* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
NEURAL APPLICATIONS CORPORATION
SOFTWARE TECHNOLOGY LICENSE AGREEMENT
--------------------------------------------------------------------------------
THIS SOFTWARE TECHNOLOGY LICENSE AGREEMENT ("Agreement") is made and
entered into this 7th day of August, 1998 (the "Effective Date") by and between
Neural Applications Corporation, 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxx
00000-0000, a Delaware corporation ("Neural"), and Net Perceptions, Inc., 00000
Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, a Delaware
corporation ("NPI").
WHEREAS, Neural, as the result of the expenditure of time, skill, effort
and money, has designed, developed, and produced, and is the owner of the entire
right, title and interest in and to, certain software technology and the
documentation associated therewith as more particularly defined below,
collectively, as the "Software"; and
WHEREAS, Neural has also designed, developed, and produced, and is the
owner of the entire right, title and interest in and to, the trademarks, trade
names, service marks and logos used in connection with the Software (defined
below as the "Neural Trademarks"), and Neural continues to develop, use and
control the Neural Trademarks for the benefit and exclusive use of itself and
its licensees in order to identify to the public the source of the Software; and
WHEREAS, NPI desires to obtain from Neural, and Neural desires to grant
to NPI a license to merge or embed the Software into proprietary software
products developed or licensed by NPI and a license to sell certain products
developed solely by Neural (defined below, collectively, as the "Product(s)")
and to thereafter market, demonstrate, sell, sublicense and distribute the
Products to end user customers on an exclusive basis for use within the Internet
Market, as defined below, and on a non-exclusive basis for use within the
Non-Internet Market, as defined below, and in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, which shall be deemed
an integral part of this Agreement and not as mere recitals hereto, and in
consideration of the mutual covenants, representations, agreements and
conditions herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound thereby, agree as follows:
1. DEFINITIONS:
"END USER" shall mean any third party which obtains the Software,
directly or indirectly, from NPI or any Subdistributor pursuant to a
license to a Product.
"DOCUMENTATION" shall mean the standard user manual or other
documentation or explanatory material related to the Software or any
Product as well as anything developed by or for Neural useful to NPI for
use in connection with merging or embedding the Software into the
proprietary software products developed or licensed by NPI, for use in
connection with any subsequent versions thereof receiveed by NPI from
Neural, and for use in the development of any End-User Product
documentation.
"INTERNET MARKET" means all applications of the Software for End Users
who will use the Software in conjunction with or in support of the
targeting and personalizing of Internet sites or similar networks
including a Internet site itself, content related thereto and targeted
campaigns related to the site profiles but excluding Internet market
segments that are determined to be not core to NPI's business by the
mutual agreement of the parties.
"NON-INTERNET MARKETS" means all other software-related markets for the
Software.
"PRODUCT(S)" means any software product made available to End Users
pursuant to this Agreement which is the result of one or more
integrations of the Software (in whole or in part) into NPI proprietary
technology or a software product made available to NPI by Neural for End
Users pursuant to this Agreement with or without integration or
modification efforts by NPI. Product(s) shall also include Updates or
Upgrades to the Products to be delivered to NPI during the term of this
Agreement pursuant to Section 2.
"SOFTWARE" means Neural's core technology, Aegis-TM-, which includes
Neural Networks, Fuzzy Logic, Genetic Algorithms, Knowledge Based
Methods, Linear Methods, Multivariable Statistics and other
functionality, in object code form and the related Documentation as
released from time to time. Software shall also include Updates and
Upgrades to the Software to be delivered to NPI during the term of this
Agreement pursuant to Section 2.
"UPDATE" shall mean a change, modification or other update of the
Software or Product as applicable made to correct an error (i.e., bug
fix), defect or other problem and/or to maintain the operational quality
of the Software or Product, which is not an Upgrade.
"UPGRADE" shall mean a new release or versions of the Software or Product
as applicable or successors or follow-ons to the Software or Product, or
any part thereof, which adds major new functionality or features to the
last version of the Software or Product.
2. LICENSE AND USE OF SOFTWARE and/or Product
a. DEVELOPMENT AND DEMONSTRATION LICENSE. Neural grants to NPI a
fully-paid nonexclusive worldwide license to use a reasonable number
of copies of the Product(s) (or Software if deemed necessary by by
the parties), in object code form only and for its use in the
development of an interface between the Software or Product(s) and
NPI software applications and for the purpose of demonstrating and
supporting the Product(s).
b. EXCLUSIVE DISTRIBUTION LICENSE. Subject to any terms to the
contrary on any Product Schedule, Neural grants NPI an exclusive
worldwide license within the Internet Market to (i) market,
demonstrate, sell, lease, and sublicense the Software and Product(s)
whether or not incorporated with other software, and (ii) to use the
Neural Trademarks in connection therewith, provided however that the
Products may be sold directly or indirectly only to End-Users
pursuant to the End-User license agreements specified by NPI, and
the rights and limitations of the End-Users shall be solely as set
forth therein, which rights shall never exceed those granted herein.
The exclusivity provision of this license within the Internet Market
applies to all patent rights, copyrights and trade secrets
underlying the Software and Products but is subject to termination
as provided in Section 5 of this Agreement and shall not apply to
the excluded customers listed on Product Schedule #1.
--------------------------------------------------------------------------------
Page 2 Software License Agreement
c. NON-EXCLUSIVE DISTRIBUTION LICENSE. Neural grants NPI a
non-exclusive worldwide license within the Non-Internet Markets to
(i) market, demonstrate, sell, lease, and sublicense the Software or
Products whether or not incorporated with other software, and (ii)
to use the Neural Trademarks in connection therewith, provided
however that the Products may be sold directly or indirectly only to
End-Users pursuant to the End-User license agreements specified by
NPI, and the rights and limitations of the End-Users shall be solely
as set forth therein, which rights shall never exceed those granted
herein.
d. USE OF SUBDISTRIBUTORS. NPI may exercise its reproduction and
distribution rights either directly or through Subdistributors
provided that each such Subdistributor agrees in writing to be bound
by the restrictions with respect to the Software on NPI contained in
this Agreement.
e. UPDATES AND UPGRADES. Neural shall correct errors in the Software
and Product(s) from time to time in accordance with SCHEDULE A of
this Agreement and shall provide NPI with copies of all Updates and
Upgrades as they are available by Neural from time to time. All
Updates to Software shall be owned by Neural and shall be subject to
the terms and conditions of this Agreement.
3. LICENSE FEE. As consideration for the licenses granted hereunder NPI
shall pay to Neural the license fees and such other charges as specified in each
Product Schedule, the first of which is attached hereto as Product Schedule #1.
Additional Products to be marketed by NPI under the terms of this Agreement will
require supplemental Schedules shall be prepared by the parties referencing this
Agreement. For each Product, the parties will establish a commercially
reasonable process to determine the number of Products sold, date of their sale,
and applicable royalty fees payable to Neural for each Product.
4. MAINTENANCE AND SUPPORT FEES. Except as otherwise set forth herein, the
fee for any Updates, Upgrades, or consulting or other services relating to the
Software or any Product pursuant to Schedule A which Neural performs shall be as
set forth on Product Schedules attached hereto, and shall be payable in
accordance with the payment schedule set forth therein, as determined under 3
above.
5. TERM. The term of this Agreement shall commence on the Effective Date and
shall remain in full force and effect for a period of thirty-eight (38) months
unless terminated by Neural as provided under Section 6. In the event that the
parties are unable to reach mutually agreeable terms for the renewal (or
non-renewal) of this Agreement during the six (6) month period prior to the
expiration hereof, this Agreement shall automatically renew, with the same terms
and conditions, for one (1) additional year.
6. TERMINATION.
a. The exclusivity provision of the license granted under Section 2(b)
of this Agreement may be terminated by Neural upon written notice to
NPI in the event NPI fails to achieve 100% of the "Minimum
Cumulative Revenue" requirements set forth in subparagrah c hereof.
b. The license granted may be terminated by Neural upon written notice
to NPI in the event NPI fails to achieve twenty-five percent (25%)
of the "Minimum Cumulative Revenue" requirements set forth in
subparagraph c hereof.
--------------------------------------------------------------------------------
Page 3 Software License Agreement
c. Minimum Cumulative Revenue is defined as the total cumulative net
revenue due Neural for all Products and related support services
sold by NPI as listed on all current and future Product Schedules
plus any additional amounts NPI may commit to pay Neural. Cumulative
Revenue herein shall mean NPI payments made or owed to Neural at the
end of the periods listed below. Following is a table showing the
Minimum Cumulative Revenue requirement due Neural.
-----------------------------------------------------------------------------------------------------------------------------------
Period First Second Third Fourth Fifth Sixth Seventh
-----------------------------------------------------------------------------------------------------------------------------------
Ending Month from 2 8 14 20 26 32 38
Effective Date
-----------------------------------------------------------------------------------------------------------------------------------
Neural Minimum Cumulative [*] [*] [*] [*] [*] [*] [*]
Revenue Requirements for
Exclusivity
-----------------------------------------------------------------------------------------------------------------------------------
d. This Agreement and the license granted hereunder may be terminated
by either party upon written notice to the other party in the event
either party materially breaches any of the provisions of this
Agreement, which breach has not been remedied within thirty (30)
days of notice thereof. Failure to pay monetary amounts shall not
be subject to the above thirty (30) day cure period, but rather
shall be remedied within fifteen (15) days of notice thereof.
e. Upon termination of this Agreement and of the licenses granted
hereunder, NPI shall cease any further development of any new
Products provided that NPI can sell maintain and support its current
Products at the time of termination and, otherwise, NPI, and must
return to NEURAL or destroy, as requested by NEURAL, all copies of
the Software and Product(s) and related materials in any form in
NPI's possession or control, however, NPI may retain necessary
copies of the Software and Product(s) and related materials
necessary to fulfill its support obligations to End Users of
Products.
f. All licenses granted by NPI to End Users for Products shall continue
in full force and effect in accordance with this Agreement and the
End User license agreements in effect at the time of the termination
of this Agreement or permitted by 6(e) above, notwithstanding the
expiration or termination hereof.
g. The provisions of paragraphs 1,2(a),4,5,9,11,12,13,14,15,16 and 18
of this Agreement shall survive the termination of this Agreement
(for any reason).
7. AUDIT. The parties shall establish a commercially reasonable process for
reporting the identification of each End-User, date of sale, and the fee
charged.
8. SOFTWARE SUPPORT. Neural shall provide NPI and/or the End-User support
for the Software and Product(s) to the extent and in the manner provided
in SCHEDULE B-SOFTWARE SUPPORT attached hereto.
9. EXPRESS LIMITED WARRANTY. Neural represents and warrants to NPI that for
a period of ninety (90) days from delivery to NPI (the "Warranty Period")
the Software and Product will (i)
--------------------------------------------------------------------------------
Page 4 Software License Agreement
* Confidential treatment requested for redacted portion.
conform to the functions and specifications stated in the then-current
Documentation, and (ii) be free from defects in material and workmanship
under normal installation, use and service. This warranty does not
include, and Neural disclaims any warranty with respect to, errors in,
damage to or failures, defects or other problems in or with the arising
in any way from (i) fire; (ii) flood, lightning or other acts of God or
other force majeure; (iii) accident or a computer virus not within the
Software; (iv) misuse or negligence; (v) improper handling or operation;
(vi) repair, maintenance, alteration, modification, customization or
tampering of or to the Software by any person or other entity other than
Neural; (vii) any Hardware or other hardware or any external electrical
work; (viii) failure to use, maintain or operate the Software as provided
or in accordance with any Neural software documentation; or (ix) any
software not provided by Neural or any interfaces of the Software with
any other software. If the Software should fail to confirm to the above
warranty during the Warranty Period and subject to the conditions below,
Neural shall only be required to repair or replace the Software. In
addition to any contingency set forth above, the above warranty is
contingent upon NPI notifying Neural in writing of any alleged breach of
said warranty within ten (10) days of the date on which NPI discovers
such breach and in all events within the Warranty Period.
Neural warrants that it is the owner of, or otherwise has a right to
license and sell the Softwareand Product(s), and that the Software and
Product(s) will not infringe upon or violate any copyright, patent,
trademark, trade secret, or other proprietary or intellectual property
right of any third party. Neural further warrants that it is unaware of
any claim or allegation that the Software and Product(s) violates any
such proprietary or intellectual property rights.
Neural warrants that the Software and Product(s) shall be free of
viruses, worms, trojan horses and similar destructive mechanisms.
Neural warrants that the advent of the year 2000 shall not adversely
affect the performance of the Software and Product(s) as delivered by
Neural with respect to date and date dependent data (including, but not
limited to calculating, comparing and sequencing) and that the Software
and Product(s) will be capable of creating, storing, and processing
records related to and including the year 2000 and thereafter without
deficiencies related to the advent of the year 2000.
10. LIMITATION OF EXPRESS WARRANTIES: THE WARRANTIES SET FORTH IN
PARAGRAPH 9 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY NEURAL, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OR MERCHANTIBILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE.
11. LIMITATION OF REMEDIES: EXCEPT FOR A VIOLATION OF EXCLUSIVITY, NPI
OR NEURAL SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING OUT OF OR INCLUDING, BUT
WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERUPTION, LOSS
OF BUSINESS INFORMATION OR INABILITY TO USE THE SOFTWARE, EVEN IF THE
OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF DAMAGES.
12. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY.
--------------------------------------------------------------------------------
Page 5 Software License Agreement
a. Neural agrees to investigate promptly and defend NPI, its
Subdistributors or End Users against any claim, demand, suit or
action based on any claim that the use by NPI of the Software and
Product(s) infringes any patent, copyright, or other intellectual
property rights or the trade secret or the proprietary rights of a
third party. Neural agrees to assume the defense of such claim,
demand, suit or action, and indemnify and hold harmless NPI, its
Subdistributors or End Users from and against any and all damages
and costs (including reasonable attorneys' fees) as a result of any
such claim, demand, suit or action, provided that NPI notifies
NEURAL promptly in writing of each claim and Neural may control the
settlement of such claim, provided that NPI shall not be bound to
any settlement that it has not approved in writing.
b. Without prejudice to sub-paragraph (a) above, should the Software
and Product(s) become, , the subject of a claim as aforesaid then
Neural shall either: (i) procure for NPI the right to continue using
the Software and/or Products; (ii) replace the Software and/or
Product with non-infringing material provided the replacement
software is substantially similar to the Software and/or Product(s)
in functionality, performance and interoperability; or (iii) modify
the Software and/or Products to make them non-infringing provided
the modified software and/or products are substantially similar to
the Software and/or Products in functionality, performance and
interoperability.
c. Neural shall have no liability for any claim of infringement based
on: (a) use of other than a current release of the Software or
Product(s) released more than twenty-four (24) months after such
release is provided to NPI if such infringement would have been
avoided by use of such current release, or (b) use or combination of
the Software or Product(s) with non-Neural programs or data if such
infringement would have been avoided by the use of the Software or
Product(s) without those other programs or data. The foregoing
states the entire liability of Neural with respect to any claim of
infringement regarding the Software or Products.
d. Subject to applicable defenses, prompt notice of any claims and the
right to control defense and settlement, each party agrees that it
shall defend, indemnify and hold the other party harmless from and
against any and all damages, liabilities, costs and expenses
(including court costs and reasonable attorneys' fees) paid to a
third party that arise from or are in any way related to or
connected with (i) any gross negligence or, recklessness by such
party; or (ii) any breach of warranty or misrepresentation on the
part of such party under this Agreement.
13. PROPRIETARY RIGHTS OF NEURAL. All rights, titles and interests in
and to the Software, subject to those grants or licenses herein made, are
the property of Neural. Nothing herein shall be construed to give NPI
or any End Users any proprietary rights in the Software, or to its
enhancements, modifications, or alterations. NPI agrees that:
a. NPI shall not create, attempt to discover or create or permit others
to create or attempt to discover or create (by any means, methods or
procedures whatsoever) the source code for the Software or any
derivative works from the Software, nor disassemble, decompile,
reverse engineer, reverse compile, reverse assemble, or otherwise
translate any of the Software contrary to the purposes licensed
hereunder, except as permitted under applicable law.
--------------------------------------------------------------------------------
Page 6 Software License Agreement
b. NPI agrees that a breach or imminent breach of this paragraph 9
shall constitute a material breach of this Agreement for which
Neural will not have an adequate remedy at law. NPI agrees,
therefore, that Neural's remedies upon a breach or imminent breach
of this paragraph 9 include, without limitation, the right to
preliminary and permanent injunctive relief restraining NPI from any
further violation of this paragraph 9, in addition to any other
remedies available at law or in equity or otherwise to Neural. NPI
further agrees that any such injunction may be granted to Neural
without any requirement of Neural to post bond or surety thereon as
a condition of such relief.
14. PROPERTY RIGHTS OF NPI. All rights, titles and interests in and to
the software interface between the Software and NPI proprietary products
are the property of NPI. In addition, NPI will own all comments,
feedback, ideas and inventions (including intellectual property rights
therein) that arise from its's activity in connection with this Agreement
which relate to applications of the Software ("Feedback") provided
however that Neural shall own all comments, feedback, ideas and
inventions (including intellectual property rights therein) that arise
which relate to the Software or Product if soley developed by Neural.
Notwithstanding anything to the contrary contained in the foregoing, all
ownership rights in any Feedback related to applications for the Software
and/or in any user interface or visual displays developed by NPI for such
applications shall remain with NPI, who will be free to use such feedback
in such applications.
15. JOINT PROPERTY RIGHTS. The parties will be exploring new
applications for each parties software technologies. However, Feedback
relating directly both to the Software (including improvements) and such
NPI applications will be jointly owned and each party grants the other a
royalty-free, nonexclusive, worldwide, perpetual, sublicensable right and
license thereunder to do anything with respect thereto that the other is
authorized to do underthis sentence provided that Neural's rights will
not extend to the Internet Market. The parties hereby makes any
assignments necessary to accomplish the foregoing provisions of Sections
14 and 15.
16. Additional Obligations of Neural.
a. ENGINEERING ASSISTANCE. Neural agrees and upon NPI's reasonable
request, to provide engineering time assistance to NPI in order to
support the ongoing productization and integration of the Software
to deliver Products to End Users. Amounts of time and the scope of
such Neural efforts will be more specifically defined on each
Product Schedule attached to this Agreement.
b. ESCROW. Neural will establish within thirty (30) business days of
the Effective Date and maintain throughout the term of this
Agreement, an escrow of the most current source code and all related
tools and documentation version of the Software. NPI will be
entitled to receive a copy of such source code directly from the
escrow agent upon NPI's documented failure to support NPI and the
End Users pursuant to Schedule B. NPI is entitled (and is granted a
current license) to possess and use such source code only to the
minimal extent necessary to provide such support and only until
Neural can demonstrate to NPI reasonable satisfaction that is again
able and willing to supply such support. The additional terms of
the escrow agreement will be negotiated in good faith by the parties
within thirty (30) days of the Effective Date
17. SALES AND USE TAX. All governmental taxes (including, without
limitation, sales, use, import, export and excise taxes), tariffs,
assessments, duties or levies of any kind or nature relating to or
arising from the license of the Software and Products (excluding taxes on
Neural's income or franchise taxes) or otherwise from this Agreement
shall be the responsibility of NPI.
--------------------------------------------------------------------------------
Page 7 Software License Agreement
18. MISCELLANEOUS
RELATIONSHIP. This Agreement does not make either party the employee,
agent or legal representative of the other for any purpose whatsoever.
ASSIGNMENT. This Agreement and any rights granted hereunder may not be
assigned, sub-licensed or otherwise transferred by either party without
the prior written consent of the other party, which consent shall not be
unreasonably withheld, provided, however, that either party may assign
its interests and obligations hereunder to a successor in interest to all
or substantially all of its business.
NOTICES. Notices permitted or required to be given under the terms of
this Agreement shall be deemed sufficient if given by (a) registered or
certified mail, postage prepaid, return receipt requested or (b) private
courier service, addressed to the respective parties at the addresses
shown below their signatures to this agreement, or such other addresses
as they may from time to time designate. Notices shall be effective upon
receipt by the party to which notice is given.
ENTIRE AGREEMENT; AMENDMENT. This Agreement, including attachments
hereto, constitutes the entire agreement of the parties. This Agreement
may not be modified, amended, rescinded, canceled or waived, in whole or
on part, except by written amendments signed by both parties hereto.
GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Minnesota.
SEVERALABILITY. If any provisions of this Agreement is found
unenforceable, such invalidity or unenforceability shall not invalidate
any of the other provisions of this Agreement.
COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and each such counterpart shall be deemed an original
thereof.
WAIVER. No failure of either party to take any action or assert
any right hereunder shall be deemed to be a waiver of such right in the
event of the continuation or repetition of the circumstances giving rise
to such rights.
ATTORNEY'S FEES. The unsuccessful party in any action or proceeding
shall pay for all costs, expenses and reasonable attorneys' fees incurred
by the prevailing party or its agents or both in enforcing the terms and
conditions of the Agreement and this addendum. The term "prevailing
party" as used herein shall include without limitation a party who
utilizes legal counsel and brings an action against the other party by
reason of the other party's breach or default and obtains substantially
the relief sought, whether by compromise, settlement or judgment
NEURAL APPLICATIONS CORPORATION NET PERCEPTIONS, INC.
by /s/ Xxxxxx S [ILLEGIBLE] by /s/ Xxxxxx X. Xxxxxx
------------------------------ ---------------------------------
its President its President and CEO
--------------------------- ------------------------------
--------------------------------------------------------------------------------
Page 8 Software License Agreement
SCHEDULE A
SOFTWARE SUPPORT
Neural will use all commercially best efforts to assist NPI in providing first
and second level telephone support to End Users for the most current version of
the Software and Products, as well as any previous version thereof that was
released within twelve (12) months of the date of such request. Neural will
provide reasonable telephone support to two (2) contacts named by NPI (or to up
to two (2) alternatives named by NPI at any point in time) (the "Authorized
Contact(s)") for technical and related inquiries arising from End Users use of
the Software and Products. Upon receipt of notice of a problem from an
Authorized Contact, and if such problem has been reproduced at a NPI support
facility and can be reproduced at a Neural support facility or via remote access
to the NPI or End User site, NEURAL will use all efforts to correct or
circumvent such problem; provided, that all corrections to the Software and
Product(s) will be made only to the most current generally available release,
except that for a period of twelve (12) months after the introduction of a new
generally available release, Neural will use all best efforts to provide
telephone support for the immediately prior generally released version of the
Software and Product(s). Neural will use all best efforts to follow the support
escalation procedures below. NEURAL will not interact with any End Users
without NPI'S express written consent.
Neural will provide the resolutions and solutions as follows:
----------------------------------------------------------------------------------------------------------------------------------
PRIORITY CRITERIA RESPONSE RESOLUTION SOLUTION
----------------------------------------------------------------------------------------------------------------------------------
1 Critical Defects 2 hours Within 24 hours provide a Fix incorporated into next release.
Workaround
(The Customer Web site is Engineering working round the
unusable due to a clock if a patch is required.
Software/Product error)
----------------------------------------------------------------------------------------------------------------------------------
2 Major Defects 4 hours Within 48 hours provide a Fix incorporated into next release.
workaround
(The Customer Web site is Fix delivered in monthly patch
materially, adversely release.
affected by a
Software/Product error)
----------------------------------------------------------------------------------------------------------------------------------
3 Minor Defects 8 hours Within 10 days provide a Workaround Fix in next major release.
Fix delivered in next release.
(The Customer Web site is
immateriality adversely
affected by a
Software/Product error)
----------------------------------------------------------------------------------------------------------------------------------
4 Minor Problem 2 days Answer technical information Incorporate into Knowledge Base.
requests. Forward other issues to
(Documentation) appropriate group
----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page 9 Software License Agreement
PRODUCT SCHEDULE #1
AD-TARGETING PRODUCT ("Product1")
Product Description
Product1 features intelligent Web targeting which optimizes the performance of
banner campaigns. Product1 is a value added system that enhances existing ad
servers to maximize site performance and revenue. Product 1 will be offered
both as a stand-alone "plug-in" system and as a system integrated with NPI
products. Neural will be responsible for generating all Documentation for
Product1 (excluding reproduction and printing costs). Initially, Product1 will
be available on the NT and Solaris platforms. Neural will perform all
engineering efforts related to the productization of Product1.
Royalty Payments
NPI shall pay royalties to Neural based on a set percentage of net license and
maintenance revenue (gross revenue less any taxes, shipping, etc.) derived by
NPI from the Product1 and also based on the cumulative NPI payments made to
Neural for Product1 and maintenance sales during the term of this Agreement in
accordance with the following table:
-------------------------------------
Cumulative NPI
royalties accrued to
Neural Royalty %
-------------------------------------
[*] [*]
-------------------------------------
[*] [*]
-------------------------------------
[*] [*]
-------------------------------------
-------------------------------------
Royalty Payment Terms
Due and payable to Neural within thirty (30) days after the end of the calendar
month of collection from End Users by NPI.
NEURAL DIRECT SALES ACTIVITY PROVISIONS
It is understood between the parties that NPI's exclusive license grant under
section 2(b) of the Agreement will not include the following set of named
accounts for Product1 which Neural may choose to sell through its direct sales
force or through co-selling efforts with NPI. :
-----------------------
[*]
-----------------------
[*]
-----------------------
[*]
-----------------------
[*]
-----------------------
[*]
-----------------------
[*]
-----------------------
[*]
-----------------------
[*]
-----------------------
--------------------------------------------------------------------------------
Page 10 Software License Agreement
* Confidential treatment requested for redacted portion.
-----------------------
[*]
-----------------------
[*]
-----------------------
[*]
-----------------------
[*]
-----------------------
[*]
-----------------------
It is understood between the parties that all revenue realized directly by
Neural from the above accounts(excluding DoubleClick) will apply to the
cumulative revenue requirements for NPI to maintain its Internet license
exclusivity under Section 6 of the Agreement. In cases where NPI receives
commissions in joint sales situations, only the net revenue, after deducting the
commission paid to NPI, will apply to the cumulative revenue requirements for
NPI to maintain its Internet license exclusivity under Section 6 of the
Agreement.
The parties each desire to motivate the other party (and its top executive,
marketing and sales personnel) to close the above accounts through joint sales
efforts and, therefore, Neural agrees to pay the NPI for such performance in
accordance with the following:
- Lead referral or contact introduction with limited sales involvement -
[*];
- Lead referral or contact introduction with NPI assuming significant sales
[*].
The above percentages will be calculated on the "net revenue" (i.e., gross sales
revenue less any taxes, shipping, etc.) actually received by the Neural from any
sale or license of the Product1.
In addition, for Internet financial markets NPI will be the primary sales agent.
However it is anticipated that Neural's sales force can add value in the sales
process for Internet financial markets. Therefore, NPI desires to motivate
Neural (and its top executive, marketing and sales personnel) to assist in the
closing of Internet financial markets through joint sales efforts and,
therefore, NPI agrees to pay the Neural for such performance which shall apply
to the cumulative revenue requirements for NPI to maintain its Internet
exclusivity under Section 7. Fees shall be in accordance with the following:
- Lead referral or contact introduction with limited sales involvement -
[*];
- Lead referral or contact introduction with Neural assuming significant
sales responsibility [*].
PROMOTION REQUIREMENTS. NPI will cobrand its offering with the "powered by
Neural-TM-" logo. NPI will include reference to Neural in all press releases
related to their clients' use of Neural's technology. This will include joint
press releases as well as individual press release from each firm. Neural will
be allowed to reference NPI clients using Neural technology in its marketing
efforts. In the event NPI is prohibited from issuing a press releases due to a
non-disclosure agreement with a client Neural will also abide by the same
non-disclosure agreement. Neural will allow NPI to include references to Neural
within their branding and positioning of Product1. All references must use
Neural logo and trademark from the approved Neural style guide.
--------------------------------------------------------------------------------
Page 11 Software License Agreement
* Confidential treatment requested for redacted portion.
