EXHIBIT 10.8.5
ANNUNCIO SOFTWARE, INC.
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement (the "Agreement") is entered
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into as of the 6th day of October, 1999 (the "Effective Date") by and between
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Annuncio Software, Inc., a California corporation with an office at ▇▇▇▇ ▇. ▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Annuncio"), and ▇▇▇▇▇ Fargo
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Bank, N. A., a national banking association, having an office at 420 ▇▇▇▇▇▇▇▇▇▇
Street, 10th floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ("▇▇▇▇▇ Fargo").
RECITALS
WHEREAS, Annuncio has developed and licenses certain Internet marketing
automation software known as Annuncio Live TM; and provides services associated
therewith, and
WHEREAS, ▇▇▇▇▇ Fargo wishes to obtain Annuncio's services and use the
Annuncio Live TM software initially for a pilot program and possibly obtain a
non-exclusive license to use the Annuncio software on an ongoing basis to
automate its Internet and integrated marketing campaigns.
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES HERETO
HEREBY AGREE AS FOLLOWS:
1. STRUCTURE OF AGREEMENT.
1.1 Schedules. The Agreement consists of the Agreement, and the following
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Schedules, which are incorporated herein in their entirety:
Schedule A: Annuncio Services
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Schedule B: Pricing
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Schedule C: Service Levels
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Schedule D Wells Fargo Security Requirements
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1.2 Project Descriptions. There may be multiple projects under Schedule A, the
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details of which shall be outlined in one or more Exhibits to such Schedule
(each, a "Statement of Work"). Each such Exhibit shall reference this Agreement,
shall be executed by the both of the parties, and shall be subject to the terms
and conditions of this Agreement. Under this Agreement, ▇▇▇▇▇ Fargo has no
obligation whatsoever to agree to enter into other projects or execute
additional Statements of Work with Annuncio.
1.3 Definitions. As used in this Agreement any capitalized terms defined in the
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Agreement or in this Section shall have the meaning specified.
(a) "AFFILIATE" means a corporate entity that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with, ▇▇▇▇▇ Fargo Bank, N.A. The term "control" means, with respect to
any corporate entity, the possession, directly or indirectly, of the power to
direct or cause the direction of management or policies (whether through
ownership of securities or other ownership interests, by contract or otherwise)
of such corporate entity.
[*] = 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.
(B) "ANNUNCIO SERVER" shall mean the dedicated computer system hosted by a
third party with access to the Internet which is under the control of Annuncio
and accessible to both ▇▇▇▇▇ Fargo and Annuncio that is running the Software,
hosting the ▇▇▇▇▇ Fargo Materials, and collecting the ▇▇▇▇▇ Fargo Data.
(C) "CONFIDENTIAL INFORMATION" shall have the meaning assigned to it in Section
6.1.
(D) "SERVICES" shall mean the services provided by Annuncio to ▇▇▇▇▇ Fargo more
fully described in Schedule A.
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(E) "SOFTWARE" shall mean the Annuncio Live TM software and related
documentation licensed by ▇▇▇▇▇ Fargo under this Agreement including any
updates, upgrades, enhancements, and new versions provided by Annuncio for use
by ▇▇▇▇▇ Fargo during the term of the Agreement.
(F) "USER" shall mean the ▇▇▇▇▇ Fargo personnel who are authorized under this
Agreement to utilize the Services and/or access the Software on the Annuncio
Server.
(G) "▇▇▇▇▇ FARGO" shall mean ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇▇ Fargo & Company or
any subsidiary or Affiliate of either of them.
(H) "▇▇▇▇▇ FARGO DATA" shall mean all ▇▇▇▇▇ Fargo customer information and
related data provided to Annuncio for use in providing the Services and the
information and data collected as the result of the Services and related
marketing campaigns; and shall include, but is not limited to ▇▇▇▇▇ Fargo
customer names, addresses, banking, and business information, and any ▇▇▇▇▇
Fargo customer responses, web logs, traffic reports, and other data resulting
from the Services.
(I) "▇▇▇▇▇ FARGO MATERIALS" shall mean the ▇▇▇▇▇ Fargo advertising and
marketing information organized and stored on the Annuncio Server and used by
Annuncio in providing the Services hereunder and shall include any Web pages
provided by ▇▇▇▇▇ Fargo associated therewith and the content thereof, including
but not limited to all ▇▇▇▇▇ Fargo trademarks, service marks, and logos provided
therewith along with any alphabetic, numeric, graphic, or other characters,
symbols, or images, in whatever form or representation, and the information
represented by such characters, symbols, or images associated therewith in
either hard copy or electronic format
2. RENEWALS AND REVISIONS.
2.1 Renewal of Terms: Option for Full License.
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(a) Upon termination or expiration of this Agreement, the parties may
elect to renew the Agreement for successive one-year terms upon mutually agreed
terms and conditions.
(b) Prior to the end of the sixth (6th) month of the initial one (1) year
term of this Agreement, ▇▇▇▇▇ Fargo may notify Annuncio that it desires to
purchase a full license to the Software that permits unrestricted use of the
Software by ▇▇▇▇▇ Fargo subject to constraints specified in Exhibit B. Upon such
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notice, Annuncio agrees to license the Software to ▇▇▇▇▇ Fargo upon mutually
agreed terms and conditions at the prices listed in Schedule B. If ▇▇▇▇▇ Fargo
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does not request such a license and in writing requests continuation of existing
arrangement, ▇▇▇▇▇ Fargo can continue to use the Software on the Annuncio Server
at the monthly rate based on the same ▇▇▇▇▇ Fargo volumes for the remainder of
the initial one (1) year term on a month-to-month basis subject to the
requirement of a thirty (30) day notice of termination set out in Section
9.1(a).
(c) ▇▇▇▇▇ Fargo shall have no obligation under this Agreement to enter
into any future agreement with Annuncio to license the Software or obtain any
additional services from Annuncio beyond those set out in the initial Statement
of Work set out in Exhibit A-1.
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3. SOFTWARE LICENSE.
3.1 License. Subject to the terms and conditions of this Agreement, Annuncio
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grants ▇▇▇▇▇ Fargo a non-exclusive, nontransferable license to install client
versions of the Software as necessary to carry out the purposes of this
Agreement and to use or permit use of the Software solely as hosted by Annuncio
hereunder on an Annuncio Server for purposes of defining, executing, and
analyzing ▇▇▇▇▇ Fargo Internet marketing campaigns, and for accessing,
transferring, and storing ▇▇▇▇▇ Fargo Materials and ▇▇▇▇▇ Fargo Data used and/or
collected in such marketing campaigns. ▇▇▇▇▇ Fargo may also make copies of the
client version of the Software as reasonably necessary for ▇▇▇▇▇ Fargo backup
and archival purposes. The license granted in this Section 3.1 is subject to the
"Marketing Transactions" limits set forth in Schedule B.
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3.2 Restrictions. ▇▇▇▇▇ Fargo shall not: (i) disassemble, reverse engineer,
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decompile, or otherwise attempt to derive source code from the Software, modify,
adapt, create derivative works based upon, or translate the Software; (ii)
install the server version of the Software on any of its computer systems,
servers, or networks; (iii) transfer, lease, loan, resell for profit, distribute
or otherwise grant any rights in the Software in any form to any other party,
including commercial time-sharing, rental, or service bureau use; or (iv) copy
the Software except as permitted in Section 3.1.
3.3 Ownership. This license is not a sale and does not convey any rights of
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ownership in or to the Software. Annuncio retains all right, title, and interest
in the Software (including any updates, upgrades or modifications thereof
provided to or used by ▇▇▇▇▇ Fargo) and reserves all rights not explicitly
granted. ▇▇▇▇▇ Fargo retains all right, title, and interest in the ▇▇▇▇▇ Fargo
Materials and ▇▇▇▇▇ Fargo Data.
4. SERVICE LEVELS.
4.1 Annuncio shall provide the Software and Services in operated in compliance
with the Service Levels set out in Schedule C. Annuncio Services will at least
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meet industry standards. Annuncio will use all commercially reasonable efforts
to: (i) make the Annuncio Server available to ▇▇▇▇▇ Fargo; (ii) promptly
investigate any problems that ▇▇▇▇▇ Fargo reports to Annuncio; and (iii) resolve
problems or errors promptly.
4.2 Annuncio shall enter into a written agreements with the third party
operating the Annuncio Server that requires substantially equivalent service
levels to those required of Annuncio under this Section 4 and compliance with
the obligations of confidentiality set out in Section 6 and pertinent security
requirements as set out in Section 15 and Schedule D.
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5. MARKETING.
5.1 Annuncio: (i) shall submit to ▇▇▇▇▇ Fargo all proposed advertising, sale
promotion and other publicity material in which ▇▇▇▇▇ Fargo's name is mentioned
or language is used from which ▇▇▇▇▇ Fargo's name may be inferred or implied and
shall not publish or use any such material without the prior written consent of
▇▇▇▇▇ Fargo; (ii) shall not publicly reveal the existence of this Agreement or
any of its terms without the prior written consent of ▇▇▇▇▇ Fargo; and (iii)
shall not use ▇▇▇▇▇ Fargo trademarks or logos without ▇▇▇▇▇ Fargo's prior
written authorization and such authorization shall always be subject to ▇▇▇▇▇
Fargo's right to revoke such authorization at any time, in its sole discretion.
▇▇▇▇▇ Fargo will consider any reasonable request for use of ▇▇▇▇▇ Fargo's name
and will promptly evaluate any request made by Annuncio.
6. CONFIDENTIAL INFORMATION.
6.1 Definition. "Confidential Information" means, without limitation, ▇▇▇▇▇
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Fargo Materials and all ▇▇▇▇▇ Fargo marketing, internet and business development
plans, specific marketing and advertising plans and features, and shall include
▇▇▇▇▇ Fargo's technical information, customer information, employee information,
security procedures and standards, or other sensitive business information
including all materials containing said information, all ▇▇▇▇▇ Fargo Data
obtained through the Annuncio Server including that received from ▇▇▇▇▇ Fargo
customers responding to ▇▇▇▇▇ Fargo advertisements or marketing campaigns or
from Users using or accessing the
Annuncio Software, Inc. - 3 - CONFIDENTIAL
Annuncio Server, including but not limited to web logs and traffic reports
related thereto. Annuncio Confidential Information includes, without limitation,
the Software source code and all information related thereto. Confidential
Information shall also include the terms of this Agreement and any and all
information disclosed by either party to the other which is marked
"confidential" or "proprietary", including oral information which is designated
confidential at the time of disclosure, provided that it is reduced to a written
summary marked "confidential" which is supplied to the other party within thirty
(30) days of the oral disclosure. Confidential Information does not include any
information that the receiving party can demonstrate by its written records: (i)
was known to it prior to its disclosure hereunder by the disclosing party; (ii)
is or becomes known through no wrongful act of the receiving party; (iii) has
been rightfully received from a third party authorized to make such a
disclosure; (iv) is independently developed by the receiving party without; (v)
has been approved for release by the disclosing party's prior written
authorization; or (vi) has been disclosed by court order or as otherwise
required by law, provided that the party required to disclose the information
provides prompt advance notice to enable the other party to seek a protective
order or otherwise prevent such disclosure.
6.2 Obligation. Neither party will use any Confidential Information of the
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disclosing party except as expressly permitted in this Agreement or as expressly
authorized in writing by the other party. Each party shall use the same degree
of care to protect the disclosing party's Confidential Information as it uses to
protect is own confidential information of like nature, but in no circumstances
less than reasonable care. Neither party shall disclose the other party's
Confidential Information to any person or entity other than the its officers,
employees, consultants and legal advisors and the third party hosting the
Annuncio Server who need access to such Confidential Information in order to
effect the intent of the Agreement and who have entered into written
confidentiality agreements with it consistent with this Section.
7. PAYMENT OBLIGATIONS.
7.1 Payment. Annuncio will invoice ▇▇▇▇▇ Fargo for the fees set forth on the
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Pricing Schedule set forth in Schedule B on a monthly basis. All undisputed fees
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are due and payable to Annuncio within thirty (30) days after the date of an
Annuncio invoice. Any adjustment in the fees due will be reflected in a
subsequent Annuncio invoice.
7.2 Late Payments. Fees not paid when due will, after written notice to ▇▇▇▇▇
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Fargo, accrue late charges at a rate of 1.5% per month, or the maximum rate
allowed under law, whichever is lower, from the due date until the date paid.
7.3 Taxes. ▇▇▇▇▇ Fargo shall be responsible for all sales taxes, use taxes and
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any other similar taxes and charges of any kind imposed by any federal, state or
local governmental entity on the transactions contemplated by this Agreement,
excluding only U.S., state, local and foreign taxes based solely upon Annuncio's
income. When Annuncio has the legal obligation to pay or collect such taxes, the
appropriate amount shall be invoiced to and paid by ▇▇▇▇▇ Fargo unless ▇▇▇▇▇
Fargo provides Annuncio with a valid tax exemption certificate authorized by the
appropriate taxing authority.
7.4 U.S. Dollars. All fees quoted and payments made hereunder are in U.S.
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Dollars.
7.5 Expenses. If Annuncio provides any on-site services as part of the
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Services, then ▇▇▇▇▇ Fargo will reimburse Annuncio for all pre-approved
reasonable travel and other related expenses incurred by Annuncio in the
performance of those Services, subject to ▇▇▇▇▇ Fargo's receipt of a request (or
invoice) and supporting documentation in accordance with ▇▇▇▇▇ Fargo's standard
travel policies.
8. WARRANTY AND DISCLAIMER.
8.1 Limited Warranty. Annuncio represents and warrants that:
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(a) the Software will operate in substantial conformity with its specifications
and documentation and the Services will be performed in a professional and
workmanlike manner;
Annuncio Software, Inc. - 4 - CONFIDENTIAL
(b) the Software does not contain routines, viruses, trap doors, "Trojan
Horses" or other disabling devices or code which has been intentionally designed
or created to allow unauthorized access to, or use of the Software or access to
the ▇▇▇▇▇ Fargo networks by any Annuncio employee or any third party, or to
cause the Software or other software program or programs to malfunction or that
contains other content that would interfere with regular operation of the
Software or with ▇▇▇▇▇ Fargo's or its customers' computer communication systems
or other business operations;
(c) the Software is Year 2000 compliant and shall not experience any abends or
aborts as a result of the date of use or input, whether before, on or after
January 1, 2000 (including leap years) and shall accept, respond to, store and
display date information accurately and in a manner that is unambiguous as to
century;
(d) the Software does not include or contain any timer, clock, counter, or
other limiting design or routine which causes such Software to be erased,
inoperable, or otherwise incapable of being used in the full manner for which it
was designed and licensed pursuant to this Agreement; and
(e) in the performance of this Agreement, Annuncio will comply with and assure
that its subcontractors comply with all applicable Well Fargo Security
Requirements attached hereto as Exhibit D.
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8.2 Limitations.
(a) Annuncio does not warrant that the Software will meet all of ▇▇▇▇▇ Fargo's
requirements or that the use of the Software or access to functions of the
Software will be uninterrupted or error free.
(b) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER PARTY
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MAKES ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EACH PARTY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AND THE STATUTORY WARRANTY AGAINST INFRINGEMENT.
9. TERMINATION OR EXPIRATION OF AGREEMENT
9.1 This Agreement may be terminated as follows:
(a) Upon thirty (30) days prior written notice, ▇▇▇▇▇ Fargo may terminate this
Agreement for its convenience;
(b) If either party materially breaches any term or condition of this Agreement
and fails to cure such breach within thirty (30) days after receiving written
notice of the breach, the non-breaching party may terminate this Agreement on
written notice to the breaching party; or
(c) Either party may terminate this Agreement immediately upon notice if the
other party hereto becomes insolvent (i.e. becomes unable to pay its debts in
the ordinary course of business as they come due) or makes an assignment for the
benefit of creditors.
9.2 Effect of Termination or Expiration. In the event of expiration or
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termination of this Agreement: (a) Annuncio shall return or destroy all copies
of ▇▇▇▇▇ Fargo Confidential Information, including but not limited to ▇▇▇▇▇
Fargo Materials and ▇▇▇▇▇ Fargo Data, regardless of storage medium, and (b)
Annuncio shall cause all ▇▇▇▇▇ Fargo Materials and ▇▇▇▇▇ Fargo Data to be
deleted from Annuncio Server; (c) ▇▇▇▇▇ Fargo shall return or destroy all copies
of Annuncio Confidential Information. Upon request of either party, the other
party shall certify in writing that the obligations of this Section 9.2 have
been met
9.2 Survival. In addition to any payment obligations incurred prior to the
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expiration or termination of this Agreement, the following sections shall
survive the termination or expiration of this Agreement for any reason: 1.1,
1.3, 3.2, 3.3, 6, 8.2, 9.2, 9.3, 11.2, 12, and 16.
10. INDEMNITIES.
Annuncio Software, Inc. - 5 - CONFIDENTIAL
10.1 Indemnity by ▇▇▇▇▇ Fargo. ▇▇▇▇▇ Fargo shall, at its expense, defend and
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hold Annuncio, its parent and subsidiary companies and its directors, officers
and employees harmless from any and all damages, liabilities, costs and expenses
(including reasonable attorneys' fees) incurred by Annuncio arising out of or
relating to any third party claim, suit or proceeding alleging that the ▇▇▇▇▇
Fargo Materials, to the extent obtained, supplied, and/or created by ▇▇▇▇▇
Fargo: (i) are factually inaccurate, misleading or deceptive; (ii) infringe or
misappropriate any copyright, trademark, trade secret or other intellectual
property right of any third party; or (iii) are libelous, defamatory, obscene or
pornographic or violates other civil or criminal laws, including those
regulating the use and distribution of content on the Internet and protection of
personal privacy; provided that Annuncio promptly notifies ▇▇▇▇▇ Fargo in
writing of any such claim and promptly tenders full control of the defense and
settlement of any such claim to ▇▇▇▇▇ Fargo. Annuncio shall cooperate with ▇▇▇▇▇
Fargo, at ▇▇▇▇▇ Fargo's expense, in defending or settling any such claim.
10.2 Indemnity by Annuncio.
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(a) Annuncio shall, at its expense, defend and hold ▇▇▇▇▇ Fargo, its parent and
subsidiary companies and its directors, officers and employees harmless from any
and all damages, liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by ▇▇▇▇▇ Fargo arising out of or relating to any third
party claim, suit or proceeding alleging that the Software or the deliverables
provided by Annuncio as part of the Services (except to the extent such claims
are based upon the ▇▇▇▇▇ Fargo Materials): (i) are factually inaccurate,
misleading or deceptive; (ii) infringe or misappropriate any copyright,
trademark, trade secret or other intellectual property right of any third party;
or (iii) are libelous, defamatory, obscene or pornographic or violates other
civil or criminal laws, including those regulating the use and distribution of
content on the Internet and protection of personal privacy; provided that ▇▇▇▇▇
Fargo promptly notifies Annuncio in writing of any such claim and promptly
tenders full control of the defense and settlement of any such claim to
Annuncio. ▇▇▇▇▇ Fargo shall cooperate with Annuncio, at Annuncio's expense, in
defending or settling such claims. Notwithstanding the provisions of this
Section, Annuncio assumes no liability for infringement claims arising out of
the ▇▇▇▇▇ Fargo Materials or by ▇▇▇▇▇ Fargo modification of the Software without
Annuncio's authorization, or infringement claims based solely on the use or
combination of the Software by ▇▇▇▇▇ Fargo with materials, equipment, or
machinery not provided by Annuncio. THE PROVISIONS OF THIS SECTION 10.2(a)
STATES THE ENTIRE LIABILITY AND OBLIGATION OF ANNUNCIO AND THE EXCLUSIVE REMEDY
OF ▇▇▇▇▇ FARGO WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF COPYRIGHTS,
OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ANY PART THEREOF
(b) Annuncio shall, at its expense, defend and hold ▇▇▇▇▇ Fargo, its parent and
subsidiary companies and its directors, officers and employees harmless from any
and all damages, liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by ▇▇▇▇▇ Fargo arising out of or relating to any suit
or proceeding arising out of Annuncio's gross negligence, willful misconduct,
unlawful act, provided that ▇▇▇▇▇ Fargo promptly notifies Annuncio in writing of
any such claim and promptly tenders full control of the defense and settlement
of any such claim to Annuncio. ▇▇▇▇▇ Fargo shall cooperate with Annuncio, at
Annuncio's expense, in defending or settling such claims.
11. LIMITATIONS OF LIABILITY.
11.1 ▇▇▇▇▇ Fargo Materials. ▇▇▇▇▇ Fargo is responsible for the content of the
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▇▇▇▇▇ Fargo Materials. For all ▇▇▇▇▇ Fargo Materials, ▇▇▇▇▇ Fargo shall obtain
all licenses to, and releases of intellectual or proprietary rights subsisting
in such ▇▇▇▇▇ Fargo Materials before placement within the Service. If there is
any damage or loss of any ▇▇▇▇▇ Fargo Materials once installed on the Annuncio
Server, however caused, then ▇▇▇▇▇ Fargo's sole and exclusive remedy, and
Annuncio's sole and exclusive liability for such damage or loss is for Annuncio
to use all reasonable efforts to provide to ▇▇▇▇▇ Fargo the version of the ▇▇▇▇▇
Fargo Materials from Annuncio's most recent regularly scheduled backup of such
▇▇▇▇▇ Fargo Materials.
11.2 Limitation. IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR
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RELATED TO THIS AGREEMENT EXCEED [*]. FURTHER, IN NO EVENT SHALL ▇▇▇▇▇ FARGO,
ANNUNCIO, ANNUNCIO'S LICENSORS, OR ANNUNCIO'S SUPPLIERS
[*] = 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.
HAVE LIABILITY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 11.2
SHALL NOT APPLY TO ANY BREACH BY ANNUNCIO OR ITS CONTRACTORS OF CONFIDENTIALITY
OBLIGATIONS WITH REGARD TO ▇▇▇▇▇ FARGO CUSTOMER INFORMATION OR ANNUNCIO'S
INFRINGEMENT INDEMNITY OBLIGATIONS UNDER SECTION 10.2(A).
12. SETTLEMENT OF DISPUTES
12.1 The parties will endeavor to amicably resolve any dispute, controversy, or
claim arising out of or related to this Agreement, or breach thereof. In the
event, however, that any dispute, controversy, or claim cannot be amicably
resolved, it shall be finally settled by binding arbitration. Such arbitration
shall be conducted in the English language by the American Arbitration
Association in San Francisco, California under that organization's commercial
arbitration rules. The expense of arbitration will be borne by the losing party.
12.2 The parties agree that the award of the arbitrator shall be the final, sole
and exclusive remedy between them regarding any claims, counterclaims, issues or
accountings presented or pled to the arbitrator; that it shall be nonappealable;
that any monetary award shall be promptly paid, free of any tax, deduction or
offsets; and that any costs, fees or taxes incident to enforcing the award shall
be charged against the party resisting such enforcement. Judgment upon the award
of the arbitrator may be entered and enforced in any court having jurisdiction
thereof.
12.3 Notwithstanding Sections 12.1 and 12.2 above, no provision hereof shall
limit the right of either party to seek injunctive relief from a court of
competent jurisdiction before, after, or during the pendency of any arbitration.
The exercise of any such remedy shall not waive the right of any party to compel
arbitration hereunder.
13. INSURANCE
13.1 Insurance. Annuncio shall maintain adequate insurance coverage to protect
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▇▇▇▇▇ Fargo from any losses or claims which may arise out of the this Agreement,
the Software, or the performance of Services under this Agreement including (i)
statutory workers' compensation, disability and unemployment insurance for all
employees of Annuncio, (ii) commercial general liability insurance (including
contractual liability coverage, broad form property damage liability and
personal and bodily injury liability) covering all employees, subcontractors,
agents and servants of Annuncio and its subcontractors (if any) engaged in the
performance of services hereunder, with limits of at least [*] per occurrence,
(iii) professional liability insurance (errors and omissions) covering Annuncio,
its officers and employees with a limit of not less than [*] per occurrence, and
(iv) [*]. Upon ▇▇▇▇▇ Fargo's request, Annuncio shall provide to ▇▇▇▇▇ Fargo,
copies of certificates of insurance specifying the limits of insurance, copies
of insurance policies specifying the terms and conditions of that insurance, and
certification that the foregoing insurance is in full force and effect and will
not be canceled. In addition, Annuncio warrants that the insurance limits or the
insurance coverage shall not be materially reduced without a thirty (30) day
prior written notice to ▇▇▇▇▇ Fargo. [*] If any personnel assigned to ▇▇▇▇▇
Fargo are a subcontractors of Annuncio, Annuncio shall furnish ▇▇▇▇▇ Fargo, upon
request, with evidence that Annuncio's insurance covers such subcontractor or
that such subcontractor maintains the same types and level of insurance as that
required of Annuncio hereunder.
14. COMPLIANCE WITH LAWS
14.1 The Services performed hereunder will be performed in a manner which is in
accordance with all statutes, regulations and/or ordinances applicable to the
services covered hereby, including, but not limited to, all laws and regulations
pertaining to wages and hours of employment, social security, unemployment,
Workers Compensation and withholding of taxes.
[*] = 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.
15. SECURITY
15.1 While at ▇▇▇▇▇ Fargo's facilities, Annuncio employees shall have access
only to areas designated by ▇▇▇▇▇ Fargo. If Annuncio employees are issued
security badges, they shall be worn at all times while on ▇▇▇▇▇ Fargo premises,
and surrendered upon completion of the services at ▇▇▇▇▇ Fargo facilities, or
upon demand, which ever occurs first. Annuncio and Annuncio's employees shall
comply with all ▇▇▇▇▇ Fargo security regulations, policies and procedures
including those governing access to data, computer systems, and facilities and
governing the removal of property from ▇▇▇▇▇ Fargo's premises including all
security requirements set out in Schedule D that are applicable to performance
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of the Services, the Software, or the Annuncio Server hosting arrangement.
15.2 Individuals who have been convicted of a crime involving dishonesty or
breach of trust are prohibited from working for ▇▇▇▇▇ Fargo unless permission
has been granted by the appropriate Federal agency. If Annuncio or any employee
of Annuncio, who will be performing services under this Agreement, has a
criminal conviction record involving dishonesty or breach of trust, Annuncio
shall notify ▇▇▇▇▇ Fargo in writing prior to the commencement of the services
and/or assignment with ▇▇▇▇▇ Fargo. Upon receiving such notice, ▇▇▇▇▇ Fargo
shall decide, in its sole discretion, whether to petition the appropriate
Federal Agency for an exception.
16. GENERAL.
16.1 Assignment. Except with regard to assignment to Affiliates or to a merger
----------
or sale of substantially all or all ▇▇▇▇▇ Fargo assets, ▇▇▇▇▇ Fargo may not
assign any of its rights or delegate any of its obligations under this
Agreement, whether by operation of law or otherwise, unless it has first
obtained written approval from Annuncio, and the assignee or delegatee agrees,
also in writing, to be bound by all of the terms and conditions of this
Agreement. Except with regard to a merger or sale of all or substantially all
Annuncio assets, Annuncio may not assign its rights or obligations under this
Agreement or any licenses created hereunder without ▇▇▇▇▇ Fargo's prior written
consent, which consent shall not be unreasonably withheld, provided the assignee
or delegatee agrees, also in writing, to be bound by all of the terms and
conditions of this Agreement. Subject to the foregoing, this Agreement will bind
and inure to the benefit of the parties, their respective successors, and
permitted assigns.
16.2 Waiver and Amendment. No modification, amendment, or waiver of any
--------------------
provision of this Agreement shall be effective unless in writing and signed by
the party to be charged. No failure or delay by either party in exercising any
right, power, or remedy under this Agreement, except as specifically provided
herein, shall operate as a waiver of any such right, power or remedy.
16.3 Choice of Law; Jurisdiction, Venue. This Agreement shall be governed by the
----------------------------------
laws of the United States and the State of California, USA., excluding conflict
of laws provisions and excluding the 1980 United Nations Convention on Contracts
for the International Sale of Goods. ▇▇▇▇▇ Fargo agrees to comply with all U.S.
and foreign export control laws or regulations. The parties hereto agree to the
exclusive and personal jurisdiction of the state and federal courts located in
the Central District of California.
16.4 Notices. All notices, demands or consents required or permitted under this
-------
Agreement shall be in writing and delivered to the addresses set forth on the
Cover Sheet. Notice shall be considered delivered and effective on the earlier
of actual receipt or when: (a) personally delivered; (b) the day following
transmission if sent by telex, telegram or facsimile when followed by written
confirmation by registered overnight carrier or certified United States mail; or
(c) 1 day after posting when sent by registered private overnight carrier (e.g.,
Airborne, DHL, Federal Express, UPS etc.); or (d) 5 days after posting when sent
by certified United States mail. Notice shall be sent to the parties at the
addresses set forth on the first page of this Agreement or at such other address
as shall be specified by either party to the other in writing.
16.5 Independent Contractors. The parties are independent contractors. Neither
-----------------------
party shall be deemed an employee, agent, partner or legal representative of the
other for any purpose and neither shall have any right, power, or authority to
create any obligation or responsibility on behalf of the other.
Annuncio Software, Inc. - 8 - CONFIDENTIAL
16.6 Severability. If any provision of this Agreement is held by a court of
------------
competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
16.7 Force Majeure. Except for ▇▇▇▇▇ Fargo's obligations to pay money, neither
-------------
party shall be deemed to be in breach of this Agreement for any failure or delay
in performance caused by reasons beyond its reasonable control, including but
not limited to acts of God, earthquakes, strikes or shortages of materials.
16.8 Headings and References. The headings and captions used in this Agreement
-----------------------
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
16.9 Complete Understanding. This Agreement, including all Schedules,
----------------------
constitutes the final, complete, and exclusive agreement between the parties
with respect to the subject matter hereof, and supersedes any prior or
contemporaneous agreement.
16.10 Counterparts. This Agreement may be signed in two or more counterparts,
------------
each of which shall be deemed an original and together which shall constitute
one instrument.
Accepted and Agreed:
ANNUNCIO SOFTWARE, INC. ▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
------------- ----------------
Title: VP SALES Title: SVP, MARKETING
-------- --------------
Date: 10/7/99 Date: 10/6/99
------- -------
Schedule A
----------
ANNUNCIO SERVICES
This Schedule sets forth the terms and conditions upon which the Parties agree
that Annuncio shall render certain Services to ▇▇▇▇▇ Fargo. This Schedule is a
part of and incorporates the terms and conditions of that certain Pilot Software
License and Services Agreement between Annuncio and ▇▇▇▇▇ Fargo (the "BASE
AGREEMENT") with an Effective Date of October 6, 1999. Unless otherwise
defined herein, all capitalized terms used herein shall have the meaning set
forth in the Base Agreement.
1. SERVICES
--------
1.1 Services. Annuncio will, as ▇▇▇▇▇ Fargo and Annuncio may agree from time to
--------
time during the Term, provide the Services described in each separate Exhibit A
---------
attached hereto (each, a "STATEMENT OF WORK"). Each Exhibit A hereto shall be
---------
sequentially numbered (Exhibit(s) ▇-▇, ▇-▇, etc.) and shall not be binding until
it has been signed by both of the parties. In the event of a conflict with the
terms of the Base Agreement with this Schedule A or any Statement of Work, the
----------
terms of this Schedule A and the Statement of Work shall supersede the terms of
the Base Agreement and the terms of any Statement of Work shall supercede the
terms of this Schedule A. Notwithstanding the foregoing or any provisions in the
----------
Base Agreement or a Statement of Work, ▇▇▇▇▇ Fargo has no obligation whatsoever
to enter into a Statement of Work other than that set out in Exhibit A-1 hereto.
2. COMPENSATION.
------------
2.1 Services. ▇▇▇▇▇ Fargo shall pay Annuncio for performing the Services as
--------
shown in the applicable Exhibit A.
---------
2.2 Expenses. The ▇▇▇▇▇ Fargo shall also reimburse Annuncio for the pre-
--------
approved, reasonable actual travel and living expenses of its personnel engaged
in the performance of Services at locations other than Annuncio facilities,
together with other reasonable out-of-pocket expenses incurred in connection
with performance of the Services. Annuncio shall adhere to any travel policy
reasonably promulgated by ▇▇▇▇▇ Fargo.
3. OWNERSHIP. All right, title and interest in and to any enhancements,
---------
modifications or updates to the Software developed by Annuncio and furnished to
▇▇▇▇▇ Fargo hereunder shall be and remain with Annuncio. ▇▇▇▇▇ Fargo shall treat
all enhancements, modifications and updates, whether developed by Annuncio, in
accordance with the restrictions and limitations set forth in the Base Agreement
4. ▇▇▇▇▇ Fargo Obligations.
-----------------------
4.1 ▇▇▇▇▇ Fargo agrees not to use the Services or the Annuncio Server in a
manner that is prohibited by any law or regulation or to facilitate the
violation of any law or regulation. ▇▇▇▇▇ Fargo further agrees not to use the
Services in a manner that will disrupt third parties' use or enjoyment of any
communications service or outlets. ▇▇▇▇▇ Fargo acknowledges that prohibited
conduct includes, but is not limited to, use of the Service to invade the
privacy of third parties, impersonation of Annuncio personnel or other Annuncio
customers, transmitting via e-mail, USENET or chat service abusive, profane,
libelous, slanderous, threatening or otherwise harassing material and posting
material in any newsgroup that is off-topic according to the charter or other
public statement of the newsgroup. ▇▇▇▇▇ Fargo also agrees not to use any the
Services to solicit Annuncio customers to patronize competing services, and not
to violate or tamper with the security of any Annuncio Server or Software.
4.2 ▇▇▇▇▇ Fargo shall be solely responsible for all ▇▇▇▇▇ Fargo Materials
available on or through the Software hosted on the Annuncio Server. ▇▇▇▇▇ Fargo
acknowledges that Annuncio exercises no control whatsoever over the content of
the ▇▇▇▇▇ Fargo Materials and that it is the sole responsibility of ▇▇▇▇▇ Fargo
to ensure that the information it and its Users transmit and receive complies
with all applicable laws and regulations.
4.3 ▇▇▇▇▇ Fargo acknowledges that, except as specifically authorized in the
Agreement, it is expressly prohibited from utilizing any Annuncio dial-up
account, Annuncio's equipment, any Annuncio electronic mail
Annuncio Software, Inc. - 10 - CONFIDENTIAL
address, or any Annuncio Server in connection with the sending of the same or
substantially similar unsolicited electronic mail messages, whether commercial
or not, to a large number of recipients. ▇▇▇▇▇ Fargo specifically agrees that it
will not utilize any Annuncio dial-up account, Annuncio's equipment, any
Annuncio electronic mail address or any Annuncio Server in connection with the
transmission of the same or substantially similar unsolicited message to 50 or
more recipients or 15 or more newsgroups in a single day. For each day upon
which this provision is violated, ▇▇▇▇▇ Fargo agrees to pay Annuncio damages to
compensate for the lost goodwill such a violation causes. ▇▇▇▇▇ Fargo agrees to
pay Annuncio $10 per day for an unintentional violation of this provision, but
where warranted, such as in the case of an accidental transmission, Annuncio may
waive all or part of the applicable charge. In cases of willful violations of
this provision, ▇▇▇▇▇ Fargo agrees to pay Annuncio $200 per day. . Payment by
▇▇▇▇▇ Fargo under this provision shall not prevent Annuncio from seeking to
obtain other legal remedies against ▇▇▇▇▇ Fargo, including other damages or an
injunction.
5. SERVICE LEVELS. Annuncio shall perform all Services and assure that any
--------------
third party subcontractor used by Annuncio performs in accordance with the
Service Levels set out in Schedule C..
5.1 Annuncio Warranty. Annuncio will use all commercially reasonable efforts
-----------------
to: (i) make the Annuncio Servers available 24 hours per day, 7 days per week;
(ii) promptly investigate any problems that ▇▇▇▇▇ Fargo reports to Annuncio; and
(iii) resolve problems or errors promptly.
5.2 Credit for Non-Availability. If the Annuncio Servers, Software, and/or
---------------------------
related Services are available less than 90% of the time (excluding scheduled
maintenance and backups each day ("Uptime Target"), then Annuncio shall credit
▇▇▇▇▇ Fargo for the unavailable time by extending the term of this Agreement one
day, without additional charge, for each day in which the Uptime Target is not
met.
6. INTEGRATION. All other terms and conditions set forth in the Base Agreement
-----------
are incorporated herein by this reference, including the provisions of Section
16 of the Base Agreement, entitled "General Provisions."
Accepted and Agreed:
ANNUNCIO SOFTWARE, INC. ▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
------------- ----------------
Title: VP SALES Title: SVP, MARKETING
-------- --------------
Date: 10/7/99 Date: 10/6/99
------- -------
[*] = 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 A-1
-----------
STATEMENT OF WORK
1. STATEMENT OF WORK OVERVIEW
1.1 Background. ▇▇▇▇▇ Fargo wishes to use the Software, Annuncio Live /TM/,
----------
in a hosted environment using an Annuncio Server. This Statement of Work ("SOW")
describes the Services that Annuncio will provide to implement, integrate, and
host the Software for use by ▇▇▇▇▇ Fargo.
1.2 The goals of this Statement of Work are to define the following:
(a) Hosting, data, integration, campaign, and support Services to be
provided by Annuncio
(b) Deliverables to be provided by Annuncio
(c) Tasks and other responsibilities of ▇▇▇▇▇ Fargo related to the SOW
(d) Key assumptions
(e) Consulting costs
1.3 Additionally, this SOW will be used to document ▇▇▇▇▇ Fargo's acceptance
of the work scope as defined within, and serve as an authorization to commence
delivery of the defined Services.
2. PROJECT SCOPE
2.1 This document is a complete description of the Services and deliverables
to be provided by to ▇▇▇▇▇ Fargo by Annuncio.
2.2 The topics covered in this section are:
(a) Goals and Objectives
(b) Project planning and project management
(c) Hosting Services
(d) Data and integration Services
(e) Campaign Services
(f) Support Services
(g) Key assumptions
(h) ▇▇▇▇▇ Fargo responsibilities
2.1 GOALS AND OBJECTIVES
2.1.1 OBJECTIVES
(a) The objectives of ▇▇▇▇▇ Fargo's engagement of Annuncio as a Service
provider are as follows:
* For Annuncio to provide access to ▇▇▇▇▇ Fargo of an hosted version
of the Annuncio Live Software for the duration of the Agreement at
a are, Inc. third party location under the control of Annuncio.
Annuncio Software -12- CONFIDENTIAL
* For Annuncio to assist ▇▇▇▇▇ Fargo in creating an Annuncio Live
Database
* For Annuncio to assist ▇▇▇▇▇ Fargo in defining profile fields
* For Annuncio to assist ▇▇▇▇▇ Fargo in performing initial data
load.
* For Annuncio to assist ▇▇▇▇▇ Fargo in creating an initial campaign
* For Annuncio to train ▇▇▇▇▇ Fargo on the use of Annuncio Live
Software
2.2 ANNUNCIO SERVICES. Annuncio will provide the following specific Services
and Deliverables to ▇▇▇▇▇ Fargo as part of this SOW:
2.2.1. PROJECT PLANNING AND PROJECT MANAGEMENT BACKGROUND. Annuncio will manage
the project described in this document.
2.2.2 SERVICES. Annuncio will provide the
following services.
a) Organize and lead a "kickoff meeting" with ▇▇▇▇▇ Fargo for overall
project planning.
* Discussion of project goals and objectives
* Definition of key milestones
* Assignment of members of project team from Annuncio and ▇▇▇▇▇
Fargo
b) Create a project plan and schedule.
c) Maintain a shared email list for the project team.
d) Participate with ▇▇▇▇▇ Fargo in regular project review meetings during
the implementation phase.
e) An Implementation Closure Meeting will be held once the campaign and
data services are complete. At this meeting, Annuncio will obtain final approval
and sign-off from ▇▇▇▇▇ Fargo of the deliverables. Annuncio will review the
Services provided as a part of this SOW, document any outstanding issues
remaining, and solicit feedback from ▇▇▇▇▇ Fargo regarding the Services provided
and the Annuncio personnel assigned to the project. This meeting will also serve
as a transitional milestone between the Services provided by the Annuncio under
the terms of this Statement of Work, and the ongoing support Services described
in sections concerning Technology and Hosting Services and Ongoing Support
Services.
2.2.3 DELIVERABLES
Project plan and schedule
2.2.4 TECHNOLOGY AND HOSTING SERVICES
2.2.4.1 BACKGROUND. Annuncio will provide ▇▇▇▇▇ Fargo with access to a hosted
version of Annuncio Live Software during the term of the Agreement.
2.2.4.2 SERVICES
a. Annuncio will provide the following Services.
* A hosted version of Annuncio Live Software, including:
Annuncio Software, Inc. -13- CONFIDENTIAL
* Hosting of Annuncio Server including but not limited to the
Annuncio Live Campaign Server, Live Access Server, Mailcaster and
Live Database
* Hosting of Annuncio Server including but not limited to the email
and web servers needed to run online marketing campaigns using
Annuncio Live Software.
* Access from the Annuncio Server to the internet for outbound email
and inbound responses
b. An Annuncio Server configured and tuned to support the volume of marketing
interactions specified in the Agreement.
* Agreed upon security for the ▇▇▇▇▇ Fargo Data residing in the
Annuncio Live Database
* System management to ensure Annuncio Server availability for ▇▇▇▇▇
Fargo campaigns
* Backup of the Annuncio Live Database
* Installation of the Annuncio Live client(s) at ▇▇▇▇▇ Fargo
* Access from the Annuncio Live client(s) residing at ▇▇▇▇▇ Fargo, to
the hosted Annuncio Software over the Internet
2.2.4.3. DELIVERABLES
a. Annuncio Live client software
b. Configured and operational Annuncio Live Software system hosted at a
location under the control of Annuncio.
2.2.4.4 CONSTRAINTS / LIMITATIONS
a The Software system will be limited to the volume specified in the Agreement.
b From time to time, Annuncio may be required to perform some Software system
maintenance that will result in system downtime. Annuncio will endeavor to
coordinate this maintenance with ▇▇▇▇▇ Fargo and provide adequate notice of
anticipated downtime.
2.2.5 DATA SERVICES
2.2.5.1 BACKGROUND. Annuncio will provide ▇▇▇▇▇ Fargo with services to assist
in building a Live Database for online marketing.
2.2.5.2 SERVICES. Annuncio will provide the following services.
a) Assistance to ▇▇▇▇▇ Fargo in designing and defining the profile fields for
the Live Database
b) Assistance to ▇▇▇▇▇ Fargo in performing initial data load
c) The data to be loaded into Annuncio will be provided by ▇▇▇▇▇ Fargo in a
flat file format compatible with the Annuncio Live Import Utility, from the
▇▇▇▇▇ Fargo database
d) Ability for ▇▇▇▇▇ Fargo to load data on an ad-hoc basis using an Import
Utility.
Annuncio Software, Inc. - 14 - CONFIDENTIAL
2.2.5.3 DELIVERABLES
a) Import Utility
b) Import of flat file
2.2.5.4 CONSTRAINTS / LIMITATIONS.
a) ▇▇▇▇▇ Fargo will provide a flat file of data to load via an extract from the
appropriate internal system.
b) The format and content of the flat file must be compatible with the
requirements of the AnnuncioLive Import Utility.
c) The scope of integration is limited to importing into Annuncio Live initial
data load of data records supplied by ▇▇▇▇▇ Fargo in the required format.
d) Annuncio will provide additional integration services for a rate of [*]
per day.
2.2.6. CAMPAIGN SERVICES
2.2.6.1 BACKGROUND. During the term of this Agreement, Annuncio will assist
▇▇▇▇▇ Fargo in creating and launching the initial campaign.
2.2.6.2 SERVICES
a) Annuncio will provide the following services.
b) Annuncio will train ▇▇▇▇▇ Fargo on how to use Annuncio Live to create
campaigns.
c) Annuncio will assist ▇▇▇▇▇ Fargo in creating and launching the initial
campaign.
2.2.6.3 DELIVERABLES. Training and support on initial campaign creation.
2.2.6.4 CONSTRAINTS / LIMITATIONS. Annuncio will assist in creating additional
campaigns for a rate of [*] per day.
2.2.7 ONGOING SUPPORT SERVICES
2.2.7.1 BACKGROUND. Annuncio will provide ongoing support to ▇▇▇▇▇ Fargo.
2.2.7.2 SERVICES. Annuncio will provide the following services:
a. Telephone and internet-based support to assist with any product usage
questions or any software and system problems.
b. Operations support to manage the hosted Annuncio Live system
c. Optionally, Annuncio will provide additional technical or campaign
consulting services at the rate of [*] per day.
2.2.7.3 DELIVERABLES
[*] = 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.
a. Contacts for support and systems management
2.2.7.4 CONSTRAINTS / LIMITATIONS
a. Full terms and conditions for support can be found in the support contract.
b. Deliverables Support & Warranty. Annuncio, at no charge, will correct any
bugs discovered in any of the integration components within a period of 30 days
after its delivery to ▇▇▇▇▇ Fargo. Support or enhancements thereafter will be
billed at the standard rate on a time and materials basis.
2.2.7.5 ASSUMPTIONS
A) GENERAL ASSUMPTIONS
* ▇▇▇▇▇ Fargo and Annuncio Software will mutually agree upon a
start date for this Statement of Work once ▇▇▇▇▇ Fargo signs
the SOW and returns the signed SOW to Annuncio Software.
* ▇▇▇▇▇ Fargo resources and personnel will be sufficient to
perform those project tasks that are the responsibility of
▇▇▇▇▇ Fargo.
* For those tasks which Annuncio Software elects to perform
on-site at ▇▇▇▇▇ Fargo's facility, ▇▇▇▇▇ Fargo will ensure
that Annuncio Software personnel have access to the
necessary facilities, equipment and appropriate ▇▇▇▇▇ Fargo
personnel as may be required to complete the tasks defined
within this SOW.
* For the duration of the project, ▇▇▇▇▇ Fargo will provide
Annuncio with suitable workspace, access to conference rooms
or classrooms, security clearances for access to ▇▇▇▇▇ Fargo
facilities, access to telephones with outside lines, a
copier, and normal office supplies as needed.
* Annuncio Software will generally perform all services during
normal business hours: 9:00 AM - 5:00 PM, Monday through
Friday. No work will be performed on Annuncio Software
holidays. Annuncio Software will provide ▇▇▇▇▇ Fargo with a
list of company holidays upon request.
* For the duration of the project, will provide Annuncio
▇▇▇▇▇ Fargo with suitable workspace, access to conference
rooms or classrooms, security clearances for access to
Annuncio facilities, access to telephones with outside
lines, a copier, and normal office supplies as needed.
2.2.8 ▇▇▇▇▇ FARGO RESPONSIBILITIES
2.2.8.1 GENERAL RESPONSIBILITIES
a) ▇▇▇▇▇ Fargo's general responsibilities related to the services to be
provided by Annuncio Software under this SOW include the following:
b) Providing primary sponsorship of the project
c) Provision of the necessary project resources to complete the tasks assigned
to ▇▇▇▇▇ Fargo as defined above and within this section
Annuncio Software, Inc. - 16 - CONFIDENTIAL
2.2.8.2 SPECIFIC RESPONSIBILITIES
a) ▇▇▇▇▇ Fargo will appoint and assign an overall Project Manager, to represent
and manage the project from ▇▇▇▇▇ Fargo's perspective.
b) ▇▇▇▇▇ Fargo will similarly assign technical and campaign representatives, as
necessary, for the duration of this engagement. These representatives will
have sufficient skills and availability to work with Annuncio staff and
execute the responsibilities described herein, thus ensuring the success of
the project.
c) ▇▇▇▇▇ Fargo will provide the hardware needed to run client versions of
Annuncio Live, and any necessary connections between the client and the
Internet.
d) ▇▇▇▇▇ Fargo will provide a flat file from the data source to be imported
into Annuncio
e) ▇▇▇▇▇ Fargo will assist with testing of any imports.
f) ▇▇▇▇▇ Fargo will provide information for and assist with the design of
profiles.
3. PROJECT COSTS
3.1 ASSUMPTIONS
All work will take place at either the Annuncio Mountain View office or the
▇▇▇▇▇ Fargo facility. Any incurred travel or other expenses will be billed to
▇▇▇▇▇ Fargo for work at other than the Annuncio Mountain View Office or the
▇▇▇▇▇ Fargo facility..
3.2 TERMS
3.2.1 Payment terms for the services described
within this SOW are as follows:
3.2.2. The costs are based on the services described and assumptions
documented within this SOW.
3.2.3 Charges for services and related expenses
will be invoiced to ▇▇▇▇▇ Fargo in the following manner:
3.2.4 Additional consulting services, including
additional integration services or the creation of additional campaigns, will be
billed monthly as the work is completed. Payment is due net 30 days.
3.2.5 Should additional work be identified as a
result of changes in activities or complexity of the activities, Change Orders
will be generated for ▇▇▇▇▇ Fargo approval prior to initiation of the additional
work.
3.3 COSTS
STARTUP FEE-ONE-TIME CHARGE [*]
Install and setup hardware and software Included in startup fee
in hosted environment
Setup Annuncio Live profile database Included in startup fee
Perform initial data load Included in startup fee
[*] = 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.
STARTUP FEE--ONE-TIME CHARGE [*]
Setup remote access to Annuncio Live Included in startup fee
at Annuncio and at ▇▇▇▇▇ Fargo when
security issues are resolved
Provide Annuncio Live training for Included in startup fee
up to six people
Assist in design, creation, testing, Included in startup fee
and launch of initial campaign
MONTHLY FEE - SERVICE CONTRACT (6 MONTHS MAXIMUM, COMMENCING NOVEMBER 1, 1999)
Up to 200,000 marketing transactions [*]
per month
Hardware & software monitoring and Included in monthly service
management
Database administration, management Included in monthly service
and backup
Ongoing technical support Included in monthly service
Consulting services (up to [*] Included in monthly service
per month)
4. AUTHORIZATION TO PROCEED
Annuncio Software, Inc. and ▇▇▇▇▇ Fargo Bank, N.A.. hereby agree to the
description of services contained in this Statement of Work, and ▇▇▇▇▇ Fargo &
Co. hereby authorizes commencement of the services.
ANNUNCIO SOFTWARE, INC. ▇▇▇▇▇ FARGO BANK, N.A.
Signature /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Signature /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Name ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
------------- ----------------
Title VP, SALES Title SVP, MARKETING
--------- --------------
Date 10/7/99 Date 10/6/99
------- -------
[*] = 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.
Schedule B
----------
PRICING
Pricing will take one of two forms: either as a services-based pricing model or
as a product-based pricing model.
SERVICES PRICING MODEL COST
Rate per month for managing volumes of up to [*] marketing [*]
transactions per month for total outsourced solution for services
described below
Pricing of services does not include travel and expenses. ▇▇▇▇▇ Fargo is not
responsible for travel time to and from ▇▇▇▇▇ Fargo, nor lodging/per Diem
expenses while at ▇▇▇▇▇ Fargo.
Payment for other functions performed by Annuncio will be mutually agreed upon.
The monthly rate of [*] assumes a six-month commitment. In the event that
▇▇▇▇▇ Fargo continues to request Services from Annuncio after the initial six-
month commitment for all or part of the remainder of the one (1) year initial
term, Annuncio will provide the Services on the same terms and conditions on a
month to month basis for the period of time selected by ▇▇▇▇▇ Fargo.
SERVICES PROVIDED BY ANNUNCIO SOFTWARE Annuncio's services will be as set forth
in the applicable Statement of Work.
PRICING OF SOFTWARE LICENSE & MAINTENANCE (IF OPTION EXERCISED BY ▇▇▇▇▇ FARGO)
SOFTWARE LICENSE
IF ANNUNCIO LIVE IS PURCHASED WITHIN SIX (6) MONTHS OF
EFFECTIVE DATE: [*]
FIRST YEAR MAINTENANCE [*]
SOFTWARE: Perpetual license for Annuncio Live Enterprise Version
VOLUME: Up to [*] million marketing transactions per year ("Marketing
Transaction" is defined as both an outbound email and an initial
entry into an Annuncio Live campaign. Marketing transactions are
tracked by annuncio through periodic system audits, which would
occur no more frequently than quarterly and no less frequently
than annually.)
MAINTENANCE: After year-one, annual maintenance is billable at a rate of 18%
of the then-license fee actually paid by ▇▇▇▇▇ Fargo for the
Annuncio Live software. Annuncio shall not increase the rate for
the annual maintenance fee more than annually and no more than of
[*] of the amount charged for the preceding year's annual
maintenance fee.
SERVICES: Additional consulting services may be provided upon ▇▇▇▇▇ Fargo
request at Annuncio's then-current prices for Professional
Services. Cost of onsite consulting will not include travel time
to ▇▇▇▇▇ Fargo, nor per diem expenses, lodging or transportation
to lodging.
TRAINING: Additional training services may be provided upon ▇▇▇▇▇ Fargo
request at Annuncio's then-current prices for training services.
[*]
SERVERS: One Annuncio Live Enterprise server, plus provision for backup
server.
[*] = 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.
CLIENTS: [*]
OTHER: As Annuncio charter member, will have the opportunity to
participate in semi-annual meetings to provide input and counsel
on future releases of Annuncio Live.
[*] = 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.
Schedule C
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SERVICE LEVELS
ANNUNCIO SOFTWARE STANDARD SUPPORT
. A 90-day media warranty: Annuncio will replace defective media during the
first 90 days.
. Software upgrades: Includes maintenance releases as well as upgrades.
. Support for current release and one level back, for up to one year.
. Standard hours of telephone support: 8 a.m. to 5 p.m., Pacific Time, with
support for unlimited number of incidents. Extended hours available at
additional cost.
. Call back response times: 1 business hour for emergencies, 4 hours
for urgent, and 24 hours for others. All hours are business hours.
. Four named customer contacts for support -two technical (one primary and
one backup) and two marketing (one primary and one backup). Additional
contacts may be added at additional cost. Contacts must be properly trained
in the use of the product, for instance, by attending the relevant training
class.
. ▇▇▇▇▇ Fargo-defined priorities: ▇▇▇▇▇ Fargo defines business impact of
issue, when initially contacting Technical Support. Once issue is
understood by Annuncio, however, Annuncio might, at its discretion, re-
assign a different priority to the case.
. Defect fixes will be deliverable via patch for emergencies without
workaround. Major issues will be addressed via fix in the next maintenance
release. Patches may be individual or cumulative, at Annuncio's discretion.
. Annuncio Software reserves the right to make changes to its standard
support, upon 30 days written notice to ▇▇▇▇▇ Fargo.
[*] = 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.
Schedule D.
-----------
▇▇▇▇▇ FARGO DATA SECURITY REQUIREMENTS
As necessary, Annuncio shall comply with the following ▇▇▇▇▇ Fargo security
requirements when performing the services or providing maintenance services and
Annuncio shall require that any third party providing the hosting services for
Annuncio shall agree in writing to comply with such requirements.
1. Annuncio agrees that ▇▇▇▇▇ Fargo personnel will be responsible for
determining and maintaining all levels of security residing on ▇▇▇▇▇ Fargo
hardware or systems.
2. Annuncio agrees that it will not permit unauthorized traffic to access,
either directly or indirectly, ▇▇▇▇▇ Fargo networks from or through Annuncio's
end of the common Internet connection.
3. ▇▇▇▇▇ Fargo reserves the right to immediately disconnect Annuncio's service
upon the discovery of any unauthorized access, via Annuncio's end of the common
Internet connection, to ▇▇▇▇▇ Fargo networks. All of Annuncio's commitments with
regard to any service provisions of this Agreement shall, however, remain in
full force. Such commitments shall be satisfied by on-site servicing until the
nature of such inappropriate access is investigated and resolved to ▇▇▇▇▇
Fargo's satisfaction.
4. Annuncio agrees that any server access required by Annuncio's staff through
outside security products will be in a read-only mode unless prior written
approval for more intrusive access is granted by the manager of ▇▇▇▇▇ Fargo Data
Security Architecture. Such approval shall be necessary for each separate
instance in which non read-only access is desired.
5. Annuncio agrees that access will be strictly limited to platforms or
protocols that have been documented in this agreement. Annuncio agrees that
▇▇▇▇▇ Fargo will be notified if the configuration changes at Annuncio's end of
the connection.
6. Annuncio and its product packages may transfer files to the ▇▇▇▇▇ Fargo
domain, but such transfer cannot be made through File Transfer Protocol (FTP).
Whenever feasible, Annuncio shall use the file transfer method known as Connect:
Direct.
7. Annuncio agrees (1) to be alert to all "holes" and "fixes" through an
industry-recognized service that issues Computer Emergency Response Team (CERT)
advisories, and (2) to act diligently in applying such "fixes" to the
appropriate system.
8. Annuncio agrees that it will supply ▇▇▇▇▇ Fargo with a letter certifying
that Annuncio has developed and engineered its software without any "back doors"
or "trap doors" which allow for application code access through the bypassing of
any/all security features. If there are any such accesses for programming and
code modification, Annuncio agrees that it will use its best efforts to
immediately identify those accesses to ▇▇▇▇▇ Fargo and assist ▇▇▇▇▇ Fargo in
eliminating them. Annuncio shall perform such services at no additional cost to
▇▇▇▇▇ Fargo. If Annuncio is using software obtained from or through a third
party, Annuncio agrees to obtain such a certification letter from that third
party.
9. Annuncio certifies that each and every person working for Annuncio under
this Agreement, including but not limited to its staff, contractors, and sub-
contractors, has undergone a background investigation and that no such person
has been either charged with, or convicted of, embezzlement, fraud, antitrust,
or any other financial related crime.
10. Annuncio agrees and understands that the project security will be
implemented incrementally and in direct proportion to the concurrent level of
access to production data. Annuncio further agrees to allow ▇▇▇▇▇ Fargo to
Annuncio Software, Inc. -22- CONFIDENTIAL
conduct network assessments, and such assessments are to occur on a schedule to
be mutually agreed upon. Annuncio understands that should an ▇▇▇▇▇ Fargo
assessment reveal inappropriate or inadequate security, based upon security
requirements as defined by ▇▇▇▇▇ Fargo, ▇▇▇▇▇ Fargo may remove Annuncio access
from the ▇▇▇▇▇ Fargo network until Annuncio complies, to ▇▇▇▇▇ Fargo's
satisfaction, with said security requirements.
11. Annuncio agrees to establish and maintain all application and system logs
under its domain and further agrees that it shall provide ▇▇▇▇▇ Fargo with a
copy of all logs on a weekly basis, unless ▇▇▇▇▇ Fargo shall request such logs
with greater frequency.
12. Annuncio agrees to provide ▇▇▇▇▇ Fargo with a documented description of its
disaster recovery strategy/capability. This description will address actions to
be taken by Annuncio in the event of an extended outage of service (Such an
outage could be caused by a number of events ranging from technical
hardware/software/network related malfunctions to a catastrophic disaster). The
description should address:
* Risk avoidance and disaster prevention provisions in place (e.g.
physical security systems, fire protection/suppression systems,
equipment spare parts on-site, Uninterrupted Power Supply (UPS) and
backup generators, etc.).
* Recovery time frames (In the event of an outage, how many hours
until service will be restored? For a worst case scenario, define
the maximum allowable downtime).
* Data backup and off-site storage process.
* Lost customer data/data in progress recovery.
* Service recovery strategy (e.g. internal/redundant backup,
commercial hotsite backup, equipment "quick ship" agreements with
other Servers, etc.).
* Notification process.
* Recovery testing process (How many recovery tests per year? Is
▇▇▇▇▇ Fargo involved in recovery testing?).
* Recovery Plan maintenance (Who maintains the recovery plan? How
frequently is it reviewed and/or updated as a result of
technical/product/service changes?).
* Define the recovery roles and responsibilities assumed by Annuncio
and ▇▇▇▇▇ Fargo, respectively.
13. Annuncio certifies that its internal security meets the minimum standard
security requirements, current as of the date of this Agreement and as may be
updated by ▇▇▇▇▇ Fargo from time to time, as documented by Norwest Security
Planning. Prior, written permission is required for each separate instance in
which Annuncio fails to meet such security requirements. Failure to obtain such
permission shall, in each such instance, constitute a material breach of this
Agreement.
Annuncio Software, Inc. -23- CONFIDENTIAL