EXHIBIT 10(6)
NETGRAVITY ADSERVER LICENSE AGREEMENT
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This Agreement is made and entered into as of this 30 day of June, 1999
("Effective Date") by and between NetGravity, Inc., a Delaware corporation,
having its principal place of business at 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxx, XX 00000 ("NetGravity") and the entity at the location listed on Exhibit
A hereto ("Licensee").
RECITALS
A. NetGravity is the owner of proprietary Internet web site advertising sales
and management software products.
B. Licensee wishes to obtain a license to use such software on the terms and
conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
1. DEFINITIONS
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The following terms shall have the following meanings:
1.1 "Software" means the proprietary Internet web site advertising sales and
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management software program developed by NetGravity known as AdServer which is
comprised of the Program Components, in object code form only, and any updates
and upgrades as may be issued to Licensee by NetGravity after the Effective
Date.
1.2 "Program Component(s)" means the AdManager component, AdServer component,
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the AdClient component, the AdConsole component, and the AdInsight Server as
further described on Exhibit A.
1.3 "Site(s)" means Licensee's or its Affiliates' site or sites on the World
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Wide Web.
1.4 "Affiliate(s)" shall mean any entity, which directly or indirectly
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controls, is controlled by, or is in common control with Licensee, provided that
such entity is not a direct competitor of NetGravity.
GRANT OF RIGHTS
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2.1 Grant of License. Subject to the terms and conditions of this Agreement,
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NetGravity hereby grants to Licensee and its Affiliates a perpetual, worldwide,
nonexclusive, nontransferable (except in accordance with Section 12.1) license,
to install and use the number of copies of each Program Component of the
Software licensed as indicated on Exhibit Anternally to manage advertising (i)
on the Sites; (ii) on the world wide web sites of Licensee's content partners;
(iii) on any world wide web sites residing on Licensee's web servers .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
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or entity set forth on Exhibit A, and not, by implication or otherwise, to any
parent, subsidiary or affiliate of such person or entity. No right is granted
hereunder to use the Software to perform advertising management services for
third parties (so-called "service bureau" uses). All rights not expressly
granted hereunder are reserved to NetGravity. Licensee may not copy, distribute,
reproduce, use or allow access to the Software except as explicitly permitted
under this Agreement, and Licensee will not modify, adapt, translate, prepare
derivative works from, decompile, reverse engineer, disassemble or otherwise
attempt to derive source code from the Software or any internal data files
generated by the Software except the extent permitted by applicable law.
Licensee shall not remove, obscure, or alter NetGravity's copyright notice,
trademarks, or other proprietary rights notices affixed to or contained within
the Software.
2.3 Ownership. NetGravity owns and shall retain all right, title, and interest
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in and to the Software, including all copyrights, patents, trade secret rights,
trademarks and other intellectual property rights therein. At NetGravity's
written request, not more frequently than annually, Customer shall furnish
NetGravity with a signed certification verifying that the Software is being used
pursuant to the provisions of this Agreement.
3. DELIVERY OF THE SOFTWARE
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3.1 Delivery. As soon as practicable following the Effective Date, NetGravity
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shall deliver the Software electronically or by other means mutually agreed upon
to Licensee at the location(s) set forth on Exhibit A.
3.2 Installation and Training. As soon as practicable following the delivery
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of the Software, NetGravity will provide reasonable assistance to Licensee by
telephone and e-mail in installing the Software. At Licensee's request, on-site
installation assistance and training may be provided at NetGravity's standard
rates, plus reasonable travel expenses.
4. FEES
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4.1 License Fee. In consideration for the rights granted hereunder, Licensee
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shall pay NetGravity license
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
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
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any other similar taxes imposed by any federal, state or local governmental
entity on the transactions contemplated by this Agreement, excluding U.S. taxes
based upon NetGravity's income. When NetGravity has the legal obligation to pay
or collect such taxes, the appropriate amount shall be invoiced to and paid by
Licensee unless Licensee provides NetGravity with a valid tax exemption
certificate authorized by the appropriate taxing authority.
4.3 U.S. Dollars. All fees quoted and payments made hereunder shall be in U.S.
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Dollars.
5. NETGRAVITY SUPPORT
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At Licensee's request, NetGravity will offer maintenance and technical support
with respect to the Software under its then current standard Software
Maintenance Subscription and Support Agreement, a copy of which is attached as
Exhibit B.
6. WARRANTY AND DISCLAIMER
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NetGravity warrants that for a period of forty-five (45) days following the
delivery of the Software: (i) the Software shall operate substantially in
accordance with the then current documentation for such Software and (ii) the
media on which the Software is furnished shall be free from defects in materials
and faulty workmanship under normal use. NetGravity does not warrant that the
Software will meet all of Licensee's requirements or that the use of the
Software will be uninterrupted or error-free. NetGravity's sole obligation under
this warranty is to use commercially reasonable efforts to correct any non-
conforming Software. Except as expressly provided herein, NETGRAVITY LICENSES
THE SOFTWARE TO LICENSEE ON AN "AS IS" BASIS. NETGRAVITY MAKES NO OTHER WARRANTY
OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF
SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT.
7. INDEMNIFICATION
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7.1 By NetGravity. NetGravity shall indemnify, defend and hold harmless
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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 becomes noninfringing or (iii) if (i)
and (ii) are not practicable, terminate this Agreement. After working reasonably
to find a solution, Licensee shall also have the right to terminate this
Agreement if (i)and (ii) are not practicable in its sole opinion. If either
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party terminates under subsection (iii) within the first three (3) years 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
each month by 1/36th of 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
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arising from (i) the use of other than the then-current, commercially available
version of the Software; (ii) the use of the Software other than as set forth in
its accompanying documentation; (iii) the modification of the Software unless
such modification was made or authorized by NetGravity, when such infringement
would not have occurred but for such modification; or (iv) the combination or
use of the Software with other software, hardware or other products not approved
by NetGravity in advance if such infringement would have been avoided by the use
of the Software not in such combination. THIS SECTION 7 STATES NETGRAVITY'S
ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM REGARDING THE INTELLECTUAL PROPERTY
RIGHTS OF ANY THIRD PARTY.
7.3 By Licensee. Licensee shall indemnify, hold harmless and defend NetGravity
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from and against any and all claims, liabilities, damages and expenses
(including reasonable attorneys' fees) incurred by NetGravity as a
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
result of any breach by Licensee of this Agreement; provided that NetGravity
promptly notifies Licensee in writing of any such claim and promptly tenders to
Licensee the control and defense and settlement of such claim at Licensee's
expense and with Licensee's choice of counsel. NetGravity shall cooperate with
Licensee, at Licensee's expense, in defending or settling such claim and
NetGravity may join in defense with counsel of its choice at its own expense.
8. LIMITATION OF LIABILITY
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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
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9.1 Definition. The term "Confidential Information" shall mean any information
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disclosed by one party to the other party in connection with this Agreement
which is disclosed in writing, orally or by inspection and is identified as
"Confidential" or "Proprietary" or which a party has reason to believe is
treated as confidential by the other party. Any information, in whatever form,
disclosed by NetGravity that relates to the Software and that is not publicly
known is "Confidential Information."
9.2 Obligation. Each party shall treat as confidential all Confidential
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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
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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
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10.1 Term. The term of this Agreement shall commence on the Effective Date and
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shall continue in force until terminated as follows:
a) If Licensee fails to make any payment due within thirty (30) days after
receiving written notice from NetGravity that such payment is delinquent,
NetGravity may terminate this Agreement on written notice to Licensee at any
time following the end of such thirty (30) day period.
b) If either party materially breaches any term or condition of this
Agreement and fails to cure that breach within thirty (30) days after receiving
written notice of the breach, the nonbreaching party may terminate this
Agreement on written notice at any time following the end of such thirty (30)
day period.
c) Either party may terminate this Agreement immediately upon notice in
the event that the other party becomes insolvent (i.e., becomes unable to pay
its debts in the ordinary course of business as they come
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
due) or makes an assignment of this Agreement for the benefit of creditors.
10.2 Survival. The following sections shall survive the termination, for any
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reason, of this Agreement: 4, 6, 7, 8, 9, 10, and 12.
10.3 Remedies. Licensee acknowledges that its breach of Section 2.2 or 9 would
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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
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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. This Agreement is not assignable by Licensee without the prior
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written consent of NetGravity; provided, however, this entire Agreement may be
assigned without NetGravity's consent to a successor by merger or acquisition of
all or substantially all of Licensee's assets, provided that such assignee (a)
is not a direct competitor of NetGravity; and (b) is bound by law or written
agreements to all of the obligations of the assigning party under this
Agreement. 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
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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
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of the State of New York, 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 New York, NY 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
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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) three (3) day after posting when sent by
registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (c)
five (5) days after posting when sent by certified United States mail. Notice
shall be sent to the NetGravity at the addresses set forth on the first page of
this Agreement and to Licensee at the address set forth on Exhibit A, or at such
other address as shall be given by either party to the other in writing. Notices
to NetGravity shall be addressed to the attention of Contracts Administrator.
12.5 Independent Contractors. The parties are independent contractors. Neither
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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
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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
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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. Except for Licensee's obligations to pay NetGravity
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hereunder, neither party shall be liable to the other party for any failure or
delay in performance caused by reasons beyond its reasonable control.
12.9 Purchase Orders. This Agreement shall control Licensee's use of the
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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
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causing it to be executed below by their duly authorized representatives. This
agreement may be executed in counterparts which together
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
shall constitute one agreement, and each party agrees that a copy of a
counterpart executed by it and sent to the other by any method including without
limitation facsimile shall constitute acceptance of this Agreement.
NETGRAVITY
By:___________________________________
Name:_________________________________
Title:________________________________
"LICENSEE"
By: /s/ Avi Xxxxxxxxx
Name: Avi Xxxxxxxxx
Title: President and CEO
EXHIBIT A
Licensee: Virtual Communities, Inc.
Address: 000 Xxxx 00x x Xxxxxx, Xxx Xxxx, XX
Attention: Avi Xxxxxxxxx
With a copy to:
Attention: [License Administrator]:
Xxxxx Xxxxxxx, Chief Operations Officer
Tel: x000-0-000-0000 (Switchboard), x000-0-000-0000 (Direct)
Xxxxxx@xxxxxxx.xxx
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Number 0 XxXxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx 00000
AdServer Software Licensed Components:
Program Components Description:
------------------------------
The AdManager component contains the user interface and management
database. The AdServer is a server application responsible for delivering
advertisements. The AdClient component is the technology that integrates with
web server software to receive ads from the ad server. The AdConsole component
serves as a report publishing platform to advertisers and agencies.
Program Component Licensed Number of Copies
----------------- -------------------------
AdManager 1
--------- -
AdServer 2
-------- -
AdClient 2
-------- -
AdConsole 1
--------- -
AdInsight Server* 1
----------------- -
*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.
License Price including SureStart Deployment Package $50,079
----------------------------------------------------
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
.
. The Sure Start Deployment deliverables will include:
- Deployment of the total NetGravity AdServer Enterprise software
solution
- Training of the AdMaster (technical administrator) and AdSales
Staff. The training will take place in New York for the AdSales
staff and in Israel for the AdMaster. (** Related travel expenses
for travel requested by VCI to either NewYork or Jerusalem from
London will be charged separately).
- Integration of the VCI registration database with the AdServer
software to enable targeting of Ads
- Provision of reports currently available in AdCenter and new ones
as requested by VCI provided that any non-standard reports do not
require more that 1 man day's effort.
- Post Implementation Audit after 90 days from deployment date to
be undertaken both in Israel and in NewYork. (** Related travel
expenses for travel to either NewYork or Jerusalem from London
will be charged separately).
- Upgrade/Migration to AdServer 4.0 is included (Related
travel expenses for travel to either NewYork or Jerusalem
from London will be charged separately).
Technical Support
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AdService Gold - 24hrs x 7 days - $12,000 per annum on the above
configuration.
Maintenance Subscription
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Year 1 Maintenance Subscription is included.
Year 2 onwards - (Optional) Maintenance Subscription - $11,193 per
annum on the above configuration
Total Package Price:
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Year 1 : $62,079 (Software, SureStart Deployment, Support and
Subscription)
Year 2: $12,000 for AdService Gold and $11,193 for Optional
Subscription Maintenance
Payment Terms:
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Payment is due according to the following schedule:
Year 1
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The $62,079 to be paid as follows:
a) July to September - renew with AdCenter at $0.73 cents ($3,500 per month
minimum). This will be invoiced monthly and count towards the cost of the
software - $3,500 x 3 months= $10,500*
b) $16,500 - on October 15th - covers Surestart Deployment
c) $12,000 - on November 15th - covers Support
d) $23,079 - on December 15th - remaining amount - licences
*If from July to September Licensee incurs more cost in AdCenter, than the
$10,500 listed above, then the additional amount shall be deducted from the
December 15th payment. Regardless of what AdCenter costs Licensee incurs between
July and September, Licensee shall in no event owe NetGravity more than $62,079.
Year 2 Subscription and Support (AdService Silver)
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1) $12,000 - on 15 September 2000 for AdService Gold - 24x7 Support
2) $11,193 - on 15 September 2000 for Maintenance Subscription if this option
is taken at the time.
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
EXHIBIT B
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Date of this Agreement: Signed 30th June 1999 but For Support and subsequent
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renewal purposes - 15th September 1999.
SOFTWARE SUBSCRIPTION AND SUPPORT AGREEMENT
-------------------------------------------
BETWEEN
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NETGRAVITY, INC.
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And
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VIRTUAL COMMUNITIES, INC.
-------------------------
NetGravity, Inc. ("NetGravity") has granted Licensee a license to
certain software in accordance with a license agreement dated June 30, 1999 (the
"License Agreement"). Licensee wishes to obtain maintenance and support of such
software pursuant to this Agreement.
SECTION 1
DEFINITIONS
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1.1 "Product(s)" means the software programs licensed to Licensee pursuant to
the License Agreement together with any Updates furnished by NetGravity to
Licensee under this Agreement.
1.2 "Updates" means a software Product release containing error corrections and
minor enhancements, in object code form, which is made commercially available by
NetGravity and generally indicated by a change in the revision number in the
tenths or hundredths digit to the right of the decimal point (e.g., a change
from version x.xx to x.xy or x.yx) and any corrections and updates to the
associated documentation.
1.3 "Upgrades" means a software Product release containing significant
functional enhancements and feature additions of the Software, in object code
form, which is made commercially available by NetGravity and generally indicated
by a change in the revision number to the left of the decimal point (i.e.,
4.00).
SECTION 2
TECHNICAL SUPPORT
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2.1 Support. NetGravity will provide Licensee with technical support
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("Support") during the hours indicated on the attached Schedule 1. Support will
be provided by at least one of the following methods: telephone, email, World
Wide Web, or fax. NetGravity, at its sole discretion, will choose which
method(s) it uses to provide support to Licensee. Support will include:
a) assistance related to questions on the installation and operational use
of the Product(s);
b) assistance in identifying and verifying the causes of suspected errors
in the Products(s); and
c) providing workarounds for identified Product errors or malfunctions,
where reasonably available to NetGravity.
Licensee will designate the number of persons set forth in Schedule 1 to act as
support liaisons to utilize the support and will ensure that such person will be
properly trained in the operation and usage of the Products. Upon request,
Licensee will allow the use of on-line diagnostics of the Products during error
diagnosis.
2.2 Error Corrections. During the term of this Agreement, NetGravity shall use
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its reasonable efforts
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
correct any reproducible error in the Product with a level of effort
commensurate with the severity of the error. NetGravity shall have no obligation
to correct all errors in the Product. Upon identification of any error, Licensee
shall notify NetGravity of such error and shall provide NetGravity with enough
information to reproduce the error. When a case is opened with NetGravity
Technical Support, Licensee shall provide NetGravity with an assessment of the
priority of the case. The definitions in the table attached as Exhibit C shall
be used as a guide in setting such priority. While licensee has input in setting
case priorities, NetGravity, in its reasonable discretion, shall be the final
arbitrator of such priorities. Exhibit C describes response and resolution
targets as well as the method of resolution. Response time begins upon
NetGravity's notification of the problem and ends when a Technical Support
Engineer (TSE) responds back to begin solving the problem. Resolution time
begins once the TSE reproduces and identifies the problem.
2.3 Error Corrections. NetGravity shall not be responsible for correcting any
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errors not reproducible by NetGravity on the unmodified Product or errors caused
by: (i) Licensee's failure to implement all Updates issued under this Agreement;
(ii) changes to the operating system or environment which adversely affect the
Product; (iii) any alterations of or additions to the Product made by parties
other than NetGravity; (iv) use of the Product in a manner for which it was not
designed; (v) interconnection of the Product with other software products not
supplied by NetGravity; or (vi) use of the Product on an unsupported platform.
NetGravity shall only be obligated to support the then current production
version of the Product, and the immediately prior release for a period of one
(1) year after such release of the latest version. Support for any earlier
versions or for errors not covered under this Agreement may be obtained at
NetGravity's then current rates.
2.4 On-site Training and Support. Upon request, and provided that Licensee is
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current with fees due under this Agreement, NetGravity will provide training for
Licensee's administrators and trainers and/or direct support at Licensee's site
at NetGravity's then applicable standard training rates and charges.
SECTION 3
MAINTENANCE SUBSCRIPTION
------------------------
NetGravity will provide each Update and Upgrade together with one copy of the
documentation (where such is issued) relating to each Update or Upgrade to
Licensee within a reasonable time after publication ("Subscription Service").
Licensee may acquire additional copies of the documentation at NetGravity's then
current standard rates. Updates and Upgrades provided to Licensee under this
Clause shall be licensed to Licensee in accordance with the Licence Agreement.
SECTION 4
FEES
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4.1 Support and Subscription Fees. For NetGravity technical Support services
-----------------------------
covered by Section 2 of this Agreement, Licensee agrees to pay NetGravity the
annual technical Support fee in the amount set forth in Schedule 1 for the first
year following the Date of this Agreement. Licensee shall pay the annual fees
each year at the beginning of each renewal term of this Agreement. For
NetGravity Subscription Service provided under Section 3 of this Agreement,
Licensee shall pay the annual Subscription fee set forth in Schedule 1 beginning
one year from the Date of this Agreement. Licensee shall pay the annual fees at
the beginning of each renewal term of this Agreement. NetGravity reserves the
right to change the annual fees from time to time effective at the commencement
of the next annual period by giving Licensee at least sixty (60) days' prior
written notice of such change. NetGravity reserves the right to charge Licensee
a reinstatement fee to resume Subscription services if Licensee has not
continuously maintained this Agreement in effect Licensee's reinstatement shall
be calculated at 25 percent of the list license fees. This shall be a one time
fee for each time that Licensee reinstates. Annual fees on any additional units
licensed beyond the initial purchase will be prorated and billed at the time of
the applicable license grant.
4.2 Payment. Any amount payable to NetGravity under this Agreement will be due
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and payable within thirty (30) days after Licensee's receipt of NetGravity's
invoice. All monetary amounts are specified and shall be paid in the lawful
currency of the United States of America. Licensee shall pay all amounts due
under this Agreement to NetGravity at the address indicated at the beginning of
this Agreement or such other location as NetGravity designated in writing. Any
amount not paid when due will bear interest at the rate of one and one-half
percent (1.5%) per month or the maximum rate permitted by applicable usury law,
which is less, determined and compounded on a daily basis from the date due
until the date paid.
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
4.3 Taxes. Unless otherwise specified, the fees, charges and other amounts
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specified in this Agreement do not include any sales, use, excise or other
applicable taxes. Licensee will pay or reimburse NetGravity for any and all such
taxes (excluding any applicable federal and state taxes based on NetGravity's
income).
SECTION 5
TERMINATION
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5.1 Term. The term of this Agreement shall be one year and shall automatically
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renew unless Licensee notifies NetGravity of its intention not to renew at least
60 days prior to the renewal date or unless terminated pursuant to paragraph
5.2.
5.2 Termination For Default. If either party defaults in the performance of or
-----------------------
compliance with any of its material obligations under this Agreement, and such
default has not been remedied or cured within thirty (30) days after written
notice specifying the default or, if the nature of the default is such that more
than (30) days are required for the cure thereof, the defaulting party fails to
commence its efforts to cure such breach or default within such thirty (30) days
and to diligently prosecute the same to completion thereafter, the non-
defaulting party may terminate this Agreement in addition to its other rights
and remedies under law.
5.3 This Agreement shall automatically terminate on termination of the Licence
Agreement. If Licensee terminates the License Agreement due to a material breach
by NetGravity, then NetGravity shall refund any prepaid subscription and support
fees applicable to the remaining period for which the services will be
terminated.
5.4 Survival. Sections 4.2, 4.3, 5, 6 and 7 shall survive the termination of
this Agreement.
SECTION 6
LIMITATIONS OF LIABILITY
------------------------
6.1 NetGravity warrants that it will provide the Support with reasonable skill
and care. Except as expressly provided herein. NETGRAVITY MAKES NO OTHER
WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR
CONDITIONS OF SATISFACTORY QUALITY, OF MERCHANTABBILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT.
6.2 LIMITATION. NETGRAVITY'S LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT OR
----------
OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, REPRESENTATION, STRICT
LIABILITY OR PRODUCT LIABILITY OF NETGRAVITY) UNDER THIS AGREEMENT WITH REGARD
TO ANY PRODUCT, DOCUMENTATION, SERVICES OR OTHER ITEMS SUBJECT TO THIS AGREEMENT
SHALL IN NO EVENT EXCEED THE TOTAL COMPENSATION PAID BY LICENSEE TO NETGRAVITY
UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR
RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
SECTION 7
MISCELLANEOUS
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7.1 Assignment. This Agreement is not assignable by Licensee without the prior
----------
written consent of NetGravity; provided, however, this entire Agreement may be
assigned without NetGravity's consent to a successor by merger or acquisition of
all or substantially all of Licensee's assets, provided that such assignee (a)
is not a direct competitor of NetGravity; and (b) is bound by law or written
agreements to all of the obligations of the assigning party under this
Agreement. Subject to the foregoing, this Agreement will bind and inure to the
benefit of the parties, their respective successors and permitted assigns.
7.2 Waiver and Amendment. No modification, amendment or waiver of any
--------------------
provision of this Agreement shall be effective unless in writing and signed by
the party to be charged. No failure or delay by either party in exercising any
right, power, or remedy under this Agreement, except as specifically provided
herein, shall operate as a waiver of any such right, power or remedy.
7.3 Governing Law; Arbitration. This Agreement shall be governed by the laws
--------------------------
of the State of New York, 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 New York, New York in accordance with the rules of the
American Arbitration Association. The arbitrator shall have the power to grant
injunctive relief.
7.4 Notices. All notices, demands or consents required or permitted under this
-------
Agreement shall be in writing. Notice shall be considered effective on the
earlier of actual receipt or (a) the day following transmission if sent by
facsimile followed by written confirmation by registered overnight carrier or
certified United States mail; or (b) three (3) day after posting when sent by
registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (c)
five (5) days after posting when sent by certified United States mail. Notice
shall be sent to the parties at the addresses set forth on the first page of
this Agreement or at such other address as shall be given by either party to the
other in writing. Notices to NetGravity shall be addressed to the attention of
Contracts Administrator.
7.5 Independent Contractors. The parties are independent contractors. Neither
-----------------------
party shall be deemed to be an employee, agent, partner or legal representative
of the other for any purpose and neither shall have any right, power or
authority to create any obligation or responsibility on behalf of the other.
7.6 Severability. If any provision of this Agreement is held by a court of
------------
competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
7.7 Complete Understanding. This Agreement, including all Exhibits attached
----------------------
hereto, constitutes the final, complete and exclusive agreement between the
parties with respect to the subject matter hereof, and supersedes any prior or
contemporaneous agreement.
7.8 Excused Performance. Neither party will be liable for, or be considered to
-------------------
be in breach of or default under this Agreement on account of, any delay or
failure to perform as required by this Agreement (other than monetary
obligations) as a result of an event of force majeure or any cause or condition
beyond such party's reasonable control.
NETGRAVITY INC.
Signature: ________________________________
Printed Name: _____________________________
Title: ____________________________________
Date Signed: ______________________________
Licensee:
NETGRAVITY ADSERVER LICENSE AGREEMENT
-------------------------------------
Signature: /s/ Avi Xxxxxxxxx
Printed Name:Avi Xxxxxxxxx
Title: President and CEO
Date Signed: June 30, 1999
SCHEDULE 1
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SCHEDULE 1
SUPPORT HOURS:
AdService Gold - 24 hrs x 7 days
SUPPORT CONTACTS: Please List 3:
FEES:
----
Products License Date License At List Annual Support Fee Annual Subscription Fee
-------- ------------------ -----------------------
Price
1 x AdManager Year 1 Year 1
2 x AdServer June 30th 1999 $55,965 Amt Due: $12,000 Included.
Enterprise Support Year 2 Year 2(Optional)
Agreement Date: Amt Due: $12,000 20% of $55,965
2 x AdClient September 15th Amt Due: $11,193
Enterprise 1999
1 x AdConsole
1 x AdInsight
Fees are payable [annually] in advance.
This support agreement shall be valid until 14th September 2000.
