EXHIBIT 10.11
AGREEMENT NO. EFFECTIVE DATE OCTOBER 31ST, 1998
--------
----------
LICENSE AGREEMENT
BETWEEN:
Engage Technologies, Inc. AND: Legal Company Name: ▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Contact Person: Will Margiloff
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇, ▇▇ ▇▇▇▇▇
("ENGAGE") Telephone: ▇-▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇
email: ▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
("CUSTOMER")
Customer contracts for and Engage agrees to provide, on the terms and
conditions set forth in this License Agreement ("Agreement"), the product
selections identified below:
-----------------------------------------------------------------------------------------------------
SELECTIONS RECURRING FEE ONE-TIME FEE
-----------------------------------------------------------------------------------------------------
BASE PRODUCTS:
Specify Tier for each: Lite, Standard, Gold, Platinum
or Platinum Plus (for Platinum Plus specify Maximum Average
Daily Page Requests or Ads Served)
Tier Upgrade
------------------------------------------ -------
AdManager (Attachment A) _______ $___________ $_________
DSServer (Attachment B) _______ $___________ $_________
____ Additional Seats of Marketing Workbench $___________ $_________
____ Additional Seats of Business Objects $___________ $_________
ProfileServer (Attachment C) _______ $___________ $_________
LICENSE TERM:
Perpetual Subscription Pilot
-----------------------------------------------------------------------------------------------------
PROFILE OPTIONS:
Specify Tier for each: Lite, Standard, Gold, Platinum or
Platinum Plus (for Platinum Plus specify Maximum Average
Daily Page Requests or Ads Served)
Local Declared Tier Local Behavior Tier
-------------- ---- -------------- ----
AdManager ________ AdManager ________ $_________(mo.)
DSServer ________ DSServer ________ $_________(mo.)
ProfileServer ________ ProfileServer ________ $_________(mo.)
Global Behavior (Attachment D)
------ --------
AdManager ________
$_________(qtr.)
ProfileServer Usage Based Fee
$_________(mo.)
-----------------------------------------------------------------------------------------------------
SOFTWARE MAINTENANCE AND SUPPORT SERVICES (Attachment E):
Standard Premium
$_________ $___________
-----------------------------------------------------------------------------------------------------
OTHER SERVICES (Attachment F):
Installation (8 days installation)
Training $___________ $___________
Public Class $___________ $___________
On Site (3 days of training defined as follows: Two (2) $___________ $___________
days of AdManager for up to 5 Customer employees, 1/2 day of DSS $___________ $___________
and 1/2 day of Profile Server for up to 3 Customer employees) $___________ $___________
Consulting # of days
-----------------------------------------------------------------------------------------------------
GEOGRAPHIC USE: _________________ (specify country) Factored Into Factored Into
NUMBER OF ENTERPRISE SERVERS OR ENGINES: ______ Above Fees Above Fees
DOMAIN NAMES:
-----------------------------------------------------------------------------------------------------
CUSTOMER ACKNOWLEDGES THAT THE ATTACHMENTS MARKED WITH AN "X" ABOVE (AND
ONLY THOSE ATTACHMENTS) ARE INCORPORATED INTO AND FORM PART OF THIS
AGREEMENT, AND THAT THE GENERAL TERMS AND CONDITIONS APPLY TO ALL
ATTACHMENTS OF THIS AGREEMENT. THIS AGREEMENT IS NOT VALID UNTIL ACCEPTED
BY ENGAGE. ENGAGE: CUSTOMER: Initials Initials
Engage:___ Customer:_____
Initials Initials
Pricing Options:
Platinum Plus:
Up to Average Daily Ads Served or Page Requests
Average Daily Ads Served or Page
Requests:
There would be a one-time cost of an additional for each
of the AdManager and Profile Server
Software and no additional cost for DSS. Total additional cost
would be .
Average Daily Ads Served or Page
Requests:
There would be a one-time cost of an additional for each
of the AdManager and Profile Server
Software and no additional cost for DSS. Total additional cost
would be .
Option:
Notwithstanding the foregoing, within 180 days of the Effective Date,
Customer may elect to pay Engage an additional license fee of
for an unlimited number of Average Daily Ads Served or Page Requests.
*Installation: Within 5 business days after the Effective Date, Engage
shall deliver to Customer a detailed plan regarding the implementation of
the Software acceptable to Customer, Including scheduled activity and
deliverables for each day, milestone schedule, personnel list, and list of
Customer responsibilities prior to installation.
If the installation process takes less than 8 business days, Engage shall
provide Customer with additional consulting days for each day remaining
unused.
Customer acknowledges that the Attachments marked with an "X" above (and
only those Attachments) are incorporated into and form part of this
Agreement, and that the General Terms and Conditions apply to all
Attachments of this Agreement. This Agreement is not valid until accepted
by Engage.
GENERAL TERMS AND CONDITIONS
I. DEFINITIONS. Defined terms in this Agreement are capitalized and have
the meanings indicated in the Appendix attached hereto.
II. RIGHT TO USE SOFTWARE; DELIVERY; ESCROW. Customer's right to use the
Software is set forth in the applicable Attachment(s). On the Effective
Date, Engage will deliver or make available for downloading at an FTP site
the Software. Within five (5) business days of the Effective Date, Engage
will name Customer a beneficiary of Engage's source code escrow agreement
with Data Securities International, Inc., dated November 12, 1997. Upon the
occurrence of a "Release Condition" (as defined in the escrow agreement),
Customer shall be entitled to have access to and use the source code form
of the Software for the sole purpose of supporting its use of the Software
as permitted herein until such time as the Release Condition is corrected.
Customer shall bear the expense of being named a beneficiary of said
agreement. All source code made available to Customer shall be Confidential
Information used only by employees of Customer.
III. RESTRICTIONS ON USE OF SOFTWARE. Customer's use of the Software is
subject to the following restrictions. Except as expressly permitted in
this Agreement, Customer shall not, and shall not permit others to, (a)
use, modify, copy (except for one back-up copy containing Engage's
copyright notices and other proprietary marks), or otherwise reproduce the
Software in whole or in part; (b) reverse engineer, decompile, disassemble,
or otherwise attempt to derive the source code form or structure of the
Software; (c) distribute, sublicense, assign, share, timeshare, sell, rent,
lease, grant a security interest in, use for Service Bureau purposes, or
otherwise transfer the Software or Customer's right to use the Software; or
(d) remove any proprietary notices or labels on the Software. All rights
not expressly granted to Customer are reserved by Engage. There are no
implied rights. Customer shall install the Software only on Enterprise
Servers and/or Engines, as the case may be, located in the country
specified on the Cover Page. Customer shall be responsible for ensuring
that its Average Daily Ads served or Page Requests does not exceed the
number permitted for the Applicable Tier (an "Overage"), and Customer shall
promptly report any Overage to Engage, which shall have the right to
require Customer to upgrade its Tier.
IV. TERM OF AGREEMENT; TERMINATION.
A. This Agreement shall commence upon the Effective Date and, unless
terminated in accordance with subsection (b) or (c) below, shall remain in
effect for the term specified on the Cover Page (either perpetual,
subscription, or pilot, each as defined below).
1. Pilot Term. If pilot term is selected on the Cover Page, the
term of this License shall be from the Effective Date until thirty (30)
days thereafter.
2. Subscription Term. If subscription term is selected on the
Cover Page, this License shall have an initial term of 12 (twelve) months
and shall renew automatically for subsequent periods of 12 (twelve) months
unless otherwise terminated in accordance with Section 4(b) or (c) below or
Engage receives a written notice of non-renewal from Customer at least
thirty (30) days prior to the expiration of the initial term or the current
renewal term.
3. Perpetual Term. If perpetual term is selected on the Cover
Page, the term of this License shall be perpetual with respect to the
Software licensed hereunder (unless this Agreement is otherwise terminated
in accordance with Section 4(b) or (c) below).
B. Either party may terminate this Agreement in the event of a
material breach of this Agreement by the other party that is not cured
within thirty (30) days of written notice thereof from the other party.
Without limitation, the following events shall constitute a material
breach: violation by Customer of the terms of the license granted (as set
forth in Sections 2 and 3), failure by Customer to pay any amount when due,
and violation by either party of the confidentiality duties set forth in
Section 13 hereof.
C. This Agreement shall automatically terminate if either party ceases
doing business, is the subject of a voluntary bankruptcy, insolvency or
similar proceeding, is the subject of an involuntary state or federal
bankruptcy, insolvency, or similar proceeding that is not dismissed within
sixty (60) days of filing, makes an assignment for the benefit of
creditors, becomes unable to pay its debts when due, or enters into an
agreement with its creditors providing for the extension or composition of
debt.
V. EFFECT OF TERMINATION OR EXPIRATION.
A. Each party shall immediately surrender all rights, licenses, and
privileges granted under this Agreement.
B. Each party shall promptly pay to the other any amounts due and
owing. No termination of this Agreement shall release Customer from any
obligation to pay Engage any amount that has accrued or will accrue or
become payable prior to, at or after the date of termination.
C. Each party shall immediately cease using and return all property in
its possession belonging to the other party, including without limitation
all Software, Documentation, and tangible embodiments of Confidential
Information.
D. Customer shall not, in advertising or otherwise, use or display any
of Engage's trademarks or any name, ▇▇▇▇, or logo that is the same as or
similar to Engage's trademarks, represent itself to be a licensee of
Engage, or in any way identify itself with Engage.
E. Customer shall not be entitled to a refund, in whole or in part, of
any amounts paid hereunder, other than in accordance with Section 9.
F. Sections 3, 5, 6(f), 7, 9, 10, 11(e), 12, 13 and 14 hereof,
together with Customer's obligation to pay outstanding amounts due Engage,
will survive termination or expiration of this Agreement.
VI. PAYMENTS AND OTHER CHARGES.
A. All fees shall be paid in U.S. dollars and shall be made to Engage
at the address set forth on the Cover Page.
B. Customer agrees to pay all invoices within 30 days after the
invoice date. Engage shall invoice Customer for software and support and
other services forty (40) days after the commencement of the Warranty
Period. Engage shall invoice Customer for all recurring fees listed on the
Cover Page on a monthly basis in advance; provided that (i) fees for the
Global Behavior Profile option with either AdManager or DSServer shall be
invoiced on a quarterly basis in advance, and (ii) fees for the Global
Behavior Profile option with Profile Server shall be invoiced on a monthly
basis in arrears based on a cost-per-thousand ("CPM") Page Request basis.
C. A finance charge in an amount equal to one and one-half percent
(1.5%) per month or, if lower, the maximum rate allowed by law will be
assessed on payments not received by Engage on or prior to the due date.
D. Customer agrees to pay when due (or, if necessary, reimburse Engage
for) all sales, use, property, excise, and other similar taxes resulting
from this Agreement, excluding taxes on the net income of Engage.
E. The amount and structure of all fees and rates may be adjusted for
subsequent renewal periods if Engage notifies Customer at least sixty (60)
days prior to the renewal date .
F. Customer agrees to make and maintain for a period of two (2) years
after the end of the year to which they pertain, sufficient books, records
and accounts regarding Customer's use of the Software, in order to
calculate and confirm Customer's payment obligations hereunder. No more
frequently than once each twelve (12) month period, Engage will have the
right, at its expense, to examine and copy such books, records, and
accounts upon reasonable prior notice during Customer's business hours to
verify reports on the amount of payments made to Engage under this
Agreement. All such books, records, and accounts shall constitute
Confidential Information. In the event such inspection discloses an
underpayment of amounts due Engage from Customer, Customer will promptly
remit the amounts due, and if an audit discloses an underpayment of the
fees payable by Customer for the audited period of more than five percent
(5%), Customer shall pay for the expenses of the audit together with the
amount of such underpayment.
VII. PROPRIETARY RIGHTS. Engage and its licensors shall have sole and
exclusive ownership of all right, title, and interest in and to the
Software and Documentation, including all associated intellectual property
rights. Customer acknowledges that Engage represents the Software,
including associated screen displays and menu features, constitutes the
valuable trade secrets of Engage or its licensors and are copyrighted works
owned by Engage or its licensors and protected by federal and international
copyright laws. Customer shall not permit any personnel to remove any
proprietary or other legends or restrictive notices contained or included
in any materials provided by Engage.
VIII. SOFTWARE MAINTENANCE AND SUPPORT SERVICES; OTHER SERVICES. Customer
may purchase Maintenance and Support Services, and installation, training,
and consulting services together with the license of any Software. If
selected by Customer on the Cover Page, all such services will be provided
by Engage in accordance with the terms set forth in Attachment E (Software
Maintenance and Support Services) or Attachment F (Other Services).
Customer will be entitled to receive Updates only if Customer is a paid-up
Maintenance and Support Services customer at the time an Update is
commercially released. Customer also shall be entitled to receive Upgrades
if Customer is a paid-up Maintenance and Support Services Customer at the
time an Upgrade is commercially released.
I. ENGAGE'S DUTY OF INDEMNIFICATION. Engage, at its expense, shall defend
any action, suit or proceeding brought against Customer which alleges (1)
facts constituting a breach of an Engage representation or warranty in
Sections 11(a) and (c) or (2) that any Software infringes any worldwide
copyright or misappropriates any trade secret and Engage shall pay damages
finally awarded against Customer (including court costs and attorneys'
reasonable fees), provided that (a) Customer notifies Engage promptly in
writing of the claim, (b) Engage has sole control of the defense and all
related settlement negotiations, and (c) Customer provides Engage with all
commercially reasonable assistance, information and authority to perform
the above at Engage's expense. In the event that Customer's use of the
Software is enjoined by a court of competent authority, Engage shall, at
its sole option and at its expense, either: (i) procure for Customer the
right to use the Software or (ii) modify the Software to avoid infringement
without material impairment of its functionality or (iii) if neither of the
foregoing remedies can be obtained upon commercially reasonable terms,
require Customer to remove and return to Engage the Software involved and,
if Perpetual Term is selected on the Cover Page, refund Customer a portion
of the price thereof as depreciated over a three (3) year life of the
Software commencing on the date of delivery. The foregoing indemnity shall
not apply if the alleged infringement is attributable to the combination of
the Software and products not provided by Engage, or if the Software is
modified or altered by any person or entity other than Engage, or if the
Software is used outside the scope of this Agreement. THIS SECTION STATES
ENGAGE'S SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
II. CUSTOMER'S DUTY OF INDEMNIFICATION. Customer agrees to defend and/or
settle, indemnify and hold harmless Engage from and against any claim
brought by a third party against Engage and any liability, damage or
expense (including court costs and attorneys' reasonable fees) arising from
or in any manner connected with Customer's breach of a provision of this
Agreement; and Customer shall pay all costs, expenses, damages or
settlement amounts to the extent based on such a third party claim,
provided that (a) Engage notifies Customer promptly in writing of the
claim, (b) Customer has sole control of the defense and all related
settlement negotiations, and (c) Engage provides Customer with all
commercially reasonable assistance, information and authority to perform
the above at Customer's expense.
III. LIMITED WARRANTY.
A. Engage represents and warrants to Customer that Engage has full
power and authority to enter into this Agreement and to grant the license
provided for herein, and that this Agreement has been duly authorized,
executed and delivered by Engage and constitutes a valid, binding and
legally enforceable agreement of Engage. Engage represents and warrants
that, to its knowledge, the Software does not infringe upon any third party
right.
B. Customer represents and warrants to Engage that Customer has full
power and authority to enter into this Agreement and that this Agreement
has been duly authorized, executed and delivered by Customer and
constitutes a valid, binding and legally enforceable agreement of Customer.
C. Engage represents and warrants that it shall use best efforts to
ensure that the Software, if operated on the Specified Configuration, will
manage and manipulate data involving dates in material conformity with the
Documentation before, during and after the year 2000. Engage disclaims
responsibility for the date-related and other performance of hardware,
software, telecommunications facilities and other materials not owned and
originally supplied by Engage.
D. If Customer has elected a perpetual license term on the Cover Page,
Engage warrants that for a period of seventy (70) days following delivery
of the Software to Customer ("Warranty Period"), Engage will use
commercially reasonable efforts to resolve programming errors in the
Software or Documentation to make the Software function in material
conformity with the Documentation, provided that the Software is operated
on the Specified Configuration and in accordance with the Documentation and
provided further that Engage receives a written claim from Customer under
this limited warranty within the Warranty Period. This Warranty does not
apply if Customer or any third party changes or modifies the Software
without the authorization of Engage. Engage does not warrant that the
Software will be error free or that all errors can be remedied. Engage
warrants that the services provided by Engage in connection with this
Agreement will be rendered by qualified personnel and consistent with
commercial practices standard in the industry. The foregoing shall be
Engage's entire liability and Customer's sole and exclusive remedy under
this warranty.
E. THE EXPRESS WARRANTIES GRANTED UNDER THIS AGREEMENT ARE THE ONLY
WARRANTIES MADE BY ENGAGE WITH RESPECT TO THE SOFTWARE AND SERVICES,
EXPRESS OR IMPLIED, AND THEY ARE MADE IN LIEU OF ALL OTHER WARRANTIES OR
REMEDIES. ENGAGE HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND
WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF
DEALING OR USE OF TRADE, AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO,
FEATURES OR CAPABILITIES OF THE SOFTWARE, ENGAGE'S COMPUTERS AND SERVERS,
INFORMATION, REPORTS OR OTHER MATTERS PRODUCED OR PROVIDED IN CONNECTION
WITH THIS AGREEMENT. IN ADDITION TO AND WITHOUT LIMITATION OF THE
FOREGOING, ENGAGE SPECIFICALLY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY
REPRESENTATIONS OTHER THAN AS SET FORTH IN SECTION 11(d) REGARDING THE USE,
OR THE RESULTS OF THE USE, OF ANY SOFTWARE OR FEATURE OR CAPABILITY OF THE
SOFTWARE, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS,
SECURITY, OR OTHERWISE. ENGAGE EXPRESSLY DISCLAIMS ANY WARRANTY WITH
RESPECT TO THE QUALITY OR CONTINUITY OF THIRD-PARTY TELECOMMUNICATION OR
INFORMATION SYSTEMS OR SERVICES, SERVER CONNECTION SPEEDS, OR THE
FUNCTIONALITY, OPERABILITY, OR RELIABILITY OF ENGAGE'S OR ANY THIRD PARTY'S
DATA SECURITY FEATURES OR SYSTEMS. THIS DISCLAIMER OF WARRANTY CONSTITUTES
AN ESSENTIAL PART OF THIS AGREEMENT.
IV. LIMITATION OF LIABILITY. CUSTOMER'S SOLE REMEDY AND ENGAGE'S SOLE
OBLIGATION WITH RESPECT TO ANY CLAIMS, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE AND PRODUCT LIABILITY) OR OTHERWISE, ARISING OUT OF, CONNECTED
WITH, OR RESULTING FROM THIS AGREEMENT SHALL BE GOVERNED BY THIS AGREEMENT,
AND IN ALL CASES CUSTOMER'S REMEDY SHALL BE LIMITED TO MONEY DAMAGES NOT
EXCEEDING THE SOFTWARE LICENSE FEES PAID TO ENGAGE BY CUSTOMER DURING THE
12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
DAMAGES. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY AGREED THAT IN NO
EVENT SHALL ENGAGE OR ITS SUPPLIERS OR ANYONE ELSE WHO HAS BEEN INVOLVED IN
THE PERFORMANCE OF THIS AGREEMENT ON BEHALF OF ENGAGE, INCLUDING ITS
EMPLOYEES, AGENTS, PARTNERS, REPRESENTATIVES, OR SUBCONTRACTORS, BE LIABLE
FOR ANY (A) DAMAGES CAUSED BY CUSTOMER'S FAILURE TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT (B) CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY EXCEPT
AS PROVIDED IN SECTION 9, OR (C) DAMAGES, INCLUDING PRODUCT LIABILITY
DAMAGES, CAUSED BY ANY NON-ENGAGE PRODUCT. NEITHER PARTY SHALL BE LIABLE
FOR INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, INCIDENTAL, EXEMPLARY, COVER
OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR
REVENUE, LOST BUSINESS OPPORTUNITIES, LOST SAVINGS, LOST DATA, LOSSES
CAUSED BY DELAY OR THE DOWNTIME OF ENGAGE COMPUTERS OR SERVERS, OR LOSSES
FROM INTERRUPTION, TERMINATION, OR FAILED OPERATION OF THE INTERNET OR
THIRD-PARTY TELECOMMUNICATION SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL NOT APPLY
TO (I) EITHER PARTY'S DUTY OF INDEMNIFICATION, (II) EITHER PARTY'S UNCURED
MATERIAL BREACH OF ITS DUTY OF CONFIDENTIALITY HEREUNDER, OR (III) ENGAGE'S
UNCURED MATERIAL BREACH OF ATTACHMENT D, SECTION D-7. CUSTOMER RECOGNIZES
THAT THE FEES HEREUNDER ARE BASED IN PART ON THE LIMITED WARRANTY AND
LIMITATION OF LIABILITY AND REMEDIES SET FORTH HEREIN.
V. CONFIDENTIALITY. Each party acknowledges that by reason of its
relationship to the other party under this Agreement it may have access to
Confidential Information. Each party agrees to maintain in confidence and
use only as expressly permitted in this Agreement all Confidential
Information received from the other, both orally and in writing, provided
that the parties' obligations of non-disclosure under this Agreement shall
not apply to Confidential Information which the receiving party can
demonstrate: (i) is or becomes a matter of public knowledge through no
fault of the receiving party; (ii) was rightfully in the receiving party's
possession prior to disclosure by the disclosing party; (iii) subsequent to
disclosure, is rightfully obtained by the receiving party from a third
party in lawful possession of such Confidential Information; (iv) is
independently developed by the receiving party without reference to
Confidential Information; or (v) is required to be disclosed by law. Each
party may seek equitable relief (as well as money damages) to protect its
interests under this Section.
VI. MISCELLANEOUS.
A. ASSIGNMENT. Customer 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 Customer 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 Customer's assets. Subject to
the foregoing limitations, this Agreement will mutually benefit and be
binding upon the parties, their successors and assigns.
B. EXPORT CONTROL. Customer acknowledges that the export of any
Software is or may be subject to export or import control and Customer
agrees that any Software or the direct or indirect product thereof will not
be exported (or reexported from a country of installation) directly or
indirectly, unless Customer obtains all necessary licenses from the U.S.
Department of Commerce or other agency as required by law.
C. U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication, or disclosure
of the Software by the U.S. government is subject to the restrictions set
forth in subparagraph (C)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013, and subparagraphs (C)(1)
and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR
52.227-19, as applicable.
D. LICENSE SUBJECT TO LICENSOR'S RIGHTS. Customer acknowledges that
portions of the Software may have been licensed to Engage by one or more
third parties. All rights and obligations provided by Engage to Customer
under this Agreement shall be limited to the extent that such underlying
rights and obligations have been provided to Engage. This Section 14(d)
does not limit Engage's representations and warranties in Section 11.
E. 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 in connection with this Agreement.
F. NOTICES. Any notice required to be provided pursuant to this
Agreement shall be in writing and shall be deemed given (a) if by hand
delivery, upon receipt thereof or (b) if mailed, three (3) days after
deposit in the U.S. mails, postage prepaid, registered or certified mail,
return receipt requested. A facsimile shall be deemed to be received upon
completion of transmission, as verified by a printout showing satisfactory
transmission, except that should a facsimile be sent on a nonbusiness day,
receipt shall be deemed to occur on the next business day. All notices
shall be addressed to the parties at the respective addresses indicated
herein. If Customer is located in a country other than the U.S., all
notices shall be sent by facsimile. Each party shall promptly notify the
other party of any address change.
G. WAIVER. A failure or delay by either party to enforce any right
under this Agreement shall not at any time constitute a waiver of such
right or any other right, and shall not modify the rights or obligations of
either party under this Agreement. Any waiver by either party of any right
under this Agreement shall not constitute a waiver of such right in the
future. All rights and remedies evidenced hereby are in addition to and
cumulative to rights and remedies available at law or equity or otherwise
available under any other contract.
H. SEVERABILITY. If any provision or portion of this Agreement is held
to be unenforceable or invalid, the remaining provisions and portions 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.
I. FORCE MAJEURE. 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.
J. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the Commonwealth of Massachusetts, without regard to
principles of conflicts of laws. Application of the U.N. Convention of
Contracts for the International Sale of Goods is expressly excluded.
K. ENTIRE AGREEMENT. This Agreement, including the Appendix and all
Attachments, is the entire agreement of the parties, and supersedes all
prior agreements and communications, whether oral or in writing, between
the parties with respect to the subject matter of this Agreement. Except as
expressly provided herein, no amendment or modification of this Agreement
shall be effective unless made in writing and signed by Engage and
Customer. If there is any conflict between the provisions of the General
Terms and Conditions and any Attachment, the provisions of the Attachment
shall control.
L. COMPLIANCE WITH LAW. Customer is solely responsible for ensuring
that its use of the Software and Profiles is in compliance with all
foreign, federal, state, and local laws and regulations, and Customer
represents and warrants to Engage that it will comply with this subsection.
M. 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 hereto have caused this Agreement to be
executed by their duly authorized representatives.
ENGAGE TECHNOLOGIES, INC. CUSTOMER:
By: By:
----------------------------- -------------------------------
Signature Signature
Printed Name Printed Name
Title Title
APPENDIX
--------
DEFINITIONS
-----------
"AD INSERTION" means the software-automated process performed by AdManager
which results in the insertion of an advertising image into a page at a
Customer Site.
"ADMANAGER" means the release (in object code form) of Engage's AdManager
software that is current as of the Effective Date, any Updates and Upgrades
thereto, and related Documentation.
"AGREEMENT" means this License Agreement, together with the Appendix and
all Attachments designated on the Cover Page.
"APPLICABLE TIER" means the Tier selected by Customer on the Cover Page.
"AVERAGE DAILY ADS SERVED" means the total number of Ad Insertions in a
given month divided by the number of calendar days in such month.
"AVERAGE DAILY PAGE REQUESTS" means the total number of Page Requests
initiated by users visiting Customer Sites in a given month divided by the
number of calendar days in such month.
"BUSINESS OBJECTS" means the release (in object code form) of the Business
Objects Reporter and Explorer software licensed by Engage that is current
as of the Effective Date, any Updates and Upgrades thereto, and related
Documentation.
"CONFIDENTIAL INFORMATION" means the Documentation, information about the
Software, the terms of this Agreement, and any other non-public information
or materials that, if disclosed in written form, is labeled "confidential"
or, if disclosed orally, is identified as confidential prior to disclosure
and submitted to the other party within thirty (30) days in a writing
labeled "confidential."
"COVER PAGE" means the first two pages of this Agreement.
"CUSTOMER SITE" means the collection of pages operated by or under the
control of Customer within the Domain Name(s).
"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.
"DATA REPOSITORY" means the proprietary global repository of Data compiled
and maintained by Engage.
"DOCUMENTATION" means end user materials, in any form or medium, provided
by Engage for use with the Software.
"DOMAIN NAME" means the alphanumeric phrase used by Customer to designate a
particular site on the Internet or an intranet and identified on the Cover
Page.
"DOWNTIME" means the interruption or failed initiation of services caused
by the operational failure of a computer, or of a system transmitting or
receiving information from a computer.
"DSSERVER" means the release (in object code form) of Engage's
DecisionSupportServer software that is current as of the Effective Date,
any Updates and Upgrades thereto, and related Documentation.
"EFFECTIVE DATE" means the effective date indicated on the Cover Page.
"ENGINE" means the single processing system consisting of either a single
or multiple processor unit and its associated RAM memory and disk storage
units, regardless of platform or operating environment, on which Customer
will load, execute, and use AdManager.
"ENTERPRISE SERVER" means a computer server used by Customer to collect or
combine information from one or more Local Servers.
"GLOBAL BEHAVIOR PROFILE" means a unique record, resident in the Data
Repository, that characterizes the behavior of a web browser on the
worldwide web.
"LOCAL BEHAVIOR PROFILE" means a unique record characterizing the behavior
of a Customer Site visitor, as created by ProfileServer.
"LOCAL DECLARED PROFILE" means a unique record containing information
provided by a Customer Site visitor who has completed a registration form.
"LOCAL SERVER" means a computer server used by Customer to host one or more
Customer Sites.
"MAINTENANCE AND SUPPORT SERVICES" means the services provided to Customer
by Engage in accordance with the terms set forth in Attachment E.
"MARKETING WORKBENCH" means the release (in object code form) of the
Marketing Workbench software licensed by Engage that is current as of the
Effective Date, any Updates and Upgrades thereto, and related
Documentation.
"PAGE REQUEST" means the request for part or all of a web page (including
the request for a new frame) that results from a user action such as the
input of a URL, a click on a link, a "refresh" command, or navigation. The
automatic presentation of images or content without any additional action
by the user does not constitute a Page Request.
"PERMITTED ENGINES" means the number of Engines specified on the Cover
Page.
"PERMITTED ENTERPRISE SERVERS" means the number of Enterprise Servers
specified on the Cover Page.
"PERSONAL INFORMATION" means the name, phone number, mailing address, and
social security number of a person, or any other number assigned by an
organization that can be correlated with a person's personal identity.
"PROFILE" means a set of Data associated with a unique web browser, which
Data provides a demographic and/or interest description of such web
browser.
"PROFILE OPTION" means any of the Local Declared Profile, Local Behavior
Profile, or Global Behavior Profile options, as selected by Customer on the
Cover Page, to be used in conjunction with the Software.
"PROFILESERVER" means the release (in object code form) of Engage's
ProfileServer software that is current as of the Effective Date, any
Updates and Upgrades thereto, and related Documentation.
"SEATS" means the maximum number of concurrent users authorized to access
the Software at a given time, as designated on the Cover Page.
"SERVICE BUREAU" means a person or entity that uses the Software to deliver
a data profile, report or other services to a third party where such person
or entity receives directly or indirectly in return anything of value.
"SOFTWARE" means one or more of the following software products, as
specified on the Cover Page: AdManager, DSServer, Business Objects,
Marketing Workbench, and ProfileServer, as well any Updates and Upgrades
thereto.
"SPECIFIED CONFIGURATION" means the software products specified in
Attachment G. Engage may change the Specified Configuration as required for
operation of an Update. Any such change shall be set forth in the release
notes accompanying an Update.
"TIER" means
"UPDATE" means any update, version, release, revision, patch, bug fix or
modified form of the Software that Engage, in its sole discretion, elects
to make available at no additional charge to licensees of the Software that
have purchased Maintenance and Support Services.
"UPGRADE" means an improved and enhanced version of the Software released
by Engage subsequent to the version licensed by Customer hereunder.
"VISITOR DATA" means any data generated by a web browser's http requests
and posts within a Customer Site that is collected by Customer using the
Software.
"WARRANTY PERIOD" has the meaning set forth in Section 11(d).
ATTACHMENT A
------------
ADMANAGER
---------
A-1. GRANT OF RIGHTS. Subject to the terms and conditions of this
Agreement, Engage grants Customer a royalty-free, nonexclusive,
nontransferable (except for temporary transfer for the limited duration of
a CPU malfunction), worldwide license to use AdManager with the Profile
Option, if any, on the Permitted Engines solely for the purpose of
operating the Customer Sites, provided that the Average Daily Ads Served
does not exceed the maximum number permitted for the Applicable Tier, and
provided further that Customer may use the Profile Option solely for
purposes of Ad Insertion.
ACCEPTED BY: ACCEPTED BY:
ENGAGE: CUSTOMER:
------------------ -----------------
Initials Initials
ATTACHMENT B
------------
DECISIONSUPPORTSERVER
---------------------
B-1. GRANT OF RIGHTS. Subject to the terms and conditions of this
Agreement, Engage grants Customer a royalty-free, nonexclusive,
nontransferable (except for temporary transfer for the limited duration of
a CPU malfunction), worldwide license to use (a) DSServer with the Profile
Option, if any, on the Permitted Enterprise Servers, provided that the
Average Daily Page Requests does not exceed the maximum number permitted
for the Applicable Tier, and (b) Marketing Workbench and Business Objects
for one Seat plus the number of Additional Seats specified on the Cover
Page, in each case solely for the purpose of operating the Customer Sites.
ACCEPTED BY: ACCEPTED BY:
ENGAGE: CUSTOMER:
------------------ -----------------
Initials Initials
ATTACHMENT C
------------
PROFILESERVER
-------------
C-1. GRANT OF RIGHTS. Subject to the terms and conditions of this
Agreement, Engage grants Customer a royalty-free, nonexclusive,
nontransferable (except for temporary transfer for the limited duration of
a CPU malfunction), worldwide license to use ProfileServer with the Profile
Option, if any, on the Permitted Enterprise Servers solely for the purpose
of operating the Customer Sites, provided that the Average Daily Page
Requests does not exceed the maximum number permitted for the Applicable
Tier.
ACCEPTED BY: ACCEPTED BY:
ENGAGE: CUSTOMER:
------------------ -----------------
Initials Initials
ATTACHMENT D
------------
GLOBAL BEHAVIOR PROFILE OPTION
------------------------------
▇. ▇▇▇▇▇ OF RIGHTS TO ACCESS DATA REPOSITORY. Subject to the terms and
conditions of this Agreement, Engage grants Customer a royalty-free,
nonexclusive, nontransferable, worldwide right to request and be served
Profiles from the Data Repository for use in conjunction with the Software
on the Permitted Enterprise Servers or Permitted Engines (as the case may
be) solely for the purpose of operating the Customer Sites, provided that
the Average Daily Page Requests or Average Daily Ads Served (as the case
may be) does not exceed the maximum number permitted for the Applicable
Tier.
II. RESTRICTIONS. Use of a Profile other than as expressly permitted in
Section D-1 is prohibited, and all rights in the Profiles, Data, and Data
Repository other than those expressly granted to Customer are reserved by
Engage. Customer has no implied rights. Without limiting the generality of
the foregoing, Customer will not (i) retain a Profile or a copy of a
Profile, in whole or in part, (ii) use a Profile, through 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. Any violation of this Section D-2 will
constitute a material breach of this Agreement. This Section D-2 applies to
Customer's use of Profiles (i.e., composite data drawn from Engage's
repository) and is not intended to limit Customer's use of data that
Customer collects.
III. FEE SCHEDULE FOR PROFILESERVER WITH GLOBAL BEHAVIOR PROFILE OPTION.
------------------------------------------------------------------
* If Customer uses the Global Behavior Profile Option other than in
connection with AdManager, Customer shall pay Engage at the following
rates:
---------------------------------------------
Number of
Monthly Page Requests Monthly Fee
=============================================
Up to 99,000
---------------------------------------------
100,000 - 1,999,999 + CPM
---------------------------------------------
2,000,000 and above + CPM
---------------------------------------------
Note: CPM pricing is based on an accumulated decreasing scale
I. ENGAGE'S DUTIES. Engage shall make good faith, reasonable efforts to
maintain operation of the Data Repository on a 24 hours per day, 365 days
per year basis. From time to time, however, and as may be necessary to
maintain the proper operation of the Data Repository, Engage may take the
Data Repository's web server(s) down for repairs, upgrades or routine
maintenance. Engage will use best efforts to minimize Downtime and to
notify Customer reasonably in advance of scheduled Downtime. Engage shall
have no obligation with respect to Downtime except to restore service as
soon as reasonably possible. In the event of Downtime for a period of 48
consecutive hours, Engage will provide Customer a credit against payment of
future fees, which credit shall be equal to a pro-rated portion of the
then-current monthly fee based on the duration of the Downtime.
II. ACCESS TO DATA REPOSITORY. Customer access to the Data Repository shall
be through the Internet or, at Customer's option and expense, through a
dedicated telecommunications line.
III. CONTRIBUTION OF VISITOR DATA. The Software automatically will deliver
the Visitor Data from each Customer Site from Customer to Engage.
IV. ENGAGE'S USE OF VISITOR DATA. Engage will not (i) collect or store
Personal Information, (ii) sell, report or transfer unprocessed Visitor
Data from Customer to any third party, or (iii) aggregate or present
Visitor Data from Customer in a form or manner that would permit a third
party to (a) identify any individual's Personal Information or identity or
(b) identify the data as originating from Customer.
V. CLASSIFICATION FILE. The Software includes a classification table
permitting Customer to map Visitor Data to predefined demographic and other
categories ("Classification File"). Customer 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 Customer is failing
to meet the foregoing standard, Engage will notify Customer of such failure
and, unless Customer cures the failure within 30 days from such
notification, Engage may terminate this Agreement or impose a surcharge on
Customer in accordance with Engage's then-current fees.
VI. PROPRIETARY RIGHTS TO VISITOR DATA. Customer shall own its Visitor
Data. Customer hereby grants to Engage and its successors a paid up,
royalty-free, perpetual, irrevocable license to use such Visitor Data in
any manner necessary to operate the Data Repository and successor products
and services thereto; provided that Engage's use of Visitor Data shall at
all times be in compliance with the restrictions set forth herein.
VII. PRIVACY POLICY. Customer will at all times during the term of this
Agreement establish, maintain and post on each Customer Site a written
policy regarding the collection and use by Customer of visitor information,
including disclosure of participation in the Data Repository and a
reference to the web address of the Engage privacy page. Customer shall act
in accordance with its published privacy policy.
D-11. TERM. The initial term of the Global Operation Profile shall be three
(3) months ("Quarter.") commencing on the Effective Date. The Quarter shall
automatically renew for successive Quarters unless either party elects not
to renew by providing the other party with written notice at least thirty
(30) days prior to the expiration of a Quarter.
ACCEPTED BY: ACCEPTED BY:
ENGAGE: CUSTOMER:
------------------ -----------------
Initials Initials
ATTACHMENT E
------------
SOFTWARE MAINTENANCE AND SUPPORT SERVICES
-----------------------------------------
1 MAINTENANCE AND SUPPORT SERVICES. Engage will provide Customer with
the Software maintenance and support services set forth in the table
below at either the Standard or Premium level as indicated on the
Cover Page for the most current release of the Software and the most
current previous release of the Software ("Maintenance and Support
Services"). The Maintenance and Support Services shall apply only to
the Software licensed by Customer as specified on the Cover Page;
Engage is not responsible for the configuration, maintenance or
correction of third-party software, hardware or communications
facilities. Engage shall not be obligated to provide Maintenance and
Support Services if such services are required as a result of (a)
Customer's neglect or misuse of the Software, (b) modification of the
Software by a person or entity than other than Engage without the
prior written consent of Engage, (c) Customer's failure to implement
and use the Specified Configuration, or (d) any other cause beyond the
reasonable control of Engage. Engage shall not be obligated to respond
to requests for support from any person or entity other than a
representative of Customer who has attended a training session
provided by Engage. Engage shall have no liability to any third party
with respect to the Maintenance and Support Services.
2 UPDATES. Upon commercial release of an Update, Engage shall provide
such Update to paid-up Maintenance and Support Services Customers.
3 ERROR CORRECTION. Customer may call to report an "Error" in the
Software (i.e., a failure of the Software to function in material
conformity with the Documentation) during the hours specified in the
table below and shall provide Engage all information necessary for
diagnosis of the Error. Engage shall verify receipt of such requests
and assign an appropriate Severity Level classification. Depending on
the classification, Engage will use commercially reasonable efforts to
either: provide a software solution or workaround; provide an
avoidance procedure; address the request in the next
revision/iteration; or discuss with Customer possible custom
professional services to resolve Customer's request. Telephone support
during the hours specified in the table below is unlimited in any
given month.
4 TELEPHONE SUPPORT. If a support call is made outside the specified
hours and is not of Severity Level 1, Customer shall pay $125 for each
such call for the first hour (or any part of such hour). Each
additional hour will be billed at a rate of $125 per hour. Customer
shall cooperate with Engage to allow the Software to automatically
communicate its status to Engage via Email.
5 TERM. The initial term of Maintenance and Support Services shall be
one year (the "Term") commencing on the expiration of the Warranty
Period if Customer has elected a perpetual term on the Cover Page, and
commencing on the Effective Date if Customer has elected a
subscription term on the Cover Page. Maintenance and Support Services
shall automatically renew for successive Terms unless either party
elects not to renew by providing the other party with written notice
at least thirty (30) days prior to the expiration of a Term.
Termination or expiration of the Maintenance and Support Services
shall not affect any other term of this Agreement. In the event that
Customer elects to reinstate Maintenance and Support Services
following termination of such services by Customer, Customer shall
first pay Engage all fees that would have been paid had Customer not
cancelled such services.
6 PAYMENT. Fees for the initial Term of Maintenance and Support Services
shall be billed upon the Effective Date. Fees for renewal Terms shall
be billed forty-five (45) days prior to the expiration of the
then-current Term.
7 ENGAGE PERSONNEL. In the performance of the Maintenance and Support
Services, Engage reserves the right to determine the assignment of
Engage personnel, to replace or reassign such personnel and to
subcontract with qualified third persons for part or all of the
services. No person performing services on behalf of Engage hereunder
shall be restricted or prevented from performing services for others
that are similar to the services provided under this Agreement.
8 ON-SITE VISITS. For purposes of performing the Maintenance and Support
Services, Customer may permit authorized Engage service engineers to
inspect periodically during normal business hours Customer's computer
systems operating the Software. If Engage is unable by remote
telephone support to address an Error, then Engage, at its sole
discretion, may dispatch a software engineer to Customer's site to
address the Error. The travel and other reasonably-incurred expenses
of such on-site assistance (excluding the personnel cost) shall be
borne by Customer. Dispatch shall be within twenty four (24) hours
after Engage has determined at its sole discretion that telephone
assistance is not sufficient. If Customer requests an on-site software
support visit and Engage reasonably determines that the reported
problem is not the responsibility of Engage, Customer shall reimburse
Engage for the cost of such personnel (at Engage's then-current
consulting rate) as well as the costs reasonably incurred by the
Engage personnel in making such visit. In the event of a Severity 1
problem, Engage shall dispatch, at minimum the Account Manager to
coordinate from the site any Engage related response efforts within 24
hours.
----------------------------------------------------------------------------------------------------
DELIVERABLE STANDARD LEVEL SUPPORT PREMIUM LEVEL SUPPORT
----------------------------------------------------------------------------------------------------
Support Provided Toll Free Phone Support during Support Toll Free Phone Support during
Hours Support Hours
----------------------------------------------------------------------------------------------------
Support Hours Monday - Friday 6 A.M. to 8 P.M. Monday - Friday 6 A.M. to 8 P.M.
Eastern time Eastern time
Severity Levels 1-4 Severity Levels 1-4
24 x 7 Beeper support (only Severity
1 and 2)
----------------------------------------------------------------------------------------------------
Staff Access to technical support staff Named Account Manager
----------------------------------------------------------------------------------------------------
Diagnostics Remote diagnostics available Remote diagnostics available
----------------------------------------------------------------------------------------------------
Customer Feedback Quarterly Product Enhancement Ballot Quarterly Product Enhancement Ballot
----------------------------------------------------------------------------------------------------
Customer Quarterly Newsletter Quarterly Newsletter
Communication
----------------------------------------------------------------------------------------------------
Web site Access to technical support web site 24 Access to technical support web site
x 7 for: 24 x 7 for:
o Problem reporting and tracking o Problem reporting and tracking
via the web via the web
o Web accessible knowledge base o Web accessible knowledge base
o Patches and fixes available for o Patches and fixes available
download for download
o Web based books such as Release o Web based books such as Release
Notes, Installation Guides, etc. Notes, Installation Guides, etc.
----------------------------------------------------------------------------------------------------
Proactive Support: 1 Proactive Patch Reporting 1 Proactive Patch Reporting
2 Notification of known problems 2 Notification of known
and fixes problems and fixes
3 Monthly "Wellness Check" and 3 Monthly "Wellness Check" and
call review call review
4 O/S upgrade impact planning 4 O/S upgrade impact planning
5 Site scans on primary URL 5 Site scans on up to 15 URL
address addresses
6 Quarterly review of operations
o One site visit by a support
rep at least once per year.
----------------------------------------------------------------------------------------------------
Severity Levels Defined:
Severity 1 - Critical Business Impact The Service or Software,
regardless of the environment
or product usage, has complete
loss of service or resources
for which no workaround exists
and Customer's work cannot
reasonably continue.
Severity 2 - Serious Business Impact The Service or Software,
regardless of the environment
or product usage is causing
significant or degraded loss
of Customer's service or
resources. A major product
flaw with a workaround, or a
minor product flaw without a
workaround.
Severity 3 - Minor Business Impact. The Service or Software,
regardless of the environment
or product usage, has minor
loss of Customer's service or
resources. A minor product
flaw with a workaround.
Severity 4 - No Business Impact. The Service or Software is in
full working mode; Customer's
work is not being impeded at
this time. Information is
requested or reported. A minor
irritant.
For Severity Level 1 and 2 Errors, Engage shall use best efforts to respond
to the Error report and resolve issues within 1 hour. For Severity Level 3
and 4 Errors, Engage shall use best efforts to respond to the Error report
and resolve issues within 2 hours.
ACCEPTED BY: ACCEPTED BY:
ENGAGE: CUSTOMER:
------------------ -----------------
Initials Initials
ATTACHMENT F
------------
OTHER SERVICES
--------------
F-1. INSTALLATION.
Engage will provide the number of days indicated below of on-site service
with the purchase of either a Perpetual or Subscription license for the
Software as specified by Customer on the Cover Page. Customer shall
reimburse Engage travel costs and expenses in accordance with Engage's
expense policy.
----------------------------------------------------------------------
ADMANAGER DOMESTIC INTERNATIONAL ON-SITE
DSSERVER ON-SITE DAYS OF SERVICE PROVIDED
PROFILESERVER DAYS OF SERVICE
PROVIDED
----------------------------------------------------------------------
Lite 2 4
----------------------------------------------------------------------
Standard 2 4
----------------------------------------------------------------------
Gold 4 6
----------------------------------------------------------------------
Platinum 4 6
----------------------------------------------------------------------
F-2. TRAINING.
a. Public Class. From time to time, Engage in its discretion may offer a
two-day training class for one or more Software products. Engage shall
notify Customer of the times and locations of such classes. The cost of
attendance is $1,100 per person, and Customer is responsible for all travel
and living expenses. The size of each class is limited; accordingly,
admission is on a first-come first served basis.
b. On Site. If customer has elected on-site training on the Cover Page,
Engage shall provide a two-day training for the Software product specified
by Customer at a location specified by Customer. The cost of such
attendance is as follows:
----------------------------------------------------------------------
NUMBER OF COST
ATTENDEES
----------------------------------------------------------------------
1-3 $3,000
----------------------------------------------------------------------
4-7 $4,500
----------------------------------------------------------------------
7-12 $6,000
----------------------------------------------------------------------
In addition, Customer shall reimburse Engage training personnel for travel
and living expenses in accordance with Engage's expense policy.
F-3. CONSULTING SERVICES.
-------------------
a. Statement of Services.
---------------------
1. Scope of Work. Subject to the following terms and conditions,
Engage shall provide Customer with consulting services ("Consulting
Services"), if elected by Customer on the Cover Page, in accordance with
the written work order(s) agreed to by the parties (each a "Work Order").
Attached hereto as Schedule A is the first such Work Order. Each additional
Work Order shall set forth the respective obligations of the parties and
parameters of the project in a fashion substantially similar to Schedule A.
Upon execution by an authorized representative of each of Engage and
Customer, a Work Order shall be deemed fully incorporated herein by
reference. In the event of any conflict between this Section F-3 and any
Work Order, this Section F-3 shall control; in the event of any conflict
between two or more Work Orders, the most recently executed Work Order
shall control.
2. Estimated Completion Dates. Each Work Order may specify an
estimated completion date for completion of the Consulting Services. At
Customer's request, Engage shall use reasonable efforts to estimate such a
due date based on Engage's thencurrent understanding of the requirements
involved in performing the Consulting Services. Any such estimated
completion date is made for project planning purposes only and is not a
guarantee; Engage may revise an estimated completion date at any time
should events beyond Engage's control or the assumptions upon which Engage
relied in calculating its initial estimate change the scope or magnitude of
the Consulting Services.
b. Duties of Engage. The Consulting Services shall be performed in a
workmanlike and professional manner by personnel assigned by Engage having
a level of skill in the area commensurate with the requirements of the
Consulting Services to be performed. Engage alone shall control the manner,
means and method by which Engage performs the Consulting Services. Engage
shall have sole responsibility for payment of compensation to its
personnel. Engage shall have the right to engage contractors, temporary
employees, consultants, vendors, and suppliers at its discretion to assist
in delivering or performing the Consulting Services. In such event, any
such individuals or entities shall be subject to confidentiality provisions
consistent with those set forth in the Agreement, and Engage shall remain
primarily liable to Customer for the performance of Engage's obligations
hereunder.
c. Duties of Customer. Customer shall fully cooperate with and assist
Engage in the performance of the Consulting Services and shall undertake
the responsibilities specified in this Section F-3 and any additional
responsibilities specified in a Work Order at its own expense. Customer
shall appoint a qualified project manager who shall be authorized to make
binding decisions for Customer regarding this Agreement, and who shall
review all specifications, technical materials and other documents
submitted by Engage, request necessary corrections, and approve such
documents; provide to Engage requested Customer information and data and
assume responsibility for the accuracy of the same; advise Engage of
Customer's requirements; and upon request, provide access to Customer's
staff, facilities and hardware and software as necessary for Engage to
perform the Consulting Services.
d. Dependencies on Customer. Engage shall have no liability to Customer for
Customer's damages, expenses or costs from delays or failures in Engage's
performance of the Consulting Services under this Agreement resulting from
Customer "change orders" (i.e., work not specified in the Work Order),
failure of Customer to perform its responsibilities, or failure of Customer
to provide accurate and complete data and instructions in accordance with
the procedures set forth in a Work Order. Any such Customer changes or
delays in performance by Customer may result in a corresponding extension
in the time periods for performance by Engage and/or adjustment to the fees
specified in the Work Order. Engage's sole liability to Customer or to any
third party for claims, regardless of the form of such claims (e.g.,
contract, negligence, or other), arising out of any delay in the
performance of the Consulting Services for any reason shall be to use
commercially reasonable efforts to provide the Consulting Services as
promptly as reasonably practicable thereafter.
e. Compensation. Unless otherwise specified in a Work Order, the Consulting
Services shall be rendered on a time and materials basis at the rate stated
in each Work Order. In addition, Customer shall reimburse Engage for
outofpocket expenses incurred in connection with the Consulting Services in
accordance with Engage's expense policy. Estimates of total fees for
projects may be provided in a Work Order solely for project planning
purposes. Engage does not guarantee such estimates. Engage shall, however,
notify Customer if it becomes aware that its completion of the Consulting
Services will exceed the estimate, and Customer may then terminate the Work
Order and pay only for the Consulting Services actually rendered.
f. Term and Termination. The Consulting Services shall become effective on
the Effective Date and shall continue in effect through the earlier of (a)
completion of all Consulting Services to be rendered under this Section
F-3, (b) termination of the Agreement, or (c) termination of Consulting
Services by either party as permitted below. Either party may terminate the
Consulting Services generally or the applicable Work Order in the event
that the other party materially breaches a provision of this Section F-3
and fails to cure such breach within thirty (30) days of receiving written
notice of such breach from the other party. Termination of the Consulting
Services shall terminate all Work Orders but shall not affect any other
provision of the Agreement; termination of a Work Order shall not affect
any provision of this Section F-3 or of the Agreement. Customer may
terminate a Work Order at any time by giving Engage no less than sixty (60)
days prior written notice.
g. Proprietary Rights.
------------------
1. Engage Ownership; Customer License. Except as provided in Section
F-3(g)(2) below, the Consulting Services and related documentation,
together with all other data and materials, all software codes, trade
secrets, design concepts, discoveries, ideas, enhancements, improvements
and inventions related thereto ("Proprietary Information") supplied by
Engage to Customer pursuant to this Agreement: (i) are the exclusive
property of Engage and shall remain so; and (ii) are confidential and
proprietary trade secrets of Engage, protected by law, and of substantial
value to Engage, and may not be used or disclosed without the written
consent of Engage. Customer shall retain in strict confidence the
Proprietary Information, shall not disclose the Proprietary Information to
others, and may use the Proprietary Information solely in connection with
this Agreement. The Consulting Services shall only be used by Customer for
the purposes set forth in this Agreement. Engage hereby grants Customer a
license, under the same terms and conditions in the Agreement governing the
Software to which the Consulting Services pertain, to use the elements of
the work product identified expressly on the applicable Work Order
("Licensed Materials"). If the Licensed Materials consist of computer code,
Engage hereby grants Customer a license to use the source code form of the
Licensed Materials solely for purposes of performing error correction,
subject to the other terms and conditions of this Agreement.
2. Customer Ownership. In the event that Proprietary Information, in
whole or in part, is not included in the base form of any Engage product or
service and will not be so included in the future in the sole judgment of
Engage, the applicable Work Order shall indicate that the Proprietary
Information shall be owned by Customer; provided, however, that as between
Engage and Customer, Engage shall own all pre-existing and pre-owned
elements of the Proprietary Information and shall have the right to
commercialize any such materials for any purpose. All Proprietary
Information that is not identified expressly in a Work Order as owned by
Customer shall be owned by Engage.
h. Support. For a period of thirty (30) days following delivery of the work
product under a Work Order, Engage will use commercially reasonable efforts
to address Severity Level 1 and 2 Errors (as defined in Attachment E,
Section E-3). Customer shall be solely responsible for maintenance and
support of the work product in all other respects; Maintenance and Support
Services do not apply to work product delivered to Customer under this
Section F-3.
ACCEPTED BY: ACCEPTED BY:
ENGAGE: CUSTOMER:
------------------ -----------------
Initials Initials
ATTACHMENT G
------------
SPECIFIED CONFIGURATION
-----------------------
PROFILESERVER / DSSERVER:
----------------------------------------------------------------
Enterprise Server Microsoft SQL Server 6.5 on Windows NT 4.0
Oracle Server 8.0 on Sun Solaris 2.6
Informix Online Dynamic Server 7.2 on Sun
Solaris 2.6
----------------------------------------------------------------
Local Server Microsoft Internet Information Server 4.0
on Windows NT 4.0
Netscape Enterprise Server 3.51 on Solaris
2.6
Netscape Enterprise Server 3.51 on Windows
NT 4.0
----------------------------------------------------------------
ADMANAGER:
----------------------------------------------------------------
Operating Sun Solaris 2.5.1, 2.6
System/Clients MS Windows NT Server 4.0
----------------------------------------------------------------
Web Server Plug-Ins Apache 1.2.5
ISAPI (IIS 2.0, 3.0, 4.0)
NSAPI (Netscape FastTrack 3.0, Netscape
Enterprise 3.01)
----------------------------------------------------------------
Client Libraries MS Windows NT Server 4.0
Solaris 2.5.1, 2.6
BSD
Dec Alpha NT
Dec Alpha Unix
Linux
----------------------------------------------------------------
Databases Informix 7.2.4 on Windows NT 4.0 SP3
Oracle 7.3.3.0.0 for Solaris 2.5 and 2.6
Oracle 7.3.3.0.0 for ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
Sybase 11.0 1.1 on Solaris 2.5.1
MS SQL Server 6.05.02 on NT 4.0 Server SP1
----------------------------------------------------------------
ACCEPTED BY: ACCEPTED BY:
ENGAGE: CUSTOMER:
------------------ -----------------
Initials Initials
