Software Distribution Agreement

Exhibit 10.11


BE INCORPORATED
SOFTWARE DISTRIBUTION AGREEMENT


This Software Distribution Agreement (the "Agreement") is made and entered into this 5 day of November, 1998 ("Effective Date"), by and between Be Incorporated,
- -------- - a California corporation having its principal office at 800 El Camino Real, Suite 300, Menlo Park, California 94025 ("Be"), and Plat'Home Co Ltd, a Japanese corporation having its principal office at Narita Building, 2-3-6 Sotokanda, Chiyoda-ku, Tokyo, Japan 101 ("PLATHOME").


In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:


1. Definitions. For purposes of this Agreement:


1.1 BeOS. "BeOS" shall mean all or part of those computer programs owned
by or licensed to Be and Licensed Components in machine executable
object code form that make up the BeOS(TM) [*].


1.2 End User. "End User" means a licensee of the BeOS who acquires such
for use rather than distribution or resale.


1.3 End User Documentation. "End User Documentation" shall mean Be's
standard user manuals and other written and graphic materials provided
by Be for distribution to End Users [*].


1.4 Licensed Components. "Licensed Components" shall mean certain
components of the BeOS which have been licensed to Be, with the right
to further sublicense such components.


2. Rights and Restrictions.


2.1 Appointment; License Grant. Be hereby appoints PLATHOME as a non-
exclusive reseller of the BeOS in Japan during the term of this
Agreement. [*] There are no implied licenses under this Agreement, and
any rights not expressly granted to PLATHOME hereunder are reserved by
Be.


(a) BeOS. Subject to the terms of this Agreement, Be grants to
PLATHOME a non-exclusive, nontransferable right, during and for the
term of this Agreement, to market, sell and distribute (through its
normal distribution channels) the BeOS in Japan only. PLATHOME shall
cause each copy of the BeOS distributed to End Users by PLATHOME, or
by any other third party which PLATHOME grants redistribution rights,
to be


[*] Certain information in this exhibit has been omitted and filed separately
with the Commission. Confidential Treatment has been requested with
respect to the omitted portions.


subject to an End User License Agreement containing terms that
are no less restrictive of Be's rights than the provisions
contained in Be's standard software end user license attached
hereto as Exhibit A; and any redistribution or resale rights in
the BeOS granted by PLATHOME to any third party shall be subject
to limitations and restrictions at least as great as those set
forth herein.
(b) Trademarks. Subject to the restrictions set forth in
Section 8 and the terms of this Agreement and solely in
connection with PLATHOME's distribution of the BeOS, Be grants to
PLATHOME a limited right to use the trademarks, trade names and
other marketing names used by Be in connection with the BeOS, a
current list of which is set forth in Exhibit B (the "Trademarks
and Trade Names").


2.2 License Restrictions.


(a) PLATHOME acknowledges and agrees that the BeOS contains Be's
proprietary information and in order to protect such information,
PLATHOME shall not, nor shall it allow a third party to, [*]
(b) Except as explicitly set forth in this Agreement, PLATHOME
shall not [*].
(c) PLATHOME shall not [*] without Be's prior written consent.
PLATHOME's rights granted under this Agreement do not include the
right [*].


3. Order, Delivery and Payment.


3.1 Price. PLATHOME shall [*] for copies of the BeOS ordered under
this Agreement. Subject to Section 3.2, Be may change the price
by providing PLATHOME with thirty (30) days prior written notice.
3.2 [*] If the [*] of the BeOS is [*] Be during the term of this
Agreement, Be shall [*]. If the [*] of the BeOS is [*] Be shall
[*]


[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to
the omitted portions.


[*] as of the effective date of the [*]. 3.3 Payment. PLATHOME shall pay to Be the amount due for copies of the BeOS
purchased by PLATHOME hereunder [*] for such amount. All such payments
shall be in U.S. Dollars. Any amount not paid when due will [*]. 3.4 Terms. The terms and conditions of this Agreement shall apply to all orders
by PLATHOME for the BeOS and supersede any different or additional terms
on purchase orders from, or any general conditions maintained by PLATHOME.
PLATHOME shall submit written orders, by mail, fax or other method, for the
BeOS in accordance with the then-current order processing procedures
established by Be. Be shall use reasonable efforts to make deliveries of
orders so accepted by the requested delivery dates, but Be shall not be
liable for any damages to PLATHOME or to any other person for Be's failure
to fill any orders, or for any delay in delivery or error in filling any
orders for any reason whatsoever. 3.5 Shipments. All shipments will be made [*] warehouse facility to the
delivery address specified by [*]. Delivery will be deemed complete and
risk of loss or damage to the BeOS will pass [*]. 3.6 Acceptance. Each shipment shall be deemed accepted by PLATHOME upon
delivery by Be. 3.7 Taxes and Duties. In addition to any other payments due under this
Agreement, PLATHOME agrees to pay, indemnify and hold Be harmless from any
sales, use, excise, import or export, value added or similar tax or duty,
and any other tax or duty not based on Be's net income, including any
penalties and interest, and all government permit, license, customs and
similar fees, and any costs associated with the collection or withholding
of any of the foregoing.


4. UPDATES. Be may from time to time, in its sole discretion, make updates and
bug-fixes to the BeOS publicly available to End Users from Be's website. Be
is under no obligation to provide PLATHOME with any new products or version
of the BeOS.


5. Marketing Obligations. In accordance with the standards set forth in Section
8 PLATHOME shall [*].


[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to
the omitted portions.


6. [*]


[*] Be [*] that, [*], including [*]; (ii) it has not [*] under this
agreement; (iii) it will [*] the BeOS, the result of which would
[*] the BeOS [*] under the terms of this Agreement; and (iv) [*] Be [*]
PLATHOME any [*] business from PLATHOME [*].
[*] Be DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT.
6.3 Support. [*] PLATHOME shall make no warranties to End Users on behalf
of Be and agrees to indemnify and hold Be harmless from any third party
claims based on warranties given in violation of this Agreement.


7. Limitation of Liability.


[*] SHALL BE LIABLE TO [*] UNDER THIS AGREEMENT, OR ARISING OUT OF OR IN
CONNECTION WITH THE USE OF THE LICENSES GRANTED HEREUNDER, FOR ANY AMOUNTS
REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS OR DATA, OR INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES OF THE OTHER PARTY, WHETHER IN AN ACTION
IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF [*] HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.


8. Trademarks, Markings.


8.1 Trademarks and Trade Names. During the term of this Agreement, in connection with PLATHOME's advertising, promotion and marketing of the BeOS and in related product brochures and other materials, PLATHOME will use the Trademarks. Be may from time to time attach other or additional Trademarks or names to the BeOS. Be grants no other rights than expressly granted


[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with respect to
the omitted portions.


hereunder, and PLATHOME acknowledges Be's exclusive ownership of such marks
and names worldwide. PLATHOME agrees not to take any action inconsistent
with such ownership and further agrees to take, at Be's expense, any
action, including without limitation, the conduct of legal proceedings,
which Be deems necessary to establish and preserve Be's exclusive rights in
and to its Trademarks and trade names.
8.2 Markings. Any reproduction of Be's Trademarks, logos, symbols and
other identifying marks shall be true reproductions. PLATHOME will not
remove or make or permit alterations to any labels or other identifying
markings placed by Be on the BeOS, or its packaging or Documentation.
8.3 Use of Be's Marks and Names. PLATHOME [*] Be's Trademarks in PLATHOME's
[*] subject to Be's prior written approval, which approval shall not be
unreasonably withheld or delayed.
8.4 Use of PLATHOME's Names. Be [*] PLATHOME's name in Be [*], subject to
PLATHOME's prior written approval, which approval shall not unreasonably
withheld or delayed.


9. Confidentiality; Proprietary Rights.
[*] shall be held in confidence by the parties and shall not be
disclosed by either party to any outside party without the prior written
consent of the other party; [*] In such case, [*] shall only occur when [*]
has [*] that is [*].
9.2 Confidential Information. The term "Confidential Information" means
any technical or non-technical information relating to Be, the BeOS,
Documentation and PLATHOME proprietary information, such as product plans,
costs, prices, names, finances, marketing plans, business opportunities,
personnel and the like, which is disclosed by one party ("Disclosing
Party") to the other party ("Receiving Party") [*].
9.3 No Use of Confidential Information for Own Purpose. During this
Agreement, and for [*] after the termination of this Agreement,
Receiving Party agrees to keep Confidential Information of Disclosing
Party in confidence, and shall neither disclose it to any third party nor
use the same for any purposes other than those contained in this Agreement.
[*]


[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential Treatment has been requested with repsect to
the omitted portions.


[*] Nothwithstanding the foregoing, Receiving Party shall have no
confidenti ...