EXHIBIT 10.1
iMediation Software License and Support Agreement
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This Software Site License and Support Agreement ("Agreement") is made on
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December 30, 1999 (the "Effective Date") by and between iMediation Inc, located
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at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("iMediation"), and Virtual
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Communities Inc, located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensee").
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In consideration of the mutual covenants and promises set forth hereafter, the
parties agree as follows:
1. Definitions.
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"Confidential Information" of a party means any information disclosed by that
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party to the other party pursuant to this Agreement which is in written,
graphic, machine readable or other tangible form and is marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential nature.
Confidential Information may also include oral information disclosed by one
party to the other pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure and is reduced to writing
by the disclosing party within a reasonable time (not to exceed thirty (30)
days) after its oral disclosure, and such writing is marked in a manner to
indicate its confidential nature and delivered to the receiving party during the
term of this Agreement.
"Documentation" means the user manuals, training materials, and operating
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materials, if any, iMediation provides to Licensee under this Agreement.
"Implementation Fees" means the fees Licensee must pay iMediation, as set forth
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under Section 6 and Exhibit C, to receive Implementation Services from
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iMediation.
"Implementation Services" means the implementation services Licensee may elect
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to receive from iMediation, as set forth in Section 5 and Exhibit C.
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"Installation Site" means the business premises owned or leased and operated
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solely by Licensee, or Licensee's external hosting site, which locations are
described in the iMediation Order Form.
"Intellectual Property Rights" means any trade secrets, patents, copyrights,
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trademarks, know-how, moral rights and similar rights of any type under the laws
of any governmental authority, domestic or foreign, including all applications
and registrations relating to any of the foregoing.
"License Fees" means the fees Licensee must pay iMediation, as set forth in
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Section 6, to license the Software from iMediation.
"Licensee Hardware" means all computers owned or controlled by Licensee and
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located at the Installation Site.
"Licensee Network" means Licensee's internal or externally hosted computer
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network, which is: (i) located at the Installation Site; (ii) comprised of
Licensee Hardware; and (iii) accessible only by Licensee employees and
contractors.
"Order Form" means any iMediation Technologies Order Form, with the initial
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order set forth in Exhibit A, and which is subject to the terms and conditions
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of this Agreement.
"Software" means the software programs, in object code format only, that
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Licensee purchases from iMediation under this Agreement pursuant to an Order
Form, and all Upgrades thereto provided by iMediation under Section 4.
"Software Support" means the software support, set forth in more detail in
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Exhibit B, that Licensee may elect to purchase from iMediation.
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"Software Support Plan" means the then-current software support plan, subject to
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payment of Support Fees, that iMediation makes generally available to its
customers and offers to Licensee hereunder. A copy of iMediation's Software
Support Plan, current as of the Effective Date, is set forth in Exhibit B.
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"Support Fees" means the fees Licensee must pay iMediation, as set forth under
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Section 6, to receive Software Support.
"Upgrades" will have the meaning set forth in Exhibit B
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"Virtual Community(ies)" shall mean a web site built and maintained by Licensee
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for which the Software is hosted by Licensee.
"Year 2000 Ready" means, with respect to the Software, when used in accordance
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with the Documentation, such Software is capable of correctly processing,
providing and/or receiving date data within and between the twentieth and
twenty-first centuries, provided that all other hardware, software, firmware and
other products used with such Software properly exchange accurate date data with
it.
All references in this Agreement to the "purchase" or "sale" of Software shall
mean the acquiring or granting, respectively, of a license to such Software.
iMediation Software License and Support Agreement
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2. License Grant.
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2.1 License Grant. iMediation hereby grants to Licensee, and Licensee's
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wholly owned subsidiaries, for the time period stated on Exhibit A, a
nonexclusive, worldwide, nontransferable license, without rights to sublicense,
to: (i) install the Software on Licensee Hardware; (ii) allow Licensee employees
and contractors to use the documentation and Software on Licensee Hardware or
through the Licensee Network only at the Installation Site; and (iii) reproduce
the Software and Documentation solely as necessary to support the use by
Licensee of the Software.
2.2 Restrictions. Licensee shall not cause or permit reverse engineering,
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disassembly, de-compilation, or make any attempt to discover the source code of
the Software. Licensee will not alter or impair any acknowledgment of copyright
or other intellectual property rights of iMediation that may appear in the
Software and Documentation. Subject to Exhibit A, Licensee shall not (i) permit
any third parties to use the Software, (ii) further distribute, assign or
resell the Software, other than in conjunction with Licensee's provision of the
Software service to Virtual Communities for consideration so long as the
Software is hosted by Licensee, (iii) rent, lease or loan the Software or (iv)
use the Software for commercial time-sharing or service bureau use for other
than the business purposes outlined in Exhibit A.
3. Ownership. Subject to Section 2.1, iMediation retains all right, title,
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and interest under its Intellectual Property Rights to the Software and the
Documentation. IMediation represents and warrants that it is the owner of the
Intellectual Property rights to the Software.
4. Support. Licensee may elect to receive Software Support and Upgrades under
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iMediation's then-current Software Support Plan, upon payment to iMediation of
the Support Fees. The initial annual Software Support Plan term shall commence
on the Effective Date of this Agreement.
5. Implementation Services. iMediation will provide Implementation Services
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to Licensee. subject to the terms of this Agreement and Exhibit A.
6. Delivery, Payment. All orders for Software, Software Support, and
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Implementation Services shall be placed by Licensee on an Order Form, which is
subject to acceptance by iMediation. Upon acceptance of such Order Form,
iMediation shall deliver the version of the Software identified on the Order
Form, in object code form only, within three (3) business days. Delivery shall
be F.O.B. iMediation's facility. iMediation shall invoice Licensee in
accordance with Exhibit A for : (i) the balance of the License Fees; (ii) the
balance of the initial Support Fees; and (iii) Implementation Fees due under
such Order Form. In addition, iMediation will invoice Licensee monthly for all
travel expenses (including transportation, meals, and lodging) which iMediation
reasonably incurs hereunder. IMediation shall review in advance the expenses
with Licensee's Business Development Director or such other person appointed by
Licensee prior to incurring such expenses. Licensee shall pay such invoices
pursuant to any payment terms stated on the applicable Order Form, or if payment
terms are not stated on the Order Form, within thirty (30) days of the invoice.
Any amounts due and not received by iMediation within such forty-five (45) day
period shall be subject to interest charges calculated at 1% per month.
7. Warranty. iMediation warrants to Licensee that the Software as initially
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delivered hereunder and Upgrades thereto, in unaltered form, will perform
substantially in accordance with the related Documentation for a period of one-
hundred-and-eighty (180) days from delivery thereof to Licensee (the "Warranty
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Period").
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Year 2000. In addition, iMediation represents and warrants that the Software is
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Year 2000 Ready.
This limited warranty does not cover loss or damage for any: (i) modification or
repair of the Software by Licensee or any third party other than iMediation;
(ii) failure or incompatibility of the Software with computer hardware or other
software not supplied by iMediation; or (iii) accident, neglect, failure of
electric power, storage or use in improper or adverse environmental conditions,
misuse, negligence, catastrophe, operator error, or causes other than ordinary
and intended commercial use. If Licensee notifies iMediation of the material
nonconformance of the Software with the Documentation during the Warranty Period
and if iMediation confirms such nonconformance, iMediation's entire liability
and Licensee's sole and exclusive remedy shall be, at iMediation's option, to
use best commercial efforts to : (i) correct or provide a bug fix, error
correction, or work around for documented reproducible nonconformance; (ii)
replace the Software; or (iii) terminate this Agreement and refund the fees paid
by Licensee for the Software. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7,
IMEDIATION DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH
RESPECT TO THE SOFTWARE, DOCUMENTATION, SOFTWARE SUPPORT AND ANY IMPLEMENTATION
SERVICES PROVIDED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
iMediation Software License and Support Agreement
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8. Indemnification.
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8.1 Indemnification. iMediation will defend any action brought against
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Licensee by a third party to the extent it is based on a claim that the
Software, Upgrades, or Documentation supplied by iMediation hereunder, when used
by Licensee as authorized under Section 2, infringes any third party copyright,
trade secret or other intellectual property right. iMediation will pay any
award against Licensee, or settlement entered into on Licensee's behalf, based
on such infringement. In connection therewith, Licensee shall use reasonable
efforts to, only if: (i) notifies iMediation promptly in writing of the claim;
(ii) provides reasonable assistance in connection with the defense and/or
settlement thereof, at iMediation's expense; and (iii) permits iMediation to
control the defense and/or settlement thereof. In the event of an infringement
action against iMediation with respect to the Software, or in the event
iMediation believes such a claim is likely, iMediation shall be entitled at its
option to (i) appropriately modify the Software, or substitute other Software
which, in iMediation's opinion, does not infringe any third party Intellectual
Property Rights; (ii) obtain a license with respect to the applicable third
party Intellectual Property Rights; or (iii) if neither (i) nor (ii) is
commercially practicable, terminate this Agreement and refund to Licensee the
License Fees received by iMediation under Section 6. THE FOREGOING STATES
LICENSEE'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF
THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
8.2 Limitations. iMediation will have no liability to Licensee under any
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provisions of this Section 8 to the extent that any infringement or claim
thereof is based upon: (i) modifications to the Software or Documentation made
by Licensee or a third party other than iMediation or (ii) the use of other than
the most current release of the Software, including Upgrades, or Documentation
delivered by iMediation to Licensee if such claim would have been prevented by
the use of the most current release made available to Licensee by iMediation,
and provided that iMediation has provided Licensee with Upgrades on a timely
basis. Notwithstanding anything contained in this Agreement, Section 8 states
iMediation's entire liability for actual or alleged infringement of Intellectual
Property Rights and iMediation shall have no additional liability with respect
to any alleged or proved infringement.
9. Limitation of Liability. IN NO EVENT SHALL IMEDIATION OR ITS SUPPLIERS OR
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LICENSORS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, OR INCIDENTAL
DAMAGES WHATSOEVER, WHETHER RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE
SOFTWARE, THE DOCUMENTATION, THE SOFTWARE SUPPORT, THE IMPLEMENTATION SERVICES
OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS,
BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF
IMEDIATION HAS BEEN ADVISED OF OR KNOWS OF THE POSSIBILITY OF SUCH DAMAGES. IN
NO EVENT WILL IMEDIATION'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS RELATING
TO THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, OR ANY SOFTWARE SUPPORT OR
IMPLEMENTATION SERVICES, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF
LIABILITY, EXCEED THE FEES PAID BY LICENSEE UNDER THIS AGREEMENT DURING THE
TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10. Term and Termination. The term of this Agreement will begin on the
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Effective Date and end on the Expiration Date unless earlier terminated pursuant
to this Section 10. Either party may terminate this Agreement upon thirty (30)
days written notice of a material breach of this Agreement if the breaching
party has not cured such breach within such thirty (30) day period. Licensee
may Terminate this Agreement after the conclusion of any annual license period
with 60days advance notice. Notwithstanding the foregoing, iMediation shall
have the right to immediately terminate this Agreement for any use by Licensee
of the Software or Documentation outside the scope of Section 2. Upon
termination of this Agreement, including Termination for Expiration of License,
Licensee shall immediately return to iMediation, or certify the destruction of,
all copies of the Software and Documentation in Licensee's possession or under
its control. The rights and obligations contained in Sections 1, 3, 7, 8, 9,
11, and 12, and all payment obligations incurred prior to the termination of
this Agreement, shall survive any termination of this Agreement.
11. Confidentiality. Each party shall treat as confidential all Confidential
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Information of the other party, shall not use such Confidential Information
except as set forth herein, and shall use reasonable efforts not to disclose
such Confidential Information to any third party. Without limiting the
foregoing, each of the parties shall use at least the same degree of care which
it uses to prevent the disclosure of its own confidential information of like
importance to prevent the disclosure of Confidential Information disclosed to it
by the other party under this Agreement. Each party shall promptly notify the
other party of any misuse or unauthorized disclosure of the other party's
Confidential Information. The foregoing restrictions will not apply to
information that: (i) is known to the receiving party at the time it receives
Confidential Information from the disclosing party; (ii) has become publicly
known through no wrongful act of the receiving party; (iii) has been rightfully
received by the receiving party from a third party authorized to make such
communication without
iMediation Software License and Support Agreement
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restriction; (iv) is generally furnished to third parties by the owner without a
similar restriction of the receiving party's right; (v) has been approved for
release by written authorization of the disclosing party; or (vi) is required by
law to be disclosed after written notification by the receiving party.
12. Miscellaneous.
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12.1 Assignment. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and assigns.
iMediation will have the right to assign this Agreement with prior written
notice to Licensee provided that the assignee assume all of iMediations
obligations under the terms of this Agreement. The Licensee may not assign any
of its rights or obligations hereunder without the prior written consent of
iMediation, which shall not be unreasonably withheld or delayed.
12.2 Notices. All notices permitted or required under this Agreement shall
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be in writing and shall be delivered in person or mailed by first class,
(The Agreement continues on the next page.)
iMediation Software License and Support Agreement
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registered or certified mail, postage prepaid, to the address of the party
specified in this Agreement or such other address as either party may specify in
writing. Such notice shall be deemed to have been given upon receipt.
12.3 Non-Waiver. No term or provisions hereof shall be deemed waived and
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no breach excused, unless such waiver or consent shall be in writing and signed
by the party claimed to have waived or consented. Any consent by any party to,
or waiver of a breach by the other, whether express or implied, shall not
constitute a consent to, waiver of, or excuse for any other different or
subsequent breach.
12.4 Independent Contractor. The parties' relationship shall be solely
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that of independent contractors, and nothing contained in this Agreement shall
be construed to make either party an agent, partner, representative or principal
of the other for any purpose.
12.5 General. This Agreement shall be governed by and construed under the
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laws of the State of New York , excluding its conflicts of law principles. The
parties exclude the application of the United Nations Convention on Contracts
for the International Sale of Goods if otherwise applicable. Licensee shall not
export, directly or indirectly, any products Software, Documentation, or
Upgrades to any country for which the U.S. Government or any agency thereof at
the time of export requires an export license or other approval without first
obtaining such license or approval. The Software and Documentation are
considered a "commercial item" as that term is defined at 48 C.F.R 2.101, or
"commercial computer software" and "commercial computer software documentation"
as such terms are used in 48 C.F.R 12.212 of the Federal Acquisition Regulations
and its successors, and 48 C.F.R. 227.7202 of the DoD FAR Supplement and its
successors.
12.6 Entire Agreement; Amendment.
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This Agreement, including all Exhibits hereto constitutes the final, complete
and entire agreement between the parties with respect to the subject matter
hereof, and supersedes any previous proposals, negotiations, agreements, or
arrangements, whether verbal or written. made between the parties with respect
to such subject matter. This Agreement shall control over any additional or
conflicting terms in any of Licensee's purchase orders or other business forms.
This Agreement may only be amended or modified by mutual agreement of authorized
representatives of the parties in writing.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
Effective Date.
iMediation, Inc. Virtual Communities, Inc.
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: Avi ▇▇▇▇▇▇▇▇▇
Signature: _/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ _________ Signature: _/s/ Avi Moskowitz_______
Title: President, Americas and Asia Title: President___________________
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Date: December 30, 1999 Date: December 30, 1999
iMediation Software License and Support Agreement
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EXHIBIT A TO
SOFTWARE LICENSE AGREEMENT
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Installation Information Billing Information
Company: ________________________ Company: ____________________________
Contact: ________________________ Address: ____________________________
Address: ________________________ ____________________________
________________________ Contact: ____________________________
Phone: ________________________ Phone: ____________________________
eMail: ________________________ eMail: ____________________________
Term of License: Three years (36 months)
Expiration Date: December 31, 2002
Product Description License Fee Annual Support Fee
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iChannel Software for / year $100,000
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Annual Support fee / year $ 10,000
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Installation, setup and start-up $ 47,600 Consisting of:
services: Installation 1 day
275/hr at 10 days Configuration 20 days
200/hr at 15 days Training 4 days
Total Software License Fees: $100,000
Total Support Fees: $ 10,000
Total Implementation Fees: $ 47,600
Total Contract Value
Payment Due With Signing $157,600
Balance Due (see terms) $ 33,000
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$124,000
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iMediation Software License and Support Agreement
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Plus any applicable taxes
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Terms:
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Year 1 Software & Annual 30% down $ 33,000
Support 30% April 1, 2000 $ 33,000
40% June 1, 2000 $ 44,000
Implementation Services
Invoiced monthly as delivered payable net 30
Due and payable on the
Years two and three Software and following dates each year:
Annual Support terms
40% January 1
30% March 1
30% June 1
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Notes
1. Licensee may use the iChannel 4. Licensee may elect to 5. Implementation Fees are an
sSoftware for up to eight (8) convert this annual license estimate. IMediation shall notify
Virtual Communities for the to a perpetual license for up Licensee if and when the actual
above license fee. Each to 20 Virtual Communities for Implementation Fees may exceed this
additional Virtual Community the one-time license fee of estimate.
site may elect to license the $500,000, plus annual support
Software for an annual License fee of $60,000 Should
fee of $20,000 and an Annual Licensee elect to convert
Support fee of $2,200 per year, this option, any Annual
billed annually in advance, Support fees prepaid during
payable net 30.2. Licensee the calendar year of the
agrees to take reference election shall be credited
telephone calls and/or meetings against this Annual Support
scheduled with reasonable lead fee on a pro-rata basis for
time and based on the success of that year. If iMediation
the iChannel implementation. establishes a lower price
list per site, Licensee may
renegotiate off the new price
list.
3. Licensee agrees to add a
"powered by iMediation iChannel"
or other logo of
iMediation Software License and Support Agreement
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mutually agreed
upon size and page position, on
its Affiliate pages that
display any Affiliate
information on a majority of the
page.
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EXHIBIT B
ANNUAL SUPPORT AGREEMENT
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In consideration of the foregoing and the mutual promises contained in this
Agreement, the parties agree as follows:
1. Definitions.
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Unless expressly defined in this Agreement, all capitalized terms used herein
shall have the meaning set forth in the License Agreement.
"Customer Contact" shall mean the representative(s) of Licensee, identified
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during implementation of the Software, who will be the exclusive point(s) of
contact with iMediation with respect to Software Support. Licensee will have
the right to change the Customer Contact with prior written notice to
iMediation.
"Error(s)" means any verifiable and reproducible failure of the Software to
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materially conform to the Specifications. The term "Error" shall not include
any failure of the Software that: (i) results from the misuse or improper use of
the Software; (ii) does not materially affect the operation and use of the
Software; (iii) results from any modification to the Software not made by
iMediation; or (iv) results from the failure to incorporate or use any upgrades,
updates, or bug fixes made available by iMediation.
"Error Correction(s)" means either (i) a modification or addition to or
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deletion from the Software that, when made to such Software, materially conforms
the Software to the Specifications, or (ii) a procedure or routine that, when
observed in the regular operation of the Software, eliminates the material
adverse effect of such Error on Licensee.
"License Agreement" shall mean the license agreement executed by the
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parties on December 30, 1999.
"Major Error" means any demonstrable Error in the Software that: (i)
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causes the Software to have a significant loss of intended function as set forth
in the Specifications; (ii) causes or is likely to cause data to be lost or
destroyed; or (iii) prevents the Software from being installed or executed on
the properly configured environment.
"Minor Error" means any demonstrable Error that: (i) causes a function to
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not execute as set forth in the Specifications, without a significant loss of
intended functionality; or (ii) disables one or more nonessential functions.
"Moderate Error" means any demonstrable Error in the Software that: (i)
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causes the Software to operate improperly; or (b) produces results materially
different from those described in the Specifications, but which error does not
rise to the level of a Major Error.
"Specifications" means iMediation's published specifications for the
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Software.
"Updates" means new versions of the Software that contain bug fixes, error
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corrections and minor enhancements, but do not contain major enhancements or
significant new functionality, as determined in iMediation's reasonable
discretion.
"New Module Functionality" means new versions of the Software that contain
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major enhancements or significant new functionality that is licensed as a new
module for an additional license fee, as determined in iMediation's reasonable
discretion.
"Workaround" means that iMediation has diagnosed the Error and has
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implemented, or enabled Licensee to implement, a temporary solution that allows
the Software to regain functionality and provide all major functions in
accordance with the Specifications.
2. Services.
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2.1 Licensee Responsibilities. Licensee agrees to notify iMediation
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promptly following the discovery of any Error. Further, upon discovery of an
Error, Licensee agrees, if requested by iMediation, to
iMediation Software License and Support Agreement
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submit to iMediation a list of output and any other data that iMediation may
reasonably require to reproduce the Error and the operating conditions under
which the Error occurred or was discovered. Such list and data shall be deemed
iMediation's Confidential Information and shall be governed by Section 11 of the
License Agreement.
2.2 iMediation Support. Communications between Licensee and iMediation
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will include electronic mail, facsimile, and telephone. Licensee shall use best
efforts to contact iMediation hereunder exclusively through the Customer
Contact. iMediation's technical support telephone will be adequately staffed by
a Licensed technical support representative during the hours of 8:00 AM to 5:00
PM (Eastern Standard Time) and 0800 AM to 1800 PM (Central Europe Time) Monday
through Friday, excluding holidays scheduled by iMediation ("Normal Business
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Hours"), subject to modification by iMediation at iMediation's discretion.
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Although iMediation will not warrant iMediation's response time to inquiries
received outside of Normal Business Hours, Licensee will use commercially
reasonable efforts to respond to such inquiries in accordance with the response
times specified in Section 2.3 below. Subject to the terms herein, IMediation
agrees to provide Support for the three years of this Agreement.
2.3 iMediation Response to Errors. iMediation will provide Software
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Support to Licensee to ensure a consistent and high level of operation of the
Software. In the event Licensee notifies iMediation of an Error in the Software,
iMediation will provide support services necessary to correct the Error in
accordance with the terms of this Agreement. iMediation shall use commercially
reasonable efforts to correct Errors in accordance with the below response
times, with as little disruption to Licensee's service as commercially
practicable.
(a) Major Errors. iMediation shall, within six (6) hours after the receipt
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of notice of any Major Error, contact Licensee to verify such Major Error and
begin a resolution process. Upon iMediation's verification of such Major Error,
iMediation will use its commercially reasonable efforts to provide a Workaround
or Error Correction for such Major Error within forty-eight (48) hours.
(b) Moderate Errors. iMediation shall, within twelve (12) hours after the
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receipt of notice of any Moderate Error, contact Licensee to verify such
Moderate Error. Upon iMediation's verification of such Moderate Error,
iMediation will use its commercially reasonable efforts to provide a Workaround
or Error. Correction for such Moderate Error within five (5) days.
(c) Minor Errors. Upon iMediation's receipt of notice of a Minor Error and
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upon iMediation's verification of such Minor Error, iMediation will initiate
work to provide an Error Correction for such Minor Error in the next regular
release of the Software.
2.4 Exclusions from Support Services. Software Support does not include
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services for any failure or defect in the Software caused by any of the
following: (a) the improper use, alteration, or damage of the Software by
Licensee or persons other than iMediation employees or consultants, unless
caused as a result of instructions by iMediation employees or consultants; (b)
modifications to the Software not made or authorized by iMediation, unless such
modifications were made by a iMediation employee, subcontractor, agent, or other
third party acting on behalf of iMediation; (c) interaction between the Software
and operating systems, database software and other software, when iMediation has
not approved such operating system, database software, and other software for
use with the Software; (d) use of Software on hardware other than the Hardware;
(e) relocation of the Software or network reconfiguration; or (f) failure by
Licensee to provide and maintain a suitable installation environment, including
but not limited to proper electrical power, air conditioning or humidity
control. In addition, iMediation reserves the right to reject for Software
Support any Software, which has not been continuously supported by iMediation
pursuant to iMediation's then-current Software Support Plan. iMediation will
invoice Licensee for any Software Support provided under this Section 2.4 on a
time and materials basis.
2.5 Updates. iMediation agrees to support a previous version release of
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the Software for one (1) year following release of a new version of the
Software.
3. New Version Release.
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3.1 Updates. iMediation will provide Updates to Licensee within sixty
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(60) days after the commercial release of such Updates. Licensee will promptly
install such Update on the Licensee Hardware in accordance with the installation
documentation provided to Licensee by iMediation. Installation services may be
purchased by the Licensee from iMediation at iMediation's then-current time and
materials rates.
3.2 New Module Functionality. iMediation will make New Module
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Functionality available to Licensee solely pursuant to mutually agreeable terms
and conditions, including but not limited to license terms, royalty and/or
license fees. iMediation will notify Licensee of such New Module Functionality
within ninety (90) days after iMediation makes such New Module commercially
available to other licensees.
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4. Payments.
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4.1 Fees. Licensee shall pay to iMediation an annual support fee
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("Support Fee") to obtain the maintenance and support set forth in this
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Agreement; provided, however, that if Licensee discontinues and then desires to
resume Software Support, Licensee will additionally pay iMediation all Support
Fees applicable to such discontinuation period. The Support Fee may be increased
by iMediation from time to time to reflect any increases in iMediation's costs,
but in no case shall such increased fee exceed 8% of the Support Fee applicable
to the previous twelve (12) month period. The Support Fee will be due and
payable by Licensee no later than thirty (30) days prior to the commencement of
any annual maintenance and support term.
4.2 Expenses. iMediation will invoice Licensee monthly for all travel
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expenses (including transportation, meals, and lodging) iMediation reasonably
incurs under this Agreement. IMediation shall review in advance the expenses
with Licensee's Business Development Director or such other person appointed by
Licensee prior to incurring such expenses. Licensee shall pay iMediation within
thirty (30) days after the date of iMediation's invoice to Licensee.
5. Source Code Escrow.
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5.1 Escrow. Upon Licensee's formal written request, iMediation shall
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deposit with an Escrow agent ("Escrow Agent") the Software source code ("Escrow
------------ ------
Materials") pursuant to the terms of an escrow agreement between iMediation and
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the Escrow Agent. IMediation shall update the Escrow Materials within thirty
(30) days after each major release of the Software but not less than annually.
5.2 Release of Escrow Materials. In the event that IMediation files for
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or becomes a party to any involuntary bankruptcy or receivership, and such
involuntary proceeding is not dismissed within forty-five (45) calendar days
after filing, a "Release Event" shall be deemed to have occurred.
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5.3 Release Procedure. Upon the occurrence of a Release Event, Licensee
-----------------
will notify the Escrow Agent. The Escrow Materials will be released for use by
Licensee, subject to the terms and conditions hereof, only after notice of such
Release Event from the Escrow Agent to IMediation and IMediation's failure to
declare in writing to the Escrow Agent within twenty (20) days that no Release
Event has occurred. If IMediation makes such written declaration, then the issue
of whether a Release Event has occurred and is continuing shall be submitted to
arbitration in Santa ▇▇▇▇▇ County, California, under the Commercial Arbitration
Rules of the American Arbitration Association by one (1) arbitrator appointed in
accordance with said Rules. Judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. The costs of the
arbitration, including administrative and arbitrator's fees, shall be shared
equally by the parties. Each party shall bear the costs of its own attorneys'
fees in connection with such arbitration.
5.4 License. Subject to the terms and conditions of this Agreement,
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IMediation hereby grants Licensee a nonexclusive, non-transferable right and
license to use, modify, and reproduce the Escrow Materials solely in connection
with Licensee's maintenance and support of the Software, which Licensee may
exercise at any time after the occurrence and during the continuation of a
Release Event. Upon the cessation of any Release Event, all licenses granted
pursuant to this Section 5.4 shall terminate, unless and until triggered again
pursuant to this Section 5, and Licensee shall promptly return all copies of the
Escrow Materials, or any portion thereof, to IMediation, at Licensee's sole
expense.
6. Disclaimer.
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iMEDIATION PROVIDES NO WARRANTY, EXPRESS OR OTHERWISE, WITH RESPECT TO THE
SOFTWARE SUPPORT, AND IMEDIATION SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
7. Limitation of Liability.
-----------------------
IN NO EVENT WILL iMEDIATION'S LIABILITY HEREUNDER EXCEED THE PAYMENTS RECEIVED
BY IMEDIATION HEREUNDER. NEITHER IMEDIATION NOR ITS LICENSORS SHALL BE LIABLE
FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER PARTY. IN
NO EVENT WILL EITHER iMEDIATION OR IT'S LICENSORS BE LIABLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF THIS
AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE), EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LICENSEE ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON
THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. Term and Termination.
--------------------
8.1 Term of the Agreement. This Agreement shall commence on the date that
---------------------
iMediation receives the Support Fee and shall extend for a period of
iMediation Software License and Support Agreement
--------------------------------------------------------------------------------
one (1) year thereafter. The term of this Agreement may be extended for
additional one (1) year periods, upon payment by Licensee to iMediation of the
Support Fee.
8.2 Termination with Cause. This Agreement may be terminated immediately
----------------------
by either party in the event: (i) the other party breaches any material
provision of this Agreement or the License Agreement and does not remedy such
breach within thirty (30) days following notice of such breach from the non-
breaching party; or (ii) the other party enters bankruptcy proceedings, becomes
insolvent, or otherwise becomes generally unable to meet its obligations under
this Agreement or the License Agreement. In the event the breach is by
iMediation, Licensee is entitled to a pro-rata refund of the current year's
prepaid fees.
8.3 Survival. The provisions of Sections 1, 7, 8 and 9 of this
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Agreement shall survive any expiration or termination of this Agreement.
9. Miscellaneous.
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Sections 11 and 12 of the License Agreement are hereby incorporated by reference
into this Agreement. All terms used in those Sections shall have the meaning set
forth in this Agreement if such terms are explicitly defined in this Agreement.
Otherwise, such terms shall have the meaning set forth in the License Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
Effective Date.
iMediation, Inc. Virtual Communities, Inc.
Name: ____________________________________ Name: ____________________________________
Signature: _______________________________ Signature: _______________________________
Title: ___________________________________ Title: ___________________________________
Date: ___________________________________ Date: ___________________________________
iMediation Software License and Support Agreement
-------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT C
IMPLEMENTATION SERVICES ORDER
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Terms:
iMediation and Client agree to the Services in this Service Order and the
fees set forth in Exhibit A herein.
Client agrees to pay iMediation fees as scheduled in Exhibit A upon
execution of this Agreement.
Five Day Kick-Off & iChannel Hands-On Workshop
Day one Installation
Day Two Workshop
Day Three "
Day Four "
Day Five Integration, Next Steps
WorkShop Agenda
---------------
COMMON - (30 min)
Overview of Key Roles and Terms (30 min)
Overview
What is iChannel?
Participant Roles
. Platform Executive, Merchant, Content Publisher, Affiliate
. Relationship between roles and iChannel
Terminology
. Catalog, Channel Profile, Channel, Participant, Payment Verification
Service, Platform, Templates, User, User Action, Virtual Site
. Relationship between these in iChannel
MERCHANT (user interface) - (4 hrs + 2 hrs hands-on = 6 hrs)
General (15 min)
Merchant's role with iChannel
iChannel Functions (available from menu)
Channel, Branding, Administration, Reporting, Financials -- high-level
overview.
iMediation Software License and Support Agreement
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Using iChannel (4 min + 2 hrs hands-on training exercises)
Administration stuff (15 min)
. Log in
. Modify basic information
Building the affiliate network - "merchant side" (2 hrs)
. Catalog - create, view, modify
. Channel Profile - create, view, modify
. Templates - create, view, modify, assign to channel profile
. using catalogs, merchant branding, affiliate branding, and
content
. Merchant branding (logos) - create, view, modify
. Sales experts - create, view, modify, assign to channel profile
Signing up affiliates (15 min)
. Accept/reject affiliates
. Managing specific affiliate channels
Managing affiliates (15 min)
. Viewing affiliate details
. Viewing channel information
Reporting (45 min)
. Reports - types of reports, generating, saving to disk
Tracking visitor activity (Financials) (30 min)
. Financial monitoring - Affiliates, merchant, catalog, channel
profiles
. Session tracking
. Exporting data
. (Catalog tagging is required for this to work, as explained in the
Technical section)
INSTALLATION / TECH OVERVIEW - (2 hr 30 min)
How iChannel works (technical) (1 hr)
Overview
Tracking of user actions
Architecture
iChannel Technical requirements (20 min)
. Hardware/software
. Sizing
. Processors
. Memory
Installing and configuring iChannel (1 hr)
Installation
. Web Server - configuration
. Oracle - configuration, tablespaces
. iChannel
Background programs
Verify that everything is working
Debugging/Logs
iMediation Software License and Support Agreement
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Using the iChannel Configuration tool (10 min)
PLATFORM EXECUTIVE (all) - (30 min + 30 min hands-on = 1 hr)
Accept or reject new participants on the platform
Modify automatically generated email messages and sign-up screens
Overseeing and managing participants
. Viewing information - merchant, affiliate, content providers
. Suspend or remove participants
Using the iChannel Configuration tool
MERCHANT (technical) - (5hrs + hands-on?)
Tagging Catalogs (2 hr)
. Non-intrusive and intrusive recording
. User action tracking/page loading tracking
. Marking forms and pages
Tagging as used in Channel Profiles (1 hr)
. Setup (same as "Interface" section above)
. Focus on technical aspects of Channel Profile setup (i.e. commission
parameters, customized parameters, etc.)
Templates (1 hr)
. Template design and modification - access levels, activity tracking,
graphic design
Payment Verification (1 hr)
BIVS - modifying catalogs and payment verification pages
SSL
. Creating private key and certificates (e.g. using SSLeay)
. Setup for iChannel SSL decryption
AFFILIATE (user interface) - (3 hrs + 2 hrs hands-on = 5 hrs)
General (30 min)
Affiliate's role with iChannel
iChannel Functions (available from menu)
Channel, Branding, Administration, Reporting, Financials -- high-level
overview.
Using iChannel (2 hrs 30 min)
iMediation Software License and Support Agreement
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Administration stuff (15 min)
. Log in
. Modify basic information
Merchant selection (15 min)
. View channels
. View content publishers
. View merchants/channel profiles, and join these channel profiles
Virtual site management (1 hr)
. Affiliate branding (logos) - create, view, modify
. Default and customized virtual sites - create new, view, modify
. using catalogs, merchant branding, affiliate branding, and
content
. Adding links to existing affiliate page site.
Reporting (30 min)
. Reports - types of reports, generating, saving to disk
Tracking visitor activity (Financials) (30 min)
. Log detail/Session tracking
. Exporting data
. (Catalog tagging is required for this to work, as explained in the
Technical section)
CONTENT PUBLISHER (user interface) - (2 hrs + 1 hr hands on = 3 hrs)
General (15 min)
Content Publisher's role with iChannel
iChannel Functions (available from menu)
Channel, Branding, Administration, Reporting, Financials -- high-level
overview.
Using iChannel (1 hr 45 min)
Administration stuff (15 min)
. Log in
. Modify basic information
Document management (30 min)
. View, add, modify, delete
Reporting (30 min)
. Reports - types of reports, generating, saving to disk
Tracking visitor activity (Financials) (30 min)
. Log detail and tracking on Documents
. Exporting data