TECHNOLOGY SHARING AND LICENSE AGREEMENT

TECHNOLOGY SHARING AND LICENSE AGREEMENT



This Technology Sharing and License Agreement (hereinafter the "Agreement") entered into effective as of the 31st day of October, 1998, by and between BOL.GLOBAL, INC., a Delaware corporation, having its principal offices at 1540 Broadway, New York, New York 10036 ("Licensor"), and barnesandnoble.com llc, a Delaware limited liability company, having its principal offices at 76 Ninth Avenue, 11th Floor, New York, New York 10011 (hereinafter referred to as "Licensee" and, together with Licensor, the "Parties").



This Agreement is delivered pursuant to the terms of the Formation Agreement, of even date herewith, among BAG, USO, BN, Transferor, BN.Com Member and BN.com Holding.



I. CERTAIN DEFINITIONS



"Applications Programming Interface"or "API" means the specifications of a Licensed Product which define the external programming requirements necessary to interface between that Licensed Product and other Object Code and shall include the following set of items implementing the Applications Programming Interface: (a) Documentation describing the Applications Programming Interface; (b) Object Code and Documentation relating thereto designed for use on, and implementing the Applications Programming Interface on, the applicable target system; and (c) validation procedures and Documentation for the target system.



"Code" shall mean Object Code and Source Code.



"Components" shall mean information, materials, products, features, services, content, computer software, designs, artistic renderings, drawings, sketches, characters, layouts and the digital implementations thereof.



"Copyrights" shall mean the copyrights owned by Licensor in the Licensed Products.



"Derivative Works" shall mean all "derivative works" and "compilations" within the meanings of such terms as defined in the U.S. Copyright Act (17 U.S.C. Section 101 et seq.).



"Documentation" (including its correlative "Document") means, at any given time, the most current version of all available manuals and other written materials, including style guides, owned at any point in time on or after the date hereof by Licensor or any of its Affiliates that relate to the Licensed Products, including materials useful for understanding and operating the Object Code of the Licensed Products and machine-readable text or graphic files subject to display or printout.



"Effective Date" shall mean the date of the execution of this Agreement by both Parties.



"Excluded Product" shall mean any technology, product or service which





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is not owned exclusively by Licensor unless Licensor has the right to sublicense such technology, product or service to a third party without the payment of any fees or expenses, provided that the term Excluded Product shall not include the Licensed Products, any enhancement or derivative thereof or any replacement thereto.



"Intellectual Property Rights" shall have the meaning given in Section VI C.



"Internet" shall mean any collection of computer networks composed of backbone networks including, without limitation, APRAnet, NSFNet, MILNET, mid-level networks, regional networks and stub networks. These may include commercial, university and other research networks and military networks and may span many different physical networks around the world with various protocols including the Internet Protocol, as the same may evolve in the future.



"Joint Enhancements" shall mean any enhancements, added functionalities, additions, extensions or improvements to the Licensed Products that are created or developed jointly by Licensor, its Affiliates or their agents, on the one hand, and Licensee, on the other hand, including any Components which are jointly contributed to the Licensed Products.



"LLC Agreement" means the Amended and Restated Limited Liability Company Agreement, effective as of the date hereof, between BAG, USO, BN, and BN Holding.



"Licensed Products" means all Subject Products delivered by Licensor to Licensee prior to the expiration of the Term.



"Licensee Services" means Online Commerce Services conducted by Licensee.



"Licensee Works" shall have the meaning given in Section II D.



"Licensor Derivative Works" shall mean Derivative Works, including any translations and customizations created by Licensor or Licensee for use with the Online Commerce Services.



"Licensor Enhancements" shall mean any enhancements, added functionalities, additions, extensions of or improvements to the Licensed Products that are created or developed by Licensor, its Affiliates or their agents, including any Components which are contributed to the Licensed Products by such Persons.



"Licensor Proprietary Object Code" means all Object Code which Licensor and/or its Affiliates own.



"Licensor Services" shall mean the Online Commerce Services conducted by Licensor and its Affiliates.



"Object Code" shall mean (i) machine executable programming instructions, substantially in binary form, which are intended to be directly executable by an operating system after suitable processing and linking but without the intervening steps of compilation or assembly, or (ii) other executable code (e.g., programming instructions written in procedural or interpretive languages).





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"Online Commerce Services" shall mean services related to the online retail sale of Products to customers through one or more Websites.



"Permitted Sublicensees" shall mean any entity which offers access to Products as part of its Internet online service or other Websites to procure sales pursuant to a license agreement with Licensee containing terms and conditions consistent with this Agreement, provided that Licensee, at the time it granted a sublicense, owned at least twenty-five percent (25%) of the equity interest in the sublicensee and no Restricted Transferor as defined in the LLC Agreement had at such time any interest in such sublicensee.



"Products" shall mean books, videos, music, magazines, software and other items approved by Licensor in writing.



"Source Code" shall mean the human readable form of Object Code and related system documentation, including comments, procedural language and material useful for understanding, implementing and maintaining such instructions (for example, logic manuals, flow charts and principles of operation).



"Subject Products" means all Licensor Proprietary Object Code that is:



a) necessary and/or appropriate for use in launching and operating Licensee Services;



b) embodied in development tools that are used to develop, create, and enhance Licensed Products for use in connection with Licensee Services;



c) an upgrade, enhancement, or modification of an item set forth in the foregoing subsections (a) and (b), whether patentable or not, that is necessary and/or appropriate for use in launching and operating Licensee Services, or developing, creating, and enhancing Licensed Products for use in connection with Licensee Services, as the case may be; or



d) an upgrade, enhancement, or modification to a Third Party Product created by Licensor, that is incorporated by Licensor into the Online Commerce Services by Licensor, and for which Licensor has received all necessary rights to license to Licensee as set forth in this Agreement.



Subject Products exclude: (i) Excluded Product; (ii) all development tools, regardless of the creator, except those set forth in subsection (b) above and (iii) Third Party Products or upgrades, enhancements, or modifications to same, except those set forth in subsection (d) above.



"Third Party Products" refers to computer software products and related documentation licensed by Licensor from third parties and necessary and/or appropriate for use in launching and operating Licensee Services, including software products and related documentation readily available in the market place pursuant to a "shrink-wrap" license or similar form license agreement. For the avoidance of doubt, the term "Third Party Products" shall not include Licensed Products.



"Website" shall man any interactive site or area, including any interactive site or area located on the World Wide Web portion of the Internet or on any commercial service or network (including America Online), which is accessed via the use of any protocols, standards and platforms





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(including Internet or Internet derivative protocols, standards and platforms) for remote access by narrowband or broadband telecommunications, including POTS, ISDN, cable, fiber optics and hybrid CD-ROM, regardless of whether access to such site or area is secured through cable, telephone, satellite or otherwise and regardless of whether the same is received or operated in conjunction with a personal computer or television, together with any successor into which any of the foregoing may evolve.



Any capitalized term which is not specifically defined herein shall have the meaning given to that term in the LLC Agreement.



II. LICENSE GRANT AND REQUIREMENTS



A. Licensed Products. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a perpetual, non-revokable, non-transferable (except as set forth in this Agreement) license for the Licensed Products.



B. Third Party Products. Subject to the terms and conditions of this Agreement, and subject to the payment of applicable third-party royalties or fees, if any, as specified in Section X of this Agreement, Licensor hereby grants to Licensee the same license rights in respect of Third Party Products (to the extent that Licensor is legally entitled to sublicense such rights to Licensee as of the Effective Date) as Licensor has granted to Licensee in respect of the Licensed Products under Section II A. Licensee acknowledges and agrees that, with respect to some Third Party Products, the grant to Licensee of the rights specified in this Section II B may require the consent of the owners of such Third Party Products. Licensor shall use commercially reasonable efforts to obtain such consents. Licensor shall notify Licensee of any failure to obtain such a consent. Licensor shall also notify Licensee of the extent to which Licensor is not legally entitled to grant to Licensee, with respect to a Third Party Product, any or all of the rights specified in this Section II B. Licensee may then, in its discretion, attempt to obtain from the applicable third party the appropriate consent or a direct license of such rights, as the case may be. Licensor shall use commercially reasonable efforts to assist Licensee in such efforts. If it is necessary to make any payment to a third party in order to secure the approval of a third party to consent to a license to the Licensee, such amount shall be paid by the Company provided that the Company shall not be required to make any payment which is unreasonable in amount given the nature and scope of the license to be procured.



C. Documentation. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a perpetual, non-revokable, non-transferable (except as expressly provided herein) right to:



(i) use, translate into foreign languages, display, reproduce and distribute internally any Documentation relating to the Licensed Products; and



(ii) upon receipt of prior written approval from Licensor, which approval shall not be unreasonably withheld or delayed, furnish to providers of services to Licensee the Documentation comprising the information provider's guide and the remote managed gateways guide. Any such prior written approval shall be required only once for each information provider for each of the information provider's guide or the remote managed gateways guide.





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D. APIs; Licensee Works. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a perpetual, non-revokable, non-transferable (except as expressly provided herein) right to:



(i) use and make copies of the Application Programming Interfaces for the sole purpose of developing software products that access, and/or interface with, such Application Programming Interfaces ("Licensee Works"); and



(ii) sublicense the rights granted pursuant to Section II D(i) to independent developers that are engaged by or for Licensee to prepare Licensee Works for the benefit of Licensee.



E. License Limitations. With respect to proprietary software, the following shall apply:



(i) The licenses granted pursuant to Sections II A through D include, and Licensee shall have the right hereunder, to receive, use or make copies of the Source Code for the Licensed Products and, to the extent permitted under applicable agreements, the Third Party Products.



(ii) The licenses granted pursuant to Sections II A through D include the right to (a) adapt, alter, modify, translate or create derivative works of the Licensed Products, Third Party Products (to the extent permitted under applicable agreements) and Documentation; (b) reverse engineer, decompile, disassemble, or reconstruct the Source Code for the Licensed Products or Third Party Products (to the extent permitted under applicable agreements); and (c) reverse engineer, reconstruct, ascertain, adapt, alter or modify, the proprietary protocols, algorithms, internal instructions and command sets used in the operation of the Licensed Products and the Third Party Products (to the extent permitted under applicable agreements).



F. Proprietary Notices. Licensee agrees not to obfuscate, remove or alter any of the patent, copyright, trademark, trade secret, proprietary and other legal notices contained, in or displayed by the use of, the Licensed Products, Documentation or Third Party Products. Licensee further agrees to produce, in each copy of the Licensed Products, Documentation or Third Party Products that is made by Licensee, such patent, copyright, trademark, trade secret, proprietary and other legal notices that are included in the Licensed Products, Documentation or Third Party Products, as provided by Licensor to Licensee.



G. Translations. For each translated Document, Licensee shall provide Licensor with one complete copy of such translated Document in both print and computer-readable format. Licensee shall only refer to the English language Documentation in any communication with Licensor, including receipt of technical support from Licensor.



H. Compliance with Encryption and Export/Import Laws. Licensor and Licensee shall comply, and Licensee shall require all distributors to comply, with all of then-current applicable laws, rules and regulations of the United States (and any other countries having jurisdiction) rel ...