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Exhibit 10.10
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT, is made as of the 10th day of
January, 2000 between XXX XXXXXXXXXXX ("EMC") AND XXX.XXX CORPORATION
("Xxx.Xxx").
R E C I T A L S:
A. Pursuant to a DoubleClick Adserver Network License Agreement dated
December 23, 1999, between EMC, as licensee, and DoubleClick, as licensor (the
"License Agreement"), a true and complete copy of which is attached hereto as
"Exhibit A", EMC has agreed to license from DoubleClick, Inc., certain AdServer
technology, as more particularly described therein, to use in connection with
services to be provided to Xxx.Xxx.
B. Pursuant to a Software Maintenance and Support Agreement dated
December 28, 1999, between EMC and DoubleClick (the "Support Agreement"), a true
and complete copy of which is attached hereto as "Exhibit B", DoubleClick has
agreed to provide certain support and upgrades for the software and product
components licensed under the License Agreement, as more particularly described
therein.
C. EMC wishes to assign and transfer to Xxx.Xxx all of EMC's right,
title and interest in and to the License Agreement and the Support Agreement
(collectively, the "DoubleClick Agreements") as set forth herein.
D. The DoubleClick Agreements both expressly provide that this
Assignment may be accomplished without DoubleClick's consent.
A G R E E M E N T :
For and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. EMC hereby assigns and transfers to Xxx.Xxx effective as of the date
hereof all of EMC's right, title and interest in and to the DoubleClick
Agreements. Assignee accepts the assignment of all of Assignor's right, title
and interest in and to the DoubleClick Agreements.
2. Assignor represents and warrants that (a) it is the Licensee in the
License Agreement, being referred to therein as (b) the DoubleClick Agreements
are in full force and effect as of the date hereof, (c) Assignor has full power
and authority to execute and deliver this Assignment and has not previously
assigned or transferred any interest whatsoever in either of the DoubleClick
Agreements to anyone else.
3. Assignee assumes all obligations and liability of EMC under the
DoubleClick Agreements, provided, however, that EMC shall remain liable to
DoubleClick for all of the
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obligations to pay license, support, maintenance or other fees of any kind under
the DoubleClick Agreements. EMC agrees not to pay any fees due under the
DoubleClick Agreements until Xxx.Xxx authorizes EMC to do so in writing.
4. This Agreement constitutes the entire agreement between the parties
hereto and shall not be amended or modified and no waiver of any provision
hereof shall be effective unless set forth in a written instrument authorized
and executed with the same formality as this Agreement. This Agreement shall
bind and adhere to the benefit of the parties hereto and their respective
successors and assigns. To facilitate execution, this Agreement may be executed
in as many counterparts as may be required. It shall not be necessary that the
signature on behalf of all parties hereto appear on each counterpart hereof, and
it shall be sufficient that the signature on behalf of each party hereto shall
appear on one or more of such counterparts. All counterparts shall collectively
constitute a single agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first set forth above.
ASSIGNOR: XXX XXXXXXXXXXX
By:
----------------------------------
Name: Xxxxx Lorwy
Title:
ASSIGNEE: XXX.XXX CORPORATION
By:
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Director, Marketing & Sales
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DOUBLECLICK ADSERVER NETWORK LICENSE AGREEMENT
This ADSERVER NETWORK LICENSE AGREEMENT is made and entered into as of
this 23rd day of December, 1999 ("Effective Date") by and between DOUBLECLICK,
INC., a Delaware corporation, having its principal place of business at 00
Xxxxxxx Xxxxxx, 00xx Xx, Xxx Xxxx, Xxx Xxxx 00000 (before 11/15/99) and 000 X.
00xx Xx., Floors 12 & 16, Xxx Xxxx, Xxx Xxxx 00000 (after 11/15/99)
("DoubleClick") and the entity at the location listed on Exhibit A hereto
("Licensee").
R E C I T A L S :
A. DoubleClick is the owner of proprietary Internet web site advertising sales
and management software products, including AdServer.
B. Xxx.Xxx would like, through the ZapBox, to offer advertising and e-commerce
services to its customers and clients, and desires to license AdServer
technology to assist it in doing so as set forth herein.
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 DoubleClick 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 DoubleClick after the
Effective Date.
1.2 "Program Component(s)" means the AdManager component, the AdServer NetWork
component, the AdClient NetWork component, the AdConsole component and the
AdInsight Server, all as further described on Exhibit A attached hereto.
1.3 "Xxx.Xxx Services" shall mean an Internet web site advertising management
and e-commerce business provided by Xxx.Xxx to third party customers.
1.4 "Xxx.Xxx Servers" shall mean the computer hardware servers owned or
controlled by Xxx.Xxx which host Xxx.Xxx's Web site and other Internet
properties and are used by Xxx.Xxx in connection with providing Xxx.Xxx Service
or any servers of anyone who has agreed to provide such hosting services to
Xxx.Xxx.
1.5 "Programming" means the standard HTML content and functionality which
Xxx.Xxx selects to provide or otherwise deploy on the ZapBox or Xxx.Xxx's other
Internet properties on the World Wide Web.
1.6 "ZapNetwork Site(s)" means Web sites that belong to the ZapNetwork.
1.7 "Xxx.Xxx Site(s)" means Xxx.Xxx's site or sites on the World Wide Web.
2. GRANT OF RIGHTS
2.1 Grant of License. Subject to the terms and conditions of this Agreement,
DoubleClick hereby grants to Licensee a perpetual, worldwide, nonexclusive,
license, to install and use the number of copies of each Program Component of
the Software as indicated on Exhibit A to manage the Programming on Xxx.Xxx's
Sites and the ZapNetwork Site(s), on third party Websites and throughout the
Internet, including, but not limited to, manage Programming remotely from
Xxx.Xxx's Servers for the ZapBox or other Xxx.Xxx Internet properties on
ZapNetwork Sites. No license is granted to Licensee to distribute the Software
to its customers. Licensee may permit limited access to the Software on
Xxx.Xxx's Servers and use of such Software by (a) customers of Xxx.Xxx only so
long as such customers remain customers of Xxx.Xxx and (b) any of the ZapNetwork
Sites, provided that such customers and owners of the ZapNetwork Sites have
acknowledged in writing that the Software is licensed and their rights are
limited to use on Xxx.Xxx's
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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 the Licensee's parent and subsidiaries and to
no one else. All rights not expressly granted hereunder are reserved to
DoubleClick. 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 to the extent allowed by applicable law or as permitted in a separate
written agreement with DoubleClick; provided, however that nothing in this
Section 2.2 shall restrict in any way Licensee's right to use the AdServer
Software application programming interface to connect the Software to other
software and/or hardware products, including any software or hardware not
provided by DoubleClick. Licensee shall not remove, obscure, or alter
DoubleClick's copyright notice, trademarks, or other proprietary rights notices
affixed to or contained within the Software; provided, however, such notices,
trademarks, or other proprietary rights notices shall be hidden from viewers of
pages on ZapNewwork Sites or which are delivered by Licensee.
2.3 Ownership. DoubleClick 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 will, within
fifteen (15) days after DoubleClick's written notice (which notice may delivered
by DoubleClick only once in each consecutive twelve (12) month period), at the
Licensee's option, either permit DoubleClick to inspect Xxx.Xxx's facilities to
confirm that the Licensee is materially complying with the terms of this
Agreement or have Licensee provide a written certification that Licensee is
materially complying with the material terms of this Agreement that apply to it
which shall be signed by an officer of Licensee. Xxx.Xxx's failure to permit
such access or Licensee's failure to provide such officer's certification shall
be deemed a material breach of this Agreement if DoubleClick provides an
additional written notice to Licensee stating that a material breach under this
Agreement will be deemed to occur if compliance does not occur within fifteen
(15) days of delivery of such second notice.
3. DELIVERY OF THE SOFTWARE
3.1 Delivery. Within five (5) business days following the Effective Date,
DoubleClick shall deliver the Software electronically (or by other means
mutually agreed upon by the parties) to Licensee at the location(s) set forth on
Exhibit A.
3.2 Installation and Training. At Licensee's request, following delivery of the
Software, DoubleClick will provide reasonable assistance, at no additional
charge, to Licensee by telephone and e-mail to the extent necessary for Licensee
to install the Software. Additionally, Doubleclick shall provide, at no
additional charge, on-site installation assistance and training ("SureStart") as
listed on Exhibit A. The SureStart process is designed to install the Software.
For purposes of this Agreement, "Installation Date" shall mean the first date on
which all Program Components discussed in Section 1.2 of this Agreement and
defined on Exhibit A of this Agreement are functioning and that the Software can
deliver advertisements to the World Wide Web. The parties shall work together in
good faith towards an Installation Date of no later than April 01, 2000.
4. FEES
4.1 License Fee. In consideration for the rights granted hereunder, Licensee
shall pay DoubleClick 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 U.S. taxes based
upon DoubleClick's income. When DoubleClick has the legal obligation to pay or
collect such taxes, the appropriate amount shall be invoiced to and paid by
Licensee unless Licensee provides DoubleClick 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. DOUBLECLICK SUPPORT
At Licensee's request, DoubleClick will offer to Licensee maintenance and
technical support with respect to the Software under its then current
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standard Software Maintenance Subscription and Support Agreement, a copy of
which is attached as Exhibit B. The Software and Maintenance Subscription and
Support Agreement shall be fully assignable by Licensee to Xxx.Xxx at any time
without any notice to, or required consent by DoubleClick.
6. WARRANTY AND DISCLAIMER
6.1 Functional Warranty. DoubleClick warrants that for a period of ninety (90)
days following the Installation Date: (i) the Software shall operate
substantially in accordance with the then current documentation for such
Software, (ii) the Software shall schedule Programming through the AdManager,
deliver ads to ZapNetwork Sites, and have the ability to count and report
impressions, clickthroughs, and yield and the media on which the Software is
furnished shall be free from defects in materials and faulty workmanship under
normal use. Except as expressly provided herein, DoubleClick 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. DoubleClick's sole obligation
under this warranty is to use commercially reasonable efforts to promptly
correct any non-conforming Software to conform with this warranty and if the
Software cannot be corrected to return to Licensee the license fees paid
hereunder. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DOUBLECLICK LICENSES THE
SOFTWARE TO LICENSEE ON AN "AS IS" BASIS. DOUBLECLICK MAKES NO OTHER WARRANTY OF
ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
6.2 Additional Warranties. DoubleClick warrants that it has the right to grant
the rights granted under this Agreement.
6.3 Year 2000 Warranty. DoubleClick further warrants that the Software shall
correctly process, 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. In the event DoubleClick becomes aware
that the Software will not or does not process dates containing any date
subsequent to the year 1999 correctly, DoubleClick shall immediately notify
Licensee of that fact.
7. INDEMNIFICATION
7.1 By DoubleClick. DoubleClick shall indemnify, 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, patent, trade secret or other intellectual property right of any
third party. Licensee shall promptly notify DoubleClick in writing of any such
claim and promptly tenders the control of the defense and settlement of any such
claim to DoubleClick at DoubleClick's expense and with DoubleClick's choice of
counsel to Licensee, provided that Licensee's failure to do any of the foregoing
shall not relieve DoubleClick of its obligations hereunder except to the extent
that it is actually prejudiced thereby and provided further that DoubleClick
shall not settle any such claim in a manner that would require Licensee to act
other than is expressly set forth in this Agreement without prior written
consent of Licensee. Licensee shall cooperate with DoubleClick, at
DoubleClick's expense, in defending such claim. Licensee may join in defense
with counsel of its choice at its own expense. If the Software is, or in the
opinion of DoubleClick may become, the subject of any claim for infringement or
if it is adjudicatively determined that the Software infringes then DoubleClick
may, at its option and sole 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 which complies with the
representations and warranties herein so that the Software becomes
non-infringing so long as Licensee does not experience an interruption in
service due to any infringement or (iii) if (i) and (ii) are not practicable,
terminate this Agreement on sixty (60) days advance written notice. If
DoubleClick terminates under subsection (iii) within five (5) years after the
execution of this Agreement, DoubleClick will refund a pro-rata portion of the
license fees based on a five year life of the Software (the refundable amount
being determined by the total license fees reduced each month by 1/60th of the
total). If DoubleClick terminates under subsection (iii) at any time after the
Effective Date, DoubleClick will refund any prepaid subscription and support
fees applicable to the remaining period for which the services will be
terminated.
7.2 Exclusions. DoubleClick shall have no liability for any infringement to the
extent that it arises from (i) the use of other than the then-current,
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commercially available version of the Software following the third month after
the release by DoubleClick of such version; (ii) the use of the Software other
than for serving advertisements on the World Wide Web or as otherwise set forth
in its accompanying documentation; or (iii) the modification of the Software
unless such modification was made or authorized by DoubleClick, 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 DoubleClick in advance if such infringement would have
been avoided by the use of the Software not in such combination. THIS SECTION 7
STATES DOUBLECLICK'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 DOUBLECLICK'S OBLIGATIONS UNDER SECTION 7 HEREIN, IN NO
EVENT WILL DOUBLECLICK'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 IN SECTION 2 OR
ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 9. 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 DoubleClick that relates to the Software and that is not publicly
known is "Confidential Information." Any information, in whatever form,
disclosed by Licensee that relates to the ZapBox or the ZapNetwork and that is
not publicly known is also "Confidential Information."
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
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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 due within thirty (30) days after
receiving written notice from DoubleClick that such payment is delinquent,
DoubleClick may terminate this Agreement on written notice to Licensee at any
time following the end of such thirty (30) day period.
10.3 If Licensee materially breaches Section 2.2 or Section 9 of this Agreement
and fails to cure that breach within thirty (30) days after receiving written
notice of the breach, Doublelclick may terminate this Agreement on written
notice at any time following the end of such thirty (30) day period.
10.4 If DoublelClick 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 Licensee party may terminate this Agreement on written
notice at any time following the end of such thirty (30) day period.
10.5 Survival. The following sections shall survive the termination, for any
reason, of this Agreement: 4, 6, 7, 8, 9, 10, and 12. Any breach of this
Agreement shall survive the termination of this Agreement.
10.6 Remedies. Licensee acknowledges that its breach of Section 2.2 or 9 would
cause irreparable harm to DoubleClick, the extent of which would be difficult to
ascertain. Accordingly, Licensee agrees that, in addition to any other remedies
to which DoubleClick may be legally entitled, DoubleClick 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 assign any or all 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 DoubleClick, to Xxx.Xxx and, upon
such assignment, Xxx.Xxx shall be entitled to all of the rights of the Licensee
hereunder. After such assignment, Xxx.Xxx may assign any or all of its rights or
delegate any of its obligations under this Agreement to any person or entity who
purchases Xxx.Xxx, a controlling interest in Xxx.Xxx or any portion of Xxx.Xxx's
business which uses the License or any wholly-owned subsidiary of Licensee.
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. This Agreement shall be governed by the laws of the State of
New York, USA, excluding conflict of laws provisions.
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 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 DoubleClick 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 DoubleClick 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
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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.
DOUBLECLICK
Signature: ________________________________
Printed Name: _____________________________
Title: ____________________________________
Date Signed: ______________________________
LICENSEE:
Signature: _______________________________
Printed Name:______________________________
Title: ___________________________________
Date Signed: _______________________________
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EXHIBIT A
LICENSEE:
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 1
AdServer Network 4
AdClient Network 2
AdConsole 1
AdInsight 1
External Site License 100+
GeoTargeting 1yr
ACM (Fast Look-up) 1
Gold Support 24x7 See Support schedule 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.
SureStart Deployment
**Plus related travel expenses
PACKAGE PRICE:
Payment Terms:
Payment is due _______ from the Effective Date
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SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT
BETWEEN
DOUBLECLICK, INC.
and
XXX.XXX CORPORATION
DoubleClick, Inc. ("DoubleClick") has granted Xxx.Xxx Corporation
("Licensee") a license to certain software in accordance with a DoubleClick
Adserver Network License Agreement dated December 23, 1999 (the "License
Agreement"). Licensee wishes to obtain maintenance and support of such software
pursuant to this Agreement.
SECTION 1
DEFINITIONS
1.1 "Product(s)" means the software programs licensed to Licensee pursuant to
the License Agreement together with any Updates and Upgrades furnished by
DoubleClick to Licensee under this Agreement and any modifications to the
Products furnished to Licensee under the product warranty in the License
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
DoubleClick 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 DoubleClick 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
2.1 Support. DoubleClick will provide Licensee with technical support
("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. DoubleClick, 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);
(c) providing workarounds for identified Product errors or malfunctions
as set forth in sections 2.2 and 2.3 below; and
(d) support provided under DoubleClick's policies set forth on Schedule
2 attached hereto.
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. Upon DoubleClick's receipt of written notification from
Licensee that there is any defect or error in the Products, DoubleClick shall
use commercially reasonable efforts to reproduce such defect or error as soon as
reasonably practicable. If DoubleClick is so able to reproduce such defect or
error, then DoubleClick
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shall provide commercially reasonable assistance to correct such defect or error
according to the timeframes set forth in Schedule 2. DoubleClick shall have no
obligation to correct all errors in the Product other than as set forth herein.
Upon identification of any error, Licensee shall notify DoubleClick of such
error and shall provide DoubleClick with enough information to reproduce the
error. Forthwith upon such correction being completed DoubleClick shall deliver
to Licensee documentation describing generally the nature of the correction and
providing instructions for the proper use of the corrected version of the
Products.
2.3 Error Corrections. DoubleClick shall not be responsible for correcting any
errors on the Product that are not reproduceable by either party or errors to
the extent caused by: (i) Licensee's failure to implement all Updates issued
under this Agreement; (ii) changes to the operating system or environment not
supported by DoubleClick which adversely affect the Product (it being understood
that DoubleClick is not, as of the date of this Agreement, supporting any
operating system or environment); (iii) any alterations of or additions to the
Product made by parties other than DoubleClick or other parties expressly
consented in writing by DoubleClick; (iv) use of the Product in a manner for
which it was not designed; (v) interconnection of the Product with other
software that does not meet the specifications for the Products contained in the
Products' documentation or (vi) use of the Product on an unsupported platform.
2.4 On-site Training and Support. Upon request, and provided that Licensee is
current with fees due under this Agreement, DoubleClick will provide training
for Licensee's administrators and trainers and/or direct support at Licensee's
site at DoubleClick's then applicable standard training rates and charges.
2.5 Versions Supported. DoubleClick shall be obligated to support the then
current production version of the Product and the immediately prior release for
a period of three (3) months after such new release. Support for any earlier
versions or for errors not covered under this Agreement may be obtained at
DoubleClick's then current rates.
SECTION 3
MAINTENANCE SUBSCRIPTION
3.1 DoubleClick will provide each Update and Upgrade to Licensee promptly after
they become available when and as they become available ("Subscription"). In
reasonable time prior to the delivery of a new release, DoubleClick shall make
available to Licensee all amendments to the Software's specification which shall
describe the facilities and functions of the new release. Licensee may acquire
additional copies of the documentation at DoubleClick's then current standard
rates.
3.2 DoubleClick agrees to make available to Licensee the option to enroll as a
registrant under its Source Code Escrow Agreement. The conditions for release of
source code shall be limited to (i) DoubleClick's material breach of its
obligations under this Software Maintenance and Support Agreement which remains
uncured for thirty (30) days after DoubleClick's receipt of notice to cure or if
not capable of being cured within such thirty (30) day period, DoubleClick fails
to begin to cure or fails to continue to diligently pursue cure within such
thirty (30) day period; (ii) DoubleClick ceases to do business in the ordinary
course for a period of sixty (60) days or more; or (iii) the institution by or
against DoubleClick of bankruptcy proceedings for total liquidation which are
not dismissed within sixty (60) days or if this Agreement is rejected in a
bankruptcy proceeding. In the event of release of source code from the escrow,
Licensee shall have the right to correct errors in and make modifications to the
Product for internal use consistent with the license granted in the License
Agreement. Licensee shall be responsible for all associated escrow fees.
12
SECTION 4
FEES
4.1 Support and Subscription Fees. For DoubleClick technical Support services
covered by Section 2 of this Agreement, Licensee shall pay to DoubleClick in
advance the annual technical Support fee in the amount set forth in Schedule 1
for the first year following the earlier of: (a) the date that Licensee requests
Support to commence; or (b) March 30, 2000 (such period and each successive one
(1) year period, an "Annual Period"). Licensee shall pay the applicable annual
fees each year in advance of the beginning of each subsequent Annual Period as
set forth in Schedule 1. For DoubleClick Subscription Service provided under
Section 3 of this Agreement, Licensee shall pay the applicable annual
Subscription fee, as set forth in Schedule 1, at the beginning of each annual
period. DoubleClick reserves the right to change the annual fees from time to
time effective at the commencement of the next renewal term by giving Licensee
at least sixty (60) days' prior written notice of such change and such increase
shall be no greater than six percent (6%) over the immediate previous year's
fees. DoubleClick reserves the right to charge Licensee a reinstatement fee to
resume services if Licensee has not continuously maintained this Agreement in
effect. Annual fees on any additional units licensed beyond the initial license
will be prorated and billed at the time of the applicable license grant.
4.2 Payment. Any amount payable to DoubleClick under this Agreement will be due
and payable within thirty (30) days after Licensee's receipt of DoubleClick's
invoice therefor. 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 DoubleClick at the address indicated at the
beginning of this Agreement or such other location as DoubleClick 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.
4.3 Taxes. Unless otherwise specified, the fees, charges and other amounts
specified in this Agreement do not include any sales, use, excise or other
applicable taxes. Licensee will pay or reimburse DoubleClick for any and all
such taxes (excluding any applicable federal and state taxes based on
DoubleClick's income).
SECTION 5
TERMINATION
5.1 Term. The term of this Agreement shall begin as of the date of DoubleClick's
signature below and continue for three (3) years thereafter, unless Licensee
notifies DoubleClick of its intention to terminate this Agreement at least
thirty (30) days prior to the effective date of the termination. In the event
that DoubleClick terminates the License Agreement pursuant to Section 7.1
thereof, DoubleClick shall refund a pro rata portion of the support and
subscription fees paid hereunder as provided in such Section 7.1.
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 thirty (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) day period and to diligently prosecute the same to completion thereafter,
then the nondefaulting party may terminate this Agreement in addition to its
other rights and remedies under law.
5.3 Survival. Sections 4.2, 4.3, 5, 6 and 7 shall survive the termination of
this Agreement.
SECTION 6
LIMITATIONS OF LIABILITY
LIMITATION. DOUBLECLICK'S LIABILITY (WHETHER IN CONTRACT, WARRANTY,
TORT OR OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, REPRESENTATION,
STRICT LIABILITY OR PRODUCT LIABILITY OF DOUBLECLICK) 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
DOUBLECLICK 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.
13
SECTION 7
MISCELLANEOUS
7.1 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 DoubleClick, provided that Licensee
may assign this entire Agreement to any person or entity who purchases Licensee,
to a controlling interest in Licensee or to any wholly-owned subsidiary of
Licensee. 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. This Agreement shall be governed by the laws of the State of
New York, excluding conflict of laws provisions.
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) one (1) 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 DoubleClick 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. The License Agreement and this Agreement, including
all Exhibits attached thereto and 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 and may only be
modified or supplemented by a writing signed by both parties.
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.
DOUBLECLICK
Signature:_____________________________
Printed Name:__________________________
Title:_________________________________
Date Signed:___________________________
Licensee:
Signature:_____________________________
Printed Name:__________________________
Title:_________________________________
Date Signed:___________________________
14
SCHEDULE 1
[SUBJECT TO FURTHER REVIEW BY DOUBLECLICK]
SUPPORT HOURS: AdService 24 (24 hours a day - 7 days a week)
SUPPORT CONTACTS: Please List 5:
FEES:
Products License Date Annual Support Fee Annual Subscription Fee
-------- ------------ ------------------ -----------------------
Fees are payable annually in advance.
15
SCHEDULE 2
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Priority Criteria Response target within Resolution Target Solution
business hours
-----------------------------------------------------------------------------------------------------------------------------------
Production/Development 1 hour 24 hours- Workaround Fix incorporated into next
system down; Product Engineering working release, Fix or Workaround
1 unusable, resulting in round the clock if a incorporated into Knowledge
total disruption/product patch is required. Base*
outage
-----------------------------------------------------------------------------------------------------------------------------------
2 Major feature/function 4 hours 48 hours-Workaround Fix incorporated into next
failure: Operation Engineering working release, Fix or Workaround
severely restricted, no round the clock if a incorporated into Knowledge Base
convenient Workaround patch is required.
-----------------------------------------------------------------------------------------------------------------------------------
3 Minor feature/function 8 hours 10 business Fix incorporated into next
failure: Product does days-Workaround Fix release, Fix or Workaround
not operate as designed, delivered in next release incorporated into Knowledge Base
minor impact on usage
-----------------------------------------------------------------------------------------------------------------------------------
4 Minor problem: i.e., 8 hours Answer technical Incorporated into Knowledge
Documentation information requests. Base.
information enhancement Forward other issues to
request, etc. appropriate group,
(Sales/Marketing/Consulting)
-----------------------------------------------------------------------------------------------------------------------------------
*Knowledge Base: DataBase of solutions, frequently asked questions, and
technical application notes.
