EXHIBIT 2.2
PRIVATE LABEL LICENSE AGREEMENT
THIS AGREEMENT ("Agreement"), effective June 15, 2001 ("Effective Date"),
is between ClickAction Inc., a Delaware corporation doing business at 0000 X.
Xxxxxxxx Xxxx, Xxxx Xxxx, XX 00000 ("ClickAction"), and Elibrium, Inc., a
California corporation doing business at 0000 00xx Xxxxxx, Xxx Xxxxxxxxx XX
94116("ELIBRIUM").
WHEREAS, ClickAction operates an email marketing service described in
Exhibit A (the "ClickAction Service"), and the parties desire that ELIBRIUM
offer to its customers a private label version of the ClickAction Service,
according to the terms herein; and
WHEREAS, ELIBRIUM wishes to license the ClickAction Service for use in
Elibrium's business, and to resell the ClickAction Service; and
WHEREAS, ELIBRIUM wishes to license the Elibrium division opt-in email
database; and
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions contained in this Agreement, the parties hereto, intending to be
legally bound, agree as follows:
1. PRIVATE LABEL SERVICE
1.1 Branding. ClickAction shall provide to ELIBRIUM a version of the
ClickAction EMA Service ("ClickAction Service"), which is branded with
ELIBRIUM's logos and trademarks (the "Private Label Service"), according
to the specifications summarized on Exhibit A and pursuant to the terms
of this Agreement. The parties agree that each page of the Private Label
Service user interface will bear the following branding to identify
ClickAction as the technology provider of the Private Label Service:
"Powered by ClickAction EMA." Such branding shall be located at the
bottom left corner of the user interface.
1.2 Functionality. Except as otherwise set forth in the specifications for
the Private Label Service set forth in Exhibit A, the functionality of the
Private Label Service shall be substantially similar to the ClickAction
Service being offered contemporaneously by ClickAction.
1.3 Hosting, and Operations. Elibrium will utilize ClickAction's recommended
hosting vendor as outsourced service for email marketing. ELIBRIUM will be
responsible for all aspects of the operation of the Private Label Service,
except as otherwise specified in this Agreement. In the event that ELIBRIUM
wishes ClickAction provide any hosting service for ELIBRIUM, that parties shall
enter into a separate agreement.
1.4 Training. ClickAction will train the ELIBRIUM staff and provide
appropriate application documentation to participate in the operation and
administration of the system. This training shall be completed by June 30,
2001.
2. EXTENT OF LICENSE
2.1 Non-Exclusivity. ClickAction may provide private label, co-branded, or
other versions of the ClickAction Service to third parties without restriction.
2.2 Non-Compete. Notwithstanding the fact that this license is non-exclusive,
in no event shall ELIBRIUM assign, sublicense, transfer, resell, pledge, lease,
rent, or share the ClickAction Service or Private Label Service to any Direct
Competitor of ClickAction, including, but not limited to, those described in
the attached Exhibit B, for the duration of this license. In the event of a
merger, acquisition, or change of control involving ELIBRIUM and a direct
competitor of ClickAction, the license to resell the ClickAction Service or
Private Label Service shall be revoked in the reasonable discretion of
ClickAction. "Direct Competitor" shall be defined as a company that was
engaged in the active sale of
email relationship management services competitive to ClickAction's prior to
the completion of merger or acquisition with ELIBRIUM, including, but not
limited to, those companies described in the attached Exhibit B.
2.3 Territory. The license granted in this Agreement shall be for North
America only (the "Territory"). The Territory may be expanded by an
amendment hereto, executed by both parties.
2.4 Resale Limitations. The rights of ELIBRIUM to use and resell the Private
Label Service shall be unlimited within the Territory. Notwithstanding the
foregoing, any and all resales shall be restricted to Companies in the Small
Business Sector, defined as those companies who, together with their parent
corporations and all subsidiaries, have aggregate annual gross revenues of
less than thirty million dollars ($30,000,000.00).
2.5 Email Database Limitations. ELIBRIUM is also purchasing a two (2) year
exclusive license allowing the unlimited use of the Elibrium division opt-
in email database, with all registered user demographics. ELIBRIUM hereby
agrees that it shall uphold current privacy standards as defined by the
industry. In the event that industry standards change, ELIBRIUM agrees to
conform to those new standards.
3. FEES
3.1 Private Label Service Set-Up Fee. ELIBRIUM will pay to ClickAction a
license fee for the initial development and installation and applicable
documentation of the Private Label Service. This non-refundable license fee
(the "License Fee") shall be one million dollars ($1,000,000), to be paid on
the Closing Date (as defined in the Asset Purchase Agreement referenced in
Section 3.3 below).
3.2 Email Database Fee. ELIBRIUM will also pay to ClickAction a license fee
for the two (2) year exclusive, unlimited use of the Elibrium division opt-in
email database, with all registered user demographics. This non-refundable
license fee (the "Database Fee") shall be five hundred thousand dollars
($500,000), to be paid on the Closing Date (as defined in the Asset Purchase
Agreement referenced in Section 3.3 below).
3.3 Payments Under Separate Asset Purchase Agreement. Should ELIBRIUM not pay
in a timely manner any of the payments due under Section 3.1 of the separate
ASSET PURCHASE AGREEMENT executed by ClickAction and ELIBRIM on or about
June 7, 2001, it is agreed that ELIBRIUM'S license to utilize the EMA system
shall be suspended until such time as those payments have been made current.
4.
4.1 This section intentionally omitted.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall begin on the Effective Date and continue for a
period of twenty-four (24) months ("Initial Term"), and thereafter, this
Agreement shall automatically renew for subsequent terms of one (1) year
("Renewal Terms"), upon terms mutually agreeable to both parties, negotiating
in good faith, unless terminated sooner as provided herein.
5.2 Termination for Breach. Either party may terminate this Agreement upon
written notice of termination if the other party is in material breach of this
Agreement and fails to cure such breach within thirty (30) days following
written notice of breach.
5.3 Termination for Bankruptcy. Either party may terminate this Agreement
immediately if the other party ceases conducting business in the normal course,
becomes insolvent, makes a general assignment for the benefit of creditors,
suffers or permits the appointment of a receiver for its business or assets,
avails itself of or becomes subject to any petition or proceeding under any
statute of any state or country relating to insolvency or the protection of
the rights of creditors, or any other insolvency or bankruptcy proceeding or
other similar proceeding for the settlement of the other party's debt is
instituted.
5.4 Upon-termination. Upon termination of this Agreement, (i) all rights and
licenses granted to either party hereunder shall automatically terminate and
the parties shall
cease to use all intellectual property of other party (ii) each party shall
immediately ship to the other party all proprietary items of the other party,
and (iii) each party shall pay all remaining fees owing to other party within
thirty (30) days of receipt of the final invoice.
5.5 Survival. Sections 5.5, 6, 7, 8, 9, and 10 herein shall survive any
termination of this Agreement.
6. PROPRIETARY INFORMATION
6.1 Private Label Service. Except as expressly set forth herein, no right,
title, or interest in the ClickAction Service or Private Label Service is
granted or transferred by ClickAction to ELIBRIUM. Without limiting the
foregoing, exclusive ownership in and to the ClickAction Service and the
Private Label Service shall remain with ClickAction or its licensors during
and after termination of this Agreement. ClickAction grants ELIBRIUM a non-
exclusive license for the term of this Agreement to use, display, perform, and
promote the Private Label Service for the sole limited purpose of performing
ELIBRIUM's rights and obligations under and in a manner consistent with this
Agreement.
6.2 Trademarks. ClickAction retains all rights, title, and interest in and to
all intellectual property rights embodied in or associated with its trademarks;
and ELIBRIUM retains all rights, title, and interest in and to all
intellectual property rights embodied in or associated with its trademarks.
All goodwill arising out of the use of the parties' trademarks shall inure
solely to party who owns such trademark.
6.3 Confidentiality. "Confidential Information" means any information
regarding the specific terms of this Agreement, the technical designs, costs,
vendors, operations and trade secrets of the parties hereto, any nonpublic
information relating to the product plans, prices, finances, market plans,
business opportunities, personnel, research, development or know-how of the
parties hereto, and any other nonpublic technical or business information of
either party. Confidential Information shall not include information that (i)
is or becomes generally known through no fault of the receiving party; (ii) is
known by the receiving party at the time of disclosure by the other party
hereto; (iii) is independently developed by the receiving party; or (iv) is
lawfully obtained by the receiving party from a third party who has the right
to make such disclosure. The receiving party agrees that during the term of
this Agreement and for a period of three (3) years following its termination,
the receiving party and its employees and agents shall hold all Confidential
Information in strict trust and confidence and shall not disclose or use the
same, except to the extent necessary for the performance of this Agreement.
Further, the receiving party shall disclose the Confidential Information of
the other party to its employees under a non-disclosure agreement on a need
to know basis only.
7. DISCLAIMER OF WARRANTIES
7.1 CLICKACTION PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY "AS
IS." CLICKACTION DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLICKACTION WILL MAKE
NO REPRESENTATION OR WARRANTY TO ANYONE WITH RESPECT TO THE SPECIFICATIONS,
FEATURES, OR CAPABILITIES OF CLICKACTION 'S PRODUCTS OR SERVICES THAT ARE
INCONSISTENT WITH THE LITERATURE DISTRIBUTED BY THE OTHER PARTY, INCLUDING ALL
DISCLAIMERS CONTAINED IN SUCH LITERATURE.
8. INDEMNIFICATION
8.1 By ClickAction. ClickAction will indemnify, defend, and hold harmless
ELIBRIUM and its respective affiliates, directors, officers, employees, and
representatives from any and all liabilities, losses, expenses (including
reasonable attorney's fees), costs, and damages of any kind arising out of or
relating to any third party claim that the Private Label Service (or any
content thereon, excluding ELIBRIUM's trademarks and other material provided
by ELIBRIUM) infringes or misappropriates the copyright, trademark, patent,
trade secret, or other intellectual property right of such third party.
8.2 By ELIBRIUM. ELIBRIUM will indemnify, defend, and hold harmless
ClickAction and its respective affiliates, directors, officers, employees, and
representatives from any and all liabilities, losses, expenses (including
reasonable attorney's fees), costs, and damages of any kind arising out of or
relating to the violation or breach, or the alleged violation or breach, by
ELIBRIUM of any applicable laws, regulations, or rights of third parties,
including, but not limited to, those involving privacy with respect to the
Elibrium division opt-in email database..
8.3 Procedures. The foregoing obligations are conditioned on each party (the
"Indemnified Party") giving the other party (the "Indemnifying Party") notice
of the relevant claim, cooperating with the Indemnifying Party, at the
Indemnifying Party's expense, in the defense of such claim, and giving the
Indemnifying Party the right to control the defense and
settlement of any such claim, except that the Indemnifying Party shall not
enter into any settlement that affects the Indemnified Party's rights or
interest without the Indemnified Party's prior written approval. The
Indemnified Party shall have the right to participate in the defense at its
expense.
9. LIMITATION OF LIABILITY
9.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, ECONOMIC, OR EXEMPLARY DAMAGES, WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE, OR ANY LOSS OF REVENUE, DATA,
GOODWILL, OR PROFITS), OR OTHERWISE, AND WHETHER OR NOT A PARTY SHALL HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. GENERAL
10.1 Governing Law. This Agreement shall be interpreted, construed, and
enforced in all respects in accordance with the laws of the State of
California without giving effect to the principles of conflict of laws there.
of. The parties hereby irrevocably agree that any action at law or in equity
arising out of or relating to these terms shall be filed only in the state or
federal courts located in Santa Xxxxx County and the parties hereby consent
and submit to the personal jurisdiction of such courts for the purposes of
litigating any such action.
10.2 Attorneys' Fees. If any action or proceeding shall be commenced to
enforce or interpret this Agreement or any right arising in connection with
this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover from the other party all reasonable attorneys' fees,
costs, and expenses incurred by such prevailing party in connection with such
action or proceeding.
10.3 Severability. If any term, provision, covenant, or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated, and the
invalid, void, or unenforceable provision shall be deemed replaced by a
provision that most nearly reflects the intent of the parties in entering
into this Agreement.
10.4 Waiver. None of the provisions of this Agreement shall be deemed to
have been waived or abandoned by any statement, acts, omissions, acquiescence,
or agreement by either party, its agents or employees, unless such waiver or
abandonment is reflected in a written instrument signed by both parties.
10.5 Relationship of the Parties. The relationship between the parties will
be that of independent contractors. Nothing contained herein will be
construed to imply a partnership, joint venture, principal-agent relationship,
or other joint relationship, and neither party will have the right, power, or
authority to bind or create any obligation, express or implied, on behalf of
the other party.
10.6 Assignment. Neither party will assign, delegate, or otherwise transfer
this Agreement or any right hereunder, either in whole or part, without the
prior written consent of the other party (such consent not to be unreasonably
withheld or delayed), except in connection with a merger, sale of all or
substantially all of a party's assets, or other transaction involving a change
in ownership of more than fifty per cent (50%) of the outstanding shares or
securities representing the right to vote for the election of directors or
other managing authority of such party (collectively, a "Change in Control");
provided, that any such successor agrees in writing to be bound by the terms
of this Agreement. Any attempted or purported assignment or other transfer not
complying with the foregoing shall be null and void. Notwithstanding the
foregoing, ClickAction may terminate this Agreement immediately in the event
of a Change in Control of Elibrium involving a competitor of ClickAction as
described in Section 2.2 above. Subject to the foregoing, this Agreement
shall inure to the benefit of and bind the successors and assigns of the
parties.
10.7 Force Majeure. Neither party shall not be deemed in default of this
Agreement to the extent that any delay or failure in the performance of its
obligations results from any cause beyond its reasonable control and without
its fault or negligence, such as acts of God, acts of civil or military
authority, third-party sabotage, embargoes, epidemics, war, riots,
insurrections, fires, explosions, earthquakes, floods, unusually severe
weather conditions or strikes.
10.8 Compliance with Laws and Regulations. Each party shall comply with all
applicable federal, state, and local laws, regulations and codes in the
performance of this Agreement.
10.9 Notice. All notices or other communications hereunder shall be deemed
duly given when made in writing and either (i) delivered in person, (ii)
delivered to an agent, such as an overnight or similar delivery service, (iii)
deposited in the United States Mail as postage prepaid, certified mail or (iv)
facsimile transmission with a confirmation copy sent simultaneously by postage
prepaid, certified mail; the above shall be sent to the party at its
respective address as set forth on the first page of this Agreement, subject
to the right of either party to change its address by delivering written
notice to the other.
10.10 Counterparts. This Agreement may be executed in counterparts, all of
which together shall be deemed one and the same Agreement.
10.11 Interpretation. Each party and its counsel have participated fully
in the review and revision of this Agreement. In the event of a dispute
hereunder, this Agreement shall be interpreted in accordance with its fair
meaning and shall not be interpreted for or against a party hereto on the
grounds that such party drafted or caused to be drafted this Agreement or any
part thereof.
10.12 Due Authority. Each of the parties represents and warrants to the
other that the execution and delivery of this Agreement and the performance
of the obligations under this Agreement have been duly authorized by all
requisite action of the governing body of the party and that the person
executing this Agreement is fully authorized to bind that party.
10.13 Subject Headings. The Subject Headings herein are for convenience
of reference only and shall in no way affect interpretation of this Agreement.
10.14 Entire Agreement. This Agreement, the Exhibits attached hereto,
constitutes the entire agreement of the parties with respect to this License
Agreement.. Any inconsistent prior statements, understandings, agreements, or
promises, oral or written, concerning the subject matter of this Agreement
shall have no force or effect. This Agreement can only be amended by a
written instrument signed by both parties. Each party acknowledges that in
entering into this Agreement it does not do so on the basis of and does not
rely on any representation, warranty, or other provision except as expressly
provided in this Agreement and all conditions, warranties, and other terms
implied by statute or common law are hereby excluded to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
ClickAction Inc. Elibrium, Inc.
By: /s/Xxxxxxx Xxxxxxx By: /s/ Xxxxxxxxx Xxxxxx
Signature Signature
Xxxxxxx Xxxxxxx President & CEO Xxxxxxxxx Xxxxxx President
Name (Type or Print) Title Name (Type or Print) Title
EXHIBIT A
1. Description of ClickAction EMA Service:
ClickAction EMA offers request-based e-mail campaign services with the goal of
building on-going profitable relationships with web visitors and customers.
The service includes message and offer testing, demographic targeting, rich
media e-mail messages and campaign follow-ups but does not include any
functionality provided directly or indirectly by ELIBRIUM. In addition,
inbound message handling and real-time response tracking are integrated into
the service.
2. Description for Private Label Service:
The ELIBRIUM Private Label Service will be the functional equivalent of the
ClickAction EMA 6.X Service described above except that it will be branded
with the ELIBRIUM Branding or any other branding of ELIBRIUM's election; and
ClickAction shall provide such Service in accordance with the terms and
conditions of this Agreement.
EXHIBIT B
Direct Competitors to Licensor
1. @once
2. Annuncio
3. ATG
4. BEA Systems
5. Bigfoot
6. Blue Martini
7. Broadbase
8. Broadvision
9. CheetahMail
10. CMGI
11. Digital Impact
12. DoubleClick
13. Dun & Xxxxxxxxxx
00. E.piphany
15. E2 Communications
16. EasyMail
17. Egain
18. Equifax
19. Exactis - 24/7
20. FloNetwork / DoubleClick
21. IBM
22. InfoUSA
23. Kana/Broadbase
24. Lyris
25. MarketFirst
26. MessageMedia
27. NetCreations
28. Polk
29. Post / Netcentives
30. RadicalMail
31. Responsys
32. ROI Direct
33. SAP
34. Siebel
35. Socketware
36. Sun Microsystems
37. Vignette
38. Xchange
39. YesMail
1
ClickAction Inc._________
Elibrium, Inc._________
