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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
EXHIBIT 10.1
TECHNOLOGY LICENSE AGREEMENT
THIS TECHNOLOGY LICENSE AGREEMENT (the "Agreement") is made and entered
into as of March 28, 2001 (the "Effective Date"), by an among Inktomi
Corporation, a Delaware corporation, with its principal place of business at
0000 Xxxx Xxxxx Xxxxxx, Xxxxxx Xxxx, XX 00000 ("Licensor"), and e-centives,
Inc., a Delaware corporation, with its principal place of business at 0000
Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000 ("Licensee").
WHEREAS, the Licensee and the Licensor are parties to that certain Asset
Purchase Agreement dated as of January 18, 2001 (the "Purchase Agreement"),
pursuant to which Licensor has agreed to sell to Licensee certain software and
other assets related to Licensee's Commerce Product Business (as defined in the
Purchase Agreement), and to license to Licensee the source code of Licensor's
search solutions technology and related materials that are actively used in both
the Commerce Product Business and Licensee's other business;
WHEREAS, Licensor is duly qualified and authorized to grant such
license(s) and to provide related maintenance services and Licensee desires to
obtain such a license and receive such maintenance services; and
WHEREAS, it is a condition to closing the Purchase Agreement that
Licensor enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and obligations
set forth herein, the parties hereto agree as follows:
1 DEFINITIONS
When used herein with initial capitalizations, whether in the singular
or in the plural, the following terms shall have the following meanings:
"Commerce Engine" means that software and related technology and
documentation assigned to Licensee by Licensor pursuant to the Purchase
Agreement, including any future enhancements, modifications, and upgrades made
by Licensee to the Commerce Engine. Commerce Engine does not include the
Software or the Zeta Software.
"Commerce Product Software" means a software program or programs, that
is licensed and/or distributed externally as a licensed software product that
primarily provides commerce functionality or are primarily related to commerce.
Commerce Product Software includes Rockslide.
"Documentation" means all written materials (to the extent such written
materials exist) relating to the Licensee's use, installation or operation of
the Search Solutions Software, the IDP Proxy Software, and the Zeta Software in
connection with the Commerce Products Business or any Modification, Enhancement
or Update to either of the foregoing provided in accordance with this Agreement,
including, but not limited to, the application program interface and other
materials identified in Exhibit A, and any user manuals and documentation;
training manuals, documentation and lesson plans; program specifications; and
materials; file layouts and data models; design documents and specifications and
any other materials prepared in connection with any software Modification,
Enhancement or Update; any materials pertaining to the features, use,
functioning and operation of the software; implementation plans
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
and other documentation developed in connection with software installation
planning and acceptance or other test plans and documentation. Documentation
does not include: (i) any code of (a) the Search Solutions Software, (b) the IDP
Proxy Software, (c) the Zeta Software, or any (d) Modification, Enhancement or
Update to either of the foregoing; or (ii) the IDP.
"Enhancements" means any program, any part thereof, or any materials
that improves, adds to, or expands the capabilities and functionality of the
Licensed Technology. Enhancements do not include Modifications or Upgrades.
"IDP" means the Inktomi Data Protocol that is utilized to communicate
with the Software, the specification for which is referenced on Exhibit A.
"IDP Proxy Software" means Licensor's IDP proxy technology software that
is utilized in the Commerce Product Business as of the Effective Date, in both
source code and executable code format, identified on Exhibit A, and all
Enhancements or Upgrades thereto.
"Intellectual Property" or "Intellectual Property Rights" has the
meaning set forth in the Purchase Agreement.
"Licensed Technology" means the Search Solutions Software, the IDP Proxy
Software, the Zeta Software, IDP, and the Documentation.
"Maintenance and Support Services" means the full complement of tasks
and activities which Licensor is required to provide under Section 8 of this
Agreement with respect to the Licensed Technology.
"Modification" means those additions, changes, and modifications to the
functionality of the Licensed Technology which have been requested by the
Licensee and which will be provided by the Licensor under this Agreement.
"Modifications" do not include error corrections, bug fixes, patches, updates,
revised versions, new releases, Enhancements or Upgrades to the Licensed
Technology.
"Rockslide" means the productized version of the Commerce Engine which
would be licensed and/or distributed externally as a licensed software product.
"Search Solutions Software" means Licensor's search solutions technology
software that is utilized in the Commerce Product Business as of the Effective
Date, in both source code and executable code format, identified on Exhibit A,
and all Enhancements or Upgrades thereto.
"Software" means the IDP Proxy Software and the Search Solutions
Software.
"Upgrades" means improvements, error corrections, bug fixes and/or
patches in the Licensed Technology which relate to operating performance, but do
not change the basic function of the Licensed Technology. Upgrades do not
include Modifications or Enhancements.
"Zeta Software" means Licensor's reporting solutions technology software
utilized as part of the Commerce Product Business as of the Effective Date, in
both source and executable code format identified on Exhibit A, and all
Enhancements or Upgrades thereto.
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
2 LICENSE GRANT
2.1 Software/Commerce Engine Grant. Licensor hereby grants to Licensee a
nonexclusive, royalty-free, fully-paid up, perpetual, irrevocable, worldwide,
sublicensable right and license to use and copy the executable code of the
Software or any modifications or derivative works developed pursuant to this
Agreement for the purpose of the Licensee or authorized sublicensee internally
using, having third parties use in an application service provider ("ASP")
environment, installing, maintaining, modifying, enhancing, supporting, and
exploiting the operation of the Commerce Engine and making a reasonable number
of copies (not to exceed five (5), without the prior written consent of
Licensor) of the executable code versions of the Software for archival purposes.
Licensee shall not allow third parties it allows to access the Commerce Engine
in an ASP environment to have direct access to the Software. Licensee's rights
to sublicense the Software shall be conditioned as follows: (i) the Software
will be licensed with terms including those comparable to: (a) the License Grant
(Section 2); (b) the Confidentiality Section (Section 12); and (c) the
non-compete restrictions set forth in the Purchase Agreement (collectively
"Required Terms"); and (ii) Licensee shall be responsible for any uncured,
material breach by any sublicensee of the Required Terms if such breach involves
the Software sublicensed to such sublicensee by Licensee.
2.2 Zeta Software Grant. Licensor hereby grants to Licensee a
nonexclusive, royalty-free, fully-paid up, perpetual, irrevocable, worldwide
right, and license to use, sublicense and copy the executable code of Zeta
Software or any modifications or derivative works developed pursuant to this
Agreement for the purpose of using, installing, maintaining, modifying,
enhancing, supporting, and exploiting the operation of Licensee's business,
subject to the non-compete restrictions set forth in Section 6(d) of the
Purchase Agreement; and further, making a reasonable number of copies of the
executable code versions of the Zeta Software for archival purposes. Licensee's
rights to sublicense the Zeta Software shall be conditioned as follows: (i) the
Zeta Software will be licensed pursuant to the limitations of this Agreement and
non-compete restrictions set forth in Section 6(d) of the Purchase Agreement;
and (ii) Licensee shall use commercially reasonable efforts to enforce all such
obligations of such sublicensee(s) to the extent it relates to the Zeta Software
sublicensed to such sublicensee by Licensee.
2.3 Distribution Rights.
2.3.1 Licensee shall, in connection with the operation of the
Commerce Engine, subject to the non-compete restrictions set forth in Section
6(d), have the right: (i) to duplicate and distribute the executable code
versions of the Software for use at as many of the Licensee's, or any
third-party's, facilities and on as many of the Licensee's, or third-party's,
owned, leased, or controlled central processing units as the Licensee desires;
and (ii) to use independent contractors and consultants in the installation, use
and/or copying of the Software contemplated in Section 2.1 above.
2.3.2 Licensee shall, in connection with the operation of
Licensee's business, subject to the non-compete restrictions set forth in
Section 6(d) of the Purchase Agreement, have the right: (i) to duplicate and
distribute the executable code versions of the Zeta Software for use at as many
of the Licensee's, or any third-party's, facilities and on as many of the
Licensee's, or third-party's, owned, leased, or controlled central processing
units as the Licensee desires; and (ii) to use independent contractors and
consultants in the installation, use and/or copying of the Zeta Software
contemplated in Section 2.2 above.
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
2.3.3 Licensee shall have the right, in connection with the
distribution licenses set forth in Section 2.3.1 and 2.3.2 above, to duplicate,
modify, and distribute the applicable end user portions of the related
Documentation as mutually agreed by the parties, which agreement will not be
unreasonably withheld or delayed.
2.4 Software/Commerce Product Software Grant. Licensor hereby grants to
Licensee a nonexclusive, royalty-free, fully-paid up, irrevocable, perpetual,
worldwide right and license to use, copy, display, perform, distribute and
license to Licensee's end-user customers in executable code format the Software
(and related Documentation) and any derivative work of the Software developed by
Licensee in connection with Licensee's exploitation of Commerce Product Software
solely to the extent that: (i) the Software is distributed only as embedded in
the Commerce Product Software with no more than indirect access to the Software;
(ii) the Software is not a separately identified or accessible component of
Commerce Product Software; (iii) the Software is not separately licensed or
distributed; (iv) the Software is only utilized to provide product search
functionality within Commerce Product Software; (v) the Software is licensed
pursuant to terms which prohibit the reverse engineering, decompilation or other
activities utilized to discern the source code or functionality of the Software;
and (vi) in such licensing and/or distribution of the Software, customers are
not provided a copy of IDP or direct access to IDP.
2.5 IDP. Licensor hereby grants to Licensee a non-exclusive,
royalty-free, fully-paid-up, irrevocable, perpetual, worldwide right and license
to utilize (a) IDP in connection with the exercise of Licensee's rights pursuant
to Sections 2.1 and/or 2.4, provided, that, Licensor shall only disclose IDP to
employees and/or third party contractors: (i) who have a need to access or know
IDP in connection the exploitation of the rights contemplated under this Section
2.5; and (ii) who are bound in writing to maintain the confidentiality of IDP in
at least the same manner as Licensee utilizes to maintain its own source code
information or (b) duplicate and distribute that portion of the IDP necessary
for end users to use the Commerce Product Software as mutually agreed by the
parties, which agreement shall not unreasonably withheld or delayed.
2.6 Source Code Rights.
2.6.1 Software. Licensor hereby grants to Licensee a
non-exclusive, royalty-free, fully-paid up, irrevocable, perpetual, worldwide
right and license to reference and/or modify the source code versions of the
Software solely in connection with future development, use, and maintenance of
the Commerce Engine and/or development, use, and maintenance of Commerce Product
Software.
2.6.2 Zeta Software. Licensor hereby grants to Licensee a
non-exclusive, royalty-free, fully-paid up, irrevocable, perpetual, worldwide
right and license to reference and/or modify the source code versions of the
Zeta Software in connection with future development, use, and maintenance of the
Zeta Software for Licensee's business, subject to the non-compete restrictions
set forth in Section 6(d) of the Purchase Agreement.
2.6.3 Limitations. Licensee, with regard to any source code of
the Search Solution Software shall, in addition to any obligations set forth in
Section 12: (i) maintain the source code in a manner comparable to Licensee's
own most valuable trade secret information; and (ii) maintain not more than
three (3) copies of the source code in electronic or hard copy form; (iii)
maintain any copies of source code in a secure facility, in which access to such
facility and source code is logged, and that is only accessible by personnel who
meet the criteria set forth in this Section 2.6.3; (iv) load the source code
only
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
onto computers that are password and user id protected in a manner that permits
Licensee to track all users who access or attempt to access the computer, and
that are only accessible by Licensee's authorized personnel (as described in
this Section 2.6.3); and (v) only permit Licensee's employees and third party
contractors to access the source code who are: (a) required to access the source
code solely in connection with supporting Licensee's use and maintenance of the
Licensed Technology in accordance with the terms of this Agreement; and (b)
bound in writing to maintain the confidentiality of the source code in at least
the same manner as Licensee utilizes to maintain its own source code
information.
2.7 Trade Secret License. Licensor grants to Licensee a non-exclusive,
royalty-free, fully-paid-up, perpetual, irrevocable, worldwide right and license
to utilize any trade secrets incorporated in the Software and the Zeta Software
solely as such trade secrets are incorporated and/or utilized in the Software
and/or the Zeta Software. Nothing under this Section 2.7 shall be deemed to
grant any right or licenses in and to any or all patents and/or patent
applications of Licensor. The preceding sentence shall not limit the license
rights granted in the other provisions of this Agreement.
2.8 Reservation. Licensor reserves all rights in the Licensed Technology
not explicitly granted herein, and no license shall be implied in connection
this Agreement. Licensee shall include, without modification, any proprietary
notice or stamp that has been affixed by Licensor on all copies it makes of the
Licensed Technology and Documentation.
3 TERM OF LICENSE
The term of the licenses granted pursuant to Section 2 shall begin on
the Effective Date and be perpetual, unless terminated in accordance with
Section 13 below.
4 FEES
4.1 Generally. There shall be no additional consideration other than
that provided in the Purchase Agreement for the licenses granted to Licensee
herein.
4.2 Maintenance, Upgrades and Support Services. All charges for
Maintenance and Support Services are set forth in Section 8, and shall be
invoiced to Licensee at the beginning of the chargeable maintenance period.
Payment is due within sixty (60) days of the invoice date.
4.3 Incorrect Invoices. Licensee at its option may refuse payment on any
incorrect invoice, and may do so with no penalty, provided the Licensee notifies
Licensor within sixty (60) days of receipt of an incorrect invoice. Licensee may
elect to modify an invoice so that it is correct and pay it without forfeiting
its right to exercise nonpayment of incorrect invoices; however, Licensee is
under no obligation to modify an invoice and pay said corrected amounts.
Licensor shall issue corrected invoices or credits to correct invoicing errors.
4.4 Credits. Any credits due Licensee shall be applied by Licensor
against Licensor's invoices with appropriate information shown thereon or
attached. Any credits due Licensee that are not applied against Licensor's
invoices for any reason shall be paid to Licensee by Licensor within thirty (30)
days after request from Licensee. If the Licensee has not received such credits
within sixty (60) days of request, then Licensee may deduct such credits from
any other amounts owed to Licensor.
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
4.5 Taxes. Any taxes associated with this Agreement shall be paid by the
parties pursuant to the Purchase Agreement.
5 DELIVERY, SOURCE CODE ESCROW, AND INSTALLATION
5.1 Delivery. On or before the Closing (as defined in the Purchase
Agreement), Licensor shall deliver to Licensee the IDP Proxy Software and the
Zeta Software, in each case in both source code and executable code formats, the
executable code format of the Search Solutions Software, the specification for
IDP and the Documentation, all in a form and/or manner mutually agreed upon by
the parties. At any time after the Closing, upon Licensee's written request,
Licensor shall deliver to Licensee the source code format of the Search
Solutions Software.
5.2 Search Solutions Software Source Code Delivery. At Licensee's
written request, Licensor will deliver the source code for the Search Solutions
Software then in use by Licensee to: (i) Licensee; or (ii) a third party
software escrow company mutually agreed upon by the parties ("Escrow Company").
If Licensee requests that the source code of the Search Solutions Software be
delivered to an Escrow Company, the parties will enter into a three-party
software escrow agreement with terms including: (a) that the source code of the
Search Solutions Software will be released to Licensee upon Licensee's written
request; (b) that Licensee will bear the cost of maintaining the source code
escrow; (c) that to the extent Licensee fails to pay (and fails to cure such
default payment) for the source code escrow in accordance with (b), the source
code for the Search Solutions Software will be released to Licensor; (d)
Licensor will be obligated to provide updates to the escrowed source code in
accordance with its obligations under this Agreement; and (d) other mutually
agreed upon terms. If Licensee requests that Licensor enter into an source code
escrow relationship and subsequently enters into the escrow agreement, Licensor
shall deliver the source code for the Search Solutions Software to the Escrow
Company in accordance with the terms of this Section 5.2 and the escrow
agreement entered into by the parties.
5.3 Installation. If requested by Licensee, Licensor shall assist on a
consulting basis, with on-site installation support for the Software. Any
installation support provided pursuant to this Section shall be provided
pursuant to Section 8.
6 INTENTIONALLY LEFT BLANK
7 OWNERSHIP
7.1 By Licensor. Subject to the license rights granted herein, Licensor
retains ownership of the Licensed Technology, Upgrades and/or Enhancements and
any derivative works (excluding changes owned by Licensee pursuant to Section
7.2 or as otherwise provided in any written agreement between the parties) to
any of the foregoing, including all Intellectual Property rights therein.
7.2 By Licensee. Subject to Licensor's rights in the Licensed Technology
as delivered to Licensee and as set forth in Section 7.1, Licensee shall own
only the changes to the Licensed Technology that Licensee makes or has made
pursuant to Section 2 of this Agreement, including all Intellectual Property
rights therein. Except as set forth in the preceding sentence, nothing in this
Section 7.2 shall be deemed to grant Licensee any ownership rights in any
Licensed Technology, Upgrades and/or Enhancements or any derivative work of the
Licensed Technology, Upgrades and/or Enhancements. Licensor shall have no
liability or obligation to Licensee with respect to (or where the purported
liability
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
or obligation would not have arisen but for) any Licensee designed or coded
modifications to the Licensed Technology.
8 MAINTENANCE AND SUPPORT SERVICES
8.1 Maintenance and Support. Licensor shall provide to Licensee
technical support for the Licensed Technology using experienced and qualified
personnel. The nature of such maintenance and support services shall include, at
Licensee's request and without limitation: (i) answering technical, installation
or operational questions regarding the Software, Zeta Software and/or IDP; and
(ii) providing development support for the Software or Zeta Software. Licensee
acknowledges that most of Licensor's personnel who developed and support the
Zeta Software are likely to be employed by Licensee. As a result, Licensee
acknowledges that Licensor's ability to maintain, develop and provide support
for Zeta Software is dependant upon Licensor having qualified personnel to
maintain, develop and provide support for Zeta Software, which Licensor shall
have no obligation to maintain. Technical, installation or operations questions
and/or support shall be available via telephone, fax, or e-mail during the
Licensor's regular business hours of 9AM-5PM PST, excluding Licensor holidays,
or on-site at Licensee's reasonable request, and as mutually agreed, and
provided, that, Licensee pays Licensor's reasonable and documented travel and
living expenses related to the provision of such on-site support. Licensee may
request up to twenty (20) hours of support per calendar quarter, of which up to
ten (10) unused hours may be carried forward to the next calendar quarter
(collectively "Allotted Support Hours"). Licensor, in the exercise of its
commercially reasonable discretion, may refuse requests to further develop
and/or enhance the Software, the Zeta Software and/or IDP in excess of such
Allotted Support Hours. Licensee shall use commercially reasonable efforts to
ensure that any technical support requests are made by experienced and qualified
personnel who have experience with utilizing the Licensed Technology. Licensor
shall also at least twice per year provide Licensee with updates, Upgrades
and/or Enhancements to the Software (which will include source code and
executable code, except that it will only include executable code with respect
to the Search Solutions Software unless otherwise requested by Licensee in
writing). Licensor shall provide Licensee with an executive level contact to
which Licensee can escalate urgent support and/or maintenance concerns, and meet
with Licensee, at Licensee's request, at least once per quarter to discuss any
maintenance and support concerns. Licensor may modify such executive level
contact by providing Licensee written notice. Licensor shall respond to, and use
its reasonable efforts to correct, any material problems or errors identified by
Licensee in a reasonably prompt manner consistent with: (i) the severity of such
problem or error; and (ii) the obligations set forth in this Section 8.1.
8.2 Maintenance and Support Fees. The annual maintenance and support fee
for the services set forth in Section 8.1 shall be $***** plus reasonable travel
and living expenses, as previously approved by Licensee (as set forth in Section
8.1) for the Allotted Support Hours. Any support requested in excess of the
Allotted Support Hours per calendar quarter shall be billed at $**** per hour.
8.3 Term of Maintenance and Support. Licensor shall provide the
Maintenance and Support Services set forth in this Section 8, for a period of
two (2) years from the Effective Date. Upon expiration or termination of the
Maintenance and Support Services, any unused Allotted Support Hours shall
expire. After termination of the two (2) year period, the parties will negotiate
in good faith to continue maintenance and support on terms mutually agreed upon
by the parties.
9 PROFESSIONAL SERVICES
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
After the first two (2) years of this Agreement, upon mutual agreement
by Licensee and Licensor, Licensor shall develop any Modifications reasonably
requested by Licensee at prices and on terms and conditions to be mutually
agreed upon by the parties.
10 WARRANTIES
10.1 Zeta Software. The parties agree that, notwithstanding anything
to the contrary in this Agreement, the representations, warranties and covenants
set forth in the Purchase Agreement shall apply solely to the Zeta Software as
if the Zeta Software were a Transferred Intellectual Property (as defined in the
Purchase Agreement), provided, however, that Licensee shall have no liability
with respect to the Zeta Software whatsoever except with respect to the
non-competition restrictions set forth in the Purchase Agreement.
10.2 Ownership of Non-Zeta Technology. Except with regard to third
party software, if any, incorporated into Non-Zeta Software (as defined below)
Licensor warrants that it is either originally developed, or the legal owner of
the Licensed Technology and IDP and all related Documentation other than the
Zeta Software (the "Non-Zeta Technology"), and with respect to third party
software, if any, incorporated into the Non-Zeta Technology, has sufficient
rights and authority to grant Licensee the rights granted hereunder.
10.3 Non-Infringement of Non-Zeta Technology. Licensor warrants that
the Non-Zeta Technology provided hereunder does not infringe upon or violate any
third party patent, copyright, trade secret, or trademark. Licensor further
represents and warrants that, as of the Effective Date, there are no actual or
threatened suits by any third parties based upon an alleged violation by
Licensor of any such rights.
10.4 No Disabling Devices in Non-Zeta Technology. Licensor warrants
that it has used industry standard virus checking techniques to successfully
test the Non-Zeta Technology to determine if it contains any software viruses,
time bombs, logic bombs, trojan horses, trap doors or other malicious computer
instructions, intentional devices or techniques that can or were designed to
threaten, infect, assault, vandalize, defraud, disrupt, damage, disable or shut
down a computer system or any component of such computer system, including its
security or user data (hereinafter "Disabling Devices"). Licensor further
warrants that upon completion of such techniques that no Disabling Devices were
found. Upon Licensee's request, Licensor shall provide a master copy of the
Non-Zeta Technology to Licensee for comparison with and correction of the
Non-Zeta Technology in Licensee's custody or possession.
10.5 Software. Licensor warrants that the versions of the Software
provided by Licensor to Licensee pursuant to this Agreement are substantially
similar to the search software Licensor provides as part of Licensor's Internet
search services business.
10.6 Disclaimer. Except as explicitly set forth in this Agreement,
the Licensed Technology is provided "AS IS" with no warranties of any kind,
express or implied. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR
DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH
REGARD TO THE LICENSED TECHNOLOGY.
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
11 INTELLECTUAL PROPERTY INDEMNIFICATION
11.1 Indemnification. Licensor shall defend, indemnify and hold
harmless Licensee, its officers, agents, employees, assigns, and successors in
interest, or any of them, from and against all liability, damages, costs,
losses, claims, demands, attorneys' fees, and expenses, or any of them, that
arise out of or incur as a result of any third party claim that the Non-Zeta
Technology infringes or violates a third party patent, copyright, trademark or
misappropriates a third party trade secret. In the event that any portion of the
Non-Zeta Technology is determined, or in Licensor's judgment is likely to be
determined, by a court of competent jurisdiction to infringe the a third party
patent, copyright, trademark or misappropriate a third party trade secret, or if
use of any portion of the Non-Zeta Technology is legally enjoined based upon a
claim of infringement, Licensor shall, at its election and at is sole expense:
(a) procure on Licensee's behalf the right to continue using the Non-Zeta
Technology in accordance with the terms of this Agreement; (b) replace the
Non-Zeta Technology with non-infringing material capable of providing utility
equivalent to that required under this Agreement; or (c) modify the Non-Zeta
Technology to render it non-infringing.
11.2 Procedure. Licensor's indemnification obligations set forth in
Section 11.1 shall be contingent upon: (i) Licensor promptly notifying Licensee
of any such claim and provide reasonably requested assistance in Licensee's
defense of such claim at Licensee's expense; and (ii) Licensee tendering
complete control over the defense and settlement of any such claim to Licensor.
12 CONFIDENTIAL INFORMATION
12.1 The parties hereto agree to be subject to all terms and
conditions of that certain Mutual Confidentiality and Disclosure Agreement dated
November 27, 2000 ("NDA") in connection with all Confidential Information (as
defined in the "NDA" and modified herein) contemplated under this Agreement.
12.2 Confidential Information. In addition to that definition
provided in the NDA, "Confidential Information" shall include the source code
format of the Licensed Technology, IDP and any non-public, proprietary or
confidential information which has been identified in writing as being
proprietary or confidential, or if disclosed orally, identified as being
proprietary or confidential at the time of disclosure and which is provided by
one party to the other party pursuant to this Agreement.
12.3 Source Code for Search Solutions Software. In the event the
source code of the Search Solutions Software is placed in the public domain by a
third party who was not authorized or licensed by Licensor to make such public
disclosure, then such disclosure will not be deemed to create an exception to
Licensee's confidentiality obligations regarding such source code under the NDA.
13 DEFAULT AND TERMINATION
13.1 Licensor's Rights. In the event that Licensee materially
breaches a material term or condition of this Agreement, and fails to cure that
breach within a thirty (30) day period after receiving written notice from
Licensor of such breach (or such longer period as is reasonable if Licensee has
in good faith undertaken to effect such cure), Licensor may seek, as its sole
and exclusive remedy, injunctive relief or damages from Licensee for such
material uncured breach. In the event of a material
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
breach by Licensee of the Search Solutions Software source code licenses granted
under Section 2.6.1 or confidentiality obligations relating to the Search
Solutions Software source code under Section 12, that Licensee fails to cure
within a five (5) business day period after receiving written notice from
Licensor of such breach, Licensor may, in addition to any remedies at law or in
equity other than termination, seek immediate injunctive or other equitable
relief. In no event may Licensor terminate this Agreement.
13.2 Licensee's Rights. Licensee may terminate this Agreement at any
time by giving written notice to Licensor, in which case Licensee shall return
the Software and Documentation to Licensor. Licensor acknowledges that in the
case of its breach hereunder, the resulting damage to Licensee may be
substantial, and difficult, if not impossible, to determine. Licensee shall
thus, in addition to any other remedies at law or in equity, be entitled to
immediate injunctive or other equitable relief, including specific performance
of Licensor's obligations under this Agreement.
13.3 Effect of Termination. Sections 7, 11, 12, 13.3, 14, and 15
shall survive termination or expiration.
14 LIMITATION OF LIABILITY
14.1 GENERALLY. EXCEPT AS OTHERWISE SET FORTH IN SECTION 14.2, THE
PARTIES AGREE THAT, ANY BREACHES OF CONTRACT, REPRESENTATION, WARRANTY OR
COVENANT IN THIS AGREEMENT BY LICENSOR WILL BE SUBJECT TO THE PROCEDURES SET
FORTH IN SECTION 8 OF THE PURCHASE AGREEMENT AS IF IT WERE A BREACH OF A
REPRESENTATION, WARRANTY OR COVENANT OF THE PURCHASE AGREEMENT; PROVIDED, THAT,
FOR PURPOSES OF THIS AGREEMENT, THE DEDUCTIBLE ASSOCIATED WITH A CLAIM MADE
PURSUANT TO THIS SECTION 14.1 WILL BE WAIVED.
14.2 LICENSOR'S INDEMNIFICATION LIABILITY. LICENSOR'S TOTAL
CUMULATIVE LIABILITY UNDER THIS AGREEMENT UNDER THE INDEMNITY OBLIGATIONS OF
SECTION 11 SHALL NOT EXCEED ***** DOLLARS ($*****).
14.3 LICENSEE'S GENERAL LIABILITY/EXECUTABLE CODE LIABILITY. EXCEPT
FOR UNCURED MATERIAL BREACHES BY LICENSEE OF ITS OBLIGATIONS RELATING TO THE
SOURCE CODE OF THE SEARCH SOLUTIONS SOFTWARE, LICENSEE'S TOTAL CUMULATIVE
LIABILITY UNDER THIS AGREEMENT FOR UNCURED MATERIALS BREACHES BY LICENSEE OF ITS
OBLIGATIONS UNDER THIS AGREEMENT, AND/OR RELATING TO EXECUTABLE CODE OF THE
LICENSED TECHNOLOGY OR IDP SPECIFICATION SHALL NOT EXCEED ***** DOLLARS
($*****).
14.4 LICENSEE'S SOURCE CODE LIABILITY. LICENSEE'S TOTAL CUMULATIVE
LIABILITY UNDER THIS AGREEMENT FOR ANY REASON, INCLUDING, WITHOUT LIMITATION,
UNCURED MATERIAL BREACHES BY LICENSEE OF ITS OBLIGATIONS RELATING TO THE SOURCE
CODE OF THE SEARCH SOLUTIONS SOFTWARE, SHALL NOT EXCEED ***** DOLLARS ($******).
14.5 SOURCE CODE LIABILITY LIMITATION. NOTWITHSTANDING ANYTHING TO
THE CONTRARY, IN NO EVENT SHALL LICENSEE HAVE ANY LIABILITY WITH RESPECT TO THE
SOURCE CODE OF THE SEARCH SOLUTIONS SOFTWARE UNTIL SUCH TIME AS LICENSEE
RECEIVES A COPY OF THE SOURCE CODE FOR THE SEARCH SOLUTIONS SOFTWARE PURSUANT TO
SECTIONS 5.2 OR 8.1 OR ABOVE.
15 MISCELLANEOUS
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11
***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
15.1 Independent Contractors. All persons employed by Licensor in
performance of services hereunder shall be under the sole and exclusive
direction and control of Licensor and for no purpose shall they be considered
the employees of Licensee. Licensor shall remain at all times an independent
contractor and shall be responsible for and shall promptly pay all federal,
state, and municipal taxes, chargeable or assessed with respect to its
employees, including, but not by way of limitation, social security,
unemployment, federal, and state withholding, and other taxes.
15.2 Force Majeure. Neither party shall be responsible for delays or
failures in performance resulting from acts beyond their control. Such acts
shall include, but not be limited to, acts of God, strikes, lockouts, riots,
acts of war, epidemics, governmental regulations superimposed after the fact,
fire, communication line failures, power failures, earthquakes, or other
disasters.
15.3 Amendments, Modifications, or Supplements. Amendments,
modifications, or supplements, hereinafter "changes" to this Agreement are
permitted, provided (a) changes shall be in writing signed by the authorized
representatives of both parties; (b) changes shall reference this Agreement and
identify the specific articles or paragraphs contained herein which are amended,
modified, or supplemented; and (c) changes which add to or which conflict with
this Agreement shall be incorporated into this Agreement by adding or revising
the affected pages of this Agreement. The term "this Agreement" as used herein
shall be deemed to include any future amendments, modifications, and supplements
made in accordance herewith.
15.4 Assignment. Subject to the terms of the Purchase Agreement,
neither party may assign this Agreement without the prior written consent of the
other party, which consent shall not be unreasonably withheld, conditioned, or
delayed, except in the case of a merger, acquisition, or sale of all, or
substantially all, of the assets (pertaining to the subject matter of this
Agreement) of such party, in which case only notice is required.
15.5 Entire Agreement. This Agreement and those other documents
attached hereto or incorporated by reference, including the Purchase Agreement,
constitute the entire agreement between the parties with respect to the subject
matter contained herein, superseding all previous agreements pertaining to such
subject matter, and may be modified only by an amendment executed in writing by
both parties hereto. Notwithstanding anything to the contrary, this Agreement is
subject to the non-competition terms of the Purchase Agreement.
15.6 Signing Authority. EACH PARTY HEREBY WARRANTS AND REPRESENTS
THAT IT HAS FULL POWER AND AUTHORITY TO ENTER INTO AND PERFORM THIS AGREEMENT,
AND THAT THE PERSON SIGNING ON BEHALF OF EACH HAS BEEN PROPERLY AUTHORIZED AND
EMPOWERED TO ENTER INTO THIS CONTRACT. EACH PARTY FURTHER ACKNOWLEDGES THAT IT
HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT.
15.7 Notices. All notices or demands required to be given pursuant to
the terms of this agreement shall be given to the other party in writing,
delivered by hand, or registered, certified, or overnight mail (by a reputable
overnight carrier), at the addresses set forth below, or to such other address
as the parties may substitute by written notice given in the manner prescribed
in this paragraph.
In the case of Licensor:
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12
***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
Inktomi Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
In the case of Licensee:
e-centives, Inc.
0000 Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
Notices shall be deemed received on date delivered if delivered by hand
and on the delivery date indicated on receipt if delivered by certified or
registered mail.
15.8 Governing Law. This Agreement shall be governed by and construed
in all respects in accordance with the laws of the State of California, without
regard to its choice of law provisions. The parties agree to the jurisdiction
of, and venue in, the state and federal courts in the State of California.
15.9 Non-waiver. No delay or failure of either party in exercising
any right hereunder, and no partial or single exercise thereof, shall be deemed
to constitute a waiver of such right or any other rights hereunder. All waivers
must be in writing and signed by the party to be charged. Any waiver by either
party of any requirement hereunder shall be deemed to be a specific limited
waiver, and shall not be deemed to be a continuing waiver nor a waiver of any
other requirement hereof.
15.10 Severability. If any term or provision of this Agreement is held
to be unenforceable or in conflict with any laws, local statutes, or regulations
of any kind, either by arbitration or by court of law with competent
jurisdiction, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
15.11 Headings. The headings of the sections included in this
Agreement are inserted for convenience only and are not intended to affect the
meaning or interpretation of this Agreement.
15.12 Attorneys' Fees. In the event either party brings any action for
any relief, declaratory or otherwise, arising out of this contract, or on
account of any breach or default hereof, the prevailing party shall be entitled
to receive from the other party reasonable attorneys' fees and reasonable costs
and expenses, determined by the court sitting without a jury, which shall be
deemed to have accrued on the commencement of such action and shall be
enforceable whether or not such action is prosecuted to judgment.
15.13 Counterparts. This Agreement may be signed in counter-parts,
each of which taken together shall constitute the entire Agreement.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
IN WITNESS WHEREOF, the parties hereto have caused this License Agreement to be
executed by their duly authorized officer as of the day and year first above
written.
LICENSOR
INKTOMI CORPORATION
By:
---------------------------
Name:
-------------------------
Title:
------------------------
LICENSEE
E-CENTIVES, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
13
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***** Confidential Treatment has been requested for portions of this agreement.
The copy filed herewith omits information subject to the confidential treatment
request. Omissions are designated as [*****]. A complete version of this
agreement has been filed separately with the Securities and Exchange Commission.
EXHIBIT A
THE SEARCH SOLUTIONS SOFTWARE/IDP PROXY:
15.13.1 SEARCH CORE AND INDEX
A. SEARCH V.5.3.13 AND V6 (FROM SHERLOCK BRANCH)
*****
B. V.2.5.0.5 (BRASH VERSION)
*****
THE ZETA SOFTWARE:
FOLDER MAPPING NAME
NAME
*****
THE DOCUMENTATION:
As such exists.
IDP:
Inktomi Data Protocol Guide v1.1
14
