EXHIBIT 10.8.7
LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into as of the 30th day of
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December, 1999 ("Execution Date"), and between Annuncio Software, Inc., a
California corporation with an office at 0000 Xx Xxxxxx Xxxx, Xxxxxxxx Xxxx, XX
00000 ("Annuncio"), and E-Stamp Corporation, a Delaware corporation having an
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office at 0000 Xxxxxx Xxxxx, Xxx Xxxxx XX 00000 ("Licensee"). The parties agree
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that the Effective Date of this Agreement was August 1, 1999.
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BACKGROUND
WHEREAS, Annuncio has developed certain Internet marketing automation software
known as Annuncio Live TM; and
WHEREAS, Licensee wishes to obtain a non-exclusive license to use such software
to automate its Internet and integrated marketing campaigns.
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES HERETO
HEREBY AGREE AS FOLLOWS:
ARTICLE 1. DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following terms shall
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have the meanings set forth below:
(a) "ANNUAL MAINTENANCE FEE" means the annual fee to be paid by Licensee
to Annuncio in exchange for the provision of maintenance and support services,
as further described in Section 5.1.
(b) "ANNUNCIO DOCUMENTATION" means the documentation provided by Annuncio
to Licensee to be used in conjunction with the Software.
(c) "CONFIDENTIAL INFORMATION" means any information disclosed by one
party (the "Disclosing Party") to the other (the "Receiving Party") in
connection with this Agreement which, if in written, graphic, machine-readable
or other tangible form is marked as "Confidential" or "Proprietary", or which,
if disclosed orally, is identified at the time of initial disclosure as
confidential and such identification is reduced to a writing delivered to the
Receiving Party within thirty (30) days of such oral disclosure.
(d) "DESIGNATED SYSTEM" means the specific computer equipment at
Licensee's address listed above as set forth in Exhibit B.
(e) "LICENSE FEE" means the fee for the license rights granted herein, as
set forth in Exhibit B.
(f) "LICENSEE MATERIALS" means the text, customer data and other material
supplied by Licensee and used in conjunction with the Software.
(g) "SOFTWARE" means Annuncio's proprietary software as further described
in Exhibit A, in object code form, and any updates or upgrades thereto provided
by Annuncio hereunder.
(h) "TERM" means the term of the license hereunder, as set forth in
Exhibit B
ARTICLE 2. SOFTWARE LICENSE
Section 2.1. License Grant. Subject to all the terms and conditions of this
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Agreement, Annuncio hereby grants to Licensee, during the Term, a non-exclusive,
non-transferable, non-sublicensable license to use the Software along with any
accompanying Annuncio Documentation solely on the Designated System, 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 or for internal replicate system test purposes for internal use only.
All rules in this license agreement govern these copies.
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, 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 similar arrangement.
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Section 2.3. Proprietary Rights Notices. Licensee shall neither alter nor remove
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any copyright notice or other proprietary rights notices which may appear on the
Software or on or in any Annuncio Documentation delivered to Licensee hereunder.
In addition, Annuncio agrees that any reproduction of the Software or the
Annuncio Documentation (or any portion thereof) authorized by Annuncio shall
include such copyright and other proprietary rights notices as are currently
contained thereon or as may be reasonably specified from time to time by
Annuncio.
Section 2.4. No Sale. This license is not a sale. Title and copyrights to the
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Software, Annuncio Documentation and any copy made by Licensee remain with
Annuncio. Unauthorized copying of the Software or Annuncio Documentation, or
failure to comply with the above restrictions, will result in automatic
termination of this Agreement and will make available to Annuncio other legal
remedies.
Section 2.5. Reservation of Rights. Annuncio hereby reserves to itself all
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rights in and to the Software not expressly granted to Licensee herein. Licensee
shall have no rights in or to the Software except as expressly granted herein.
Section 2.6. No Reverse Engineering Licensee shall not, and shall not permit any
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third party to, alter, modify, adapt, translate, prepare derivative works from,
decompile, reverse engineer, disassemble, or otherwise attempt to derive
computer source code from, as applicable, the Software, except as may be
expressly permitted by applicable local law.
Section 2.7. Proprietary Rights of Licensee. Licensee shall retain all of its
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right, title and interest in and to all patent rights, trademarks, trade names,
inventions, copyrights, know-how and trade secrets relating to the Licensee
Materials.
ARTICLE 3. VERIFICATION
Section 3.1. Certification. Upon Annuncio's written request, Licensee shall
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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, audit Licensee's use of
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the Software. Any such audit shall be conducted during regular business hours at
Licensee's facilities, shall not unreasonably interfere with Licensee's business
activities.
ARTICLE 4. DELIVERY AND PAYMENT
Section 4.1. Delivery. One (1) object code version of the Software and one (1)
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copy of the Annuncio Documentation were delivered on or about July 21, 1999.
Section 4.2. License Fee. In consideration for the license granted hereunder,
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Licensee shall pay Annuncio, within thirty (30) days following the Execution
Date, the applicable License Fee, as set forth in Exhibits B and B-1.
Section 4.3. Annual Maintenance Fee. In consideration for the maintenance and
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support services as set forth in Section 5.1, Licensee shall pay Annuncio,
within thirty (30) days of the Execution Date, the applicable Annual Maintenance
Fee. The beginning date for the maintenance shall be the Effective Date, as
defined above.
Section 4.4. Late Payments. If the License Fee is not paid when due, in addition
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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 4.5. Taxes. Licensee shall pay all sales, use and excise taxes relating
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to, or under, this Agreement, unless Licensee is exempt from the payment of such
taxes and provides Annuncio with evidence of such exemption.
ARTICLE 5. PROFESSIONAL SERVICES
Section 5.1. Maintenance and Support. Upon payment by Licensee of the applicable
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Annual Maintenance Fee, and throughout the applicable Maintenance Period (as
defined in Section 5.2), Annuncio shall provide Licensee with maintenance and
support services ("Maintenance Services") concerning the use and operation of
the Software. Such Maintenance Services shall be provided in accordance with the
Standard Software Support Terms and Conditions, attached hereto as Exhibit D, or
pursuant to any agreement the parties may enter into regarding such support.
Maintenance Services provided by Annuncio are separate from any services
provided by Annuncio pursuant to Section 5.3, and Licensee may obtain either
Maintenance Services or consulting services without obtaining the other.
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Section 5.2 Maintenance Period. Subject to Licensee's payment of the Annual
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Maintenance Fee, the initial maintenance and support period (a "Maintenance
Period") shall begin upon the Effective Date and end one year from such date.
After such first Maintenance Period and for as long as Annuncio is offering
Maintenance Services for the Annuncio Software, Licensee shall automatically
receive Maintenance Services for successive twelve (12)-month periods at
Annuncio's then current Annual Maintenance Fee for such Maintenance Periods.
Annuncio shall provide Licensee with notice of such renewal at least ninety (90)
days prior to such renewal date, and Licensee may elect to discontinue
maintenance and support services by written notification delivered to Annuncio
at least thirty (30) days prior to such renewal date. The applicable Annual
Maintenance Fees shall be invoiced upon renewal and shall be due within thirty
(30) days of receipt of such invoice.
Section 5.3. Consulting and Training Services. Upon request by Licensee,
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Annuncio shall provide Licensee with consulting and training services in
addition to the general maintenance and support offered pursuant to Section 5.1.
Such consulting and training services shall be provided on Annuncio's
then-current terms and conditions and at Annuncio's then-current rates. Any
consulting or training services acquired from Annuncio shall be bid separately
from the Software-License and Licensee may acquire either Software Licenses or
consulting services without acquiring the other.
Section 5.4. Non-solicitation. Neither party shall solicit for hire any
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employee, consultant or subcontractor of the other party during the term of this
Agreement and for a period of six (6) months thereafter. In the event either
party hires any employee, consultant or subcontractor of the other party within
the six (6)-month period following such person's having worked with the
party soliciting that employee, consultant or subcontractor, the party so
soliciting for hire shall promptly pay the other party a finder's fee equivalent
to twenty-five percent (25%) of the annual compensation package offered to such
person by the party soliciting such person for hire
Section 5.5. Expenses. For any on site services requested by Licensee, Licensee
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shall reimburse Annuncio for all reasonable out-of-pocket travel and business
expenses incurred by Annuncio in performing any of the services set forth in
this Section 5, provided that Annuncio has obtained Licensee's prior approval of
such expenses.
ARTICLE 6. MARKETING ACTIVITIES
The marketing terms set forth in Exhibit C will apply.
ARTICLE 7. REPRESENTATIONS, WARRANTIES, DISCLAIMERS
Section 7.1. General. Each party hereby represents and warrants to the other
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that (i) such party has the right, power and authority to enter into this
Agreement and to fully perform all its obligations hereunder; and (ii) the
making of this Agreement does not violate any agreement existing between such
party and any third party.
Section 7.2. Limited Warranty. Annuncio hereby warrants to Licensee that the
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Software as delivered by Annuncio to Licensee shall perform substantially in
accordance with the Annuncio Documentation for a period of ninety (90) days from
the date the Software is delivered to Licensee. In the event of a breach of the
foregoing warranty, Annuncio's sole obligation, and Licensee's sole remedy,
shall be the replacement or modification of the defective Software, at no charge
to Licensee.
Section 7.3. Year 2000. Annuncio warrants that the Software will: (a) include
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Year 2000 date conversion and compatibility capabilities including, but not
limited to: century recognition; calculations which accommodate same century and
multi-century formulas and date values; correct sort ordering and interface
values that reflect the century; (b) manage and manipulate data involving dates,
including single century formulas and multi-century formulas, and will not cause
an abnormal function or abort within the application or result in the generation
of incorrect values or invalid outputs including such dates; (c) provide that
all date-related user interface functionalities and data fields include the
indication of the correct century; and (d) provide that all date-related system
or application to application data interface functionalities will include the
indication of the correct century. In the event of a breach of the foregoing
warranty, Annuncio's sole obligation, and Licensee's sole remedy, shall be the
replacement or modification of the defective Software, at no charge to Licensee.
Section 7.4. Intellectual Property Warranty. Annuncio hereby warrants to
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Licensee that, to the best of Annuncio's knowledge, as of the Effective Date,
the Software does not infringe the United States patent, copyright, trademark or
trade secret of any third party.
Section 7.5. Software Performance Disclaimer. ANNUNCIO MAKES NO, AND HEREBY
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EXPRESSLY DISCLAIMS ANY, WARRANTY (1) OF CONTINUOUS OR UNINTERRUPTED OPERATION
OF THE ANNUNCIO PRODUCT,
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(2) THAT THE ANNUNCIO PRODUCT WILL RUN PROPERLY ON ALL HARDWARE OR COMBINATIONS
THEREOF, OR (3) THAT THE ANNUNCIO PRODUCT WILL MEET LICENSEE'S REQUIREMENTS OR
THE REQUIREMENTS OF ANY OF LICENSEE'S CUSTOMERS.
Section 7.6. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE
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ANNUNCIO PRODUCT, THE ANNUNCIO DOCUMENTATION AND ANY OTHER ITEMS OR GOODS
LICENSED OR DELIVERED TO LICENSEE HEREUNDER ARE LICENSED OR DELIVERED TO
LICENSEE "AS IS," AND WITHOUT WARRANTY OF ANY KIND. ANNUNCIO HEREBY EXPRESSLY
DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE ANNUNCIO PRODUCT AND THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
Section 7.7. Licensee Materials. Annuncio has no obligations with respect to the
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Licensee Materials used in connection with the Software over the Internet.
Annuncio shall have no liability whatsoever with respect to any Licensee
Materials transmitted with the use of the Software, and Licensee is solely
responsible and bears all risk with respect to the use of the Software to
transmit or store any data including but not limited to security or privacy with
respect to such data.
ARTICLE 8. CONFIDENTIALITY
Section 8.1. Exclusion. Notwithstanding Section 1.1(b), Confidential Information
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shall exclude information that: (a) was independently developed by the Receiving
Party without any use of the Disclosing Party's Confidential Information or by
the Receiving Party's employees or other agents (or independent contractors
hired by the Receiving Party) who have not been exposed to the Disclosing
Party's Confidential Information; (b) becomes known to the Receiving Party,
without restriction, from a source other than the Disclosing Party without
breach of this Agreement and that had a right to disclose it, (c) was in the
public domain at the time it was disclosed or becomes in the public domain
through no act or omission of the Receiving Party; or (d) was rightfully known
to the Receiving Party, without restriction, at the time of disclosure.
Section 8.2. Confidentiality of Agreement. Each party hereto agrees that the
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terms and conditions, but not the existence, of this Agreement shall be treated
as the other party's Confidential Information and that no reference to the terms
and conditions of this Agreement or to activities pertaining thereto can be made
in any form of public or commercial advertising without the prior written
consent of the other party; provided, however, that each party may disclose the
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terms and conditions of this Agreement; (1) as required by any court or other
governmental body, (2) as otherwise required by law; (3) to legal counsel of the
parties; (4) in connection with the requirements of an initial public offering
or securities filing, provided that Annuncio requests confidential treatment of
such Confidential Information as may be requested by Licensee; (5) in
confidence, to accountants, banks, and financing sources and their advisors; (6)
in confidence, in connection with the enforcement of this Agreement or rights
under this Agreement; or (7) in confidence, in connection with a merger or
acquisition or proposed merger or acquisition, or the like.
Section 8.3. Compelled Disclosure. If a Receiving Party is, or believes that it
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will be, compelled by a court or other authority to disclose Confidential
Information of the Disclosing Party, it shall give the Disclosing Party prompt
notice so that the Disclosing Party may take steps to oppose such disclosure.
Section 8.4. Obligations. The Receiving Party shall treat as confidential all of
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the Disclosing Party's Confidential Information and shall not use such
Confidential Information except as expressly permitted under this Agreement.
Without limiting the foregoing, the Receiving Party shall use at least the same
degree of care which it uses to prevent the disclosure of its own confidential
information of like importance, but in no event less than reasonable care, to
prevent the disclosure of the Disclosing Party's Confidential Information.
ARTICLE 9. INDEMNIFICATION
Section 9.1. By Annuncio. Annuncio shall, at its expense, defend and hold
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Licensee each harmless from any and all damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred by Licensee arising out or
relating to any third party claim, suit or proceeding alleging that the Software
infringes any third party United States patent, trademark, trade secret or
copyright; provided that Licensee promptly notifies Annuncio in writing of any
such claim and promptly tenders full control of the defense and settlement of
any such claim to Annuncio at Annuncio's expense and with Annuncio's choice of
counsel. Licensee shall cooperate with Annuncio, at Annuncio's expense, in
defending or settling such claims.
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Section 9.2. Licensee Materials. Licensee shall, at its expense, defend and hold
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Annuncio harmless from any and all damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred by Annuncio arising out of or
relating to any third party claim, suit or proceeding alleging that the Licensee
Materials (i) are factually inaccurate, misleading or deceptive, (ii) infringe
or misappropriate any copyright, trademark, trade secret or other intellectual
property right of any third party, or (iii) are libelous, defamatory, obscene or
pornographic or violates other civil or criminal laws, including those
regulating the use and distribution of content on the Internet and protection of
personal privacy; provided that Annuncio promptly notifies Licensee in writing
of any such claim and promptly tenders full control of the defense and
settlement of any such claim to Licensee at Licensee's expense and with
Licensee's choice of counsel. Annuncio shall cooperate with Licensee, at
Licensee's expense, in defending or settling such claims.
ARTICLE 10. TERM.
Section 10.1. Term. This Agreement shall commence on the Effective Date and
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shall continue throughout the Term unless otherwise terminated earlier in
accordance with the terms of this Article 9.
Section 10.2. Termination. In the event of a material breach of this Agreement,
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the nonbreaching party shall be entitled to terminate this Agreement by written
notice to the breaching party, if such breach is not cured within thirty (30)
days after written notice is given to the breaching party, specifying the
breach.
Section 10.3. Effect of Termination. Upon any expiration or termination of this
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Agreement, all rights and licenses granted to Licensee under this Agreement
shall terminate. Except as expressly provided herein, all of Annuncio's
proprietary rights and confidential information, if any, shall be promptly
returned to Annuncio or destroyed by Licensee, and certification of destruction
shall be made in writing to Annuncio within ten (10) days after such return or
destruction
Section 10.4. Nonexclusive Remedies. The rights and remedies provided to the
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parties in this Article 9 shall not be exclusive and are in addition to all
other rights and remedies provided by this Agreement or any other relevant
written agreement or available by law or in equity.
Section 10.5. Survival. Notwithstanding anything to the contrary contained in
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this Agreement, Articles 1, 7, 9, 10 and 11 shall survive any expiration or
termination of this Agreement.
ARTICLE 11. LIMITATION OF LIABILITY
Section 11.1. Total Liability. EXCEPT FOR DAMAGES ARISING OUT OF SECTIONS 8.4
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and 9.1, 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 11.2. Exclusion of Damages. EXCEPT FOR DAMAGES ARISING OUT OF SECTIONS
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8.4 and 9.1, 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 11.3. Failure of Essential Purpose. The limitations specified in this
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Article 10 shall survive and apply even if any limited remedy specified in this
Agreement is found to have failed of its essential purpose.
ARTICLE 12. GENERAL
Section 12.1. Merger and Amendments. This Agreement may not in any way be
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modified, changed or amended except by a written instrument duly executed by the
parties hereto which states that it is an amendment to this Agreement. This
Agreement, including the Confidentiality Agreement, when executed, constitutes
the entire, final, complete and exclusive agreement between the parties and
supersedes any prior negotiations, understanding or agreements, whether oral or
in writing, concerning the subject matter hereof. Moreover, any standard printed
forms or other documents of either party (such as those
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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 SHALL
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BE GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REFERENCE TO SUCH STATE'S CONFLICTS OF LAW PRINCIPLES. IN NO EVENT SHALL THIS
AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS.
Section 12.4. Jurisdiction. The state and federal courts of the State of
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California shall have exclusive jurisdiction and venue over all controversies in
connection herewith, and each party hereby irrevocably consents to such
exclusive and personal jurisdiction and venue.
Section 12.5. Assignments. Neither party may assign this Agreement or any right
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or obligation hereunder without the other party's prior written consent;
provided however, that either party may assign this Agreement without such
consent to any successor as a result of any merger, consolidation or other
corporate reorganization of such party or any sale of all or substantially all
of the assets of that party. Notwithstanding the foregoing, Agreement shall be
binding upon and inure to the benefit of the permitted successors and assigns of
each party.
Section 12.6. Severability. If any provision of this Agreement is held to be
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illegal, unenforceable or invalid, no other provision of this Agreement shall be
affected thereby, and the remaining provisions of this Agreement shall be
construed and reformed and shall continue with the same effect as if such
illegal, unenforceable or invalid provision was not a part hereof; provided
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that, notwithstanding any other provision of this Agreement, if any limitation
on the grant of any license to Licensee hereunder is found to be illegal,
unenforceable, or invalid, such license shall immediately terminate.
Section 12.7. Waiver. Any waiver (express or implied) by either party of any
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default or breach of this Agreement shall not constitute a waiver of any other
or subsequent default or breach.
Section 12.8. Notices All notices or other communications required or permitted
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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
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by express overnight courier service to the relevant addresses below or to such
other address as either party hereto may designate by like notice sent to the
other party hereto. All notices shall be deemed given when received.
Section 12.9. Headings. The headings and captions contained in this Agreement
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shall not be considered to be a part hereof for purposes of interpreting or
applying this Agreement, but are for convenience only.
Section 12.10. Counterparts. This Agreement may be executed in counterparts,
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each of which will be deemed an original and both of which together will
constitute one instrument.
Section 12.11. Import and Export Controls. Licensee understands and acknowledges
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that Annuncio may be subject to regulation by agencies of the U.S. government,
including the U.S. Department of Commerce which prohibit export or diversion of
certain products, technology and technical data to certain countries. Any and
all obligations of Annuncio to provide the Software, software, documentation or
any media in which any of the foregoing is contained, as well as any training or
technical assistance shall be subject in all respects to such United States laws
and regulations, as shall from time to time govern the license and delivery of
technology, products and technical data abroad by persons subject to the
jurisdiction of the United States, including the Export Administration Act of
1979, as amended, any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce, International Trade
Administration, and Bureau of Export Administration.
Section 12.12. Contingency. Neither party hereto shall be held responsible for
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any delay or failure in performance hereunder caused in whole or in part by
fire, strike, flood, embargo, labor dispute, delay or failure of any
subcontract, act of sabotage, riot, accident, delay of carrier or supplier,
voluntary or mandatory compliance with any governmental act, regulation or
request, act of God or by public enemy, or any act or omission or other cause
beyond such party's control. If any such contingency shall occur, this Agreement
shall be deemed extended by the length of time such contingency continues.
Section 12.13. Independent Contractors. The parties hereto are independent
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contractors and neither
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party is an employee, agent, partner or joint venturer of the other. Neither
party shall have the right, nor shall either party attempt, to bind the other
party, whether directly or indirectly, to any agreement with a third party or to
incur any obligation or liability on behalf of such other party, whether
directly or indirectly.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
in duplicate by duly authorized officers or representatives as of the date first
above written.
ANNUNCIO SOFTWARE, INC. E-STAMP CORPORATION
By: /s/ Signature Illegible By: /s/ Signature Illegible
Name: DIDIER HORETTI Name: Xxxxxx Xxxxx
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Title: President & CEO Title: SVP, Marketing & Sales
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EXHIBIT A
ANNUNCIO SOFTWARE
Annuncio Live TM software as described in product documentation and developed by
Annuncio Software.
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EXHIBIT B
VARIABLE TERMS
TERMS AND LICENSE FEE At its option, E-Stamp may choose to license pursuant to
either the perpetual license option or the annual license option as fully
described in Exhibit B-1. The parties agree that the Term began on August 1,
1999.
DESIGNATED SYSTEM: NT
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Exhibit B-1
LICENSE/MAINTENANCE OPTIONS
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E-Stamp has been a participant in the Annuncio Live beta program and as such, is
entitled to the product purchase terms outlined below. This participation has
also included free use of the software up until installation of the official
release version 1.0 of the software and free installation of the general release
software. Support and services have been provided to assure successful use of
the software up until general release, with the exception of certain agreed to
recent activities required from Annuncio Software's Professional Services Group
in support of on-going campaign management and development.
At this point in time, E-Stamp can be serviced by the standard version of the
Annuncio Live software. The license for this software entitles E-Stamp to up to
[*] transactions per year. There are two options for E-Stamp's purchase
of the software:
1. PERPETUAL LICENSE List Price [*] Discounted Price [*]
First Year support & Maintenance List Price [*] Discounted Price [*]
Total Cost for One Year [*]
After year one, E-Stamp would pay annual support and maintenance fees at
the then current rate.
2. ANNUAL LICENSE List Price of [*] Discounted Price [*]
Includes support and maintenance
Total Cost for One Year [*]
After year one, E-Stamp can either renew the annual license fee at the then
current list price, or choose to convert to a Perpetual License, at a cost
of the then current list price of the software, [*] plus maintenance based
on list costs.
As E-Stamp's business continues to build, you may find that E-Stamp may be
supporting more then [*] transactions per year. At that time you will
need to upgrade to a larger Annuncio Live transaction volume. If the upgrade
occurs during 1999, the then current upgrade costs will reflect the discounts
noted above. After that time, Annuncio Live volume upgrades will fall under the
standard list prices quoted at the time.
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT C
MARKETING ACTIVITIES
During the Term, Licensee agrees to be designated as a customer in Annuncio
sales and marketing materials. Customer agrees to be designated in a press
release and to provide a minimum of one quote regarding Licensee's experience
with Annuncio Software and Annuncio Live for use in such materials and/or press
releases, subject to prior approval of Licensee, such approval not to be
unreasonably withheld. During the Term of this Agreement, Licensee will make a
minimum of one (1) person available to speak by phone with press, analysts, and
customers about Licensee's experience with Annuncio and the Software. Licensee
also agrees to contribute to a written customer case study for publishing by
Annuncio Software.
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EXHIBIT D
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, Annuncio
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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
--------------------
Releases for the licensed Software and supporting Documentation will be provided
to Licensee.
b) Unlimited Incidents: Designated Support Contacts can make as many
-------------------
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 of its Software for Licensee's Designated Support Contacts. Except for
Annuncio holidays, telephone support is provided from 8 a.m. to 5 p.m. Pacific
Standard Time.
d) Remote Access and Diagnostics: Annuncio will utilize remote dial-in
-----------------------------
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
---------
key components of Annuncio's Software are operating correctly.
f) Escalation Process: Reported problems will be tracked as part of a
------------------
standard escalation process which provides Licensee with access to the status of
the problem and, if necessary, an escalation procedure.
2. EXCLUSIONS: Annuncio will not have an obligation to support; i)
----------
substantially 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 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
form 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
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subsequently requests to 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. CUSTOMER RESPONSIBILITIES:
-------------------------
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.
5. 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.
B. Incident means a Software malfunction that degrades or affects Licensee's
use of the Software.
C. Maintenance Release 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.
E. Patch means the repair or replacement of source, object or executable
software code to address an Incident.
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