EXHIBIT 10.8.2
SOFTWARE LICENSE AGREEMENT
This Software License Agreement, including the exhibits and attachments
hereto (which exhibits and attachments are incorporated herein) (the
"Agreement"), is effective as of the Effective Date set forth below, between
Annuncio Software, Inc., a California corporation located at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("Annuncio"), and Netscape
Communications Corporation, a Delaware corporation located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and its wholly owned
subsidiaries (collectively "Netscape"), under which Annuncio grants Netscape
certain rights in software technology developed or licensed by Annuncio.
1. CERTAIN DEFINITIONS
"Collateral Materials" means promotional materials, logos, trademarks and
other advertising or marketing materials provided by Annuncio in connection with
this Agreement.
"Documentation" means end user and reference documentation for the Software
and any improvements, updates and modifications to such documentation during the
term of this Agreement.
"Object Code" means the machine-readable form of the Software.
"Software" means certain Annuncio software, as described in Exhibits A
attached hereto and incorporated herein, in Object Code and Source Code form,
and all Upgrades that now exist or are created during the term of this
Agreement.
"Source Code" means the human-readable form of the Software and, except for
the Documentation, all related source files, make files, file layouts,
instructions, control logic, flow charts, internal documentation, designs,
drawings, technical data and other documentation related to the Software.
"Upgrades" means any error corrections, bug fixes, updates, upgrades,
enhancements, ports, replacement or successor products and internationalized
and/or localized versions of the Software; provided, however, that Upgrades does
not include any new software module that is sold as an optional add-on (i.e.
that is not included when new customers purchase the then-current version of the
Software).
2. GRANT OF RIGHTS.
2.1 Object Code License. Annuncio hereby grants Netscape a worldwide,
perpetual, nonexclusive, non-sublicensable, royalty-free license to use,
reproduce, perform and display the Software, in Object Code form, and the
Documentation, in connection with marketing and/or other services on behalf of
Netscape and/or third parties.
2.2 Source Code License. Annuncio hereby grants Netscape a worldwide,
perpetual, nonexclusive, royalty-free license to [*] and the Documentation of
the Software, and
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
to use, reproduce, perform and display resulting Object Code and documentation
under the terms of Section 2.1. Netscape agrees to use version control software
and procedures to keep track of changes to Source Code of the Software. Netscape
will maintain an access log (on a per-project rather than per-access basis)
indicating who has accessed the Source Code and will provide Annuncio a copy of
that log as requested from time to time. Such log will be considered Proprietary
Information of Netscape. Netscape agrees to notify Annuncio prior to beginning
implementation of any changes to the Source Code (other than bug fixes) and
prior to putting any Netscape-modified version of the Software into production
use. Annuncio may request a design review regarding changes made by or on behalf
of Netscape to the Source Code of the Software.
2.3 Use of Subcontractors. Netscape may exercise the rights and licenses
granted under this Agreement through subcontractors; provided, that (i) such
subcontractors are bound by a confidentiality agreement with terms no less
restrictive than those contained in Section 10, and (ii) Netscape shall not have
the right to sublicense such rights or licenses.
2.4 No Obligation. Notwithstanding anything to the contrary in this
Agreement, nothing herein shall require Netscape to use the Software in
connection with any products or services, nor shall anything herein prohibit or
restrict Netscape from developing, licensing, acquiring or marketing
technologies competitive to the Software, provided that Netscape may not use
Proprietary Information of Annuncio to develop technologies competitive to the
Software.
3. MARKETING ACTIVITIES. During the initial term of this Agreement, the
additional marketing terms set forth in Exhibit C will apply, with such changes
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as may be required because of changes in Netscape's websites and promotional
programs over time.
4. PROPRIETARY RIGHTS. Annuncio retains title to the Software and
Documentation. Annuncio shall have no ownership interest in Netscape's products
or services. Title to any modifications, enhancements or improvements
("Modifications") to, or derivative works of, the Software or Documentation that
are developed by or for a party shall be reserved to and remain with the party
that developed or had developed such modification, enhancement, improvement or
derivative work; provided that Netscape may not distribute any derivative works
of the Software under this Agreement. Netscape grants Annuncio a worldwide,
perpetual, nonexclusive, royalty-free license to reproduce, modify, perform,
display and distribute Modifications made by or on behalf of Netscape to the
[*]; provided, however, that Netscape does not grant to Annuncio a license to
any Original Code Files (as defined below) that work with the Software solely
(1) through documented API's (whether or not such files are complied together
with the Software as a single executable) or (2) by utilizing the Software's
database. As used in the preceding sentence "Original Code Files" means [*]
files written by or on behalf of Netscape which do not contain any of the [*]
other than such [*] as is necessary for such files to work with the Software as
described in the preceding sentence. Netscape may distribute any such Original
Code Files, and any software derived therefrom, so long as Netscape removes all
of the [*] from the distributed version (e.g. Annuncio's header files may not be
included in products distributed by Netscape without Annuncio's written
permission). Netscape will provide Annuncio with a copy of the licensed
Modifications within five (5) days of putting the modified version of the
Software into production use. The parties acknowledge that Annuncio is under no
obligation to (i) include any
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
of the Modifications in future versions of the Software or Documentation; or
(ii) provide support or maintenance for the modified Software (except to the
extent that such modified Software is made available by Annuncio to other
customers).
5. SUPPORT, MAINTENANCE AND PROFESSIONAL SERVICES
5.1 Netscape and Maintenance of software. Annuncio agrees to provide
Netscape with the technical support and Upgrades with respect to the Software
and Documentation, as further described in Exhibit B.
5.2 Professional Services. Annuncio shall provide professional services to
Netscape employees, independent contractors and consultants in accordance with
the provisions set forth in Exhibit B.
6. PAYMENTS AND ACCOUNTING
6.1 Payments. In consideration of the rights granted under this Agreement
by Annuncio to Netscape, Netscape agrees to make payments to Annuncio as
provided in Exhibit B hereto.
6.2 Taxes. All prices are in U.S. Dollars and are exclusive of any
applicable taxes. The prices in this Agreement are for the Software (including
Documentation) only. Netscape shall be responsible for sales or use taxes
resulting from the granting of the licenses hereunder by Annuncio to Netscape
with respect to the Software, or Netscape shall provide Annuncio with an
appropriate exemption certificate. Annuncio shall be responsible for all other
taxes, assessments, permits and fees, however designated which are levied upon
this Agreement or the Software, except taxes based upon Netscape's net income
with respect to the Software. If any applicable law requires Netscape to
withhold amounts from any payments to Annuncio hereunder, (i) Netscape shall
effect such withholding, remit such amounts to the appropriate taxing
authorities and promptly furnish Annuncio with tax receipts evidencing the
payments of such amounts, and (ii) Netscape shall apply the reduced rate of
withholding provided by the applicable tax treaty after receiving, if required,
any applicable tax forms or local tax authority approvals necessary to apply any
reduced withholding tax rate. Each party shall cooperate with the other in
minimizing any applicable tax.
6.3 NAS Fee Waiver. Annuncio will not be required to pay license fees to
Netscape with respect to copies of Netscape Application Server software ("NAS")
used by Netscape in connection with the Software under this Agreement.
7. WARRANTIES AND INDEMNIFICATION
7.1 Title. Annuncio warrants that (i) it has the right to grant the
licenses as set forth in this Agreement, (ii) such licenses do not infringe on
any third parties' proprietary or personal rights, (iii) it owns or controls all
rights, title and interest in and to the Software, Documentation and Collateral
Materials, (iv) Netscape shall not be obligated to pay any fees or royalties for
use of the Software, Documentation or Collateral Materials other than as
specifically set forth in this Agreement, and (v) there are no pending or
threatened lawsuits concerning any aspect of the Software, Documentation or
Collateral Materials.
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7.2 Non-infringement. Without limiting Netscape's rights under
Section 7.7, should the Software, Documentation or Collateral Materials become,
or in Annuncio's opinion be likely to become, the subject of any infringement
claim or suit, Annuncio shall, at its option, (i) procure for Netscape the right
to continue exercising the rights granted under this Agreement, or (ii) modify
the Software, Documentation or Collateral Materials such that they no longer
infringe the proprietary rights of any third party, while maintaining their
functionality, look and feel.
7.3 Performance. Annuncio warrants during the term of this Agreement that
(i) the media on which the Software and Documentation are delivered will be free
of defects in material and workmanship, (ii) the Software will function [*], and
(iii) the Documentation shall be accurate in all material respects. Annuncio
shall have no obligation under the foregoing warranty for any non-conformance
caused by: (a) alteration, modification, or enhancement of the Software by
Netscape or its subcontractors other than Annuncio (unless such alteration,
modification or enhancement becomes part of a shipping Annuncio product); (b)
use of the Software for other than the intended purpose; (c) use of the Software
on any systems other than the specified hardware platform for such Software; (d)
Netscape's failure to incorporate any upgrades previously released by Annuncio
which corrects such non-conformance, unless such upgrades are properly rejected
by Netscape. The sole remedy for breach of this Section 7.3 is support and
maintenance as required under Exhibit B [*].
7.4 Export. Annuncio shall be responsible for obtaining any and all
necessary approvals, registrations or certifications for the international sale
or export of the Software. Annuncio shall inform Netscape and keep Netscape
apprised of the export approval status of the Software and must promptly inform
Netscape of any cryptographic technologies used or embedded within the Software,
and of any associated international restrictions.
7.5 Year 2000. Annuncio warrants that the Software is Year 2000 Compliant.
"Year 2000 Compliant" shall mean the Software complies with the following:
a) General Integrity: No value for the current date will interrupt
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normal operation: the system on which the Software operates returns the correct
date accurate to century in response to a request for current date, the Software
correctly provides date output and performs calculations on dates or portions of
dates, and the Software is unaffected by any value returned;
b) Date Integrity: Correct results are returned in the operation
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of all legal, arithmetic, logical and calendar operations of dates that span
century marks;
c) Explicit Century: The Software's internal date storage format
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explicitly includes the century and reporting formats allow date representations
in four digit format;
d) Implicit Century: On encountering data that does not include the
----------------
century either from transaction input or from an external data source, the
century value is unambiguously inferred by the Software.
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
7.6 DISCLAIMER. THE WARRANTIES PROVIDED BY ANNUNCIO HEREIN ARE THE ONLY
WARRANTIES PROVIDED BY EITHER PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY EITHER PARTY,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
7.7 Indemnity. Annuncio agrees to defend, indemnify and hold Netscape
harmless form all liabilities, costs, damages and expenses (including settlement
costs and attorney's fees) arising from third party claims alleging that
Netscape's exercise of its rights to the Software, Documentation or Collateral
Materials granted by Annuncio hereunder infringes any trademark, patent,
copyright, trade secret or other proprietary right of any third party. In
connection with such indemnification, Netscape will (i) promptly notify Annuncio
in writing of any such claim and grant Annuncio control of the defense and all
related settlement negotiations, and (ii) cooperate with Annuncio, at Annuncio's
expense, in defending or settling such claim; provided that if any settlement
results in any ongoing liability to, or prejudices or detrimentally impacts
Netscape, and such obligation, liability, prejudice or impact can reasonably be
expected to be material, then such settlement shall require Netscape's written
consent. In connection with any such claim, Netscape may have its own counsel in
attendance at all public interactions and substantive negotiations at its own
cost and expense. Notwithstanding anything contained in this Section 7.7,
Annuncio shall have no liability under this Section for any claim of
infringement based solely on (i) Modifications to the Software or Documentation
made by Netscape or by a third party contractor on behalf of Netscape, (ii) the
combination or use by Netscape of the Software with any materials not furnished
by Annuncio (other than materials required for use of the Software or materials
recommended by Annuncio), if such infringement would have been avoided by use of
the Software alone, or (iii) the incorporation into the Software or
Documentation by Annuncio of any materials provided by Netscape for such
purpose.
8. LIMITATION OF LIABILITY. EXCEPT FOR ANNUNCIO'S OBLIGATIONS AND LIABILITY
UNDER SECTION 7.7 AND SECTION 7.5, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR
ANY LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTIAL, OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO
THIS AGREEMENT OR THE TECHNOLOGY LICENSED HEREUNDER, WHETHER ARISING IN TORT
(INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, EVEN IF IT HAS BEEN INFORMED IN
ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. ANNUNCIO'S LIABILITY UNDER SECTION
7.5 SHALL NOT EXCEED THE AMOUNT OF THE PAYMENTS REQUIRED FOR THE INITIAL TERM
UNDER SECTION 1 OF EXHIBIT B.
9. TERM AND TERMINATION
9.1 Term. Unless earlier terminated pursuant to the provisions of
Subsections 9.2 or 9.3, the term of this Agreement shall continue until one (1)
year from acceptance by Netscape of the final milestone delivery under
Exhibit A. Netscape may elect to extend the term for additional successive one
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(1) year periods thereafter by providing notice of renewal prior to expiration
of the then current term.
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9.2 Termination for Cause. Either party shall have the right to terminate
this Agreement upon a material breach by the other party of any of its material
obligations under this Agreement, unless within thirty (30) calendar days after
written notice of such default such party remedies such breach. Netscape may
also terminate this Agreement as described in Section 1.3 of Exhibit A, with no
cure period beyond the procedure specified therein.
9.3 Termination other than for Cause. [*]. If Netscape terminates
under this Section 9.3 prior to the final Milestone Payment (as defined in
Exhibit B), its license under this Agreement shall not survive such termination.
9.4 Cancellation Fee and Support and Maintenance Terms. If Netscape
terminates this Agreement under Section 9.3 prior to acceptance of the Beta 1
milestone under Exhibit A, Netscape shall pay Annuncio a cancellation fee of [*]
and Section 2 of this Agreement shall survive for three (3) months following
termination. If Netscape terminates this Agreement under Section 9.3 after
acceptance of the Beta 1 milestone under Exhibit A, but prior to acceptance of
the final milestone delivery under Exhibit A, Netscape shall pay Annuncio a
cancellation fee of [*] and Section 2 of this Agreement shall survive for six
(6) months following termination. In either case, Annuncio will continue to make
Upgrades available to Netscape so long as Section 2 survives and, to the extent
that it makes a version of the Software GA during such time, will fulfill its
other support and maintenance obligations.
9.5 Survival after Termination or Expiration. Sections
1,4,6.2,7,8,9.4,9.5,10 and 11 shall survive the termination or expiration of
this Agreement for any reason. Section 2 shall survive (i) the expiration of
this Agreement, (ii) any termination of this Agreement by Netscape under Section
9.3 that is effective after payment of the final Milestone Payment (as defined
in Exhibit B), or (iii) any termination of this Agreement by Netscape under
Section 9.2 other than termination under Section 1.3 of Exhibit A. Provisions of
other Sections and Subsections which, by their nature, must remain in effect
beyond the termination or expiration of this Agreement shall survive.
10. CONFIDENTIALITY
10.1 Confidential Information. Each party (the "Receiving Party")
understands that the other party (the "Disclosing Party") has disclosed or may
disclose information of a confidential nature including, without limitation,
computer programs, code, algorithms, names and expertise of employees and
consultants, know-how, formulas, processes, ideas, inventions (whether
patentable or not), schematics and other technical, business, financial and
product development plans, forecasts, strategies and information ("Proprietary
Information"). All Proprietary Information disclosed in tangible form by the
Disclosing Party shall be marked "confidential" or "proprietary" and all
Proprietary Information disclosed orally or otherwise in intangible form by the
Disclosing Party shall be designated as confidential or proprietary at the time
of disclosure.
10.2 Disclosure and Use. The Receiving Party agrees (i) to hold the
Disclosing Party's Proprietary Information in confidence and to take all
necessary precautions to protect
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[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
such Proprietary Information (including, without limitation, all precautions the
Receiving Party employs with respect to its own Proprietary Information), (ii)
not to divulge any such Proprietary Information or any information derived
therefrom to any third person, except independent contractors under an
obligation of confidentiality and with a need to know for purposes authorized
under this Agreement, (iii) not to make any use whatsoever at any time of such
Proprietary Information except as authorized under this Agreement, and (iv) not
to remove or export any such Proprietary Information from the country of the
Receiving Party except as may be allowed by applicable export laws. The
Receiving Party shall limit the use of and access to the Disclosing Party's
Proprietary Information to the Receiving Party's employees, attorneys and
independent contractors under an obligation of confidentiality and restricted
use who need to know such Proprietary Information for the purposes authorized
under this Agreement. The Receiving Party shall treat the Proprietary
Information with at least the same degree of care and protection as it would use
with respect to its own proprietary information. The foregoing obligations shall
survive for a period of five (5) years from the date of disclosure of the
Proprietary Information. Without granting any right or license, the Disclosing
Party agrees that the foregoing shall not apply with respect to information that
the Receiving Party can establish (i) is in the public domain and is available
at the time of disclosure or which thereafter enters the public domain and is
available, through no improper action or inaction by the Receiving Party or any
affiliate, agent or employee, or (ii) was in its possession or known by it prior
to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by
another person without restriction, or (iv) is independently developed by the
Receiving Party without access to such Proprietary Information, or (v) is
required to be disclosed pursuant to any statutory or regulatory authority,
provided the Disclosing Party is given prompt notice of such requirement and the
scope of such disclosure is limited to the extent possible, or (vi) is required
to be disclosed by a court order, provided the Disclosing Party is given prompt
notice of such order and provided the opportunity to contest it.
10.3 Independent Development. The terms of confidentiality under this
Agreement shall not be construed to limit either party's right to independently
develop or acquire products without use of the other party's Proprietary
Information. Further, Proprietary Information as defined in Section 10.1 above
shall not include the Residuals resulting from access to such Proprietary
Information. The term "Residuals" means information in intangible form which may
be retained in the unaided memories of Receiving Party's employees or
independent contractors who have had access to the information. An employee's or
contractor's memory will be considered to be unaided if the employee has not
intentionally memorized the Proprietary Information for the purpose of retaining
and subsequently using or disclosing it. Neither party shall have any obligation
to limit or restrict the assignment of such persons or to pay royalties for any
work resulting from the use of Residuals. However, the foregoing shall not be
deemed to grant to either party a license under the other party's copyrights or
patents.
10.4 Return of Proprietary Information. Upon any termination or expiration
of this Agreement each party will destroy or return to the other party (at the
other party's option) all tangible copies of the other party's Proprietary
Information, except for Proprietary Information to which the Receiving Party has
the right to use following termination.
10.5 Confidentiality of Agreement. Each party agrees that the terms of this
Agreement shall be deemed Proprietary Information of the other party, provided
that in addition
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to the permitted disclosures under Section 10.2, either party may disclose the
terms of this Agreement (i) if required to do so by law or generally accepted
accounting principles, (ii) as required to assert its rights hereunder, and
(iii) to its own directors, employees, attorneys, accountants, and other
advisors on a "need to know" basis and under an obligation of confidentiality no
less stringent than set forth herein. Each party agrees that the Disclosing
Party will be given prompt notice of any disclosure made pursuant to clause (i)
or (ii) above, and that any such disclosure shall be limited to the extent
possible. In addition, Netscape may disclose the terms of this Agreement or
matters relating thereto to its Affiliates.
11. GENERAL
11.1 Dispute Resolution. Any dispute hereunder will be negotiated between
the parties commencing upon written notice from one party to the other.
Settlement discussions and materials will be confidential and inadmissible in
any subsequent proceeding without both parties' written consent. If the dispute
is not resolved by negotiation within 45 days following such notice, the parties
will refer the dispute to non-binding mediation conducted by JAMS/Endispute in
Santa ▇▇▇▇▇ County, California (the "Venue"). The parties will share the costs
of mediation. If the dispute is not resolved after forty-five (45) days of
mediation, the parties will refer the dispute to binding arbitration by
JAMS/Endispute in the Venue. The results of any arbitration will be final and
non-appealable, except that either party may petition any court of competent
jurisdiction in the Venue to review any decision relating to intellectual
property matters (including the scope of license rights), vacating or modifying
erroneous conclusions of law or findings of fact not supported by substantial
evidence. The arbitrator may fashion any legal or equitable remedy except
punitive or exemplary damages, which both parties hereby waive. The arbitrator
will render a written decision, which may be entered in and enforced by any
court of competent jurisdiction, but which will have no preclusive effect in
other matters involving third parties. The losing party will pay the costs of
the arbitration and the reasonable legal fees and expenses of the prevailing
party, as determined by the arbitrator. The parties will jointly pay arbitration
costs pending a final allocation by the arbitrator. At any point in the dispute
resolution process, either party may seek injunctive relief preserving the
status quo pending the outcome of that process. Except as noted, the parties
hereby waive any right to judicial process. California law, without regard to
its conflict-of-law provisions, will govern this Agreement. The U.S. Arbitration
Act and JAMS/Endispute rules will govern the arbitration process. Absent
fraudulent concealment, neither party may raise a claim more than 3 years after
it arises or any shorter period provided by applicable statutes of limitations.
11.2 Entire Agreement. This Agreement, including the exhibits and
attachments referenced on the signature page hereto, constitutes the entire
Agreement and understanding between the parties and integrates all prior
discussions between them related to its subject matter. No modification of any
of the terms of this Agreement shall be valid unless in writing and signed by an
authorized representative of each party.
11.3 Assignment. Neither party may assign any of its rights or delegate any
of its duties under this Agreement, or otherwise transfer this Agreement without
the prior written consent of the other party, except in connection with a
merger, reorganization or sale of substantially all assets of such party related
to this Agreement. Any attempted assignment, delegation or transfer in
derogation hereof shall be null and void. This Agreement shall apply to
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and bind any permitted successor or assigns of the parties hereto. All Netscape
business units, groups and divisions may continue to exercise the rights granted
under this Agreement following any transfer of such groups to separately owned
entities (through reorganization, sale of assets or otherwise). The parties
acknowledge that Netscape has entered into an agreement (the "AOL Agreement") to
be acquired by America Online, Inc. ("AOL"). The rights granted under this
Agreement may be transferred in connection with the AOL Agreement, but shall not
be expanded to include other business currently operated by AOL (e.g. the
Netcenter business unit may continue to exercise rights under this Agreement,
but the ▇▇▇.▇▇▇ business unit may not exercise rights under this Agreement).
11.4 Notices. All notices required or permitted hereunder shall be given in
writing addressed to the respective parties as set forth below and shall either
be (i) personally delivered, (ii) transmitted by postage prepaid certified mail,
return receipt requested, or (iii) transmitted by nationally-recognized private
express courier, and shall be deemed to have been given on the date of receipt
if delivered personally, or two (2) days after deposit in mail or express
courier. Either party may change its address for purposes hereof by written
notice to the other in accordance with the provisions of this Subsection. The
addresses for the parties are as follows:
Annuncio: Netscape:
Annuncio Software Netscape Communications Corporation
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: President Attn: General Counsel
11.5 Force Majeure. Neither party will be responsible for any failure to
perform its obligations under this Agreement due to causes beyond its reasonable
control, including but not limited to acts of God, war, riot, embargoes, acts of
civil or military authorities, fire, floods or accidents.
11.6 Waiver. The waiver, express or implied, by either party of any breach
of this Agreement by the other party will not waive any subsequent breach by
such party of the same or a different kind.
11.7 Headings. The headings to the Sections and Subsections of this
Agreement are included merely for convenience of reference and shall not affect
the meaning of the language included therein.
11.8 Independent Contractors. The parties acknowledge and agree that they
are dealing with each other hereunder as independent contractors. Nothing
contained in this Agreement shall be interpreted as constituting either party
the joint venturer, employee or partner of the other party or as conferring upon
either party the power of authority to bind the other party in any transaction
with third parties.
11.9 Severability. In the event any provision of this Agreement is held by
a court or other tribunal of competent jurisdiction to be unenforceable, such
provision shall be reformed
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only to the extent necessary to make it enforceable, and the other provisions of
this Agreement will remain in full force and effect.
11.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. For purposes hereof, a
facsimile copy of this Agreement, including the signature pages hereto shall be
deemed to be an original. Notwithstanding the foregoing, the parties shall
deliver original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
11.11 Beneficiary. For the purposes of this Agreement, Annuncio shall be
deemed to be a third party beneficiary of all confidentiality agreements
contemplated by Sections 2.3, 10.2 and 10.5; provided, however, that Netscape is
not required to identify Annuncio as such therein and is not required to
disclose such agreements to Annuncio except as may be necessary in connection
with a bona fide dispute regarding Annuncio's Source Code; provided, further,
that nothing in this Section 11.11 shall operate to expand Annuncio's ability to
receive access to privileged communications or privileged work product.
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ANNUNCIO: NETSCAPE:
Annuncio Software, Inc. Netscape Communications Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- ----------------------------------
Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: President & CEO Title: VP, Netcenter Development
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Effective Date: 12/23/98
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Exhibit A: Software
Attachment A1: Software Functionality
Exhibit B: Payments & Support
Attachment B1: Support Obligations
Exhibit C: Marketing Activities / Promotions for Initial Term
EXHIBIT A
Software
1. SOFTWARE
1.1 Definition of Software. The Software is a campaign automation solution
that includes Annuncio Campaign Servers, Annuncio Mailcasters and Annuncio
Clients. Version 1.0 of the Software will include the functionality indicated on
the attached Attachment A-1.
1.2 Development Milestones / Delivery. Annuncio will deliver the Software
to Netscape in accordance with the schedule indicated below:
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Due Date Milestone Deliverable Recommended Usage
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Effective Date Contract signed Pilot version of Software Netscape experimentation and
training.
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1/25/99 Beta 1 Pilot plus the following - Ad-hoc campaigns
- HTML email
- Support for Oracle DB on
Sun Solaris
- Support for NAS on Sun
Solaris
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3/8/99 Beta 2 Complete functionality as Additional Campaigns
defined in Attachment A-1
tested to beta quality
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4/22/99 GA Annuncio Version 1.0 Production
- All Campaigns
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The parties acknowledge that the schedule listed above is based on the
following material assumptions: (1) Annuncio will have access to a Netscape
engineer familiar with NAS, up to one half time equivalent, to the extent needed
for assistance with NAS configuration and testing of
scalability/load/reliability, through GA acceptance; and (2) Annuncio will have
access to a Netscape laboratory and equipment, up to one business day per week,
for testing of scalability/load/reliability, through GA acceptance; Annuncio may
have such additional access to such laboratory and equipment as may be
reasonably necessary to install software and set up the testing environment.
Access to the Netscape laboratory and equipment will be on an escorted basis and
will be subject to Netscape's security requirements applicable to such facility.
Access must be scheduled at least one (1) week in advance.
Annuncio will deliver the Source Code for the GA version of the Software
within five (5) days following receipt of the fee associated with the GA
milestone (under Exhibit B). For subsequent Upgrades, Annuncio will provide
Source Code with each delivery of Object Code.
A-1
1.3 Acceptance Procedure. Prior to delivering the Software to Netscape,
Annuncio shall conduct quality assurance testing of the Software, including
quality assurance testing of the issues described in Section 7.5 of the
Agreement to ensure that the Software is Year 2000 Complaint. By each milestone
indicated above, Annuncio shall deliver to Netscape the following: (i) the
indicated version of the Software in Object Code form; and (ii) all test cases,
results and libraries used by Annuncio in conducting the quality assurance
testing of the Software described in the preceding sentence; and (iii) test
cases which will allow Netscape to perform regression testing for each of the
major areas of functionality of the Software (which areas of major functionality
shall be mutually agreed upon by the parties). Within the Testing Period (as
defined below), Netscape or its designee shall test the Software to determine
whether the Software is reasonably acceptable to Netscape, including determining
whether the Software conforms to the specifications for the Software in
Attachment A-1 (in the case of Beta 2 and GA code) and applicable end-user
documentation ("Specifications"). If Netscape accepts such version of the
Software, Netscape shall provide Annuncio with written notice that Netscape has
accepted such version; failure to provide notice of rejection within such thirty
(30) day period shall be deemed to be acceptance. If Netscape rejects such
version of the Software, Netscape shall notify Annuncio of rejection in writing,
including a clear statement of the reason(s) for rejection, and Annuncio shall
redeliver the corrected Software as soon as commercially practicable, but in any
event no later than thirty (30) days after the date Netscape provided Annuncio
with notice of rejection. In the event Annuncio does not redeliver the Software
within the time frame set forth in the preceding sentence or Netscape again
rejects the Software, Netscape may request that Annuncio correct and redeliver
the Software in accordance with the procedure set forth above until Netscape
accepts the Software, or Netscape may terminate this Agreement, effective
immediately. If Netscape terminates in such case, Netscape shall have no
obligation to make payments to Annuncio under this Agreement; provided, however,
that the payment associated with the Beta 2 milestone (under Exhibit B) is non-
refundable and rejection of the GA milestone would not eliminate Netscape's
obligation to make such Beta 2 milestone payment if the Beta 2 milestone had
been accepted and payment not yet made.
As used in the above section, "Testing Period" means fifteen (15) days
after the later of actual delivery and scheduled delivery, in the case of the
Beta 1 milestone, and thirty (30) days after the later of actual delivery and
scheduled delivery, in the case of the Beta 2 milestone and the GA milestone.
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Software Functionality
[*]
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT B
Payments and Support
1. PAYMENTS
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Due Date Milestone Payment
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Thirty (30) days following [*]
Netscape acceptance of Beta 2 of
Version 1.0 of the Software
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Thirty (30) days following [*]
Netscape acceptance of final
(GA) milestone of Version 1.0 of
the Software
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For each one year extension to this Agreement, Netscape will pay the
applicable support/maintenance fee indicated in Attachment B-1, due within 30
days following the start of such extension.
2. SUPPORT AND MAINTENANCE.
2.1 Technical Support of Netscape. During the term of this Agreement:
A. Annuncio shall appoint a technical contact to whom Netscape may
address all technical questions relating to Annuncio technologies. Upon
execution of this Agreement, the parties shall determine a mutually agreeable
procedure by which Netscape shall direct its technical questions to the
appropriate Annuncio technical contact.
B. Annuncio shall promptly answer all technical questions asked by
Netscape relative to the Software.
C. During the development phase of Version 1.0 of the Software (i.e.
prior to acceptance of GA), Annuncio will provide Netscape with up to one-half
full time equivalent support services engineer, primarily on-call with on-site
as necessary. In addition, for a period of one year following acceptance of the
GA milestone under Exhibit A, Annuncio will, for each major release of the
Software, provide two (2) days of on-site installation and/or upgrade services
at such times as Netscape designates and without cost to Netscape. Such
installation and/or upgrade services shall occur at Netscape's Mountain View,
California facilities.
D. Beginning with the final milestone acceptance by Netscape under
Exhibit A, Annuncio shall provide to Netscape support and maintenance services
consistent with the support obligations described on Attachment B-1 hereto, with
respect to the Software including, without limitation, identification of
defective Software object code and providing corrections, workarounds and/or
patches to correct defects or errors in such object code.
B-1
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
E. Netscape will secure its own internal technical support for NAS
as needed.
F. Annuncio's support and maintenance of Source Code is limited to
Section 4 of Attachment B-1. Annuncio has no obligation to support Object Code
of modules that have been modified by Netscape through changes in Source Code,
unless such modified versions have been incorporated into shipping Annuncio
products. For errors Netscape encounters in unsupported modified modules,
Netscape will receive support if it can reproduce the error in the standard
version of the module.
G. Fees for support and maintenance services provided by Annuncio
are detailed in Attachment B-1.
2.2 Upgrades. Annuncio will include Netscape in its alpha and beta
programs during the term for any Upgrades, and will provide Netscape with the
production version of such Upgrades of the Software simultaneously with its
earliest release of such Upgrades to other customers.
2.3 Additional Services. In addition to support and maintenance services
included in the payments under this Agreement, Annuncio will be available to
assist in special projects or to perform custom development on behalf of
Netscape at a rate of: (i) [*] per day for projects started prior to
acceptance of the GA milestone, (ii) [*] per day for projects started during
the remainder of the initial term of this Agreement, and (iii) at a rate to be
determined thereafter based on volume requirements.
B-2
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
ATTACHMENT B-1
Support Obligations
Annuncio shall provide to Netscape support and maintenance services
consistent with the following:
1. DEFINITIONS
1.1 "Error" means any instance where a product or update or upgrade to a
product does not substantially conform to its documented features and
specifications.
1.2 "Workaround" means a method by which a user of a product can, by
making a limited number of procedural or programming changes in a product,
prevent the occurrence or re-occurrence of an Error. Programming changes include
adjustments to set-up and configurations files or other settings that do not
require recompilation.
1.3 "Respond" means and includes: taking and logging the Error call; in
the case of Priority 1 Errors, providing to Netscape an action/resolution plan
within four (4) hours of initial call receipt and acknowledgment; and, in cases
of Priority 1 and 2 Errors, making best efforts on a continuing basis to cure
the Error until the Error is cured.
2. OBLIGATIONS
2.1 Error Reporting. Errors may be reported on a 24 hours per day, 365 day
per year basis. During normal business hours, Annuncio's technical staff shall
be available to receive error reports directly from Netscape by telephone.
Outside of normal business hours, Netscape may report errors by pager,
electronic mail, voice mail, fax or telephonic recording capability. Annuncio
shall provide Netscape with a telephone number which will forward messages to a
pager that will be carried by an appropriate Annuncio on-call support person at
all times and which Netscape may use to report errors at any time.
2.2 Support Requests. Annuncio will Respond and use best efforts to
correct or provide a Workaround to Priority 1 and Priority 2 Errors that
Netscape identifies, classifies and reports; and will use reasonable commercial
efforts to Respond to other Errors within the time frames set forth below.
Timeframe for Regular Technical Support and Maintenance
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Notification Mechanism Target
Priority & Required Time Status Repair
Error Title and Explanation to Respond Reports Time
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1 Fatal Error--No useful work can be done. Voice or Pager: [*] [*] [*]
(during regular business hours)
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2 Severe Impact--Functionality disabled. Voice or Pager: [*] [*] [*]
Errors which result in a lack of (during regular business hours)
application functionality or cause
intermittent system
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B-1-1
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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Notification Mechanism Target
Priority & Required Time Status Repair
Error Title and Explanation to Respond Reports Time
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failure.
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3 Degraded Operations--Errors causing Voice or Pager: [*] [*] [*]
malfunction of non-critical functions. Email: [*]
business day coverage
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4 Minimal Impact--Attributes and/or options Voice or Pager: [*] [*] [*]
to utility programs do not operate as Email: [*]
stated. business day coverage
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5 Enhancement Request. Any: [*] [*] [*]
business day coverage
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Timeframe for 7x24 Technical Support and Maintenance
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Notification Mechanism Target
Priority & Required Time Status Repair
Error Title and Explanation to Respond Reports Time
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1 Fatal Error--No useful work can be done. Voice or Pager: [*] [*] [*]
7X24 coverage
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2 Severe Impact--Functionality disabled. Voice or Pager: [*] [*] [*]
Errors which result in a lack of application 7X24 coverage
functionality or cause intermittent system
failure.
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3 Degraded Operations--Errors causing Voice or Pager: [*] [*] [*]
malfunction of non-critical functions. Email: [*]
business day coverage
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4 Minimal Impact--Attributes and/or options to Voice or Pager: [*] [*] [*]
utility programs do not operate as stated. Email: [*]
business day coverage
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5 Enhancement Request. Any: [*] [*] [*]
business day coverage
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3. SUPPORT AND MAINTENANCE FEES. Fees for support and maintenance services are
described below. After the initial term of this Agreement, the fees listed for
7X24 Support and Maintenance are subject to annual increases equal to the
greater of [*] or the rate of inflation for any extension terms. After the first
one (1) year extension of the term of this Agreement, the fees listed for
Regular Support and Maintenance will increase annually by the greater of [*] or
the rate of inflation for any additional extension terms. Requests for Scheduled
7X24 Support and Maintenance shall be made in writing at least two (2) weeks in
advance of the required service date; provided, however, that if the required
service period includes New Year's Day, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Day, President's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day or Christmas Day,
then such request must be made at least thirty (30) days in advance of such
holiday. Upon receipt of such notice, Annuncio will: (i) arrange for the
provision of such services to Netscape; and (ii) generate an invoice for such
services. Invoices for Scheduled 7X24 Support and Maintenance shall be due and
payable within thirty (30) days of receipt by Netscape.
B-1-2
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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Description Fee
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Regular Technical Support and Maintenance (during Annuncio Initial term: included in fee described in Section 1 of Exhibit B
business hours: 9:00 AM to 5:30 PM)
Each one year extension to the term: [*] for the first
extension, with increases as described above for any additional
extensions.
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7 X 24 Support and Maintenance (may be purchased on a Monthly: [*]
monthly, weekly or daily basis)
Weekly: [*]
Daily: [*] day -- Monday through Thursday
[*]/day -- Friday through Sunday and holidays
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4. SOURCE CODE. Source Code support and maintenance is not included in the
support and maintenance described and priced above. Source Code support and
maintenance will be provided as follows: Annuncio agrees to provide up to five
(5) days of engineering support free of charge for the initial term of this
Agreement. For the purposes of this provision, "engineering support" includes
any review of source code, setup of change control procedures, and other Source
Code specific activities. Additional days of engineering support are available
upon request by Netscape. Additional days will be billed to Netscape at a rate
of [*] per day. Annuncio has no obligation to support or maintain Source Code
that has been modified by Netscape.
B-1-3
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
EXHIBIT C
Marketing Activities / Promotions for Initial Term
Public Announcement. The parties will issue a joint press release announcing the
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Agreement, details to be mutually agreed prior to release.
Joint Speaking Opportunities. The parties will participate in [*] joint
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industry speaking opportunities in 1999, details to be mutually agreed.
Annuncio Customer Reference. Netscape will make [*] person available by
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phone to speak with press, analysts and customers about Netscape's experience
with Annuncio and the Software, [*] per month during the initial term of this
Agreement.
Netcenter Marketing Placements. Netscape agrees to provide Annuncio with up to
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[*]. Placement of [*] are subject to Netscape's standard terms for the
applicable service areas.
C-1
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.