OEM License Agreement

EXHIBIT 10.13



NETSCAPE COMMUNICATIONS CORPORATION

CONCENTRIC RESEARCH CORPORATION

OEM LICENSE AGREEMENT

NO. ________________





This OEM License Agreement ("Agreement") is entered into on this 27th day of July, 1995 ("Effective Date") by and between Netscape Communications Corporation, a Delaware corporation ("Netscape"), with principal offices at 501 East Middlefield Road, Mountain View, CA 94043 and Concentric Research Corporation, a Florida corporation ("Concentric"), with principal offices at 400 Forty-First Street, Bay City, MI 48708.



WHEREAS, Concentric markets and provides data communications and interactive on- line products and services including Internet access services.



WHEREAS, Netscape has proprietary or remarketing rights to certain computer software products.



WHEREAS, Netscape wishes to grant to Concentric and Concentric desires to obtain certain license rights to such computer software products more particularly described below in accordance with the terms and conditions of this Agreement.



NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following terms and conditions, which set forth the rights, duties, and obligations of the parties.



SECTION 1. DEFINITIONS For purposes of this Agreement, the following terms shall have the following meanings:



1.1 "Attachment(s)" means the attachments to this Agreement which are attached hereto and incorporated herein:



1.1.1 Attachment A (Description of Netscape Products) which sets forth a

description of each Netscape Product licensed hereunder.



1.1.2 Attachment B (Pricing, Payment Schedules and Deliverables) which

sets forth pricing for Concentric, payment schedules, and specific

items to be delivered to Concentric.



1.1.3 Attachment C (Netscape's Trademarks) which sets forth the trademarks

over which Netscape claims ownership.



1.1.4 Attachment D (Netscape's End User License Agreements) which sets

forth Netscape's terms and conditions of licensing applicable to an

end user customer.



1.1.5 Attachment E (OEM Maintenance and Support) which sets forth

Netscape's and Concentric's maintenance and support obligations.



1.1.6 Attachment F (Concentric Products(s)) which sets forth a description

of Concentric Products which will be bundled with the Netscape

1.2 "Derivative Work(s)" means a revision, modification, translation,

abridgment, condensation or expansion of a Netscape Product or

Documentation or any form in which a Netscape Product or Documentation may

be recast, transferred, or adapted, which, if prepared without the consent

of Netscape, would be a copyright infringement.



1.3 "Distributor" means any third party which acquires possession of the

Netscape Products from Concentric without becoming a Netscape Product End

User and distributes such media, Netscape's end user license agreement, and

Concentric Product to an End User.



1.4 "Documentation" means those software user manuals, reference manuals and

installation guides, or portions thereof, which are distributed in

conjunction with the Netscape Products set forth in Attachment A.



1.5 "End User" means any third party licensed by Concentric or a Distributor to

use, but not to further distribute, the Netscape Products.



1.6 "Major and Minor Updates" mean updates, if any, to the Netscape Products.

Major Updates involve additions of substantial functionality while Minor

Updates do not. Major Updates are designated by a change in the number to

the left of the decimal point of the number appearing after the product

name while Minor Updates are designated by a change in such number to the

right of the decimal point. Netscape is the sole determiner of the

availability and designation of an update as a Major or Minor Update. Major

Updates exclude software releases which are reasonably designated by

Netscape as new products. Where used herein "Updates" shall mean Major

Updates or Minor Updates interchangeably.



1.7 "Netscape Product(s)" means the executable version (but not the source code

version) of the computer software products listed or described in

Attachment A as Netscape may update and provide hereunder from time to



1.8 "Program Errors" means one or more reproducible deviations in the Netscape

Products from the applicable specifications shown in the Documentation.



1.9 "Concentric Product(s)" means Concentric's bulletin board and related

Internet access service products developed and marketed by Concentric, as

described in Attachment F, with which the Netscape Products are bundled for



SECTION 2. GRANT OF LICENSES AND RIGHTS



2.1 Licenses



2.1.1 License. Subject to the terms and conditions of this Agreement,

Netscape hereby grants and Concentric hereby accepts, a

nonexclusive, nontransferable license to (i) use and reproduce,

without change, the Netscape Products (in executable form only)

on any tangible media and (ii) distribute by sublicense such

Netscape Product copies to Distributors and End Users only in

conjunction with a Concentric Product.





Concentric is expressly prohibited from any retail distribution

of the Netscape Products and shall not permit or authorize anyone

else to do so. Concentric is also expressly prohibited from any

marketing and/or distribution directly or indirectly (e.g.

through Distributors) of Netscape Products unless each copy is

bundled with a Concentric Product. Such reproduction shall occur

only at the location of Concentric's principal office first set

forth above unless an alternate location is otherwise specified

in writing to Netscape. Concentric may grant Distributors the

right to grant further sublicenses to distribute copies of the

Netscape Products to other Distributors regardless of tier and

Concentric and all Distributors shall have the right to

distribute the Netscape Products to End Users. Subject to the

terms and conditions of this Agreement, Netscape hereby grants

and Concentric hereby accepts a nonexclusive, nontransferable

license to use the Milan Customer Registration Process 1.1

document solely in conjunction with the Netscape Products to

register End Users for Concentric Products. Concentric shall not

disclose, provide, or otherwise make available said document to

any third party.



2.1.2 Source Code Restrictions. Concentric agrees not to decompile,

reverse engineer, disassemble, or otherwise determine or attempt

to determine source code for the executable code of the Netscape

Products or to create any Derivative Works based upon the

Netscape Products or Documentation, and agrees not to permit or

authorize anyone else to do so.



2.1.3 Documentation License. Subject to the terms and conditions of

this Agreement, Netscape hereby grants and Concentric hereby

accepts a nonexclusive, nontransferable license to use and

reproduce the Documentation, and to distribute the Documentation

solely in conjunction with the Netscape Products. Such

reproductions shall occur only at Concentric's principal office

first set forth above, unless an alternate location is otherwise

specified in writing to Netscape. Such distribution may be to

Distributors and End Users.



2.1.4 Licenses Dependent on No Retail Distribution and Bundling. The

licenses granted in Paragraph 2.1.1 are conditional upon no

retail distribution of, and the marketing and bundling of, each

Netscape Product as required therein. If Concentric distributes

through the retail channel, or fails to so bundle the Netscape

Products, the licenses shall be immediately revocable by Netscape

in addition to any other remedies Netscape may have.



2.2 Export



Concentric shall comply fully with all then-current applicable laws, rules

and regulations relating to the export of technical data, including, but

not limited to any regulations of the United States Office of Export

Administration and other applicable governmental agencies and Concentric

acknowledges that by virtue of certain security technology embedded in the

Netscape Products, that export of such software may not be legal. Netscape

agrees to cooperate in providing information requested by Concentric as

necessary to obtain any required licenses and approvals. When distributing

the Netscape Products and Documentation in countries where an enforceable

copyright law covering the same does not





exist, Concentric or its Distributors shall obtain a written agreement

signed by the customer prohibiting the customer from making unauthorized

copies of the same.



SECTION 3. MARKETING AND DISTRIBUTION



3.1 Nonexclusivity



Concentric understands that Netscape may enter into arrangements similar

to this Agreement with third parties.



3.2 Public Announcements and Promotional Materials



Netscape and Concentric shall cooperate with each other so that each

party may issue a press release concerning this Agreement, provided that

each party must approve any press release prior to its release. Netscape

shall cooperate with Concentric in its development of the initial

marketing and sales materials used to promote the distribution of the

Netscape Products.



3.3 Terms Relating to Distribution



3.3.1 General Restrictions on Distribution



Concentric agrees to comply with and shall require its

Distributors to comply with all applicable laws, rules and

regulations to preclude the acquisition of unlimited rights to

technical data, software and documentation provided with the

Netscape Product to a governmental agency, and ensure the

inclusion of the appropriate "Restricted Rights" or "Limited

Rights" notices required by the U.S. Government agencies.



3.3.2 Distributor License Agreement



Concentric shall procure from each Distributor an executed copy

of a distribution license ("Distributor License Agreement")

sufficient to ensure that such Distributors are required to

comply with the relevant terms of this Agreement.



3.3.3 End User License Agreements



Concentric and its Distributors shall distribute the Netscape

Products to End Users only under the terms of, and shall ensure

that the Netscape Products are subject to applicable end user

license agreements with terms at least as restrictive as those

set forth in the end user license agreements attached hereto as

Attachment D ("End User License Agreements").



3.3.4 Enforcement of Sublicense Agreements



Concentric and its Distributors shall use commercially reasonable efforts

to enforce each Distributor License Agreement and End User License

Agreement, whichever may be relevant, with at least the same degree of

diligence used in enforcing similar agreements governing others, which in

any event shall be sufficient to adequately enforce such agreements.

Concentric shall use commercially reasonable efforts to protect

Netscape's copyright, shall notify Netscape of any breach of a material

obligation under a Distributor License Agreement or an End User License

Agreement affecting Netscape Products, and will cooperate with Netscape

in any legal action to prevent or stop unauthorized use, reproduction or

distribution of Netscape Products.



SECTION 4. FEES AND PAYMENT



4.1 Prepaid License Fees



4.1.1 Concentric shall pay to Netscape the non-refundable royalty

license fees ("License Fees") specified in Attachment B hereto.

In addition, upon exhaustion of the License Fees, Concentric

shall pay to Netscape the royalties per license granted by

Concentric and Distributors to End Users as specified in

Attachment B in connection with the distribution of all or any

portion of a Netscape Product or Update. The License Fees shall

be credited against the royalties accruing under this Agreement

in accordance with Attachment B hereto. Licenses will accrue in

the applicable corresponding quantity upon: (a) the initial date

of Concentric's internal use; (b) distribution by Concentric of a

Netscape Product copy to a Distributor or End User; (c)

authorization by Concentric to increase the authorized number of

copies and (d) the initial date of Concentric's internal use or

shipment by Concentric to an End User or Distributor of an

Update. Concentric shall pay Netscape such royalties accrued

during each month within thirty (30) days following the end of

such month and each such payment shall be accompanied by a

monthly royalty report as described in Paragraph 4.3 below.



4.1.2 Service Fees. Concentric shall pay to Netscape the service fees

set forth on Attachment B for maintenance and support services

set forth in Attachment E hereto.



4.2 Payment and Taxes



4.2.1 Payments. All payments shall be made in United States dollars at

Netscape's address as indicated in this Agreement or at such

other address as Netscape may from time to time indicate by

proper notice hereunder.



4.2.2 Taxes. All fees and royalties are exclusive of all taxes, duties

or levies, however designated or computed. Concentric shall be

responsible for and pay all taxes based upon the transfer, use,

distribution of Netscape Products, or the program storage media,

or upon payments due under this Agreement including, but not

limited to, sales, use, or value-added taxes, duties, withholding

taxes and other assessments now or hereafter imposed on or in

connection with this Agreement or with any sublicense granted

hereunder, exclusive of taxes based upon Netscape's net income.

In lieu thereof, Concentric shall provide to Netscape a tax or

other levy exemption certificate acceptable to the taxing or

other levying authority.



4.3 Monthly Reports



Concentric and its Distributors shall maintain accurate records of End

Users, including the name and address of each End User, the specific

platforms distributed to each End User, and any further information as

Netscape may from time to time reasonably request to be maintained.

Concentric shall report to Netscape within Thirty (30) calendar days after

the end of each month, the type and number of licenses granted for the

Netscape Products during such prior month by Concentric to Distributors and

End Users.



4.4 Audit of Records



Concentric shall keep and maintain full, true, and accurate records

containing all data reasonably required for verification of amounts to be

paid, and the quantity of Netscape Products distributed. Netscape shall

have the right, during normal business hours upon at least five (5)

business days prior notice, to have a nationally recognized independent

auditor audit and analyze the relevant records of Concentric to verify

compliance with the provisions of this Agreement. The audit shall be

conducted not more than twice every twelve (12) months at Netscape's

expense unless there is inadequate record keeping or the results of such

audit establish that inaccuracies in the monthly royalty reports have

resulted in underpayment of royalties to Netscape more than five percent

(5%) of the amount actually due in any month, in which case Concentric

shall bear the expenses of the audit.





SECTION 5. DELIVERABLES, UPDATES, AND TECHNICAL SUPPORT



5.1 Deliverables



Netscape shall provide Concentric with the deliverables indicated in

Attachment B ("Deliverables"). All deliveries under this Agreement shall be

F.O.B. Netscape.



5.2 Updates and Technical Support



Netscape shall provide Concentric with Updates as they become available

from Netscape at the pricing, terms and conditions specified in Attachment



SECTION 6. TRADEMARKS AND TRADE NAMES



6.1 License to Use



Whenever Concentric makes reference to the Netscape Products or the

functionality of the Netscape Products provided within the Concentric

Product, then Concentric shall use (and is hereby granted a non-

transferable, non-exclusive restricted license to use) those Netscape

trademarks and trade names relating to the applicable Netscape Products in

any advertising, marketing, technical or other materials related to such

Netscape Products which are distributed by Concentric or its Distributors

in connection with this Agreement. Concentric need not use Netscape's

trademarks and trade names in any country in which their connotation is

offensive and will consult with Netscape as to the foreign translation of

Netscape trademarks and trade names so that Netscape can help ensure

uniformity with their use by Netscape or third parties. Concentric shall

clearly indicate Netscape's ownership of such trademarks or trade names

specified in Netscape's trademark and trade name listing indicated in

Attachment C. All such usage shall inure to Netscape's benefit. Concentric

agrees not to register, and agrees to obtain the agreement of its

Distributors not to register, any Netscape trademarks or trade names

without Netscape's express prior written consent. Upon Netscape's request

from time to time Concentric agrees to provide Netscape with copies of

goods bearing Netscape's trademarks and trade names so that Netscape can

verify their adequate quality. Concentric shall suspend use of Netscape

trademarks and trade names if such quality is reasonably deemed inferior by

Netscape until Concentric has taken such





steps as Netscape may reasonably require to solve the quality deficiencies.

A list of Netscape's current trademark registrations and pending

applications is indicated in Attachment C. Netscape reserves the right to

update Attachment C from time to time in accordance with the notice

requirements under this Agreement.



SECTION 7. PROPRIETARY RIGHTS



7.1 Proprietary Rights



Title to and ownership of all copies of the Netscape Products and

Documentation 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

(including without limitation rights in patents, copyrights, and trade

secrets applicable thereto), are and shall remain the exclusive property of

Netscape and its suppliers. Concentric shall not take any action to

jeopardize, limit or interfere in any manner with Netscape's ownership of

and rights with respect to the Netscape Products and Documentation.

Concentric shall have only those rights in or to the Netscape Products and

Documentation granted to it pursuant to this Agreement.



7.2 Proprietary Notices



7.2.1 No Alteration of Notices. Concentric and its employees and agents

shall not remove or alter any trademark, trade name, copyright,

or other proprietary notices, legends, symbols, or labels

appearing on or in copies of the Netscape Products and

Documentation delivered to Concentric by Netscape and shall use

the same notices, legends, symbols, or labels in and on copies of

Netscape Products and Documentation made pursuant to Section 2.1

as are contained in and on such Netscape Products and



7.2.2 Notice. Each portion of the Netscape Products and Documentation

reproduced by Concentric shall include the intellectual property

notice or notices appearing in or on the corresponding portion of

such materials as delivered by Netscape hereunder. Concentric

shall ensure that all copies of the Netscape Products made

pursuant to this Agreement conspicuously display the following

notice:



Copyright (C)1994 (or other appropriate year(s)), Netscape

Communications Corporation. All Rights Reserved.



If Concentric is unsure of the appropriate year(s), it shall consult

Netscape to obtain the correct designation. Such notice shall be on labels

on all media containing Netscape Products. If the copyright symbol "(C)"

cannot technically be reproduced, Concentric shall use the word "Copyright"

followed by the notation "(c)" in its place.



SECTION 8. CONFIDENTIAL INFORMATION AND DISCLOSURE



8.1 Confidential Information



Each party agrees to maintain all Confidential Information in confidence to

the same extent that it protects its own similar Confidential Information

and to use such Confidential Information only as permitted under this

Agreement. For purposes of this Agreement





"Confidential Information" shall mean information including, without

limitation, computer programs, code, algorithms, names and expertise of

employees and consultants, know-how, formulas, processes, ideas, inventions

(whether patentable or not), schematics and other technical, business,

financial and product development plans, forecasts, strategies and

information marked "Confidential" or if disclosed verbally, reduced to

writing and marked "Confidential" within thirty (30) days after the date of

disclosure. Each party agrees to take all reasonable precautions to prevent

any unauthorized disclosure or use of Confidential Information including,

without limitations disclosing Confidential Information only to its

employees (a) with a need to know to further permitted uses of such

information and (b) who are parties to appropriate agreements sufficient to

comply with this Section 8, and (c) who are informed of the nondisclosure/

non-use obligations imposed by this Section 8 and both parties shall take

appropriate steps to implement and enforce such non-disclosure/non-use

obligations. The foregoing restrictions on disclosure and use shall survive

for Three (3) years following termination of this Agreement but shall not

apply with respect to any Confidential Information which (i) was or becomes

publicly known through no fault of the receiving party; (ii) was rightfully

known or becomes rightfully known to the receiving party without

confidential or proprietary restriction from a source other than the

disclosing party; (iii) is independently developed by the receiving party

without the participation of individuals who have had access to the

Confidential Information; (iv) is approved by the disclosing party for

disclosure without restriction in a written document which is signed by a

duly authorized officer of such disclosing party; and (v) the receiving

party is legally compelled to disclose; provided, however, that prior to

any such compelled disclosure, the receiving party will (a) assert the

privileged and confidential nature of the Confidential Information against

the third party seeking disclosure and (b) cooperate fully with the

disclosing party in protecting against any such disclosure and/or obtaining

a protective order narrowing the scope of such disclosure and/or use of the

Confidential Information. In the event that such protection against

disclosure is not obtained, the receiving party will be entitled to

disclose the Confidential Information, but only as and to the extent

necessary to legally comply with such compelled disclosure.



8.2 Confidentiality of Agreement



Unless required by law, and except to assert its rights hereunder or for

disclosures to its own employees on a "need to know" basis, Concentric

agrees not to disclose the terms of this Agreement or matters relating

thereto without the prior written consent of Netscape, which consent shall

not be unreasonably w ...