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netscape-communicator-4.77-copyright.distributor
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_________________________________________________________________
You are here: Home > Netscape > Partners > Netscape Everywhere >
Standard Browser Program Registration > Agreement
Netscape Everywhere Standard Browser Distribution Program
Terms and Conditions ("Agreement")
_________________________________________________________________
1. Term. This Agreement shall remain in effect until terminated
pursuant to the terms and conditions set forth in this Agreement.
Notwithstanding anything in this Agreement to the contrary, this
Agreement shall remain in effect only until such time as Microsoft
Corporation ceases to distribute free of charge products with features
comparable to the Netscape client products. In such event, Netscape
shall provide Applicant with 90 days' prior written notice and this
Agreement shall expire on the end of said 90-day notice period.
2. License Grant. (a) Netscape grants to Applicant, subject to these
terms and conditions, a nonexclusive, royalty-free, and
nontransferable right to (i) reproduce, without change, the standard
Netscape client products in executable form only on any media; and
(ii) distribute by sublicense such standard Netscape client product
copies to end users, directly or through distributors. Applicant may
electronically distribute the standard Netscape client product, in
exportable version only, pursuant to the terms and conditions set
forth herein.
(b) Except as expressly permitted herein or by applicable law,
Applicant shall not, and shall not permit any distributor or other
person to, reconfigure, modify, translate, decompile, reverse
engineer, disassemble, or otherwise determine or attempt to determine
source code from the standard Netscape client products or to create
any derivative works based upon the standard Netscape client products,
including the Netscape user interface. If Applicant or any distributor
fails to comply with this Section 2(b), Netscape may immediately (in
addition to all other remedies it may have and except for end user
licenses) revoke all licenses granted hereunder.
(c) If Applicant is distributing the standard Netscape client product
bundled with an Applicant product, Applicant shall use, and is granted
during the term hereof a nontransferable, nonexclusive, and restricted
license (with a right to sublicense to distributors) to use, the mark
"Includes Netscape Navigator" or "Includes Netscape Communicator," as
applicable (collectively, the "Marks"), solely on products and
packaging containing unmodified standard Netscape client products and
in related advertising, marketing, and technical material on
Applicant's Internet site. If Applicant is distributing the standard
Netscape client product on a stand-alone basis, Applicant shall use,
and is granted during the term hereof a nontransferable, nonexclusive,
and restricted license (with a right to sublicense to distributors) to
use, the mark "Netscape Navigator" or "Netscape Communicator," as
applicable (collectively, the "Marks"), solely on products and
packaging containing unmodified standard Netscape client products and
in related advertising, marketing, and technical material on
Applicant's Internet site. Use of the Marks shall comply with
Netscape's then-current trademark usage guidelines. All use of the
Marks shall inure to Netscape's benefit.
3. Use of the Marks; Protection of the Marks. (a) Proper Use.
Applicant agrees that all use of the Marks shall be only in connection
with this Agreement. Applicant agrees not to use or combine any other
trademark or service mark in combination with the Marks. Applicant
further agrees not to use the Marks on or in connection with any
products or services that are or could be deemed by Netscape in its
reasonable judgment to be obscene, pornographic, disparaging of
Netscape or its products, or otherwise in poor taste, or that are
themselves unlawful or whose purpose is to encourage unlawful
activities by others.
(b) Monitoring by Netscape. Upon Netscape's request, Applicant shall
promptly provide Netscape with samples of any product or documentation
bearing the Marks. If Netscape determines that Applicant is using the
Marks improperly, Applicant shall have ten (10) days to remedy the
improper use.
4. Reports. Applicant shall report to Netscape within 30 calendar days
after the end of each calendar quarter the quantity of Netscape
Product licenses granted during such prior quarter for distribution
hereunder, by country therefor. Such reports shall be provided in
electronic form via the Netscape Browser Distribution Program
Reporting Page at:
http://home.netscape.com/partners/distribution/report.html
5. Support. The standard Netscape client products come with no support
from Netscape.
6. Distribution. (a) Applicant shall, and shall cause its distributors
to, comply with all then-current applicable laws, regulations, and
other legal requirements in its performance of this Agreement,
including without limitation, all applicable export laws, rules, and
regulations of any agency of the U.S. Government or other applicable
agencies. Applicant shall ensure the inclusion of appropriate notices
required by the U.S. Government agencies or other applicable agencies.
(b) Applicant shall use commercially reasonable best efforts to ensure
that its distributors and subdistributors comply with all the relevant
terms contained in this Agreement. The standard Netscape client
products distributed pursuant to this Agreement must be distributed
with the end-user license agreement that is provided with such
standard Netscape client product.
(c) This is a nonexclusive relationship, and each party agrees that
the other may enter into similar arrangements with third parties.
Applicant shall, and shall cause its distributors to, treat all
standard Netscape client products at least as favorably as it treats
any competitive products it distributes.
(d) If Applicant is not downloading or ordering a particular version
of the standard Netscape client product found on the Ultimate
Distribution Program Download page, then Applicant agrees that any
documentation or packaging distributed by Applicant relating to the
standard Netscape client product shall conspicuously state that,
notwithstanding anything in the end-user license agreement included
with the standard Netscape client product to the contrary, end users
are not entitled to any support, warranty, or documentation associated
with the standard Netscape client product unless they have paid for
such support, warranty or documentation. Applicant further agrees that
any such documentation or packaging shall include instructions on how
an end user may purchase support from Netscape.
7. Proprietary Rights. Title to and ownership of all copies of the
standard Netscape client products, including all copyrights thereto,
whether in machine-readable or printed form, and including without
limitation derivative works, compilations, or collective works thereof
and all related technical know-how and all rights therein are and
shall remain the exclusive property of Netscape or its suppliers.
Applicant acknowledges that Netscape is the owner of the Netscape,
Navigator, and Communicator trademarks, and any trademark applications
and/or registrations thereto, agrees that it will do nothing
inconsistent with such ownership, and agrees that all use of the Marks
by Applicant shall inure to the benefit of Netscape. Netscape agrees
that nothing in this Agreement shall give Applicant any right, title,
or interest in the Marks other than the right to use the Marks in
accordance with this Agreement. Except for the rights expressly
granted to Applicant hereunder, Netscape reserves for itself all other
rights in and to the standard Netscape client products. Applicant and
distributor shall not take any action to jeopardize, limit, or
interfere in any manner with Netscape's ownership of or rights with
respect to the standard Netscape client products. Further, Applicant
or its distributors shall not remove or alter any trademark,
copyright, or other proprietary notices, legends, symbols, or labels
appearing on the standard Netscape client products delivered to
Applicant, and Applicant shall reproduce such notices on all copies of
the standard Netscape client products made hereunder.
8. No Warranty/As Is. THE PRODUCT SUBJECT TO THIS AGREEMENT DOES NOT
COME WITH SUPPORT OF ANY KIND AND IS PROVIDED TO APPLICANT "AS IS" AND
WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. NETSCAPE EXPRESSLY
DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A
PARTICULAR PURPOSE.
9. Indemnity. Netscape shall have no obligation or liability for, and
Applicant shall defend, indemnify, and hold Netscape harmless from and
against any claim (including reasonable attorneys' fees and costs)
arising from Applicant's distribution of the standard Netscape client
products under, and/or compliance with the terms and conditions set
forth in, this Agreement.
10. Limitation of Liability. (a) TO THE EXTENT ALLOWED BY APPLICABLE
LAW, IN NO EVENT SHALL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR ANY
DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY LOSS OF PROFITS,
LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR
FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF
ANY KIND, EVEN IF NETSCAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. (b) IN NO EVENT WILL NETSCAPE OR ITS SUPPLIERS BE
LIABLE FOR ANY CLAIM AGAINST APPLICANT BY ANY THIRD PARTY. (c) IN NO
EVENT SHALL NETSCAPE OR ITS SUPPLIERS BE LIABLE FOR (i) ANY
REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY APPLICANT, ANY
DISTRIBUTOR, OR THEIR RESPECTIVE AGENTS; (ii) FAILURE OF THE PRODUCTS
TO PERFORM; (iii) FAILURE OF THE PRODUCTS TO PROVIDE SECURITY; OR (iv)
THE RESULTS OR INFORMATION OBTAINED OR DECISIONS MADE BY END USERS OF
THE PRODUCTS OR THE DOCUMENTATION. THIS LIMITATION OF LIABILITY IS AN
ESSENTIAL PART OF THE BARGAIN UNDER THIS AGREEMENT.
11. Termination. This Agreement may be terminated: (a) immediately by
Netscape in the event Applicant or a distributor of Applicant attempts
to derive the source code of the standard Netscape client products;
(b) by either party upon 60 days' prior written notice to the other
party; or (c) immediately by Netscape in the event Applicant fails to
remedy a breach of Section 3(b) of this Agreement within the specified
cure period. Immediately upon termination or expiration hereof, all
licenses for the standard Netscape client products granted hereunder
(except for validly granted end-user licenses) shall terminate, and
Applicant shall deliver to Netscape or destroy all copies of the
standard Netscape client products in its possession or control, and
shall furnish to Netscape an affidavit signed by an officer of
Applicant certifying such delivery or destruction. Termination by
either party shall not act as a waiver or release of any breach hereof
or any liability hereunder. Sections 2(b), 6, 7, 8, 9, 10, 11, 12, and
13 shall survive any expiration or termination of this Agreement.
12. Notice. Any notice required or permitted hereunder shall be in
English, in writing and shall be deemed to be properly given upon
receipt. Notices to Netscape shall be to the attention of the Legal
Department, Netscape Communications Corporation, 501 East Middlefield
Road, Mountain View, California 94043, U.S.A.
13. Miscellaneous. (a) Neither party's waiver of a breach or delay or
omission to exercise any right or remedy shall be construed as a
waiver of any subsequent breach or as a waiver of such right or
remedy. (b) This Agreement shall be governed by and construed under
the laws of the State of California, U.S.A., without reference to its
conflicts of law provisions. (c) Unless otherwise agreed in writing,
all disputes relating to this Agreement (except any dispute relating
to intellectual property rights) shall be subject to final and binding
arbitration in Santa Clara County, California, under the auspices of
JAMS/End Dispute, with the losing party bearing all costs of such
arbitration. Notwithstanding the foregoing, Netscape reserves the
right to invoke the jurisdiction of any competent court to remedy or
prevent violation of any provision under this Agreement relating to
Netscape Confidential Information. (d) This Agreement will not be
governed by the United Nations Convention of Contracts for the
International Sale of Goods. (e) This Agreement creates no agency,
partnership, joint venture, or employment relationship and neither
Applicant nor its agents have any authority to bind Netscape in any
respect whatsoever. (f) If the application of any provision hereof to
any particular facts shall be held to be unenforceable by any
competent court, then (x) the enforceability of such provision as
applied to any other facts and the validity of other provisions hereof
shall not be affected; and (y) such provision shall be reformed
without further action by the parties hereto only to the extent
necessary to make such provision valid and enforceable when applied to
the particular facts. (g) This Agreement constitutes the entire
agreement between the parties concerning the subject matter hereof and
supersedes all prior and contemporaneous agreements and
communications, whether oral or written, between the parties relating
to the subject matter of this Agreement and all past courses of
dealing or industry custom. (h) If Applicant has an effective
agreement with Netscape ("Prior Agreement") covering only the
distribution of the standard Netscape client products set forth
herein, then this Agreement shall supersede the Prior Agreement. If
any Prior Agreement covers any Netscape products in addition to the
standard Netscape client products, for example, Netscape server
products, then this Agreement shall supersede only those portions of
the Prior Agreement covering the standard Netscape client products.
(i) This Agreement is written in the English language only, which
language shall be controlling in all respects. (j) Les parties aux
prΘsentΘs confirment leur volontΘ que cette convention de mΩme que
tous les documents y compris tout avis qui s'y rattachΘ, soient
redigΘs en langue anglaise. (Translation: "The parties confirm that
this Agreement and all related documentation will be in the English
language.") (k) Netscape may use Applicant's name in a list of
customer references or in any press release issued by Netscape
regarding the licensing of the standard Netscape client product and/or
provide Applicant's name and the names of the standard Netscape client
products licensed by Applicant to third parties. (l) If any dispute
arises under this Agreement, the prevailing party shall be reimbursed
by the other party for any and all legal fees and costs associated
therewith.