibit C at the time of the signing of the
Agreement. Products available from Vendor will be installed on
Electronic Reseller's serve upon receipt of payment and fulfillment
of other obligations made a part of this Agreement.
b) Amount. Electronic Reseller will pay Vendor in accordance with the
Schedule attached hereto as Exhibit C, for each copy of a Product
delivered to an End User by Electronic Reseller, provided, however,
that no fee shall be due for copies of Products returned to
Electronic Reseller for refund in accordance with the End-User
License Agreement and accompanied by an executed Letter of
Destruction from the End-User. Any changes to Exhibit C with
respect to product sell price or product cost to Electronic
Reseller must be submitted to Electronic Reseller at least thirty
(30) days prior to the effective date.
c) Taxes. Electronic Reseller will pay, or require its End User
customers to pay, all federal, state and local taxes designated,
levied, or based upon the sale of Products by Electronic Reseller.
d) Payment and Reports. Within thirty (30) days after the end of each
month, Electronic Reseller will remit to Vendor the sales fee due
on copies of Products delivered by Electronic Reseller to End User
customers during the immediately preceding month and provide Vendor
with a written report (the "Report"), specifying the number of
copies of Products that Electronic Reseller has shipped during the
immediately prior month and the calculation of the amounts due to
Vendor in connection therewith.
End User Information. Electronic Reseller will provide Vendor within
thirty (30) days after the end of each month, a report for the
immediately prior month showing (i) the name and address of each End User
that purchased the Product from Electronic Reseller, and (ii) the name
and quantity of the Product purchased by the End User. Electronic
Reseller will not share customer information with any other parties
without the Vendors prior consent.
e) Book and Records. Electronic Reseller agrees to maintain adequate
books and records relating to the distribution of Products to End
User Customers. Such books and records shall be available at their
place of keeping for inspection by Vendor or its representative,
for the purpose of determining whether the correct fees have been
paid to Vendor in accordance with the terms of this Agreement, and
whether Electronic Reseller has otherwise compiled with the terms
of this Agreement. Vendor shall have the right to conduct such an
audit upon
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ten (10) days advance notice twice each year. In the event that such
an audit discloses an underpayment of more than five percent (5%), the
Electronic Reseller shall pay the costs of such audit.
f) Failure to Pay. Any sales fee payment or part of a payment that is not
paid when due shall bear interest at the rate of 1.5% per month from
its due date until paid. Failure of Electronic Reseller to pay any
fees or other charges when due shall constitute sufficient cause for
Vendor to immediately suspend its performance hereunder and/or to
terminate this Agreement.
11. CONFIDENTIALITY.
Each party agrees that all binary code, inventions, algorithms,
know-how and ideas it obtains from the other and all other business,
technical and financial information it obtains from the other are the
confidential property of the disclosing party ("Confidential
Information"). If conspicuously labeled as "proprietary" or
"confidential" or some similar designation or, if disclosed orally or
visually, is confirmed in writing labeled as "proprietary" or
"confidential" or some similar designation within thirty (30) days of
such oral or visual disclosure. All binary code (including, but not
limited to the Software), binary documentation and underlying
inventions, algorithms, know-how and ideas are hereby identified as
Vendor's Confidential Information. Except as expressly and
unambiguously allowed herein, the receiving party will hold in
confidence and not use or disclose any Confidential Information and
shall similarly bind its employees and contractors in writing. The
receiving party shall not be obligated under this Section 11 with
respect to information the receiving party can document; (1) is or has
become readily publicly available with restriction through no fault of
the receiving party or its employees or agents; or (2) is received
without restriction from a third party lawfully in possession of such
information and lawfully empowered to disclose such information; or
(3) was rightfully in the possession of the receiving party without
restriction prior to its disclosure by the disclosing party; or (4) is
independently developed by the receiving party by employees without
access to the other party's similar Confidential Information; or (5)
is required by law or order of a court administrative agency or other
governmental body to be disclosed by the receiving party. The parties
obligations with respect to Confidential Information (other than with
respect to any source code as to which the obligations shall continue
for twenty (20 years) shall continue for the shorter of three (3)
years from the date of termination of this Agreement or until one of
the above enumerated conditions becomes applicable. Each party
acknowledges that its breach of this Section 11 would cause
irreparable injury to the other for which monetary damages are not an
adequate remedy. Accordingly, a party will be entitled to injunctions
and other equitable remedies in the event of such breach by the other.
12. VENDOR TRADEMARKS.
a) Use. Electronic Reseller acknowledges that the Vendor Trademarks are
trademarks owned solely and exclusively by Vendor, and agrees to use
the Vendor Trademarks only in the form and manner and with appropriate
legends as prescribed by Vendor. Electronic Reseller agrees not to use
any other trademark or service xxxx in connection with any of the
Vendor Trademarks without prior written approval of Vendor. All use of
Vendor Trademarks shall inure to the benefit of Vendor.
b) Notices. Electronic Reseller shall not remove, alter, cover or
obfuscate any copyright notice or other proprietary rights notice
placed in or on the Software or Documentation by Vendor.
13. INDEMNIFICATION.
a) By Vendor. Vendor will defend, indemnity and hold Electronic Reseller
harmless from and against any and all liabilities, losses, damages,
costs and expenses (including legal fees and expenses) associated with
any claim or action brought against Electronic Reseller for actual or
alleged infringement of any US patent, US copyright, US trademark, US
service xxxx, trade secret, or other US proprietary rights based upon
the duplication, sale, license, or use of the Software or
Documentation by Electronic Reseller in accordance with this
Agreement, provided that Electronic Reseller promptly notifies Vendor
in writing of the claim and allows Vendor to control, and fully
cooperates with Vendor in, the defense and all related settlement
negotiations. Vendor shall have no liability for any settlement or
compromise made without its consent. Upon notice of an alleged
infringement, or if in the Vendors opinion such a claim is likely.
Vendor shall have the right, at its option, to obtain the right for
Electronic Reseller to continue to exercise the rights granted under
this Agreement, substitute other software with similar operating
capabilities, or modify the Software so that it is no longer
infringing. The foregoing indemnification shall not apply to claims of
infringement to the extent they arise by reason of the combination of
the software or documentation with any other product if such claim
would have been avoided but for such combination. In the event that
none of the above options are reasonably available, in Vendor's sole
opinion, Vendor may terminate
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this Agreement.
b) By Electronic Reseller. Electronic Reseller shall indemnify and hold
Vendor harmless from and against any and all liabilities, losses,
damages, costs and expenses (including legal fees and expenses)
associated with any claim or action brought against Vendor that may
arise from Electronic Reseller's improper or unauthorized replication
packaging, marketing, distribution, or installation of the Software,
including claims based on representations warranties, or
misrepresentations made by Electronic Reseller, or any other improper
or unauthorized act or failure to act on the part of Electronic
Reseller.
14. LIMITATION OF LIABILITY. BOTH PARTIES LIABILITY SHALL BE LIMITED TO DIRECT
DAMAGES AND EXCEPT AS PROVIDED IN THE SECTION ENTITLED "INDEMNIFICATION,"
SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEES PAID BY ELECTRONIC RESELLER
TO VENDOR HEREUNDER. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS)
SUFFERED BY THE OTHER PARTY, EVEN IF IT HAS PREVIOUSLY BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
15. TERM AND TERMINATION.
a) Term. This Agreement will continue in effect for [*] from the
date hereof ("Initial Term"). Upon expiration of the Initial Term and
each Renewal Term thereafter, this Agreement will be automatically
renewed for an [*] one (1) year term ("Renewal Term") unless
terminated by either party upon ninety (90) days' notice prior to the
expiration of the Initial Term or any Renewal Term.
b) Termination for Cause. This Agreement may be terminated by a party for
cause [*] by written notice upon the occurrence of any of the
following events;
i) If the other ceases to do business, or otherwise terminates its
business operations (except as permitted under Section 16.a.) or (ii.)
If the other shall fail to promptly secure or renew any license
registration, permit, authorization or approval for the conduct of its
business in the manner contemplated by this Agreement or if any such
license, registration, permit, authorization or approval is revoked or
suspended and not reinstated within [*]. (iii) if the other breaches
any material provision of this Agreement and fails to fully cure such
breach within [*] ([*] in the case of failure to pay) of written
notice describing the breach; or (iv) If the other becomes insolvent
or seeks protection under any bankruptcy receivership trust deed,
creditor's arrangement composition or comparable proceeding, or if any
such proceeding is instituted against the other and not dismissed
within [*].
c) [*]
d) Effect of Termination. Upon termination of this Agreement for any
reason, [*]. Electronic Reseller shall remit all Royalties and other
fees due to Vendor within [*] of such termination.
e) Effect on End Users. Termination by either party will not affect the
rights of any End User under the terms of the End-User License
Agreement.
16. GENERAL PROVISIONS.
a) Assignment. This Agreement may not be assigned by Electronic Reseller
or by operation of law to any other person, persons, firms, or
corporations without the express written approval of Vendor.
b) Notices. All notices and demands hereunder shall be in writing and
shall be served by personal service or by mail at the address of the
receiving party set forth in this Agreement (or at such different
address as may be designated by such party by written notice to the
other party). All notices and demands by mail shall be certified or
registered mail, return receipt requested, or by nationally-recognized
private express courier, and shall be deemed complete upon receipt.
c) Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of California.
d) Relationship of the Parties. Each party is acting as an Independent
contractor and not as an agent, partner, or joint venture with the
other party for any purpose. Except as provided in this Agreement,
neither party shall have the right, power, or authority to act or to
create any obligation, express or implied, on behalf of the other.
e) Survival of Certain Provisions. The indemnification and
confidentiality obligations set forth in the Agreement shall survive
the termination of the Agreement by either party for any reason.
f) Headings. The titles and headings of the various sections and
paragraphs in this Agreement are intended solely for convenience of
reference and are not intended for any other purpose whatsoever, or to
explain, modify or
*Confidential treatment requested. Certain confidential information has been
omitted and filed separately with the Securities and Exchange Commission.
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that it constitutes the complete and entire agreement of the parties and
supersedes all previous communications, oral or written, and all other
communications between them relating to the license and to the subject
hereof. No representations or statements of any kind made by either party,
which are not expressly stated herein, shall be binding on such party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
CYBERSOURCE CORPORATION MCAFEE SOFTWARE, INC. VENDOR
By: [SIG] By: /s/ XXXXX X. XXXXXXX
------------------------------ ------------------------------
Print Name: [NAME] Print Name: Xxxxx Xxxxxxx
---------------------- ---------------------
Title: [TITLE] Title: VP & GM
--------------------------- ---------------------------
Date: 9/2/97 Date: 9/11/97
---------------------------- ----------------------------
EXHIBIT A
I. SOFTWARE PRODUCTS
List all products here, with their respective suggested list price.
SEE EXHIBIT C.
II. REQUIREMENTS CHECKLIST
The "checklist" of things needed to complete the process are:
Musts to post product- (these are things we need before your product can be
posted)
1) Executed Electronic Reseller Agreement.
2) Master or Gold copy of the program(s). Program(s) can be delivered to (or
acquired by) xxxxxxxx.xxx in one of the following methods. 1) on CD, 2)
download files from Vendors FTP site, or 3) 3.5" disks (this in order of
preference).
3) Computer-readable electronic end-user license (.txt file). Please include
as a separate file, it takes extra time to pull ones from the install
process.
4) Computer-readable product documentation (.pdf or .txt file). (if
documentation is to be included)
5) A range of 100 license numbers (if the product is serialized).
6) Fill out the template located in Exhibit D for each product. IMPORTANT.
This is the information used by xxxxxxxx.xxx webmasters to post your
products. Identify all punctuation clearly so we can get it right the first
time.
Should Have's, but not essential to products being added to site:
7) Computer-readable product specification sheet, collateral, or other
information (html, .pdf or .txt file). We can also pull
7
this information from your web site if available. Notify us to the method
you wish to provide us the data and the appropriate locations.
8) Trademarks/logos (.gif file).
Products will be converted for electronic distribution by CyberSource
Corporation. Product conversion includes packaging the product in CyberSource's
secure and encrypted packaging container, inclusion in the xxxxxxxx.xxx online
catalog, and posting of product information provided by vendor in HTML format.
Send to CyberSource Corporation, Attention: xxxxxxxx.xxx Marketing, 000 Xxxxx
Xxxxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxx, XX 00000.
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EXHIBIT B
END-USER LICENSE AGREEMENT
NOTICE TO USERS: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT. USE OF ANY OF
THE SOFTWARE PROVIDED WITH THIS AGREEMENT (THE "SOFTWARE") CONSTITUTES YOUR
ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT
WITH RESPECT TO ANY OF THE SOFTWARE PROVIDED, PROMPTLY REMOVE THE SOFTWARE
TOGETHER WITH ALL COPIES FROM YOUR COMPUTER AND RETURN IT AND THE ACCOMPANYING
ITEMS (INCLUDING WRITTEN MATERIALS AND PACKAGING) TO THE LOCATION WHERE YOU
OBTAINED THEM FOR A REFUND. REGISTERING YOUR PRODUCT WITH MCAFEE SOFTWARE, INC.
("MCAFEE"), WILL IMPROVE COMMUNICATIONS WITH MCAFEE. A Registration form is
located below. [If you purchased the product directly from McAfee, you are
already registered.]
1. LICENSE GRANT. McAfee and its suppliers grant to you a non-exclusive,
non-transferable right to use the SOFTWARE on file servers connected to a
maximum number of user computers, or on a maximum number of user computers, not
exceeding the number of user computers specified on the packaging for this
product. If the media upon which the SOFTWARE is received by you contains
versions of the SOFTWARE for different operating systems (e.g. VirusScan for
OS/2 and VirusScan for Windows 95), then you may only use the version of the
SOFTWARE applicable to the operating system used on the user computer for which
the SOFTWARE is licensed; provided, however, that any license to use VirusScan
for Windows 3.1x and VirusScan for Windows 95 also includes a license to use
VirusScan for DOS. You agree you will only copy the SOFTWARE into any
machine-readable or printed form as necessary to use it in accordance with this
license or for backup purposes in support of your use of the SOFTWARE.
This license is effective until terminated. You may terminate it at any point
by destroying the SOFTWARE together with all copies of the SOFTWARE. Also,
McAfee has the option to terminate if you fail to comply with any term or
condition of this Agreement. You agree upon such termination to destroy the
SOFTWARE together with all copies of the SOFTWARE.
2. UPGRADES. This license is limited to the version of the SOFTWARE enclosed
and does not include the right to upgrades except as provided in this Section
2. If you purchased this software from a retail store or directly from McAfee,
you are entitled: (a) as to products other than VirusScan Deluxe, to download
and use all upgrades of the SOFTWARE (including virus signature files (DAT
files)) released during the one year period following purchase; and (b) as to
VirusScan Deluxe, to download and use all upgrades of the SOFTWARE (including
virus signature
9
files (DAT files)) released during the two year period following purchase. If
you receive the SOFTWARE packaged with PC hardware or software not purchased
from McAfee, you are entitled to one free electronic update of the SOFTWARE. If
the PC hardware with which the SOFTWARE was received was purchased for
individual or home use, then you are further entitled to download and use all
upgrades of the SOFTWARE (including virus signature files (DAT files)) released
during the three month period following purchase. If the PC hardware with which
the SOFTWARE was received was purchased for business use, then you may download
and use all upgrades of the SOFTWARE (including virus signature files (DAT
files)) released during the three month period following purchase upon
obtaining a corporate password from McAfee. You must in any event register with
McAfee to receive upgrades hereunder.
3. COPYRIGHT. The SOFTWARE is protected by United States copyright law and
international treaty provisions. You acknowledge that no title to the
intellectual property in the SOFTWARE is transferred to you. You further
acknowledge that title and full ownership rights to the SOFTWARE will remain
the exclusive property of McAfee or its suppliers, and you will not acquire any
rights to the SOFTWARE except as expressly set forth in this license. You agree
that any copies of the SOFTWARE will contain the same proprietary notices which
appear on and in the SOFTWARE.
4. REVERSE ENGINEERING. You agree that you will not attempt to reverse compile,
modify, translate, or disassemble the SOFTWARE in whole or in part.
5. LIMITED WARRANTY. For 30 days from the date of shipment, we warrant that the
media (for example diskettes) on which the SOFTWARE is contained will be free
from defects in materials and workmanship.
6. CUSTOMER REMEDIES. If the SOFTWARE does not conform to the limited warranty
in Section 5 above ("Limited Warranty"), your sole remedy shall be to return
the media with a description of the problem to McAfee. The defective media in
which the SOFTWARE is contained will be replaced by McAfee at no additional
charge to you. If you do not receive media which is free from defects and
materials and workmanship during the 60-day warranty period, McAfee will refund
to you the amount you paid for the SOFTWARE. The Limited Warranty is void if
failure of the SOFTWARE has resulted from accident or from abuse or
misapplication by you. Any replacement SOFTWARE will be warranted for the
remainder of the original Limited Warranty period.
7. NO OTHER WARRANTIES, NEITHER McAFEE NOR ITS SUPPLIERS WARRANT THAT THE
SOFTWARE IS ERROR FREE, EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN SECTION 5
("LIMITED WARRANTY"). McAFEE AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES
WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND
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NONINFRINGEMENT OF THIRD PARTY RIGHTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR
LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, OR THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. SO THE ABOVE LIMITATIONS OR
EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS
AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
8. SEVERABILITY. In the event of invalidity of any provision of this license,
the parties agree that such invalidity shall not affect the validity of the
remaining portions of this license.
9. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL McAFEE OR ITS
SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR
INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF
THE SOFTWARE, EVEN IF McAFEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL McAFEE'S OR ITS SUPPLIERS' LIABILITY FOR ANY CLAIMS,
WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED, IN THE
AGGREGATE THE LICENSE FEE PAID BY YOU, IF ANY.
10. GOVERNING LAW. This license will be governed by the internal laws of the
State of California. The United Nations Convention on Contracts for the
International Sale of Goods is specifically disclaimed.
11. ENTIRE AGREEMENT. This is the entire agreement between you and McAfee and
its suppliers which supersedes any prior agreement or understanding, whether
written or oral, relating to the subject matter of this license.
12. NetRemote users are licensed to use the SOFTWARE on one LAN connected user
computer. Additionally, users are licensed to use the SOFTWARE on a maximum
number of 2 user computers connected by an asynchronous/modem connection.
U.S. GOVERNMENT RESTRICTED RIGHTS
Any distribution or license of the SOFTWARE to the U.S. Government or its
agencies or instrumentalities (the "Government") is made only with RESTRICTED
RIGHTS. Use, duplication or disclosure by the Government is subject to
restriction as set forth in subparagraph (c)(1)(ii) of the Rights in Technical
Data and Computer Software clause at DFAR 252.227-7013, or as set forth in the
particular department or agency regulations or rules which provide McAfee
protection equivalent to or greater than the above-cited clause.
Contractor/Manufacturer is McAfee Software, Inc. 0000 Xxxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000-0000.
Should you have any questions concerning this license agreement, or if you
desire to contact McAfee for any reason, please call (000) 000-0000, fax (408)
000-0000, or write: McAfee Software, Inc. 0000 Xxxxxx Xxxxxx,
00
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000. McAfee Associates, Inc. is considered a
Supplier for purposes of this License.
12
Exhibit C
Sales Fee Schedule sold at Xxxxxxxx.Xxx (see notes below)
PRODUCT NAME PLATFORM SRP ELP COST
------------ -------- --- ---- ----
VirusScan WIN95 $[*] $[*] $[*]
WIN 3.1X $[*] $[*] $[*]
NT $[*] $[*] $[*]
DOS $[*] $[*] $[*]
PCCrypto WIN95 $[*] $[*] $[*]
QuickBackup WIN95/NT $[*] $[*] $[*]
PC Medic 97 WIN95/NT $[*] $[*] $[*]
WebScanX WIN95/NT $[*] $[*] $[*]
Sales Fee Schedule sold at XxxXxxxx.xxx hosted by Xxxxxxxx.Xxx (see notes below)
PRODUCT NAME PLATFORM SRP ELP COST
------------ -------- --- ---- ----
VirusScan WIN95 $[*] $[*] $[*]
WIN 3.1X $[*] $[*] $[*]
NT $[*] $[*] $[*]
DOS $[*] $[*] $[*]
PCCrypto WIN95 $[*] $[*] $[*]
QuickBackup WIN95/NT $[*] $[*] $[*]
PC Medic 97 WIN95/NT $[*] $[*] $[*]
WebScanX WIN95/NT $[*] $[*] $[*]
Notes:
1. SRP - The suggested published list price for boxed product sold into
retail stores, determined by the Vendor.
2. ELP - (Electronic List Price) - The list price for the Electronic version.
[*] 10 to 20% less than the box version.
3. Cost - This is what Electronic Reseller will pay vendor for each copy of
product distributed.
Annual product maintenance fee(1):
Covers one full year of product updates and releases.
Total product maintenance fees due xxxxxxxx.xxx(2) = [*]
*Marketing Plan Description:
At launch:
- Large promotion space (1 wk) on xxxxxxxx.xxx homepage for the initial launch.
- Rotating banner on the homepage for 1st quarter.
- Listing in Cool Deals section (1 wk).
*Confidential treatment requested. Certain confidential information has been
omitted and filed separately with the Securities and Exchange Commission.
13
Ongoing commitment through 1997 if McAfee products stay in top 5:
-Top promotional spot in at least one open center each week.
-Continuing of rotating banner on xxxxxxxx.xxx homepage.
Marketing Plan Fee Fee waived
1-All Annual product maintenance fees can be applied to a sponsorship program
within the first thirty (30) days of this agreement. See marketing kit for
details of sponsorship opportunities.
0-xxxxxxxx.xxx will invoice this amount which is due and payable at time of
signed agreement. This is a payment for services to be performed and
xxxxxxxx.xxx will not perform such services until payment has been received.
Exhibit D
Please fill out the following template for each product (as you wish it to
appear in xxxxxxxx.xxx):
Vendor Name (up to 36 characters): McAfee Software, Inc.
Product Name (include version number): To be provided with each version
supplied (TPB)
Does this product come with electronic documentation? Yes online help ? Yes
What platform(s) does this product run under? (TPB)
What is the approximate box street price of this product? See Exhibit C
What is the approximate ESD street price of this product-The price xxxxxxxx.xxx
will sell product for (10-20% less than the box street price) See Exhibit C
What is xxxxxxxx.xxx's cost See Exhibit C
What, if any, is the vendor part number of this product? (TPB)
Is this product serialized?: NO if yes, have serial numbers been provided? ____
Does this product have an export ban? (TPB) ____ If yes, to which countries is
export restricted or banned?
______________________________________________________________________________
Name of business/marketing contact: [*]
Phone Number: __________________ Email Address: [*]
Name of technical contact (to call if trouble with preparing products): _______
Phone Number: __________________ Email Address: [*]
Name of person to receive monthly reports via email: Xxxxxx Xxxx
Phone Number: (000) 000-0000 Email
Address: philip xxxx@xx.xxxxxx.xxx
From the category listing below, enter one (1) category this product fits into:
(TPB)
1541.Operating System Software
*Confidential treatment requested. Certain confidential information has been
omitted and filed separately with the Securities and Exchange Commission.
14
1501. Spreadsheet Software 1543. Programming and Languages Utilities
1503. Database Software 1545. Memory Manager Software
1505. Wordprocessor Software 1547. File Conversion & File Transfer Software
1507. Suites & Integrated Software Packages 1549. Reference & Information Software
1509. Desktop Publishing Software 1551. Education & Entertainment Software
1511. Communications Software 1553. Games & Entertainment Software
1512. Internet Software 1555. Voice Recognition Software
1513. Fax, OCR & Document Imaging Software 1561. Forms Generator, Designer & filler
1515. E-Mail, Groupware & Video Conference Software 1563. Back-up Software
1517. Terminal Emulation Software 1565. Menu S/W & Desktop Organizers
1521. Graphics & Presentation Graphics Software 1567. Virus Detection Software
1523. CAD Software 1569. Security Software
1525. Multimedia Software 1571. Diagnostic Software
1527. Clip Art, Symbol & Image Libraries 1573. Screen Saver Software
1529. Font Software 1575. Printer Utility Software
1531. Accounting Software 1577. Network Mgmt & Utility Software
1533. Tax Software 1579. General Utility Software
1535. Statistics Software 9900. Information
1537. Project & Time Management Software 9901. Electronic Books
1539. General Business Software
