<PAGE> 1
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 550 South
Winchester Blvd., Suite 301, San Jose, CA 95128 ("Electronic Reseller")
and McAfee Software, Inc., a Delaware corporation, located at 2805 Bowers
Avenue, Santa Clara, California 95051 ("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 to 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 B, 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
software.net(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 Untied 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.
1
<PAGE> 2
3. REPRODUCTION BY ELECTRONIC RESELLER.
a) REPRODUCTION AND PACKAGING. Electronic Reseller agrees to accurately
replicate the Software and 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 Trademarks, 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
software.net(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 and 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 in
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 form 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.
2
<PAGE> 3
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 support 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 this 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 RESELLER 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 Conversion 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
server 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 to 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 complied with the terms of this Agreement. Vendor
shall have the right to conduct such an audit upon
3
<PAGE> 4
ten (10) days advance notice twice each year. In the event that
such an audit discloses an underpayment of more than five percent
(5%), then 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 mark 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, indemnify 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 mark, 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 Vendor's 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
4
<PAGE> 5
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 one (1) year 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 additional 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 immediately 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 thirty (30) days,
(iii) if the other breaches any material provision of this Agreement
and fails to fully cure such breach within thirty (30) days (ten (10)
days 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 thirty (30)
days.
c) TERMINATION FOR CONVENIENCE. Either party may terminate this
Agreement at any time with or without cause upon thirty (30) day
prior written notice.
d) EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason, Electronic Reseller will immediately cease distribution of
the Software and Documentation. Electronic Reseller shall remit all
Royalties and other fees due to Vendor within twenty (20) days 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
5
<PAGE> 6
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 MCAFFEE SOFTWARE INC., VENDOR
By: /s/ BRUCE BURKE By: /s/ PETER R. WATKINS
--------------------------- -----------------------------
Print Name: Bruce Burke Print Name: Peter Watkins
------------------- ---------------------
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) software.net 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 software.net 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
6
<PAGE> 7
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 software.net 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 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 software.net online
catalog, and posting of product information provided by vendor in HTML format.
Send to CyberSource Corporation, Attention: software.net Marketing, 550 South
Winchester Blvd., Suite 301, San Jose, CA 95128.
<PAGE> 8
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 purchase 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
8
<PAGE> 9
files (DAT files)) released during the two year period following purchase. If
you received 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
9
<PAGE> 10
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 OR 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., 2805 Bowers Avenue,
Santa Clara, California 95051-0963.
Should you have any questions concerning this license agreement, or if you
desire to contact McAfee for any reason, please call (408) 968-3832, fax (408)
970-9727, or write: McAfee Software, Inc., 2805 Bowers Avenue,
10
<PAGE> 11
Santa Clara, California 95051-0963. McAfee
Associates, Inc. is considered a Supplier for
purposes of this License.
11
<PAGE> 12
EXHIBIT C
SALES FEE SCHEDULE SOLD AT SOFTWARE.NET (SEE NOTES BELOW)
<TABLE>
<CAPTION>
--------------------------------------------------------------
PRODUCT NAME PLATFORM SRP ELP COST
--------------------------------------------------------------
<S> <C> <C> <C> <C>
VirusScan WIN95 $65.00 $49.95 $39.95
WIN 3.1X $65.00 $49.95 $39.95
NT $65.00 $49.95 $39.95
DOS $65.00 $49.95 $39.95
PCCrypto WIN95 $65.00 $49.95 $39.95
QuickBackup WIN95/NT $65.00 $49.95 $39.95
PC Medic 97 WIN95/NT $49.00 $39.95 $31.95
WebScanX WIN95/NT $38.00 $29.95 $23.95
</TABLE>
SALES FEE SCHEDULE SOLD AT NETSCAPE.COM HOSTED BY SOFTWARE.NET (SEE NOTES
BELOW)
<TABLE>
<CAPTION>
--------------------------------------------------------------
PRODUCT NAME PLATFORM SRP ELP COST
--------------------------------------------------------------
<S> <C> <C> <C> <C>
VirusScan WIN95 $65.00 $49.95 $32.47
WIN3.1X $65.00 $49.95 $32.47
NT $65.00 $49.95 $32.47
DOS $65.00 $49.95 $32.47
PCCrypto WIN95 $65.00 $49.95 $32.47
QuickBackup WIN95/NT $65.00 $49.95 $32.47
PC Medic 97 WIN95/NT $49.00 $39.95 $25.97
WebScanX WIN95/NT $35.00 $29.95 $19.47
</TABLE>
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.
Typically 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 software.net(2) = Fee waived
*Marketing Plan Description;
At Launch:
- Large promotion space (1 wk) on software.net homepage for the initial launch.
- Rotating banner on the homepage for 1st quarter.
- Listing in Cool Deals section (1 wk).
<PAGE> 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 of software.net homepage.
Marketing Plan Fee Fee waived
1-All Annual product maintenance fees can be applied to sponsorship program
within the first thirty (30) days of this agreement. See marketing kit for
details of sponsorship opportunities.
2-software.net will invoice this amount which is due and payable at time of
signed agreement. This is a payment for services to be performed and
software.net 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 software.net):
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 software.net
will sell product for (10-20% less than the box street price) See Exhibit C
What is software.net'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: Jon Wong
Phone Number: ______________ Email Address: Jon [email protected]
Name of technical contact (to call if trouble with preparing products: _______
Phone Number: ______________ Email Address: Jon [email protected]
Name of person to receive monthly reports via email: Phillip Art
Phone Number: (972) 855-2547 Email ____________________________
Address: phillip [email protected]
From the category listing below, enter one (1) category this product fits into:
(TPB)
1541, Operating System Software
<PAGE> 14
<TABLE>
<S> <C>
1501. Spreadsheet Software 1543. Programming Languages and 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 & Edutainment 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 SW & 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
</TABLE>
11
