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Exhibit 10.9
INTERNET SERVICES AGREEMENT
This Internet Services Agreement (the "Agreement"), by and between XXX
Xxxxxxxxxxx ("EMC"), a Massachusetts corporation with a principal place of
business at 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, and XXX.XXX Corporation, (the
"Company") a Nevada corporation with a principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 is made this 28th day of
December, 1999 (the "Effective Date").
WHEREAS, EMC HAS PRODUCTS AND SERVICES WHICH IT INTENDS TO EMPLOY TO
SATISFY COMPANY'S REQUIREMENTS; AND
WHEREAS, COMPANY DESIRES TO HAVE EMC PERFORM INTERNET SERVICES FOR
COMPANY; AND
WHEREAS, COMPANY OWNS AND OPERATES ONLINE INFORMATION SERVICES WHICH
CONSIST OF CERTAIN HARDWARE, SOFTWARE AND APPLICATION SUBSYSTEMS THAT IT WISHES
EMC TO INSTALL, OPERATE AND MAINTAIN FOR COMPANY AT EMC'S INTERNET SERVICES
CENTER, AS FURTHER DEFINED IN THE STATEMENT(S) OF WORK,
NOW, THEREFORE, IN CONSIDERATION OF THE ABOVE AND OTHER GOOD AND
VALUABLE CONSIDERATION, THE PARTIES AGREE AS FOLLOWS:
DEFINITIONS:
"SERVICES" shall mean providing the computer hardware and all related
interfaces, software, data storage and network interface connections and other
such items necessary for the operation of the Company's internet Applications,
the installation and the ongoing operation and maintenance of said Applications,
all as more fully defined in each Statement of Work attached to and made a part
of this Agreement, together with such consulting services as may be necessary to
accomplish said installation, operation and maintenance.
"APPLICATION" shall be defined in each Statement of Work.
"CONTENT" shall mean all text, graphics, sound and video contained in
the Application(s).
1. GENERAL SCOPE OF AGREEMENT.
Company is solely responsible for the Applications and the Content of
the Applications and shall have sole discretion as to whether and when to issue
a purchase
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order for Services in the form of a Statement of Work, once this Agreement is
signed by both parties. In the event of any inconsistency between this Agreement
and any such purchase order, the terms of this Agreement shall control and be
determinative of the parties' rights. EMC is responsible for the equipment,
facilities and services as defined herein and in each Statement of Work.
2. SERVICES TO BE PERFORMED.
EMC will perform the Services as detailed in each Statement of Work,
according to the Functional Specifications in Section 2.1.
2.1 FUNCTIONAL SPECIFICATION
EMC shall supply, maintain and operate the Services including its
various parts in accordance with the functional specification (the "Functional
Specification") set forth below:
The hardware and software and other equipment items shall be specified
in each Statement of Work attached to this Agreement.
A protected and secure computer room environment with physical access
restricted to authorized personnel, and network and remote access restricted by
firewall and other electronic means to authorized users; sufficient fire
repression equipment so as to protect the computer hardware and network hardware
used by the Applications, and backup power supplies to provide uninterrupted
supplies of electricity; automatic and regularly scheduled backup of all related
data and the restoration of such backups on demand by Company; storage of such
backups at a location different than that of the original data, together with
such disaster recovery arrangements as are necessary to enable EMC to continue
to provide the Services, without interruption, in the event of an unplanned
interruption of or the inaccessibility of the Applications; twenty-four hour per
day, seven days per week support of the computer room; and complete facilities
management, including data backups, computer hardware maintenance, network
hardware maintenance, installation of software updates and fixes as supplied by
the manufacturers of the computer and network hardware and software in place,
and any such other tasks as required to provide the Services in accordance with
the requirements and obligations identified in each Statement of Work, routine
maintenance to be performed between the hours of 2:00 AM and 4:00 AM on Sunday
mornings, to minimize server downtime during peak usage periods. During the term
of this Agreement, the allocation of hardware, software and other equipment and
Services supplied by EMC may be re-allocated to other projects by Company and
EMC upon submission of a revised Statement of Work, subject to both parties
written acceptance which will not be unreasonably withheld or delayed.
2.2 STATEMENT OF WORK
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The parties will use documents ("Statements of Work") that define each
assignment, task or project to be performed by EMC for Company. The Statements
of Work will be as complete in details as is required to meet the function of
the work. As a minimum, each Statement of Work must contain the following items:
a detailed description of the project objective; specifications including but
not limited to the following: megabytes of disk space on EMC's server(s) for
storage of the Applications and any data files associated with the Applications,
megabytes of bandwidth available to the Applications, maximum response time,
number of e-mail accounts, number of redundant T3 connections to the Internet on
diverse backbones; maximum downtime; accessibility of log information to the
Company; use of a secure commerce server, etc; coordinators for both EMC and
Company that will be responsible for the efforts; schedule for performance;
reports and/or meetings required, and a list of equipment and services with
prices.
As each Statement of Work is prepared and signed by both parties, that
Statement of Work will be incorporated by reference into this Agreement.
2.3 ACCEPTANCE BY COMPANY.
Upon notice to the Company that the Applications have been installed
and are operating in accordance with the Statement of Work, the Company shall
review the operation of the Applications.*
2.4 REPRESENTATIONS AND WARRANTIES.
EMC represents and warrants that it shall perform the Services in
accordance with this Agreement and in a professional and workmanlike manner, and
agrees that in the event EMC is unable for any reason to perform the Services in
accordance with the Statement of Work, the Company may terminate this Agreement,
in accordance with Section 6.3 of the Agreement.
3. OTHER DUTIES OF EMC
3.1 APPOINTMENT OF CONTACT PERSONNEL
EMC shall appoint a single, primary contact person who shall be
Company's main representative at EMC and whose primary responsibility will be to
assure that the obligations and responsibilities herein are performed in
accordance with the specifications and requirements herein stated.
From time to time it may be necessary to designate a new primary
contact person. EMC will notify Company promptly in writing of the new primary
contact person. Upon reasonable request from Company, EMC will change the
primary contact person. The new primary contact must be fully brought up to
speed on work completed to date for the Company by the previous contact at EMC.
The new contact should be familiar with all
* Certain Confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission
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running applications and server configurations before being installed as the new
primary contact.
3.2 PROPRIETARY RIGHTS
EMC is the sole owner of all right, title and interest in the computer
hardware, software and network connections (the "technology") used to provide
the Services, including any patent, copyright or trade secret rights (the "EMC
rights"), provided EMC does not use the Confidential Information of the Company.
4. DUTIES OF COMPANY
4.1 SUPPLY OF OPERATIONAL DATA
Company shall supply to EMC all necessary operational data required to
operate the unique software or Applications provided to EMC by Company, and all
such other data that EMC reasonably requires in order to perform the Services;
provided that all such operational data shall be protected as Confidential
Information under the non-disclosure agreement between the parties dated October
25, 1999.
4.2 SUPPLY OF SERVER AND DATABASE SOFTWARE AND LICENSES
Company shall supply EMC with such product information from the
Applications, Hardware, Software and associated licenses or maintenance
agreements as EMC needs to perform its obligations under this Agreement.
4.3 APPOINTMENT OF CONTACT PERSONNEL
Company shall appoint a single, primary contact person who shall be
EMC's main representative at Company and whose primary responsibility will be to
assure that the obligations and responsibilities herein are performed in
accordance with the specifications and requirements herein stated.
From time to time it may be necessary to designate a new primary
contact person. Company will notify EMC promptly in writing of the new primary
contact person.
4.4 PROPRIETARY RIGHTS
Company represents that the Application(s) contain technology and
Content gathered, selected, coordinated and arranged by Company at considerable
expense by the application of methods, editorial standards and judgment that are
proprietary to Company and that the technology, Content and Applications are
valuable assets of Company, and that title and ownership of the technology,
Content and Application(s) remains exclusively with the Company and its
licensors.
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EMC acknowledges that it is not acquiring any interest of any kind in
the technology, Content or Application(s) of Company.
5. PAYMENT
Payment terms will be established by the parties and included in each
Statement of Work. Unless specified otherwise in an agreed Statement of Work,
Company shall pay all invoices within 10 days following the receipt of the
invoice by Company, or upon such other terms as the parties may agree.
6. TERM AND TERMINATION
6.1 TERM OF THE AGREEMENT
This Agreement is effective as of the Effective Date and shall remain
in effect for ___*____ or until terminated in accordance with the terms
contained in the following sections and elsewhere in the Agreement.
6.2 RENEWAL OF THE AGREEMENT
*Either party may elect not to renew by giving written notice to the
other party in accordance with the notice provisions contained in Section 9 of
this Agreement, not less than ninety (90) days prior to the end of the then
current term.
6.3 TERMINATION OF THE AGREEMENT
*In the event operation of the Applications is interrupted for a period
longer than twenty-four hours during which EMC fails to make its best efforts to
remedy the problem, Company shall have the right to terminate this Agreement
immediately, upon notice and without further obligation to EMC.
6.4 UPTIME
EMC guarantees __*__% system availability for the site on a rolling
three-month basis measured monthly for the preceding three-month period. Site
outages ("downtime") which will be counted against this _*__% metric will be any
unscheduled downtime caused by any EMC personnel or equipment and related
software within EMC's firewall which is used for operation of the site. Any
downtime related to customer or third party software, content, applications or
personnel will not be counted as downtime for the purpose of measuring overall
system availability.
7. LIMITATION OF LIABILITY
*Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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7.1 EMC SHALL, EXCEPT AS PROVIDED IN SECTION 7.4 OF THIS
AGREEMENT, HOLD HARMLESS AND INDEMNIFY COMPANY FROM ANY LOSS OR DAMAGES
(INCLUDING REASONABLE ATTORNEYS FEES) INCURRED BY COMPANY BECAUSE OF ANY CLAIMS,
SUITS OR DEMANDS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM ANY
TECHNOLOGY OR CONTENT PROVIDED BY EMC TO COMPANY.
7.2 EMC SHALL NOT BE LIABLE FOR ANY CONTENT PROCESSED OR
STORED ON THE SYSTEM EVEN IF SUCH CONTENT WAS KNOWN BY EMC. COMPANY SHALL HOLD
HARMLESS AND INDEMNIFY EMC FROM ANY LOSS OR DAMAGES (INCLUDING REASONABLE
ATTORNEYS FEES) INCURRED BY EMC BECAUSE OF ANY CLAIMS, SUITS OR DEMANDS OF THIRD
PARTIES ARISING OUT OF OR RESULTING FROM ANY CONTENT PROVIDED BY COMPANY TO EMC
FOR PLACEMENT ON THE APPLICATION.
7.3 EXCEPT FOR CLAIMS BY THIRD PARTIES THAT THE INSTALLATION
AND/OR OPERATION OF THE APPLICATIONS BY EMC AND/OR COMPANY INFRINGE ON THE
INTELLECTUAL PROPERTY RIGHTS OF SAID THIRD PARTIES, EMC'S ENTIRE LIABILITY FOR
ANY CLAIM, LOSS, DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE
FORM OF THE ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE GREATER OF
THE AMOUNTS PAID BY THE COMPANY TO EMC DURING THE PREVIOUS 12 MONTH PERIOD OR
$100,000.
7.4 NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL,
CONSEQUENTIAL, OR ANY OTHER INDIRECT LOSS OR DAMAGE, INCLUDING LOST PROFITS OR
LOST DATA, ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING THEREFROM,
OR THE USE OR PERFORMANCE OF ANY SERVICE, WHETHER IN AN ACTION FOR OR ARISING
OUT OF ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
8. CONFIDENTIALITY
The disclosure of Confidential Information shall be governed
by the Agreement entered into by the parties on October 25, 1999, of which a
copy is attached to an made a part of this Agreement.
9. GENERAL
9.1 This Agreement* and any Statement(s) of Work attached to
this Agreement, is the complete and exclusive agreement of the parties and
supersedes all prior written agreements with respect to the subject matter,
including without limitation the
*Certain Confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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Letter of Intent executed by the parties as of October 18, 1999. Neither this
Agreement nor any Statement of Work may be altered or amended except in writing
and executed by their authorized representatives.
9.2 Neither party will be liable to the other for any failure
or delay in performing the services or obligations set forth in this Agreement,
due in whole or in party to the extent that such failure or delay is caused by
events beyond the reasonable control of the non-performing party, including
without limitation acts of God, natural or human-caused disasters such as flood
or fire, civil disturbances or strikes by employees other than employees of the
non-performing party.
9.3 This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, excluding its choice of law provisions.
9.4 Sections 3.2, 4.4, 5, 7, 8 and 9 shall survive termination
of this Agreement.
9.5 All notices under this Agreement shall be in writing and
shall be given in person or by certified or registered mail or overnight courier
to the attention of the respective General Corporate Counsel at the addresses
set forth above.
9.6 All headings in this Agreement are inserted for
convenience only and are not intended to effect the meaning or interpretation of
this Agreement or any clause.
9.7 No omission or delay on the part of either party in
requiring the fulfillment by the other party of its obligations hereunder shall
constitute a waiver of its rights to require the fulfillment of any other
obligation hereunder, or a waiver of any remedy it might have hereunder.
9.8 EMC shall not be in breach of this Agreement due to any
failure to meet any Target Completion Date (as defined in the (Statement of
Work) due to any cause under the reasonable control of Company or as stated in
section 9.2
Signed by authorized representatives of both parties.
COMPANY: XXX.XXX XXX XXXXXXXXXXX
By: /s/ Xxxxxxx Xxxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
_______________________ ________________________
Name: Xxxxxxx Xxxxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Director, Marketing and Sales Title: Sr. V.P. Operations,
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STATEMENT OF WORK NUMBER 01
This document is the Statement of Work referenced in the Internet Services
Agreement (the "Agreement") by and between XXX Xxxxxxxxxxx ("EMC") and Xxx.Xxx
(the "Company") made on the 28h day of December, 1999 (the "Effective Date").
EXECUTIVE SUMMARY
Zap (Xxx.xxx) has expressed a desire for an outsourced environment for its web
site. Xxx.xxx requires that the site always be available and responsive, and for
system administrators to be available 24x7 to service the site. Xxx.xxx has
partnered with Auergen for development and implementation of its site.
EMC proposes to provide a custom, dedicated Internet hosting environment to meet
Xxx.xxx's requirements. The site will be hosted in EMC's Hopkinton, MA facility.
EMC will provide 24x7 year-round system monitoring and system administration of
the site. EMC will also provide sufficient bandwidth and storage to meet
Xxx.xxx's present and projected needs.
The hosted solution for Xxx.xxx will include
* All disk storage will be provided on EMC's Symmetrix storage systems. The
Fast Wide Differential SCSI connections to the Symmetrix storage system
will provide fast and reliable access to all data. This solution leverages
the state-of-the-art network infrastructure and automated backup
infrastructure provided by EMC Internet Services.
EXPLANATION OF PROJECT
Company has requested EMC to provision and operate equipment, software and
services to host Xxx.xxx. Xxx.xxx's initial site deployment will consist of
__________ owned by Xxx.xxx.*
LOAD BALANCING
The load-balanced solution will consist of two systems connecting to the
front-end web servers as described above. Load balancing will be setup and in
place for the initial phase of this project. The load balancing solution is
subject to final technical review after receipt of technical application
information from Xxx.xxx. The redundant load balancing solution is included in
this proposal.
ON-LINE BACKUP AND RECOVERY
EMCs' TimeFinder solution is available for 24 hour database availability,
on-line backup and disaster recovery solution, and has been included in this
proposal. TimeFinder makes a real-time copy of the database on the Symmetrix and
calls it a Business Continuance Volume (BCV). These volumes are continuously
updated on-line. When it's time to do backup, the BCV is disconnected from the
production database and backed up using one of our standard backup software
tools. The volume will be resynchronized with the database after the backup is
done with minimal impact to the server. All this is accomplished without any
downtime. Additional solutions are available for off-site disaster recovery
needs. Additional information and diagrams can be found in the TimeFinder
section of this document.
SOFTWARE
Software licensing and maintenance for Solaris and Oracle Application Server
have been included in this proposal. Oracle Database Pricing has been included
for both purchase and lease options - See Pricing charts for details.
*Certain Confidential information on this page has been omitted and filed
seperately with the Securities and Exchange Commission.
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RAPID DEPLOYMENT & CAPACITY PLANNING
From the time an order is received, EMC will procure and provision all the
specified hardware, install and test the application software, and will turn the
site over to Xxx.xxx for content load. Implementation will be scheduled based on
data center availability. On an ongoing basis, EMC will provide proactive system
monitoring and administration of the site, including maintenance of the database
and operating system software. As the anticipated growth in demand of the
Xxx.xxx site materializes, EMC will notify Xxx.xxx of potential issues and
recommend changes in hardware, software or procedures to accommodate demand. EMC
will also assure that sufficient bandwidth and storage is available to meet
present and projected needs.
The specific details of the site design are discussed in the "EMC Solution"
section of the proposal. An overview of the standard services is as follows:
- a dedicated project manager responsible for all issues impacting the
site
- a primary technical lead with additional technical expertise available
as needed.
- 24x7 automatic monitoring
- capacity planning services
- 24x7 Customer Support Hotline.
- 24x7 System Administration and technical support including application-
specific support.
- a highly secure and safe environment for the facility and the network
- redundant power and air conditioning
- premium grade service relationships with equipment suppliers
- redundant T3 (45 Mb/s) connections from multiple Internet access
providers
- redundant and highly available data storage on EMC Symmetrix storage
systems.
- automated data backup mechanism
- standard client access and site reporting
For purposes of this Statement of Work and the Internet Services Agreement of
which it is a part, "Application" shall mean the company's internet web site and
banner.
1.0 PROJECT COORDINATORS
EMC and Company will each designate a single point of contact, pursuant to
sections 3.1 and 4.3 of the Agreement.
2.0 SCHEDULE FOR PERFORMANCE
EMC will procure and provision the server hardware, install the operating system
and application software provided by Company, and will turn the site over to
Company for content load based on the agreed upon schedule.
3.0 REPORTS AND/OR MEETINGS REQUIRED
Weekly status meetings are required. The meetings will occur between EMC's
project manager and Zap's technical team project manager (Auragen
Communications).
4.0 LIST OF EQUIPMENT AND SERVICES
EMC will provide:*
*Certain Confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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5.0 PAYMENT SCHEDULE
Company agrees to the following payment schedule. Invoice will be issued and
payable upon request.
DESCRIPTION PRICE
----------- -----
*
First payment shall be due the last day of the calendar month in which the
Definitive Agreement is executed with each subsequent monthly payment due on the
30th day of each month thereafter.
7.0 DELIVERY DATE
Friday, January 7, 2000.
COMPANY XXX XXXXXXXXXXX
By: ______________________________ By: _______________________________
Name: Name: _____________________________
Title: Title: ____________________________
* Certain Confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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STATEMENT OF WORK NUMBER 02
This document is included by reference into the Internet Services Agreement (the
"Agreement") by and between XXX Xxxxxxxxxxx ("EMC") and Xxx.Xxx (the "Company")
made on the 28th day of December, 1999 (the "Effective Date").
All terms and conditions of the Agreement remain in full effect, except as
modified herein.
1.0 EXPLANATION OF PROJECT
Company has requested EMC to provision the Xxxxxxx, JRun, software for its two
web servers. EMC will own and operate software.
2.0 PROJECT COORDINATORS
EMC and Company will each designate a single point of contact, pursuant to
sections 3.1 and 4.3 of the Agreement.
3.0 SCHEDULE FOR PERFORMANCE
EMC will procure and provision the software provided by EMC, and will turn the
site over to Company for content load based on the agreed upon schedule.
4.0 REPORTS AND/OR MEETINGS REQUIRED
No special reports or meetings are required. Meetings will be scheduled at the
discretion of Company and EMC.
5.0 LIST OF EQUIPMENT AND SERVICES
EMC will provide: *
6.0 PAYMENT SCHEDULE
Company agrees to the following payment schedule. Invoice will be issued and
payable upon request.
DESCRIPTION PRICE
----------- -----
*
First payment shall be due the last day of the calendar month in which the
Definitive Agreement is executed with each subsequent monthly payment due on the
30th day of each month thereafter.
COMPANY XXX XXXXXXXXXXX
By: ______________________________ By: _______________________________
Name: Name: _____________________________
Title: Title: ____________________________
* Certain Confidential information on this page has been omitted and filed
separately with Securities and Exchange Commission.
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STATEMENT OF WORK NUMBER 03
This document is included by reference into the Internet Services Agreement (the
"Agreement") by and between XXX Xxxxxxxxxxx ("EMC") and Xxx.Xxx (the "Company")
made on the 28th day of December, 1999 (the "Effective Date").
All terms and conditions of the Agreement remain in full effect, except as
modified herein.
1.0 EXPLANATION OF PROJECT
Company has requested EMC provide and operate DoubleClick software and services
to host Xxx.Xxx Ad Serving Application. The Hardware has already been deployed
in SOW #01, so this would be an addition for Software Licensing and Services to
support the Ad Serving Application.
EMC will purchase the appropriate licensing and support for the DoubleClick
product set on behalf of Company pursuant to a DoubleClick Ad Server Network
License Agreement and Software Maintenance and Support Agreement in the form
annexed hereto as Exhibit A and Exhibit B, respectively, and assign all of its
right, title and interest therein to the Company and the Company will assume all
obligations thereunder except for the payment of any fees thereunder, all of
which shall be effected pursuant to an Assignment and Assumption Agreement in
the form of Exhibit C annexed hereto. The Assignment and Assumption Agreement
shall control over any conflicts between it and the Agreement.
EMC will purchase the appropriate licensing and support for the DoubleClick
product set on behalf of the Company.
2.0 PROJECT COORDINATORS
EMC and Company will each designate a single point of contact, pursuant to
Sections 3.1 and 4.3 of the Agreement.
3.0 SCHEDULE FOR PERFORMANCE
EMC will procure and provision the software, and will turn the site over to the
Company for content load based on the agreed upon schedule.
4.0 REPORTS AND/OR MEETINGS REQUIRED
No special reports or meetings are required. Meetings will be schedule at the
discretion of the Company and EMC.
5.0 LIST OF EQUIPMENT AND SERVICES
EMC will provide:
6.0 PAYMENT SCHEDULE
Company agrees to the following payment schedule. Invoice will be issued and
payable upon request.
COMPANY XXX XXXXXXXXXXX
By: ______________________________ By:________________________________
Name: Name:
Title: Title:
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STATEMENT OF WORK NUMBER 04
This document is the Statement of Work referenced in the Internet Services
Agreement (the "Agreement") by and between XXX Xxxxxxxxxxx ("EMC") and Xxx.Xxx
(the "Company") made on the 28th day of December, 1999 (the "Effective Date").
EXECUTIVE SUMMARY
- The Company has expressed a desire for EMC to purchase a license for
_________ and services to install and setup the partitioning as needed.
EMC will own and operate the software, and will be fully and exclusively
responsible for its maintenance and repair. Company will provide any
application-specific software and data.
1.0 PROJECT COORDINATORS
EMC and Company will each designate a single point of contact, pursuant to
sections 3.1 and 4.3 of the Agreement.
2.0 SCHEDULE FOR PERFORMANCE
EMC will procure and provision the server hardware, install the operating system
and application software provided by Company, and will turn the site over to
Company for content load based on the agreed upon schedule.
3.0 REPORTS AND/OR MEETINGS REQUIRED
Weekly status meetings are required. The meetings will occur between EMC's
project manager and Zap's technical team project manager (Auragen
Communications).
4.0 LIST OF EQUIPMENT AND SERVICES
EMC will provide:*
*Certain Confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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5.0 PAYMENT SCHEDULE
Company agrees to the following payment schedule. Invoice will be issued and
payable upon request.
DESCRIPTION PRICE
----------- -----
*
First payment shall be due the last day of the calendar month in which the
Definitive Agreement is executed with each subsequent monthly payment due on the
30th day of each month thereafter.
7.0 DELIVERY DATE
January 6, 2000
COMPANY XXX XXXXXXXXXXX
By: ______________________________ By: __________________________
Name: Name: ________________________
Title: Title: _________________________
* Certain Confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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DOUBLECLICK ADSERVER NETWORK LICENSE AGREEMENT
This ADSERVER NETWORK LICENSE AGREEMENT is made and entered into as of
this 23rd day of December, 1999 ("Effective Date") by and between DOUBLECLICK,
INC., a Delaware corporation, having its principal place of business at 00
Xxxxxxx Xxxxxx, 00xx Xx, Xxx Xxxx, Xxx Xxxx 00000 (before 11/15/99) and 000 X.
00xx Xx., Floors 12 & 16, Xxx Xxxx, Xxx Xxxx 00000 (after 11/15/99)
("DoubleClick") and the entity at the location listed on Exhibit A hereto
("Licensee").
R E C I T A L S :
A. DoubleClick is the owner of proprietary Internet web site advertising sales
and management software products, including AdServer.
B. Xxx.Xxx would like, through the ZapBox, to offer advertising and e-commerce
services to its customers and clients, and desires to license AdServer
technology to assist it in doing so as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
1. DEFINITIONS.
The following terms shall have the following meanings:
1.1 "Software" means the proprietary Internet web site advertising sales and
management software program developed by DoubleClick known as AdServer Network
which is comprised of the Program Components, in object code form only, and any
updates and upgrades as may be issued to Licensee by DoubleClick after the
Effective Date.
1.2 "Program Component(s)" means the AdManager component, the AdServer NetWork
component, the AdClient NetWork component, the AdConsole component and the
AdInsight Server, all as further described on Exhibit A attached hereto.
1.3 "Xxx.Xxx Services" shall mean an Internet web site advertising management
and e-commerce business provided by Xxx.Xxx to third party customers.
1.4 "Xxx.Xxx Servers" shall mean the computer hardware servers owned or
controlled by Xxx.Xxx which host Xxx.Xxx's Web site and other Internet
properties and are used by Xxx.Xxx in connection with providing Xxx.Xxx Service
or any servers of anyone who has agreed to provide such hosting services to
Xxx.Xxx.
1.5 "Programming" means the standard HTML content and functionality which
Xxx.Xxx selects to provide or otherwise deploy on the ZapBox or Xxx.Xxx's other
Internet properties on the World Wide Web.
1.6 "ZapNetwork Site(s)" means Web sites that belong to the ZapNetwork.
1.7 "Xxx.Xxx Site(s)" means Xxx.Xxx's site or sites on the World Wide Web.
2. GRANT OF RIGHTS
2.1 Grant of License. Subject to the terms and conditions of this Agreement,
DoubleClick hereby grants to Licensee a perpetual, worldwide, nonexclusive,
license, to install and use the number of copies of each Program Component of
the Software as indicated on Exhibit A to manage the Programming on Xxx.Xxx's
Sites and the ZapNetwork Site(s), on third party Websites and throughout the
Internet, including, but not limited to, manage Programming remotely from
Xxx.Xxx's Servers for the ZapBox or other Xxx.Xxx Internet properties on
ZapNetwork Sites. No license is granted to Licensee to distribute the Software
to its customers. Licensee may permit limited access to the Software on
Xxx.Xxx's Servers and use of such Software by (a) customers of Xxx.Xxx only so
long as such customers remain customers of Xxx.Xxx and (b) any of the ZapNetwork
Sites, provided that such customers and owners of the ZapNetwork Sites have
acknowledged in writing that the Software is licensed and their rights are
limited to use on Xxx.Xxx's
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Servers and have agreed in writing not to download, copy, distribute or attempt
to make any other unauthorized use of the Software. Licensee may make backup
copies of the Software for archival or disaster recovery purposes.
2.2 Restrictions. The license granted herein is granted solely to the person or
entity set forth on Exhibit A and the Licensee's parent and subsidiaries and to
no one else. All rights not expressly granted hereunder are reserved to
DoubleClick. Licensee may not copy, distribute, reproduce, use or allow access
to the Software except as explicitly permitted under this Agreement, and
Licensee will not modify, adapt, translate, prepare derivative works from,
decompile, reverse engineer, disassemble or otherwise attempt to derive source
code from the Software or any internal data files generated by the Software
except to the extent allowed by applicable law or as permitted in a separate
written agreement with DoubleClick; provided, however that nothing in this
Section 2.2 shall restrict in any way Licensee's right to use the AdServer
Software application programming interface to connect the Software to other
software and/or hardware products, including any software or hardware not
provided by DoubleClick. Licensee shall not remove, obscure, or alter
DoubleClick's copyright notice, trademarks, or other proprietary rights notices
affixed to or contained within the Software; provided, however, such notices,
trademarks, or other proprietary rights notices shall be hidden from viewers of
pages on ZapNewwork Sites or which are delivered by Licensee.
2.3 Ownership. DoubleClick owns and shall retain all right, title, and interest
in and to the Software, including all copyrights, patents, trade secret rights,
trademarks and other intellectual property rights therein. Licensee will, within
fifteen (15) days after DoubleClick's written notice (which notice may delivered
by DoubleClick only once in each consecutive twelve (12) month period), at the
Licensee's option, either permit DoubleClick to inspect Xxx.Xxx's facilities to
confirm that the Licensee is materially complying with the terms of this
Agreement or have Licensee provide a written certification that Licensee is
materially complying with the material terms of this Agreement that apply to it
which shall be signed by an officer of Licensee. Xxx.Xxx's failure to permit
such access or Licensee's failure to provide such officer's certification shall
be deemed a material breach of this Agreement if DoubleClick provides an
additional written notice to Licensee stating that a material breach under this
Agreement will be deemed to occur if compliance does not occur within fifteen
(15) days of delivery of such second notice.
3. DELIVERY OF THE SOFTWARE
3.1 Delivery. Within five (5) business days following the Effective Date,
DoubleClick shall deliver the Software electronically (or by other means
mutually agreed upon by the parties) to Licensee at the location(s) set forth on
Exhibit A.
3.2 Installation and Training. At Licensee's request, following delivery of the
Software, DoubleClick will provide reasonable assistance, at no additional
charge, to Licensee by telephone and e-mail to the extent necessary for Licensee
to install the Software. Additionally, Doubleclick shall provide, at no
additional charge, on-site installation assistance and training ("SureStart") as
listed on Exhibit A. The SureStart process is designed to install the Software.
For purposes of this Agreement, "Installation Date" shall mean the first date on
which all Program Components discussed in Section 1.2 of this Agreement and
defined on Exhibit A of this Agreement are functioning and that the Software can
deliver advertisements to the World Wide Web. The parties shall work together in
good faith towards an Installation Date of no later than April 01, 2000.
4. FEES
4.1 License Fee. In consideration for the rights granted hereunder, Licensee
shall pay DoubleClick license fees in the amounts and on the payment terms set
forth on Exhibit A.
4.2 Taxes. Licensee shall be responsible for all sales taxes, use taxes and any
other similar taxes imposed by any federal, state or local governmental entity
on the transactions contemplated by this Agreement, excluding U.S. taxes based
upon DoubleClick's income. When DoubleClick has the legal obligation to pay or
collect such taxes, the appropriate amount shall be invoiced to and paid by
Licensee unless Licensee provides DoubleClick with a valid tax exemption
certificate authorized by the appropriate taxing authority.
4.3 U.S. Dollars. All fees quoted and payments made hereunder shall be in U.S.
Dollars.
5. DOUBLECLICK SUPPORT
At Licensee's request, DoubleClick will offer to Licensee maintenance and
technical support with respect to the Software under its then current
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standard Software Maintenance Subscription and Support Agreement, a copy of
which is attached as Exhibit B. The Software and Maintenance Subscription and
Support Agreement shall be fully assignable by Licensee to Xxx.Xxx at any time
without any notice to, or required consent by DoubleClick.
6. WARRANTY AND DISCLAIMER
6.1 Functional Warranty. DoubleClick warrants that for a period of ninety (90)
days following the Installation Date: (i) the Software shall operate
substantially in accordance with the then current documentation for such
Software, (ii) the Software shall schedule Programming through the AdManager,
deliver ads to ZapNetwork Sites, and have the ability to count and report
impressions, clickthroughs, and yield and the media on which the Software is
furnished shall be free from defects in materials and faulty workmanship under
normal use. Except as expressly provided herein, DoubleClick does not warrant
that the Software will meet all of Licensee's requirements or that the use of
the Software will be uninterrupted or error-free. DoubleClick's sole obligation
under this warranty is to use commercially reasonable efforts to promptly
correct any non-conforming Software to conform with this warranty and if the
Software cannot be corrected to return to Licensee the license fees paid
hereunder. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DOUBLECLICK LICENSES THE
SOFTWARE TO LICENSEE ON AN "AS IS" BASIS. DOUBLECLICK MAKES NO OTHER WARRANTY OF
ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
6.2 Additional Warranties. DoubleClick warrants that it has the right to grant
the rights granted under this Agreement.
6.3 Year 2000 Warranty. DoubleClick further warrants that the Software shall
correctly process, provide and/or receive date data within and between the 20th
and 21st centuries, provided that all products used with the Software properly
exchange date data with the Software. In the event DoubleClick becomes aware
that the Software will not or does not process dates containing any date
subsequent to the year 1999 correctly, DoubleClick shall immediately notify
Licensee of that fact.
7. INDEMNIFICATION
7.1 By DoubleClick. DoubleClick shall indemnify, and hold harmless Licensee from
any and all damages, liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Licensee as a result of any claim that the
Software, when used within the scope of this Agreement, infringes any copyright,
trademark, patent, trade secret or other intellectual property right of any
third party. Licensee shall promptly notify DoubleClick in writing of any such
claim and promptly tenders the control of the defense and settlement of any such
claim to DoubleClick at DoubleClick's expense and with DoubleClick's choice of
counsel to Licensee, provided that Licensee's failure to do any of the foregoing
shall not relieve DoubleClick of its obligations hereunder except to the extent
that it is actually prejudiced thereby and provided further that DoubleClick
shall not settle any such claim in a manner that would require Licensee to act
other than is expressly set forth in this Agreement without prior written
consent of Licensee. Licensee shall cooperate with DoubleClick, at
DoubleClick's expense, in defending such claim. Licensee may join in defense
with counsel of its choice at its own expense. If the Software is, or in the
opinion of DoubleClick may become, the subject of any claim for infringement or
if it is adjudicatively determined that the Software infringes then DoubleClick
may, at its option and sole expense, either (i) procure for Licensee the right
from such third party to use the Software or (ii) replace or modify the Software
with other suitable and reasonably equivalent products which complies with the
representations and warranties herein so that the Software becomes
non-infringing so long as Licensee does not experience an interruption in
service due to any infringement or (iii) if (i) and (ii) are not practicable,
terminate this Agreement on sixty (60) days advance written notice. If
DoubleClick terminates under subsection (iii) within five (5) years after the
execution of this Agreement, DoubleClick will refund a pro-rata portion of the
license fees based on a five year life of the Software (the refundable amount
being determined by the total license fees reduced each month by 1/60th of the
total). If DoubleClick terminates under subsection (iii) at any time after the
Effective Date, DoubleClick will refund any prepaid subscription and support
fees applicable to the remaining period for which the services will be
terminated.
7.2 Exclusions. DoubleClick shall have no liability for any infringement to the
extent that it arises from (i) the use of other than the then-current,
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commercially available version of the Software following the third month after
the release by DoubleClick of such version; (ii) the use of the Software other
than for serving advertisements on the World Wide Web or as otherwise set forth
in its accompanying documentation; or (iii) the modification of the Software
unless such modification was made or authorized by DoubleClick, when such
infringement would not have occurred but for such modification or (iv) the
combination or use of the Software with other software, hardware or other
products not approved by DoubleClick in advance if such infringement would have
been avoided by the use of the Software not in such combination. THIS SECTION 7
STATES DOUBLECLICK'S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM REGARDING THE
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8. LIMITATION OF LIABILITY
EXCEPT IN REGARDS TO DOUBLECLICK'S OBLIGATIONS UNDER SECTION 7 HEREIN, IN NO
EVENT WILL DOUBLECLICK'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE USE OR
PERFORMANCE OF THE SOFTWARE EXCEED THE SUM OF THE LICENSE FEES ACTUALLY PAID BY
LICENSEE HEREUNDER. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE
OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED
AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL
NOT APPLY TO ANY BREACH BY LICENSEE OF THE LICENSE RESTRICTIONS IN SECTION 2 OR
ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 9. THE PARTIES AGREE THAT THIS
SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK.
9. CONFIDENTIALITY
9.1 Definition. The term "Confidential Information" shall mean any information
disclosed by one party to the other party in connection with this Agreement
which is disclosed in writing, orally or by inspection and is identified as
"Confidential" or "Proprietary" or which a party has reason to believe is
treated as confidential by the other party. Any information, in whatever form,
disclosed by DoubleClick that relates to the Software and that is not publicly
known is "Confidential Information." Any information, in whatever form,
disclosed by Licensee that relates to the ZapBox or the ZapNetwork and that is
not publicly known is also "Confidential Information."
9.2 Obligation. Each party shall treat as confidential all Confidential
Information received from the other party, shall not use such Confidential
Information except as expressly permitted under this Agreement, and shall not
disclose such Confidential Information to any third party without the other
party's prior written consent. Each party shall take reasonable measure to
prevent the disclosure and unauthorized use of Confidential Information of the
other party.
9.3 Exceptions. Notwithstanding the above, the restrictions of this Section
shall not apply to information that:
(a) was independently developed by the receiving party without any use
of the Confidential Information of the other party and by employees or other
agents of (or independent contractors hired by) the receiving party who have not
been exposed to the Confidential Information;
(b) becomes known to the receiving party, without restriction, from a
third party without breach of this Agreement and who had a right to disclose it;
(c) was in the public domain at the time it was disclosed or becomes in
the public domain through no act or omission of the receiving party;
(d) was rightfully known to the receiving party, without restriction,
at the time of disclosure; or
(e) is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body; provided, however, that the
receiving party shall provide prompt notice thereof to the other party and shall
use its reasonable best efforts to obtain a protective order or otherwise
prevent public disclosure of such information.
10. TERM AND TERMINATION
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10.1 Term. The term of this Agreement shall commence on the Effective Date and
shall continue in force until terminated as follows:
10.2 If Licensee fails to make any payment due within thirty (30) days after
receiving written notice from DoubleClick that such payment is delinquent,
DoubleClick may terminate this Agreement on written notice to Licensee at any
time following the end of such thirty (30) day period.
10.3 If Licensee materially breaches Section 2.2 or Section 9 of this Agreement
and fails to cure that breach within thirty (30) days after receiving written
notice of the breach, Doublelclick may terminate this Agreement on written
notice at any time following the end of such thirty (30) day period.
10.4 If DoublelClick materially breaches any term or condition of this Agreement
and fails to cure that breach within thirty (30) days after receiving written
notice of the breach, the Licensee party may terminate this Agreement on written
notice at any time following the end of such thirty (30) day period.
10.5 Survival. The following sections shall survive the termination, for any
reason, of this Agreement: 4, 6, 7, 8, 9, 10, and 12. Any breach of this
Agreement shall survive the termination of this Agreement.
10.6 Remedies. Licensee acknowledges that its breach of Section 2.2 or 9 would
cause irreparable harm to DoubleClick, the extent of which would be difficult to
ascertain. Accordingly, Licensee agrees that, in addition to any other remedies
to which DoubleClick may be legally entitled, DoubleClick shall have the right
to obtain immediate injunctive relief in the event of a breach of such sections
by Licensee or any of its officers, employees, consultants or other agents.
11. EXPORT REGULATIONS
Without affecting the scope of the license granted herein, in the event Licensee
is permitted to transfer the Software to any location outside the United States
under this Agreement, Licensee hereby agrees it will comply with all applicable
United States export laws and regulations.
12. MISCELLANEOUS
12.1 Assignment. Licensee may assign any or all of its rights or delegate any of
its obligations under this Agreement, whether by operation of law or otherwise,
without the prior express written consent of DoubleClick, to Xxx.Xxx and, upon
such assignment, Xxx.Xxx shall be entitled to all of the rights of the Licensee
hereunder. After such assignment, Xxx.Xxx may assign any or all of its rights or
delegate any of its obligations under this Agreement to any person or entity who
purchases Xxx.Xxx, a controlling interest in Xxx.Xxx or any portion of Xxx.Xxx's
business which uses the License or any wholly-owned subsidiary of Licensee.
Subject to the foregoing, this Agreement will bind and inure to the benefit of
the parties, their respective successors and permitted assigns.
12.2 Waiver and Amendment. No modification, amendment or waiver of any provision
of this Agreement shall be effective unless in writing and signed by the party
to be charged. No failure or delay by either party in exercising any right,
power, or remedy under this Agreement, except as specifically provided herein,
shall operate as a waiver of any such right, power or remedy.
12.3 Governing Law. This Agreement shall be governed by the laws of the State of
New York, USA, excluding conflict of laws provisions.
12.4 Notices. All notices, demands or consents required or permitted under this
Agreement shall be in writing. Notice shall be considered effective on the
earlier of actual receipt or (a) the day following transmission if sent by
facsimile followed by written confirmation by registered overnight carrier or
certified United States mail; or (b) one (1) day after posting when sent by
registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (c)
five (5) days after posting when sent by certified United States mail. Notice
shall be sent to the DoubleClick at the addresses set forth on the first page of
this Agreement and to Licensee at the address set forth on Exhibit A, or at such
other address as shall be given by either party to the other in writing. Notices
to DoubleClick shall be addressed to the attention of Contracts Administrator.
12.5 Independent Contractors. The parties are independent contractors. Neither
party shall be deemed to be an employee, agent, partner or legal representative
of the other for any purpose and neither shall have any right, power or
authority to create any obligation or responsibility on behalf of the other.
12.6 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision
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shall be changed and interpreted so as to best accomplish the objectives of the
original provision to the fullest extent allowed by law and the remaining
provisions of this Agreement shall remain in full force and effect.
12.7 Complete Understanding. This Agreement, including all Exhibits attached
hereto, constitutes the final, complete and exclusive agreement between the
parties with respect to the subject matter hereof, and supersedes any prior or
contemporaneous agreement.
12.8 Force Majeure. Neither party shall be liable to the other party for any
failure or delay in performance caused by reasons beyond its reasonable control.
12.9 Purchase Orders. This Agreement shall control Licensee's use of the
Software. All different or additional terms or conditions in any Licensee
purchase order or similar document shall be null and void.
12.10 Execution. The parties have shown their acceptance of this Agreement by
causing it to be executed below by their duly authorized representatives. This
agreement may be executed in counterparts which together shall constitute one
agreement, and each party agrees that a copy of a counterpart executed by it and
sent to the other by any method including without limitation facsimile shall
constitute acceptance of this Agreement.
DOUBLECLICK
Signature: ________________________________
Printed Name: _____________________________
Title: ____________________________________
Date Signed: ______________________________
LICENSEE:
Signature: _______________________________
Printed Name:______________________________
Title: ___________________________________
Date Signed: _______________________________
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EXHIBIT A
LICENSEE:
ADSERVER SOFTWARE LICENSED COMPONENTS:
Program Components Description:
The ad manager component contains the user interface and management
database and the adserver network is a server application responsible for
delivering advertisements remotely, and the ad client network component is the
technology that integrates with server software to receive ads from the ad
server. The AdConsole component serves as a report publishing platform to
advertisers and agencies.
Program Component Licensed Number of Copies
----------------- -------------------------
AdManager 1
AdServer Network 4
AdClient Network 2
AdConsole 1
AdInsight 1
External Site License 100+
GeoTargeting 1yr
ACM (Fast Look-up) 1
Gold Support 24x7 See Support schedule 1
*Licensee shall have the right to copy the AdServer for AdInsight (reporting)
purposes. This additional copy of AdServer shall not be used for additional
adserving capability.
SureStart Deployment
**Plus related travel expenses
PACKAGE PRICE:
Payment Terms:
Payment is due _______ from the Effective Date
22
SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT
BETWEEN
DOUBLECLICK, INC.
and
XXX.XXX CORPORATION
DoubleClick, Inc. ("DoubleClick") has granted Xxx.Xxx Corporation
("Licensee") a license to certain software in accordance with a DoubleClick
Adserver Network License Agreement dated December 23, 1999 (the "License
Agreement"). Licensee wishes to obtain maintenance and support of such software
pursuant to this Agreement.
SECTION 1
DEFINITIONS
1.1 "Product(s)" means the software programs licensed to Licensee pursuant to
the License Agreement together with any Updates and Upgrades furnished by
DoubleClick to Licensee under this Agreement and any modifications to the
Products furnished to Licensee under the product warranty in the License
Agreement.
1.2 "Updates" means a software Product release containing error corrections and
minor enhancements, in object code form, which is made commercially available by
DoubleClick and generally indicated by a change in the revision number in the
tenths or hundredths digit to the right of the decimal point (e.g., a change
from version x.xx to x.xy or x.yx) and any corrections and updates to the
associated documentation.
1.3 "Upgrades" means a software Product release containing significant
functional enhancements and feature additions of the Software, in object code
form, which is made commercially available by DoubleClick and generally
indicated by a change in the revision number to the left of the decimal point
(i.e., 4.00).
SECTION 2
TECHNICAL SUPPORT
2.1 Support. DoubleClick will provide Licensee with technical support
("Support") during the hours indicated on the attached Schedule 1. Support will
be provided by at least one of the following methods: telephone, email, World
Wide Web, or fax. DoubleClick, at its sole discretion, will choose which
method(s) it uses to provide support to Licensee. Support will include:
(a) assistance related to questions on the installation and operational
use of the Product(s);
(b) assistance in identifying and verifying the causes of suspected
errors in the Products(s);
(c) providing workarounds for identified Product errors or malfunctions
as set forth in sections 2.2 and 2.3 below; and
(d) support provided under DoubleClick's policies set forth on Schedule
2 attached hereto.
Licensee will designate the number of persons set forth in Schedule 1
to act as support liaisons to utilize the support and will ensure that such
person will be properly trained in the operation and usage of the Products. Upon
request, Licensee will allow the use of on-line diagnostics of the Products
during error diagnosis.
2.2 Error Corrections. Upon DoubleClick's receipt of written notification from
Licensee that there is any defect or error in the Products, DoubleClick shall
use commercially reasonable efforts to reproduce such defect or error as soon as
reasonably practicable. If DoubleClick is so able to reproduce such defect or
error, then DoubleClick
23
shall provide commercially reasonable assistance to correct such defect or error
according to the timeframes set forth in Schedule 2. DoubleClick shall have no
obligation to correct all errors in the Product other than as set forth herein.
Upon identification of any error, Licensee shall notify DoubleClick of such
error and shall provide DoubleClick with enough information to reproduce the
error. Forthwith upon such correction being completed DoubleClick shall deliver
to Licensee documentation describing generally the nature of the correction and
providing instructions for the proper use of the corrected version of the
Products.
2.3 Error Corrections. DoubleClick shall not be responsible for correcting any
errors on the Product that are not reproduceable by either party or errors to
the extent caused by: (i) Licensee's failure to implement all Updates issued
under this Agreement; (ii) changes to the operating system or environment not
supported by DoubleClick which adversely affect the Product (it being understood
that DoubleClick is not, as of the date of this Agreement, supporting any
operating system or environment); (iii) any alterations of or additions to the
Product made by parties other than DoubleClick or other parties expressly
consented in writing by DoubleClick; (iv) use of the Product in a manner for
which it was not designed; (v) interconnection of the Product with other
software that does not meet the specifications for the Products contained in the
Products' documentation or (vi) use of the Product on an unsupported platform.
2.4 On-site Training and Support. Upon request, and provided that Licensee is
current with fees due under this Agreement, DoubleClick will provide training
for Licensee's administrators and trainers and/or direct support at Licensee's
site at DoubleClick's then applicable standard training rates and charges.
2.5 Versions Supported. DoubleClick shall be obligated to support the then
current production version of the Product and the immediately prior release for
a period of three (3) months after such new release. Support for any earlier
versions or for errors not covered under this Agreement may be obtained at
DoubleClick's then current rates.
SECTION 3
MAINTENANCE SUBSCRIPTION
3.1 DoubleClick will provide each Update and Upgrade to Licensee promptly after
they become available when and as they become available ("Subscription"). In
reasonable time prior to the delivery of a new release, DoubleClick shall make
available to Licensee all amendments to the Software's specification which shall
describe the facilities and functions of the new release. Licensee may acquire
additional copies of the documentation at DoubleClick's then current standard
rates.
3.2 DoubleClick agrees to make available to Licensee the option to enroll as a
registrant under its Source Code Escrow Agreement. The conditions for release of
source code shall be limited to (i) DoubleClick's material breach of its
obligations under this Software Maintenance and Support Agreement which remains
uncured for thirty (30) days after DoubleClick's receipt of notice to cure or if
not capable of being cured within such thirty (30) day period, DoubleClick fails
to begin to cure or fails to continue to diligently pursue cure within such
thirty (30) day period; (ii) DoubleClick ceases to do business in the ordinary
course for a period of sixty (60) days or more; or (iii) the institution by or
against DoubleClick of bankruptcy proceedings for total liquidation which are
not dismissed within sixty (60) days or if this Agreement is rejected in a
bankruptcy proceeding. In the event of release of source code from the escrow,
Licensee shall have the right to correct errors in and make modifications to the
Product for internal use consistent with the license granted in the License
Agreement. Licensee shall be responsible for all associated escrow fees.
24
SECTION 4
FEES
4.1 Support and Subscription Fees. For DoubleClick technical Support services
covered by Section 2 of this Agreement, Licensee shall pay to DoubleClick in
advance the annual technical Support fee in the amount set forth in Schedule 1
for the first year following the earlier of: (a) the date that Licensee requests
Support to commence; or (b) March 30, 2000 (such period and each successive one
(1) year period, an "Annual Period"). Licensee shall pay the applicable annual
fees each year in advance of the beginning of each subsequent Annual Period as
set forth in Schedule 1. For DoubleClick Subscription Service provided under
Section 3 of this Agreement, Licensee shall pay the applicable annual
Subscription fee, as set forth in Schedule 1, at the beginning of each annual
period. DoubleClick reserves the right to change the annual fees from time to
time effective at the commencement of the next renewal term by giving Licensee
at least sixty (60) days' prior written notice of such change and such increase
shall be no greater than six percent (6%) over the immediate previous year's
fees. DoubleClick reserves the right to charge Licensee a reinstatement fee to
resume services if Licensee has not continuously maintained this Agreement in
effect. Annual fees on any additional units licensed beyond the initial license
will be prorated and billed at the time of the applicable license grant.
4.2 Payment. Any amount payable to DoubleClick under this Agreement will be due
and payable within thirty (30) days after Licensee's receipt of DoubleClick's
invoice therefor. All monetary amounts are specified and shall be paid in the
lawful currency of the United States of America. Licensee shall pay all amounts
due under this Agreement to DoubleClick at the address indicated at the
beginning of this Agreement or such other location as DoubleClick designated in
writing. Any amount not paid when due will bear interest at the rate of one and
one-half percent (1.5%) per month or the maximum rate permitted by applicable
usury law, which is less, determined and compounded on a daily basis from the
date due until the date paid.
4.3 Taxes. Unless otherwise specified, the fees, charges and other amounts
specified in this Agreement do not include any sales, use, excise or other
applicable taxes. Licensee will pay or reimburse DoubleClick for any and all
such taxes (excluding any applicable federal and state taxes based on
DoubleClick's income).
SECTION 5
TERMINATION
5.1 Term. The term of this Agreement shall begin as of the date of DoubleClick's
signature below and continue for three (3) years thereafter, unless Licensee
notifies DoubleClick of its intention to terminate this Agreement at least
thirty (30) days prior to the effective date of the termination. In the event
that DoubleClick terminates the License Agreement pursuant to Section 7.1
thereof, DoubleClick shall refund a pro rata portion of the support and
subscription fees paid hereunder as provided in such Section 7.1.
5.2 Termination For Default. If either party defaults in the performance of or
compliance with any of its material obligations under this Agreement, and such
default has not been remedied or cured within thirty (30) days after written
notice specifying the default or, if the nature of the default is such that more
than thirty (30) days are required for the cure thereof, the defaulting party
fails to commence its efforts to cure such breach or default within such thirty
(30) day period and to diligently prosecute the same to completion thereafter,
then the nondefaulting party may terminate this Agreement in addition to its
other rights and remedies under law.
5.3 Survival. Sections 4.2, 4.3, 5, 6 and 7 shall survive the termination of
this Agreement.
SECTION 6
LIMITATIONS OF LIABILITY
LIMITATION. DOUBLECLICK'S LIABILITY (WHETHER IN CONTRACT, WARRANTY,
TORT OR OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, REPRESENTATION,
STRICT LIABILITY OR PRODUCT LIABILITY OF DOUBLECLICK) UNDER THIS AGREEMENT WITH
REGARD TO ANY PRODUCT, DOCUMENTATION, SERVICES OR OTHER ITEMS SUBJECT TO THIS
AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL COMPENSATION PAID BY LICENSEE TO
DOUBLECLICK UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT
OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT
OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
25
SECTION 7
MISCELLANEOUS
7.1 Assignment. Licensee may not assign any of its rights or delegate any of its
obligations under this Agreement, whether by operation of law or otherwise,
without the prior express written consent of DoubleClick, provided that Licensee
may assign this entire Agreement to any person or entity who purchases Licensee,
to a controlling interest in Licensee or to any wholly-owned subsidiary of
Licensee. Subject to the foregoing, this Agreement will bind and inure to the
benefit of the parties, their respective successors and permitted assigns.
7.2 Waiver and Amendment. No modification, amendment or waiver of any provision
of this Agreement shall be effective unless in writing and signed by the party
to be charged. No failure or delay by either party in exercising any right,
power, or remedy under this Agreement, except as specifically provided herein,
shall operate as a waiver of any such right, power or remedy.
7.3 Governing Law. This Agreement shall be governed by the laws of the State of
New York, excluding conflict of laws provisions.
7.4 Notices. All notices, demands or consents required or permitted under this
Agreement shall be in writing. Notice shall be considered effective on the
earlier of actual receipt or (a) the day following transmission if sent by
facsimile followed by written confirmation by registered overnight carrier or
certified United States mail; or (b) one (1) day after posting when sent by
registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (c)
five (5) days after posting when sent by certified United States mail. Notice
shall be sent to the parties at the addresses set forth on the first page of
this Agreement or at such other address as shall be given by either party to the
other in writing. Notices to DoubleClick shall be addressed to the attention of
Contracts Administrator.
7.5 Independent Contractors. The parties are independent contractors. Neither
party shall be deemed to be an employee, agent, partner or legal representative
of the other for any purpose and neither shall have any right, power or
authority to create any obligation or responsibility on behalf of the other.
7.6 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
7.7 Complete Understanding. The License Agreement and this Agreement, including
all Exhibits attached thereto and hereto, constitutes the final, complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes any prior or contemporaneous agreement and may only be
modified or supplemented by a writing signed by both parties.
7.8 Excused Performance. Neither party will be liable for, or be considered to
be in breach of or default under this Agreement on account of, any delay or
failure to perform as required by this Agreement (other than monetary
obligations) as a result of an event of force majeure or any cause or condition
beyond such party's reasonable control.
DOUBLECLICK
Signature:_____________________________
Printed Name:__________________________
Title:_________________________________
Date Signed:___________________________
Licensee:
Signature:_____________________________
Printed Name:__________________________
Title:_________________________________
Date Signed:___________________________
26
SCHEDULE 1
[SUBJECT TO FURTHER REVIEW BY DOUBLECLICK]
SUPPORT HOURS: AdService 24 (24 hours a day - 7 days a week)
SUPPORT CONTACTS: Please List 5:
FEES:
Products License Date Annual Support Fee Annual Subscription Fee
-------- ------------ ------------------ -----------------------
Fees are payable annually in advance.
27
SCHEDULE 2
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Priority Criteria Response target within Resolution Target Solution
business hours
-----------------------------------------------------------------------------------------------------------------------------------
Production/Development 1 hour 24 hours- Workaround Fix incorporated into next
system down; Product Engineering working release, Fix or Workaround
1 unusable, resulting in round the clock if a incorporated into Knowledge
total disruption/product patch is required. Base*
outage
-----------------------------------------------------------------------------------------------------------------------------------
2 Major feature/function 4 hours 48 hours-Workaround Fix incorporated into next
failure: Operation Engineering working release, Fix or Workaround
severely restricted, no round the clock if a incorporated into Knowledge Base
convenient Workaround patch is required.
-----------------------------------------------------------------------------------------------------------------------------------
3 Minor feature/function 8 hours 10 business Fix incorporated into next
failure: Product does days-Workaround Fix release, Fix or Workaround
not operate as designed, delivered in next release incorporated into Knowledge Base
minor impact on usage
-----------------------------------------------------------------------------------------------------------------------------------
4 Minor problem: i.e., 8 hours Answer technical Incorporated into Knowledge
Documentation information requests. Base.
information enhancement Forward other issues to
request, etc. appropriate group,
(Sales/Marketing/Consulting)
-----------------------------------------------------------------------------------------------------------------------------------
*Knowledge Base: DataBase of solutions, frequently asked questions, and
technical application notes.
