1
EXHIBIT 10.6
NETGRAVITY ADCENTER SERVICE AGREEMENT
This AGREEMENT (the "Agreement") is made and entered into as of the
date written above (the "Effective Date") by and between NETGRAVITY, INC., a
Delaware corporation ("NetGravity"), having its principal place of business at
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, and the entity
identified above (the "Customer").
1. ADCENTER SERVICES.
1.1 Scope. NetGravity will provide to Customer its AdCenter.
The AdCenter service is an Internet advertising administration system that will
allow Company to manage advertising and other programming ("programming") on its
network of on-line banners which reside on Web sites (the "Network"). In
connection with the AdCenter services, NetGravity will, among other things,
provide those services described on Exhibit A (the "Services").
1.2 Scheduling.
(a) Following the Effective Date, NetGravity will provide to
Customer a password and a URL, ID & password for Customer to securely access
NetGravity's AdCenter web site so for purposes of scheduling programming for the
Network and obtaining online reports. Customer will be solely responsible for
scheduling the programming for its Network (i.e., advertisements, streaming,
other content and audio/video) using such interface, in accordance with the
documentation provided to Customer from time to time by NetGravity.
(b) NetGravity will provide 10x5 technical support from the
hours of 9 a.m. to 8p.m., Eastern Standard Time, Monday through Friday, to one
Customer contact for scheduling questions and to assist Customer in the use of
the NetGravity Web site user interface.
1.3 Programming Delivery. Customer will be solely responsible
for delivering its programming to NetGravity in accordance with the
documentation provided to Customer from time to time by NetGravity.
2
2. PRICES AND PAYMENT.
2.1 Fees. Customer shall pay NetGravity the initial set-up fee
and the rates for the Services ("Service Fee") as set forth on Exhibit C annexed
hereto, provided that in no event shall Customer pay less than the minimum
monthly Service Fee set forth below. NetGravity reserves the right to modify the
Service Fee at the expiration of each renewal term during this Agreement and
shall provide Customer, not less than ninety (90) days prior to the expiration
of the then current term, written notice of any change in the fees for the
Services. In the event of any modification to the Service Fees, Customer shall
have the right to terminate this Agreement upon written notice to NetGravity.
2.2 Payments. Customer shall make all payments with thirty
(30) days of receipt of NetGravity's invoice. All payment shall be made in U.S.
dollars. In the event any currency conversion is required in connection with the
calculation of amounts payable under this Agreement, such conversion shall be
made using the exchange rate quoted by the Wall Street Journal (U.S., Eastern
version) for the invoice date. NetGravity may impose a service charge of 1.0%
per month, or the maximum rate permitted by law, whichever is lower, on all
overdue payments. Customer agrees to pay all costs incurred by NetGravity in
collecting overdue charges, including reasonable attorneys' fees, provided that
a judgment is entered against the Customer.
2.3 Taxes. Amounts due hereunder do not include and are net of
any foreign or domestic governmental taxes or charges of any kind that may be
applicable to the Services, including, without limitation, excise, sales, use,
property, license, value-added taxes, franchise, income, withholding or similar
taxes, customs or other import duties or other taxes, tariffs or duties other
than taxes which are imposed by the United States based on the net income of
NetGravity. Any such taxes which are otherwise imposed on payments to NetGravity
shall be the sole responsibility of Customer.
3. WARRANTY AND WARRANTY DISCLAIMER.
3.1 Customer. Customer warrants that Customer is free to enter
into this Agreement and that this Agreement constitutes the valid and binding
obligation of Customer, enforceable in accordance with its terms.
3.2 NetGravity. NetGravity represents and warrants that:
(a) NetGravity is free to enter into and perform this
Agreement and that this Agreement constitutes the valid and binding obligation
of Customer, enforceable in accordance with its terms
(b) Except for events beyond NetGravity's control, including,
but not limited to, Internet access outages and other events of force majeure,
(a) the AdCenter service will materially conform to the functionality described
in Section 1, (b) NetGravity either owns, has or will otherwise acquire the
right (and will, during the term hereof, maintain such right) to use all
hardware and software components of the AdCenter
-2-
3
service and will not infringe on any right or interest (intellectual property or
otherwise) of any third party.
(b) That it will take reasonable measures to provide security
and reliable operation of the Services consistent with industry customs and
standards.
(c) EXCEPT AS EXPRESSLY SET FORTH HEREIN, NETGRAVITY
SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR
CONDITIONS OR MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY AND
FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE
OF DEALING OR COURSE OF PERFORMANCE.
(d) During the course of delivering programming to Network,
NetGravity will collect and maintain information necessary to target
advertising, including but not limited to the user's IP address, cookie, browser
type and operating system, as well as the time, date and ad tag of the request.
NetGravity acknowledges and agrees that Customer will own and have the full
right to use or grant use of this information. Customer hereby grants NetGravity
the permission to run any reports considered part of the Service provided
hereunder and as Customer may otherwise request.
4. INDEMNIFICATION.
4.1 Customer shall indemnify, defend and hold harmless
NetGravity from any liability, losses, costs or damages (including reasonable
attorneys' fees) arising from or related to (a) any claims of personal injury or
property damage resulting from items sold or advertised by Customer; (b) any
Customer advertisement(s), any material to which users can link through such
advertisement(s), or any other information or data provided by Customer using
the Services which are allegedly defamatory, obscene, violate the personal,
privacy or property rights of any third party; (c) any willful or grossly
negligent acts of Customer in connection with Customer's use of the
Services;provided that (i) NetGravity promptly notifies Customer of such claims;
(ii) Customer has sole control of the defense and settlement of such claims and
is not responsible for any settlement that it does not approve in writing; and
(iii) NetGravity renders all reasonable assistance required to defend such
claims and (iv) that any of (a) through (c) above was not caused by a breach by
NetGravity of this Agreement.
4.2 NetGravity shall indemnify and hold harmless Customer from
any third party claims and liabilities for infringement arising out of relating
to Customer's use of the NetGravity proprietary Internet advertising management
software and the Services pursuant to this Agreement, provided that (a) Customer
promptly notifies NetGravity of
-3-
4
such claims; (b) NetGravity has sole control of the defense and settlement of
such claims and is not responsible for any settlement that it does not approve
in writing; and (c) Customer renders all assistance required. If an injunction
is entered against Customer's use of the application software, NetGravity will,
at its option, (i) obtain a license permitting such use, (ii) modify the
application software to avoid the infringement or (iii) if it cannot reasonably
do either of the foregoing, terminate this Agreement.
5. LIMITATION OF LIABILITY. EXCEPT IN REGARDS TO THE PARTIES' INDEMNITY
OBLIGATIONS, IN NO EVENT SHALL ANY PARTY HEREOF, ITS SUPPLIERS OR SUBCONTRACTORS
BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY
KIND OR NATURE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS
OF DATA AND COST OF COVER, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER
CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER OR NOT NETGRAVITY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. CONFIDENTIAL INFORMATION. Each party acknowledges that in the course
of the performance of this Agreement, it may obtain certain information of the
other party identified in writing as being confidential ("Confidential
Information"). The party receiving such Confidential Information shall not use
or disclose such Confidential Information to any third party other than as
expressly permitted under this Agreement or as required by judicial, tribunal or
government order. For the purposes of this Agreement third party shall be anyone
not in direct contact with Customer and Customer's installation of AdCenter
(including employees of NetGravity or any of its affiliates). All Customer URL,
ID and passwords used in connection with this Agreement and any account
information relating to Customer's business, customers, products, technology and
information and data input into the Application Software or Services by
Customer, including, without, limitation, advertiser contact and billing
information, and any and all confidential or proprietary information disclosed
to or learned by NetGravity while NetGravity employees or implementation of the
Services is Confidential Information of Customer. Each party shall not use,
disclose or reproduce any Confidential Information of the other party without
the consent of the party providing said information, except for any information,
data or material which: (a) at the time of disclosure to the receiving party was
known or in the possession of the receiving party without restriction; (b) is
independently developed by the receiving party; (c) is generally available to
the public without any breach of this Agreement by the receiving party. The
parties acknowledge and agree that disclosure of the terms of this Agreement to
anyone that is not a party to this Agreement (except attorneys and accountants
of the parties) may create substantial business damage to the parties and hereby
agree to keep the terms of this Agreement strictly confidential. Each party will
return or destroy all copies of the other party's Confidential Information when
this Agreement is terminated.
7. TERM AND TERMINATION.
-4-
5
7.1 Term. This Agreement shall continue in full force and
effect, unless terminated earlier in accordance with the terms of this Section
7, for a period of one (1) year (the "Initial Term"), except that Customer may
terminate this Agreement with or without cause during the thirty (30) day period
following the first anniversary of the Initial Term upon receipt by NetGravity
of written notice of Customer's intent to terminate. Thereafter, this Agreement
will automatically renew for additional six month periods (each a "Renewal
Term") until terminated in accordance with the terms of this Section 7.
7.2 Termination for Cause. In the event of a breach by
Customer of its material obligations under this Agreement, NetGravity may
immediately cease to provide Services to Customer. NetGravity may also terminate
this Agreement effective upon sixty (60) days written notice unless Customer
cures such breach within such sixty (60) day period. In the event of a breach by
NetGravity of its material obligations under this Agreement, Customer may
terminate this Agreement upon day with written notification to NetGravity unless
NetGravity cures such breach (admanager interface) within such seven (7) day
period. In the event that the production side, the actual adserving side of the
Service is down for , Customer shall have the right to terminate within days of
such downtime. Either party may terminate this Agreement immediately in the
event that the other party ceases to do business, undergoes a bankruptcy or
insolvency proceeding or an assignment for the benefit of creditors.
7.3 Effect of Termination. Upon termination of this Agreement,
all Confidential Information in the possession of one party shall be returned
promptly to the other party. The provisions of Sections 3, 4, 5, 6, 7 and 8, and
all payment obligations incurred prior to termination of this Agreement, shall
survive.
8. GENERAL.
8.1 Amendment; Waiver. This Agreement may not be amended
except by a written notice signed by an authorized representative of NetGravity
and Customer. The failure of either party to enforce any provision hereunder is
not a waiver of such provision or any other provision. The waiver of either
party of any of its rights hereunder shall not be construed as a waiver of any
subsequent breach.
8.2 Assignment. Customer may not assign this Agreement, in
whole or in part, whether by operation of law or otherwise, without the prior
express written consent of NetGravity, which consent shall not be unreasonably
withheld, except that Customer may assign this Agreement to any entity (a)
controlling that party; (b) controlled by, under common control with, or
acquiring a controlling financial interest in that party, or in which that party
acquires a controlling financial interest (provided such assignee assumes the
assignor's obligations under this Agreement and provided further that assignor
remains liable to the other party following such assignment); or (c) acquiring
substantially all of assignor's assets (provided such assignee assumes
assignor's obligations under this Agreement), where "control" in the foregoing
shall mean ownership of fifty percent (50%) or more of the voting stock of the
entity; or
-5-
6
(d) by operation of law.Subject to the foregoing, this Agreement will bind and
inure to the benefit of the parties, their respective successors and permitted
assigns.
8.3 Governing Law; Arbitration. This Agreement shall be
governed by the laws of the State of California, excluding conflict of laws
provisions and excluding the 1980 United Nations Convention on Contracts for the
International Sale of Goods.
8.4 Liability of NetGravity. The provisions of this Agreement
under which the liability of NetGravity is excluded or limited shall not apply
to the extent that such exclusions or limitations are declared illegal or void
under any applicable laws governing this Agreement, except to the extent such
illegalities or invalidities are cured under such laws by the fact that the law
of California governs this Agreement.
8.5 Notices. All notices under this Agreement shall be in
writing. Notice shall be effective on the earlier of actual receipt or (a) the
day after transmission if sent by facsimile followed by written confirmation by
registered overnight carrier or certified United States mail; or (b) one day
after posting when sent by registered private overnight carrier (e.g., DHL,
Federal Express, etc.); or (c) five (5) days after posting when sent by
certified United States mail. Notice shall be sent to the parties at the
addresses set forth on the first page of this Agreement or at such other address
as shall be given by either party to the other in writing. Notices to NetGravity
shall be address to the attention of Contracts Administrator.
8.6 Independent Contractors. The parties are independent
contractors. Neither party shall be deemed to be an employee, agent, partner or
legal representative of the other for any purpose and neither shall have any
right, power or authority to create any obligation or responsibility on behalf
of the other.
8.7 Severability. In the event any provision of this Agreement
is determined to be invalid, illegal or otherwise unenforceable, then such
provision will instead be construed to give effect to its intent to the maximum
extent permissible and the remainder of this Agreement will remain in full force
and effect according to its terms.
8.8 Force Majeure. Except for the obligation to pay money,
neither party shall be liable for its failure to perform hereunder to the extent
that such failure to perform results from any cause beyond its reasonable
control, including, without limitation, acts of God, acts of war, strikes,
computer viruses, power outages, failure of suppliers, epidemics, earthquakes,
fire and other disasters.
8.9 Entire Agreement. This Agreement, including all Exhibits
attached hereto, constitutes the entire agreement of the parties with respect to
the subject matter hereof and supersedes all previous communications,
representations, understandings and agreements, either oral or written, between
the parties with respect to said subject matter.
-6-
7
8.10 Software License Option. Upon execution of this
Agreement, NetGravity shall have been deemed to grant to Company an irrevocable
right and option to license the NetGravity AdServer Software on the terms and
conditions of the License Agreement annexed hereto as Exhibit D for a perpetual
license term at a rate which is equal to a [X]% discount off of NetGravity list
pricing in effect when the software is ordered. This option and right shall be
valid only through .
[X]=Certain information on these pages has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect
to the omitted portion.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CUSTOMER
NETGRAVITY, INC. XXX.XXX CORPORATION
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXXX XXXXXXXXXXX
------------------------ ------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx Xxxxxxxxxxx
--------------------- ---------------------------
Title: Vice President Title: Director, Marketing & Sales
--------------------- ---------------------------
Finance & Administration
------------------------
Chief Financial Officer
-----------------------
-7-
8
EXHIBIT A
---------
ADCENTER SERVICES
Description of AdCenter Services:
(a) NetGravity or its supplier will maintain an AdCenter server complex
from which NetGravity will electronically deliver programming scheduled by
Customer to the Network which will contain the ad tags placed by Customer.
NetGravity will provide a repository area into which Customer will copy ad
creative files for scheduled delivery. NetGravity will provide Customer with a
password for remote entry into the user interface portion of the Service, with
which Customer will be able to (i) generate ad tags, (ii) schedule advertising
to run in the on-line environments in which Customer places those ad tags and
(iii) generate reports on such advertising
(b) The AdCenter Service includes targeting features as listed in
Exhibit B annexed hereto. The AdCenter also Service includes a suite of standard
reports available in the AdCenter system and listed in Exhibit B.
(c) NetGravity will give to Customer access to any modifications,
upgrades or changes to the Services that are generally available to other
NetGravity customers ("Enhancements") as soon as they become available; provided
that any such Enhancements will be considered part of the Services or part of
other services and subject to additional fees. Customer may request that
NetGravity make Enhancements to the Services and NetGravity will consider such
requests. and shall submit a quote for the additional cost of the Enhancements
to Customer's present level of Services. Upon receipt of the quote, Customer
shall have thirty (30) days to accept or reject the quote for additional
Enhancements. If Customer fails to respond in writing within said thirty (30)
day period, the quote shall be deemed rejected by Customer and the Services
shall remain unchanged until the expiration of the term or any renewal term.
NetGravity acknowledges that ActionTrack and PinPoint, will be considered part
of the AdCenter services originally covered by this Agreement and will not be
subject to additional fees, provided that Customer acknowledges that NetGravity
reserves the right to charge additional fees for PinPoint in the event that
Customer desires to target on more than five dimensions
(d) NetGravity will provide 24x7 system monitoring to ensure maximum
uptime in the delivery of on-line programming.
-8-
9
EXHIBIT B
---------
ADCENTER SERVICE FEATURES AND STANDARD REPORTS
Reports:
Advertiser Reports
1. Show Advertiser Performance
2. Show Campaign Performance
3. Show Individual Ad Performance
Site Reports
4. Show Total Inventory
5. Show All Current Runs
6. Show Impression Goal Status
7. Show Site Performance
8. Show Advertiser Summary
9. Show Individual Ad Summary
10. Show Campaign Summary
Affiliate Reports
11. Show Affiliate Advertiser Performance
12. Show Affiliate Profile Performance
Notes:
- 1 Show GeoTargeting Dimension report can replace 1 of the 12 listed above at
no incremental expense
- Custom Reports can be written by NetGravity Consulting
on a per diem basis at [X]/day.
[X]=Certain information on these pages has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect
to the omitted portion.
-9-
10
EXHIBIT C
---------
Set-Up and Service Fees
A. Set-Up Fees
The three day set up fee shall be $.00 plus related travel and
expenses. The set-up fee includes at a minimum one day of initial training.
Customer shall the have option to use the additional two days at its discretion.
B. Service Fees
Monthly Impressions CPM
------------------- ---
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
[X] [X]
**Minimum Monthly Cost of $[X]
[X]=Certain information on these pages has been omitted and
filed separately with the commission. Confidential
treatment has been requested with respect to the
omitted portion.
As used herein, the term "CPM" shall mean the cost per one thousand
impressions (i.e., the number of times an advertisement is delivered to a user's
browser).
The Service Fee pricing is based on ad creative files which do not
exceed a one month average of 12.0 kilobytes in file size. NetGravity reserves
the right to adjust CPM pricing by reasonable proportions, if certain
bandwidth-intensive ads cause the average file size to exceed 12.0 kb.
-10-
11
EXHIBIT D
---------
NETGRAVITY ADSERVER LICENSE AGREEMENT
This Agreement is made and entered into as of this _______ day of
__________, 1999 ("Effective Date") by and between NetGravity, Inc., a Delaware
corporation, having its principal place of business at 0000 X. Xxxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxx, XX 00000 ("NetGravity") and the entity at the location
listed on Exhibit A hereto ("Licensee").
RECITALS
--------
A. NetGravity is the owner of proprietary Internet web site advertising sales
and management software products.
B. Licensee wishes to obtain a license to use such software on the terms and
conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties hereby agree as
follows:
1. DEFINITIONS
The following terms shall have the following meanings:
1.1 "Software" means the proprietary Internet web site advertising sales and
management software program developed by NetGravity known as AdServer which is
comprised of the Program Components, in object code form only, and any updates
and upgrades as may be issued to Licensee by NetGravity after the Effective
Date.
1.2 "Program Component(s)" means the AdManager component, AdServer component,
the AdClient component, the AdConsole component, and the AdInsight Server as
further described on Exhibit A.
1.3 "Site(s)" means Licensee's site or sites on the World Wide Web.
2. GRANT OF RIGHTS
2.1 Grant of License. Subject to the terms and conditions of this Agreement,
NetGravity hereby grants to Licensee a perpetual, worldwide, nonexclusive,
nontransferable (except in accordance with Section 12.1) license, to install and
use the number of copies of each Program Component of the Software licensed as
indicated on Exhibit A internally to manage advertising on the Site(s). Licensee
may make backup copies of the Software for archival or disaster recovery
purposes.
2.2 Restrictions. The license granted herein is granted solely to the person or
entity set forth on Exhibit A, and not, by implication or otherwise, to any
parent, subsidiary or affiliate of such person or entity. No right is granted
hereunder to use the Software to perform advertising management services for
third parties (so-called "service bureau" uses). All rights not expressly
granted hereunder are reserved to NetGravity. Licensee may not copy, distribute,
reproduce, use or allow access to the Software except as explicitly permitted
under this Agreement, and Licensee will not modify, adapt, translate, prepare
derivative works from, decompile, reverse engineer, disassemble or otherwise
attempt to derive source code from the Software or any internal data files
generated by the Software except the extent permitted by applicable law.
Licensee shall not remove, obscure, or alter NetGravity's copyright notice,
trademarks, or other proprietary rights notices affixed to or contained within
the Software.
2.3 Ownership. NetGravity owns and shall retain all right, title, and interest
in and to the Software, including all copyrights, patents, trade secret rights,
trademarks and other intellectual
12
property rights therein. Licensee shall provide NetGravity with access to
Licensee's facilities, at reasonable times and upon reasonable notice, to verify
Licensee's compliance with the terms of this Agreement.
3. DELIVERY OF THE SOFTWARE
3.1 Delivery. As soon as practicable following the Effective Date, NetGravity
shall deliver the Software electronically or by other means mutually agreed upon
to Licensee at the location(s) set forth on Exhibit A.
3.2 Installation and Training. As soon as practicable following the delivery of
the Software, NetGravity will provide reasonable assistance to Licensee by
telephone and e-mail in installing the Software. At Licensee's request, on-site
installation assistance and training may be provided at NetGravity's standard
rates, plus reasonable travel expenses.
4. FEES
4.1 License Fee. In consideration for the rights granted hereunder, Licensee
shall pay NetGravity license fees in the amounts and on the payment terms set
forth on Exhibit A.
4.2 Taxes. Licensee shall be responsible for all sales taxes, use taxes and any
other similar taxes imposed by any federal, state or local governmental entity
on the transactions contemplated by this Agreement, excluding U.S. taxes based
upon NetGravity's income. When NetGravity has the legal obligation to pay or
collect such taxes, the appropriate amount shall be invoiced to and paid by
Licensee unless Licensee provides NetGravity with a valid tax exemption
certificate authorized by the appropriate taxing authority.
4.3 U.S. Dollars. All fees quoted and payments made hereunder shall be in U.S.
Dollars.
5. NETGRAVITY SUPPORT
At Licensee's request, NetGravity will offer maintenance and technical support
with respect to the Software under its then current standard Software
Maintenance Subscription and Support Agreement, a copy of which is attached as
Exhibit B.
6. WARRANTY AND DISCLAIMER
NetGravity warrants that for a period of forty-five (45) days following the
delivery of the Software: (i) the Software shall operate substantially in
accordance with the then current documentation for such Software and (ii) the
media on which the Software is furnished shall be free from defects in materials
and faulty workmanship under normal use. NetGravity does not warrant that the
Software will meet all of Licensee's requirements or that the use of the
Software will be uninterrupted or error-free. NetGravity's sole obligation under
this warranty is to use reasonable efforts to correct any non-conforming
Software. Except as expressly provided herein, NETGRAVITY LICENSES THE SOFTWARE
TO LICENSEE ON AN "AS IS" BASIS. NETGRAVITY MAKES NO OTHER WARRANTY OR CONDITION
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
7. INDEMNIFICATION
7.1 By NetGravity. NetGravity shall indemnify, defend and hold harmless Licensee
from any and all damages, liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Licensee as a result of any claim that the
Software, when used within the scope of this Agreement, infringes any copyright,
trademark, or trade secret of any third party; provided that Licensee promptly
notifies NetGravity in writing
13
of any such claim and promptly tenders the control of the defense and settlement
of any such claim to NetGravity at NetGravity's expense and with NetGravity's
choice of counsel. Licensee shall cooperate with NetGravity, at NetGravity's
expense, in defending or settling such claim and Licensee may join in defense
with counsel of its choice at its own expense. If the Software is, or in the
opinion of NetGravity may become, the subject of any claim for infringement or
if it is adjudicatively determined that the Software infringes then NetGravity
may, at its option and expense, either (i) procure for Licensee the right from
such third party to use the Software or (ii) replace or modify the Software with
other suitable and reasonably equivalent products so that the Software become
noninfringing or (iii) if (i) and (ii) are not practicable, terminate this
Agreement.
7.2 Exclusions. NetGravity shall have no liability for any infringement arising
from (i) the use of other than the then-current, commercially available version
of the Software; (ii) the use of the Software other than as set forth in its
accompanying documentation; (iii) the modification of the Software unless such
modification was made or authorized by NetGravity, when such infringement would
not have occurred but for such modification; or (iv) the combination or use of
the Software with other software, hardware or other products not approved by
NetGravity in advance if such infringement would have been avoided by the use of
the Software not in such combination. THIS SECTION 7 STATES NETGRAVITY'S ENTIRE
OBLIGATION WITH RESPECT TO ANY CLAIM REGARDING THE INTELLECTUAL PROPERTY RIGHTS
OF ANY THIRD PARTY.
7.3 By Licensee. Licensee shall indemnify, hold harmless and defend NetGravity
from and against any and all claims, liabilities, damages and expenses
(including reasonable attorneys' fees) incurred by NetGravity as a result of any
breach by Licensee of this Agreement; provided that NetGravity promptly notifies
Licensee in writing of any such claim and promptly tenders to Licensee the
control and defense and settlement of such claim at Licensee's expense and with
Licensee's choice of counsel. NetGravity shall cooperate with Licensee, at
Licensee's expense, in defending or settling such claim and NetGravity may join
in defense with counsel of its choice at its own expense.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL NETGRAVITY'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE USE
OR PERFORMANCE OF THE SOFTWARE EXCEED THE SUM OF THE LICENSE FEES ACTUALLY PAID
BY LICENSEE HEREUNDER. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE
OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED
AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL
NOT APPLY TO ANY BREACH BY LICENSEE OF THE LICENSE RESTRICTIONS OR ITS
CONFIDENTIALITY OBLIGATIONS. THE PARTIES AGREE THAT THIS SECTION 8 REPRESENTS A
REASONABLE ALLOCATION OF RISK.
14
9. CONFIDENTIALITY
9.1 Definition. The term "Confidential Information" shall mean any information
disclosed by one party to the other party in connection with this Agreement
which is disclosed in writing, orally or by inspection and is identified as
"Confidential" or "Proprietary" or which a party has reason to believe is
treated as confidential by the other party. Any information, in whatever form,
disclosed by NetGravity that relates to the Software and that is not publicly
known is "Confidential Information."
9.2 Obligation. Each party shall treat as confidential all Confidential
Information received from the other party, shall not use such Confidential
Information except as expressly permitted under this Agreement, and shall not
disclose such Confidential Information to any third party without the other
party's prior written consent. Each party shall take reasonable measure to
prevent the disclosure and unauthorized use of Confidential Information of the
other party.
9.3 Exceptions. Notwithstanding the above, the restrictions of this Section
shall not apply to information that:
a) was independently developed by the receiving party without any use
of the Confidential Information of the other party and by employees or other
agents of (or independent contractors hired by) the receiving party who have not
been exposed to the Confidential Information;
b) becomes known to the receiving party, without restriction, from a
third party without breach of this Agreement and who 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;
d) was rightfully known to the receiving party, without restriction, at
the time of disclosure; or
e) is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body; provided, however, that the
receiving party shall provide prompt notice thereof to the other party and shall
use its reasonable best efforts to obtain a protective order or otherwise
prevent public disclosure of such information.
10. TERM AND TERMINATION
10.1 Term. The term of this Agreement shall commence on the Effective Date and
shall continue in force until terminated as follows:
a) If Licensee fails to make any payment due within thirty (30) days
after receiving written notice from NetGravity that such payment is delinquent,
NetGravity may terminate this Agreement on written notice to Licensee at any
time following the end of such thirty (30) day period.
b) If either party materially breaches any term or condition of this
Agreement and fails to cure that breach within thirty (30) days after receiving
written notice of the breach, the nonbreaching party may terminate this
Agreement on written notice at any time following the end of such thirty (30)
day period.
c) This Agreement shall terminate immediately upon notice in the event
Licensee becomes insolvent (i.e., becomes unable to pay its debts in the
ordinary course of business as they come due) or makes an assignment of this
Agreement for the benefit of creditors.
10.2 Survival. The following sections shall survive the termination, for any
reason, of this Agreement: 4, 6, 7, 8, 9, 10, and 12.
15
10.3 Remedies. Licensee acknowledges that its breach of Section 2.2 or 9 would
cause irreparable harm to NetGravity, the extent of which would be difficult to
ascertain. Accordingly, Licensee agrees that, in addition to any other remedies
to which NetGravity may be legally entitled, NetGravity shall have the right to
obtain immediate injunctive relief in the event of a breach of such sections by
Licensee or any of its officers, employees, consultants or other agents.
11. EXPORT REGULATIONS
Without affecting the scope of the license granted herein, in the event Licensee
is permitted to transfer the Software to any location outside the United States
under this Agreement, Licensee hereby agrees it will comply with all applicable
United States export laws and regulations.
12. MISCELLANEOUS.
12.1 Assignment. Licensee may not assign any of its rights or delegate any of
its obligations under this Agreement, whether by operation of law or otherwise,
without the prior express written consent of NetGravity. Subject to the
foregoing, this Agreement will bind and inure to the benefit of the parties,
their respective successors and permitted assigns.
12.2 Waiver and Amendment. No modification, amendment or waiver of any provision
of this Agreement shall be effective unless in writing and signed by the party
to be charged. No failure or delay by either party in exercising any right,
power, or remedy under this Agreement, except as specifically provided herein,
shall operate as a waiver of any such right, power or remedy.
12.3 Governing Law; Arbitration. This Agreement shall be governed by the laws of
the State of California, USA, excluding conflict of laws provisions and
excluding the 1980 United Nations Convention on Contracts for the International
Sale of Goods. Any disputes arising out of this Agreement shall be resolved by
binding arbitration in Santa Xxxxx County California in accordance with the
rules of the American Arbitration Association. The arbitrator shall have the
power to grant injunctive relief.
12.4 Notices. All notices, demands or consents required or permitted under this
Agreement shall be in writing. Notice shall be considered effective on the
earlier of actual receipt or (a) the day following transmission if sent by
facsimile followed by written confirmation by registered overnight carrier or
certified United States mail; or (b) one (1) day after posting when sent by
registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (c)
five (5) days after posting when sent by certified United States mail. Notice
shall be sent to the NetGravity at the addresses set forth on the first page of
this Agreement and to Licensee at the address set forth on Exhibit A, or at such
other address as shall be given by either party to the other in writing. Notices
to NetGravity shall be addressed to the attention of Contracts Administrator.
12.5 Independent Contractors. The parties are independent contractors. Neither
party shall be deemed to be an employee, agent, partner or legal representative
of the other for any purpose and neither shall have any right, power or
authority to create any obligation or responsibility on behalf of the other.
12.6 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
12.7 Complete Understanding. This Agreement, including all Exhibits attached
hereto, constitutes the final, complete and
16
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes any prior or contemporaneous agreement.
12.8 Force Majeure. Except for Licensee's obligations to pay NetGravity
hereunder, neither party shall be liable to the other party for any failure or
delay in performance caused by reasons beyond its reasonable control.
12.9 Purchase Orders. This Agreement shall control Licensee's use of the
Software. All different or additional terms or conditions in any Licensee
purchase order or similar document shall be null and void.
12.10 Execution. The parties have shown their acceptance of this Agreement by
causing it to be executed below by their duly authorized representatives. This
agreement may be executed in counterparts which together shall constitute one
agreement, and each party agrees that a copy of a counterpart executed by it and
sent to the other by any method including without limitation facsimile shall
constitute acceptance of this Agreement.
NETGRAVITY
By:___________________________________
Name:_________________________________
Title: _______________________________
"LICENSEE"
By:____________________________________
Name:__________________________________
Title: ________________________________
17
EXHIBIT A
LICENSEE:
-----------------------------------------------
Address:
-----------------------------------------------
-----------------------------------------------
Attention: [License Administrator]:
-----------------------------------------------
ADSERVER SOFTWARE LICENSED COMPONENTS:
-----------------------------------------------
Program Components Description:
-----------------------------------------------
The Admanager component contains the user interface and management
database. The Adserver is a server application responsible for delivering
advertisements. The AdClient component is the technology that integrates with
web server software to receive ads from the ad server. The AdConsole component
serves as a report publishing platform to advertisers and agencies.
Program Component Licensed Number of Copies
AdManager
AdServer
AdClient
AdConsole
AdInsight Server*
*Licensee shall have the right to copy the AdServer for AdInsight (reporting)
purposes. This additional copy of AdServer shall not be used for additional
adserving capability.
SureStart Deployment Package
**Plus related travel expenses
TOTAL PACKAGE PRICE:
Payment Terms:
Payment is due Net 30 days from the Effective Date
18
EXHIBIT B
Date of this Agreement:
SOFTWARE SUBSCRIPTION AND SUPPORT AGREEMENT
BETWEEN
NETGRAVITY, INC.
And
NetGravity, Inc. ("NetGravity") has granted Licensee a license to
certain software in accordance with a license agreement dated ________, 1999
(the "License Agreement"). Licensee wishes to obtain maintenance and support of
such software pursuant to this Agreement.
SECTION 1
---------
DEFINITIONS
-----------
1.1 "Product(s)" means the software programs licensed to Licensee pursuant to
the License Agreement together with any Updates furnished by NetGravity to
Licensee under this Agreement.
1.2 "Updates" means a software Product release containing error corrections and
minor enhancements, in object code form, which is made commercially available by
NetGravity and generally indicated by a change in the revision number in the
tenths or hundredths digit to the right of the decimal point (e.g., a change
from version x.xx to x.xy or x.yx) and any corrections and updates to the
associated documentation.
1.3 "Upgrades" means a software Product release containing significant
functional enhancements and feature additions of the Software, in object code
form, which is made commercially available by NetGravity and generally indicated
by a change in the
19
revision number to the left of the decimal point (i.e., 4.00).
SECTION 2
---------
TECHNICAL SUPPORT
-----------------
2.1 Support. NetGravity will provide Licensee with technical support ("Support")
during the hours indicated on the attached Schedule 1. Support will be provided
by at least one of the following methods: telephone, email, World Wide Web, or
fax. NetGravity, at its sole discretion, will choose which method(s) it uses to
provide support to Licensee. Support will include:
a) assistance related to questions on the installation and operational
use of the Product(s);
b) assistance in identifying and verifying the causes of suspected
errors in the Products(s); and
c) providing workarounds for identified Product errors or malfunctions,
where reasonably available to NetGravity.
Licensee will designate the number of persons set forth in Schedule 1 to act as
support liaisons to utilize the support and will ensure that such person will be
properly trained in the operation and usage of the Products. Upon request,
Licensee will allow the use of on-line diagnostics of the Products during error
diagnosis.
2.2 Error Corrections. During the term of this Agreement, NetGravity shall use
its reasonable efforts to correct any reproducible error in the Product with a
level of effort commensurate with the severity of the error. NetGravity shall
have no obligation to correct all errors in the Product. Upon identification of
any error, Licensee shall notify NetGravity of such error and shall provide
NetGravity with enough information to reproduce the error.
2.3 Error Corrections. NetGravity shall not be responsible for correcting any
errors not reproducible by NetGravity on the unmodified Product or errors caused
by: (i) Licensee's failure to implement all Updates issued under this Agreement;
(ii) changes to the operating system or environment which adversely affect the
Product;(iii) any alterations of or additions to the Product made by parties
other than NetGravity; (iv) use of the Product in a manner for which it was not
designed; (v) interconnection of the Product with other software products not
supplied by NetGravity; or (vi) use of the Product on an unsupported platform.
NetGravity shall only be obligated to support the then current production
version of the Product and the immediately prior release for a period of three
(3) months after such release. Support for any earlier versions or for errors
not covered under this Agreement may be obtained at NetGravity's then current
rates.
2.4 On-site Training and Support. Upon request, and provided that Licensee is
current with fees due under this Agreement, NetGravity will provide training for
Licensee's administrators and trainers and/or direct support at Licensee's site
at NetGravity's then applicable standard training rates and charges.
SECTION 3
---------
MAINTENANCE SUBSCRIPTION
------------------------
NetGravity will provide each Update and Upgrade to Licensee within a reasonable
time after publication ("Subscription"). Licensee may acquire additional copies
of the documentation at NetGravity's then current standard rates.
SECTION 4
---------
FEES
----
20
4.1 Support and Subscription Fees. For NetGravity technical Support services
covered by Section 2 of this Agreement, Licensee agrees to pay NetGravity the
annual technical Support fee in the amount set forth in Schedule 1 for the first
year following the Date of this Agreement. Licensee shall pay the annual fees
each year at the beginning of each renewal term of this Agreement. For
NetGravity Subscription Service provided under Section 3 of this Agreement,
Licensee shall pay the annual Subscription fee set forth in Schedule 1 beginning
one year from the Date of this Agreement. Licensee shall pay the annual fees at
the beginning of each renewal term of this Agreement. NetGravity reserves the
right to change the annual fees from time to time effective at the commencement
of the next annual period by giving Licensee at least sixty (60) days' prior
written notice of such change. NetGravity reserves the right to charge Licensee
a reinstatement fee to resume services if Licensee has not continuously
maintained this Agreement in effect. Annual fees on any additional units
licensed beyond the initial purchase will be prorated and billed at the time of
the applicable license grant.
4.2 Payment. Any amount payable to NetGravity under this Agreement will be due
and payable within thirty (30) days after Licensee's receipt of NetGravity's
invoice. All monetary amounts are specified and shall be paid in the lawful
currency of the United States of America. Licensee shall pay all amounts due
under this Agreement to NetGravity at the address indicated at the beginning of
this Agreement or such other location as NetGravity designated in writing. Any
amount not paid when due will bear interest at the rate of one and one-half
percent (1.5%) per month or the maximum rate permitted by applicable usury law,
which is less, determined and compounded on a daily basis from the date due
until the date paid.
4.3 Taxes. Unless otherwise specified, the fees, charges and other amounts
specified in this Agreement do not include any sales, use, excise or other
applicable taxes. Licensee will pay or reimburse NetGravity for any and all
such taxes (excluding any applicable federal and state taxes based on
NetGravity's income).
SECTION 5
---------
TERMINATION
-----------
5.1 Term. The term of this Agreement shall be one year and shall automatically
renew unless Licensee notifies NetGravity of its intention not to renew at least
60 days prior to the renewal date or unless terminated pursuant to paragraph
5.2.
5.2 Termination For Default. If either party defaults in the performance of or
compliance with any of its material obligations under this Agreement, and such
default has not been remedied or cured within thirty (30) days after written
notice specifying the default or, if the nature of the default is such that more
than (30) days are required for the cure thereof, the defaulting party fails to
commence its efforts to cure such breach or default within such thirty (30) days
and to diligently prosecute the same to completion thereafter, the
non-defaulting party may terminate this Agreement in addition to its other
rights and remedies under law.
5.3 Survival. Sections 4.2, 4.3, 5, 6 and 7 shall survive the termination of
this Agreement.
21
SECTION 6
---------
LIMITATIONS OF LIABILITY
------------------------
LIMITATION. NETGRAVITY'S LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT
OR OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, REPRESENTATION, STRICT
LIABILITY OR PRODUCT LIABILITY OF NETGRAVITY) UNDER THIS AGREEMENT WITH REGARD
TO ANY PRODUCT, DOCUMENTATION, SERVICES OR OTHER ITEMS SUBJECT TO THIS AGREEMENT
SHALL IN NO EVENT EXCEED THE TOTAL COMPENSATION PAID BY LICENSEE TO NETGRAVITY
UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR
RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
SECTION 7
---------
MISCELLANEOUS
-------------
7.1 Assignment. Licensee may not assign any of its rights or delegate any of its
obligations under this Agreement, whether by operation of law or otherwise,
without the prior express written consent of NetGravity. Subject to the
foregoing, this Agreement will bind and inure to the benefit of the parties,
their respective successors and permitted assigns.
7.2 Waiver and Amendment. No modification, amendment or waiver of any provision
of this Agreement shall be effective unless in writing and signed by the party
to be charged. No failure or delay by either party in exercising any right,
power, or remedy under this Agreement, except as specifically provided herein,
shall operate as a waiver of any such right, power or remedy.
7.3 Governing Law; Arbitration. This Agreement shall be governed by the laws of
the State of California, USA, excluding conflict of laws provisions and
excluding the 1980 United Nations Convention on Contracts for the International
Sale of Goods. Any disputes arising out of this Agreement shall be resolved by
binding arbitration in Santa Xxxxx County California in accordance with the
rules of the American Arbitration Association. The arbitrator shall have the
power to grant injunctive relief.
7.4 Notices. All notices, demands or consents required or permitted under this
Agreement shall be in writing. Notice shall be considered effective on the
earlier of actual receipt or (a) the day following transmission if sent by
facsimile followed by written confirmation by registered overnight carrier or
certified United States mail; or (b) one (1) day after posting when sent by
registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (c)
five (5) days after posting when sent by certified United States mail. Notice
shall be sent to the parties at the addresses set forth on the first page of
this Agreement or at such other address as shall be given by either party to the
other in writing. Notices to NetGravity shall be addressed to the attention of
Contracts Administrator.
7.5 Independent Contractors. The parties are independent contractors. Neither
party shall be deemed to be an employee, agent, partner or legal representative
of the other for any purpose and neither shall have any right, power or
authority to create any obligation or responsibility on behalf of the other.
22
7.6 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
7.7 Complete Understanding. This Agreement, including all Exhibits attached
hereto, constitutes the final, complete and exclusive agreement between the
parties with respect to the subject matter hereof, and supersedes any prior or
contemporaneous agreement.
7.8 Excused Performance. Neither party will be liable for, or be considered to
be in breach of or default under this Agreement on account of, any delay or
failure to perform as required by this Agreement (other than monetary
obligations) as a result of an event of force majeure or any cause or condition
beyond such party's reasonable control.
NETGRAVITY
Signature: ________________________________
Printed Name: _____________________________
Title: ____________________________________
Date Signed: ______________________________
Licensee:
Signature: _______________________________
Printed Name:______________________________
Title: ___________________________________
Date Signed: ______________________________
23
SCHEDULE 1
SUPPORT HOURS: AdService 24 (24 hours a day - 7 days a week)
SUPPORT CONTACTS: Please List 3:
FEES:
Products License Date Annual Support Fee Annual Subscription Fee
-------- ------------ ------------------ -----------------------
AdManager
AdServer June ___, 1999
Enterprise
AdClient
AdConsole
AdInsight
Fees are payable [annually] in advance.
