License Agreement - NetGravity Inc. and NetZero Inc.
NETGRAVITY ADSERVER LICENSE AGREEMENT
This Agreement is made and entered into as of this 28th day of August,
1998 ("Effective Date") by and between NetGravity, Inc., a Delaware
corporation, having its principal place of business at 1700 S. Amphlett
Blvd., Suite 350, San Mateo, CA 94402 ("NetGravity") and the entity at the
location listed on Exhibit A hereto ("Licensee").
RECITALS
A. NetGravity is the owner of proprietary Internet web site advertising
sales and management software products.
B. Licensee wishes to obtain a license to use such software on the terms
and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
1. DEFINITIONS
The following terms shall have the following meanings:
1.1 "SOFTWARE" means the proprietary Internet web site advertising sales and
management software program developed by NetGravity known as AdServer which
is comprised of the Program Components, in object code form only, and any
updates and upgrades as may be issued to Licensee by NetGravity after the
Effective Date.
1.2 "PROGRAM COMPONENT(S)" means the AdManager component, AdServer
component, the AdClient component, the AdConsole component, and the AdInsight
Server as further described on Exhibit A.
1.3 "SITE(S)" means Licensee's site or sites on the World Wide Web.
2. GRANT OF RIGHTS
2.1 GRANT OF LICENSE. Subject to the terms and conditions of this
Agreement, NetGravity hereby grants to Licensee a perpetual, worldwide,
nonexclusive, nontransferable (except in accordance with Section 12.1)
license, to install and use the number of copies of each Program Component of
the Software licensed as indicated on Exhibit A internally to manage
advertising on the Site(s). Licensee may make backup copies of the Software
for archival or disaster recovery purposes.
2.2 RESTRICTIONS. The license granted herein is granted solely to the
person or entity set forth on Exhibit A, and not, by implication or
otherwise, to any parent, subsidiary or affiliate of such person or entity.
No right is granted hereunder to use the Software to perform advertising
management services for third parties (so-called "service bureau" uses). All
rights not expressly granted hereunder are reserved to NetGravity. Licensee
may not copy, distribute, reproduce, use or allow access to the Software
except as explicitly permitted under this Agreement, and Licensee will not
modify, adapt, translate, prepare derivative works from, decompile, reverse
engineer, disassemble or otherwise attempt to derive source code from the
Software or any internal data files generated by the Software. Licensee shall
not remove, obscure, or alter NetGravity's copyright notice, trademarks, or
other proprietary rights notices affixed to or contained within the Software.
2.3 OWNERSHIP. NetGravity owns and shall retain all right, title, and
interest in and to the Software, including all copyrights, patents, trade
secret rights, trademarks and other intellectual property rights therein.
Licensee shall provide NetGravity with access to Licensee's facilities, at
reasonable times and upon reasonable notice, to verify Licensee's compliance
with the terms of this Agreement.
3. DELIVERY OF THE SOFTWARE
3.1 DELIVERY. As soon as practicable following the Effective Date,
NetGravity shall deliver the Software electronically or by other means
mutually agreed upon to Licensee at the location(s) set forth on Exhibit A.
3.2 INSTALLATION AND TRAINING. As soon as practicable following the
delivery of the Software, NetGravity will provide reasonable assistance to
Licensee by telephone and e-mail in installing the Software. At Licensee's
request, on-site installation assistance and training may be provided at
NetGravity's standard rates, plus reasonable travel expenses.
4. FEES
4.1 LICENSE FEE. In consideration for the rights granted hereunder,
Licensee shall pay NetGravity license fees in the amounts and on the payment
terms set forth on Exhibit A.
4.2 TAXES. Licensee shall be responsible for all sales taxes, use taxes and
any other similar taxes imposed posed by any federal, state or local
governmental entity on the transactions contemplated by this Agreement,
excluding U.S. taxes based upon NetGravity's income. When NetGravity has the
legal obligation to pay or collect such taxes, the appropriate amount shall
be invoiced to and paid by Licensee unless Licensee provides NetGravity with
a valid tax exemption certificate authorized by the appropriate taxing
authority.
4.3 U.S. DOLLARS. All fees quoted and payments made hereunder shall be in
U.S. Dollars.
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NETGRAVITY ADSERVER LICENSE AGREEMENT
5. NETGRAVITY SUPPORT
At Licensee's request, NetGravity will offer maintenance and technical
support with respect to the Software under its then current standard Software
Maintenance Subscription and Support Agreement, a copy of which is attached
as Exhibit B.
6. WARRANTY AND DISCLAIMER
NetGravity warrants that for a period of forty-five (45) days following the
delivery of the Software: (i) the Software shall operate substantially in
accordance with the then current documentation for such Software and (ii) the
media on which the Software is furnished shall be free from defects in
materials and faulty workmanship under normal use. NetGravity does not
warrant that the Software will meet all of Licensee's requirements or that
the use of the Software will be uninterrupted or error-free. NetGravity's
sole obligation under this warranty is to use reasonable efforts to correct
any non-conforming Software. Except as expressly provided herein, NETGRAVITY
LICENSES THE SOFTWARE TO LICENSEE ON AN "AS IS" BASIS. NETGRAVITY MAKES NO
OTHER WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR
CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT.
7. INDEMNIFICATION
7.1 BY NETGRAVITY. NetGravity shall indemnify, defend and hold harmless
Licensee from any and all damages, liabilities, costs and expenses (including
reasonable attorneys' fees) incurred by Licensee as a result of any claim
that the Software, when used within the scope of this Agreement, infringes
any copyright, trademark, or trade secret of any third party; provided that
Licensee promptly notifies NetGravity in writing of any such claim and
promptly tenders the control of the defense and settlement of any such claim
to NetGravity at NetGravity's expense and with NetGravity's choice of
counsel. Licensee shall cooperate with NetGravity, at NetGravity's expense,
in defending or settling such claim and Licensee may join in defense with
counsel of its choice at its own expense. If the Software is, or in the
opinion of NetGravity may become, the subject of any claim for infringement
or if it is adjudicatively determined that the Software infringes then
NetGravity may, at its option and expense, either (i) procure for Licensee
the right from such third party to use the Software or (ii) replace or modify
the Software with other suitable and reasonably equivalent products so that
the Software become noninfringing or (iii) if (i) and (ii) are not
practicable, terminate this Agreement.
7.2 EXCLUSIONS. NetGravity shall have no liability for any infringement
arising from (i) the use of other than the then-current, commercially
available version of the Software; (ii) the use of the Software other than as
set forth in its accompanying documentation; (iii) the modification of the
Software unless such modification was made or authorized by NetGravity, when
such infringement would not have occurred but for such modification; or (iv)
the combination or use of the Software with other software, hardware or other
products not approved by NetGravity in advance if such infringement would
have been avoided by the use of the Software not in such combination. THIS
SECTION 7 STATES NETGRAVITY'S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM
REGARDING THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
7.3 BY LICENSEE. Licensee shall indemnify, hold harmless and defend
NetGravity from and against any and all claims, liabilities, damages and
expenses (including reasonable attorneys' fees) incurred by NetGravity as a
result of any breach by Licensee of this Agreement; provided that NetGravity
promptly notifies Licensee in writing of any such claim and promptly tenders
to Licensee the control and defense and settlement of such claim at
Licensee's expense and with Licensee's choice of counsel. NetGravity shall
cooperate with Licensee, at Licensee's expense, in defending or settling such
claim and NetGravity may join in defense with counsel of its choice at its
own expense.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL NETGRAVITY'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE
USE OR PERFORMANCE OF THE SOFTWARE EXCEED THE SUM OF THE LICENSE FEES
ACTUALLY PAID BY LICENSEE HEREUNDER. IN NO EVENT SHALL EITHER PARTY HAVE ANY
LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; PROVIDED,
HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO ANY BREACH BY LICENSEE OF
THE LICENSE RESTRICTIONS OR ITS CONFIDENTIALITY OBLIGATIONS. THE PARTIES
AGREE THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK.
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NETGRAVITY ADSERVER LICENSE AGREEMENT
9. CONFIDENTIALITY
9.1 DEFINITION. The term "Confidential Information" shall mean any
information disclosed by one party to the other party in connection with
this Agreement which is disclosed in writing, orally or by inspection and is
identified as "Confidential" or "Proprietary" or which a party has reason to
believe is treated as confidential by the other party. Any information, in
whatever form, disclosed by NetGravity that relates to the Software and that
is not publicly known is "Confidential Information."
9.2 OBLIGATION. Each party shall treat as confidential all Confidential
Information received from the other party, shall not use such Confidential
Information except as expressly permitted under this Agreement, and shall not
disclose such Confidential Information to any third party without the other
party's prior written consent. Each party shall take reasonable measure to
prevent the disclosure and unauthorized use of Confidential Information of
the other party.
9.3 EXCEPTIONS. Notwithstanding the above, the restrictions of this Section
shall not apply to information that:
a) was independently developed by the receiving party without any use
of the Confidential Information of the other party and by employees or other
agents of (or independent contractors hired by) the receiving party who have
not been exposed to the Confidential Information;
b) becomes known to the receiving party, without restriction, from a
third party without breach of this Agreement and who had a right to disclose
it;
c) was in the public domain at the time it was disclosed or becomes in
the public domain through no act or omission of the receiving party;
d) was rightfully known to the receiving party, without restriction,
at the time of disclosure; or
e) is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body; provided, however, that
the receiving party shall provide prompt notice thereof to the other party
and shall use its reasonable best efforts to obtain a protective order or
otherwise prevent public disclosure of such information.
10. TERM AND TERMINATION
10.1 TERM. The term of this Agreement shall commence on the Effective Date
and shall continue in force until terminated as follows:
a) If Licensee fails to make any payment due within thirty (30) days
after receiving written notice from NetGravity that such payment is
delinquent, NetGravity may terminate this Agreement on written notice to
Licensee at any time following the end of such thirty (30) day period.
b) If either party materially breaches any term or condition of this
Agreement and fails to cure that breach within thirty (30) days after
receiving written notice of the breach, the nonbreaching party may terminate
this Agreement on written notice at any time following the end of such thirty
(30) day period.
c) This Agreement shall terminate immediately upon notice in the event
Licensee becomes insolvent (i.e., becomes unable to pay its debts in the
ordinary course of business as they come due) or makes an assignment of this
Agreement for the benefit of creditors.
10.2 SURVIVAL. The following sections shall survive the termination, for any
reason, of this Agreement: 4, 6, 7, 8, 9, 10, and 12.
10.3 REMEDIES. Licensee acknowledges that its breach of Section 2.2 or 9
would cause irreparable harm to NetGravity, the extent of which would be
difficult to ascertain. Accordingly, Licensee agrees that, in addition to
any other remedies to which NetGravity may be legally entitled, NetGravity
shall have the right to obtain immediate injunctive relief in the event of a
breach of such sections by Licensee or any of its officers, employees,
consultants or other agents.
11. EXPORT REGULATIONS
Without affecting the scope of the license granted herein, in the event
Licensee is permitted to transfer the Software to any location outside the
United States under this Agreement, Licensee hereby agrees it will comply
with all applicable United States export laws and regulations.
12. MISCELLANEOUS.
12.1 ASSIGNMENT. Licensee may not assign any of its rights or delegate any of
its obligations under this Agreement, whether by operation of law or
otherwise, without the prior express written consent of NetGravity. Subject
to the foregoing, this Agreement will bind and inure to the benefit of the
parties, their respective successors and permitted assigns.
12.2 WAIVER AND AMENDMENT. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and signed
by the party to be charged. No failure or delay by either party in
exercising any right, power, or remedy under this Agreement, except as
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NETGRAVITY ADSERVER LICENSE AGREEMENT
specifically provided herein, shall operate as a waiver of any such right,
power or remedy.
12.3 GOVERNING LAW; ARBITRATION. This Agreement shall be governed by the laws
of 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. Any disputes arising out of this Agreement
shall be resolved by binding arbitration in Santa Clara County California in
accordance with the rules of the American Arbitration Association. The
arbitrator shall have the power to grant injunctive relief.
12.4 NOTICES. All notices, demands or consents required or permitted under
this Agreement shall be in writing. Notice shall be considered effective on
the earlier of actual receipt or (a) the day following transmission if sent
by facsimile followed by written confirmation by registered overnight carrier
or certified United States mail; or (b) one (1) day after posting when sent
by registered private overnight carrier (e.g., DHL, Federal Express, etc.);
or (c) five (5) days after posting when sent by certified United States mail.
Notice shall be sent to the NetGravity at the addresses set forth on the
first page of this Agreement and to Licensee at the address set forth on
Exhibit A, or at such other address as shall be given by either party to the
other in writing. Notices to NetGravity shall be addressed to the attention
of Contracts Administrator.
12.5 INDEPENDENT CONTRACTORS. The parties are independent contractors.
Neither party shall be deemed to be an employee, agent, partner or legal
representative of the other for any purpose and neither shall have any right,
power or authority to create any obligation or responsibility on behalf of
the other.
12.6 SEVERABILITY. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions
of this Agreement shall remain in full force and effect.
12.7 COMPLETE UNDERSTANDING. This Agreement, including all Exhibits
attached hereto, constitutes the final, complete and exclusive agreement
between the parties with respect to the subject matter hereof, and supersedes
any prior or contemporaneous agreement.
12.8 FORCE MAJEURE. Except for Licensee's obligations to pay NetGravity
hereunder, neither party shall be liable to the other party for any failure
or delay in performance caused by reasons beyond its reasonable control.
12.9 PURCHASE ORDERS. This Agreement shall control Licensee's use of the
Software. All different or additional terms or conditions in any Licensee
purchase order or similar document shall be null and void.
12.10 EXECUTION. The parties have shown their acceptance of this Agreement
by causing it to be executed below by their duly authorized representatives.
This agreement may be executed in counterparts which together shall
constitute one agreement, and each party agrees that a copy of a counterpart
executed by it and sent to the other by any method including without
limitation facsimile shall constitute acceptance of this Agreement.
NETGRAVITY
By: /s/ Chris J. Krook
------------------------------------
Name: /s/ Chris J. Krook
----------------------------------
Title: Corporate Controller
---------------------------------
"LICENSEE"
By: /s/ Ronald T. Burr
------------------------------------
Name: Ronald T. Burr
----------------------------------
Title: CEO
---------------------------------
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EXHIBIT A
LICENSEE: NetZero
P.O Box 5365
Glendale, CA 91221
Attention: License Administrator: Ronald Burr 818-673-4900
ADSERVER SOFTWARE LICENSED COMPONENTS:
PROGRAM COMPONENTS DESCRIPTION:
The Admanager component contains the user interface and management
database. The Adserver is a server application responsible for delivering
advertisements. The AdClient component is the technology that integrates with
web server software to receive ads from the ad server. The AdConsole
component serves as a report publishing platform to advertisers and agencies.
PROGRAM COMPONENT LICENSED NUMBER OF COPIES
----------------- -------------------------
AdManager 1
AdServer 2
AdClient 2
AdConsole 1
AdInsight Server 1
* Licensee shall have the right to copy the right to copy the AdServer for
AdInsight (reporting) purposes. This additional copy of AdServer shall not
be used for additional adserving capability.
SureStart Deployment Package:
Plus related travel expenses
TOTAL PACKAGE PRICE: [***]
CONSULTING: [***]
FEES DUE: [***] (price good through September 15, 1998)
PAYMENT TERMS:
Payment is due Net 30 days from the Effective Date
--------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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EXHIBIT B
DATE OF THIS AGREEMENT: AUGUST 28, 1998
SOFTWARE SUBSCRIPTION AND SUPPORT AGREEMENT
BETWEEN
NETGRAVITY, INC.
AND
NETZERO
NetGravity, Inc. ("NetGravity") has granted Licensee a license to certain
software in accordance with a license agreement dated August 28, 1998 (the
"License Agreement"). Licensee wishes to obtain maintenance and support of
such software pursuant to this Agreement.
SECTION 1
DEFINITIONS
1.1 "Product(s)" means the software programs licensed to Licensee pursuant
to the License Agreement together with any Updates furnished by NetGravity to
Licensee under this Agreement.
1.2 "Updates" means a software Product release containing error corrections
and minor enhancements, in object code form, which is made commercially
available by NetGravity and generally indicated by a change in the revision
number in the tenths or hundredths digit to the right of the decimal point
(e.g., a change from version x.xx to x.xy or x.yx) and any corrections and
updates to the associated documentation.
1.3 "Upgrades" means a software Product release containing significant
functional enhancements and feature additions of the Software, in object code
form, which is made commercially available by NetGravity and generally
indicated by a change in the revision number to the left of the decimal point
(i.e., 4.00).
SECTION 2
TECHNICAL SUPPORT
2.1 SUPPORT. NetGravity will provide Licensee with technical support
("Support") during the hours indicated on the attached Schedule 1. Support
will be provided by at least one of the following methods: telephone, email,
World Wide Web, or fax. NetGravity, at its sole discretion, will choose which
method(s) it uses to provide support to Licensee. Support will include:
a) assistance related to questions on the installation and
operational use of the Product(s);
b) assistance in identifying and verifying the causes of suspected
errors in the Products(s); and
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c) providing workarounds for identified Product errors or
malfunctions, where reasonably available to NetGravity.
Licensee will designate the number of persons set forth in Schedule 1 to act
as support liaisons to utilize the support and will ensure that such person
will be properly trained in the operation and usage of the Products. Upon
request, Licensee will allow the use of on-line diagnostics of the Products
during error diagnosis.
2.2 ERROR CORRECTIONS. During the term of this Agreement, NetGravity
shall use its reasonable efforts to correct any reproducible error in the
Product with a level of effort commensurate with the severity of the error.
NetGravity shall have no obligation to correct all errors in the Product.
Upon identification of any error, Licensee shall notify NetGravity of such
error and shall provide NetGravity with enough information to reproduce the
error.
2.3 ERROR CORRECTIONS. NetGravity shall not be responsible for correcting
any errors not reproducible by NetGravity on the unmodified Product or errors
caused by: (i) Licensee's failure to implement all Updates issued under this
Agreement; (ii) changes to the operating system or environment which
adversely affect the Product;(iii) any alterations of or additions to the
Product made by parties other than NetGravity; (iv) use of the Product in a
manner for which it was not designed; (v) interconnection of the Product with
other software products not supplied by NetGravity; or (vi) use of the
Product on an unsupported platform. NetGravity shall only be obligated to
support the then current production version of the Product and the
immediately prior release for a period of three (3) months after such
release. Support for any earlier versions or for errors not covered under
this Agreement may be obtained at NetGravity's then current rates.
2.4 ON-SITE TRAINING AND SUPPORT. Upon request, and provided that
Licensee is current with fees due under this Agreement, NetGravity will
provide training for Licensee's administrators and trainers and/or direct
support at Licensee's site at NetGravity's then applicable standard training
rates and charges.
SECTION 3
MAINTENANCE SUBSCRIPTION
NetGravity will provide each Update and Upgrade to Licensee within a
reasonable time after publication ("Subscription"). Licensee may acquire
additional copies of the documentation at NetGravity's then current standard
rates.
SECTION 4
FEES
4.1 SUPPORT AND SUBSCRIPTION FEES. For NetGravity technical Support
services covered by Section 2 of this Agreement, Licensee agrees to pay
NetGravity the annual technical Support fee in the amount set forth in
Schedule 1 for the first year following the Date of this Agreement. Licensee
shall pay the annual fees each year at the beginning of each renewal term of
this Agreement. For NetGravity Subscription Service provided under Section 3
of this Agreement, Licensee shall pay the annual Subscription fee set forth
in Schedule 1 beginning one year from the Date of this Agreement. Licensee
shall pay the annual fees at the beginning of each renewal term of this
Agreement. NetGravity reserves the right to change the annual fees from time
to time effective at the commencement of the next annual period by giving
Licensee at least sixty (60) days' prior written notice of such change.
NetGravity reserves the right to charge Licensee a reinstatement fee to
resume services if Licensee has not continuously maintained this Agreement in
effect. Annual fees on any additional units licensed beyond the initial
purchase will be prorated and billed at the time of the applicable license
grant.
4.2 PAYMENT. Any amount payable to NetGravity under this Agreement will
be due and payable within thirty (30) days after Licensee's receipt of
NetGravity's invoice. All monetary amounts are specified and shall be paid in
the lawful currency of the United States of America. Licensee shall pay all
amounts due under this Agreement to NetGravity at the address indicated at
the beginning of this Agreement or such other location as NetGravity
designated in writing. Any amount not paid when due will bear interest at the
rate of one and one-half percent (1.5%) per month or the maximum rate
permitted by applicable usury law, which is less, determined and compounded
on a daily basis from the date due until the date paid.
4.3 TAXES. Unless otherwise specified, the fees, charges and other
amounts specified in this Agreement
--------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
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do not include any sales, use, excise or other applicable taxes. Licensee
will pay or reimburse NetGravity for any and all such taxes (excluding any
applicable federal and state taxes based on NetGravity's income).
SECTION 5
TERMINATION
5.1 TERM. The term of this Agreement shall be one year and shall
automatically renew unless Licensee notifies NetGravity of its intention
not to renew at least 60 days prior to the renewal date or unless terminated
pursuant to paragraph 5.2.
5.2 TERMINATION FOR DEFAULT. If either party defaults in the performance
of or compliance with any of its material obligations under this Agreement,
and such default has not been remedied or cured within thirty (30) days after
written notice specifying the default or, if the nature of the default is
such that more than (30) days are required for the cure thereof, the
defaulting party fails to commence its efforts to cure such breach or default
within such thirty (30) days and to diligently prosecute the same to
completion thereafter, the non-defaulting party may terminate this Agreement
in addition to its other rights and remedies under law.
5.3 SURVIVAL. Sections 4.2, 4.3, 5, 6 and 7 shall survive the
termination of this Agreement.
SECTION 6
LIMITATIONS OF LIABILITY
LIMITATION. NETGRAVITY'S LIABILITY (WHETHER IN CONTRACT, WARRANTY,
TORT OR OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE,
REPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY OF NETGRAVITY) UNDER
THIS AGREEMENT WITH REGARD TO ANY PRODUCT, DOCUMENTATION, SERVICES OR OTHER
ITEMS SUBJECT TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL
COMPENSATION PAID BY LICENSEE TO NETGRAVITY UNDER THIS AGREEMENT. IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR
ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 7
MISCELLANEOUS
7.1 ASSIGNMENT. Licensee may not assign any of its rights or delegate any
of its obligations under this Agreement, whether by operation of law or
otherwise, without the prior express written consent of NetGravity. Subject
to the foregoing, this Agreement will bind and inure to the benefit of the
parties, their respective successors and permitted assigns.
7.2 WAIVER AND AMENDMENT. No modification, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and signed
by the party to be charged. No failure or delay by either party in
exercising any right, power, or remedy under this Agreement, except as
specifically provided herein, shall operate as a waiver of any such right,
power or remedy.
7.3 GOVERNING LAW; ARBITRATION. This Agreement shall be governed by the
laws of 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. Any disputes arising out of this Agreement
shall be resolved by binding arbitration in Santa Clara County California in
accordance with the rules of the American Arbitration Association. The
arbitrator shall have the power to grant injunctive relief.
7.4 NOTICES. All notices, demands or consents required or permitted under
this Agreement shall be in writing. Notice shall be considered effective on
the earlier of actual receipt or (a) the day following transmission if sent
by facsimile followed by written confirmation by registered overnight carrier
or certified United States mail; or (b) one (1) day after posting when sent
by registered private overnight carrier (e.g., DHL, Federal Express, etc.);
or (c) five (5) days after posting when sent by certified United States mail.
Notice shall be sent to the parties at the addresses set forth on the first
page of this Agreement or at such other address as shall be given by either
party to the other in writing. Notices to NetGravity shall be addressed to
the attention of Contracts Administrator.
7.5 INDEPENDENT CONTRACTORS. The parties are independent contractors.
Neither party shall be deemed to be an employee, agent, partner or legal
representative of the other for any purpose and neither shall have any right,
power or authority to create any obligation or responsibility on behalf of
the other.
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7.6 SEVERABILITY. If any provision of this Agreement is held by a court
of competent jurisdiction to be contrary to law, such provision shall be
changed and interpreted so as to best accomplish the objectives of the
original provision to the fullest extent allowed by law and the remaining
provisions of this Agreement shall remain in full force and effect.
7.7 COMPLETE UNDERSTANDING. This Agreement, including all Exhibits
attached hereto, constitutes the final, complete and exclusive agreement
between the parties with respect to the subject matter hereof, and supersedes
any prior or contemporaneous agreement.
7.8 EXCUSED PERFORMANCE. Neither party will be liable for, or be
considered to be in breach of or default under this Agreement on account of,
any delay or failure to perform as required by this Agreement (other than
monetary obligations) as a result of an event of force majeure or any cause
or condition beyond such party's reasonable control.
NETGRAVITY
Signature: /s/ Chris J. Krook
-------------------------------
Printed Name: /s/ Chris J. Krook
----------------------------
Title: Corporate Controller
-----------------------------------
Date Signed: 8/28/98
-----------------------------
Licensee:
Signature: /s/ Ronald T. Burr
-------------------------------
Printed Name: Ronald T. Burr
----------------------------
Title: CEO
-----------------------------------
Date Signed: 8/28/98
-----------------------------
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SCHEDULE 1
SUPPORT HOURS: AdService 24 (24 hours a day -- 7 days a week)
SUPPORT CONTACTS: Please List 3:
FEES:
PRODUCTS LICENSE DATE ANNUAL SUPPORT FEE ANNUAL SUBSCRIPTION FEE
-------- ------------ ------------------ -----------------------
AdManager
AdServer August ___, 1998 [***] [***]
AdClient
AdConsole
AdInsight
Fees are payable in advance.
--------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
5
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Date: June-29-1999
[LOGO] Customer: NetZero
ORDER FORM
-------------------------------------------------------------------------------
ADVERTISING VOLUME*: NETZERO'S NEEDS
-------------------------------------------------------------------------------
According to Shane, NetZero is currently getting 400 ads/second per AdServer
at peak
According to Shane's number of 9600 ads/second, NetZero will require a total of
24 AdServers (9600/400 = 24) to manage peak loads.
This number does not include any failover servers- NetGravity recommends
another 10% serving capacity or an additional 3 AdServers.
NetZero is currently licensed for 14 AdServers, thus would require an additional
13 AdServers
(27 recommended - 14 licensed = 13 additional)
*All AdServer volume figures discussed in this document are for reference only.
They are based upon NetZero's own experience, warranty, express or implied.
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EXISTING LICENSES: RENEWALS
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Current Licensing with upcoming renewal August 31, 1999
Item QTY List Each Total List License Support Subscription
[***] [***]
---------------------------------------------------------------------------------------
AdManager 1 16,985 16,985 [***] [***]
AdClient 2 2,495 2,495 [***] [***]
AdServer 14 14,995 14,995 [***] [***]
---------------------------------------------------------------------------------------
231,905 [***] [***]
Renewal Due (8/31/99) [***]
[***] [***]
----------------------- -------
Total Renewal of Existing Licenses [***]
*The [***] represents support fees already paid by NetZero thru 8/31
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NEW PURCHASES: ADDITIONAL ADSERVERS & CONSULTING
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To buy the needed additional 13 AdServers
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List Total List NetZero Net
QTY Each License Discount License $ Support Subscription
[***] [***]
13 14,995 194,935 [***] [***] [***] [***]
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New Licenses Current Year [***]
Year 2 Total [***]
-----
[***]
* Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
Page 1 of 2
<PAGE>
--------------------------
Plus, ------- --Renewals from above rolled
Renewal of Existing Renewal Due 8/31/99 [***] into purchase of new
(see above) Year 2 Total [***] licenses, synching up the
- renewal dates of all
NewZero licenses.
------------------------------------------ --------------------------
TOTALS Year 1 Total [***]
Year 2 Total [***]
-------
[***]
--------------------------------
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Consulting Credits* (to be applied to future engagements with NetGravity
Professional Services)
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Days List Pricing [***] [***] [***]
---- ------------
50 $1,600 [***] [***] [***]
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[***]
-------------------------------------------------------------------------------
Grand Total Licenses, Renewals & Support 2 years [***]
[***] [***]
---------
Grand Total (due net 30) [***]
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CONDITIONS
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see attached word document
Authorized Licensee Signature: Title: Date:
Senior V.P.
/s/ Frederic A. Randall, Jr. & General Counsel 6/29/99
-------------------------------- ----------------- -------
Authorized NetGravity Signature: Title: Date:
/s/ Stephen E. Recht CFO
-------------------------------- ----------------- -------
* Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
Page 2 of 2
<PAGE>
1. Software purchased under this Order Form shall be governed by the
terms and conditions of the NetGravity AdServer License Agreement dated
August 28, 1998 (the "License Agreement") and NetGravity Software
Subscription and Support Agreements (the "Support Agreement") entered into by
NetGravity and NetZero, dated August 31, 1998 (collectively, the "Existing
Agreements"). The Existing Agreements are hereby amended to incorporate the
terms of this Order Form. Payment terms are net 30. So long as Licensee is
not in breach hereunder, Licensee shall have an option by delivery of written
notice to extend the License Agreement, as amended hereunder, for an
additional two year term on the terms set forth herein, provided that in
regards to consulting Licensee shall receive a [***] discount off of
NetGravity list at the time the services are ordered instead of the [***] per
day rate listed herein.
2. Notwithstanding anything to the contrary in Section 5.1 of the Support
Agreement referenced herein, the term of this purchase shall be two years.
3. Because this quotation represents a two year obligation on the part of
Licensee and Licensee is paying for both years under net 30 payment terms, in
the event that Licensee purchases additional copies of the AdManager
AdServer, and AdClient component(s) during the two years from the date of
this quotation, Licensee shall receive a [***] discount off of NetGravity
list pricing in effect when the software is ordered. In addition, if
NetGravity provides a greater discount to a purchaser of such products and
such purchaser has purchased, in the aggregate, an equal or lesser dollar
value of comparable products, then Licensee shall be offered the same discount
for future purchases hereunder.
4. During the two year term of this Order Form, Licensee shall have the
right to purchase an additional 100 days of consulting at the discounted
rates listed above. Additionally, NetGravity shall use its commercially
reasonable efforts to develop custom software programs requested by Licensee.
In the event NetGravity is not able to develop a custom software program
requested by Licensee using commercially efforts, NetGravity agrees to
provide Licensee with such technical information as Licensee may reasonably
request to enable Licensee to develop such custom programs on its own, it
being understood that Licensee shall be required to keep such information
confidential and shall only be entitled to use such information in
conjunction with the products purchased hereunder.
5. The Support Subscription Agreement entered into by the parties on
August 31, 1998 is hereby amended to include the attached Exhibit's C and D.
6. The parties agree that in the event that NetGravity provides
consulting services pursuant to this Order Form, the parties shall, on a case
by case basis, decide upon intellectual property ownership produced by said
consulting services. In particular, if specific programs are proposed,
designed and paid for by Licensee, then appropriate restrictions shall be
placed on NetGravity;s ability to use the same to benefit Licensee's
competitors.
7. The parties agree to amend the Assignment sections of the above
mentioned AdServer License Agreement and the Support Subscription Agreement
by replacing the existing language with the following:
This Agreement is not assignable by Customer without the prior written
consent of NetGravity; provided however, this entire Agreement may be
assigned without NetGravity's consent to an affiliate controlled by or
under common control with Licensee or to any successor by merger or
acquisition of all or substantially all of Licensee's assets, provided
that such assignee is bound by law or written agreements to all of the
obligations of the assigning party under this Agreement. Subject to
the 1foregoing, this Agreement will bind and inure to the benefit of
the parties, their respective successors and permitted assigns. If
such acquiror is [***], then Licensee shall have no further rights to
any custom development and the support obligations under the Existing
Agreements shall terminate six months after the effective date of such
acquisition and such competitor shall not be entitled to source code
under the escrow provisions herein.
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been omitted and filed separately
with the Securities and Exchange Commission.
<PAGE>
8. NetGravity agrees to enter into within 15 days of the date hereof a
Source Code Escrow Agreement in the form of the Preferred Escrow Agreement
attached hereto as Exhibit E and will place into escrow the source code,
design, documentation, information and instructions on the building/compiling
of the source code, and such other materials as may reasonably necessary for
Licensee to utilize such escrow materials for support of the Software. The
conditions for release of the source code shall be, in addition to those set
forth therein, limited to (i) NetGravity's material breach of its warranty
obligations and support obligations under the Existing Agreement which
remains uncured for 30 days (or 10 days with respect to Priority 1 or
Priority 2 errors as defined in the attached Exhibit C) from notice to cure
or if not capable of being cured within such time NetGravity fails to use its
best efforts to effect such cure.
9. In the event of release of source code from the escrow, Licensee shall
have the right to use the escrowed materials to perform support services and
to make modifications to the Licensed Software for internal use consistent
with the license granted in the License Agreement. The escrow license shall
be perpetual or until such time as NetGravity has cured the breach which gave
rise to the release from escrow. Licensee shall be responsible for a
associated escrow fees after the first year, the first year of which shall be
borne by NetGravity.
10. The parties agree to amend the Indemnity section of the above
referenced NetGravity AdServer License Agreement by adding the following to
the end of Section 7.1:
If NetGravity terminates under subsection (iii) within the first four
(4) years from the Effective Date, NetGravity will refund a pro-rata
portion of the license fees (the refundable amount being determined by
the total license fees reduced reduced each month by 1/48th of the
total). If NetGravity terminates under subsection (iii) at any time
after the Effective Date, NetGravity will refund any prepaid
subscription and support fees applicable to the remaining period for
which the services will be terminated.