Software Distribution Agreement

RETURN TWO SIGNED ORIGINALS)





SOFTWARE DISTRIBUTION AGREEMENT MacTCP



[APPLE LOGO] APPLE COMPUTER, INC. Software Licensing Department 2420 Ridgepoint Drive MS - 198SWL Austin, TX 78754





Licensee Earthlink Network, Inc.

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Individual to Contact Sky Dayton

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Street Address 3171 Los Feliz Boulevard Suite 203

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City Los Angeles State CA Zip Code S 90039 Country USA

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Telephone Number: (213) 644 9500 x 110

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AppleLink Address:

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Internet Address(es)*: Sky @ Earthlink.Net

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--------------------------------------------------------- *An Internet Address is required to obtain product updates under this Agreement.



Apple Computer, Inc. ("Apple") and Licensee agree that the following terms and conditions shall govern Licensee's use and distribution of the Apple Software.



1 . DEFINITIONS



1.1 "Apple Software" means the object code form of the Apple Software program

identified in Exhibit B as the "Apple Software" and any subsequent

version(s) of the Apple Software that Apple notifies Licensee will be

covered by this Agreement.



1.2 "Distributor" means an individual or entity that is licensed by Licensee or

another Distributor to distribute Licensee Programs to End-Users or other



1.3 "End-User" means an individual or entity that licenses Licensee Programs

for his or its own personal or business purposes, and not for license to



1.4 "Licensee" means the licensee listed above.



1.5 "Licensee Programs" means Licensee's own computer programs listed and

described in Exhibit C.



1.6 "...as incorporated in Licensee Programs..." means that (i) Licensee

Programs depend upon Apple Software for certain elements of their operation

and functionality; (ii) Licensee Programs access Apple Software

functionality by means of programing libraries and programming interfaces,

separately available from Apple; (iii) Licensee Programs incorporate Apple

Software by reference by compilation with, and linking to these





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programming libraries and programming interfaces; and (iv) Apple Software

is not distributed independently of Licensee Programs which depend on Apple

Software. Licensee Programs may be distributed independently of Apple



1.7 "Volume Licensing Program" means a software licensing program that

authorizes use of the Apple Software only as incorporated in Licensee

Programs on multiple computers - either a specific number of computers, or

for a number of computers within a specific number range, where that number

does not exceed 2000 computers.



1.8 "Limited Site Licensing Program" means a software licensing program that

authorizes use of the Apple Software only as incorporated in Licensee

Programs on multiple computers - either a specific number of computers, or

for a number of computers within a specific number range, where that number

is greater than 2000 computers, but does not exceed 5000 computers.



1.9 "Site Licensing Program" means a software licensing program that authorizes

use of the Apple Software as incorporated in Licensee Programs on multiple

computers - either a specific number of computers, or for a number of

computers within a specific number range, where that number is greater than

2000 computers and may be any greater number.



1.10 "Unlimited Site Licensing Program" means a software licensing program that

authorizes use of the Apple Software as incorporated in Licensee Programs

on an unlimited number of computers.



2. LICENSE.



2.1 Apple hereby grants to Licensee a nonexclusive, nontransferable, worldwide license to (i) copy and/or have copied for it the Apple Software for the sole purpose of incorporating the Apple Software into Licensee Programs; and (ii) distribute, to End Users and Distributors, the Apple Software in object code form solely as incorporated in Licensee Programs which are designed to operate on or with Apple-labeled or Apple-manufactured CPUs only and solely in compliance with the conditions described in Exhibit B. This license grant is expressly conditioned upon Licensee and/or Distributor's compliance with the following requirements:



(a) All distributions to End-Users must be subject to an End-User Software License Agreement no less restrictive or materially less protective of Apple's rights in the Apple Software than the Software License attached hereto as Exhibit D. For each jurisdiction in which Licensee Programs are distributed, it is Licensee's responsibility to use an End-User Software License Agreement which is enforceable under and complies with the laws of the jurisdiction.



(b) All Distributors must be subject to binding written agreements that include provisions consistent with and the material substance of Paragraphs 2, 3, 7, 8, 9 and 12 of this Agreement, and such agreements must be materially no less protective of Apple's rights in the Apple Software than are the terms and conditions of this Agreement.



(c) Licensee may distribute the Apple Software solely as incorporated in Licensee Programs as part of a Volume Licensing Program associated with Licensee Programs. In such cases, Licensee will include a restriction in its Volume Licensing Program Agreement with the End-User that the Apple Software shall be used by the End-User solely for operation in conjunction with Licensee Programs. Licensee agrees to refer End-User queries regarding use of the Apple Software with any other software to Apple, for execution of an Apple Tiered Volume License Agreement between Apple and the End-User.









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(d) Subject to the additional fees described in option D of Exhibit A as the "Limited Site License Option", Licensee may distribute the Apple Software solely as incorporated in Licensee Programs as part of a Limited Site Licensing Program associated with Licensee Programs. In such cases, Licensee will include a restriction in its Limited Site Licensing Program Agreement with the End-User that the Apple Software shall be used by the End-User solely for operation in conjunction with Licensee Programs. Licensee agrees to refer End-User queries regarding use of the Apple Software with any other software to Apple, for execution of an Apple Master Software Site License Agreement between Apple and the End-User.



(e) Subject to the additional fees described in option E of Exhibit A as the "Site License Option", Licensee may distribute the Apple Software solely as incorporated in Licensee Programs as part of a Site Licensing Program associated with Licensee Programs. In such cases, Licensee will include a restriction in its Site Licensing Program Agreement with the End-User that the Apple Software shall be used by the End-User solely for operation in conjunction with the Licensee Programs. Licensee agrees to refer End-User queries regarding use of the Apple Software with any other software to Apple for execution of an Apple Master Software Site License Agreement between Apple and the End-User.



(f) Licensee may not distribute the Apple Software as part of any Unlimited Site Licensing Program.



(g) Licensee is not authorized to distribute the Apple Software Programming Libraries under this Agreement.



2.2 Licensee acknowledges that the Apple Software is proprietary to Apple and that Apple retains all right, title, and interest in and to the Apple Software, including without limitation all copyrights and other proprietary rights.



2.3 Licensee agrees not to reverse engineer, reverse compile, or otherwise disassemble the Apple Software, except as permitted by applicable legislation. Licensee may not use, reproduce, sublicense, distribute or dispose of the Apple Software, in whole or in part, other than as permitted under this Agreement.



2.4 If Apple requests in writing, Licensee shall provide Apple with an archive copy of Licensee Programs in object code form for the sole purpose of monitoring Licensee's compliance with the terms of this Agreement.



2.5 Apple will notify Licensee of the availability of updates or extensions to the Apple Software ("Updates"). Upon such notification, Licensee will take all necessary steps to obtain Updates, including but not limited to downloading them from a server as instructed by Apple. Licensee shall incorporate any Update in Licensee Programs, and shall cease distribution of earlier versions of the Apple Software to the extent that they have been updated, at the first available opportunity within Licensee's product cycle, but no later than one hundred eighty (180) days after Apple has notified Licensee of the availability of such Update. Licensee shall make all Updates available to Licensee's End-Users upon the request of the End-Users or Apple.



2.6 Apple hereby grants to Licensee a nonexclusive, nontransferable, worldwide license to (i) copy and/or have copied for it and to modify the documentation included in the Apple Software for the sole purpose of incorporating such documentation into Licensee's documentation in support of the Apple Software as incorporated in Licensee Programs; and (ii) distribute such modified documentation to End Users and Distributors. This license in conditioned on the following copyright notice appearing in Licensee's documentation:



"Portions of this manual are copyrighted by Apple Computer, Inc."







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3. EFFECTIVE DATE; TERMS.



3.1 The Effective Date of this Agreement will be the date of Apple's execution. The initial term will be until December thirtieth (30th) of the current year and the Agreement will automatically renew for subsequent one year periods unless one of the following events occurs: (i) Licensee fails to pay the applicable renewal fee before the expiration of the current term; (ii) Apple terminates this Agreement at any time pursuant to Section 13; (iii) Apple provides notice to Licensee of its intent to terminate for any reason, with or without cause, at least twelve (12) months prior to the effective date of termination; or (iv) Licensee provides notice to Apple of its election to terminate this Agreement for any reason, with or without cause.



3.2 In the event of any termination, Licensee must immediately discontinue all use and distribution of the Apple Software. However, Licensee is entitled to retain one (1) copy of the Apple Software, and is not restricted from providing continued technical support of Licensee's End-Users, including continued support regarding the use of Apple Software in conjunction with Licensee's Programs.



4. CONSIDERATION.



4.1 In consideration of, and as a condition of the rights granted to Licensee by Apple, Licensee agrees to pay Apple the annual license fee and royalty payments based on the options selected by Licensee in Exhibit A. If a royalty option is specified on Exhibit A, a royalty obligation shall be effective upon the date Licensee begins the sale, license and/or distribution of Licensee Programs and shall extend as long as Licensee sells, licenses and/or distributes Licensee Programs.



4.2 If an annual license fee is specified on Exhibit A, the license fee for the initial term shall be prorated based upon the number of months remaining in the current year and is due and payable in United States currency upon Licensee's execution of this Agreement. The renewal fee for each subsequent term is due on the thirty first (31st) of December of the current year. As a courtesy, Apple intends to send renewal notices sixty (60) days prior to the expiration date of each term, but all renewal fees are due and payable on or before December 31 of each year, whether or not Apple provides such notice. The annual license fee for any of the options will not increase more than ten percent (10%) per annum for the first three (3) years of this Agreement.



4.3 If royalty payments are specified on Exhibit A, royalties shall be payable on an annual calendar basis, within 45 days of the end of the calendar year (December 31), with respect to the number of end-user licenses granted by Licensee to End-Users under Licensee's Site Licensing Programs. Royalty payments shall be determined in accordance with the schedule specified in Exhibit A. All payments to Apple shall be made in U.S. currency, with checks drawn on a U.S. bank. Foreign funds will be calculated at the exchange rate at which the Licensee's foreign currency transactions are translated in U.S. dollars at month end reporting. At the time when royalty payments are due, Licensee will deliver to Apple a report setting forth the following information: (i) Title of Licensee Program; (ii) number of licenses granted to Licensee's End-Users under Licensee's Site Licensing Programs for the immediately preceding year and in aggregate from inception of this license agreement; and (iii) a calculation of the royalties due and payable to Apple for the immediately preceding year and in aggregate from inception of this license agreement. Any overdue amounts shall bear interest at the rate of one and one-half (1.5%) percent per month or the maximum rate permitted under applicable law, whichever is less.



4.4 Apple shall have the right at its expense and on reasonable notice, to have an accredited auditing representative audit the records of Licensee to verify the information to be provided in the reports. If, as a result of such audit, a dollar error of over 5% for any quarter or year is found in favor of Apple, Licensee will reimburse Apple for t ...