Exhibit 10.7
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LICENSE AGREEMENT
This License Agreement ("Agreement") dated as of July 31, 1998 (the
"Effective Date"), is by and between Engage Technologies, Inc., with offices at
000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, X.X.X. 00000 ("Engage") and
Engage Technologies Japan, Inc., with offices at Hitotsubashi 0-0-0, Xxxxxxx-xx,
Xxxxx, Xxxxx 000-0000, formerly known as Sumisho Mineral Resources Development
Co., Ltd. ("Provider").
WHEREAS, Engage is in the business of providing certain data services
useful for marketing on the Internet; and
WHEREAS, Provider desires to maintain and distribute, and Engage agrees to
permit Provider to maintain and distribute, such Engage data services in Japan
upon the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
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"Customer" means a person or entity domiciled in the Territory that
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purchases a Product.
"Data Services" means the Engage proprietary Internet behavioral profiling
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and marketing data services as is currently marketed by Engage as
"Engage.Knowledge", which services permit a Subscriber to access and use a
repository of data generated by user activity on the Internet.
"Know-How" mean all inventions (whether or not patentable), results,
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discoveries, improvements, know-how, techniques, materials, products, designs,
processes or other technology or intellectual property rights, including without
limitation the Technology, owned or controlled by Engage and reasonably useful
for the development, use and sale of the Data Services and Products in the
Territory.
"Xxxx" means the Engage proprietary trademark "Engage.Knowledge."
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"Product" means a report or analysis generated by Provider through use of
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the Technology.
"Provider Technology" means the Engage-proprietary computer software
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programs required for Provider to operate the Data Services which Engage
currently owns, controls or has the right to use and which Engage is currently
marketing as of the date hereof, which are: Journal Server, Link Server,
Knowledge DSS Engine, Knowledge Profile Engine, and Knowledge Report Engine, as
well as all updates, upgrades and revisions thereto, including the localized
versions thereof. In addition to the foregoing, in the event that Engage
intends to license any additional technology not included above in the Territory
for which Engage may have the right to so license, Engage shall so notify
Provider, and, if requested by Provider within 10 days of receipt of such
notification, shall negotiate for a period not to exceed 60 days the terms under
which such technology shall be added to this Agreement as Provider Technology.
If the parties fail to reach agreement on the addition of such technology
hereunder within such 60-day period, Engage shall be free to license such
technology to any third party; if an agreement is reached on such terms, such
technology shall additionally be Provider Technology under this Agreement.
"Subscriber" means any person or entity domiciled in the Territory that
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purchases a subscription to the Data Services.
"Subscriber Technology" means the Engage-proprietary computer software
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programs required for a Subscriber to utilize the Data Services which Engage
currently owns, controls or has the right to use and which Engage is currently
marketing as of the date hereof, which are: Journal Client and Link Client, as
well as all updates, upgrades and revisions thereto, including the localized
versions, if any, thereof. In addition to the foregoing, in the event that
Engage intends to license any additional technology not included above in the
Territory for which Engage may have the right to so license, Engage shall so
notify Provider, and, if requested by Provider within 10 days of receipt of such
notification, shall negotiate for a period not to exceed 60 days the terms under
which such technology shall be added to this Agreement as Subscriber Technology.
If the parties fail to reach agreement on the addition of such technology
hereunder within such 60-day period, Engage shall be free to license such
technology to any third party; if an agreement is reached on such terms, such
technology shall additionally be Subscriber Technology under this Agreement.
"Subscription Agreement" means an Agreement between Provider and a
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Subscriber pursuant to which Provider shall sell each subscription to its Data
Services, which agreement shall be substantially similar to the Engage.Knowledge
Agreement attached hereto as Exhibit A as modified by the terms of this
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Agreement.
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"Technology" means the Provider Technology and Subscriber Technology
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collectively.
"Territory" means Japan.
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2. Data Services.
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2.1 Grant of Rights. Subject to the terms of this Agreement, Engage
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grants Provider an exclusive, non-transferable right, without the right to grant
sublicenses except as permitted in Section 2.2, to take the following actions in
the Territory: (i) use the Know How, including the Technology, internally only
at Provider's principal sales office to construct and maintain a data repository
for the purposes of (a) marketing and selling to Subscribers subscriptions to
the Data Services and (b) marketing and selling Products to Customers; (ii) make
one copy of the Technology for back up and archival purposes; (iii) market,
distribute, sell and maintain the Subscriber Technology to and for Subscribers,
and (iv) use the Xxxx, as permitted in Section 5, solely for purposes of
marketing, distributing, selling and maintaining subscriptions to the Data
Services to Subscribers and Products to Customers. Provider shall not authorize
or appoint any third party as a subdistributor or other sales agent with respect
to the Data Services or Products except in accordance with Section 2.2.
2.2 Subdistributors. With the prior written consent of Engage (which
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shall not be unreasonably withheld), Provider may sublicense its rights under
Section 2.1(iii)-(iv) to further the objectives set forth in this Agreement;
provided that (i) no subdistributor shall be permitted to use the Provider
Technology, or to construct or maintain a data repository, or offer Data
Services or Products, other than in association with the data repository and
Data Services of Provider, and (ii) each such subdistributor agrees to perform
the duties set forth in this Agreement listed below. Provider shall notify
Engage in writing of its intention to appoint any such subdistributor and the
subdistributor's proposed territory, and provide with such notification a full
description of the proposed appointee, including without limitation a
description of its existing territory, facilities, management, sales and
marketing personnel, clientele, product lines, including products or services
which might be competitive with the Data Services or Products, financial
resources, reputation in the marketplace, and any other factors relevant to the
capability of such appointee to effectively market and service the Data Services
and Products in the Territory. Provider shall execute an agreement with each
subdistributor under which the subdistributor is obligated to comply with the
provisions set forth in this Agreement to the extent applicable, including
without limitation those set forth in Sections 2.3, 2.4, 4.1, 5, 6, 8, 9.2 and
10-13. In addition, such agreement shall provide that (i) termination or
expiration of this Agreement shall automatically terminate such agreement, and
(ii) each subdistributor shall provide Provider with the records and right of
inspection set forth in Section 3.5. Provider shall at all times during the
term
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of this Agreement make its best endeavors to ensure that each subdistributor
complies with the terms of said agreement. If Provider becomes aware of any
violation of the agreement, it will immediately notify Engage, and Provider
shall take all reasonable steps as directed by Engage to stop such violation
and/or terminate such agreement. Provider shall remain primarily responsible to
Engage for all of its subdistributors' activities. Notwithstanding anything in
this Agreement to the contrary, no subdistributor shall have the right to grant
sublicenses with respect to the rights in Section 2.1.
2.3 Restrictions. Provider will not (and will not allow any third party
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to) (i) reverse engineer or attempt to discover any source code or underlying
ideas or algorithms of the Technology, (ii) modify, translate, or otherwise
create "Derivative Works" (as defined at 17 U.S.C. Section 101) of the
Technology or Know How, (iii) incorporate or embed the Technology, in whole or
in part, into another product or other computer software code, (iv) reproduce or
otherwise manufacture the Technology, (v) provide, lease, or lend the
Technology, (vi) allow the removal, alteration, covering or obscuring of any
copyright notice or any other notice or xxxx that appears on the Technology, on
any copies, or any media, or (vii) copy the Technology, except as expressly
permitted herein. Provider shall not solicit or accept any order for Data
Services or Products from a person or entity domiciled or located outside of the
Territory. Provider shall be fully responsible for the actions of each of its
employees and independent contractors with respect to the proper use and
protection of the Know How. All rights not expressly granted to Provider herein
in the Know How and Technology are reserved by Engage. There are no implied
rights.
2.4 Provider's Duties.
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2.4.1 Marketing Efforts. Provider shall use its best efforts to
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construct, maintain and promote the distribution and use of the Data Services
and Products in the Territory. Provider shall have full freedom to establish
the price for subscriptions to the Data Services and sale of Products in the
Territory.
2.4.2 Organization. Provider shall maintain a sales organization of
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sufficient size and qualifications to promote the sale of subscriptions to the
Data Services and Products throughout the Territory.
2.4.3 Subscription Agreements. Provider shall not sell subscriptions
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to the Data Services unless the Subscriber has signed and delivered to Provider
a Subscription Agreement. Provider shall sell, price and enforce the agreement
to use the Data Services in accordance with any restrictions set forth in the
applicable Subscription Agreement with respect to the permitted number of seats,
users, transactions, domain names or other specified parameters. In the event
that Engage modifies materially its current form of Engage.Knowledge Agreement
(attached
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hereto as Exhibit A), Provider shall, upon prior notification by Engage,
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promptly make corresponding modifications to the Subscriber Agreement. Engage
and Provider may mutually agree to change the Subscriber Agreement as
appropriate.
2.4.4 Enforcement of Licenses. Provider shall make its best
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endeavors to enforce the terms of the Subscription Agreement and inform Engage
of any breach of such terms of which Provider becomes aware. Provider shall not
make any representations, warranties, or other statements regarding the Data
Services to any third party other than those contained in the documentation
supplied by Engage with the Data Services.
2.4.5 Marketing Materials. Provider shall submit to Engage for
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review any advertising, promotional or instructional materials relating to the
Data Services or Products (other than materials supplied by Engage) including
translations of Engage-provided materials, and shall not publish or distribute
any such materials without Engage's prior written approval. Provider further
agrees that Engage shall own all rights to and interests in any translation of
Engage-supplied materials and shall undertake any necessary action to perfect
such rights and interests. All such materials shall remain the sole and
exclusive property of Engage.
2.4.6 Maintenance Services. Provider shall be solely responsible for
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providing maintenance and support services to its Subscribers and
subdistributors for the Subscriber Technology.
2.4.7 Governmental Registrations and Import Permit. Provider shall
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be responsible, at its own expense, for obtaining all (i) governmental
registrations in the Territory required for the performance of this Agreement
(and shall provide translated copies of related documents to Engage), and (ii)
necessary export and import permits and certificates.
2.4.8 Leads. Provider agrees to advise Engage promptly of any
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license leads or potential customers for the Data Services or Products outside
of the Territory.
2.4.9 Competitive Services. Provider shall not, except with Engage's
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prior written consent, either directly or indirectly through a third party,
promote, market, sell, distribute, support or maintain any services reasonably
deemed by Engage to be similar to and competitive with the Data Services or
Products.
2.5 Engage Duties.
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2.5.1 Initial Delivery of Technology. On the Effective Date, Engage
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shall provide Provider with the Technology.
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2.5.2 Promotional Literature. At Provider's request, Engage shall
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supply without cost to Provider an initial allotment of Engage's standard
promotional literature (which are written in the English language) for the Data
Services, in accordance with Engage's standard policies. Engage agrees upon
request to provide additional copies of such promotional literature at Engage's
standard rates.
2.5.3 Maintenance Services. Engage shall provide only to Provider
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on-going localization, support, maintenance and up-grades to the Technology, the
cost of which shall be deemed included in the Royalties (as defined in Section
3.2) received under this agreement and shall not be paid separately.
3. Fees; Payments Terms.
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3.1 Initial Payment. In consideration of Engage's performance hereunder,
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Provider shall pay to Engage a non-refundable payment in the amount of
$3,000,000 (the "Initial Payment"). Engage shall invoice Provider for this
amount on July 31, 1998, and Provider shall pay the amount on or before January
31, 1999. As soon as practicable after the date hereof Provider shall enter into
a forward exchange contract fixing the Yen/Dollar exchange rate for the initial
payment pursuant to the terms set forth in the first sentence of this Clause
3.1.
3.2 Ongoing Royalty. Provider shall pay Engage 11.11% of all revenues
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received by Provider from sale of subscriptions to the Data Services, sale of
Products and use of the Know How in any manner (the "Royalty").
3.3 Payment Terms. Except as expressly provided otherwise, all payments
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hereunder shall be made in U.S. dollars on a quarterly basis within thirty (30)
days from the end of each calendar quarter. Royalties payable on revenues
received shall be calculated by multiplying the royalty rate times the revenue
received and converting the resulting amount into United States dollars at the
rate quoted in the Wall Street Journal on the last business day of the quarterly
reporting period to which such royalty payments relate. Any payments more than
thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if
lower, the maximum rate allowed by law.
3.4 Tax.
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3.4.1 Initial Payment. If Japanese withholding tax should become due
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on Provider's payment to Engage of the Initial Payment, then Provider shall pay
such withholding tax, as well as any other duties, assessments and taxes
(exclusive of taxes
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on Engage's net income). Engage shall reimburse Provider Provider's payment of
any such withholding tax at such time as Engage is ensured of receiving a tax
credit against Engage's U.S. tax liability, and such reimbursement shall be
limited to the amount of any such credit realized by Engage.
3.4.2 Royalty. Provider shall deduct from amounts paid to Engage
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under Section 3.2 and pay Japanese withholding taxes. Provider shall pay any
other duties, assessments and taxes (exclusive of taxes on Engage's net income)
applicable to the rights and licenses granted hereunder, to the parties'
respective performance hereunder, or to this Agreement without offset to or
deduction in the amount due to Engage under Section 3.2. Engage shall reimburse
Provider Provider's payment of any such withholding tax at such time as Engage
is ensured of receiving a tax credit against Engage's U.S. tax liability, and
such reimbursement shall be limited to the amount of any such credit realized by
Engage.
3.5 Records; Inspection. Provider shall provide Engage with a written or
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electronic monthly report, in a mutually agreed upon format, which report shall
be sufficient to verify the sale of subscriptions to the Data Services and
Products and other revenue received, recorded or invoiced from the Know How
(including names and addresses of Subscribers and subdistributors). Upon
Engage's request, at mutually agreeable times, but in no event later than
fifteen (15) days following Engage's request, Engage or an agent or accounting
firm chosen by Engage shall be provided reasonable access during normal business
hours to the records of Provider for purposes of audit of fees, if any, due and
may make copies of such records. In addition, Provider will cooperate with
Engage's reasonable request for Provider to make such inspection with respect to
a subdistributor. Engage shall be provided a reasonable opportunity to
interview Provider's Subscribers and subdistributors and any employees who have
engaged in the marketing related to the Data Services in order to corroborate
the information contained in such records. If any such audit reveals an
underpayment of more than 5% with respect to amounts due in any fiscal quarter
of Provider, Provider shall pay the cost of Engage's audit.
4. Proprietary Rights.
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4.1 Ownership of Know How. For purposes of this Agreement only, as
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between the parties, Engage and its suppliers have and shall retain all right,
title and interest in and to the Technology and Know How (subject to the
licenses granted herein), all copies, enhancements, improvements and Derivative
Works thereof (including revisions, updates, versions and releases), and all
other materials, including intellectual property rights therein whether existing
as of the Effective Date or created by Engage thereafter, subject to the rights
granted to Provider hereunder. Provider shall retain all right, title and
interest (subject to the licenses granted herein) to technology and data created
by Provider. In the event that Sumitomo Corporation or Provider (each an
"Inventing Party") creates a module or other functionality that
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may function independently from the Know How, such Inventing Party shall, at the
request of Engage, grant Engage a worldwide, royalty-bearing, perpetual license
to use and commercialize such module or functionality (i) outside of the
Territory and (ii) inside the Territory upon the termination or expiration of
this Agreement, subject to mutual agreement between the Inventing Party and
Engage on the additional terms and conditions governing such license.
4.2 Rights to Data.
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4.2.1 Rights of Provider. Provider and Engage shall agree on
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reasonable terms and conditions (including without limitation price) upon which
Provider shall be permitted to access and use, solely within the Territory, data
from Engage's proprietary data repository. The price for such access and use
shall be a reasonable cost plus nominal margin.
4.2.2 Rights of Engage. Provider hereby grants to Engage a paid-up,
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royalty-free, worldwide, perpetual, irrevocable license to access, copy and use,
solely outside of the Territory, data from Provider's data repository.
5. Trademark License.
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Engage hereby grants to Provider the right in the Territory during the term
of this Agreement to use the name "Engage.Knowledge" (the "Xxxx") only on or in
connection with the Data Services and Products and Provider's advertising for
the Data Services and Products, provided that Provider shall: (i) only use the
Xxxx in the form and manner, and in accordance with the quality standards, that
Engage prescribes (and which it may change from time to time); (ii) at Engage's
request, submit samples of packaging and advertising to Engage for approval;
(iii) upon termination of this Agreement for any reason, immediately cease all
use of the Xxxx. All goodwill associated with the Xxxx and Provider's use of
such Xxxx shall inure to Engage. Provider shall not contest the validity of,
use, register or attempt to register, or take other action with respect to any
name, logo, trademark, service xxxx, or other identifier used anywhere in the
world by Engage (or a xxxx confusingly similar thereto), except to the extent
authorized in writing by Engage in advance. Provider's use of the Xxxx shall
clearly identify Engage as the owner of the Xxxx. Provider shall immediately
notify Engage of any potential infringement of the Xxxx of which Provider
becomes aware.
6. Confidentiality.
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6.1 Confidential Information. The parties acknowledge and agree that
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during the course of performing their respective duties under this Agreement,
the parties may exchange confidential and proprietary information ("Confidential
Information"). Confidential Information shall include, without limitation, the
Know
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How, the terms of this Agreement, customer lists, trade secrets, product plans
and schedules, new product information, technical data and know-how,
instructional and operating manuals, financial information, marketing and sales
data and plans, and other oral and written information. Each party acknowledges
that the Confidential Information of the other party constitutes valuable trade
secrets of that party. Each party agrees, therefore, to preserve the
confidential nature of the other party's Confidential Information by retaining
such Confidential Information in strict confidence and using such Confidential
Information only as required to perform hereunder. Each party agrees to promptly
report to the other party any violations of these provisions by its employees,
consultants, or agents of which they are aware. Except as expressly permitted
under this Agreement, neither party shall use, copy, make, modify, display or
transmit the Confidential Information, in whole or in part, or cause or permit
any third party to do so, without the prior written consent of the other party.
A party shall have no duty of confidentiality under this Section 6.1 with
respect to information the receiving party can document: (a) is or has become
readily publicly available without restriction through no fault of the receiving
party or its employees or agents; (b) is received without restriction from a
third party lawfully in possession of such information and lawfully empowered to
disclose such information; (c) was rightfully in possession of the receiving
party without restriction prior to its disclosure by the other party; (d) was
independently developed by the receiving party without access to such
Confidential Information; or (e) was required to be disclosed by a court or
other governmental authority after reasonable notice is given to the other
party.
6.2 Equitable Relief. If either party breaches any obligation with
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respect to the use or confidentiality of the Confidential Information, the other
party shall be entitled to equitable relief to protect its interests therein,
including without limitation preliminary and permanent injunctive relief in
addition to any other remedies it may have.
7. Term and Termination.
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7.1 Term. This Agreement shall commence as of the Effective Date and,
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unless sooner terminated as set forth in Section 7.2, continue indefinitely.
7.2 Termination.
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7.2.1 Termination for Cause. Either party may, at its option,
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terminate this Agreement if (i) the other party materially breaches a material
provision of this Agreement, (ii) such party gives the other party written
notice of such material breach (the "Default Notice") stating such party's
intention to terminate this Agreement, (iii) the other party fails to correct
such breach within thirty (30) days following its receipt of the Default Notice,
and (iv) such party gives the other party
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written notice of termination of this Agreement, which termination will be
effective upon its receipt.
7.2.2 Termination for Financial Distress. In the event that either
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party files a petition in bankruptcy, or has such a petition filed against it
that is not dismissed within thirty (30) days after filing, or is placed in a
receivership or reorganization proceeding or is placed in a trusteeship
involving an insolvency, or ceases doing business in the ordinary course, this
Agreement automatically shall terminate.
7.2.3 Additional Termination Rights. Engage may elect to terminate
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this Agreement immediately upon notice to Provider in the event that: (i) the
Shareholders Agreement between Engage and Sumitomo Corporation of even date
herewith (the "Shareholders Agreement") is terminated for a reason not
attributable to Engage, or (ii) Provider is liquidated or dissolved for any
reason, in which case termination of this Agreement shall be effected
immediately prior to Provider's duly authorized decision to liquidate or
dissolve and otherwise in such a manner as to comply with applicable law and the
objective of this Section 7.2.3, or (iv) Sumitomo Corporation has not, on or
prior to August 31, 1998, satisfied the conditions of Sections 2.2 and 2.3 of
the Shareholders Agreement and consummated an equity investment in Engage of no
less than $1,500,000 due to a reason solely attributable to Sumitomo.
7.2.4 Nonexclusive Remedy. Termination is not an exclusive remedy
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and all other remedies will be available whether or not termination occurs.
8. Effect of Termination.
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8.1 Consequences. Upon expiration or termination of this Agreement for
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any reason: (i) all licenses and other rights granted to Provider under this
Agreement will become null and void; (ii) each party will return all tangible
embodiments of Confidential Information, catalogs and sales literature in its
possession or control, or at the other party's option, destroy such materials
and provide the other party with a certificate signed by an executive officer
attesting to the destruction thereof; and (iii) all outstanding obligations or
commitments of either party to pay amounts to the other party, if any, will
become immediately due and payable. Each party understands that the rights of
termination hereunder are absolute. Notwithstanding the foregoing, upon the
expiration or termination of this Agreement (but not in the event of termination
of this Agreement due to a breach by Provider), Provider may retain and use
internally, solely for purposes of providing maintenance and support services to
Subscribers, a copy of the Technology if Provider is contractually obligated, as
of the effective date of termination or expiration, to provide such services;
provided, however, that (a) the foregoing right shall terminate earlier of (i)
expiration of the last such Subscriber agreement and (ii) one (1) year from the
date of
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such termination, and (b) Engage shall have no obligation to provide Provider or
its Subscribers with any maintenance or support services.
8.2 No Separation Compensation. Under no circumstances shall Engage be
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liable to Provider or any of its subdistributors by reason of termination,
expiration or nonrenewal of this Agreement for indemnification, compensation,
reimbursement, or damages for loss of prospective compensation, goodwill or loss
thereof, or expenditures, investments, leases, or any type of commitment made in
connection with the business of such party or in reliance on the existence of
this Agreement including, but not limited to advertising and promotion costs,
costs of supplies, termination of employees, employee salaries, and other such
costs and expenses.
9. Indemnification.
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9.1 Indemnification of Provider. Engage shall, at its expense, indemnify,
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hold harmless and defend Provider from and against any and all damages, costs
and expenses, including reasonable attorneys' fees, incurred by Provider in
connection with a claim that the Technology, as delivered by Engage and used by
Provider within the scope of this Agreement, infringes any copyright, provided
that Provider notifies Engage promptly in writing of the infringement claim and
Engage has sole control over the defense or settlement of such claim and
Provider, at its expense, provides reasonable assistance in the defense of the
same. Notwithstanding the foregoing, in the event that an infringement is found
and continued use of the Technology is enjoined, Engage will, at its option and
expense, either: (i) procure for Provider the right to continue to use the
Technology; (ii) modify or alter the Technology so that it becomes non-
infringing; or (iii) replace the Technology with a non-infringing alternative.
If all of these options may only be exercised by Engage at an unreasonable cost,
then Engage may require Provider to immediately cease all use and distribution
of the Technology and terminate the Subscription Agreements under this Agreement
and pay to the Provider the Technology purchase fees that Provider paid to
Engage, less a portion for prior usage, amortized over a 3 year period.
Engage shall have no obligation to indemnify Provider with respect to any
claim based upon (i) any modification of the Technology by a party other than
Engage; (ii) the combination, operation or use of the Technology with a non-
Engage software program or data if the claim would have been avoided had such
combination, operation or use not occurred; or (iii) the use of other than the
latest release of the Technology, if such claim could have been avoided by use
of the latest unmodified release. Engage's obligation to indemnify Provider
will be reduced to the extent the damages could have been reduced by Provider's
use of the latest release.
9.2 Indemnification of Engage. Provider shall, at its expense, indemnify,
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hold harmless and defend Engage from, and against any and all damages, costs and
expenses including reasonable attorneys' fees, incurred by Engage in connection
with
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any claim (i) against Engage by any Subscriber which relates to such
Subscriber's relationship with Provider or a subdistributor (and not to any
direct relationship which Engage may have with such Subscriber), (ii) arising
from the performance of the Data Services by Provider, or (iii) any
representation, promise, guarantee or warranty made or implied by Provider or a
subdistributor to the extent it exceeds or differs from those expressly set
forth in the documentation accompanying the Data Services EXCEPT as may be
attributed to Engage's failure to meet the representations, warranties,
covenants or other agreements herein or in the Shareholders Agreement:
10. Warranty and Disclaimer.
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10.1 Warranty of Authority. Engage represents and warrants that it
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possesses the rights in the Know How to perform its obligations hereunder. The
representations and warranties contained in Clauses 22.2 and 22.4 of the
Shareholders Agreement shall apply in relation to the Technology as if they were
set forth in full herein for the benefit of Provider.
10.2 DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH HEREIN OR IN THE
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SHAREHOLDERS AGREEMENT, ENGAGE MAKES NO WARRANTIES OR REPRESENTATIONS TO
PROVIDER OR ANY OTHER PERSON AS TO THE TECHNOLOGY, SOFTWARE OR ANY SERVICES
RENDERED WITH THE TECHNOLOGY OR SOFTWARE. ENGAGE DISCLAIMS ALL EXPRESS AND
IMPLIED WARRANTIES, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT
AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR
USAGE OF THE TRADE.
10.3 Acknowledgment. Provider acknowledges that the Know How and
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Technology have not been prepared to meet the individual requirements of
Provider or its Subscribers. It is the responsibility of Provider and its
Subscribers to ensure that the functions and facilities performed by the
Technology and Data Services meet the Subscriber's requirements.
11. Limitation of Liability.
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NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER
ENGAGE NOR ITS AFFILIATES SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE
SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN
THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER; OR (II) SPECIAL, CONSEQUENTIAL,
INCIDENTAL, RELIANCE, EXEMPLARY, OR INDIRECT DAMAGES (INCLUDING SUCH DAMAGES DUE
TO LOSS OF DATA, PROFITS,
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OR COMPUTER FAILURE) EVEN IF ENGAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
12. Export Control.
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Provider shall comply with all applicable export laws and restrictions.
13. Miscellaneous.
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13.1 Assignment. Provider shall not assign this Agreement (by operation
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of law or otherwise), or any rights or obligations hereunder, without the prior
written consent of Engage (and any attempt to do so shall be null and void).
Subject to the limitations above, this Agreement will mutually benefit and be
binding upon the parties, their successors and assigns.
13.2 Waiver. No waiver of any portion of this Agreement shall be
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effective unless in writing. The failure of a party at any time to require
performance by the other party of any provision shall in no way affect the right
of such party to enforce that or any other provision of this Agreement. No
waiver of any breach of this Agreement shall constitute a waiver of any
subsequent breach of the same or any other provision of this Agreement.
13.3 Notices. All notices given pursuant to this Agreement shall be in
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writing sent prepaid by certified or registered mail or overnight express
service, with return receipt requested in each case. All notices sent by
certified mail shall be effective three days after being sent out provided that
a facsimile copy is contemporaneously sent. Notices sent by overnight express
service shall be effective as of the first business day following submission to
the overnight express delivery service. All such notices shall be directed to
the respective parties at the addresses set forth on the first page of this
Agreement unless either party notifies the other in writing of a new address.
13.4 Law and Jurisdiction. This Agreement shall be governed and
--------------------
interpreted in all respects by and according to the laws of the Commonwealth of
Massachusetts, U.S.A., excluding its choice of law provisions. It is the
express intent and agreement of the parties that the United Nations Convention
for the International Sale of Goods shall not apply to this Agreement or to
purchase orders thereunder. This Agreement is written in the English language.
13.5 Disputes. Any dispute, controversy or difference which may arise
--------
among the parties out of or in relation to or in connection with this Agreement
or for the breach thereof shall be amicably settled by consultation among the
parties. All such disputes, controversies and differences, if not settled
amicably, shall be finally settled by arbitration pursuant to the Rules of
Conciliation and Arbitration of the
13
International Chamber of Commerce by three arbitrators appointed in accordance
with the said rules. In the event that the arbitration is sought by Engage, the
arbitration shall be held in Tokyo, Japan. In the event that the arbitration is
sought by Provider, the arbitration shall be held in Boston, Massachusetts,
U.S.A. The arbitration shall be in the English language. Notwithstanding the
foregoing, each party shall have the right to institute judicial proceedings
against the other party or anyone acting by, through or under such other party
in order to enforce the instituting party's rights hereunder through reformation
of contract, specific performance, injunction or similar equitable relief.
13.6 Compliance With Law. Each party shall at all times during the term
-------------------
of this Agreement perform its duties hereunder in accordance with all local,
state, federal and international laws and regulations, including without
limitation the Foreign Corrupt Practices Act of the United States. Provider
shall take all actions that are reasonably required to ensure that this
Agreement and the transaction contemplated hereby comply with all applicable
laws, regulations, rules or other legal and administrative requirements in the
Territory.
13.7 Independent Contractor. Provider agrees that it is an independent
----------------------
contractor and that this Agreement and relations between Engage and Provider
hereby established do not constitute a joint venture, agency or contract of
employment between them, or any other similar relationship. Neither party has
the right or authority to assume or create any obligation or responsibility on
behalf of the other.
13.8 Severability. If any provision of this Agreement shall be adjudged
------------
by any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so that
this Agreement shall otherwise remain in full force and effect and enforceable.
13.9 English. This Agreement has been drafted and executed in the English
-------
language. In the event of any ambiguity between the English language version
and any translation into any other language, the meaning and intent contained in
the English language version shall prevail.
13.10 Entire Agreement. This Agreement, including Exhibit A attached
---------------- ---------
hereto, constitutes the complete and exclusive statement of the mutual
understanding of the parties relating to the subject matter hereof, and
supersede and cancel all previous written and oral agreements and communications
relating to the subject matter of this Agreement and said agreements.
13.11 Section Headings. Section headings are for convenience only and
----------------
shall not be considered in the interpretation of this Agreement.
14
13.12 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall not be a
condition to effectiveness that each party shall have executed the same
counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives as of the date first
written above.
ENGAGE TECHNOLOGIES, INC. ENGAGE TECHNOLOGIES JAPAN, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------- -------------------------------
Name: Xxxx Xxxxxx Name: Xxxxxx Xxxxxxxxx
------------------------------ -----------------------------
Title: CEO Title: President
----------------------------- ----------------------------
15
EXHIBIT A
ENGAGE.KNOWLEDGE AGREEMENT
This Engage.Knowledge Agreement ("Agreement") is entered into as of _____
("Effective Date") by and between Engage Technologies, Inc. ("Engage") and
_____________ ("Licensee").
1. SCOPE OF AGREEMENT
This Agreement sets forth the terms and conditions governing Licensee's
subscription and/or contribution to Engage's Data Repository (as defined below).
By placing an "X" in the appropriate box(es) below, Licensee will elect to
subscribe and/or contribute to the Data Repository:
o Subscription o Contribution
2. DEFINITIONS
2.1 "Contributor" means a Licensee that has elected to contribute Visitor
Data to the Data Repository as set forth in Section 4.
2.2 "Data" means the past, present and future compilation of "clickstream"
data generated by user activity on the web, as well as such data itself, within
the Data Repository.
2.3 "Data Repository" means the proprietary global Data repository
compiled and maintained by Engage.
2.4 "Documentation" means the user information for the Software, in any
form or medium, provided by Engage to Licensee.
2.5 "Domain Name(s)" means the alphanumeric phrase(s) used by Licensee to
designate a particular site on the Internet or an intranet and identified on
Attachment 1.
------------
2.6 "Enterprise Server" means a computer server used by Licensee solely to
collect or combine information from or for one or more Local Servers.
2.7 "Local Server" means a computer server used by Licensee to host one or
more Domain Names.
2.8 "Personal Information" means the name, personal identity, phone
number, mailing address and social security number of a person.
16
2.9 "Profile" means a set of Data associated with a unique web browser,
which Data provides a demographic and interest description of such web browser.
2.10 "Software" means the object code form of the Engage computer software
programs identified on Attachment 1 including any Updates that Engage provides
------------
to Licensee, as well as related Documentation.
2.11 "Specified Configuration" means the computer hardware and software
products specified in Attachment 1. Engage may change the Specified
------------
Configuration as required for operation of an Update by providing Licensee a
revised Attachment 1.
------------
2.12 "Subscriber" means a Licensee that has purchased a right to access and
use the Profiles in the Data Repository as set forth in Section 3.
2.13 "Update" means any update, version, release, revision or modified form
of the Software that Engage elects to make available at no additional charge to
licensees of the Software.
2.14 "Visitor Data" means any data generated by a web browser's http
requests and posts within a domain name served by a Contributor Enterprise
Server (or, if no Enterprise Server is in use, Local Server) that is collected
by Contributor using Engage software.
3. SUBSCRIPTION
This Section 3 governs Subscriber access to and use of the Data Repository,
and will apply to Licensee only if Licensee has elected (as indicated in Section
1) to subscribe to such Data Repository.
3.1 Grant of Rights. Subject to Subscriber's compliance with the terms
---------------
and conditions of this Agreement, Engage hereby grants to Subscriber a
nonexclusive, nontransferable worldwide right to request and be served Profiles.
Subscriber may use each Profile only for one "Session" (i.e., the period of time
commencing as of a web browser's initial http request within a Domain Name
served by an Enterprise Server (or, if no Enterprise Server is in use, a Local
Server) and concluding after such web browser has failed for 60 consecutive
minutes to make an http request within a Domain Name served by such Enterprise
Server or Local Server).
3.2 Restrictions. Use of a Profile other than as expressly permitted in
------------
Section 3.1 is prohibited, and all rights in the Profiles, Data, and Data
Repository are reserved by Engage; Subscriber has no implied rights. Without
limiting the generality of the foregoing, Subscriber will not (i) retain a
Profile or a copy of a Profile, in whole or in part, after conclusion of a
Session, (ii) use a Profile, through
17
combination with other data or otherwise, to attempt to derive Personal
Information or associate Personal Information with a Profile, (iii) combine a
Profile with other information and store the results for later use, or (iv)
resell or transfer a Profile to a third party in return for anything of value.
Any violation of this Section 3.2 will constitute a material breach of this
Agreement.
3.3 Fees and Payment.
----------------
a. Subscription Fee. In consideration of the rights granted in
----------------
Section 3.1, Subscriber will pay to Engage monthly in advance the fee set forth
on Attachment 1 hereto ("Subscription Fee"). Payment of the Subscription Fee
------------
will entitle Subscriber to receive each month the number of Profiles specified
on Attachment 1; Subscriber shall pay Engage for any additional Profiles
------------
received in such month at the rate specified on Attachment 1. Upon the
------------
conclusion of the first three-month period of this Agreement and again upon the
conclusion of each three-month period thereafter during the term of this
Agreement (each a "Contract Quarter"), the Subscription Fee will be adjusted to
reflect a Profile usage level equal to eighty percent (80%) of the average
monthly number of Profiles received by Subscriber during the trailing Contract
Quarter. Engage may change the Profile "cost per mil" upon thirty (30) days
prior notice to Subscriber.
b. Contribution Discount. In the event that Subscriber has elected to
---------------------
contribute Visitor Data to the Data Repository, Subscriber will receive a
discount from the Subscription Fee in the amount set forth on Attachment 1.
------------
c. Payment. Subscriber will pay all fees due hereunder within thirty
-------
(30) days of the date of invoice. Engage reserves the right to impose a late
payment interest charge on amounts past due of 1.5% per month or, if lower, the
maximum rate permitted by law.
d. Taxes. Subscriber shall pay all taxes and government-imposed charges
-----
resulting from this Agreement or activities under this Agreement, excluding
taxes on Engage's net income.
3.4 Subscriber Obligations. Subscriber is solely responsible for its use
----------------------
of Profiles and represents and warrants to Engage that its use of Profiles will
be in compliance with all foreign, federal, state and local laws and
regulations. Subscriber will defend, indemnify and hold harmless Engage against
any third-party claims based on Subscriber's use of the Profiles.
18
3.5 Access to Data Repository. Subscriber access to the Data Repository
-------------------------
shall be through the Internet or, at Subscriber's option and expense, through a
dedicated telecommunications line as further detailed in Attachment 1.
------------
4. CONTRIBUTION
This Section 4 governs Contributor provision of Visitor Data to Engage, and
will apply to Licensee only if Licensee has elected (as indicated in Section 1)
to contribute to the Data Repository.
4.1 Contribution of Visitor Data. In consideration of the Subscription
----------------------------
Fee discount set forth on Attachment 1, Contributor will deliver to Engage the
------------
Visitor Data from each Domain Name. The Software automatically will deliver the
Visitor Data from Contributor to Engage.
4.2 Engage Use of Visitor Data. Engage will not (i) collect or store
--------------------------
Personal Information, (ii) sell, report or transfer unprocessed Visitor Data
from Contributor to any third party, or (iii) aggregate or present Visitor Data
from Contributor in a form or manner that would permit a third party to (a)
identify any individual's Personal Information or identity, (b) identify the
data as originating from Contributor or (c) associate an individual with a
Profile.
4.3 Classification File. The Software includes a classification table
-------------------
permitting Contributor to map Visitor Data to predefined demographic and other
categories ("Classification File"). Contributor will actively maintain and
manage the Classification File in cooperation with Engage so that the
Classification File is accurate and comprehensive in its mapping of Visitor
Data. In the event that Engage reasonably believes that Contributor is failing
to meet the foregoing standard, Engage will notify Contributor or such failure
and, unless Contributor cures the failure within 30 days from such notification,
Engage may either cancel the Subscription Fee discount for contribution of
Visitor Data or terminate this Agreement.
5. PRIVACY POLICY
Licensee, whether a Subscriber or Contributor or both under this Agreement,
will at all times during the term of this Agreement establish, maintain and post
on each web site served by an Enterprise Server or Local Server a written policy
regarding the collection and use by Licensee of visitor information.
6. RIGHT TO USE SOFTWARE
6.1 License. Subject to the terms and conditions of this Agreement,
-------
Engage hereby grants to Licensee a royalty-free, personal, non-transferable
(except for temporary transfer for the limited duration of a CPU malfunction),
non-exclusive
19
license to install and operate only on Licensee's premises in the U.S. the
Software solely for Licensee's own internal use on one or more Enterprise or
Local Servers hosting the Domain Name(s).
6.2 Restrictions. Licensee may use the Software only for the purpose of
------------
subscribing and/or contributing to the Data Repository. Without limiting the
foregoing, Licensee may not use the Software for the purpose of creating,
maintaining or operating an enterprise or any other data repository. Except as
expressly provided herein, Licensee shall not, and shall not permit others to,
use, modify, copy (except for one Licensee back-up copy containing Engage's
copyright notices and other proprietary marks), distribute, sublicense, assign,
use for service bureau purposes, share, timeshare, rent or otherwise transfer,
or decompile, disassemble, reverse engineer or otherwise attempt to derive the
source code form of the Software, in whole or in part. All rights not expressly
granted to Licensee are reserved by Engage. There are no implied rights.
6.3 Indemnification. Engage, at its expense, shall defend any action,
---------------
suit or proceeding brought against Licensee which alleges that the Software
infringes any U.S. copyright and Engage shall pay damages finally awarded
against Licensee; provided that Licensee promptly notifies Engage of the action
and gives Engage the opportunity, sole authority, information and assistance (at
Engage's expense) for control of the defense and settlement of the action; but
Engage shall not be responsible for any legal costs incurred or settlement made
without notice and its consent. Engage may, at its sole option and at its
expense, either: (i) replace or modify the Software to make it non-infringing
without material impairment of its functionality; (ii) obtain for Licensee the
right to continue using the Software, or (iii) terminate this Agreement. Engage
shall have no liability for any infringement or claim thereof based upon: (a)
the combination of the Software with products not provided by Engage, or (b)
modification or alteration of the Software by any person or entity other than
Engage. THIS SECTION STATES ENGAGE'S SOLE LIABILITY WITH RESPECT TO
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
6.4 Maintenance Services. Subject to the terms and conditions of this
--------------------
Agreement, Engage will provide Licensee with the Software maintenance services
set forth in Attachment 1 during the term of this Agreement.
------------
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY
7.1 Proprietary Rights. As between Engage and Licensee, Engage will own
------------------
all right, title and interest in and to the Profiles, Data, Visitor Data, Data
Repository and Software, as well as all intellectual property and proprietary
rights therein.
20
7.2 Visitor Data. Contributor hereby assigns, and agrees to assign in the
------------
future, to Engage and its successors and assigns, all right, title and interest
in and to the Visitor Data, as well as all intellectual property rights therein.
From time to time upon the request of Engage or its successor or assign,
Contributor will make such further assignments and confirm such assignments by
execution and delivery of such assignments, confirmations of assignment, or
other written instruments as Engage may reasonably request in order to
effectuate this Section 7.2.
7.3 Confidentiality. Licensee acknowledges and agrees that (i) the Data,
---------------
Profiles, Documentation and the design, operational methods and coding of the
Software (collectively "Confidential Materials") are not generally known to, or
readily ascertainable by, the public, (ii) Engage uses all reasonable efforts on
a consistent basis to prevent the acquisition, disclosure or use of the
Confidential Materials without the specific consent of Engage, (iii) Engage
derives substantial economic value from the secrecy of the Confidential
Materials, and (iv) acquisition, disclosure or use, beyond the limited extent
permitted herein, of the Confidential Materials would cause significant damage
to Engage's business. Accordingly, Licensee agrees to hold the Confidential
Materials in strict confidence and not to disclose the Confidential Materials to
any third party without the prior consent of Engage.
7.4 Equitable Relief. Licensee acknowledges that the unauthorized
----------------
disclosure or use of the Confidential Materials other than as expressly set
forth herein will (i) substantially diminish the value to Engage of the
Confidential Materials and (ii) cause irreparable injury in a short period of
time, and that Engage's remedy at law for such unauthorized disclosure or use is
inadequate. Accordingly, if Licensee breaches any of its obligations with
respect to the confidentiality or use of the Confidential Materials, Engage will
be entitled to equitable relief to protect its interests therein, including, but
not limited to, preliminary and permanent injunctive relief, in addition to any
other remedies it may have, without the necessity of posting bond.
8. LIMITED WARRANTY
8.1 Data. Engage will use commercially reasonable efforts to promptly
----
serve to Subscriber Profiles matching Subscriber requests.
8.2 Software. Engage warrants that the Software, if operated on the
--------
Specified Configuration will function in material conformity with the related
Documentation for a period of ninety (90) days from shipment (the "Warranty
Period"). Receipt by Engage of a written claim under this limited warranty must
occur within such period as a condition of this limited warranty. Engage does
not warrant that the Software will be error free or that all errors and defects
can or will be remedied. Engage's entire liability and Licensee s exclusive
remedy under this warranty shall be for Engage to make commercially reasonable
efforts to remedy in a
21
commercially reasonable manner any material nonconformance reported by Licensee
in writing within the Warranty Period, which obligation may be discharged by
modifying erroneous Documentation.
8.3 LIMITATION. THE LIMITED WARRANTY STATED IN THIS SECTION 8 AND THE
----------
REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS WITH RESPECT
TO THE PROFILES, DATA, VISITOR DATA, DATA REPOSITORY AND SOFTWARE, AND ENGAGE
AND ITS LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, AND
CONDITIONS, ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY AND REMEDIES
9.1 ENGAGE'S LIABILITY FOR ANY CAUSE WHATSOEVER ARISING UNDER THIS
AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT,
INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID TO ENGAGE UNDER
THIS AGREEMENT IN THE CALENDAR YEAR IN WHICH THE EVENT GIVING RISE TO SUCH
LIABILITY FIRST OCCURRED. LICENSEE RECOGNIZES THAT THE FEES HEREUNDER ARE BASED
IN PART ON THE LIMITED WARRANTY AND LIMITATION OF LIABILITY AND REMEDIES SET
FORTH ABOVE.
9.2 IN NO EVENT WILL ENGAGE OR ITS LICENSORS BE LIABLE FOR ANY (a) DAMAGES
CAUSED BY LICENSEE'S FAILURE TO PERFORM LICENSEE OBLIGATIONS, (b)INDIRECT,
INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY, COVER OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS OR LOST DATA, EVEN IF
ENGAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (c) CLAIMS AGAINST
LICENSEE BY ANY THIRD PARTY EXCEPT AS PROVIDED IN SECTION 6.3, (d) CLAIMS,
WHETHER IN CONTRACT OR TORT, THAT AROSE MORE THAN ONE (1) YEAR PRIOR TO
INSTITUTION OF SUIT THEREON, OR (e) DAMAGES, INCLUDING PRODUCT LIABILITY
DAMAGES, CAUSED BY ANY NON-ENGAGE PRODUCT.
10. TERM AND TERMINATION
10.1 Term. This Agreement will commence as of the Effective Date and
----
continue in effect for an initial term of one (1) year, and thereafter will
renew automatically for successive one (1) year terms unless either party elects
not to renew the Agreement by providing written notice thereof to the other
party no later than ninety (90) days prior to the date of expiration of the
then-current term. A Subscriber
22
may at any time elect to also become a Contributor hereunder, in which case the
term of the Contribution services will be commensurate with the then-current
term of the Subscription services, and the Subscription Fee will be adjusted in
accordance with Section 3.3(b).
10.2 Termination of the Agreement. Either party may terminate this
----------------------------
Agreement in the event of a material breach of any provision this Agreement that
is not cured within thirty (30) days of receipt of written notice thereof from
the other party; provided that such cure period will be ten (10) days in the
event of a material breach of Sections 3.1, 3.2, 6.1, 6.2 or 7.
10.3 Effect of Termination. Upon termination or expiration of this
---------------------
Agreement, (i) each party will promptly pay to the other any amounts due and
owing, (ii) all of Licensee's rights to use the Software and access the Data
Repository shall automatically terminate, and Licensee shall cease use of all
Software and access to the Data Repository and immediately either return or
destroy (with the written certification of an officer of destruction) all copies
of the Software, in whole or in part, and (iii) Licensee shall promptly return
to Engage all tangible embodiments of Confidential Materials in its possession.
Sections 3.2, 3.3(c)-(d), 3.4, 4.2, 6.2, 7, 9, 10.3, and 11 of this Agreement
will survive termination or expiration of this Agreement.
11. GENERAL
11.1 Export Control. Licensee acknowledges that the export of any Software
--------------
is or may be subject to export or import control and Licensee agrees that any
such items or the direct or indirect product thereof will not be exported (or
re-exported from a country of installation) directly or indirectly, unless
Licensee obtains all necessary licenses from the U.S. Department of Commerce or
other agency as required by law.
11.2 Assignment. Licensee may not sublicense, assign (by operation of law
----------
or otherwise) or otherwise transfer this Agreement or any license or any right,
duty or obligation under this Agreement without Engage's prior written consent,
and any attempt to do so shall be null and void. Engage shall not unreasonably
withhold its consent to the assignment of this Agreement by Licensee to an
affiliate, to its successor in connection with a merger, acquisition or
consolidation, or to the purchaser in connection with the sale of all or
substantially all of Licensee's assets.
11.3 No Waiver. Failure or delay by either party to exercise any right or
---------
remedy under this Agreement shall not constitute a waiver of such right or
remedy.
11.4 Entire Agreement. This Agreement, including Attachment 1 hereto
---------------- ------------
constitutes the entire agreement between the parties with respect to the subject
matter hereof. Different or additional terms contained in purchase orders,
other documents
23
supplied by Licensee, and all other communications, both oral and written,
between the parties relating thereto, shall not apply. Except as set forth in
Section 2.11, this Agreement may only be modified by a mutually agreed signed
amendment that expressly references this Agreement and is executed by duly
authorized representatives of the parties and attached hereto.
11.5 Severability. If any provision or portion of this Agreement is held
------------
to be unenforceable or invalid, the remaining provisions and portions thereof
shall nevertheless be given full force and effect, and the parties agree to
negotiate, in good faith, a substitute valid provision which most nearly effects
the parties' intent in entering this Agreement or attached Schedule.
11.6 Force Majeure. Excluding the payment of money, neither party will be
-------------
deemed in default of any obligation hereunder nor be liable for any failure or
delay in performance which results directly or indirectly from any cause beyond
its reasonable control, including without limitation, "Acts of God", delays or
failures in the Internet or related carriers and third party equipment, acts of
civil or military authority, strikes, fire, theft, delays by suppliers, or
action or inaction by the other party or any third party.
11.7 Independent Contractors. Nothing in this Agreement shall be construed
-----------------------
to imply a joint venture, partnership or agency relationship between the
parties; Engage shall be considered an independent contractor when performing
any Services under this Agreement.
11.8 Notices. Any written notice required to be provided pursuant to this
-------
Agreement shall be deemed given (a) if by hand delivery, upon receipt hereof or
(b) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid,
certified mail, return receipt requested. All notices shall be addressed to the
parties at the respective addresses indicated herein.
11.9 United States Government Restricted Rights. The Software is provided
------------------------------------------
with restricted rights. Use, duplication, or disclosure by the U.S. government
or any agency or instrumentality thereof is subject to restrictions as set forth
in subparagraphs (a) through (d) of the Commercial Computer - Restricted Rights
clause at FAR 52.2227-19 when applicable, or subparagraph (c)(i)(ii) of the
Rights in Technical Data and Computer Software Clause at 48 C.F.R. 52.227-19,
and in similar clauses in the NASA FAR Supplement as applicable. Manufacturer
is as set forth initially above.
11.10 Governing Law. The laws of the Commonwealth of Massachusetts shall
-------------
govern this Agreement, excluding its choice of laws provisions. The U.N.
Convention on the International Sale of Goods shall not apply to this Agreement.
With respect to all claims or actions related to this Agreement, Licensee waives
all objections to the
24
personal jurisdiction of and venue in the appropriate federal, state and local
courts in the Commonwealth of Massachusetts.
11.12 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
ENGAGE TECHNOLOGIES, INC. LICENSEE
Signature Signature
Name: Name:
Title: Title:
25
Attachment 1
------------
1. Section 2.5 - Domain Name(s):
----------------------------
2. Section 2.10 - Software:
-----------------------
3. Section 2.11 - Specified Configuration:
--------------------------------------
Hardware:
--------
Software:
--------
4. Maintenance Services:
--------------------
Engage will provide Licensee with the following maintenance services for
the Software ("Maintenance Services"). The Maintenance Services will be
provided only for the current release of the Software.
Telephone Support:
. Engage shall provide Licensee telephone support for answers to
specific questions and guidance in diagnosing suspected Software
problems between 8:00 a.m. and 5:00 p.m. (Eastern Standard Time)
Monday through Friday excluding Engage holidays (the "Contract
Hours"). Licensee may designate up to four (4) employees as contacts
for such service. Engage shall not be obligated to respond to
telephone calls from persons other than the four (4) designated
employee contacts. Telephone support does not include training of
Licensee's staff or consulting services or non-Software matters.
. Licensee may call to report Errors in the Software and request Error
response. Engage shall verify receipt of such requests and assign an
appropriate priority classification. Depending on the classification,
Engage will either:
a) provide a software solution or workaround;
b) provide an avoidance procedure;
c) address the request in the next revision/iteration; or
d) discuss with Licensee possible custom professional
services to resolve Licensee's request.
. Emergency telephone support is available outside of Contract Hours
solely for reporting of Errors that render the following Software
products unusable or the use thereof commercially infeasible. Engage
will make every reasonable effort to return such emergency calls
within two (2) hours of receipt. Emergency calls are initiated through
the standard Engage telephone support number.
. Engage will make every reasonable effort to respond to Licensee's
calls within four (4) Contract Hours.
Error Response:
. Consistent with the priorities set forth above, Engage shall use
commercially reasonable efforts to address verifiable and reproducible
Errors reported by Licensee to Engage so that the Software functions
in material conformity with the Documentation and/or erroneous
Documentation is corrected. The parties acknowledge that, despite
Engage's performance in accordance with this Agreement, not all Errors
can or will be remedied.
. If Engage is unable by remote telephone support to address an Error
as specified above, then Engage, at its sole discretion, may dispatch
a software engineer to the site to address the Error using
commercially reasonable efforts. Dispatch shall be within twenty four
(24) hours after Engage has determined at its sole discretion that
telephone assistance is not sufficient. If Licensee requests an
on-site Software support visit and Engage determines that the reported
problem is not the responsibility of Engage, then Licensee, in
addition to reimbursing Engage's expenses, shall be charged for the
service call on a time and materials basis plus a surcharge.
26
Updates:
. From time to time during the term of this Agreement, Engage shall
provide Licensee with Updates.
27
