EXHIBIT 10.8.8
SOFTWARE LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into as of the 30th day of
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December, 1999 (the "Effective Date") by and between Annuncio Software, Inc., a
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California corporation with an office at 0000 X. Xx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx Xxxx, XX 00000 ("Annuncio"), and Xxxxxxxx Interactive Health, having an
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office at 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 ("Licensee").
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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:
SECTION 1. DEFINITIONS
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As used in this Agreement, the following terms shall have the meanings set forth
below:
"ANNUAL SUPPORT PROGRAM 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 the Software Support Program Terms and Conditions.
"ANNUNCIO DOCUMENTATION" means the documentation provided by Annuncio to
Licensee to be used in conjunction with the Software.
"DESIGNATED SYSTEM" means the specific computer equipment at Licensee's address
listed above as set forth in Exhibit A.
"LICENSE FEE" means the fee for the license rights granted herein, as set forth
in Exhibit B.
"LICENSEE MATERIALS" means the text, customer data and other material supplied
by Licensee and used in conjunction with the Software.
"MARKETING TRANSACTION LIMITS" means the number of marketing transactions that
may be performed using the Software pursuant to the terms of this Agreement, as
specifically stated and defined in Exhibit A.
"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.
"SOFTWARE MEDIA" means the computer disk or CD-ROM provided to Licensee by
Annuncio on which the Software is recorded.
"TERM" means the term of the license hereunder, as set forth in Exhibit A.
SECTION 2. SOFTWARE LICENSE.
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Section 2.1 License Grant. Subject to all the terms and conditions of this
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Agreement, Annuncio hereby grants to Licensee, during the Term, a non-exclusive,
non-transferable, non-sublicensable license to use the Software along with any
accompanying Annuncio Documentation solely on the Designated System, not to
exceed the specified Marketing Transaction Limits, and solely for Licensee's
internal use as part of Licensee's Internet marketing solution. Licensee may
make a reasonable number of copies solely for backup or archival purposes.
Section 2.2. Restrictions. Licensee may not (1) copy or otherwise
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reproduce the Software other than as expressly set forth above; (ii) rent,
sublicense, transfer or grant any rights in the Software or Annuncio
Documentation in any form to any person, (iii) permit third parties to benefit
from the use or functionality of the Software via a timesharing, service bureau
or other arrangement without specific written permission from an Annuncio vice-
president or higher level employee.
Section 2.3 Proprietary Rights and Notices. Annuncio grants no license,
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right, or interest in any Annuncio copyright, trademark, trade name, service
xxxx or other proprietary right. Licensee shall neither alter nor remove any
copyright notice or other proprietary rights notices 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
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the Software, Annuncio Documentation and any copy made by Licensee remain with
Annuncio. Unauthorized copying of the Software or Annuncio Documentation, or
failure to comply with any restrictions herein, will result in automatic
termination of this Agreement and will make available to Annuncio other legal
remedies.
Section 2.5. Reservation of Rights. Annuncio hereby reserves to itself
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all 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
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permit any third party to, alter, modify, adapt, translate, prepare derivative
works from, decompile, reverse engineer, disassemble, or otherwise attempt to
derive computer source code from, as applicable, the Software, except as may be
expressly permitted by applicable local law. In jurisdictions where a right to
reverse engineer is provided by law unless information is available about
products in order to achieve interperability, functional compatibility, or
similar objectives, Licensee agrees to submit a detailed written proposal to
Annuncio concerning Licensee's information needs before engaging in reverse
engineering. Annuncio may, in its sole discretion, propose to
ANNUNCIO SOFTWARE, INC 1 CONFIDENTIAL AND PROPRIETARY
[*]=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.
Licensee terms and conditions under which Annuncio is willing to make such
information available.
Section 2.7 Proprietary Rights of Licensee. Licensee shall retain all of
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its right, title and interest in and to all patent rights, trademarks, trade
names, inventions, copyrights, know-how and trade secrets relating to the
Licensee Materials.
SECTION 3. VERIFICATION
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Section 3.1 Certification. Upon Annuncio's written request, Licensee shall
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furnish Annuncio with a signed certification verifying that (1) 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
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use of the Software. Any such audit shall be conducted during regular business
hours at Licensee's facilities and shall not unreasonably interfere with
Licensee's business activities.
SECTION 4. DELIVERY AND PAYMENT
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Section 4.1 Delivery. Within ten (10) days of the Effective Date, Annuncio
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shall ship to Licensee one (1) object code version of the Software and one (1)
copy of the Annuncio Documentation.
Section 4.2 License Fee. In consideration for the license granted
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hereunder, Licensee shall pay Annuncio, within thirty (30) days of the Effective
Date, the applicable License Fee, as set forth in Exhibit A hereto
Section 4.3 Late Payments. If the License Fee is not paid when due, in
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addition to any other remedy otherwise available to Annuncio, Annuncio may
impose interest or overdue charges and payments at the rate of one-and-one-half
percent (1.5%) per month (or, if less, the maximum amount permitted by law),
until Licensee is current on all payments.
Section 4.4 Taxes. Licensee shall pay all sales, use and excise taxes
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relating to, or under, this Agreement, unless Licensee is exempt from the
payment of such taxes and provides Annuncio with evidence of such exemption, and
excepting those taxes based upon Annuncio's income.
SECTION 5. PROFESSIONAL SERVICES
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Section 5.1 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 Software Support Program offered pursuant to Exhibit A and the
Software Support Program Terms and Conditions. Any consulting or training
services acquired from Annuncio shall be bid separately from the Software
License and Licensee may acquire either Software Licenses or consulting services
without acquiring the other. Such consulting and training services shall be
provided pursuant to a separate Consulting Services Agreement pursuant to the
terms and rates contained therein.
Section 5.2 Installation Support. For the fee set forth in the applicable
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Exhibit, Annuncio shall provide Licensee with installation support set forth in
that Exhibit, up to the hours therein indicated, for one copy of the Software at
a single site in accordance with Annuncio's then-current installation
procedures. Any additional installation support requested by Licensee shall be
provided at Annuncio's then-current hourly rate. Licensee shall reimburse
Annuncio for all reasonable travel and living expenses associated with any
installation support.
Section 5.3 Non-solicitation. Licensee shall not solicit for hire any
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employee, consultant or subcontractor of Annuncio during the term of this
Agreement and for a period of six (6) months thereafter. In the event Licensee
hires any employee, consultant or subcontractor of Annuncio within the twelve
(12)-month period following such person's having performed services for
Annuncio, Licensee shall promptly pay Annuncio a finder's fee equivalent to
fifty percent (50%) of the annual compensation package offered to such person by
Licensee.
Section 5.4 Expenses. For any on site services requested by Licensee,
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Licensee shall reimburse Annuncio for all reasonable out-of-pocket travel and
business expenses incurred by Annuncio in performing any of the services set
forth in this Section 5.
SECTION 6. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
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Section 6.1 General Each party hereby represents and warrants to the other
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that (i) such party has the right, power and authority to enter into this
Agreement and to fully perform all its obligations hereunder; and (ii) the
making of this Agreement does not violate any agreement existing between such
party and any third party.
Section 6.2. Limited Warranty. Annuncio hereby warrants to Licensee that
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the Software as delivered by Annuncio to Licensee shall perform substantially in
accordance with the Annuncio Documentation for a period of 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. In addition, for ninety (90) days from Licensee's receipt of
Software Media, Annuncio warrants to Licensee that such Software Media is free
from material defects.
Section 6.3. Year 2000. Annuncio warrants that the Software will: (a)
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include Year 2000 date conversion and compatibility capabilities including; but
not limited to: century recognition; calculations which accommodate some 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 multicentury formulas, and will not cause
an abnormal function or about within the application or result in the generation
of incorrect values or invalid outputs including such dates; (c) provide that
all date-related user interface functionalities and data fields include the
indication of the correct century; and (d) provide that all date-related system
or application to application data interface functionalities will include the
indication of the correct century. In the event of a breach of the foregoing
warranty, Annuncio's sole obligation, and Licensee's sole remedy, shall be the
replacement or modification of the defective Software, at no charge to Licensee.
Section 6.4 Intellectual Property Warranty. Annuncio hereby warrants to
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Licensee that, to the best of Annuncio's knowledge, as of the Effective Date,
the Software does not infringe the United States copyright, trademark or trade
secret of any third party.
Section 6.5 Software Performance Disclaimer. ANNUNCIO MAKES NO, AND HEREBY
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EXPRESSLY
ANNUNCIO SOFTWARE, INC 2 CONFIDENTIAL AND PROPRIETARY
DISCLAIMS ANY, WARRANTY (1) OF CONTINUOUS OR UNINTERRUPTED OPERATION OF THE
ANNUNCIO PRODUCT, (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 6.6 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE
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ANNUNCIO PRODUCT, THE ANNUNCIO DOCUMENTATION AND ANY OTHER ITEMS OR GOODS
LICENSED OR DELIVERED TO LICENSEE HEREUNDER ARE LICENSED OR DELIVERED TO
LICENSEE "AS IS," AND WITHOUT WARRANTY OF ANY KIND. ANNUNCIO HEREBY EXPRESSLY
DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE ANNUNCIO PRODUCT AND THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-
INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
Section 6.7. Licensee Materials. Annuncio has no obligations with respect
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to the Licensee Materials used in connection with the Software over the
Internet. Annuncio shall have no liability whatsoever with respect to any
Licensee Materials transmitted with the use of the Software, and Licensee is
solely responsible and bears all risk with respect to the use of the Software to
transmit or store any data including but not limited to security or privacy with
respect to such data.
SECTION 7. CONFIDENTIALITY
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Section 7.1. Definition. Confidential Information means any information
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disclosed by either party ("Disclosing Party") to the other party ("Receiving
Part"), either directly or indirectly, in writing, orally, electronically,
visually, or by inspection of tangible objects (including without limitation
documents, prototypes, samples, plant and equipment), which is designated as
"Confidential," "Proprietary" or some similar designation or should be
reasonably understood to be confidential or proprietary. Confidential
Information includes, without limitation, all information relating to the source
code of any Annuncio Software, the operation of the Software, the Documentation,
or the terms and conditions of this Agreement to be Confidential Information
Customer's client accounts and information concerning marketing and advertising
services, all site and business development plans, and specific events and
features planned for or by Customer are deemed confidential information.
Confidential information also includes, but is not limited to, trade secrets,
computer programs, software, documentation, formulas, data, inventions,
techniques, marketing plans, strategies, forecasts, customer lists, employee
information, financial information, confidential information concerning either
party's business or organization, as either party has conducted it or as either
party may conduct it in the future, information concerning any of either party's
past, current or possible future products or methods, including information
about either party's research, development, engineering, purchasing,
manufacturing, accounting, marketing, selling, leasing and/or software
(including third party software).
Section 7.2. Definition Exclusion. Confidential Information shall exclude
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information that: (a) was independently developed by the Receiving Party without
any use of the Disclosing Party's Confidential Information or by the Receiving
Party's employees or other agents (or independent contractors hired by the
Receiving Party) who have not been exposed to the Disclosing Party's
Confidential Information; (b) becomes known to the Receiving Party, without
restriction, from a source other than the Disclosing Party without breach of
this Agreement and that had a right to disclose it; (c) was in the public domain
at the time it was disclosed or becomes in the public domain through no act or
omission of the Receiving Party; or (d) was rightfully known to the Receiving
Party, without restriction, at the time of disclosure.
Section 7.3 Non-use and Non-disclosure. Each party agrees not to use any
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Confidential Information of the other party for any purpose except to perform
its obligations or exercise its rights under this Agreement. Each party agrees
not to disclose any Confidential Information of the other party to third parties
or to such party's employees, except to those employees of the receiving party
who are required to have the information in order to perform such party's
obligations under this Agreement. Neither party shall reverse engineer,
disassemble or decompile any prototypes, software or other tangible objects
which embody the other party's Confidential Information and which are provided
to the party hereunder. Each party agrees that it shall take reasonable measures
to protect the secrecy of and avoid disclosure and unauthorized use of the
Confidential Information of the other party. Without limiting the foregoing,
each party shall take at least those measures that it takes to protect its own
most highly confidential information and shall ensure that its employees who
have access to Confidential Information of the other party have signed a non-use
and non-disclosure agreement in content similar to the provisions hereof, prior
to any disclosure of Confidential Information to such employees. Each party
shall reproduce the other party's proprietary rights notices on any such
approved copies, in the same manner in which such notices were set forth in or
on the original.
Section 7.4 Compelled Disclosure. If a Receiving Party is, or believes
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that it will be, compelled by a court or other authority to disclose
Confidential Information of the Disclosing Party, it shall give the Disclosing
Party prompt notice so that the Disclosing Party may take steps to oppose such
disclosure.
SECTION 8. INDEMNIFICATION
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Section 8.1. By Annuncio. Annuncio shall, at its expense, defend and hold
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Licensee harmless from any and all damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred by Licensee arising out of or
relating to any third party claim, suit or proceeding alleging that the Software
infringes any third party United States or Canadian patent 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.
Section 8.2. Licensee Materials. Licensee shall, at its expense, defend
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and hold Annuncio harmless from any and all damages, liabilities, costs and
expenses (including reasonable attorneys' fees) incurred by Annuncio arising out
of or relating to
ANNUNCIO SOFTWARE, INC 3 CONFIDENTIAL AND PROPRIETARY
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.
SECTION 9. TERM
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Section 9.1. Term. This Agreement shall commence on the Effective Date
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and shall continue throughout the Term unless otherwise terminated earlier in
accordance with the terms of this Section 9.
Section 9.2. Termination. In the event of a material breach of this
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Agreement, the nonbreaching party shall be entitled to terminate this Agreement
by written notice to the breaching party, if such breach is not cured within
thirty (30) days after written notice is given to the breaching party,
specifying the breach. Upon any expiration or termination of this Agreement, all
rights and licenses granted to Licensee under this Agreement shall terminate.
Except as expressly provided herein, all of Annuncio's proprietary rights and
confidential information, if any, shall be promptly returned to Annuncio or
destroyed by Licensee, and certification of destruction shall be made in writing
to Annuncio within ten (10) days after such return or destruction.
Section 9.3. Nonexclusive Remedies. The rights and remedies provided to
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the parties in this Section 9 shall not be exclusive and are in addition to all
other rights and remedies provided by this Agreement or any other relevant
written agreement or available by law or in equity.
Section 9.4. Survival. Notwithstanding anything to the contrary contained
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in this Agreement, the Sections entitled "Definitions," "Confidentiality"
"Indemnification," "Term" and "Limitation of Liability" shall survive any
expiration or termination of this Agreement.
SECTION 10. LIMITATION OF LIABILITY
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Section 10.1 Total Liability. EXCEPT FOR DAMAGES ARISING OUT OF SECTION
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8.1, ANNUNCIO'S TOTAL LIABILITY TO LICENSEE FOR ANY KIND OF LOSS, EXPENSE, COST,
CLAIM OR DAMAGE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY
THEORY OF LIABILITY, SHALL BE LIMITED TO THE AMOUNTS PAID TO ANNUNCIO BY
LICENSEE HEREUNDER IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENT TO WHICH SUCH LOSS OR DAMAGE RELATES.
Section 10.2 Exclusion of Damages. EXCEPT FOR DAMAGES ARISING OUT OF
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SECTION 8.1, IN NO EVENT SHALL ANNUNCIO BE LIABLE TO LICENSEE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND
WHETHER OR NOT ANNUNCIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
EXCEPT WITH RESPECT TO OR IN CONNECTION WITH ANY VIOLATION OF ANY PROPRIETARY OR
INTELLECTUAL PROPERTY RIGHT OF ANNUNCIO, IN NO EVENT SHALL LICENSEE BE LIABLE TO
ANNUNCIO FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR
OTHERWISE, AND WHETHER OR NOT LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
Section 10.3 Failure of Essential Purpose. The limitations specified in
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this Section 10 shall survive and apply even if any limited remedy specified in
this Agreement is found to have failed of its essential purpose.
SECTION 11. GENERAL
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Section 11.1 Merger and Amendments. This Agreement may not in any way be
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modified, changed or amended except by a written instrument duly executed by the
parties hereto which states that it is an amendment to this Agreement. This
Agreement, including Exhibit A and the Software Support Program Terms and
Conditions, when executed, constitutes the entire, final, complete and exclusive
agreement between the parties and supersedes any prior negotiations,
understanding or agreements, whether oral or in writing, concerning the subject
matter hereof. Moreover, any standard printed forms or other documents of either
party (such as those contained on a purchase order or invoice) shall have no
force or effect.
Section 11.2. Construction. All references in this Agreement to
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"Articles," "Sections" and "Exhibits" refer to the articles, sections and
exhibits to this Agreement. The words "hereof," "herein" and "hereunder" and
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other words of similar import refer to this Agreement as a whole, including the
exhibits and schedules hereto.
Section 11.3 Governing Law. THIS AGREEMENT IS MADE IN ACCORDANCE WITH AND
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SHALL BE GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REFERENCE TO SUCH STATE'S CONFLICTS OF LAW PRINCIPLES. IN NO EVENT SHALL
THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS.
Section 11.4 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 11.5 Assignments. Neither party may assign this Agreement or any
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right or obligation hereunder without the other party's prior written consent;
provided however, that Annuncio 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 Annuncio. Notwithstanding the foregoing, this
ANNUNCIO SOFTWARE, INC 4 CONFIDENTIAL AND PROPRIETARY
Agreement shall be binding upon and inure to the benefit of the permitted
successors and assigns of each party.
Section 11.6 Severability. If any provision of this Agreement is held to
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be 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 11.7 Waiver. Any waiver (express or implied) by either party of
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any default or breach of this Agreement shall not constitute a waiver of any
other or subsequent default or breach.
Section 11.8 Notices. All notices or other communications required or
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permitted to be given pursuant to this Agreement shall be in writing and shall
be considered properly given or made if hand delivered, mailed first class mail,
postage prepaid, sent by prepaid telegram (or telex or other facsimile
transmission) or sent by express overnight courier service to the relevant
addresses below or to such other address as either party hereto may designate by
like notice sent to the other party hereto. All notices shall be deemed given
when received.
Section 11.9 Headings. The headings and captions contained in this
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Agreement shall not be considered to be a part hereof for purposes of
interpreting or applying this Agreement, but are for convenience only.
Section 11.10 Counterparts. This Agreement may be executed in
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counterparts, each of which will be deemed an original and both of which
together will constitute one instrument.
Section 11.11. Language. The parties have agreed that this Agreement be
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written in English. (Les parties ont convenu a ce que ce Contrat soit redige en
anglais.)
Section 11.12. Import and Export Controls. Licensee understands and
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acknowledges that Annuncio may be subject to regulation by agencies of the U.S.
government, including the U.S. Department of Commerce, which prohibit export or
diversion of certain products, technology and technical data to certain
countries. Any and all obligations of Annuncio to provide the Software,
software, documentation or any media in which any of the foregoing is contained,
as well as any training or technical assistance shall be subject in all respects
to such United States laws and regulations as shall from time to time govern the
license and delivery of technology, products and technical data abroad by
persons subject to the jurisdiction of the United States, including the Export
Administration Act of 1979, as amended, any successor legislation, and the
Export Administration Regulations issued by the Department of Commerce,
International Trade Administration, and Bureau of Export Administration.
Section 11.13. Contingency. Neither party hereto shall be held responsible
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for any delay or failure in performance hereunder caused in whole or in part by
fire, strike, flood, embargo, labor dispute, delay or failure of any
subcontract, act of sabotage, riot, accident, delay of carrier or supplier,
voluntary or mandatory compliance with any governmental act, regulation or
request, act of God or by public enemy, or any act or omission or other cause
beyond such party's control. If any such contingency shall occur, this Agreement
shall be deemed extended by the length of time such contingency continues.
Section 11.14. Independent Contractors. The parties hereto are independent
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contractors and neither party is an employee, agent, partner or joint venturer
of the other. Neither party shall have the right, nor shall either party
attempt, to bind the other party, whether directly or indirectly, to any
agreement with a third party or to incur any obligation or liability on behalf
of such other party, whether directly or indirectly.
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 5 CONFIDENTIAL AND PROPRIETARY
ANNUNCIO SOFTWARE, INC. XXXXXXXX INTERACTIVE HEALTH
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxx
Name: XXXXXX XXXXXXX Name: XXXXXX XXXX
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Title: President & CEO Title: VP INTERNET DEVELOPMENT
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6
-
EXHIBIT A
TO
THE SOFTWARE LICENSE AGREEMENT BETWEEN
ANNUNCIO SOFTWARE, INC. AND XXXXXXXX HEALTH INTERACTIVE
This independent Exhibit A to the Software License Agreement (this "Exhibit") is
entered into as of the 30th day of December, 1999 (the "Effective Date") by and
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between Annuncio Software, Inc., a California corporation with an office at 0000
X. Xx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX 00000 ("Annuncio"), and Xxxxxxxx
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Health Interactive, a corporation having an office at 0000 Xxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx 00000 ("Licensee"). This Exhibit is part of the License
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Agreement entered into between the parties, dated December 30, 1999 ("License
Agreement"). Annuncio's Software Support Program Terms and Conditions shall be a
part of this Exhibit A during the Initial Support Program Period and thereafter,
provided Licensee elects to purchase the Support Program. Capitalized terms
shall have the same meaning as they have in the License Agreement.
1. TOTAL SOFTWARE FEES
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A. SOFTWARE LICENSED: LICENSE FEES
Annuncio Live [*]
TOTAL LICENSE FEE: [*]
TOTAL ADDITIONAL
SUBTOTAL FROM SECTION 2, BELOW ITEMS/SERVICE FEE: [*]
FIRST YEAR
SUBTOTAL FROM SECTION 3, BELOW MAINTENANCE FEE: [*]
TOTAL FEE: [*]
2. ADDITIONAL SERVICES/ITEMS
Training 1 [*] [*]
Consulting services, to be provided [*] [*]
pursuant to the terms and conditions of a
separate Consulting Services Agreement and
Statement of Work (does not include travel
and living expenses)
Documentation for Annuncio Software 1 copy Not priced separately
TOTAL ADDITIONAL
SERVICES/ITEMS FEES: [*]
3. SOFTWARE SUPPORT PROGRAM FEE FOR INITIAL ONE-YEAR SUPPORT PROGRAM PERIOD: [*]
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Upon payment by Licensee of the applicable Annual Support Program Fee, and
throughout the applicable Support Program Period, Annuncio shall provide
Licensee with Software maintenance and support services (the "Support Program")
concerning the use and operation of the Software at a single site and in
accordance with Annuncio's Software Support Program Terms and Conditions as
attached hereto. For the Software provided pursuant to this Exhibit, the
Software Support Program Fees for the initial year of Software Support will be
paid [*] in advance, with [*]. After the Initial Support Program Period,
Licensee may elect to continue the Software Support Program by paying Annuncio
the then-current Support Program Fee, [*]. For any additional years of Software
Support, [*], in advance, with the first payment due on the one year anniversary
of the Exhibit Effective Date and continuing until Software Support Program is
terminated pursuant to the Standard Software Support Program Terms and
Conditions.
_____________________
1 For one year from the Effective Date, additional training is available at
[*] per day, with a maximum of [*] students per day. Thereafter, training will
be available at Annuncio's then-current rate.
ANNUNCIO SOFTWARE, INC. 1 CONFIDENTIAL AND PROPRIETARY
[*] 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.
4. Payment Terms: Licensee shall pay Annuncio [*] of the License Fee and
-------------
the [*] fee for the Additional Services upon the Exhibit Effective Date.
Licensee shall pay the remaining [*] of the License Fee on or before March
31, 2000. Software Support Program fees will be paid as set forth in Section 3,
above. Unless explicitly stated elsewhere in the License Agreement or attached
Exhibits, all license fees are non-cancelable and non-refundable.
5. Licensed Use: Licensee's use of the Software and the license fees
------------
associated therewith are based upon the following License Term, Designated
System and Marketing Metrics:
LICENSE TERM: [*]
MARKETING TRANSACTIONS: [*]
(Marketing Transactions are defined as e-mails
sent and web pages served by Annuncio's
Software, as tracked by the Software)
DESIGNATED SYSTEM:
Operating System Any then-supported Operating System
Database Any then-supported Database
Number of Servers [*]
Client Machine Access [*]
[*]
6. CONTACT INFORMATION BILLING INFORMATION
Name: Xxxxxx Xxxx Name: Xxxxxx Xxxx
Address: 0000 Xxxxxxxx Xxxx Address:: 0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Telephone Number: (301) 340-7788 ext. 5650 Telephone Number: (301)340-7788 ext. 5650
Facsimile Number: Facsimile Number:
7. Marketing Activities: Licensee agrees to be designated as a customer in
--------------------
Annuncio sales and marketing materials and press releases, and to provide a
minimum of one quote regarding Licensee's experience with Annuncio Software and
Annuncio Lice for use in such marketing materials and/or press releases. 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.
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. XXXXXXXX HEALTH INTERACTIVE
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxx
Name: XXXXXX XXXXXXX Name: XXXXXX XXXX
-------------- ------------
Title: President & CEO Title: VP INTERNET DEVELOPMENT
--------------- -----------------------
[*] = 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.
ANNUNCIO SOFTWARE, INC. 2 CONFIDENTIAL AND PROPRIETARY
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
------------------------
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 subsequently requests to reinstate the Support Program,
Annuncio will reinstate the Support Program only after Licensee pays Annuncio
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CONFIDENTIAL AND PROPRIETARY
ANNUNCIO SOFTWARE, INC
the then-current Annual Support Program Fee plus all cumulative fees that would
have been payable had Licensee not suspended the Support Program.
4. TERM AND TERMINATION: Subject to Licensee's payment of the Annual Support
--------------------
Program Fee, the initial support period (a "Support Program Period") shall begin
upon the License Effective Date and end one year from such date. After such
initial Support Program Period and for as long as Annuncio is offering a Support
Program for the Annuncio Software, Licensee shall continue to receive the
Support Program for successive twelve (12)-month periods in consideration for
payment of Annuncio's then current Annual Support Program Fee for such Support
Program Periods, unless the Support Program is terminated by either party.
Either party may elect to discontinue the Support Program by written
notification delivered to the other party at least sixty (60) days prior to the
renewal date. If Licensee fails to make payment pursuant to the section entitled
"Payment," or Licensee breaches the Support Program provisions and such breach
has not been cured within thirty (30) days of receipt of written notice of the
breach, Annuncio may suspend or cancel the Support Program. Annuncio may modify
the Support Program on an annual basis to reflect current market condition upon
reasonable notice.
5. CUSTOMER RESPONSIBILITIES:
-------------------------
a) Customer shall assist Annuncio in the diagnosis of a reported software
problem by providing information and documentation and by performing reasonable
tests requested by Annuncio's Support Program personnel.
b) Licensee shall implement any Patch within sixty (60) days of its
availability. Customer's failure to implement any such Patch will relieve
Annuncio of its obligations to provide support for problems that would have been
corrected by such implementation.
c) Licensee shall provide Designated Support Contacts who are competent and
capable of maintaining and understanding the operation of the licensed Software.
6. DEFINITIONS:
-----------
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 Releases means a release of Software containing an accumulation
of Patches and possibly limited new functionality.
D. Major Release means a one copy of the new release of the Software containing
new functionality that is not designated by Annuncio as new products or as
functionality for which Annuncio charges separately.
E. Patch means the repair or replacement of source, object or executable
software code to address an Incident.
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ANNUNCIO SOFTWARE, INC.
