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EXHIBIT 10.28
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ASTERISKS DENOTE OMISSIONS.
NETGRAVITY ADSERVER NETWORK LICENSE AGREEMENT
This Agreement is made and entered into as of this 17th day of December, 1998
("Effective Date") by and between NetGravity, Inc., a Delaware corporation,
having its principal place of business at 0000 X. Xxxxxxxx Xxxx., Xxxxx 000, Xxx
Xxxxx, XX 00000 ("NetGravity") and the entity at the location listed on Exhibit
A hereto ("License").
RECITALS
A. NetGravity is the owner of proprietary Internet web site advertising
sales and management software products.
B. Licensee wishes to obtain a license to use such software on the terms and
conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
1. DEFINITIONS
The following terms shall have the following meanings:
1.1 "Software" means the proprietary Internet web site advertising sales and
management software program developed by NetGravity known as AdServer Network
which is comprised of the Program Components, in object code form only, and any
updates and upgrades as may be issued to Licensee by NetGravity after the
Effective Date.
1.2 "Program Component(s)" means the AdManager component, the AdServer
NetWork component, and the AdClient NetWork component, the AdConsole component,
and the AdInsight Server as further described on Exhibit A.
1.3 "Licensee's Service" shall mean an Internet web site advertising
management service provided by Licensee to independent third party customers.
1.4 "Licensee Servers" shall mean the computer hardware servers owned or
controlled by Licensee which host Licensee's Site and are used by Licensee in
connection with providing Licensee's Service.
1.5 "Site(s)" means Licensee's site or sites on the World Wide Web.
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ASTERISKS DENOTE OMISSIONS.
2. GRANT OF RIGHTS
2.1 Grant of License. Subject to the terms and conditions of this Agreement,
NetGravity hereby grants to Licensee a perpetual, worldwide, nonexclusive
license to install and use the number of copies of each Program Component of the
Software indicated on Exhibit A to manage Licensee's advertising efforts on
Licensee's Site(s), on third party Websites and throughout the Internet
including, but without limitation, to manage advertising remotely from
Licensee's Servers for customers of Licensee's Service No license is granted to
Licensee to distribute the Software to its customers. Licensee may permit
limited access to the Software on Licensee's Servers and use of such Software by
customers of Licensee's Service only so long as such customers remain customers
of Licensee's Service and provided that such customers have acknowledged in
writing that the Software is licensed and their rights are limited to use on
Licensee's Servers and have agreed in writing not to download, copy, distribute
or attempt to make any other unauthorized use of the Software. Licensee may make
backup copies of the Software for archival or disaster recovery purposes.
2.2 Restrictions. The license granted herein is granted solely to the person
or entity set forth on Exhibit A, and not, by implication or otherwise, to any
parent, subsidiary or affiliate of such person or entity. All rights not
expressly granted hereunder are reserved to NetGravity. Licensee may not copy,
distribute, reproduce, use or allow access to the Software except as explicitly
permitted under this Agreement, and Licensee will not modify, adapt, translate,
prepare derivative works from, decompile, reverse engineer, disassemble or
otherwise attempt to derive source code from the Software or any internal data
files generated by the Software. Licensee shall not remove, obscure, or alter
NetGravity's copyright notice, trademarks, or other proprietary rights notices
affixed to or contained within the Software.
2.3 Ownership. NetGravity owns and shall retain all right, title, and
interest in and to the Software, including all copyrights, patents, trade secret
rights, trademarks and other intellectual property rights therein. Licensee
shall provide NetGravity with reasonable access to Licensee's facilities, at
reasonable times during Licensee's normal business hours and upon reasonable
notice, to verify Licensee's compliance with the terms of this Agreement.
3. DELIVERY OF THE SOFTWARE
3.1 Delivery. Within [*****] business days following the Effective Date,
NetGravity shall deliver the Software electronically or by other means mutually
agreed upon to Licensee at the location(s) set forth on Exhibit A.
3.2 Installation and Training. Following the delivery of the Software,
NetGravity will provide, at no additional charge, reasonable assistance to
Licensee by telephone and e-mail in installing the Software. Additionally,
NetGravity shall provide, at no additional charge, on-site installation
assistance and training ("SureStart") as listed on Exhibit A. During the
installation period Licensee shall cooperate with NetGravity and do all things
reasonably necessary to effectuate the completion of the installation of the
Software in accordance with the terms and conditions of this Agreement.
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The date that installation of the Software on Licensee's system is complete and
the Software is ready to be used on Licensee's systemin accordance with the
documentation is referred to herein as the "Installation Date." The parties
shall work together in good faith towards an Installation Date of no later than
[*****]
4. FEES
4.1 License Fee. In consideration for the rights granted hereunder, Licensee
shall, subject to section 3.2 above, pay NetGravity license fees in the amounts
and on the payment terms set forth on Exhibit A.
4.2 Taxes. Licensee shall be responsible for all sales taxes, use taxes and
any other similar taxes imposed by any federal, state or local governmental
entity on the transactions contemplated by this Agreement, excluding taxes based
upon NetGravity's income. When NetGravity has the legal obligation to pay or
collect such taxes, the appropriate amount shall be invoiced to and paid by
Licensee unless Licensee provides NetGravity with a valid tax exemption
certificate authorized by the appropriate taxing authority.
4.3 U.S. Dollars. All fees quoted and payments made hereunder shall be in
U.S. Dollars.
5. NETGRAVITY SUPPORT
At Licensee's request, NetGravity will offer maintenance and technical support
with respect to the Software, in excess of the consulting services and the
SureStart listed on Exhibit A, under its then current standard Software
Maintenance Subscription and Support Agreement, a copy of which is attached as
Exhibit B.
6. WARRANTY AND DISCLAIMER
6.1 Functional Warranty. NetGravity warrants that for a period of [*****]
days following the Installation Date of the Software: (i) the Software shall
operate substantially in accordance with the then current documentation,
including the specific areas of the documentation attached as Exhibit D, for
such Software (ii) the Software shall schedule ads through the AdManager,
deliver ads to the webserver, and has the ability to count and report
impressions, clickthroughs, and yield and (iii) the media on which the Software
is furnished shall be free from defects in materials and faulty workmanship
under normal use. NetGravity does not warrant that the use of the Software will
be uninterrupted or free from minor errors.
6.2 Additional Warranties. NetGravity warrants that as of the Effective Date
(i) it has the right to grant the rights granted under this Agreement, and (ii)
the Software does not infringe any copyright, trademark, trade secret, patent or
other proprietary right of any third party.
6.3 Year 2000 Warranty. NetGravity further warrants that, provided (i)
Licensee uses the Software in accordance with its accompanying documentation,
the Software shall correctly process,
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provide and/or receive date data within and between the 20th and 21st centuries,
provided that all products used with the Software properly exchange date data
with the Software. This Year 2000 Warranty shall be for a period of [*****] days
beginning [*****]. In the event NetGravity becomes aware that the Software will
not or does not process dates containing any date subsequent to the year 1999
correctly, NetGravity shall immediately notify Licensee of that fact.
6.4 Exclusive Remedy. Except with respect to a breach of the Intellectual
Property Warranty (Section 6.2) and the Year 0000 Xxxxxxxx (Section 6.3),
Licensee's exclusive remedy and NetGravity's sole obligation with respect a
breach of any of the foregoing warranties shall be for NetGravity to use
reasonable efforts to correct any non-conforming performance or condition and if
the Software cannot be corrected to conform to the documentation to refund
License fees paid hereunder. In the event of a breach of the Intellectual
Property Warranty, Licensee's exclusive remedy and NetGravity's sole obligation
are defined in Section 7.1 of this Agreement. In the event of a breach of the
Year 2000 Warranty, Licensee's exclusive remedy and NetGravity's sole obligation
shall be to use reasonable efforts to correct any nonconformance and if the
Software cannot be corrected to conform to the documentation to, at Licensee's
sole discretion, replace it (if possible) or refund License fees paid hereunder.
If the Software is replaced pursuant to this Section 6.4, then the warranty in
Section 6.1 shall still apply to such replacement software for the [*****] day
period following the Installation of such replacement software.
Except as expressly provided herein, NETGRAVITY LICENSES THE SOFTWARE TO
LICENSEE ON AN "AS IS" BASIS. NETGRAVITY MAKES NO OTHER WARRANTY OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING WITHOUT LIMITATION
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT.
7. INDEMNIFICATION
7.1 By NetGravity. NetGravity shall indemnify, defend and hold harmless
Licensee from any and all damages, liabilities, costs and expenses (including
reasonable attorneys' fees) incurred by Licensee as a result of any claim that
the Software, when used within the scope of this Agreement, infringes any
copyright, trademark, or trade secret of any third party; provided that Licensee
promptly notifies NetGravity in writing of any such claim and promptly tenders
the control of the defense and settlement of any such claim to NetGravity at
NetGravity's expense and with NetGravity's choice of counsel. Licensee shall
cooperate with NetGravity, at NetGravity's expense, in defending or settling
such claim and Licensee may join in defense with counsel of its choice at its
own expense. If the Software is, or in the opinion of NetGravity may become, the
subject of any claim for infringement or if it is adjudicatively determined that
the Software infringes then NetGravity may, at its option and expense, either
(i) procure for Licensee the right from such third party to use the Software or
(ii) replace or modify the Software with other suitable and reasonably
equivalent products so that the Software become noninfringing or (iii) if (i)
and (ii) are not practicable, terminate this Agreement. If NetGravity terminates
under subsection (iii) within the [*****] from the Effective Date, NetGravity
will refund a pro-rata portion of the license fees (the refundable amount being
determined by the total license fees reduced [*****] of
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the total). If NetGravity terminates under subsection (iii) at any time after
the Effective Date, NetGravity will refund any prepaid subscription and support
fees applicable to the remaining period for which the services will be
terminated.
7.2 Exclusions. NetGravity shall have no liability for any infringement
arising from (i) the use of other than the then-current, commercially available
version of the Software, provided however, in the event that Licensee has not
purchased updates and upgrades under a separate NetGravity Support and
Subscription Agreement, and a previous version of the Software becomes
infringing, NetGravity will, provided that Licensee ceases to use the infringing
Software and installs the non-infringing version (a) make available the latest
non-infringing version of the Software to Licensee at no cost and (b) indemnify
Licensee for the period during which Licensee's use of the previous version of
the Software infringed upon a third party's rights; (ii) the use of the Software
other than as set forth in its accompanying documentation; (iii) the
modification of the Software unless such modification was made or authorized by
NetGravity, when such infringement would not have occurred but for such
modification; or (iv) the combination or use of the Software with other
software, hardware or other products not approved by NetGravity in advance or
not appearing on NetGravity's then current software documentation or External
Product Availability Matrix if such infringement would have been avoided by the
use of the Software not in such combination. THIS SECTION 7 STATES NETGRAVITY'S
ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM REGARDING THE INTELLECTUAL PROPERTY
RIGHTS OF ANY THIRD PARTY.
8. LIMITATION OF LIABILITY
EXCEPT IN REGARDS TO NETGRAVITY'S OBLIGATIONS UNDER SECTION 7.1 HEREIN, IN NO
EVENT WILL NETGRAVITY'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE USE OR
PERFORMANCE OF THE SOFTWARE EXCEED THE SUM OF THE LICENSE FEES ACTUALLY PAID BY
LICENSEE HEREUNDER. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE
OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED
AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL
NOT APPLY TO ANY BREACH BY LICENSEE OF THE LICENSE RESTRICTIONS OR ITS
CONFIDENTIALITY OBLIGATIONS. THE PARTIES AGREE THAT THIS SECTION 8 REPRESENTS A
REASONABLE ALLOCATION OF RISK.
9. CONFIDENTIALITY
9.1 Definition. The term "Confidential Information" shall mean any
information disclosed by one party to the other party in connection with this
Agreement which is disclosed in writing, orally or by inspection and is
identified as "Confidential" or "Proprietary" or which a party has reason to
believe is treated as confidential by the other party. Any information, in
whatever form, disclosed by NetGravity that relates to the Software and that is
not publicly known is "Confidential Information."
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9.2 Obligation. Each party shall treat as confidential all Confidential
Information received from the other party, shall not use such Confidential
Information except as expressly permitted under this Agreement, and shall not
disclose such Confidential Information to any third party without the other
party's prior written consent. Each party shall take reasonable measure to
prevent the disclosure and unauthorized use of Confidential Information of the
other party.
9.3 Exceptions. Notwithstanding the above, the restrictions of this Section
shall not apply to information that:
a) was independently developed by the receiving party without any use of
the Confidential Information of the other party and by employees or other agents
of (or independent contractors hired by) the receiving party who have not been
exposed to the Confidential Information;
b) becomes known to the receiving party, without restriction, from a
third party without breach of this Agreement and who had a right to disclose it;
c) was in the public domain at the time it was disclosed or becomes in
the public domain through no act or omission of the receiving party;
d) was rightfully known to the receiving party, without restriction, at
the time of disclosure; or
e) is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body; provided, however, that the
receiving party shall provide prompt notice thereof to the other party and shall
use its reasonable best efforts to obtain a protective order or otherwise
prevent public disclosure of such information.
10. TERM AND TERMINATION
10.1 Term. The term of this Agreement shall commence on the Effective Date and
shall continue in force until terminated as follows:
10.2 If Licensee fails to make any payment not contested in good faith due
within [*****] days after receiving written notice from NetGravity that such
payment is delinquent, NetGravity may terminate this Agreement on written notice
to Licensee at any time following the end of such [*****] day period.
10.3 If Licensee materially breaches Section 2.2 or Section 9 of this
Agreement and fails to cure that breach within [*****] days after receiving
written notice of the breach, NetGravity may terminate this Agreement on written
notice at any time following the end of such [*****] day period.
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10.4 This Agreement shall terminate immediately upon notice in the event
Licensee becomes insolvent (i.e., becomes unable to pay its debts in the
ordinary course of business as they come due) or makes an assignment of this
Agreement for the benefit of creditors.
10.5 Survival. The following sections shall survive the termination, for any
reason, of this Agreement: 4, 6, 7, 8, 9, 10, and 12.
10.6 Remedies. Licensee acknowledges that its breach of Section 2.2 or 9 would
cause irreparable harm to NetGravity, the extent of which would be difficult to
ascertain. Accordingly, Licensee agrees that, in addition to any other remedies
to which NetGravity may be legally entitled, NetGravity shall have the right to
obtain immediate injunctive relief in the event of a breach of such sections by
Licensee or any of its officers, employees, consultants or other agents.
11. EXPORT REGULATIONS
Without affecting the scope of the license granted herein, in the event Licensee
is permitted to transfer the Software to any location outside the United States
under this Agreement, Licensee hereby agrees it will comply with all applicable
United States export laws and regulations.
12. MISCELLANEOUS
12.1 Assignment. Licensee may not assign any of its rights or delegate any of
its obligations under this Agreement, whether by operation of law or otherwise,
without the prior express written consent of NetGravity, provided, however, that
Licensee may assign its rights and obligations under this Agreement to any
wholly-owned subsidiary which operates the sites so long as such assignee is not
a direct competitor of NetGravity Subject to the foregoing, this Agreement will
bind and inure to the benefit of the parties, their respective successors and
permitted assigns.
12.2 Waiver and Amendment. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and signed by
the party to be charged. No failure or delay by either party in exercising any
right, power, or remedy under this Agreement, except as specifically provided
herein, shall operate as a waiver of any such right, power or remedy.
12.3 Governing Law, Arbitration. This Agreement shall be governed by the laws
of the State of California, USA, excluding conflict of laws provisions and
excluding the 1980 United Nations Convention on Contracts for the International
Sale of Goods. Any disputes arising out of this Agreement shall be resolved by
binding arbitration in Santa Xxxxx County California in accordance with the
rules of the American Arbitration Association. The arbitrator shall have the
power to grant injunctive relief.
12.4 Notices. All notices, demands or consents required or permitted under
this Agreement shall be in writing. Notice shall be considered effective on the
earlier of actual receipt or (a) the day following transmission if sent by
facsimile followed by written confirmation by registered overnight carrier or
certified United States mail; or (b) one (1) day after posting when sent by
registered private
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overnight carrier (e.g., DHL, Federal Express, etc.); or (c) five (5) days after
posting when sent by certified United States mail. Notice shall be sent to
NetGravity at the addresses set forth on the first page of this Agreement and to
Licensee at the address set forth on Exhibit A, or at such other address as
shall be given by either party to the other in writing. Notices to NetGravity
shall be addressed to the attention of Contracts Administrator.
12.5 Independent Contractors. The parties are independent contractors. Neither
party shall be deemed to be an employee, agent, partner or legal representative
of the other for any purpose and neither shall have any right, power or
authority to create any obligation or responsibility on behalf of the other.
12.6 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
12.7 Complete Understanding. This Agreement, including all Exhibits attached
hereto, constitutes the final, complete and exclusive agreement between the
parties with respect to the subject matter hereof, and supersedes any prior or
contemporaneous agreement.
12.8 Force Majeure. Neither party shall be liable to the other party for any
failure or delay in performance caused by reasons beyond its reasonable control.
12.9 Purchase Orders. This Agreement shall control Licensee's use of the
Software. All different or additional terms or conditions in any Licensee
purchase order or similar document shall be null and void.
12.10 Execution. The parties have shown their acceptance of this Agreement by
causing it to be executed below by their duly authorized representatives. This
agreement may be executed in counterparts which together shall constitute one
agreement and each party agrees that a copy of a counterpart executed by it and
sent to the other by any method including without limitation facsimile shall
constitute acceptance of this Agreement.
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NETGRAVITY
Signature: /s/ Xxxxx X. Xxxxx
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Printed Name: Xxxxx X. Xxxxx
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Title: Corporate Controller
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Date Signed: 12/22/98
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LICENSEE
Signature: /s/ X. Xxxxxxxx
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Printed Name: X. Xxxxxxxx
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Title: President
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Date Signed: 12/17/98
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EXHIBIT A
Licensee: Vitamin Shoppe
0000 Xxxxxxxx Xxx
Xxxxx Xxxxxx, XX 00000
Attention: [License Administrator]: Xxxxx Xxxxxxxxx phone: 000-000-0000 x3l38
fax: 000-000-0000
ADSERVER SOFTWARE LICENSED COMPONENTS:
Program Components Description:
The ad manager component contains the user interface and management
database and the adserver network is a server application responsible for
delivering advertisements remotely, and the ad client network component is the
technology that integrates with server software to receive ads from the ad
server. The AdConsole component serves as a report publishing platform to
advertisers and agencies.
Program Component Licensed Number of Copies
AdManager [*****]
AdServer Network [*****]
AdClient Network [*****]
AdConsole [*****]
AdInsight [*****]
*Licensee shall have the right to copy the AdServer for AdInsight (reporting)
purposes. This additional copy of AdServer shall not be used for additional
adserving capability.
SureStart Deployment
Package Price (Software/Surestart): [*****]
NetGravity Consulting ([*****] days): [*****]
-----------
Total Software and Consulting Fees: [*****]
*plus related travel and expenses
Payment Terms:
Payment 1 due earlier of [*****] days from the Effective Date or [*****]
business days following the Installation Date: [*****]
Payment 2 due [*****] business days after the completed Installation Date and in
no event later than [*****]: [*****]
Licensee shall have the right to purchase NetGravity's GeoTargeting Database at
the [*****] as of the Effective Date through [*****].
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