THIS DEMONSTRATION SOFTWARE DISTRIBUTION AGREEMENT (this "Agreement") is entered
into as of ______________, 2000 by and between Prism Microsystems, Inc, a
Maryland corporation ("ISV"), with its principal place of business located at
10015 Old Columbia Road Suite F-100 Columbia MD 21046, and
________________________ ("DISTRIBUTOR"), with regard to the following facts:
WHEREAS, ISV makes available to the public a 30-Day Demonstration Copy of
WhatChanged for Windows with the understanding that the same are not fully
supported by ISV and subject to the requirement that the same shall not be sold
or redistributed on a commercial basis by third parties except as specifically
permitted in writing by ISV; and
WHEREAS, DISTRIBUTOR is engaged in the business described on Exhibit "A" and
wishes to obtain the right from ISV to distribute the current version(s) of the
30-Day Demonstration Copy of WhatChanged for Windows, as listed on Exhibit "A."
NOW, THEREFORE, in consideration of the promises set forth herein and intending
to be legally bound, the parties agree as follows:
1.1 30-Day Demonstration Copy of WhatChanged for Windows. As used herein, the
term "30-Day Demo" shall mean the current version of the officially released
time-expiring versions of WhatChanged for Windows software for the Windows
2. RIGHT TO DISTRIBUTE COPIES OF WhatChanged for Windows DEMONSTRATION PRODUCTS.
ISV hereby grants to DISTRIBUTOR the nonexclusive right to distribute for
demonstration and evaluation purposes the 30-Day Demo and the related
documentation to its customers in the manner described in Exhibit A' subject to
the provisions of this Agreement and the 30-Day Demo user license agreement
during the term hereof.
3. TRADEMARK. DISTRIBUTOR shall have the right and obligation to use the
trademark "WhatChanged-Registered Trademark-" at all times when referring to the
Software, including but not limited to documentation, packaging, advertising and
marketing materials, etc.
(a) DISTRIBUTOR shall indicate in packaging of and promotional materials
relating to its products containing the 30-Day Demo that the 30-Day Demo are
included therein by utilizing on such packaging or materials the artwork provided
by ISV (or an acceptable facsimile thereof approved by ISV in advance) and such
packaging and materials shall clearly disclose that the 30-Day Demo is not the
fully supported commercial version. The following notice must be included on all
promotional and packaging materials relating to the 30-Day Demo;
WhatChanged are registered trademarks of ISV.
(b) ISV permits use of the 30-Day Demo screen shots in publications and
tutorials for email users. If the screen shots are used in later editions,
DISTRIBUTOR shall obtain updated versions of the 30-Day Demo screens for those
editions. DISTRIBUTOR shall indicate ISV's copyright in any screenshots and
include the following notice in the materials:
WhatChanged-Registered Trademark-, is a registered trademark of ISV.
(c) ISV permits DISTRIBUTOR to excerpt the User Manual to prepare tutorials
and reference guides for users of WhatChanged for Windows Software, or for
inclusion in publications. DISTRIBUTOR shall use ISV's copyright notice with
respect to the excerpted portion, (Copyright -C- 2000 Prism Microsystems Inc. All
rights reserved.), and use the WhatChanged registered trademark and trademark
notices as referenced in Section 4.
4. TITLE TO AND PROTECTION OF THE 30-DAY DEMONSTRATION COPY OF WHATCHANGED.
4.1 Title. ISV (or its licensors)) retains the entire title to the 30-Day Demo
and any other information furnished hereunder to DISTRIBUTOR, and all copies of
4.2 Restrictions on Use and Protection of 30-Day Demo. No right to modify the 30-
Day Demo is granted herein, and all copyright notices included in the 30-Day Demo
shall be retained therein without alteration. DISTRIBUTOR shall not, and shall
not allow any party to, copy, modify, alter, attempt to disassemble, decompile,
or otherwise reverse engineer the 30-Day Demo, provided that DISTRIBUTOR may
reconfigure the 30-Day Demo for its customers, so long as no use of the source
code is required therefor and no modification of the source code results
therefrom. When reverse engineered and/or decompiled, the 30-Day Demo contains
the trade secrets and proprietary and confidential information of ISV.
Notwithstanding the above, if Licensee is located within a jurisdiction, which by
law prohibits such restrictions on reverse engineering, Licensee agrees that
within that jurisdiction it shall not, and shall not allow any party on
Licensee's behalf, to attempt to reverse engineer or decompile 30-Day Demo into
another computer language, except as expressly and specifically provided by
applicable law. Any and all information obtained during such lawful reverse
engineering and/or decompiling activities, including but not limited to, the
organization, logic, algorithms and processes of the 30-Day Demo, shall be deemed
to be the confidential and proprietary information of ISV or its licensors.
DISTRIBUTOR may copy the documentation provided with the software, and provide
the same to its customers, and may make excerpts thereof for distribution with
the 30-day Demo, so long as ISV's copyright therein is acknowledged, and all
proprietary notices included in the original copy thereof are preserved and
reproduced in any copy or excerpt.
5. OBLIGATIONS OF DISTRIBUTOR.
5.1 Support. As a condition of the grant of rights set forth herein, DISTRIBUTOR
shall provide to each customer with the 30-Day Demo a copy of the documentation
or other user information, which is provided with the 30-Day Demo by ISV, or a
document that contains similar information. If inclusion of the complete
documentation is not feasible, installation instructions can be included with the
30-Day Demo Software, with directions on where the documentation can be obtained
for download by the customer. Within a reasonable time after ISV makes available
to DISTRIBUTOR any updates to the 30-Day Demo Software and documentation,
DISTRIBUTOR shall substitute the updated versions for delivery to any future
customers. DISTRIBUTOR shall have no obligation to provide technical support to
its customers for the 30-Day Demo.
5.2 Promotion of Fully Supported Version. DISTRIBUTOR agrees to use reasonable
efforts and to cooperate with ISV to promote the fully supported commercial
versions of WhatChanged for Windows software, other than the 30-Day Demo to its
customers. Such efforts may include, without limitation, blind mailings to
DISTRIBUTOR's user base, links to ISV's Web page and other activities agreed upon
by the parties.
5.3 Press Releases. DISTRIBUTOR and ISV shall cooperate in the preparation and
publication of press releases relating to the distribution of the 30-Day Demo,
provided that no such release shall be published without the prior written
approval of ISV, which shall not unreasonably be withheld or delayed.
5.4 Compliance with Laws; Export Restrictions. DISTRIBUTOR shall comply with all
applicable laws and regulations in effect in the country, state or province in
which it distributes the 30-Day Demo and with the material provisions of all U.S.
laws and regulations which apply to the distribution and use of the 30-Day Demo,
including but not limited to the U.S. Export Administration Regulations ("EAR"),
as such laws and regulations may be amended from time to time. As of the date of
this revision of this Agreement, the 30-Day Demo may not be exported to Cuba,
Iran, Iraq, Libya, North Korea, Sudan or Syria.
5.5 Samples to be Provided. DISTRIBUTOR shall provide to ISV, at no charge, two
(2) copies of any publication or product in which the 30-Day Demo is included,
provided that with respect to any hardware items, product information or
packaging samples may be substituted.
6. NO WARRANTY. The 30-Day Demo and other materials are delivered "AS IS" and ISV
makes no warranty with respect thereto. ISV shall not be obligated to support or
upgrade the 30-Day Demo, and DISTRIBUTOR shall not make or provide any warranties
or references to technical support of the Software on behalf of ISV. DISTRIBUTOR
HEREBY EXPRESSLY WAIVES ALL GUARANTEES, WARRANTIES, AND LIABILITIES THEREFOR ON
THE PART OF ISV OR ITS LICENSORS, EXPRESS OR IMPLIED (INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, OR NONINFRINGEMENT), ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE 30-
7. INDEMNIFICATION. DISTRIBUTOR hereby agrees to indemnify, defend and hold
harmless ISV, its licensors and affiliates, and their directors, officers,
employees and agents from any expenses or losses arising from any breach by
DISTRIBUTOR of its obligations hereunder and from any claims that any items or
services offered or provided by DISTRIBUTOR with the 30-Day Demo infringe the
copyright, trademark rights or other intellectual property rights of any third
party or violates any applicable law or regulation.
8. LIMITATION. IN NO EVENT SHALL ISV OR ITS LICENSORS BE LIABLE TO DISTRIBUTOR OR
ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
INCLUDING' BUT NOT LIMITED TO LOSS OF PROFITS, DATA OR USE, WHETHER IN AN ACTION
IN CONTRACT OR TORT, EVEN IF ISV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
9. TERM; TERMINATION. The term of this Agreement shall commence upon the date set
forth above subject to execution by ISV, and shall continue for a period of one
(1) year thereafter, subject to earlier termination by ISV upon DISTRIBUTOR's
breach of any of its obligations hereunder which is not cured within thirty (30)
days after written notice of such default. Upon expiration of the initial and
each renewal term hereof, the term of this Agreement shall be automatically
renewed for an additional period of one (1) year, unless one party delivers
written notice to the other at least sixty (60) days prior to the expiration of
the then current term, that such party does not wish to renew.
10. MISCELLANEOUS. This Agreement constitutes the entire agreement between the
parties, and no modification of this Agreement shall be effective unless in
writing and signed by the parties, except that DISTRIBUTOR may assign this
Agreement to an entity controlling, controlled by or under common control with it
or to any entity that acquires all or substantially all of DISTRIBUTOR's assets,
or into which DISTRIBUTOR is merged or otherwise reorganized. Excepting the
above, no assignment of this Agreement or delegation of any rights or obligations
hereunder may be made by DISTRIBUTOR without the prior written approval of ISV,
which approval may be withheld in ISV's sole discretion. This Agreement shall be
governed by and determined in accordance with the laws of the State of Maaryland.
In the event that litigation or other proceeding is instituted between the
parties in connection with any dispute arising from or related to this Agreement,
the judgment or award shall include a reasonable sum to be paid to the prevailing
party for and on account of attorneys' fees and costs.
11. WEBSITE PROGRAM GUIDELINES
11.1 Rules and Guidelines for Participating in Website Program. In order to
participate, DISTRIBUTOR agrees to:
(a) DISTRIBUTOR's physical business address is located in the United States
(b) Provide a website accessible on the Internet
(c) Distribute WhatChanged for Windows by ftp, CD-ROM or other means of
(e) Keep the Website Program web page password in a safe place and not
distribute to third parties, if DISTRIBUTOR is approved for password access.
(f) Provide an accurate URL which will be hot-linked from the ISV location
directly to DISTRIBUTOR's web site.
IN WITNESS WHEREOF, ISV and DISTRIBUTOR have caused this Agreement to be
duly executed by their duly authorized representatives as of the date first set
DISTRIBUTOR PRISM MICROSYSTEMS, INC
WhatChanged for Windows
PLATFORM(S) OF SOFTWARE DESIRED:
Windows98, WindowsME, Windows NT 4.0, Windows 2000
BRIEF DESCRIPTION OF DISTRIBUTOR'S BUSINESS (e.g. additional services such as web
hosting, web design, VAR, consulting, etc.):
Fax: 805.520 7211
Web Page URL(s):
Note: The rights granted in this Agreement apply only to the 30-Day Demo
version(s) and types of distribution indicated above. Any changes in this
information should be directed to ISV for determination of whether a contract
modification is necessary. For information regarding distribution of the 30-Day
Demo where an amount in excess of cost is charged to the end user, please contact
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