EXHIBIT 10.8.4
LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into as of the 9th day of
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September, 1999 (the "Effective Date") by and between Annuncio Software, Inc., a
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California corporation with an office at 0000 Xx Xxxxxx Xxxx, Xxxxx X00, Xxx
Xxxxx, XX 00000 ("Annuncio"), and Bridge Telecom, Inc., a California corporation
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having an office at 0000 Xxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 ("Licensee").
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BACKGROUND
WHEREAS, Annuncio has developed certain Internet marketing automation
software known as Annuncio Live(TM); and
WHEREAS, Licensee wishes to obtain a non-exclusive license to use such
software to automate its Internet and integrated marketing campaigns .
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES HERETO
HEREBY AGREE AS FOLLOWS:
Article 1. Definitions
Section 1.1. Definitions. As used in this Agreement, the following terms shall
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have the meanings set forth below:
(a) "Annual Maintenance Fee" means the annual fee to be paid by Licensee
to Annuncio in exchange for the provision of maintenance and support services,
as further described in Section 5.1.
(b) "Annuncio Documentation" means the documentation provided by Annuncio
to Licensee to be used in conjunction with the Software.
(c) "Confidential Information" means any information disclosed by one
party (the "Disclosing Party") to the other (the "Receiving Party") in
connection with this Agreement which, if in written, graphic, machine-readable
or other tangible form is marked as "Confidential" or "Proprietary", or which,
if disclosed orally, is identified at the time of initial disclosure as
confidential and such identification is reduced to a writing delivered to the
Receiving Party within thirty (30) days of such oral disclosure. For the
purposes of this Agreement, Licensee's corporate mission, marketing campaigns,
market research, customer and partner lists, and financial models will be deemed
Confidential Information.
(d) "License Fee" means the fee for the license rights granted herein, as
set forth in Exhibit B.
(e) "Licensee Materials" means the text, customer data and other material
supplied by Licensee and used in conjunction with the Software.
(f) "Software" means Annuncio's proprietary software as further described
in Exhibit A, in object code form, and any Updates or upgrades thereto provided
by Annuncio hereunder.
(g) "Term" means the term of the license hereunder, as set forth in
Exhib it B.
(h) "Licensee Servers" means the unlimited number of computer servers
owned or operated by or for Licensee, which will contain the installed Software
for access in connection with the Licensee Services.
(i) " Licensee Services" means the hosting and subscription service
offered by Licensee in which Licensee allows Customers to use the Software
subject to the restrictions set forth herein and solely through the Licensee
Servers.
(j) "Customer" means a customer of the Licensee Services.
(l) "Updates" means any error corrections, bug fixes, modifications or
enhancements to the Software, which Annuncio generally makes available to its
similarly situated customers free of charge.
Article 2. Software License
Section 2.1. License Grant. Subject to all the terms and conditions of this
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Agreement, Annuncio hereby grants to Licensee, during the Term, a non-exclusive,
non-transferable, license to i) use the Software along with any accompanying
Annuncio Documentation; ii) to
[*]=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.
install multiple copies of the Software on Licensee's Servers which will be made
remotely accessible to Licensee's Customers for their subsequent use, subject to
the Deployment Criteria set forth in Exhibit B, (iii) to demonstrate the
Software to Customers solely through Licensee Servers; and (iv) to sublicense
the Software solely to Licensee Customers for the sole purpose of allowing such
Customers access and use of the Software through the Licensee Servers.
Notwithstanding the foregoing, no license is granted under this Agreement to
Licensee to distribute the Software to its Customers or otherwise or for use
other than as part of the Licensee Services. Licensee shall have the right to
use the Software for its own internal purposes, to test the Software and develop
marketing templates. Licensee may also make a reasonable number of copies solely
for backup or archival purposes. During the Acceptance Period set forth in
Section 4.2 below, Licensee shall be limited to demonstrating the Software to
potential Customers, and to developing and testing the Software.
Section 2.2. Restrictions. Licensee may not (i) copy or otherwise reproduce
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the Software other than as expressly set forth above; or (ii) transfer or grant
any rights in the Software or Annuncio Documentation in any form to any person
except as expressly set forth above.
Section 2.3. Proprietary Rights Notices. Licensee shall neither alter nor
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remove any copyright notice or other proprietary rights notices which may appear
on the Software or on or in any Annuncio Documentation delivered to Licensee
hereunder. In addition, Annuncio agrees that any reproduction of the Software
or the Annuncio Documentation (or any portion thereof) authorized by Annuncio
shall include such copyright and other proprietary rights notices as are
currently contained thereon or as may be reasonably specified from time to time
by Annuncio.
Section 2.4. No Sale. This license is not a sale. Title and copyrights to the
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Software, Annuncio Documentation and any copy made by Licensee remain with
Annuncio. Unauthorized copying of the Software or Annuncio Documentation, or
failure to comply with the above restrictions, will result in automatic
termination of this Agreement and will make available to Annuncio other legal
remedies. Notwithstanding the foregoing, Annuncio grants the right to Licensee
to test the Software and develop marketing templates therefrom ("Templates"),
and Licensee shall own all right, title and interest in and to all Templates
subject to Annuncio's copyright, patent, trade secret and other intellectual and
proprietary rights in the Software and Annuncio Documentation on which any such
Templates are based.
Section 2.5. Reservation of Rights. Annuncio hereby reserves to itself all
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rights in and to the Software not expressly granted to Licensee herein.
Licensee shall have no rights in or to the Software except as expressly granted
herein.
Section 2.6. No Reverse Engineering. Licensee shall not, and shall not permit
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any third party to, alter, modify, adapt, translate, prepare derivative works
from, decompile, reverse engineer, disassemble, or otherwise attempt to derive
computer source code from, as applicable, the Software, except as may be
expressly permitted by applicable local law.
Section 2.7. Proprietary Rights of Licensee. Licensee shall retain all of its
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right, title and interest in and to all patent rights, trademarks, trade names,
inventions, copyrights, know-how and trade secrets relating to the Licensee
Materials.
Article 3. Verification
Section 3.1. Certification. Upon Annuncio's written request, Licensee shall
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furnish Annuncio with a signed certification verifying that (i) the Software is
being used pursuant to the provisions of this Agreement and (ii) listing the
locations, and types of the systems on which the Software is run.
Section 3.2. Audit. Annuncio may, on a an semi-annual basis, audit Licensee's
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use of the Software. Any such audit shall include reasonable notice to Licensee
and be conducted during regular business hours at Licensee's facilities, shall
not unreasonably interfere with Licensee's business activities.
Article 4. Delivery; Acceptance And Payment
Section 4.1. Delivery. Within five (5) days of the Effective Date, Annuncio
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shall ship to Licensee one (1) object code version of the Software and one (1)
copy of the Annuncio Documentation.
Section 4.2. [*]
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[*] = 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.
[*]
Section 4.3. License Fee. In consideration for the license granted hereunder,
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Licensee shall pay Annuncio, the applicable License Fee in accordance with the
payment schedule set forth in Exhibit B.
Section 4.4. Annual Maintenance Fee. In consideration for the maintenance and
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support services as set forth in Section 5.1, Licensee shall pay Annuncio the
applicable Annual Maintenance Fee in accordance with the payment schedule set
forth in Exhibit B. For a period of three (3) years from the end of the first
year's Maintenance Period, Annuncio agrees to not increase the rate of the
Annual Maintenance Fee by more than seven (7) percent per year.
Section 4.5. Late Payments. If the License Fee is not paid when due, in
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addition to any other remedy otherwise available to Annuncio, Annuncio may
impose interest or overdue charges and payments at the rate of one percent
(1.0%) per month (or, if less, the maximum amount permitted by law), until
Licensee is current on all payments.
Section 4.6. Taxes. Licensee shall pay all sales, use and excise taxes
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relating to, or under, this Agreement, unless Licensee is exempt from the
payment of such taxes and provides Annuncio with evidence of such exemption.
Article 5. Professional Services
Section 5.1. Maintenance and Support. Upon payment by Licensee of the
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applicable Annual Maintenance Fee, and throughout the applicable Maintenance
Period (as defined in Section 5.2), Annuncio shall provide Licensee with
maintenance and support services ("Maintenance Services") concerning the use and
operation of the Software. Such Maintenance Services shall be provided in
accordance with Annuncio's then-current terms and conditions for such support, a
copy of which is attached hereto as Exhibit F and incorporated by reference.
Maintenance Services provided by Annuncio are separate from any services
provided by Annuncio pursuant to Section 5.3, and Licensee may obtain either
Maintenance Services or consulting services without obtaining the other. The
parties understand and agree that the Annual Maintenance Fee covers maintenance
and support for Licensee only and not for Licensee's Customers.
Section 5.2. Maintenance Period. Subject to Licensee's payment of the Annual
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Maintenance Fee, the initial maintenance and support period (a "Maintenance
Period") shall begin upon the Effective Date and end one year from such date.
After such first Maintenance Period and for as long as Annuncio is offering
Maintenance Services for the Annuncio Software, Licensee shall automatically
receive Maintenance Services for successive twelve (12)-month periods at
Annuncio's then current Annual Maintenance Fee for such Maintenance Periods.
Annuncio shall provide Licensee with notice of such renewal at least ninety (90)
days prior to such renewal date, and Licensee may elect to discontinue
maintenance and support services by written notification delivered to Annuncio
at least sixty (60) days prior to such renewal date. The applicable Annual
Maintenance Fees shall be invoiced upon renewal and shall be due within thirty
(30) days of receipt of such invoice.
Section 5.3. Consulting and Training Services. Upon request by Licensee,
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Annuncio shall provide Licensee with consulting and training services in
addition to the general maintenance and support offered pursuant to Section 5.1.
Such consulting and training services shall be provided on Annuncio's then-
current terms and conditions and at the rates set forth in Exhibit E. Such
rates will be fixed during the first year of this Agreement, and thereafter may
be modified by Annuncio in accordance with its then-current standard rates for
such services. Any consulting or training services acquired from Annuncio shall
be bid separately from the Software License and Licensee may acquire either
Software Licenses or consulting services without acquiring the other.
Section 5.4. Non-solicitation. Neither party shall solicit for hire any
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employee, consultant or subcontractor of the other who has been directly
involved in the business relationship established by this Agreement for a period
of twelve (12) months from the last date such person provided services
hereunder. In the event one party hires any employee, consultant or
subcontractor of the other within the twelve (12)-month period following such
person's having performed services for the other, the soliciting party shall
promptly pay the "Non-soliciting Party" a finder's fee equivalent to fifty
percent (50%) of the annual compensation package offered to such person by the
Non-soliciting Party.
Section 5.5. Expenses. For any on site services requested by Licensee, Licensee
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shall reimburse Annuncio for all reasonable out-of-pocket travel and business
expenses incurred by Annuncio in performing any of the services set forth in
this Section 5.
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[*] = 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.
Article 6. Marketing Activities
Throughout the term of this Agreement, the parties shall perform the marketing
requirements set forth in Exhibit C, as such Exhibit may be modified from time
to time upon mutual agreement of the parties.
Article 7. Representations, Warranties, Disclaimers
Section 7.1. General. Each party hereby represents and warrants to the other
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that (i) such party has the right, power and authority to enter into this
Agreement and to fully perform all its obligations hereunder; and (ii) the
making of this Agreement does not violate any agreement existing between such
party and any third party.
Section 7.2. Limited Warranty. Annuncio hereby warrants to Licensee that the
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Software as delivered by Annuncio to Licensee shall perform substantially in
accordance with the Annuncio Documentation for a period of [*] from the date the
Software is accepted by Licensee in accordance with Section 4.2. In the event of
a breach of the foregoing warranty, Annuncio's sole obligation, and Licensee's
sole remedy, shall be the replacement or modification of the defective Software,
at no charge to Licensee.
Section 7.3. Year 2000. Annuncio warrants that the Software will: (a) include
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Year 2000 date conversion and compatibility capabilities including, but not
limited to: century recognition; calculations which accommodate same century and
multi-century formulas and date values; correct sort ordering and interface
values that reflect the century; (b) manage and manipulate data involving dates,
including single century formulas and multi-century formulas, and will not cause
an abnormal function or abort within the application or result in the generation
of incorrect values or invalid outputs including such dates; (c) provide that
all date-related user interface functionalities and data fields include the
indication of the correct century; and (d) provide that all date-related system
or application to application data interface functionalities will include the
indication of the correct century. In the event of a breach of the foregoing
warranty, Annuncio's sole obligation, and Licensee's sole remedy, shall be the
replacement or modification of the defective Software, at no charge to Licensee.
Section 7.4. Intellectual Property Warranty. Annuncio hereby warrants to
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Licensee that, to the best of Annuncio's knowledge, as of the Effective Date,
the Software does not infringe the United States copyright, trademark or trade
secret of any third party.
Section 7.5. Software Performance Disclaimer. ANNUNCIO MAKES NO, AND HEREBY
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EXPRESSLY DISCLAIMS ANY, WARRANTY (1) OF CONTINUOUS OR UNINTERRUPTED OPERATION
OF THE ANNUNCIO PRODUCT, (2) THAT THE ANNUNCIO PRODUCT WILL RUN PROPERLY ON ALL
HARDWARE OR COMBINATIONS THEREOF, OR (3) THAT THE ANNUNCIO PRODUCT WILL MEET
LICENSEE'S REQUIREMENTS OR THE REQUIREMENTS OF ANY OF LICENSEE'S CUSTOMERS.
Section 7.6. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE
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ANNUNCIO PRODUCT, THE ANNUNCIO DOCUMENTATION AND ANY OTHER ITEMS OR GOODS
LICENSED OR DELIVERED TO LICENSEE HEREUNDER ARE LICENSED OR DELIVERED TO
LICENSEE "AS IS," AND WITHOUT WARRANTY OF ANY KIND. ANNUNCIO HEREBY EXPRESSLY
DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE ANNUNCIO PRODUCT AND THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-
INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
Section 7.7. Licensee Materials. Annuncio has no obligations with respect to
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the Licensee Materials used in connection with the Software over the Internet.
Annuncio shall have no liability whatsoever with respect to any Licensee
Materials transmitted with the use of the Software, and Licensee is solely
responsible and bears all risk with respect to the use of the Software to
transmit or store any data including but not limited to security or privacy with
respect to such data.
Article 8. Confidentiality
Section 8.1. Exclusion. Notwithstanding Section 1.1(b), Confidential
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Information shall exclude information that: (a) was independently developed by
the Receiving Party without any use of the Disclosing Party's Confidential
Information or by the Receiving Party's employees or other agents (or
independent contractors hired by the Receiving Party) who have not been exposed
to the Disclosing Party's Confidential Information; (b) becomes known to the
Receiving Party, without restriction, from a source other than the Disclosing
Party without breach of this Agreement and that had a right to disclose it; (c)
was in the public domain at the time it was disclosed or becomes in the public
domain through no act or omission of the Receiving Party; or (d) was rightfully
known to the
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[*] = 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.
Receiving Party, without restriction, at the time of disclosure.
Section 8.2. Confidentiality of Agreement. Each party hereto agrees that the
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terms and conditions, but not the existence, of this Agreement shall be treated
as the other party's Confidential Information and that no reference to the terms
and conditions of this Agreement or to activities pertaining thereto can be made
in any form of public or commercial advertising without the prior written
consent of the other party; provided, however, that each party may disclose the
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terms and conditions of this Agreement: (1) as required by any court or other
governmental body; (2) as otherwise required by law; (3) to legal counsel of the
parties; (4) in connection with the requirements of an initial public offering
or securities filing; (5) in confidence, to accountants, banks, and financing
sources and their advisors; (6) in confidence, in connection with the
enforcement of this Agreement or rights under this Agreement; or (7) in
confidence, in connection with a merger or acquisition or proposed merger or
acquisition, or the like.
Section 8.3. Compelled Disclosure. If a Receiving Party is, or believes that
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it will be, compelled by a court or other authority to disclose Confidential
Information of the Disclosing Party, it shall give the Disclosing Party prompt
notice so that the Disclosing Party may take steps to oppose such disclosure.
Section 8.4. Obligations. The Receiving Party shall treat as confidential all
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of the Disclosing Party's Confidential Information and shall not use such
Confidential Information except as expressly permitted under this Agreement.
Without limiting the foregoing, the Receiving Party shall use at least the same
degree of care which it uses to prevent the disclosure of its own confidential
information of like importance, but in no event less than reasonable care, to
prevent the disclosure of the Disclosing Party's Confidential Information.
Article 9. Indemnification
Section 9.1. By Annuncio. Annuncio shall, at its expense, defend and hold
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Licensee each harmless from any and all damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred by Licensee arising out or
relating to any third party claim, suit or proceeding alleging that the Software
infringes any third party United States patent, trademark, trade secret or
copyright; provided that Licensee promptly notifies Annuncio in writing of any
such claim and promptly tenders full control of the defense and settlement of
any such claim to Annuncio at Annuncio's expense and with Annuncio's choice of
counsel. Licensee shall cooperate with Annuncio, at Annuncio's expense, in
defending or settling such claims.
Section 9.2. Licensee Materials. Licensee shall, at its expense, defend and
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hold Annuncio harmless from any and all damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred by Annuncio arising out of or
relating to any third party claim, suit or proceeding alleging that the Licensee
Materials (i) are factually inaccurate, misleading or deceptive, (ii) infringe
or misappropriate any copyright, trademark, trade secret or other intellectual
property right of any third party, or (iii) are libelous, defamatory, obscene or
pornographic or violates other civil or criminal laws, including those
regulating the use and distribution of content on the Internet and protection of
personal privacy; provided that Annuncio promptly notifies Licensee in writing
of any such claim and promptly tenders full control of the defense and
settlement of any such claim to Licensee at Licensee's expense and with
Licensee's choice of counsel. Annuncio shall cooperate with Licensee, at
Licensee's expense, in defending or settling such claims.
Article 10. Term.
Section 10.1. Term. This Agreement shall commence on the Effective Date and
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shall continue throughout the Term unless otherwise terminated earlier in
accordance with the terms of this Article 10.
Section 10.2. Termination. In the event of a material breach of this Agreement,
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the nonbreaching party shall be entitled to terminate this Agreement by written
notice to the breaching party, if such breach is not cured within thirty (30)
days after written notice is given to the breaching party, specifying the
breach.
Section 10.3. Effect of Termination. Upon any expiration or termination of
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this Agreement, all rights and licenses granted to Licensee under this Agreement
shall terminate. Except as expressly provided herein, all of Annuncio's
proprietary rights and confidential information, if any, shall be promptly
returned to Annuncio or destroyed by Licensee, and certification of destruction
shall be made in writing to Annuncio within ten (10) days after such return or
destruction.
Section 10.4. Nonexclusive Remedies. The rights and remedies provided to the
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parties in this Article 9 shall not be exclusive and are in addition to all
other rights and remedies provided by this Agreement or any other relevant
written agreement or available by law or in equity.
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Section 10.5. Survival. Notwithstanding anything to the contrary contained in
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this Agreement, Articles 1, 8, 10, 11 and 12 shall survive any expiration or
termination of this Agreement.
Article 11. Limitation of Liability
Section 11.1. Total Liability. EXCEPT FOR DAMAGES ARISING OUT OF SECTION 9.1,
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ANNUNCIO'S TOTAL LIABILITY TO LICENSEE FOR ANY KIND OF LOSS, EXPENSE, COST,
CLAIM OR DAMAGE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY
THEORY OF LIABILITY, SHALL BE LIMITED TO THE AMOUNTS PAID TO ANNUNCIO BY
LICENSEE HEREUNDER IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENT TO WHICH SUCH LOSS OR DAMAGE RELATES.
Section 11.2. [*]
Section 11.3. Failure of Essential Purpose. The limitations specified in this
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Article 11 shall survive and apply even if any limited remedy specified in this
Agreement is found to have failed of its essential purpose.
Article 12. General
Section 12.1. Merger and Amendments. This Agreement may not in any way be
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modified, changed or amended except by a written instrument duly executed by
the parties hereto which states that it is an amendment to this Agreement. This
Agreement, including the Exhibits, and Confidentiality Agreement, when executed,
constitutes the entire, final, complete and exclusive agreement between the
parties and supersedes any prior negotiations, understanding or agreements,
whether oral or in writing, concerning the subject matter hereof. Moreover, any
standard printed forms or other documents of either party (such as those
contained on a purchase order or invoice) shall have no force or effect.
Section 12.2. Construction. All references in this Agreement to "Articles,"
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"Sections" and "Exhibits" refer to the articles, sections and exhibits to this
Agreement. The words "hereof," "herein" and "hereunder" and other words of
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similar import refer to this Agreement as a whole, including the exhibits and
schedules hereto.
Section 12.3. Governing Law. THIS AGREEMENT IS MADE IN ACCORDANCE WITH AND
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SHALL BE GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REFERENCE TO SUCH STATE'S CONFLICTS OF LAW PRINCIPLES. IN NO EVENT SHALL
THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS.
Section 12.4. Jurisdiction. The state and federal courts of the State of
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California shall have exclusive jurisdiction and venue over all controversies in
connection herewith, and each party hereby irrevocably consents to such
exclusive and personal jurisdiction and venue.
Section 12.5. Assignments. Neither party may assign this Agreement or any right
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or obligation hereunder without the other party's prior written consent;
provided however, that either party may assign this Agreement without such
consent to any successor as a result of any merger, consolidation or other
corporate reorganization
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[*] = 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.
of such party or any sale of all or substantially all of such party's assets.
Notwithstanding the foregoing, this Agreement shall be binding upon and inure to
the benefit of the permitted successors and assigns of each party.
Section 12.6. Severability. If any provision of this Agreement is held to be
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illegal, unenforceable or invalid, no other provision of this Agreement shall be
affected thereby, and the remaining provisions of this Agreement shall be
construed and reformed and shall continue with the same effect as if such
illegal, unenforceable or invalid provision was not a part hereof; provided
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that, notwithstanding any other provision of this Agreement, if any limitation
on the grant of any license to Licensee hereunder is found to be illegal,
unenforceable, or invalid, such license shall immediately terminate.
Section 12.7. Waiver. Any waiver (express or implied) by either party of any
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default or breach of this Agreement shall not constitute a waiver of any other
or subsequent default or breach.
Section 12.8. Notices. All notices or other communications required or
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permitted to be given pursuant to this Agreement shall be in writing and shall
be considered properly given or made if hand delivered, mailed first class mail,
postage prepaid, sent by prepaid telegram (or telex or other facsimile
transmission) or sent by express overnight courier service to the relevant
addresses below or to such other address as either party hereto may designate
by like notice sent to the other party hereto. All notices shall be deemed
given when received.
Section 12.9. Headings. The headings and captions contained in this Agreement
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shall not be considered to be a part hereof for purposes of interpreting or
applying this Agreement, but are for convenience only.
Section 12.10. Counterparts. This Agreement may be executed in counterparts,
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each of which will be deemed an original and both of which together will
constitute one instrument.
Section 12.11. Import and Export Controls. Licensee understands and
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acknowledges that Annuncio may be subject to regulation by agencies of the U.S.
government, including the U.S. Department of Commerce which prohibit export or
diversion of certain products, technology and technical data to certain
countries. Any and all obligations of Annuncio to provide the Software,
software, documentation or any media in which any of the foregoing is contained,
as well as any training or technical assistance shall be subject in all respects
to such United States laws and regulations as shall from time to time govern the
license and delivery of technology, products and technical data abroad by
persons subject to the jurisdiction of the United States, including the Export
Administration Act of 1979, as amended, any successor legislation, and the
Export Administration Regulations issued by the Department of Commerce,
International Trade Administration, and Bureau of Export Administration.
Section 12.12. Contingency. Neither party hereto shall be held responsible
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for any delay or failure in performance hereunder caused in whole or in part by
fire, strike, flood, embargo, labor dispute, delay or failure of any
subcontract, act of sabotage, riot, accident, delay of carrier or supplier,
voluntary or mandatory compliance with any governmental act, regulation or
request, act of God or by public enemy, or any act or omission or other cause
beyond such party's control. If any such contingency shall occur, this Agreement
shall be deemed extended by the length of time such contingency continues.
Section 12.13. Independent Contractors. The parties hereto are independent
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contractors and neither party is an employee, agent, partner or joint venturer
of the other. Neither party shall have the right, nor shall either party
attempt, to bind the other party, whether directly or indirectly, to any
agreement with a third party or to incur any obligation or liability on behalf
of such other party, whether directly or indirectly.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed in duplicate by duly authorized officers or representatives as of the
date first above written.
ANNUNCIO SOFTWARE, INC. BRIDGE TELECOM, INC.
By: /s/ Xxxxx XxXxxxx By: /s/ Xxxx Xxxx
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Name: Xxxxx XxXxxxx Name: Xxxx Xxxx
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Title: Worldwide Vice President of Sales Title: President
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EXHIBIT A
Annuncio Software
Company Name Bridge Telecom, Inc
Address 0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Contact Name: Xxxx Xxxx
Phone Number:
Platform: Database/Operating System: Oracle 8x
8
EXHIBIT B
Variable Terms
1. First Year Annuncio Live License Fee- Up to [*] marketing transactions /
year: [*]
2. First Year Annual Maintenance Fee: [*]
3. Dealer Fees:
. Licensee shall pay Annuncio an additional fee for new Customers who license
Licensee Services ("Dealer Fees"), based on the number of automobile
dealership franchises the Customer owns according to the following
schedule:
Number of Franchises Fees
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1 to 4 [*]
5 to 9 [*]
10 + [*]
. [*]
. Dealer fees Payable net 60 days from the day the dealership contract is
signed.
4. Payment
. [*] of licensing and maintenance fees will be paid at time of signing, net 30
days
. Once the Software is [*], Bridge will pay an additional [*] of the licensing
and maintenance fees, net 30 days. The remaining [*] of licensing and
maintenance fees are due 30 days from the day of acceptance, net 30 days;
annual maintenance fees are due according to the standard Annuncio licensing
contract.
. [*]
5. Deployment Criteria:
A. Within scope of license:
The parties agree that the following scenarios identify the situations which are
within the scope of the license as set forth in Section 2.1 of this Agreement:
. Customer Requirements - Customers may demand to be put on separate physical
boxes due to security concerns. This could be particularly true with large
dealership groups.
. Performance Constraints -Wide geographic deployment (i.e., regional,
international, global) may require regional operating sites in order to
maximize performance. For example, UK dealers may not be satisfied with
response times associated with a US-based server.
. Reliability Considerations - Backup, maintenance, rollover and disaster
recovery capabilities are integral to a robust system and should not
interfere with EMA performance. Multiple production sites would insure this
requirement.
9
[*] = 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.
. Development/Test/Mirror Site - One or more independent
development/integration environments will be required. Non-production testing
environments may also be required. In addition, one or more mirror sites may
be required for backup/recovery and/or operational considerations (e.g.,
customer FTPs)
. A Single Instance of the Application Cannot Scale Adequately - The EMA
application as a whole or particular sub-applications may not be able to
scale in a single instance and we would have to deploy multiple instances of
the application on multiple hardware platforms. An example is to exceed the
application's internal limitations on number of transactions, array size,
number of threads spawned, etc. The limitations are specific to the software,
not the hardware.
. A Single Box and/or Supporting Infrastructure Cannot Handle Required Scale -
The hardware supporting the EMA application as a whole, or particular sub-
applications, may not be able to scale sufficiently and we would have to
deploy multiple instances of the application on multiple hardware platforms.
Examples include: exceeding processing power, bus architecture limitations,
memory limitations. These limitations are specific to the hardware, not the
software.
B. Outside Scope of license:
The parties agree that following scenarios represent situations which are
outside of the scope of the current license as set forth in Section 2.1 of this
Agreement:
. Diversified Customer Base - The license will not apply to non-dealer
customers (e.g., auto manufacturers, web portals, non-automotive industry).
These markets will require a separately negotiated application license.
. Sublicensing of Software without hosting: The parties agree that Licensee may
sublicense the Software solely to Customers, subject to the restrictions set
forth in the Base Agreement.
6. Future License Options: The following future pricing shall be in effect for
three years from the Effective Date of this Agreement:
Intermediate License . Perpetual license - Up to [*] marketing transactions / year
. [*] (or upgrade Basic License for [*])
. Maintenance will be at then current List Price, subject to the terms of
Section 4.4
---------------------------------------------------------------------------------------------------------------
Advanced License . Perpetual license - Up to [*] marketing transactions / year
. [*] (or upgrade to difference)
. Maintenance will be at then current List Price, subject to the terms of
Section 4.4
---------------------------------------------------------------------------------------------------------------
Expert License . Perpetual license - Up to [*] marketing transactions / year
. [*] (or upgrade to difference)
. Maintenance will be at then current List Price, subject to the terms of
Section 4.4
---------------------------------------------------------------------------------------------------------------
7. Source Code Escrow: When and if Annuncio places its source code for the
Software into an escrow account, and subject to Bridge's payment of any
applicable fees associated therewith, Annuncio will permit Bridge to be included
as a licensee under such escrow account.
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[*] = 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.
EXHIBIT C
Marketing Activities
Annuncio customer reference: Licensee agrees to be designated as a customer in
Annuncio sales and marketing materials and press releases, and to provide A
MINIMUM OF one quote re:REGARDING Licensee's experience with Annuncio SOFTWARE
AND ANNUNCIO LIVE for use in such materials and/or press releases. During the
Term of this Agreement, Licensee will make A MINIUMUM OF one (1) person
available to speak by phone with press, analysts, and customers about Licencee's
experience with Annuncio and the Software. LICENSEE ALSO AGREES TO CONTRIBUTE TO
A WRITTEN CUSTOMER CASE STUDY FOR PUBLISHING BY ANNUNCIO SOFTWARE. Any
marketing activities, materials and press releases of Annuncio which make
mention of Licensee shall be approved by the consent of both parties.
Licensee customer reference: Annuncio agrees to participate in Licensee press
and marketing releases.
11
EXHIBIT D
Specifications
The following criteria are issues that Bridge Telecom feels are essential for
providing Annuncio as a fully hosted solution to the automotive dealer
marketplace.
Integration Issues
As part of a larger solution, the Annuncio software must be flexible and fully
able to integrate with other standard software solutions. In particular, it is
vital that the Annuncio Live software platform:
. Provide access to Annuncio Live data needed to integrate with standard CRM
vendors (e.g. Onyx, Pivotal, Silknet, Vantive, Siebel) or other systems
. Provide the flexibility to import/export customer data (e.g., demographics)
that is compliant with the product's business rules
Hosting architecture
Bridge Telecom plans to provide its services at a price point that is acceptable
to the small business community. Central to this goal is that the Annuncio
architecture be able to [*]. That is, for a single installation of the Annuncio
Live software:
. The Product must be logically partitionable by dealer -- It must be possible
to [*]. If this is not a native feature of the system, then it must be
possible to invest a reasonable amount of effort (e.g. by Bridge Telecom) in
supporting this model by building customized interfaces to the system or
otherwise.
. The product must also be fully secure -- All reasonable security measures are
expected from the product. In addition, it must be possible to build the
logically partitioned system described above in a manner that prohibits a
dealer's data or campaigns to be viewable by any unauthorized party (e.g.
another dealer or other user of the system)
Scalability
Bridge Telecom expects Annuncio Live to be a highly scalable product. This
includes scalability in terms of large numbers of named users, named subscribers
as well as volume of transactions on the system. In particular, there should be
. No unreasonable limits on logical scalability -- A logical limit is defined
as a hard limit unnaturally imposed by the software. For example, a fixed
array size that only accommodate 20 dealers.
. No unreasonable limits on physical scalability -- No system is infinitely
scalable. There will always be limits in terms of bandwidth, storage or
processing power. However, it is expected that the Annuncio Live product
shows all the characteristics of a highly scalable system.
Example Functional Specifications
Dealer Service Strategy
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[*] = 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.
The following list contains many of the dealer campaigns that Bridge Telecom
plans to roll out initially. Our offer is based on the ability to aid
dealerships in moving forward into the arena of electronic communications, email
management, and greater responsiveness to their customer base.
. Acquire -- The first stage for dealers who do not have email addresses or for
dealers who want to expand the number of available customer email addresses.
. Categorize and Manage -- Learn more about your existing e-customers. Segment
them appropriately by their interests. Set up targeted, personalized
campaigns.
. Implement -- Launch direct campaigns based on known customer information and
preferences. Automate this process as much as possible.
. Measure Results -- Analyze the impact of your campaigns. Evaluate your
response rate and ROI. Aid in planning for new campaigns.
Dealer Campaigns
Basic Campaign (Newsletters)
This replaces/augments the traditional periodic newsletter. It has the following
components/advantages:
. Automated, electronic delivery -- Customers can choose to receive only an
email newsletter and not a snail mail hard copy.
. Electronic advertising banners and coupons -- Customers can be presented with
specials, coupons and incentives of general interest. [*]
. Complete a survey, refer a friend -- Newsletters can direct customers to the
dealer website to fill out a more complete survey, to take advantage of
specials or to provide referrals.
. Customer info database/ reports -- Newsletters will have [*]
Direct Mail Integrated Campaigns
Many customers will immediately wish to move to an electronic, interactive means
of staying in contact with the dealer. Others will be hesitant and will want to
stay on direct mail. There must be campaigns to support both of these. An
electronic campaign that supports direct mail will:
. Produce unique URL's for customers to come and sign up for features on the
website
. Provide incentives in direct mail to have customers enter their email
addresses into the system
. Provide an interface for staff at the dealership to enter collected email
addresses
Targeted Service Reminders and Promotions
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
An important feature of this system is to be able to deliver to customers the
information that they are interested in. Likewise, the dealer can act as a
personal reminder service for tune-ups, oil changes and other incentives.
. Electronic scheduled service reminders (tailored to customer)
. Targeted coupons/promotions w/ specials
. Mileage forecast (culled from survey) to trigger service messages
Alert for Sign-ups (parts, car availability), Events
Customers often wish to be alerted when a specific event occurs. This can be
dealer events, alerts about the availability of new cars (e.g. send me an email
to let me know when you get your s2000's in) or a notice about when a part is
available.
. [*]
. Email to list subscribers at regular intervals
Recall Notices
Recall notices have always proven to be a popular item for customers. One
effective way of getting the email of dealer customers is to have them sign up
for targeted email that affects their particular vehicle and prompts them then
with special service offers for their recall.
. Targeted notices
. [*]
. Question: Is it possible to integrate the above with voicemail?
Surveys and Suggestion Boxes
Targeted surveys are an effective way of getting information about new and
existing customers. Surveys can be automatically tailored to the
needs/requirements of the customer. This is also the most effective way to begin
and know your customers.
. [*]
. [*]
. Targeted marketing campaigns based on above (e.g. all '93 civics -- want to
upgrade?)
. [*]
New Car Sales Follow-Ups
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[*] = 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.
Maintaining a relationship that begins with a car sale can be very lucrative for
a dealer in gaining not just a new customer but a new loyal customer.
. Follow-up campaigns based on preferences, purchase specifics
. Alerts (e.g. notify me of S2000 availability if any) even as special requests
Personal Events Based Offers
Based on birthdays and other special events, the dealership can automatically
offer special birthday and other offers.
. Birthdays
. Anniversaries
Simple Help-Desk Support
Providing customers with at least a little help when they ask for it is always
invaluable. Customers on the web asking for help can be easily integrated with
their email identity.
. Targeted (by request) technical service bulletins
.
Web-based Ask the Mechanic (queued questions)
Service/Warranty Contract Expirations
As customers near the end of a warranty or contract, the system can notify them
immediately and make them a special offer to extend their warranty with the
dealer.
. [*]
Integrated Manufacturer Campaigns
As news become available from the manufacturer, this information can be routed
directly to those customers that are interested in it.
. Integrate with Manufacturer specific campaigns
. Recall notification
. Update interested customers (get their VIN, address email)
Purchase Offers
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[*] = 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.
Based upon customer information, dealers can also submit purchase offers
directly to their customers. For example, "Did you know your 91 CRX was
worth...?"
Stale Customers
Customers who have not had interaction with the dealership for a while can be
targeted with special incentives to return. This is the focus of Internet
loyalty programs.
. Special offers
. What did you buy?
. We can service any car.
. Targeted comments/questionnaires
16
EXHIBIT E
Annuncio Services
Consulting Services include the following:
. Installation of Annuncio Live software
. User training on Annuncio Live
. Customer profile creation and management
. Campaign creation and management
. Campaign tracking and reporting
Training Services:
On-site training class at Annuncio's Corporate Headquarters. This one-day,
hands-on course walks each trainee through the process of setting up users,
defining database profiles, building, testing, and deploying campaigns, and
generating campaign metrics. By the end of the day each trainee will have
successfully built and executed his/her own campaign.
Service RateS: The following rates will remain the same for one year from the
Effective Date of the Agreement.
Consulting Services - [*] per hour
1 Day (eight (8) hours) of Training - [*]
17
[*] = 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.
EXHIBIT F
Annuncio Standard Maintenance and Support
. A 90-day media warranty: Annuncio will replace defective media during the
first 90 days.
. Software upgrades: this includes maintenance releases as well as upgrades.
. Support for the current release and one back, up to a year.
. Business hours are 8am to 5pm, Pacific Time with support for unlimited
incidents. Custom options available at additional cost.
. Response times (call back) of 1 business hour for emergencies, 4 hours for
urgent, and 24 hours for others. All hours are business hours.
. Four named customer contacts for support, two technical (one primary and one
backup) and two marketing (one primary and one backup). Additional contacts
may be added as an option at additional cost. Contacts need to be properly
trained in the use of the product, for instance by attending the relevant
training class.
. Customer-defined priorities: the customer defines the business impact when
logging the issue. Once the technical issue is understood, Annuncio may
define a different technical priority for the case.
. Defect fixes deliverable in a patch for emergencies without a workaround.
Major issues will have a fix in the next maintenance releases. Patches may be
individual or cumulative, at Annuncio's discretion.
18
ASSIGNMENT OF RIGHTS AND DUTIES
-------------------------------
Pursuant to section 12.5 of the September 9, 1999 License Agreement (the
"Agreement") between Annuncio Software, Inc. ("Annuncio") and Bridge Telecom,
Inc. ("Bridge"), Annuncio, Bridge and SixGear, Inc. ("SixGear") (together, the
"Parties") agree and consent to the following:
1. All rights, duties and obligations of Bridge arising under and
pursuant to the Agreement are hereby assigned and transferred in whole from
Bridge to SixGear, and the term "Licensee" in the Agreement shall be deemed to
mean SixGear;
2. All terms and conditions of the Agreement shall remain in operation
and shall govern the relationship between Annuncio and SixGear;
3. Bridge shall have no further rights or obligations under the
Agreement, except as set forth in Section 10.5 of the Agreement;
4. The undersigned fully warrant that they have full rights and authority
to enter into this assignment; and
5. This assignment shall be binding upon and inure to the benefit of the
parties, and their successors and assigns.
Agreed and Accepted By:
Bridge Telecom Inc. Annuncio Software Inc.
------------------- ----------------------
/s/ Xxxx Xxxx /s/ Xxxxx XxXxxxx
------------------------- ---------------------------------
Signature Signature
Xxxx Xxxx, President Xxxxx XxXxxxx, VP Worldwide Sales
------------------------- ----------------------------------
Name and title Name and title
SixGear, Inc.
-------------
/s/ Xxxxx X. Xxxxxxx
--------------------------
Signature
Xxxxx X. Xxxxxxx, CEO
--------------------------
Name and title
19
