SOFTWARE LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered-into as of the 29th
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day of September, 2000 (the "Effective Date") by and between Annuncio Software,
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Inc., a California corporation with an office at 0000 X. Xx Xxxxxx Xxxx, Xxxxx
000, Xxxxxxxx Xxxx, XX 00000 ("Annuncio"), and XxxxXxxx.xxx, a Nevada
corporation having an office at 0000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000
("Licensee").
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.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
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As used in this Agreement, the following terms shall have the meanings set forth
below:
"ANNUNCIO DOCUMENTATION" means the documentation provided by Annuncio to
Licensee to be used in conjunction with the Software.
"DESIGNATED SYSTEM" means the specific computer equipment at Licensees address
listed above as set forth in the applicable Exhibit.
"LICENSE FEE" means the fee for the license rights granted herein, as set forth
in applicable Exhibit.
"LICENSEE MATERIALS" means the text, customer data and other material supplied
by Licensee and used in conjunction with the Software.
"MARKETING TRANSACTION LIMITS" means the number of marketing transactions that
may be performed using the Software pursuant to the terms of this Agreement, as
specifically stated and defined in the applicable Exhibit.
"SOFTWARE" means Annuncio' s proprietary software as further described in the
applicable Exhibit, in object code form, and any updates or upgrades thereto
provided by Annuncio hereunder.
"SOFTWARE MEDIA" means the computer disk or CD-ROM provided to Licensee by
Annuncio on which the Software is recorded.
"TERM" means the term of the license hereunder, as set forth in the applicable
Exhibit.
SECTION 2. SOFTWARE LICENSE
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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, non-sublicensable license to use the Software along with any
accompanying Annuncio Documentation solely on the Designated System, not to
exceed the specified Marketing Transaction Limits, and solely for Licensee's
internal use as part of Licensee's Internet marketing solution. Licensee may
make a reasonable number of copies solely for backup or archival purposes.
Section 2.2. Restrictions. Licensee may not (i) copy or otherwise reproduce the
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Software other than as expressly set forth above; (ii) rent, sublicense,
transfer or grant any rights in the Software or Annuncio Documentation in any
form to any person, (iii) permit third parties to benefit from the use or
functionality of the Software via a timesharing, service bureau or other
arrangement without specific written permission from an Annuncio vice-president
or higher level employee.
Section 2.3. Proprietary Rights and Notices. Annuncio grants no license, right,
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or interest in any Annuncio copyright, trademark, trade name, service xxxx or
other proprietary right. Licensee shall neither alter nor remove any copyright
notice or other proprietary rights notices that 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 any restrictions herein, will result in automatic
termination of this Agreement and will make available to Annuncio other legal
remedies.
Section 2.5. Reservation of Rights. Annuncio hereby reserves to itself all
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rights in and to the
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ANNUNCIO SOFTWARE, INC CONFIDENTIAL AND PROPRIETARY
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
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permit 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. In jurisdictions where a right to
reverse engineer is provided by law unless information is available about
products in order to achieve interoperability, functional compatibility, or
similar objectives, Licensee agrees to submit a detailed written proposal to
Annuncio concerning Licensee's information needs before engaging in reverse
engineering. Annuncio may, in its sole discretion, propose to Licensee terms and
conditions under which Annuncio is willing to make such information available.
Section 2.7 Proprietary Rights of Licensee. Licensee shall retain all of
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its right, title and interest in and to all patent rights, trademarks, trade
names, inventions, copyrights, know-how, trade secrets and/or any other
intellectual property or proprietary rights relating to the Licensee Materials.
SECTION 3. VERIFICATION
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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 Designated Systems on which the Software is run.
Section 3.2. Audit. Annuncio may, on a quarterly basis and upon ten (10)
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days prior written notice to Licensee, audit Licensee's use of the Software. Any
such audit shall be conducted during regular business hours at Licensee's
facilities and shall not unreasonably interfere with Licensee's business
activities.
SECTION 4. DELIVERY AND PAYMENT.
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Section 4.1 Delivery. Within ten (10) 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 License Fee. In consideration for the license granted
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hereunder, Licensee shall pay Annuncio as set forth in the payment terms in the
appropriate Exhibit. Section 4.3 Late Payments. If the License Fee is not paid
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when due, in addition to any other remedy otherwise available to Annuncio,
Annuncio may impose interest or overdue charges and payments at the rate of
one-and-one-half percent (1.5%) per month (or, if less, the maximum amount
permitted by law), until Licensee is current on all payments. -
Section 4.4 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, and
excepting those taxes based upon Annuncio's income.
SECTION 5 SUPPORT AND PROFESSIONAL SERVICES
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Section 5.1 Software Support Program. Upon payment of the- applicable
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Software Support Program Fee as set forth in the appropriate Exhibit, Annuncio
will provide Software Support in accordance with the applicable Software Support
Program Terms and Conditions.
Section 5.2 Consulting and Training Service. Upon request by Licensee,
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Annuncio shall provide Licensee with consulting and training services in
addition to the Software Support Program offered pursuant to Exhibit A and the
Software Support Program Terms and Conditions. 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. Such consulting and training services shall be
provided pursuant to a separate Consulting Services Agreement pursuant to the
terms and rates contained therein.
Section 5.3 Non-Solicitation. Licensee shall not solicit for hire any
employee, consultant or subcontractor of Annuncio during the term of this
Agreement and for a period of six (6) months thereafter. In the event Licensee
hires any employee, consultant or subcontractor of Annuncio that it has actively
solicited within the six (6) months period following such person's having
performed services for Annuncio, Licensee shall promptly pay Annucio a finder's
fee equivalent to fifty percent (30%) of the annual compensation package offered
to such person by Licensee.
Section 5.4 Expenses. For any on site services requested by Licensee,
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Licensee 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.
SECTION 6. REPRESENTATIONS,
WARRANTIES, AND DISCLAIMERS
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ANNUNCIO SOFTWARE, INC CONFIDENTIAL AND PROPRIETARY
Section 6.1. 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 (if) the
making of this Agreement does not violate any agreement existing between such
party and any third party.
Section 6.2. Limited Warranty. Annuncio hereby warrants to Licensee that
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the Software as delivered by Annuncio to Licensee shall perform substantially in
accordance with the Annuncio Documentation for a period of two hundred ten (210)
days from delivery or one hundred eighty (180) days from installation, whichever
date occurs first. 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. In
addition, for ninety (90) days from Licensee's receipt of Software Media,
Annucio warrants that to Licensee that such Software Media shall be free from
material defects.
Section 6.3. Year 2000. Annuncio warrants that the Software will: (a)
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include 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 6.4. 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 copyright, trademark, trade secret, or patent
[I am amenable to listing specific proprietary rights but cannot agree to the
all inclusive "other ip/proprietary rights."] of any third party. Annuncio shall
have no liability or responsibility under this term to the extent that the
alleged infringement is based on (1) a modification of the Software by anyone
other than Annuncio, or (ii) use of the Software other than in accordance with
the Documentation.
Section 6.5. 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
RARDWARE OR COMBINATIONS THEREOF, OR (3) THAT THE ANNUNCIO PRODUCT WILL MEET
LICENSEE'S REQUIREMENTS OR THE REQUIREMENTS OF ANY OF LICENSEE'S CUSTOMERS.
Section 6.6. 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 6.7. Licensee Materials. Annuncio has no obligations with respect
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to 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.
SECTION 7. CONFIDENTIALITY
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Section 7.1. Definition. Confidential Information means any information
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disclosed by either party ("Disclosing Party") to the other party ("Receiving
Party"), either directly or indirectly, in writing, orally, electronically,
visually, or by inspection of tangible objects (including without limitation
documents, prototypes, samples, plant and equipment), which is designated as
"Confidential," "Proprietary" or some similar designation or should be
reasonably understood to be confidential or proprietary. Confidential
Information includes, without limitation, all information relating to the
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ANNUNCIO SOFTWARE, INC CONFIDENTIAL AND PROPRIETARY
source code of any Annuncio Software, the operation of the Software, the
Documentation, or the terms and conditions of this Agreement to be Confidential
Information. Licensee's client accounts and information concerning marketing and
advertising services, all site and business development plans, and specific
events and features planned for or by Licensee are deemed Confidential
Information. Confidential Information also includes, but is not limited to,
trade secrets, computer programs, software, documentation, formulas, data,
inventions, techniques, marketing plans, strategies, forecasts, customer lists,
employee information, financial information, confidential information concerning
either party's business or organization, as either party has conducted it or as
either party may conduct it in the future, information concerning any of either
party's past, current or possible future products or methods, including
information about either party's research, development, engineering, purchasing,
manufacturing, accounting, marketing, selling. leasing and/or software
(including third party software).
Section 7.2. Definition Exclusion. Confidential Information shall exclude
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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 Receiving
Party, without restriction, at the time of disclosure.
Section 7.3 Non-use and Non-disclosure. Each party agrees not to use any
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Confidential Information of the other party for any purpose except to perform
its obligations or exercise its rights under this Agreement. Each party agrees
not to disclose any Confidential Information of the other party to third parties
or to such party's employees, except to those employees of the receiving party
who are required to have the information in order to perform such party's
obligations under this Agreement. Neither party shall reverse engineer,
disassemble or decompile any prototypes, software or other tangible objects
which embody the other party's Confidential Information and which are provided
to the party hereunder. Each party agrees that it shall take reasonable measures
to protect the secrecy of and avoid disclosure and unauthorized use of the
Confidential Information of the other party. Without limiting the foregoing,
each party shall take at least those measures that it takes to protect its own
most highly confidential information and shall ensure that its employees who
have access to Confidential Information of the other party have signed a non-use
and non-disclosure agreement in content similar to the provisions hereof, prior
to any disclosure of Confidential Information to such employees. Each party
shall reproduce the other party's proprietary rights notices on any such
approved copies, in the same manner in which such notices were set forth in or
on the original.
Section 7.4 Compelled Disclosure. If a Receiving Party is, or believes
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that 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. INDEMNIFICATION
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Section 8.1. By Annuncio. Annuncio shall, at its expense, defend and hold
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Licensee harmless from any and all damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred by Licensee arising out of or
relating to any third party claim, suit or proceeding alleging that the Software
infringes any third party patent, copyright trademark, or trade secret [same
comment as in section 6.4] 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 8.2. 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
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ANNUNCIO SOFTWARE, INC CONFIDENTIAL AND PROPRIETARY
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.
SECTION 9. TERM
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Section 9.1. 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 Section 9.
Section 9.2. Termination. In the event of a material breach of this
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Agreement, 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. Upon any expiration or termination of 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 9.3. Nonexclusive Remedies. The rights and remedies provided to the
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parties in this Section 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.
Section 9.4. Survival. Notwithstanding anything to the contrary contained
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in this Agreement, the Sections entitled "Definitions," "Confidentiality"
"Indemnification," "Term" and "Limitation of Liability" shall survive any
expiration or termination of this Agreement.
SECTION 10. LIMIITATION OF LIABILITY
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Section 10.1 Total Liability. EXCEPT FOR DAMAGES ARISING OUT OF SECTION
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8.1, 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
Section 10.2 Exclusion of Damages. EXCEPT FOR DAMAGES ARISING OUT OF
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SECTION 8.1, IN NO EVENT SHALL ANNUNCIO BE LIABLE TO LICENSEE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND
WHETHER OR NOT ANNUNCIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
EXCEPT WITH RESPECT TO OR IN CONNECTION WITH ANY VIOLATION OF ANY PROPRIETARY OR
INTELLECTUAL PROPERTY RIGHT OF ANNUNCIO, IN NO EVENT SHALL LICENSEE BE LIABLE TO
ANNUNCIO FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR
OTHERWISE, AND WHETHER OR NOT LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
Section 10.3 Failure of Essential Purpose. The limitations specified in
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this Section 10 shall survive and apply even if any limited remedy specified in
this Agreement is found to have failed of its essential purpose.
SECTION 11. LIMITED TRADEMARK LICENSE.
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Section 11.1. Limited License. Licensee agrees that by entering into this
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Agreement, they grant Annuncio a limited non-transferable, non-exclusive,
royalty-free, license to use Licensee's trademarks and logos on Annuncio' s
website and in advertisements and sales and marketing materials for the Term of
this Agreement for the limited purpose of indicating that Licensee is a customer
of Annuncio. Any other use of the logo or name shall require prior written
permission from Licensee.
Section 11.2. Termination. Licensee may immediately terminate this limited
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trademark license to use the trademarks and logos, if Licensee believes that
such use disparages, dilutes, tarnishes or blurs the value of the trademarks or
logos. Annuncio shall use the trademarks and logos exactly in the form provided
and in conformance with any trademark usage policies that the other party may
communicate from time to time. Annuncio shall place a (R) or a TM (as
appropriate) with the trademarks as requested by the other party. Any rights not
expressly granted by Licensee to Annuncio are reserved and all implied licenses
disclaimed. Annuncio shall not exceed the scope of the licenses granted
hereunder.
Section 11.3. Title. Title to and ownership of Licensee's trademarks and
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logos (including without limitation, all rights therein under copyright,
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ANNUNCIO SOFTWARE, INC CONFIDENTIAL AND PROPRIETARY
trademark, trade secret and similar laws) shall remain with Licensee or its
licensors and/or suppliers. Annuncio acknowledges that use of Licensee's
trademarks and logos will not create in Annuncio, nor will Annuncio represent it
has, any right, title or interest in or to the trademarks or logos other than
the limited license granted above. Annuncio will not challenge the validity of
or attempt to register any of Licensee's trademarks or its interest therein as a
licensee, nor will it adopt any derivative or confusingly similar names, brands
or marks or create any combination marks with the trademarks. Annuncio
acknowledges Licensee's ownership and exclusive right to use the trademarks and
agrees that all goodwill arising as a result of the use of the Marks shall inure
to the benefit of Licensee.
SECTION12. GENERAL
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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 Exhibit A and the Software Support Program Terms and
Conditions, 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
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right or obligation hereunder without the other party's prior written consent;
provided however, that the parties may assign this Agreement without such
consent to any successor as a result of any merger, consolidation or other
corporate reorganization of such party or any sale of all or substantially all
of the assets of that party. Annuncio's consent shall be required, however, if
the successor substantially competes with Annuncio. In addition, for six (6)
months after the Effective Date, Licensee shall have the one-time right to
assign this Agreement to a successor entity that results from acquisition,
merger, or combination with XxXxx.xxx, Inc. 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 thereof; 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
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Agreement shall not be considered to be a part hereof for purposes of
interpreting or applying this Agreement, but are for convenience only.
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ANNUNCIO SOFTWARE, INC CONFIDENTIAL AND PROPRIETARY
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. Language. The parties have agreed that this Agreement be
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written in English. (Les parties ont convenu a ce que ce Contrat soit redige en
anglais.)
Section 12.12. 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 12.13. 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 12.14. 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.
Section 12.15 Legal Fees. If any dispute arises between the parties with
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respect to the matters covered under this Agreement that leads to a proceeding
to resolve such dispute, including but not limited to a proceeding to enforce
the payment terms herein, the prevailing party in such proceeding will be
entitled to receive its reasonable attorneys' fees, expert witness fees and
out-of-pocket costs incurred in connection with such proceeding, in addition to
any other relief it maybe awarded.
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. XXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------- ---------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxxx, Xx.
-------------------------- -------------------------------
Title: Vice President Finance Title: CEO
------------------------ -------------------------------
and Operations
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ANNUNCIO SOFTWARE, INC CONFIDENTIAL AND PROPRIETARY
VOID IF NOT EXECUT ED BY 9/29/00
EXHIBIT A
TO
THE SOFTWARE LICENSE AGREEMENT BETWEEN
ANNUNCIO SOFTWARE, INC. AND XXXXXXX.XXX, INC.
This independent Exhibit A to the Software License Agreement (this "Exhibit") is
entered into as of the 29th day of September, 2000 (the "Effective Date") by and
--------------
between Annuncio Software, Inc., a California corporation with an office at 0000
X. Xx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX 00000 ("Annuncio"), and
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Xxxxxxx.xxx, a Nevada corporation having an office xx0000 Xxxx Xxxxxx, Xxxxxxxx,
XX 00000 ("Licensee"). This Exhibit is part of the License Agreement entered
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into between the parties, dated September 29, 2000 ("License Agreement").
Annuncio's Software Support Program Terms and Conditions shall be a part of this
Exhibit A during the Initial Support Program Period and thereafter, provided
Licensee elects to purchase the Support Program. Capitalized terms shall have
the same meaning as they have in the License Agreement.
1. TOTAL SOFTWARE FEES
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a. SOFTWARE LICENSED: LICENSE FEES:
Annuncio Live $ 176,000
TOTAL LICENSE FEE: $ 176,000
TOTAL ADDITIONAL
SUBTOTAL FROM SECTION 2, BELOW ITEMS/SERVICE FEE: $ 41,600
FIRST YEAR SOFTWARE
SUBTOTAL FROM SECTION 3, BELOW SUPPORT PROGRAM FEE: $ 39,600
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TOTAL FEE: $ 257,200
2. Additional Services/Items
Training (1) 1 day for 6 people $ 3,600
Consulting Services 176 hours $ 38,000
(provided pursuant to the terms of a
separately executed Consulting Services
Agreement and Statement of Work
Documentation for Annuncio Software Included
TOTAL ADDITIONAL
SERVICES/ITEMS FEES: $ 41,600
3. SOFTWARE SUPPORT PROGRAM FEE FOR INITIAL ONE-YEAR SUPPORT PROGRAM PERIOD:
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$39,600
Upon payment by Licensee of the applicable Annual Support Program Fee, and
throughout the applicable Support Program Period, Annuncio shall provide
Licensee with Software maintenance and support services (the "Support Program")
concerning the use and operation of the Software in accordance with Annuncio's
Software Support Program Terms and Conditions as attached hereto. After the
Initial Support Program Period, Licensee may elect to continue the Software
Support Program by paying Annuncio the then-current Support Program Fee.
4. PAYMENT TERMS:
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(a) SOFTWARE LICENSEE FEES. Licensee shall pay Annuncio $44,000 upon the
Effective Date, $44,000 within sixty (60) days of the Effective Date, $44,000
within ninety (90) days of the Effective Date, and $44,000 within one hundred
twenty (120) days of the Effective Date. Unless explicitly stated elsewhere in
the License Agreement or attached Exhibits, all license fees are non-cancelable
and non-refundable.
_____________________________________
(1) For one year from the Effective Date, training is available at $600 per
person per day. Thereafter, training will be available at Annuncio's
then-current rate.
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ANNUNCIO SOFTWARE, INC. CONFIDENTIAL AND PROPRIETARY
VOID IF NOT EXECUTED BY 9/29/00
(b) SUPPORT PROGRAM FEE: Licensee shall pay the $39,600 Support Program Fee
upon completion of installation of the Software or on the date sixty (60) days
after the Effective Date, whichever date occurs first.
(c) TRAINING AND CONSULTING SERVICE FEES. Licensee shall pay Annuncio
$3,600 training fee and consulting fees of $38,000) (the total of which is
$41,600) which shall be invoiced upon completion of the relevant training and
services pursuant to a separately executed Statement of Work, due net thirty
(30) from receipt of the invoice.
5. LICENSED USE: Licensee's use of the Software and the license fees associated
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therewith are based upon the following License Term, Designated System and
Marketing Metrics:
LICENSE TERM: Perpetual
MARKETING TRANSACTIONS: 50 million
(Marketing Transactions are defined as e-mails
sent and web pages served by Annuncio's
Software, as tracked by the Software
DESIGNATED SYSTEM:
Operating System Any then-currently supported
operating system
Database Any then-currently supported
database
Number of Servers 1
Client Machine Access Unlimited
EXPANSION OF LICENSED USE: For one (1) year after the Effective Date, Licensee
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shall have the right to expand their level of Licensed Use pursuant to the
following terms:
Up to 122 million Marketing Transactions per year in exchange for
additional fees of: $49,000
The fees stated above are incremental to the initial License Fees, i.e. to move
to 122 million Marketing Transactions per year, Licensee would pay $49,000 in
additional fees. The above fees will be due seven (7) days after Licensee
provides notice that they wish to exceed the then-current level of Licensed Use.
If the level of Licensed Use increases, Licensee agrees to pay the then-current
Software Support fee for the applicable new level of Licensed Use, which for the
above increase is an additional annual Support Program Fee of $14,400 (i.e. in
addition to the fees set forth in section 3 above). The Software Support Program
Fee will be pro-rated based on the date of the change from one level to another.
No increase in level of use that results from an assignment to the successor
entity resulting from a acquisition merger or combination with XxXxx.xxx, Inc.
will result in a penalty under this Agreement. Such increase will be available
at the then-current standard license fees.
6. CONTACT INFORMATION BILLING INFORMATION
Name: Name:
Address: Address:
Telephone Number: Telephone Number:
Facsimile Number: Facsimile Number:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
authorized officers or representatives as of the date first above written.
ANNUNCIO SOFTWARE, INC. XXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxxx, Xx.
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Title: Vice President Finance Title: CEO
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and Operations
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ANNUNCIO SOFTWARE, INC CONFIDENTIAL AND PROPRIETARY
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ANNUNCIO STANDARD SUPPORT PROGRAM
TERMS AND CONDITIONS
Annuncio Standard Support Program Terms and Conditions ("Standard Support
Program") are referenced in and incorporated into the License Agreement between
Annuncio and Licensee ("Agreement"). Any capitalized terms not specifically
defined in herein have the same meaning as in the Agreement.
1. STANDARD SUPPORT PROGRAM: As part of its Software Support Program,
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Annuncio will provide Licensee with the following services in consideration for
payment of the applicable Annual Maintenance Fee:
a) Software Maintenance: All Patches, Maintenance Releases and Major
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Releases for the licensed Software and supporting Documentation will be provided
to Licensee.
b) Unlimited Incidents: Designated Support Contacts can make as many
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telephone or e-mail requests as required to address Incidents under the Support
Program.
c) Telephone Support: Annuncio provides toll-free telephone support for use
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of its Software for Licensee's Designated Support Contacts. Except for Annuncio
holidays and weekends, telephone support is provided from 6 a.m. to 6 p.m.
Pacific Standard Time.
d) Remote Access and Diagnostics: Annuncio will utilize remote dial-in
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capabilities via modem to expedite the evaluation and of problems reported by
Licensee. If Licensee does not grant Annuncio access to dial-in capabilities via
modem, Licensee agrees to pay for any fees and expenses incurred while providing
on-site services at Annuncio's then-current consulting rates.
e) Watch Dog: Licensee can utilize the Watch Dog utility to determine if
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key components of Annuncio's Software are operating correctly.
f) Escalation Process: Reported problems will be tracked as part of a
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standard escalation process which provides Licensee with access to the status of
the problem and, if necessary, an escalation procedure.
g) Account Manager: Licensee will be assigned an Account Manager.
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2. EXCLUSIONS: Annuncio will not have an obligation to support: i) substantially
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altered, damaged or modified Software; ii) Incidents caused by Licensee's
negligence, hardware malfunction, or other causes beyond Annuncio's reasonable
control; iii) Software installed on a Designated System not supported by
Annuncio; and iv) third party software. Annuncio also will not support any
previous version of the Software for more than 6 months after the release of a
subsequent Maintenance Release or Major Release.
3. PAYMENT: The fee for the initial term of the Standard Support Program will be
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as set forth in the License Agreement and exhibits thereto. Thereafter, if
Licensee chooses to continue receiving support under the Standard Support
Program, Licensee shall pay Annuncio the then-current Annual Support Program
Fee. The applicable Annual Support Program Fees will be billed on an annual
basis upon renewal of the Support Program. Payment shall be due thirty (30) days
from renewal. Unless Licensee has provided proof of tax-exempt status, Licensee
is responsible for all taxes associated with the Support Program, except for
those taxes based on Annuncio's income. Should Licensee elect not to renew the
Support Program and subsequently requests to
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CONFIDENTIAL AND PROPRIETARY
ANNUNCIO SOFTWARE, INC.
reinstate the Support Program, Annuncio will reinstate the Support Program only
after Licensee pays Annuncio the then-current Annual Support Program Fee plus
all cumulative fees that would have been payable had Licensee not suspended the
Support Program.
4. TERM AND TERMINATION: Subject to Licensee's payment of the Annual Support
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Program Fee, the initial support period (a "Support Program Period") shall begin
upon completion of the installation of the Software or upon the date sixty (60)
days after the License Effective Date, whichever date occurs first, and end one
year from such date. After such Initial Support Program Period and for as long
as Annuncio is offering a Support Program for the Annuncio Software, Licensee
shall continue to receive the Support Program for successive twelve (12)-month
periods in consideration for payment of Annuncio's then current Annual Support
Program Fee for such Support Program Periods, unless the Support Program is
terminated by either party. Either party may elect to discontinue the Support
Program by written notification delivered to the other party at least sixty (60)
days prior to the renewal date. If Licensee fails to make payment pursuant to
the section entitled "Payment," or Licensee breaches the Support Program
provisions and such breach has not been cured within thirty (30) days of receipt
of written notice of the breach, Annuncio may suspend or cancel the Support
Program. Annuncio may modify the Support Program on an annual basis to reflect
current market condition upon reasonable notice.
5. CUSTOMER RESPONSIBILITIES:
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a) Customer shall assist Annuncio in the diagnosis of a reported software
problem by providing information and documentation and by performing reasonable
tests requested by Annuncio's Support Program personnel.
b) Licensee shall implement any Patch within sixty (60) days of its
availability. Customer's failure to implement any such Patch will relieve
Annuncio of its obligations to provide support for problems that would have been
corrected by such implementation.
c) Licensee shall provide Designated Support Contacts who are competent and
capable of maintaining and understanding the operation of the licensed Software.
6. TARGET RESPONSE TIMES:
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Response times are targets set in a first attempt to contact you regarding your
call. Response times are executed on a best effort basis. When reporting a call
to Annuncio, Customer must indicate the priority of your call so Annuncio can
respond accordingly.
PRIORITY TITLE & EXPLANATION RESPONSE TIME NOTIFICATION MECHANISM
1 FATAL - Your Annuncio Up to 1 hour Contact via Annuncio
system is down, a major support phone number
operational function is
unavailable, or a critical
Annuncio interface has
failed
2 SEVERE IMPACT - Annuncio Up to 4 hours Contact via email to
functionality is disabled, xxxxxxx@xxxxxxxx.xxx or
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or errors result in a lack of access through Annuncio
application functionality or support phone number
cause intermittent system
failure
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CONFIDENTIAL AND PROPRIETARY
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3 DEGRADED OPERATIONS - 4-8 business Contact via email to
Your Annuncio system is hours xxxxxxx@xxxxxxxx.xxx or
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experiencing degraded access through Annuncio
operations, or errors are support phone number
causing malfunction of non-
critical functions
4 MINIMAL IMPACT - 24 hours/One Contact via email to
Attributes and/or options to business day xxxxxxx@xxxxxxxx.xxx
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or utility programs are not access through Annuncio
operating as stated, or the support phone number
problem is an enhancement
request
7. PROBLEM ESCALATION: Annuncio's management team will work with Customer to set
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expectations on any on-going fatal or severe incident. Annuncio will communicate
with Customer on an agreed-upon basis regarding the status of outstanding calls.
A support analyst will be the first level of contact and will be assigned to
Customer calls. The analyst has the authority to escalate any call by necessity
or by customer request. If Customer feels the issue is not moving quickly enough
or has other questions or concerns, the following contacts may be used.
CUSTOMER SUPPORT 000-000-0000
TOLL FREE NUMBER
XXXXXXX XXX PHONE: (000) 000-0000
DIRECTOR, CUSTOMER EMAIL:
SUPPORT XXXXXXX@XXXXXXXX.XXX
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CELL: 000-000-0000
YOUR LOCAL SALES OR
PSG REPRESENTATIVE (000) 000-0000
8. DEFINITIONS:
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A. Designated Support Contacts means the person(s), to a maximum of four
individuals, who may contact Annuncio under the Support Program. Two of the
Support Contacts shall be designated by Licensee as marketing support contacts,
one of whom will be the primary marketing contact and one of whom will be the
back-up marketing contact. Likewise, two of the Support Contacts shall be
designated by Licensee as technical support contacts, one of whom will be the
primary technical contact and one of whom will be the back-up technical contact.
A back-up support contact will access Support Services under this Agreement only
if the primary marketing or technical support contact, as applicable, is
unavailable. Licensee shall not designate anyone a Support Contact, either
Marketing or Technical, unless that individual has attended the applicable
training course(s) for the Annuncio Software.
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CONFIDENTIAL AND PROPRIETARY
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B. Incident means a Software malfunction that degrades or affects Licensee's use
of the Software.
C. Maintenance Releases means a release of Software containing an accumulation
of Patches and possibly limited new functionality.
D. Major Release means a one copy of the new release of the Software containing
new functionality that is not designated by Annuncio as new products or as
functionality for which Annuncio charges separately.
B. Patch means the repair or replacement of source, object or executable
software code to address an Incident.
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CONFIDENTIAL AND PROPRIETARY
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